JUDGMENT : SHREE CHANDRASHEKHAR, J. 1. Both the appellants have challenged the judgment of conviction under section 302/34 IPC and section 201/34 IPC dated 17.03.2007 and the order of sentence of R.I. for life under section 302/34 IPC and R.I. for 7 years for the offence under section 201/34 IPC dated 23.03.2007 in Sessions Trial No. 387 of 2004 passed by the Additional Judicial Commissioner, Fast Track Court, Khunti. 2. On 31.08.2003, brother of the informant who had gone to Karra market to accompany his father namely-Piyus Herenj home has gone missing. The informant, namely, Benasius Herenj has given an information on 04.09.2003 to the police stating that on 31.08.2003 he along with his younger brother-Boyash Herenj and his father had gone to the market to arrange their shops; the informant is running a pork shop and his younger brother-Boyash Herenj is managing a shop of small fries. Both the brothers reached home in the evening, however, Boyash Herenj came back to the market to accompany his father home. Their father came home but Boyash Herenj did not return back. The informant has stated that they started search for his younger brother and on 04.09.2003 they found foul smell coming out from a well near Karra Market from where decomposed dead body of his brother was recovered. 3. On the basis of the fardbeyan of Benasius Herenj, Karra P.S. Case No. 49 of 2003 was registered against un-known persons. 4. After the investigation a charge sheet was submitted against the accused-appellants and S.T. No. 387 of 2004 commenced against these appellants on the charge of committing murder of Boyash Herenj and for concealing his dead-body. 5. During the trial, the prosecution has examined altogether 11 witnesses; the informant-Benasius Herenj is P.W. 5 and his younger brother Egnesh Herenj has been examined as P.W. 3. The doctor who has conducted the post-mortem examination is P.W. 11 and the Investigating Officer has been examined as P.W. 10. Three prosecution witnesses; P.W. 1, P.W. 2 and P.W. 7, have not supported the prosecution case. 6. The learned Additional Judicial Commissioner, Fast Track Court, Khunti has held that Silbestar Horo-P.W. 4 is an eye-witness and the other prosecution witnesses have clearly stated about the quarrel between the deceased and the accused persons in the evening of 31.08.2003. Three prosecution witnesses; P.W. 1, P.W. 2 and P.W. 7, have not supported the prosecution case. 6. The learned Additional Judicial Commissioner, Fast Track Court, Khunti has held that Silbestar Horo-P.W. 4 is an eye-witness and the other prosecution witnesses have clearly stated about the quarrel between the deceased and the accused persons in the evening of 31.08.2003. On the basis of the evidences laid before him, the learned Additional Judicial Commissioner has held that the prosecution has established the charge under section 302/34 IPC and section 201/34 IPC against both the accused persons and, accordingly, convicted them for the aforesaid offences. 7. Mr. Jitendra Tripathi, learned Amicus appears for the appellant, namely, William Bhengra ( Munda) in Cr. Appeal (DB) No. 378 of 2013 and Mr. Anup Kumar Agrawal, learned Amicus appears for the appellant, namely, Sammuel Bhengra @ Birsa Munda in Cr. Appeal (DB) No. 463 of 2010. 8. Mr. Pankaj Kumar, learned APP has appeared for the State in both the cases. 9. The case of the prosecution is based on the evidence of P.W. 4, who has been projected as eye witness and, the brother, father and mother of the deceased. The witnesses, namely, Thomas Tiru-P.W. 1 and Sabina Topno-P.W. 2 have not supported the prosecution case and P.W. 7 who is the seizure-list witness has stated that the police has got his signature on the plain papers. In fact, the other seizure-list witness-P.W. 8 has also not supported the prosecution case. And, the learned Additional Judicial Commissioner has recorded a finding that confessional statement of the accused, namely, William Bhengra (Munda) has not been proved by the Investigating Officer and, therefore, seizure of the crime weapon (DANDA) is not proved by the prosecution. 10. Besides the evidence of Silbestar Horo, who has claimed himself as eye witness to the actual occurrence, all that the prosecution has proved in this case is that there was a quarrel in the evening on 31.08.2003 at Karra Market between the deceased and the appellant Sammuel Bhengra ( Munda) and 2 -3 un-known persons. No missing report was lodged by the family members of Boyash Herenj for the next four days and it was only after foul smell from a well at Karra Market was detected, the police was informed and then the informant gives his statement to the police. No missing report was lodged by the family members of Boyash Herenj for the next four days and it was only after foul smell from a well at Karra Market was detected, the police was informed and then the informant gives his statement to the police. This part of the prosecution story, that is, the conduct of the informant, is not free from doubt. 11. The doctor, who has conducted the post-mortem on the dead-body of Boyash Herenj, has found the following injuries: (i) Soft tissue of fore head, neck upper part frontal chest are eaten away by animals/ maggots and are post mordem in nature. (ii) There was fracture of right fronto parieto, temporal bone and fractured fragments were missing. There (instead of with) infiltration of blood clot in the Bony tissue at the site of fracture. There was fracture of mandible bone. (iii) Brain matter had liquified and were mixed with blood and blood clot and were drawing out. 12. In the opinion of the doctor, death was caused due to head injury and he has also stated that death was caused about 5-10 days before he has conducted post-mortem examination; the post-mortem examination was conducted on 05.09.2003 at about 12.00 noon. Thus, according to the medical evidence the deceased died in the after-noon of 01.09.2009. 13. The witness Silbestar Horo now comes in the picture. In his evidence in the court, he says he was called in the police station and the Investigating Officer says that he gave his statement to the police on 11.09.2003. P.W. 4 has tried to explain the delay in making his statement by saying that the accused persons had threatened him, however, when he was called in the police station he had gained some strength. It is true that different persons react differently in the same situation and the explanation given by P.W. 4 may be a plausible explanation for not informing the police about assault on Boyash Herenj, but then, the Investigating Officer has denied that P.W. 4 was called by the police. P.W. 4 claims himself a friend of the deceased still he has not even informed the family members of his friend. His claim that he has seen the accused persons assaulting Boyash Herenj is falsified by the medical evidence. P.W. 4 claims himself a friend of the deceased still he has not even informed the family members of his friend. His claim that he has seen the accused persons assaulting Boyash Herenj is falsified by the medical evidence. P.W. 4 admits that there was no enmity between him and the accused William and, thus, the prosecution has not proved the motive behind the crime. 14. In the above state of evidence, we are of the opinion that there is considerable doubt on the manner of occurrence, the time of occurrence and complicity of these appellants in causing death of Boyash Herenj. 15. By now, it is well-accepted that suspicion howsoever strong cannot be the basis for recording conviction of a person, accused of committing murder. In Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 , the Supreme Court has observed thus: “153.….......It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade vs. State of Maharashtra where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] “Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.…..........” 16. Having examined the records of S.T. No. 387 of 2004, in the above facts, we hold that the prosecution has failed to prove the charge under section 302/34 IPC and section 201/34 IPC against both the appellants and, accordingly, their conviction and sentence for the aforesaid offences are set aside. 17. The judgment of conviction under section 302/34 and section 201/34 IPC dated 17.3.2007 and the order of sentence of R.I. for life under section 302/34 IPC and R.I. for 7 years for the offence under section 201/34 IPC dated 23.3.2007 passed in Sessions Trial No. 387 of 2004 are set-aside. Both the appellants are acquitted of the charges framed against them. 18. Accordingly, Cr. Appeal (D.B.) No. 378 of 2013 and Cr. Appeal (D.B.) No. 463 of 2010 are allowed. 19. The appellant-Sammuel Bhengra @ Birsa Munda in Cr. Both the appellants are acquitted of the charges framed against them. 18. Accordingly, Cr. Appeal (D.B.) No. 378 of 2013 and Cr. Appeal (D.B.) No. 463 of 2010 are allowed. 19. The appellant-Sammuel Bhengra @ Birsa Munda in Cr. Appeal (DB) No. 463 of 2010 is discharged of the bail-bonds furnished by him. 20. The appellant-William Bhengra (Munda) in Cr.Appeal (DB) No. 378 of 2013 shall be released forthwith, if not wanted in connection to any other case. 21. Assistance rendered by Mr. Jitendra Tripathi, Amicus in Cr. Appeal (DB) No. 378 of 2013 and Mr. Anup Kumar Agrawal, Amicus in Cr. Appeal (DB) No. 463 of 2010 who have meticulously prepared short synopsis, list of dates and note on arguments and Sri. Pankaj Kumar, learned APP are appreciated. The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of bills. The learned Amicus shall be paid Rs. 5500/- for each effective date of hearing, however, subject to the maximum amount fixed. 22. Let the lower court records be transmitted to the court concerned, forthwith. Appeals allowed.