JUDGMENT : Shree Chandrashekhar, J. The sole appellant has suffered the judgment of conviction under section 302 of the Indian Penal Code and for the said offence he has been inflicted sentence of RI for life and fine of Rs. 5000/-. 2. The informant of this case is son of Sukhmani Barla, the deceased. On the basis of his fardbeyan which was recorded on 03.01.2009, at about 11:00 a.m., in the courtyard of his house, Kamdara P.S. Case No. 3 of 2009 was lodged against the appellant. 3. During the trial, the prosecution has examined eleven witnesses; the informant, namely, Gunja Barla is PW-3. 4. Almost all the prosecution witnesses – Daud Barla PW-1, Samir Barla PW-2, Jakrius Barla PW-4, Arjun Lohar PW-5, Munna Barla PW-6, Budhan Barla PW-8 and Burju Barla PW-9 – have been declared hostile at the instance of the prosecution. These witnesses have denied that they have seen the occurrence and that they have stated before the police that the appellant has committed murder of Sukhmani Barla by a tangi. PW-7 Jenga Barla, who is the husband of Sukhmani Barla and her daughter, namely, Budhan Barla PW-8 have also not supported the prosecution’s case. 5. On such evidence, the prosecution story that the Sukhmani Barla had gone to bari with her son and when she was returning she was assaulted by the appellant with tangi becomes suspicious. 6. The prosecution has projected the informant as an eye-witness. In the court, he has stated about the attack by the appellant on his mother with tangi and he has narrated a similar story about what had happened in the evening of 02.01.2009. However, in his cross-examination he has not supported the prosecution on the point who has attacked his mother. He has stated that his fardbeyan was not read over to him and by the time he was returning with his mother from vegetable bari it was already dark. He has further stated that by that time it was difficult to identify the passers-by and in paragraph No.6 of his cross-examination, he has admitted that he was far behind his mother when they were returning home. He has made the case of the prosecution miserable by saying that he does not know who has assaulted his mother. He has further stated that by that time it was difficult to identify the passers-by and in paragraph No.6 of his cross-examination, he has admitted that he was far behind his mother when they were returning home. He has made the case of the prosecution miserable by saying that he does not know who has assaulted his mother. This witness was not declared hostile by the prosecution and, therefore, his evidence would be binding on the prosecution [refer, “Javed Masood Vs. State of Rajasthan” reported in (2010) 3 SCC 538 ]. 7. PW-7 has stated that his wife had gone to bari alone whereas PW-8 has stated that his mother had gone to bari with Gunja, her brother. 8. According to the prosecution, the incident has happened in the evening of 02.01.2009 and fardbeyan of the informant was recorded at 11:00 a.m. on 03.01.2009 and the post-mortem was conducted at 10:30 a.m. on 04.01.2009, however, it does not mention details of the First Information Report. This discrepancy in the prosecution’s case has not been explained by the Investigating Officer. 9. The medical evidence has become relevant in this case for the reason that it does not support the prosecution on the time of death. 10. Dr. Yogender Mahto PW-11, who has conducted the post-mortem examination on 04.01.2009 at 10:30 a.m., has found the following injuries on Sukhmani Barla: “External: (i) Incised wound 6” x 2” x bone and brain matter deep. Brown substance coming out. (ii) Incised wound 3” x 1” x muscle deep below left ear. Internal: (iii) On opening of skull crominium broken, brain matter lacerated and filled with blood and blood clots. (iv) On opening of thorax- rubs normal, both lungs intact and pale. Heart intact chambers empty. (v) On opening of abdomen all the abdominal visceras intact and pale. Stomach contains gastric juice.” 11. According to the doctor, the injuries on Sukhmani Barla were caused by sharp-cutting weapon such as tangi and the time elapsed since death was 24 hrs. - 48 hrs. from the post-mortem. 12. On the basis of the aforesaid facts, particularly, the evidence of the so-called eye-witness, we are of the opinion that the prosecution has failed to establish the charge under section 302 of the Indian Penal Code against the appellant. 13. - 48 hrs. from the post-mortem. 12. On the basis of the aforesaid facts, particularly, the evidence of the so-called eye-witness, we are of the opinion that the prosecution has failed to establish the charge under section 302 of the Indian Penal Code against the appellant. 13. Therefore, the judgment of conviction under section 302 of the Indian Penal Code dated 29.06.2016 and the order of sentence of RI for life and fine of Rs.5000/- dated 04.07.2016 passed by the learned Additional Sessions Judge-III, Gumla in Sessions Trial Case No. 107 of 2009 against the appellant, namely, Pareya Barla are set-aside. 14. The above-named appellant is acquitted of the charge framed against him under section 302 of the Indian Penal Code. 15. The appellant, namely, Pareya Barla, who is in jail, shall be set free forthwith, if not required in connection to any other case. 16. In the result, Criminal Appeal (D.B.) No. 849 of 2016 is allowed. 17. Let lower court records be transmitted to the court concerned, forthwith. 18. Let a copy of the judgment be communicated to the trial court through FAX.