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2019 DIGILAW 230 (JHR)

Parmeshwar Murmu v. State of Jharkhand

2019-01-23

APARESH KUMAR SINGH

body2019
JUDGMENT : KAILASH PRASAD DEO, J. 1. Heard, learned Senior Counsel Mr. B. M. Tripathi assisted by Mr. P.A.S. Pati for the appellant nos. 1 to 9 and learned Senior Counsel Mr. P.P.N.Roy assisted by Mr. Ashutosh Mishra for the appellant no. 10 and learned counsel for the State, Mr. Sanjay Kumar Srivastava, Additional Public Prosecutor. 2. The instant criminal appeal has been preferred against the judgment of conviction dated 26.03.2010 and order of sentence dated 30.03.2010 passed by Additional District and Sessions Judge, Ghatshila in Sessions Trial No. 318 of 1991, whereby altogether 11 accused persons have been held guilty and convicted for the offence committed and punishable under Sections 364/302/201 & 120(B) of the Indian Penal Code and awarded rigorous imprisonment for life for each of the offence committed and punishable under Sections 364/302/120B I.P.C and rigorous imprisonment for 3 years for the offence committed and punishable under Section 201 I.P.C. All the sentences are directed to run concurrently. 3. During pendency of appeal, one of the convicts, Rameshwar Murmu has died and his criminal appeal has been abated vide order dated 18th July, 2011 passed in I.A. No. 301 of 2011 and as such 10 accused/convicts are remained as appellants in the present criminal appeal. 4. Prosecution case is based upon the Fardbeyan of informant, Subodh Kumar Murmu (P.W.1) recorded by Inspector-cum-Officer-In-charge, Baharagora (Barsole) Police Station, Sri V.D.Ram on 2.2.1990 at 2 P.M. The informant has stated that co-villager, Nabi Kumar Murmu has sustained some injury because during a cock fight in the year 1988 by the knife tied with cock and subsequently Nabi Kumar Murmu died and thereafter the co-villagers got information from Wakil jan @ Anil Kisku (appellant no. 10) that mother of the informant is a “witch” and because of her black magic upon Nabi Kumar Murmu, he has died. Informant has further alleged that on 29.1.90 at 2 P.M., Co-villagers, Rameshwar Murmu, Bhotla Murmu, his nephew Gaizen Murmu, Raisen Murmu, Parmeshwar Murmu, Narayan Murmu and Gopal Murmu have entered into the house of the informant and abducted the sister of the informant, Kapara Murmu, who was separating the rice from the straw by thrashing the same. The accused persons have also mixed poison in the food and water kept in the house. It is stated that the informant and other members of the family started searching his missing sister. The accused persons have also mixed poison in the food and water kept in the house. It is stated that the informant and other members of the family started searching his missing sister. Informant has stated that he was engaged in searching his sister as the villagers of the entire village have turned against them, as they have not complied the decision of the Panchayati by paying Rs. 8,500/-which was awarded against mother of the informant for being 'witch' as directed in the Panchayati. Informant has further stated that during search of his sister, he met head of the village, who has disclosed that his sister will return after 2-3 years. Informant has further alleged that during search he got information from the children of the village, that some of the accused persons are coming from Mangrasol Jungle wearing torn cloths and have taken liquor. Informant has further alleged that during search, the dead body of his sister was found in naked condition in Mangrasol Jungle, whose left hand was chopped off and there was injury on the right temple area. Both eyes of the deceased have been extracted. 5. On the basis of the Fardbeyan of the informant, police has registered Baharagora (Barsole) P. S Case No. 10/90 dated 2.2.1990 under Sections 364/302/201/120(B) of the Indian Penal Code against 13 named accused persons. After completion of the investigation, police has submitted final form vide charge-sheet no. 20/90 dated 22.5.90 under Sections 364/302/201/120(B) of the Indian Penal Code against altogether six accused persons and supplementary charge-sheet has been filed vide no. 40/90 dated 7.7.90 also under Sections 364/302/201/120(B) of the Indian Penal Code against Rameshwar Murmu, Bhim Murmu, Gaizen Murmu, Kunwar Lal Murmu, Bhotla Murmu and Kalipada Mardi, who were shown as absconder in the earlier charge-sheet. The cognizance of the offence has been taken and the case has been committed to the court of sessions vide order dated 4.6.1991. The charge has been framed against 11 accused persons under Sections 364/302/201/120(B) of the Indian Penal Code on 15.5.2001. Subsequently, the charge has separately been framed against accused Anil Kisku @ Wakil jan under Sections 364/302/201/120(B) of the Indian Penal Code vide order dated 23.7.2001. Charge has been read over and explained to the accused in Hindi to which they have denied their involvement in the occurrence and they have claimed to be tried. 6. Subsequently, the charge has separately been framed against accused Anil Kisku @ Wakil jan under Sections 364/302/201/120(B) of the Indian Penal Code vide order dated 23.7.2001. Charge has been read over and explained to the accused in Hindi to which they have denied their involvement in the occurrence and they have claimed to be tried. 6. In order to prove the case, the prosecution has examined altogether seven prosecution witnesses and also exhibited a number of documents upto Ext.- 4. Subodh Kumar Murmu, informant of the case has been examined as P.W.1, Devan Murmu, brother of the informant has been examined as P.W.2, Dasrath Besra has been examined as P.W.3, Ragho Murmu has been examined as P.W.4, Sapo Mardi has been tendered by the prosecution, has been examined as P.W.5, Maheswar Prasad, part Investigating Officer of the case has been examined as P.W.6, Bimal Kumar Das, the Health worker at P.H.C, Ghatshila has been examined as P.W.7 and has proved hand writing and signature of the Dr. P.N.Singh on postmortem report. Signature of Subodh Kumar Murmu (P.W.1) on Fardbeyan has been proved and marked as Ext.-1. entire formal F.I.R has been proved and marked as Ext.-2. entire Fardbeyan written by Inspector-cum-Officer-in-Charge, Mr. V.D. Ram has been proved and marked as Ext.-3, carbon copy of the postmortem report has been proved and marked as Ext.-4 . 7. After closure of the prosecution evidence, the accused persons have been examined under Section 313 Cr.P.C on 9.3.2010, to which they have denied about the occurrence. But no defence witness or document has been brought on record. 8. After hearing learned counsel for the parties and on the basis of materials available on record, learned trial court has convicted the accused persons holding them guilty under Sections 364/302/201/120(B) of the Indian Penal Code and awarded rigorous imprisonment for life for each of the offences committed and punishable under Sections 364, 302 and 120B IPC and rigorous imprisonment for three years for the offence committed and punishable under Section 201 I.P.C. 9. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the appellants have preferred the present criminal appeal, which is being heard and disposed of. 10. Heard, learned Senior Counsels for the appellants, Mr. B. M. Tripathi so far as appellant nos. 1 to 9 are concerned, assisted by Mr. P.A.S. Pati, Advocate and Mr. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the appellants have preferred the present criminal appeal, which is being heard and disposed of. 10. Heard, learned Senior Counsels for the appellants, Mr. B. M. Tripathi so far as appellant nos. 1 to 9 are concerned, assisted by Mr. P.A.S. Pati, Advocate and Mr. P.P.N.Roy so far as the appellant no. 10, Anil Kisku alias Wakil is concerned, assisted by Mr. Ashutosh Mishra, Advocate. Learned Senior Counsels for the appellants have submitted that the impugned judgment of conviction and order of sentence is unsustainable in the eyes of law as there is no eye witness to the occurrence. Learned senior counsel for the appellants, Mr. B. M. Tripathi has submitted that from perusal of the First Information Report as well as evidence of the informant recorded as P.W.1, during trial it appears that there is vital contradiction. Though the Fardbeyan of the informant was recorded after a delay of 4 days. Informant has never claimed that any person except him and his sister were present in the house at the time of occurrence. Learned Senior Counsel for the appellants has submitted that while examining the evidence of P.W.-2 Devan Murmu, another brother of the informant, it appears that the informant, Subodh Kumar Murmu (P.W.1) was not present in the house and as such there is a vital contradiction in the prosecution case with regard to Fardbeyan, evidence of P.W.1, Subodh Kumar Murmu and evidence of P.W.2, Devan Murmu, learned senior counsel has submitted that such contradictions have been found in the prosecution case though there is an inordinate delay of 4 days in lodging the First Information Report. The occurrence took place on 29.1.1990 at around 2 P.M. but the F.I.R was lodged only after the recovery of dead body from Jungle on 2.2.1990, after delay of 4(four) days. It is further submitted that on the basis of Fardbeyan of the informant recorded by Inspector-cum-Officer-In-charge, Mr. V.D.Ram, on 2.2.1990 with such delay but Mr. V.D.Ram has not been examined in this case. Learned senior counsel has submitted that from the prosecution evidence, it appears that one Nabi Kumar Murmu has died in the year 1988 because of injuries sustained by knife tied with the cock during cock fighting, but as per disclosure made by Mr. V.D.Ram, on 2.2.1990 with such delay but Mr. V.D.Ram has not been examined in this case. Learned senior counsel has submitted that from the prosecution evidence, it appears that one Nabi Kumar Murmu has died in the year 1988 because of injuries sustained by knife tied with the cock during cock fighting, but as per disclosure made by Mr. Wakil jan @ Anil Kisku, who was working as Ojha, the mother of the informant is a witch, who has done black magic because of that Nabi Kumar Murmu has died. Learned Senior counsel has further submitted that prosecution has not alleged that the accused were in search of the mother of the informant, rather the informant has alleged in the First Information Report that for death of Nabi Kumar Murmu, accused persons will also take life of one person of his family. Learned senior counsel has submitted that as per evidence of the prosecution witnesses, no body has seen the occurrence. It is only after recovery of dead body of the deceased, the F.I.R has been lodged against these appellants with whom the informant has enmity and grudge and that is the reason there is a vital contradiction in the evidence of P.W.1, Subodh Kumar Murmu and P.W.2 Devan Murmu. Both prosecution witnesses, namely, Subodh Kumar Murmu and Devan Murmu have claimed themselves to be eye witnesses to the occurrence but in their deposition the presence of one-another has not proved, as such it is submitted by learned senior counsel that presence of both the witnesses i.e., informant (P.W.1) and his brother Devan Murmu, (P.W.2) at the place of occurrence is not established and proved by the prosecution. Learned senior counsel has submitted that this fact has been corroborated by the evidence of P.W.3, Dasrath Besra, who is none else than the maternal uncle of the informant. This witness has categorically stated that he was not present at the place of occurrence but while deposing as P.W.3, he has categorically stated in the examination-in-chief, that when the occurrence took place, Kapara Murmu (victim) was alone in her house. This fact has subsequently been reiterated by this witness during his cross-examination in paragraph-5. This witness has categorically stated that he was not present at the place of occurrence but while deposing as P.W.3, he has categorically stated in the examination-in-chief, that when the occurrence took place, Kapara Murmu (victim) was alone in her house. This fact has subsequently been reiterated by this witness during his cross-examination in paragraph-5. Learned senior counsel has submitted that on the basis of materials brought on record by the prosecution, the victim was alone and none of the brothers i.e., Subodh Kumar Murmu (P.W.1) or Devan Murmu(P.W.2) have seen the occurrence and it is only after the recovery of the dead body of the victim from the Jungle, a concocted prosecution case has been brought before Officer-In-charge, alleging against these appellants. Learned senior counsel for the appellants has further submitted that Ragho Murmu has been examined as P.W.4. He is a seizure-list witness to the effect that food and water mixed with poison, as alleged in the First Information Report, has been seized but neither the forensic report has been brought on record to substantiate the allegation against the accused persons nor seizure-list of the food and water mixed with poison have been brought on record. Learned Senior Counsel has submitted that Sapo Mardi (P.W.5) has been tendered by the prosecution. Mr. Maheshwar Prasad, Sub Inspector of Police and Officer-In-charge, who has submitted the charge-sheet in the case has been examined as P.W.6, but from the evidence of P.W.6, it appears that the entire investigation was conducted by another police officer, namely, Mr. V.D.Ram, the then Officer-in-Charge, who has recorded the fardbeyan of the informant has not been examined in this case. Maheshwar Prasad, P.W.6 has proved, the formal F.I.R with signature and handwriting of ASI, Harivansh Singh, which has been proved and marked as Ext.-2 and handwriting and signature of Mr. V.D. Ram in the fardbeyan has been proved and marked as Ext.-3. Learned senior counsel has submitted that because of non-examination of the Investigating Officer, Mr. V.D.Ram, serious prejudice has been caused to the accused/appellants as they could not get an opportunity to cross-examine the Investigating Officer to elucidate the fact to dispel the prosecution case and prove their innocence. Learned Senior counsel has further submitted that the postmortem report has been proved and marked as Ext.-4 by a Basic health worker, Mr. Bimal Kumar Das, (P.W.7). Learned Senior counsel has further submitted that the postmortem report has been proved and marked as Ext.-4 by a Basic health worker, Mr. Bimal Kumar Das, (P.W.7). The postmortem report has not been proved by the inscriber, Dr. P. N. Singh, who has conducted the postmortem examination on the dead body. Learned Senior Counsel has thus submitted, that from the evidence brought on record, it appears that there is no eye witness to the occurrence nor there is plausible explanation by the prosecution for delay in lodging the First Information Report coupled with the fact that the Investigating Officer has not been examined in this case nor the circumstantial or corroborative evidence has been brought on record to establish the prosecution case beyond all shadow of reasonable doubt against the appellants. The appellants deserve to be acquitted from the charge and conviction under Sections 364/302/201/120(B) of the Indian Penal Code. Learned senior counsel has submitted that ingredient for abduction as defined under Section 364 I.P.C has not been brought on record. The kidnapping has been defined under Section 359 I.P.C, kidnapping from lawful guardianship has been defined under Sections 361 I.P.C and abduction has been defined under Section 362 IPC. So far punishment for kidnapping has been defined under Section 363 and kidnapping or abducting in order to murder has been defined under Section 364 IPC, which are as under: 359: Kidnapping.-Kidnapping is of two kinds: kidnapping from India and kidnapping from lawful guardianship 361: Kidnapping from lawful guardianship.-Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. 362. Abduction.-Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person. 363. Punishment for kidnapping.- Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to sever years, and shall also be liable to fine. 364. 363. Punishment for kidnapping.- Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to sever years, and shall also be liable to fine. 364. Kidnapping or abducting in order to murder-Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. 11. From perusal of the same, it appears that there is no evidence adduced by the prosecution which makes out a case of kidnapping or abduction. Learned Senior counsel has submitted that since there is no eye-witness to the occurrence and only after the recovery of dead body of the victim, case has been lodged against these accused persons. Though, in the Fardbeyan, it has been stated by the informant that for the occurrence dated 29.1.1990, they have informed the Police but prosecution has failed to bring on record any information given to the Police or station diary entry with regard to missing of the victim on 29.1.1990. So far as the Inspector of Baharagora (Barsole) Police Station, Mr. V.D. Ram is concerned, non-examination of the same has caused serious prejudice to the accused persons as no opportunity has been given to the accused/appellants to cross-examine him so far as the information given to him orally by the informant on 29.1.1990 regarding missing of victim. Learned Senior counsel, on the basis of the above submission, has submitted that the accused persons are entitled for benefit of doubt and they may be acquitted of the charge and conviction under Sections 364, 302, 201, 120B I.P.C. 12. Learned senior counsel for the appellants has placed reliance upon the few judgments on various points: (i) (2014) 12 SCC 279 [Krishnan alias Ramasamy & Ors. Vs. State of Tamilnadu], paragraphs 21, 23 and 24-on the point of abduction and murder/last seen theory; (ii) (2016) 12 SCC 251 [ Rambraksh alias Jalim Vs. State of Chhattisgarh], paragraphs 9 to 12-on the point of last seen theory with the deceased. “12. Vs. State of Tamilnadu], paragraphs 21, 23 and 24-on the point of abduction and murder/last seen theory; (ii) (2016) 12 SCC 251 [ Rambraksh alias Jalim Vs. State of Chhattisgarh], paragraphs 9 to 12-on the point of last seen theory with the deceased. “12. It is trite law that a conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstance of last seen together. Normally, last seen theory comes into play where the time gap, between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead, is so small that possibility of any person other than the accused being the perpetrator of the crime becomes impossible. To record a conviction, the last seen together itself would not be sufficient and the prosecution has to complete the chain of circumstances to bring home the guilt of the accused.” (iii) (2017) 14 SCC 359 [Anjan Kumar Sarma & Ors. v. State of Assam], paragraphs-14, 16, 19 and 23-on the point of last seen evidence/circumstantial evidence 19. The circumstance of last seen together cannot by itself form the basis of holding the accused guilty of the offence. In Kanhaiya Lal v. State of Rajasthan, this Court held that: (SCC p. 719, paras 12 & 15) “12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant. *** 15. The theory of last seen—the appellant having gone with the deceased in the manner noticed hereinbefore, is the singular piece of circumstantial evidence available against him. The conviction of the appellant cannot be maintained merely on suspicion, however strong it may be, or on his conduct. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh v. State of Rajasthan.” 23. These facts assume further importance on account of absence of proof of motive particularly when it is proved that there was cordial relationship between the accused and the deceased for a long time. The fact situation bears great similarity to that in Madho Singh v. State of Rajasthan.” 23. It is clear from the above that in a case where the other links have been satisfactorily made out and the circumstances point to the guilt of the accused, the circumstance of last seen together and absence of explanation would provide an additional link which completes the chain. In the absence of proof of other circumstances, the only circumstance of last seen together and absence of satisfactory explanation cannot be made the basis of conviction. The other judgments on this point that are cited by Mr. Venkataramani do not take a different view and, thus, need not be adverted to. He also relied upon the judgment of this Court in State of Goa v. Sanjay Thakran in support of his submission that the circumstance of last seen together would be a relevant circumstance in a case where there was no possibility of any other persons meeting or approaching the deceased at the place of incident or before the commission of crime in the intervening period. It was held in the above judgment as under: (SCC p. 776, para 34) “34. From the principle laid down by this Court, the circumstance of last seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after (sic of) a considerable long duration. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after (sic of) a considerable long duration. There can be no fixed or straitjacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case.” (iv) (2013) 6 SCC 417 [Lahu Kamlakar Patil and another Vs. State of Maharashtra], paragraph 20, 21, 23, 24, 26 and 27-on the point of unnatural conduct of prosecution witnesses. (v) (2015) 6 SCC 282 [Abdul Razak and others Vs. State of Karnataka], paragraphs-8, 11 and 12-on the point of unnatural conduct of witnesses. (vi) (2013) 6 SCC 417 [Lahu Kamlakar Patil and another-Vs. State of Maharashtra], paragraph-18-on the point of non-examination of Investigating officer Learned Senior counsel, Mr. P.P.N. Roy assisted by learned counsel Mr. Ashutosh Mishra, Advocate appearing on behalf of the convict/accused Wakil jan @ Anil Kisku has placed reliance upon the judgments on various points: (i) (2014) 10 SCC 270 [Sukhjit Singh Vs. State of Maharashtra], paragraph-18-on the point of non-examination of Investigating officer Learned Senior counsel, Mr. P.P.N. Roy assisted by learned counsel Mr. Ashutosh Mishra, Advocate appearing on behalf of the convict/accused Wakil jan @ Anil Kisku has placed reliance upon the judgments on various points: (i) (2014) 10 SCC 270 [Sukhjit Singh Vs. State of Punjab], paragraphs 7, 10 to 13-no incriminating material of the prosecution has been brought to the notice and confronted with the accused while putting the question under Section 313 Cr.P.C. (ii) (2017) 14 SCC 359 , para-21 [Anjan Kumar Sarma and others Vs. State of Assam], paragraph 21-failure of accused to offer any explanation in his statement under Section 319 Cr.P.C along is not sufficient to establish the charge. 13. Learned counsel for the State Mr. Sanjay Kumar Srivastava, Additional Public Prosecutor has submitted that the impugned judgment of conviction and order of sentence has been passed by the learned trial court on the basis of the materials brought on record. Learned counsel for the State, has submitted that Kapara Murmu, sister of the informant, was missing from her house since 29.01.1990 and the dead body has been recovered on 2.2.1990. The informant has enmity with these accused persons as in the year 1988, Nabi Kumar Murmu had died because of Septicemia, but it has been alleged that mother of the informant has done some black magic, who is practicing as a “witch” and at that time a panchayati was convened where the prosecution party was saddled with fine of Rs.8,500/-but they have not paid the same. Since then, the villagers have ex-communicated them. They have not been allowed to take water from Government well and to mix up with the villagers. Ultimately the accused persons have given threatening to the life with common intention and thus the accused persons have kidnapped sister of the informant Kapara Murmu on 29.1.1990 and killed her by chopping her hand, extracting her both eyes and her dead body was thrown in jungle. Learned State counsel has submitted that since the victim has died in an unnatural circumstances and as such the learned trial court has rightly convicted the accused persons as the circumstance are pointing guilt towards them. Learned State counsel has submitted that the impugned judgment of conviction and order of sentence does not warrant any interference by this Court. 14. Heard learned senior counsel Mr. Learned State counsel has submitted that the impugned judgment of conviction and order of sentence does not warrant any interference by this Court. 14. Heard learned senior counsel Mr. B.M. Tripathi assisted by learned counsel Mr. P.A.S. Pati for the appellant nos. 1 to 9, learned senior counsel Mr. P.P.N. Roy assisted by learned counsel Mr. Ashutosh Mishra for the appellant no. 10 Wakil @ Anil Kisku, learned counsel for the State Mr. Sanjay Kumar Srivastava, Additional Public prosecutor, perused the materials brought on record including the F.I.R., framing of the charge, evidence of seven prosecution witnesses, four prosecution exhibits and the statement of the accused persons recorded under Section 313 Cr.P.C. along with the impugned judgment of conviction and order of sentence. 15. We have perused the materials brought on record by the prosecution witness. From the evidence of Subodh Kumar Murmu (P.W.1), the presence of his brother Devan Murmu, (P.W.2) at the place of occurrence, at the time of occurrence is not proved. Similarly from the statement of Devan Murmu, (P.W.2) the presence of Subodh Kumar Murmu (P.W.1) at the place of occurrence, at the time of occurrence has not been established by the prosecution as both have given contradictory version. From the evidence of P.W.3, Dasrath Besra, who is the maternal uncle of the informant, it appears that at the time of occurrence victim Kapara Murmu was alone in the house coupled with the fact that informant (P.W.1), Subodh Kumar Murmu has categorically stated in his evidence that when his sister was not in the house, he started searching his sister, meaning thereby taking away of the victim Kapara Murmu by the accused persons as alleged by the informant is also not seen by the informant Subodh Kumar Murmu (P.W.1), as such the basic ingredient to constitute an offence under Section 364 I.P.C. is completely lacking. This Court has also perused the materials and opined that there is no eye witness to the occurrence. As the claim of the informant Subodh Kumar Murmu (P.W.1) and Devan Murmu (P.W.2) as eye-witnesses to the occurrence itself are contradictory in nature and from joint reading of the evidence of these two witnesses it seems that presence of one another in their statement is not established. 16. As the claim of the informant Subodh Kumar Murmu (P.W.1) and Devan Murmu (P.W.2) as eye-witnesses to the occurrence itself are contradictory in nature and from joint reading of the evidence of these two witnesses it seems that presence of one another in their statement is not established. 16. Under the aforesaid circumstances, this Court is of the opinion that none of the witnesses namely Subodh Kumar Murmu or Devan Murmu have seen the occurrence as alleged and stated by them. They are not eye witness to the occurrence. Had they been eye witnesses, they would not have searched the victim Kapara Murmu, rather they would have gone to the house of accused or stated before the Police that his sister Kapara Murmu has been taken by such and such persons, rather after delay of four days when the dead body was recovered on 2.2.1990, the Fardbeyan of the informant was recorded by the Inspector-cum-Officer-in-charge, Bahragora Police Station Mr. V.D. Ram. Prior to this, no information has been given to the police about the kidnapping of the victim Kapara Murmu or missing of the victim. Non-examination of Mr. V. D. Ram, the Investigating Officer-cum-Officer-in-charge of Bahragora Police Station has also caused prejudice to the appellants as the appellants have not been provided opportunity to cross-examine him so as to establish their innocence with regard to manner of occurrence, time of occurrence, presence of P.W.1, Subodh Kumar Murmu and P.W.2, Devan Murmu at house, at the time of occurrence and information given to the Police by the informant. This Court has also taken note of the fact that in absence of any evidence brought on record coupled with the fact that judgments cited by the appellants so far as last seen theory in the case of Krishnan @ Ramasamy and others (supra), Anjan Kumar Sarma and others (supra) and Rambriaksh alias Jalim(supra), this Court has examined the evidence and found that prosecution has miserably failed to prove the charge against the accused persons under Section 364 I.P.C. by bringing on record the cogent evidence to constitute an offence under Section 364 I.P.C. This Court has also perused the judgment of Sukhjit Singh Vs. State of Punjab(Supra). State of Punjab(Supra). It appears that the incriminating material has not been brought to the notice of the accused Wakil @ Anil Kisku during his statement recorded under Section 313 Cr.P.C. This Court has also taken note of the fact that conduct of Subodh Kumar Murmu (P.W.1) and Devan Murmu (P.W.2) in pursuing the matter is not a natural conduct of brothers, whose sister has been taken away by the accused persons in their presence in view of the judgment of Lahu Kamlakar Patil and another (Supra). This Court is of the view that prosecution has miserably failed to prove the charge against the accused/appellants beyond shadow of all reasonable doubts coupled with the fact that delay in lodging F.I.R has not been explained properly, this Court is of the view that after recovery of the dead body of the victim i.e., after four days of the alleged occurrence an F.I.R. has been lodged by P.W.1 Subodh Kumar Murmu against the persons with whom he has enmity. 17. Under the aforesaid circumstances, this Court is of the view that the impugned judgment of conviction dated 26.03.2010 and the order of sentence dated 30.03.2010 passed by Additional District and Sessions Judge, Ghatshila in Sessions Trial No. 318 of 1991 is not sustainable in the eyes of law. As such, the same is set aside. 18. Accordingly, the criminal appeal is allowed. The appellants, who are in jail custody, are directed to be released forthwith, if not wanted in connection with any other case. Let Lower Court Records be sent to learned court below.