JUDGMENT : KAILASH PRASAD DEO, J. 1. Heard learned counsel for the appellants, Mr. Abhay Shankar Dayal and learned counsel for the State, Mr. Mukesh Kumar, Additional Public Prosecutor. 2. The instant criminal appeal is directed against the judgment of conviction dated 23.08.1996 and order of sentence dated 24.08.1996, passed by learned Additional Sessions Judge, Gumla, in Sessions Trial No. 236 of 1991, whereby four accused persons namely Budhu Gowala, Shiva Gowala, Shivlal Gowala and Balram Gowala have been convicted for the offence committed and punishable under Section 302/34 of the Indian Penal Code and awarded sentence of rigorous imprisonment for life. During pendency of the appeal Budhu Gowala has died and his criminal appeal stood abated as per order passed today by this Court. 3. The prosecution case is based upon the fardbeyan of Etwa Korwa (P.W.-2) recorded by officer-In-charge of Ghaghra P.S. on 29.07.1991 (Monday) at 01:00 P.M. in presence of niece of informant namely, Rudain Devi (P.W.-1), chowkidar 4/4 Sukhair Oraon (P.W.-6) alleging therein that yesterday i.e. on 28.07.1991 (Sunday) in the evening at 07:00 P.M. when informant returned to his house after grazing cattle, his niece Rudain Devi informed him that his younger brother Sukha Korwa has been assaulted by the co-villager namely Budhu Gowala son of Late Dukha Gowala and son of Budhu Gowala namely Shiva Gowala, Shivlal Gowala, Baldeo Gowala and Balram Gowala with common intention by means of lathi and handle of axe, causing death of Sukha Korwa and the dead body is lying at Pakri Tanr. On this information, informant went there and saw the dead body of his brother with injury. The informant has categorically stated that occurrence has been witnessed by his niece and others. The informant has further stated that occurrence took place as his niece Rudain Devi has illicit relation with Shivlal Gowala (one of the accused) and from the said relation, a child has been born, who is aged about 4 years and living with the informant. Budhu Gowala and his sons have enmity with the brother of the informant (deceased) and as such they have killed brother of informant, whom they used to threaten. Budhu Gowala and his sons have enmity with the brother of the informant (deceased) and as such they have killed brother of informant, whom they used to threaten. Since the police station is situated at a distant place and in the way to police station there is forest and mountain and as such in absence of any conveyance the information could not be given to the police station in the night. The fardbeyan of the informant was recorded in presence of Rudain Devi (P.W.-1) and chowkidar 4/4 Sukhair Oraon (P.W.-6). 4. On the basis of fardbeyan, the police has registered Ghaghra P.S. Case No. 75 of 1991, dated 29.07.1991, under Section 302/34 of the Indian Penal Code against five named accused persons namely, Budhu Gowala son of Dukha Gowala, Shivlal Gowala, Baldeo Gowala, Balram Gowala and Shiva Gowala all sons of Budhu Gowala resident of Chulhamati, P.S. Ghaghra, District- Gumla. 5. After completion of investigation, the police has submitted charge sheet vide No.65 of 1991, dated 09.09.1991, under Section 302/34 of the Indian Penal Code, against all five named accused persons. 6. The cognizance of the offence has been taken vide order dated 13.09.1991 and the case has been committed to the court of sessions vide order dated 04.10.1991. 7. The charge has been framed against all five accused persons under Section 302/34 of the Indian Penal Code, on 03.12.1991. The charge was read over and explained to the accused persons in Hindi, to which they pleaded not guilty and claimed to be tried. During pendency of the trial, Baldeo Gowala has died and his case has been dropped vide order dated 07.12.1992. 8. The prosecution, to prove its case, has examined altogether twelve witnesses and also adduced a number of documentary evidence as exhibits. Statement of the informant as exhibit-1 and photocopy of the postmortem report as exhibit-2. Rudain Devi, niece of the informant has been examined as P.W.-1 as an eye-witness to the occurrence, Etwa Korwa, informant and brother of the deceased has been examined as P.W.-2, Agni Devi is the wife of the deceased and has been examined as P.W.-3, Sohrai Korwa is an inquest witness and brother of the informant has been examined as P.W.-4, Chongo Devi wife of the informant has been examined as P.W.-5 who has been tendered by the prosecution. Sukhair Oraon chowkidar no.4/4 has been examined as P.W.-6, Pradhan Korwa another inquest witness has been examined as P.W.-7, Sitaram Korwa has been examined as P.W.-8 who has been tendered by the prosecution, Fudain Devi daughter of the deceased has been examined as P.W.-9, Mangri Devi daughter-in-law of the deceased has been examined as P.W.-10 who has been tendered by the prosecution, Ram Pukar Singh, Investigating Officer has been examined as P.W.-11, Dr. Manibhushan Prasad, Medical Officer, who has conducted autopsy on the dead body of Sukhu Korwa has been examined as P.W.-12. Fardbeyan of the informant Etwa Korwa (P.W.-2) has been proved by Ram Pukar Singh (P.W.-11) and marked as exhibit-1, postmortem report of the deceased Sukhu Korwa has been proved by Dr. Manibhushan Prasad (P.W.-12) and marked as exhibit-2. 9. After closure of the prosecution evidence, the statement of the accused persons have been recorded under section 313 Cr.P.C., on 17.12.1992, where they have denied about their involvement in the present case and stated that they have been falsely implicated in this case but no defence witness or exhibit has been brought on record. 10. After hearing learned counsel for the parties and on perusal of materials available on record, learned trial court has convicted all the four accused persons namely, Budhu Gowala, Shivlal Gowala, Balram Gowala and Shiva Gowala under Section 302/34 of the Indian Penal Code. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the appellants have preferred the present criminal appeal before this Court, assailing the same. 11. Heard, learned counsel for the appellants Mr. Abhay Shankar Dayal and learned counsel for the State Mr. Mukesh Kumar, Additional Public Prosecutor. Learned counsel for the appellants has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellants has further submitted, that as per the First Information Report, the occurrence has been witnessed by the sole eye witness Rudain Devi, who has been examined as P.W.-1 but has not supported the prosecution case. It has been submitted by learned counsel, that informant is not an eye-witness to the occurrence rather informant has been disclosed about the occurrence by Rudain Devi (P.W.-1), who is niece of the informant. It has been submitted by learned counsel, that informant is not an eye-witness to the occurrence rather informant has been disclosed about the occurrence by Rudain Devi (P.W.-1), who is niece of the informant. Learned counsel for the appellants has further submitted that from perusal of first information report, it appears that F.I.R. has been lodged after delay of approximately 18 hours and in the recital of the fardbeyan there is no other person whose name has been stated as an eye-witness to the occurrence. Learned counsel for the appellants has further submitted that Rudain Devi has not supported the prosecution case while being examined in the court as P.W.-1 and has been declared hostile by the prosecution. As such there is no legal material against these appellants so as to hold them guilty for the offence committed and punishable under Section 302/34 of the Indian Penal Code. Learned counsel for the appellants has further submitted that Etwa Korwa (P.W.-2) is hearsay witness and has admitted during cross-examination at paragraph 5, that he has not seen the occurrence from his own eyes. Learned counsel for the appellants has further submitted that Agni Devi wife of the deceased has been examined as P.W.-3. Though she has claimed herself to be an eye-witness to the occurrence but from the evidence brought on record it is apparent that she is not an eye-witness to the occurrence as her name has not been mentioned in the fardbeyan nor the informant Etwa Korwa (P.W.-2) has stated her name as an eye-witness to the occurrence while examining in the court as P.W.-2. Learned counsel for the appellants has further submitted that Sohrai Korwa (P.W.-4), brother of the informant is also not an eye-witness to the occurrence rather he is one of the inquest witness. Chengo Devi (P.W.-5) is tendered witness. Sukhair Oraon, choukidar 4/4 has been examined as P.W.-6. He is hearsay witness as he was informed in the morning of Monday by Etwa Korwa (P.W.-2) and daughter of deceased, that Budhu Gowala and his sons have killed brother of Etwa Korwa and the dead body was found in the Pakri Depa mountain. Pradhan Korwa is another inquest witness and has been examined as P.W.-7, who is also a hearsay witness. Sitaram Korwa has been examined as P.W.-8 and has been tendered by the prosecution, though he is brother of the deceased. Pradhan Korwa is another inquest witness and has been examined as P.W.-7, who is also a hearsay witness. Sitaram Korwa has been examined as P.W.-8 and has been tendered by the prosecution, though he is brother of the deceased. Fudain Devi another daughter of the deceased has been examined as P.W.-9. She has also claimed herself to be an eye-witness to the occurrence. Learned counsel for the appellants has submitted that this witness is also not an eye-witness to the occurrence as she was staying at her matrimonial house Pakar Kona at a distance of 3 kos (6 miles approximately). Learned counsel for the appellants has further submitted that in the fardbeyan her name has also not been figured as an eyewitness to the occurrence nor Etwa Korwa while examining as P.W.-2 has disclosed her name, as an eye-witness to the occurrence nor Agni Devi, mother of this witness has disclosed the name of this witness as an eye-witness to the occurrence and as such from conjoint reading of the evidence brought on record, it is apparent that in the fardbeyan Rudain Devi, (P.W.-1) has only been cited as an eye-witness to the occurrence, who has not supported the prosecution case and has been declared hostile by the prosecution. Learned counsel for the appellants has further submitted that evidence of P.W.-2 Etwa Korwa, P.W.-3 Agni Devi and P.W.-9 Fudain Devi are not in consonance with each other, showing their presence at the place of occurrence together and there is no chance of seeing the occurrence by all these three witnesses as these three witnesses have not proved their presence as witnesses to the occurrence and present at that time at the place of occurrence. As such putting reliance upon such evidence is not safe to convict the appellants. Learned counsel for the appellants has further submitted that Mangra Devi has been examined as P.W.-10 and has been tendered by the prosecution. Investigating Officer, Ram Pukar Singh has been examined as P.W.-11. He has proved the fardbeyan of Etwa Korwa (P.W.-2) written by him bearing thumb impression of informant, which has been marked as exhibit-1. This witness has stated that he has described the place of occurrence as Pakri Tanr situated in the midst of forest mountain Chulhamati. There is forest in the East, village Dila Pathar in the West. He has proved the fardbeyan of Etwa Korwa (P.W.-2) written by him bearing thumb impression of informant, which has been marked as exhibit-1. This witness has stated that he has described the place of occurrence as Pakri Tanr situated in the midst of forest mountain Chulhamati. There is forest in the East, village Dila Pathar in the West. He has not found any blood mark or any other mark near the place of occurrence because of rain as the same is situated adjacent to the mountain and place of occurrence is a low land though P.W.-3 Agni Devi during her cross-examination has categorically stated that on the alleged date of occurrence and on subsequent day, there was no rain fall. He has prepared the inquest report and sent the dead body for postmortem and submitted charge sheet. This witness has only stated that Rudain Devi (P.W.-1) has disclosed before him that when his mother and father have returned from market at around 5:00-6:00 P.M., the accused persons namely, Budhu Gowala, Baldev Gowala, Shiva Gowala and Shivlal Gowala have surrounded them and assaulted by means of lathi and tangi although no such evidence has been adduced by the informant Etwa Korwa (P.W.-2) and Agni Devi (P.W.-3). Learned counsel for the appellants has further submitted that on perusal of the evidence brought on record, it is apparent that entire case is based upon the evidence of Rudain Devi (P.W.-1) who has informed about the occurrence to the informant Etwa Korwa (P.W.-2) but said Rudain Devi (P.W.-1) has not supported the case of prosecution, as such in absence of any legal material against the appellants, the conviction of the appellants under Section 302/34 of the Indian Penal Code is not sustainable in the eyes of law. Therefore they may be acquitted of the charge and conviction under Section 302/34 of the Indian Penal Code. 12. Heard, learned counsel for the State, Mr. Mukesh Kumar, Additional Public Prosecutor. Learned counsel for the State has vehemently argued the case and 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 evidence and materials available on record. 12. Heard, learned counsel for the State, Mr. Mukesh Kumar, Additional Public Prosecutor. Learned counsel for the State has vehemently argued the case and 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 evidence and materials available on record. Learned counsel for the State has fairly submitted that Rudain Devi (P.W.-1) has not supported the case of the prosecution though the dead body of deceased was found and postmortem report has been proved and marked as Exhibit-2. As per the post mortem report, the deceased has sustained five injuries which are as follows: “(i) Abrasion over (L) arm on posterior aspect in its lower 3rd ½” x ½” (ii) Bruise over (R) temporal region -1 ½” x 1” (iii) Bruise over (R) side of chest-at the level of 6th to 10th rib in ant. axillary line 5” x 1” (iv) Fracture of (R) temporal bone with laceration of brain (v) Rupture of liver.” The medical Officer has found injury no. 1 to 3 simple in nature caused by hard and blunt substance and are ante mortem in nature. Injury no. 4 and 5 are grievous and are ante mortem in nature caused by hard and blunt substance and are sufficient to cause death in ordinary circumstances. The cause of death is haemorrhage and shock. The time elapsed since death is approximately within 36 hours. Learned counsel for the State has thus submitted that as per the evidence of prosecution evidence together with medical evidence, learned trial court has rightly passed the judgment of conviction and order of sentence against these appellants which does not require any interference by this Court. 13. Heard, learned counsel for the appellants Mr. Abhay Shankar Dayal and learned counsel for the State Mr. Mukesh Kumar, Additional Public Prosecutor. Perused the materials brought on record including the First Information Report, framing of charge, evidence of twelve prosecution witnesses, two prosecution exhibits and statement of accused/appellants recorded under Section 313 Cr.P.C. as well as impugned judgment of conviction and order of sentence. This Court has found that the First Information Report is based upon the fardbeyan of Etwa Korwa (P.W. 2). This Court has found that the First Information Report is based upon the fardbeyan of Etwa Korwa (P.W. 2). In the fardbeyan, Etwa Korwa (P.W. 2) has categorically disclosed that after returning from bazar, he was informed by his niece Rudain Devi (P.W.-1) that his brother was taken by five named accused persons and after assaulting by means of lathi and tangi caused his death. At that time no other witnesses have been cited as an eye-witness to the occurrence, though the F.I.R. was lodged on the second day at 1.00 P.M. meaning thereby after approximately 18 hours of the occurrence. The prosecution has explained the delay as police station is situated at a distant place on other side of the mountain and forest and because of non-availability of any means of conveyance, information could not be given to police station on the date of occurrence. On very next day in the morning, chowkidar of the village 4/4, Sukhair Oraon (P.W. 6) was informed by Rudain Devi (P.W. 1) and Etwa Korwa (P.W. 2) about the occurrence and along with chowkidar, they came to police station and fardbeyan of Etwa Korwa (P.W. 2) was recorded. The chowkidar has also been examined in this case but he has not stated name of any other prosecution witnesses to be an eye-witness to the occurrence except the name of Rudain Devi (P.W. 1) with whom he and the informant Etwa Korwa came to police station. As such, evidence of Agni Devi (P.W. 3), Fudain Devi (P.W. 9), claiming themselves to be eye-witnesses to the occurrence is unreliable and are fit to be discarded by this Court. Rudain Devi (P.W.1), sole eye witness to the occurrence has not supported the case of prosecution, and she has been declared hostile by the prosecution. 14. Under the aforesaid facts and circumstances, in absence of any legal material against the appellants, conviction of the appellants under Section 302/34 of the Indian Penal Code cannot sustain in the eyes of law merely on the basis of post mortem report, as the culpability of offence against these accused/appellants have not been proved beyond all shadow of reasonable doubt by the prosecution. The evidence of the Investigating Officer Ram Pukar Singh (P.W. 11) also suggests that Rudain Devi is only eye-witness to the occurrence and has been declared hostile by the prosecution. The evidence of the Investigating Officer Ram Pukar Singh (P.W. 11) also suggests that Rudain Devi is only eye-witness to the occurrence and has been declared hostile by the prosecution. As such, this Court is of the opinion that there is no legal material against these appellants for upholding and affirming the judgment of conviction passed by learned trial court and they are entitled for benefit of doubt. 15. In the result, impugned judgment of conviction dated 23.08.1996 and order of sentence dated 24.08.1996, passed by learned Additional Sessions Judge, Gumla, in Sessions Trial No. 236 of 1991, arising out of Ghaghra P.S. Case No. 75 of 1991, corresponding to G. R. Case No. 562 of 1991, is hereby set aside and the appellants are acquitted of the charge and conviction under Section 302/34 of the Indian Penal Code by extending benefit of doubt. 16. The appellants, who are on bail, are discharged from liability of their bail bonds. 17. Accordingly, the present criminal appeal is allowed. 18. Let the lower court record be sent along with a copy of this judgment to the court below.