JUDGMENT : RAKESH KUMAR, J. The present appeal under Section 374(2) read with Section 389(1) of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) was preferred against judgment of conviction and sentence dated 25-09-2012 and 26-09-2012 respectively passed in Sessions Trial No. 1220 of 2010 {Kotwali (Tatarpur) P.S. Case No. 230 of 2010} by Sri Nand Kishore Gupta, learned Additional District & Sessions Judge – 4, Bhagalpur (hereinafter referred to as the ‘Trial Judge’). By the said judgment, the learned Trial Judge has convicted the sole appellant for commission of offence under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/- (five thousand). In default of payment of fine, it has been directed that the appellant shall further undergo imprisonment for three months. 2. Short fact of the case is that on 16-04-2010 at 6:30 AM, fardbeyan of one Archana Devi, wife of Vishnu Kumar Singh (P.W.3) was recorded by Sub-Inspector of Police Manoranjan Bharti (P.W.9), S.H.O. of Tatarpur Police Station. The fardbeyan was recorded near Khatu Shyam Mandir More. In the fardbeyan, she stated that her father-in-law Dilip Singh @ Barshati Singh aged about 55 years was doing business of clothes. On 16-04-2010 at about 5:30 hours in the morning, with a view to purchase vegetables, she alongwith her fatherin- law Dilip Singh @ Barshati Singh had gone to Mandroja Sabji Mandi and near the wall of ice-cream factory, her fatherin- law started urinating, in the meanwhile, suddenly from Mandroja side, Manoj Rajak, son of Madan Rajak of Mandroja carrying a sharp cutting weapon in his hand by running proceeded towards her father-in-law. Behind him, there were three more persons, whom she did not recognize, but claimed to recognize after seeing their faces. While her father-in-law, after urinating turned, Manoj Rajak (appellant) with sharp cutting weapon, which he was carrying in his hand, gave powerful blow on his head, whereafter, her father-in-law fell down and started screaming. She raised alarm, however, in the meanwhile, Manoj Rajak (appellant) and other three unknown persons fled away towards southern area. She stated that due to blow given by Manoj (appellant), head of her father-in-law was divided in two pieces and brain material had come out and profuse bleeding had occurred and instantaneously, her father-in-law died. She raised alarm, however, in the meanwhile, Manoj Rajak (appellant) and other three unknown persons fled away towards southern area. She stated that due to blow given by Manoj (appellant), head of her father-in-law was divided in two pieces and brain material had come out and profuse bleeding had occurred and instantaneously, her father-in-law died. On alarm, local people and her family members arrived there and they identified them while fleeing away. She claimed that Manoj Rajak (appellant) of Village - Mandroja, Police Station – Tatarpur, District – Bhagalpur along with his three unknown friends by way of giving blow by shart cutting weapon on the head of her father-in- law had killeed him. After reading the fardbeyan, the informant put her signature on the same. 3. After recording fardbeyan, on 16-04-2010 at about 6:15 PM (evening), a formal F.I.R., vide Kotwali (Tatarpur) P.S. Case No. 230 of 2010, was registered for offence under Sections 302/34 of the Indian Penal Code against Manoj Rajak (appellant) and other three unknown accused persons. After investigation and finding the case true against the appellant, police on 22-07-2010 submitted charge-sheet against only appellant, keeping investigation pending against others. Thereafter, on 10-08-2010, the learned Magistrate took cognizance of offence and subsequently, on 05-10-2010, the case was committed to the court of sessions and as such, it was numbered as Sessions Trial No. 1220 of 2010. On 04-01-2011, charge under Sections 302/34 of the Indian Penal Code was framed against the appellant and to prove its case from the prosecution side, altogether 10 witnesses were examined. Out of 10 witnesses, only informant namely Archana Devi, daughter-in-law of deceased claiming to be eye-witness was examined as P.W.8, whereas, P.W.3 Vishnu Kumar Singh (son of deceased and husband of informant), P.W.4 Manish Kumar Singh (son-in-law of deceased) and P.W.7 Aarti Devi (daughter of deceased and wife of P.W.4) were examined as hearsay witness. P.W.1 Vibhash Prasad Yadav and P.W.2 Umesh Prasad Choube are formal witness and they were witnesses to the seizure list. P.W.6 Dr. Binod Kumar Jaiswal had conducted post-mortem on the dead body of the deceased, whereas, P.W.5 Ramchandra Yadav, P.W.9 Manoranjan Bharti and P.W.10 Shrawan Kumar had conducted investigation. 4. Mr. Ranjit Sahay, learned counsel assisted by Mr. P.W.1 Vibhash Prasad Yadav and P.W.2 Umesh Prasad Choube are formal witness and they were witnesses to the seizure list. P.W.6 Dr. Binod Kumar Jaiswal had conducted post-mortem on the dead body of the deceased, whereas, P.W.5 Ramchandra Yadav, P.W.9 Manoranjan Bharti and P.W.10 Shrawan Kumar had conducted investigation. 4. Mr. Ranjit Sahay, learned counsel assisted by Mr. S.M.Ashraf, learned counsel for the appellant, after referring to entire evidence, has argued that the prosecution had not proved its case beyond all reasonable doubt, rather it was a case of ‘No Evidence’, even then, the learned Trial Judge has incorrectly passed judgment of conviction under-challenge. It was argued that as per the case of informant daughter-in-law of deceased, she had claimed to be eye-witness to the occurrence, whereas, her husband namely Vishnu Kumar Singh, who has been examined as P.W.3, has deposed that at the time of occurrence, his wife (P.W.8) was not in the village or at the place of occurrence with her father-in-law, rather she was in her maikey (parents’ house situated in Naugachhia). Even, the evidence of informant (P.W.8) appears to be not believable, since it was specific case of the informant that this appellant, while her father-in-law after urinating turned, had given only one blow on the head of her father-in-law by sharp cutting weapon and his head was separated in two pieces, but such statement appears to be doubtful, in view of the postmortem examination report, which was held on the dead-body of deceased. In the post-mortem report, other injuries were also found on the person of the deceased and as such, the evidence of P.W.8 does not inspire confidence, rather appears to be untruthful. According to learned counsel for the appellant, if the evidence of P.W.8 (informant) appears to be doubtful, then there was no plausible or cogent evidence to connect appellant in the present case. Besides informant, others are hearsay witnesses, that too not corroborated with other evidences. Those witnesses are P.W.3 Vishnu Kumar Singh (son of deceased), P.W.4 Manish Kumar Singh (son-in-law of deceased) and P.W.7 Aarti Kumari (daughter of deceased). It has further been argued that despite the fact that it was a case of prosecution that in a public place, occurrence had taken place in the case, prosecution had preferred not to examine even single independent witness to support its case. It has further been argued that despite the fact that it was a case of prosecution that in a public place, occurrence had taken place in the case, prosecution had preferred not to examine even single independent witness to support its case. However, two witnesses, who were having no relation with the family of the deceased, were introduced as seizure list witness i.e. P.W.1 Vibhash Prasad Yadav and P.W.2 Umesh Prasad Choube. However, P.W.1 was declared as hostile witness, since he made categorical statement that only on blank paper, police had obtained his signature. So far as P.W.2 Umesh Prasad Choubey is concerned, though he identified the signature on the seizure list, he stated that nothing was recovered in his presence. Accordingly, it has been argued that only two persons, who were having no relation with the family of the deceased, though were examined as seizure list witness, they have not supported the preparation of seizure list itself. Learned counsel for the appellant has argued that it appears that none had seen the occurrence and after finding dead body at the place of occurrence, the police officials in a case of no evidence had fabricated a case to prove, as if, informant had seen the occurrence. According to learned counsel for the appellant, the entire case appears to be fabricated with oblique motive by the investigating officer. Accordingly, it has been argued that since in such a false case, the appellant is languishing in jail, while setting aside judgment of conviction and sentence, considering the nature of false implication, this Court may also pass an order of adequate compensation in favour of the appellant. 5. Sri Ajay Mishra, learned Addl. Public Prosecutor, opposing the appeal, has argued that in a criminal trial, number of witnesses has got no importance, but the quality of evidence of a witness is required to be examined. By way of referring to evidence of informant (P.W.8), he has argued that informant had consistently disclosed the fact as to how this appellant had given sword blow on the head of the deceased and this was the reason for instantaneous death of father-in-law of the informant. He further submits that other hearsay witnesses have also supported the prosecution case and as such, there is no reason to interfere with the impugned judgment of conviction and sentence. 6. He further submits that other hearsay witnesses have also supported the prosecution case and as such, there is no reason to interfere with the impugned judgment of conviction and sentence. 6. Besides hearing learned counsel for the parties, we have minutely perused both the evidences i.e. oral and documentary and after going through the same, prima facie, we are satisfied that prosecution had not proved its case warranting conviction of the appellant. Before proceeding further, it is necessary to cursorily discuss the evidences. 7. The informant Archana Devi P.W.8, who is the daughter-in-law of deceased, in her evidence has stated that occurrence had taken place on 16-04-2010 at about 6:00 hours in the morning. She with her father-in-law after purchasing vegetables was returning to her house with her father-in-law namely Dilip Singh @ Barshati Singh. Her father-in-law for urinating went near ice-cream factory, then Manoj Rajak (appellant) came and he was having sword in his hand and he gave blow by sword on his head and after receiving injury, her father-in-law fell down and died. She stated that with Manoj Rajak (appellant), one more person was there, whom she did not recognise. Due to head injury, brain material had come out. She further stated that on other portion also, assault was made. She claimed that accused persons were pressurizing to give evidence in their favour. She identified her signature on fardbeyan, which was marked as Ext. 4 and she also identified the appellant in dock. In cross-examination, in paragraph 3, she stated that on the date of occurrence, in the house besides her, her father-in-law, nanad (sister of her husband) and nandoi (husband of her husband’s sister) were present. She further stated that on the date of occurrence at 5:30 hrs. in the morning, her father-in-law (deceased) had gone for walking. She also followed him for purchasing vegetables. She stated that while she was purchasing vegetables, her father-in-law nearby was urinating. In paragraph 4 of her cross-examination, she stated that there were only one person, who assaulted. She stated that she was not aware as to why other persons were fleeing away. Three persons were fleeing and the person, who had killed her father-in-law, was also fleeing away. In paragraph 6 of her cross-examination, she admitted that her maika (parental house) was in Naugachhia and about five days prior to the occurrence, she had returned from her maika. Three persons were fleeing and the person, who had killed her father-in-law, was also fleeing away. In paragraph 6 of her cross-examination, she admitted that her maika (parental house) was in Naugachhia and about five days prior to the occurrence, she had returned from her maika. Her husband had come two (2) days after the murder of the father-in- law. Nanad (husband’s sister) and nandosi (husband of husband’s sister) arrived immediately. She claimed that she herself had called them. Her nandoi ( husband of husband’s sister) had gone to police station to inform police. She stated that she had informed her nandoi (husband of husband’s sister) about the occurrence and Daroga Jee had come with him. She further stated in paragraph 7 of her cross-examination that her father-in-law had received injuries on right hand as well as on his head. She further clarified that except Manoj Rajak (appellant), there was nothing in the hand of others. Two persons at the time of fleeing away were with Manoj (appellant). She denied the suggestion that on the date of occurrence, she was in Naugachhia and none had seen the occurrence and subsequently, after calling her, false case was lodged. After examining the evidence of P.W.8, it would be more pertinent to examine the evidence of her husband Vishnu Kumar Singh, who was examined as P.W.3. 8. P.W.3 Vishnu Kumar Singh (son of deceased and husband of the informant) in his statement has stated that he heard that his father was killed. At the time of occurrence, he was not present. At 7.00-7.30 hrs. morning, he got information regarding the occurrence. His father was given Dabiya blow on his head. He stated that he heard that his father was killed by Manoj Rajak (appellant) and he also identified the appellant in court. In paragraph – 2 of his cross-examination, he stated that at the time of occurrence, he was in Ujjain (M.P.) and he received information on telephone. He stated that his wife is Archana Devi (P.W.8) and maika (parents’ house) of Archana is in Naugachhia. This witness has categorically stated that at the time of occurrence, his wife was in her maikey (parents’ house). In paragraph 3 of cross-examination, he stated that Aarti Singh (P.W.7) was his sister and Manish Kumar Singh (P.W.4) was his Behnoi (brother-in Patna law). This witness has categorically stated that at the time of occurrence, his wife was in her maikey (parents’ house). In paragraph 3 of cross-examination, he stated that Aarti Singh (P.W.7) was his sister and Manish Kumar Singh (P.W.4) was his Behnoi (brother-in Patna law). He clarified that he had not found any person, who had seen the occurrence **vakaW[k ls ns[kus dk eq>s dksbZ xokg ugha feykA^^ On examination of evidence of P.W.3 (husband of P.W.8), there is no reason to place reliance on the evidence of P.W.8, who had claimed to be only eye-witness to the occurrence. Moreover, the evidence of P.W.8 Archana Devi further appears to be not truthful, in view of the fact that though in her evidence, she had stated that immediately after the occurrence, her nanad (husband’s sister) and nandoi (husband of husband’s sister) had arrived and she stated that she had gone to call them and her nandoi (husband of husband’s sister) had gone to the police station. In the evidence of P.W.4 Manish Kumar Singh, it has come that on the date of occurrence i.e. 16-04-2010 in the morning at 6:00 (morning) he was going to drop his daughter, one person arrived there and he told that Barshati Singh has been murdered and he told him to go and see. After getting such information, he went to the place i.e. near Khatu Shyam Temple and saw that besides dustbin, Barshati Singh was lying and his head was having cut injury. This witness further stated that he heard that Manoj Rajak (appellant) had killed Barshati Singh. He further stated that a news had appeared in newspaper that arm was recovered, by which, deceased was murdered. He also proved his signature on inquest report, which was marked as Ext. 2. In paragraph – 3 of his cross-examination, from the news, which was published in the newspaper, he came to know that Manoj Rajak (appellant) had killed. He further clairifed that he was not informed by any named person as to who had killed. He further stated that Manoj Rajak (appellant) was doing Disc work and in that connection, he was coming to his house for collecting money. The evidence of P.W.4 further creates serous doubt on the evidence of P.W.8, who had stated that she had informed P.W.4 regarding the occurrence. 9. He further stated that Manoj Rajak (appellant) was doing Disc work and in that connection, he was coming to his house for collecting money. The evidence of P.W.4 further creates serous doubt on the evidence of P.W.8, who had stated that she had informed P.W.4 regarding the occurrence. 9. Aarti Singh (daughter of the deceased and wife of P.W.4 Manish Kumar Singh) was examined as hearsay witness as P.W.7. In paragraph – 1 of her evidence, she stated that on 16-04-2010 at 5-5.30 in the morning, occurrence had taken place. She was preparing meal in her house. Her husband, for dropping children, had left the house. Thereafter, one person came and told that her father Barshati Singh is dead. On getting information, she came out of her house and in a Nala (drain) near ice-cream factory, her father was found dead. She stated that all the persons were saying that Manoj Rajak (appellant) had killed her father by means of sharp cutting weapon. She identified the appellant in court and thereafter, she voluntarily stated that accused has also confessed regarding his involvement. Again, on examination of evidence of P.W.7, it is clear that the evidence of informant is not truthful since in her evidence, she had stated that in the house of her in-laws, this witness was also present, whereas, this witness has stated that at the time of occurrence, she was in her house and preparing meal and her husband was going to drop children. 10. P.W.1 Vibhash Prasad Yadav was examined as seizure list witness, who though idenfied his signature, which was marked as Ext.1, has stated that his signature was obtained on blank paper and this witness was declared hostile. Similarly, P.W.2 Umesh Prasad Choube was examined as seizure list witness. He too has proved his signature on the seizure list, which was marked as Ext. 1/1, but he stated that no article was recovered in his presence. Accordingly, seizure list showing recovery of weapon has got no significance. 11. Dr. Bind Kumar Jaiswal on 16-04-2010 at 1:00 PM had conducted post-mortem examination on the dead body of Dilip Kumar Singh @ Barshati Singh and he noticed/observed following:- “(i) Three incised wound of size about 4” x ½” x muscle deep to 3” x ½” x mussel deep were present over left fore-arm in its middle part, right arm on its upper part and over right scapula. (ii) One incised wound of size 7” x 1” x bone deep was seen over back of neck to back of ear. Soft tissues and blood vessels were sharply cut. (iii) One incised wound of size 9”x2” leading to cranial cavity was present on right side of head on its outer part. The soft tissue right temporal, right parietal and occipital bones were sharply cut. On opening the cranial cavity, the right cerebral hemisphere was sharply cut and cranial cavity contained blood and blood clots. The brain and its meninges were pale. Opinion:- All above noted injuries were anti-mortem and caused by sharp cutting weapon. Injury no. 1 were simple in nature. Injury no. 2 and 3 were grievous and dangerous to life in ordinary course of nature individually. Cause of death:- Haemorrhage and Shock. Time since death:- 6-9 hrs from the time of PM (post-mortem).” He proved the post-mortem examination report, which was marked as Ext. 3. 12. On examination of the evidence of P.W.6 as well as on examination of the post-mortem examination report (Ext. 3), it is evident that the evidence of P.W.8 (informant) appears to be doubtful. In the fardbeyan, it was specific case of the informant that suddenly appellant carrying sharp cutting weapon arrived while father-in-law of the informant after urinating had turned and he (appellant) gave only one blow from the said weapon on the head of the deceased, in which, the head had come into two pieces, whereas, injury found on the person of the deceased depicts that the deceased besides injury on head, had received injury on right arm also. Accordingly, the oral evidence has not been substantiated or corroborated by the medical evidence. 13. P.W.9 Manoranjan Bharti is the investigating officer of the case and at the time of occurrence, he was posted in Tatarpur Police Station as officer incharge. He deposed that on 16-04-2010 at 6:30 AM, he recorded fardbeyan of Archana Devi and thereafter, on the basis of said fardbeyan, he drew up formal F.I.R., which was sent to the police station. At about 7.00 hrs in the morning, he prepared inquest report of the deceased and thereafter, the dead body was sent for postmortem examination to Bhagalpur Hospital. At about 7.00 hrs in the morning, he prepared inquest report of the deceased and thereafter, the dead body was sent for postmortem examination to Bhagalpur Hospital. On the same date, he recorded statement of Aarti Singh (P.W.7), Manish Kumar Singh (P.W.4) and Vishnu Kumar Singh (P.W.3) and thereafter, at about 1:00 PM, he inspected the place of occurrence and said that dead body was found near the dustbin and he also found profuse blood near the place of occurrence. He also stated that just adjacent to the place of occurrence on the eastern side, there was Mandroja Sabji Mandi (Vegetable Market) and there were number of houses besides ice-cream factory. In paragraph 2 of his evidence, he stated that on 18-04-2010, on the basis of secret information, from a toilet, he recovered sharp cutting weapon, which was like Hasua (sickle). The said weapon was having blood mark as well as on the said weapon, hairs were also found and thereafter, he seized the weapon by way of preparing seizure list. He claimed that the said seizure list was in his writing and signature and it was proved as Ext. 5 and weapon was also exhibited as Material Ext. 1. Subsequently, in view of his transfer, he handed over charge of investigation of the case to Sub-Inspector of Police Ram Chandra Yadav, who has been examined as P.W.5. He proved the fardbeyan, which was marked as Ext.6 and he also proved inquest report, which was marked as Ext.7. This witness stated that regarding the occurrence, he had received information while he was in Tatarpur Police Station, however; he has accepted that he had not recorded the name of the person, who had given information, in the case diary. In paragraph – 7 of his cross-examination, he accepted that the vegetable market, which is near the place of occurrence, opens in the morning and sale of vegetables continues up-to evening, however; he accepted that he did not examine any of witnesses from the Sabji Mandi (Vegetable Market). He also accepted that the seized weapon was never sent for examination. He further accepted that he had not recorded name of persons, who were residing near the place, from where weapon was seized. He also accepted that the seized weapon was never sent for examination. He further accepted that he had not recorded name of persons, who were residing near the place, from where weapon was seized. In paragraph – 8 of his cross-examination, he had denied the suggestion that till preparation of inquest report, which was prepared at 7:20 AM, none were knowing as to who had killed. He also denied that after preparation of inquest report, he recorded fardbeyan of person, who had not seen the occurrence. 14. P.W.5 Ram Chandra Yadav, regarding whom it was stated that first investigating officer Manoranjan Bharti (P.W.9) had handed over charge, in his evidence had stated that he had done nothing in the investigation, since he took charge of investigation on 09-06-2010 and on 07-07-2010, since he was transferred, he handed over charge of investigation to Sub-Inspector of Police Shrawan Kumar, who has been examined as P.W.10. P.W.10, in his evidence, has said that on 07-07-2010, he took the charge of investigation of the case and in the case, he submitted charge sheet against Manoj Rajak (appellant) under Sections 302/34 of the Indian Penal Code. In cross-examination, he accepted that during investigation, neither he had recorded statement of any of the witnesses nor he inspected the place of occurrence. 15. On examination of entire evidence, as discussed above, we are of the considered opinion that the evidence of sole eye-witness in the present case i.e. P.W.8 daughter-in-law of deceased appears to be not believable and it is difficult to come to a conclusion that she had actually seen the occurrence. Her evidence has been falsified by the evidence of her husband (P.W.3), who has categorically stated that at the time of occurrence, the informant was in her maikey i.e. in the town of Naugachhia. Moreover, her evidence, prima facie, is not believable, since it was contrary to the evidence of P.W.4 Manish Kumar Singh (son-in-law of deceased) and P.W.7 Aarti Singh (daughter of the deceased and wife of P.W.4). The evidence of P.W.8 may also not be believed, in view of the fact that in her fardbeyan and evidence, it was her case that the appellant had given sword blow on the head of the deceased, however; this evidence has been falsified by the medical evidence. The evidence of P.W.8 may also not be believed, in view of the fact that in her fardbeyan and evidence, it was her case that the appellant had given sword blow on the head of the deceased, however; this evidence has been falsified by the medical evidence. Though, the investigating officer had claimed to notice huge blood at the place of occurrence, surprisingly, without any reason, he had not collected either blood or blood Patna stained soil from the place of occurrence. Moreover, though it was claimed that the investigating officer on secret information had recovered the weapon used in the occurrence with blood-stain and having some hairs, to the reasons best known to the investigating officer, same was not sent to Forensic Science Laboratory for its proper examination as to whether the blood mark found on the weapon was actually in relation to blood of the deceased, human blood or animal blood. All those action of the investigating officer depicts about his in-competency. 16. Considering the facts and circumstances, we are of the considered opinion that prosecution had not at all proved the case against the appellant, rather it appears that in a case of ‘No Evidence’, the appellant was made accused, as if, he was the only assailant in the present case. Accordingly, there is no option, but to set aside the judgment of conviction and sentence of the appellant. 17. Accordingly, in view of the fact that prosecution has not proved its case against the appellant, the judgment of conviction and sentence dated 25-09-2012 and 26-09-2012 respectively passed in Sessions Trial No. 1220 of 2010 {arising out of Kotwali (Tatarpur) P.S. Case No. 230 of 2010} by Sri Nand Kishore Gupta, learned Additional District & Sessions Judge – 4, Bhagalpur is, hereby, set aside and appeal is allowed. 18. Since the appellant is in custody, he is directed to be released forthwith, if not wanted in any other case. Mohit Kumar Shah, J. I agree.