ORDER : Shree Chandrashekhar, J. The appellants, namely, Yadav Sundi and Tupra Sundi, both brothers, have faced the trial on the charge of murder of their brother Bhengra Sundi. They have been convicted and sentenced under section 302/34 IPC to undergo R.I for life and fine of Rs.5000/-. 2. The informant of this case is the wife of Bhengra Sundi, the deceased. On the basis of her fardbeyan recorded at her house on 14th July, 2008 at about 7:00 a.m. in the morning, Jagannathpur P.S. Case No. 57 of 2008 was registered on 14th July, 2008 under sections 448/323/324/302/120B/34 IPC against the appellants, namely, Tupra Sundi & Yadav Sundi and Bamia Sundi and one unknown. In her fardbeyan the informant has stated that last afternoon, at about 2:30 p.m., she was in her house and her husband was lying on a cot. The door of her house was just closed. At that time her younger brother-in-law, namely, Tupra Sundi forcibly entered her house and started dragging her husband outside the house. He assaulted her husband on his leg with a rod whereupon her husband fell on the ground. Thereafter, Tupra Sundi and Yadav Sundi along with one unknown person dragged her husband outside the house and the unknown person assaulted her husband on his back with a bhujali. When her husband fell on the ground Tupra Sundi hit him with a kudal near his eyes and when she tried to save her husband the accused persons threw her away. Then, she started crying and the villagers came there whereafter the accused persons fled away from the place of occurrence. The informant has stated that her husband was trying to construct a house for which her father-in-law Bamia Sundi and brother-in-law Tupra Sundi were not ready to give land. According to her for that reason there was a quarrel between them and thereafter her father-in-law had left the village. She has raised a suspicion that her father-in-law sent a person who along with Tupra Sundi and Yadav Sundi have killed her husband with bhujali, spade, iron rod and lathi. 3. After the investigation, a charge-sheet was submitted against the appellants. During the trial, the prosecution has examined seven witnesses; the informant, namely, Nirasho Sundi is P.W.1. The first Investigating Officer of this case namely, Sudhir Prasad Sahu is P.W.5; he is a formal witness. 3. After the investigation, a charge-sheet was submitted against the appellants. During the trial, the prosecution has examined seven witnesses; the informant, namely, Nirasho Sundi is P.W.1. The first Investigating Officer of this case namely, Sudhir Prasad Sahu is P.W.5; he is a formal witness. P.W.6-Ajay Kumar Panjiyar is the Investigating Officer who has deposed in the court regarding seizure of the crime weapon, blood-stained soil, inquest report and other objective findings at the place of occurrence. 4. Dr. Marshalan Lugun-PW-7, who has conducted the post-mortem examination, has found the following injuries on Bhengra Sundi: (A) (i) Cut injury on occipital area, 3” x 2”, scalp deep. (ii) 1” x ½”, scalp deep and cut injury on left upper eyelid of the extent of 2” x 1”, scalp deep. (B) On the chest of the deceased P.W.7 has found cut injuries of the extent of 5” x 2”, deep thoracic cavity with a sharp margin, 2” x 1”, deep into thoracic cavity. (C) He has found as many as six injuries on the back of Bhengra Sundi. These are: i. 3” x 2”, muscle deep ii. 3” x 1”, skin deep iii. 1” x ½”, skin deep iv. 2” x 4”, skin deep v. 2” x 1”, skin deep vi. 1½” x 1”, skin deep. 5. The doctor has found lungs of the deceased ruptured and according to him, the time elapsed since death was 6 to 36 hours. In his cross-exanimation, he has stated that time of the death may be 2:30 a.m.; post-mortem examination was conducted at 12:30p.m. on 14th July, 2008. 6. Admittedly, the informant is the only eye witness of the occurrence. Prosecution witnesses – P.W.2-Harish Chandra Bobonga, P.W.3-Sangram Hessa and P.W.4-Mutu Sundi are the hearsay witnesses. They have deposed in the court that Nirasho Sundi, the wife of the deceased, came to them and informed them about murder of her husband by Tupra Sundi and Yadav Sundi. P.W.2-Harish Chandra Bobonga has stated that he has gone to the house of the informant the next day and he has seen the dead body of Bhengra Sundi. P.W.2 says that from the place of occurrence the police has seized the blood-stained kulhari and hoe. In her cross-examination, the informant has however stated that the accused persons had left the place of occurrence with the arms and the police has not seized the crime weapon from their house. P.W.2 says that from the place of occurrence the police has seized the blood-stained kulhari and hoe. In her cross-examination, the informant has however stated that the accused persons had left the place of occurrence with the arms and the police has not seized the crime weapon from their house. Both P.W.2 and P.W.3 have deposed in the court that Nirasho Sundi has visited them at about 7:00p.m. in the evening and next day they had gone to her house. They have also stated that their house is about 1 k.m. from the house of Nirasho Sundi. 7. The informant has deposed in the court that she has seen the appellants assaulting her husband; the accused persons were three in number but she did not recognized the third one. In her cross-examination, she has admitted that she does not know Hindi and therefore she does not know what is written in her fardbeyan. She has said that she does not know the name of her uncle and cousin brother-in-law who are residing next to her house. She has also failed to say how many houses are around her house. She does not know whether the land which was the reason for dispute was purchased by her father-in-law or not. In her cross-examination, she says that in respect of the land dispute no complaint was given to the village Munda or Manki and no report to the police was made that her brothers-in-law were threatening. 8. The specific case set up by the prosecution against the appellants is that Tupra Sundi has assaulted his brother Bhengra Sundi with a rod on his leg however no injury on the leg of Bhengra Sundi was detected by the doctor who has conducted the postmortem examination. It is alleged that he has struck a hoe blow near the eyes of Bhengra Sundi. The doctor has found as many as three injuries on the occipital region of Bhengra Sundi; the informant has not alleged that Tupra Sundi has given repeated hoe blow on the head or near the eyes of her husband. It is alleged that he has struck a hoe blow near the eyes of Bhengra Sundi. The doctor has found as many as three injuries on the occipital region of Bhengra Sundi; the informant has not alleged that Tupra Sundi has given repeated hoe blow on the head or near the eyes of her husband. Of course, the cut injury on left upper eyelid of Bhengra Sundi corroborates the allegation made by the informant against Tupra Sundi of assaulting her husband but the allegation of assault by Yadav Sundi with lathi upon Bhengra Sundi is not corroborated by the medical evidence; no injury caused by hard and blunt substance has been found on the person of Bhengra Sundi. 9. In the aforesaid state of evidences, one thing which first strikes the mind of the court is that testimony of the informant is quite cryptic. During her cross-examination, she has failed to disclose the necessary details about the occurrence. Not only she has failed to name her neighbours she has also failed to say how many houses are adjoining her house. She admits that she does not know Hindi, however, neither from her fardbeyan nor from her testimony in the court we find that her statement was recorded with the help of an interpreter; her fardbeyan and deposition in the court both are written in Hindi. In “State of Madhya Pradesh Vs. Ramesh and another” reported in (2011) 4 SCC 786 , the Hon’ble Supreme Court has held that testimony of a witness who does not understand right or wrong and what is oath must be excluded from consideration. 10. The other prosecution witnesses have turned hostile and from their evidences we find that there is no explanation by the prosecution why the first information report was not lodged promptly, though the incident has happened during the day time at about 2:45-3:00p.m. Who has informed the police about the incident is not known; the Investigating Officer has simply said that on receiving an information he had gone to the place of occurrence. The fardbeyan of the informant was recorded early in the morning, at about 7:00 a.m. The allegation of assault by the appellants is not corroborated by the medical evidence except injury on the eye-lid of Bhengra Sundi and, above all, the third accused who has given the fatal blows with bhujali on Bhengra Sundi has not been found. 11. The fardbeyan of the informant was recorded early in the morning, at about 7:00 a.m. The allegation of assault by the appellants is not corroborated by the medical evidence except injury on the eye-lid of Bhengra Sundi and, above all, the third accused who has given the fatal blows with bhujali on Bhengra Sundi has not been found. 11. In the aforesaid facts, we are inclined to hold that the prosecution has failed to prove the charge under section 302/34 IPC and therefore conviction of the appellants under section 302/34 IPC is not proper and sustainable. 12. Accordingly, the judgment of conviction dated 08.02.2016 and order of sentence dated 10.02.2016 passed by the learned 1st Additional Sessions Judge, West Singhbhum at Chaibasa in S.T. No. 25 of 2009 against the appellants, namely, Yadav Sundi and Tupra Sundi under section 302/34 IPC are set aside. 13. The appellant, namely, Tupra Sundi who is at present in custody, shall be set free forthwith, if not required in connection to any other case. 14. The appellant, namely, Yadav Sundi is on bail and, accordingly, he shall be discharged of liability of the bail-bonds furnished by him. 15. In the result, Cr. Appeal (D.B.) No. 204 of 2016 is allowed. 16. Let lower court records be transmitted to the court concerned, forthwith. 17. Let a copy of the judgment be communicated to the trial court through FAX.