JUDGMENT : Shree Chandrashekhar, J. Five persons, namely, Dipak Mahato, Basudeb Mahato, Hare Ram Mahato, Jag Jivan Mahato and Prajapati Mahato were named by Bholanath Mahato as accused persons in his fardbeyan recorded on 08.05.2007 at about 9:10 a.m., on the basis of which Nimdih P.S. Case No. 09 of 2007 has been lodged under section 302/34 IPC for murder of Karmu Lal Mahato. 2. Two accused persons, namely, Basudeb Mahato and Prajapati Mahato were sent up for trial on the charge under section 302/34 IPC and the appellant, namely, Basudeb Mahato has been convicted and sentenced to undergo RI for life and fine of Rs. 5000/- under section 302 IPC. 3. The accused, namely, Prajapati Mahato has been acquitted of the charge under section 302/34 IPC framed against him on the ground that the prosecution has failed to establish his active participation in the commission of murder of Karmu Lal Mahato. 4. Mr. Indrajit Sinha, the learned counsel for the appellant submits that the manner of occurrence as disclosed by the prosecution, the evidence of the doctor who says that the injury found on Karmu Lal Mahato can be caused by assault from behind and P.W. 1 admitting that at the time of the occurrence Basudeb Mahato was standing north to Karmu Lal Mahato, would make the prosecution's case doubtful. The learned counsel has also submitted that the incriminating circumstances were not put to the appellant during his examination under section 313 Cr.P.C. 5. The informant of this case, namely, Bholanath Mahato is the son of the deceased. In his fardbeyan, the informant has stated that about six months prior to the date of occurrence a dispute between his father and the accused persons in respect of election of Gram Pradhan had arisen. On 08.05.2007, at about 7:00 a.m., his father after taking bath was returning home and when he reached near the house of Biranchi Mahato, he saw the accused persons coming from a street. They started assaulting his father with kicks and fists. In the meantime, Basudeb Mahato holding a Kulhari in his hand came there and gave a blow on the head of his father. Prajapati Mahato, the accused, also came there and hit his father who had fallen on the ground uttering “THIK HUA SALA BADA NETA BANTA THA”. They started assaulting his father with kicks and fists. In the meantime, Basudeb Mahato holding a Kulhari in his hand came there and gave a blow on the head of his father. Prajapati Mahato, the accused, also came there and hit his father who had fallen on the ground uttering “THIK HUA SALA BADA NETA BANTA THA”. The informant has stated that at that time he was going to catch the train for attending his duty at Bihar Sponge Iron where he was working. He has also stated that several passers-by, namely, Banmali Mahato, Dinbandhu Mahato and others came there, however, the accused persons fled away. His father had suffered serious head injury due to which the brain materials came out of his head and large amount of blood had spilled over the ground. 6. The prosecution witness, namely, Banmali Mahato has stated that the incident has taken place at about 7:30-8:00 a.m. in the morning, near the house of Biranchi Mahato. This witness has stated that he has no idea why the accused persons have killed Karmu Lal Mahato. During his cross-examination, he has admitted that he has difficulties with his sight, particularly in his long vision. In the court, he has admitted that he needs reading glasses. At the time of occurrence he was in his field. In paragraph no. 15 of his cross-examination, he says that on his raising hulla Dinbandhu Mahato and Bholanath Mahato came there and in paragraph no. 16 he admits that he did not inform them that Basudeb Mahato has assaulted Karmu Lal Mahato with Kulhari. He is cousin of the deceased. 7. The prosecution has projected Bholanath Mahato as an eye witness. In his fardbeyan, he has stated that while he was going to catch train for attending his duty at Bihar Sponge Iron he has seen the occurrence. In the court, he says that on his raising hulla Dinbandhu Mahato and Banmali Mahato came there. But, Banmali Mahato has stated in his cross-examination that on his raising hulla Bholanath Mahato and Dinbandhu Mahato came at the place of occurrence; Dinbandhu Mahato has been declared hostile. In his cross-examination, the informant has admitted that it takes him about one hour to go to his place of work and he generally takes train for reaching his work-place. But, Banmali Mahato has stated in his cross-examination that on his raising hulla Bholanath Mahato and Dinbandhu Mahato came at the place of occurrence; Dinbandhu Mahato has been declared hostile. In his cross-examination, the informant has admitted that it takes him about one hour to go to his place of work and he generally takes train for reaching his work-place. He has stated that he goes on a cycle to the Station to catch the train and it takes him about 15 minutes from his home to reach the railway station. According to him it was about 7:00 a.m. in the morning when his father was returning after taking bath when the incident has happened. P.W.1 has stated that the incident has occurred at about 7:30-8:00 a.m. In his cross-examination, the informant admits that he catches the train which leaves Nimdih at 7:28 a.m. 8. During the trial, the prosecution has examined 17 witnesses, however, P.W. 2, P.W. 5, P.W. 6, P.W. 7, P.W. 8, P.W. 9, P.W. 10, P.W. 11, P.W. 12, P.W. 14 and P.W. 15 have turned hostile. The prosecution witness, namely, Dinbandhu Mahato-P.W. 2, who was also projected as an eye witness by the prosecution, after he was declared hostile he was cross-examined by the prosecution with respect to his previous statement recorded under section 161 Cr.P.C. From his cross-examination by the prosecution, it appears that during the investigation he had stated before the police that he had seen the accused persons, namely, Basudeb Mahato, Deepak Mahato, Hare Ram Mahato and Jag Jivan Mahato coming out from the street and Basudeb Mahato assaulting Karmu Lal Mahato with Kulhari on his head. The other prosecution witnesses who have turned hostile had spoken about the other material facts regarding the incident when they were examined by the Investigating Officer during the investigation. 9. Admittedly, one of the witnesses who has claimed himself as an eye witness and the other witnesses including the one who has claimed that he had rushed to the place of occurrence to rescue Karmu Lal Mahato have turned hostile. PW-1 and PW-4 contradict themselves in so far as their claim regarding the person who was present at the place of occurrence and who has come later on; PW-1 claims that PW-4 has come later on whereas PW-4 says that it was PW-1 who has come there after he raised hulla. PW-1 and PW-4 contradict themselves in so far as their claim regarding the person who was present at the place of occurrence and who has come later on; PW-1 claims that PW-4 has come later on whereas PW-4 says that it was PW-1 who has come there after he raised hulla. The admission of the informant on the point of his leaving home for attending his duty, short vision of PW-1, non-production of the crime weapon, absence of forensic report and the doubt on the manner of occurrence as appearing from the discrepancy in the evidence of PW-1 and PW-13, the Doctor, would create serious doubt on complicity of the appellant in the crime. And, above all, out of the seventeen witnesses if eleven of them have turned hostile; all of them were material witnesses, it must be held that the foundation of the prosecution's case has been badly shaken. 10. On the basis of the testimony of PW-1 and PW-4, in the above fact, it is not possible to hold that the prosecution has proved the charge under section 302 IPC against the appellant. 11. Having examined the records of Sessions Trial No. 114 of 2007, we are of the opinion that the appellant is entitled for the benefit of doubt and, accordingly, the judgment of conviction of the appellant under section 302 IPC dated 06.10.2009 and the order of sentence of RI for life and fine of Rs.5000/-dated 09.10.2009 inflicted upon him by the learned Additional Sessions Judge, F.T.C.II, Seraikella in Sessions Trial No. 114 of 2007 for the said offence are set aside. 12. The appellant is acquitted of the charge framed against him. 13. Therefore, the appellant, namely, Basudeb Mahato shall be set free forthwith, if not required in connection to any other case. 14. In the result, Cr. Appeal (D.B.) No. 1005 of 2009 is allowed. 15. Let a copy of the judgment be transmitted to the court concerned through 'Fax'. 16. Let lower court records be transmitted to the court concerned, forthwith.