JUDGMENT : Sole appellant namely, Bipin Hembram has preferred this jail appeal, who has faced the trial in Sessions Trial No. 53 of 2007 before the court of learned Brajesh Kumar Gautam, Additional District and Sessions Judge, Fast Track Court No. II, Ghatshila, East Singhbhum, who under judgment dated 07.01.2008 held the appellant guilty under Section 302 I.P.C. and under order dated 11.01.2018 sentenced him to undergo life imprisonment. 2. The jail appeal was admitted on 28.04.2008 and notices were issued and lower court records was called for and Mr. Navin Kumar Jaiswal, Advocate was appointed as Amicus Curiae to assist this Court and thereafter, the matter was heard on 24.10.2018, 05.12.2018 and thereafter today. 3. Mr. Azimuddin, learned A.P.P. appeared for the State and made submissions on behalf of the State. 4. The case of prosecution as unfolded in the fardbeyan of P.W.-3, Chowkidar Shiv Ranjan Nayak recorded by ASI Ravindra Singh (P.W.-13) of Barsol P.S. on 20.10.207 at 10:30 a.m. at Village – Jamsola P.S. Barsol alleging therein is that on 20.10.2006 in the morning at 8:30 a.m. one Kanhai Hembram (P.W.-2) came to the house of informant (P.W.-3) and disclosed that in Village Jamsola, one Bipin Hembram has murdered his wife Pan Muni and is trying to dispose of the body and on this information, informant and other villagers proceeded to the house of Bipin Hembram and the informant noticed that the dead body of Pan Muni was lying in cot inside the house and informant also noticed injuries on the temple and chin of the deceased. Informant made inquiry from Bipin Hembram (appellant) about the cause of death, who made extra-judicial confession that in the intervening night, he assaulted Pan Muni and consequently, she died. He also disclosed that there was some altercation between them and he had beaten his wife with a stick. Appellant also disclosed that in the intervening night at 10:00 p.m. before altercation, in village – Nandaria, there was some altercation between them regarding taking liquor. In the fardbeyan, it has also been mentioned that appellant, prior to committing the instant occurrence, has murdered one person of Village Guhal Bhata, West Bengal and he was sentenced for 14 years. On the basis of these allegations, Baharagora (Barsole) P.S. Case No. 102 of 2006 was instituted. 5. In the fardbeyan, it has also been mentioned that appellant, prior to committing the instant occurrence, has murdered one person of Village Guhal Bhata, West Bengal and he was sentenced for 14 years. On the basis of these allegations, Baharagora (Barsole) P.S. Case No. 102 of 2006 was instituted. 5. It further appears that after completion of investigation, Final Form was submitted on 05.11.2006 and the case was committed to the court of Sessions vide order dated 12.03.2007 and the case was registered as Sessions Case No. 53 of 2007 and was transferred to the court of learned Brajesh Kumar Gautam, ADJ-II, Ghatsila and charges in this case were framed on 03.04.2007 under Section 302 of the I.P.C. against the appellant, which were read over and explained to him and he pleaded not guilty and claimed to be tried. 6. The prosecution altogether examined 13 witnesses to prove the charges against the appellant: P.W.-1, Sanatan Hembram, who has been declared hostile. P.W.-2, Kanhai Hembram. P.W.-3, Chowkidar Shibu Ranjan Nayak (Informant). P.W.-4, Subodh Murmu. P.W.-5, Somai Murmu. P.W.-6, Tulu Hembram. P.W.-7, Bagai Hembram. P.W.-8, Sukumar Das has been tendered by the prosecution. P.W.-9, Basudev Das has been tendered by the prosecution. P.W.-10, Dr. J. Srinivas Rao, the doctor who has conducted the post- mortem of the dead body. P.W.-11, Nirmal Murmu. P.W.-12, Srinath Murmu. P.W.-13, Rabindra Singh, I.O. of this case. Record reveals that Exhibit- 1 & 1/1 are signature of informant on the fardbeyan and the fardbeyan respectively, Exhibit -2 is the Post-mortem report, Exhibit -3, 3/1 & 3/2 are signatures of the witnesses over the Inquest Report and Inquest Report respectively. Exhibit -4 is the formal F.I.R. 7. Learned counsel for the appellant submitted that the entire case is based on circumstantial evidence and extra-judicial confession made by the appellant before the prosecution witnesses namely P.W.-3 (informant) and P.W.-2. 8. Learned APP submitted that apart from extra-judicial confession made by the appellant, the evidences of P.W.-10, the doctor and P.W.-13 the I.O. have corroborated the prosecution case regarding cause of death and place of occurrence. 9. On close scrutiny of the evidences of Prosecution Witnesses, it appears that: P.W.-1 namely, Sanatan Hembram, who is the father of the appellant, has alleged that the occurrence is of dak sakranti. 9. On close scrutiny of the evidences of Prosecution Witnesses, it appears that: P.W.-1 namely, Sanatan Hembram, who is the father of the appellant, has alleged that the occurrence is of dak sakranti. On the next day, he received information that Pan Muni has died and on seeing the dead body of the deceased, he admitted that she has received various injuries and in cross-examination by the APP with reference to the statement made under Section 161 of C.P.C. in para-4, he has stated that before him appellant has confessed and disclosed that the deceased had taken hariya and thereafter appellant had assaulted the deceased. In cross-examination by the defence, he has stated that he could not say the date on which the occurrence had taken place. He has been declared hostile by the prosecution and he is not a reliable witness. P.W.-3, Chowkidar of the Barsole P.S. Beet No. 5/11, in his examination-in-chief stated that the occurrence is of Kali Puja and one Kanhai (P.W.-2) of Village Jamsola informed him that Pan Muni was murdered and he went to the house of the appellant along with villagers and noticed a dead body and also noticed the injuries. Further in examination-in-chief, he has stated that on query to the appellant as to how his wife died, the appellant replied that both had taken hariya and his wife had fallen down and had received injuries. Further on pointed query, whether appellant has assaulted his wife, the appellant confessed that he had assaulted the deceased by stick. Learned counsel for the appellant assailing part of the evidence of P.W.-3 submitted that assuming the evidence which has come on record to be true, which is not formal version, the version of the P.W.-3 with regard to the appellant cannot be treated as extra-judicial confession made by appellant, rather it appears that he had received information from P.W.-2. P.W.-3 further stated in his examination-in-chief that after some time, P.W.-13 ASI came and recorded his fardbeyan and he put his signature which is marked as Exhibit-1. He has also stated that prior to this occurrence, appellant had murdered one person in Bengal and had remained in judicial custody. P.W.-3 further stated in his examination-in-chief that after some time, P.W.-13 ASI came and recorded his fardbeyan and he put his signature which is marked as Exhibit-1. He has also stated that prior to this occurrence, appellant had murdered one person in Bengal and had remained in judicial custody. Learned counsel for the appellant submitted that neither any evidence has come nor any investigation has been made by the I.O. in this regard suggesting that the appellant was convicted and had remained in custody, so P.W.-3 is not a reliable witness. P.W.-3 in cross-examination has stated that Rabindra Singh (P.W.-13) had written the fardbeyan in police station and he had stated that what was written in the fardbeyan was not read over by him and P.W.-13 had also not read over and explained the contents of the fardbeyan to P.W.-3 and he had only asked him to put his signature. He also stated in para-7 that he had reached the house of the appellant at 7:30 a.m. and at that time, appellant, his nephew and his deceased wife was there. He has also stated in para-11 that in the eastern side of the house of appellant, there is agricultural field, in the western side, there are trees and buses and in the northern side, there is vacant land and in the southern side, there is vacant land. He has also stated that he cannot say the number of injuries present on the body of the deceased. He has stated in his cross-examination at para-13 that police had not recorded his subsequent statement during course of investigation. In Para-14 of the cross-examination, he has stated that on the basis of statement given by other persons that appellant had gone to jail, he also along with others stated such statement. Further, in cross-examination, he could not say the cause of death of deceased. From conjoint reading of the evidence of P.W.-3 read with P.W.-2, who according P.W.-3 first informed him about the occurrence, it transpires that P.W.-2 Kanhai Hembrom stated in his cross-examination that the occurrence is of Dak Sakranti (Aswin). In the morning, he learnt through appellant that his wife was dead and he has to go to Burning Ghat. P.W.-2 went and noticed that the deceased had received injuries on the head and appellant disclosed that in the previous night, there was some quarrel and deceased was assaulted. In the morning, he learnt through appellant that his wife was dead and he has to go to Burning Ghat. P.W.-2 went and noticed that the deceased had received injuries on the head and appellant disclosed that in the previous night, there was some quarrel and deceased was assaulted. P.W.-2 informed this fact to Chowkidar (P.W.-3). In cross-examination, he said that his house is situated ½ km away from the house of appellant and many people had gone to the house of appellant on the date of occurrence. Subodh Murmu, Soma Murmu, Nirmal Murmu, Siwalay Murmu and others had also come and P.W.-2 had gone to the house of appellant in the morning at 7-8 a.m. and Chowkidar had come at 8:30 am. He denied the suggestion that appellant had not disclosed anything to him. P.W.-4 Subodh Murmu is a hearsay witness. He has deposed that appellant had informed that his wife has died and he had to go to Burning Ghat. P.W.-4 has stated that when he made query to appellant, he disclosed that some quarrel took place and the deceased received injuries and died. In cross-examination, he has stated that blood stained body was kept in blanket. He has stated that police had come at 2-2:30 p.m. and they had taken the clothes, but he cannot say whether seizure list was prepared or not and in para-8, he has deposed that he cannot say how the deceased had received injuries and on suggestion given by defence, he denied that the appellant had not disclosed regarding committing the offence. P.W.-5 Somai Murmu is also a hearsay witness and he deposed that appellant had disclosed that his wife has died. Thereafter, he had gone there and had seen the dead body of the deceased lying on cot and the deceased had sustained head injuries. Information was given to the Chowkidar and thereafter after some time Police came. In cross-examination, he has stated that he had seen black mark over the dead body and he has also stated at para-10 that police had not recorded his statement. P.W.-6 Tulu Hembram is the younger brother of the appellant. He has deposed that the appellant had disclosed that the deceased has died and he has to go to Burning Ghat. In cross-examination, he has stated that he had seen black mark over the dead body and he has also stated at para-10 that police had not recorded his statement. P.W.-6 Tulu Hembram is the younger brother of the appellant. He has deposed that the appellant had disclosed that the deceased has died and he has to go to Burning Ghat. Thereafter, he went to the house and noticed injury mark on the dead body and in the meanwhile Chowkidar was informed and thereafter police came. In cross-examination in para-6 he has said that he cannot say how the deceased had died. P.W.-7 Bagai Hembram is also a hearsay witness and the appellant is his elder brother. He has deposed that the appellant had disclosed that his wife has died. He had noticed injuries on the dead body. In meanwhile, Chowkidar had come. He has stated in para-12 that he has no contact with the appellant and the appellant had not disclosed about any quarrel. P.W.-8 Sukumar Das has been tendered by the prosecution. P.W.-10 Dr. J. Srinivas Roa in his examination-in-chief recorded on 21.10.2016 stated that on that date, he had conducted post-mortem examination of the dead body of Pan Muni Hembram, aged 45 years, wife of Bipin Hembram, District – East Singhbhum and the dead body was identified by Haw. Bishnu Prasad Sharma and on examination, he had found the following injuries: External:- (i) Laceration 4cm x 1cm x bone deep over left side of the forehead just above left eyebrow. (ii) Abrasions ½ cm x ½ cm and ½ cm x ½ cm over forehead. (iii) Contusion 6 cm x 5 cm over left side face. (iv) Abrasion 5 cm x 4 cm over right side face. (v) Contusion 5 cm x 4 cm right side forehead. (vi) Contusion 5 cm x 5 cm over top of right shoulder. (vii) Contusion 10 cm x 5 cm back of right side chest. (viii) Contusion 10 cm x 6 cm over lower back. (ix) Contusion 5 cm x 4 cm over left arm. Internal:- (i) Diffused contusion of whole scalp. (ii) Contusion frontal left parietal and occipital lobe of brain. P.W.-10, doctor has opined that all the injuries were ante-mortem in nature caused by hard and blunt object. The death was because of head injury. Post-mortem report prepared by doctor has been proved and exhibited as Exhibit-2. Internal:- (i) Diffused contusion of whole scalp. (ii) Contusion frontal left parietal and occipital lobe of brain. P.W.-10, doctor has opined that all the injuries were ante-mortem in nature caused by hard and blunt object. The death was because of head injury. Post-mortem report prepared by doctor has been proved and exhibited as Exhibit-2. In the cross-examination, the doctor has stated that internal injury no. 1 is possible by fall from height on hard surface. According to the doctor further external injury no. 1 is possible on fall over bush or tree like object. P.W.-11 Nirmal Murmu is also a hearsay witness. He has deposed that in the morning, the appellant had disclosed that his wife has died and he has to go to Burning Ghat. P.W.-11 went to the house of the appellant and noticed dead body and injury received by the deceased. He informed the Chowkidar Shibu Ranjan Nayak (P.W.-3), who informed police and police came and inquest report was prepared in his presence and he put his signature, which has been marked as Exhibit-3. In cross-examination, he has stated that his house is situated ½ km away from the house of appellant. He also disclosed that appellant has a child of two years. He has also disclosed in para-6 that police had not taken his statement. P.W.-11 is a witness of inquest report. P.W.-12 Srinath Mumru has deposed that the occurrence is of Dak Sakranti in the month of Ashwin. He was called by the appellant, who disclosed that he has to go to Burning Ghat as his wife has died. P.W.-12 also went to the house of appellant and noticed that the deceased has received injuries. Chowkidar was informed, police came and prepared inquest report and P.W. 12 signed on the inquest report which is marked as Exhibit-3/1. In cross-examination, he has stated he had gone to work at 7 am and had returned at 6 pm in the evening and in para-6 he has stated that he had not informed the Chowkidar about the occurrence. He has also stated that his house is ½ km away from the house of appellant. He has stated that he cannot say the date when the occurrence had taken place and police had not taken his statement. He is also a witness of inquest report. He has also stated that his house is ½ km away from the house of appellant. He has stated that he cannot say the date when the occurrence had taken place and police had not taken his statement. He is also a witness of inquest report. P.W.-13 Rabindra Singh, ASI, has deposed in his examination-in-chief that he is the I.O. of this case and on 20.06.2018, he was posted as ASI Barsole P.S. and on that date, Chowkidar 5/11 Shibu Ranjan Nayak had come and had disclosed about the occurrence and he gone to the place of occurrence and had recorded the fardbeyan of P.W.-3 in his writing and P.W.-13 proved the fardbeyan as Exhibit-1/1. On the basis of fardbeyan, he has drawn a formal F.I.R. in which signature of ASI Ranji Singh is present. He proved the formal F.I.R. as Exhbit-4 and after lodging formal F.I.R., he recorded the subsequent statement P.W.-3 and prepared inquest report. The inquest report is marked as Exhibit-3/2. He further deposed that he had inspected the place of occurrence situated ½ km away from Jamsole Village in south of REO road in western direction. In the house, one room opens towards eastern side and the other room towards the northern side. In Para-8, he has stated that he had recorded the statement of Sanatan Hembram (P.W.-1) who had said that the appellant had disclosed him that the deceased had taken hariya and liquor and was abusing and the appellant had assaulted the deceased, due to which the deceased had died. In cross-examination P.W.13 has stated that he also visited place of occurrence. This witness has further deposed that Sanatan Hembram is the father of the appellant. He has stated that he had not recorded the fardbeyan of Sanatan Hembram and he had not recovered any incriminating articles from the place of occurrence. P.W.-13 denied the suggestion that his investigation is defective. 10. Learned counsel for the appellant relying on the evidences of P.W.-10 (Doctor) and P.W.-13 (I.O.) has further submitted that although, the prosecution is trying to make out a case that extra-judicial confession has been made by the appellant before the P.W.-1, but this witness has been declared hostile by the prosecution. 10. Learned counsel for the appellant relying on the evidences of P.W.-10 (Doctor) and P.W.-13 (I.O.) has further submitted that although, the prosecution is trying to make out a case that extra-judicial confession has been made by the appellant before the P.W.-1, but this witness has been declared hostile by the prosecution. Further, the I.O. has not seized the blood stained cloths from the place of occurrence and nature of assault and the manner of occurrence has also not been proved by the prosecution. Learned counsel for the appellant further submitted that P.W.-3 in his fardbeyan has stated that the prosecution has claimed that the appellant has remained in custody for 14 years in a criminal case in West Bengal, but no investigation has been made on this point. Further statement of appellant under Section 313 Cr.P.C. has not been considered by the trial court in correct prospective. So, the prosecution has failed to prove the charges against the appellant beyond all reasonable doubts. The learned counsel for the appellant further submitted that appellant is in custody since 20.10.2006 i.e. for more than 12 years and so the appellant deserves to be acquitted from all charges. 11. Mr. Azimuddin, learned APP on the other hand submitted that evidence of P.W.-3 Chowkidar read with his fardbeyan read with evidence of P.W.-1, P.W.-13 (I.O.), P.W.-10 (Doctor), it is apparent that the appellant has made extra-judicial confession before P.W.-1 and evidence of P.W.-1 proves the manner of occurrence and the I.O. has proved the place of occurrence and P.W.-10 has proved the cause of death. 12. After hearing the parties as discussed in detail above, it transpires that in this case, P.W.-1 Sanatan Hembram, father of the appellant has been declared hostile and has not supported the fact that the appellant has made extra-judicial confession and P.W.-3 has also not supported the fact of extra-judicial confession made by the appellant, nor the I.O. has seized the blood stained cloths of deceased and the prosecution has failed to prove the criminal antecedent of the appellant that he has remained in custody and no incriminating evidence with regard to his antecedent was put before the appellant by the Presiding Officer while recording his statements under Section 313 Cr.P.C. So taking all these facts, I am of the considered view that the prosecution has failed to prove the charges against the appellant beyond all reasonable doubts. 13. In view of the discussions made above, this appeal is allowed. The impugned judgment of conviction and order of sentence passed by the Trial Court against the appellant, is hereby set aside. The appellant is acquitted from the charges levelled against him. The appellant, Bipin Hembram, who is in jail custody, is directed to be released forthwith, if not wanted in connection with any other case. 14. Secretary, Jharkhand Legal Services Committee, Ranchi is directed to quantify the fees of Mr. Navin Kumar Jaiswal, Amicus Curiae at the earliest. 15. Let a copy of order be sent to the court below and also to the Secretary, Jharkhand Legal Service Committee, Ranchi.