JUDGMENT : Shree Chandrashekhar, J. The sole appellant has been convicted and sentenced to R.I. for life under section 302 of the Indian Penal Code for committing murder of Koto Munda, his brother. 2. The informant of this case is wife of Koto Munda. On the basis of her fardbeyan which was recorded on 11.11.1993 at about 15:50 hrs. at village Soteya, Karra P.S Case No. 71 of 1993 was registered against the appellant under section 302 of the Indian Penal Code. During the trial, the prosecution has examined six witnesses. The informant is P.W.2. Bishu Munda and Bhutka Munda are brothers of the deceased who have been examined as P.W.3 and P.W.5. The co-villager, namely, Sanika Oraon who has been examined as P.W.4 has turned hostile and the fardbeyan written by the officer-in-charge, Karra P.S. has been proved through P.W.6. 3. The prosecution has projected P.W.2, P.W.3 and P.W.5 as the eye-witnesses. 4. In her fardbeyan the informant has stated that in the morning of 11.11.1993, at around 9:00 a.m, her husband was going to irrigate the field (bari). She says that when her husband reached near the field at village-Mahia her younger brother-in-law, namely, Mani Munda carrying a tangi came there and started assaulting her husband. On her raising hulla, Bishu Munda, Bhutka and Sanika came there, however, by that time her husband had died. Her brother-in-law was caught by the villagers and after the police reached there on an information sent through the chowkidar he was handed over to the police. In the court the informant has deposed that at the time of the occurrence she was at home and when she heard hulla she came out and saw the accused assaulting her husband with tangi on his neck. She has spoken about three tangi blows on the neck of her husband. She has stated that the villagers had apprehended the accused with a blood-stained tangi. She has also stated that the police has seized blood-stained soil and tangi. In her cross-examination she has stated that the distance between the place of occurrence and maize bari is about 200 yards and there is no other house around her house. 5. P.W.3 is brother of the deceased. He has stated that at the time of the occurrence he was at home and he has seen the accused assaulting Koto Munda with a tangi. 5. P.W.3 is brother of the deceased. He has stated that at the time of the occurrence he was at home and he has seen the accused assaulting Koto Munda with a tangi. At that time he was standing outside his house. He has also stated that the accused, who is also his brother, was apprehended with the help of the villagers and when the police arrived there he was handed over to the police. P.W.5 is another eye-witness. He is another brother of the deceased. He has stated that Koto Munda was leaving for irrigating bari and at that time his younger brother, the accused, was also going behind him. He was carrying a tangi. When they reached near the field of Majhola there was a scuffle between both of them and the accused assaulted Koto with tangi on his neck and thereafter he tried to flee away, however, the villagers apprehended him and he was handed over to the police. 6. P.W.4 is a co-villager. He has stated that the incident has happened at around 8:00-9:00 a.m and at that time he was working in his field. On hearing hulla when he had gone to the field of Majhola Oraon he has seen the dead body of Koto Munda, however, he has stated that he has not seen the accused there. On such statement of P.W.4 he was declared hostile at the instance of the prosecution. The testimony of a witness who during his examination in the court has not supported the prosecution is not altogether irrelevant rather it can be used by the prosecution to support its case to the extent the evidence of a hostile witness corroborates its case. P.W.4 was cross-examined by the prosecution and he has admitted that he has stated before the police that he has seen the accused carrying kulhari going behind Koto Munda. He has also admitted that he has stated before the police that the villagers apprehended Mani Munda who was fleeing away with kulhari. However, he has denied that he has seen the accused inflicting 3-4 kulhari blows on the neck of Koto Munda. 7. The prosecution has sought to prove the charge against the appellant through P.W.2, P.W.3 and P.W.5 which is corroborated by the medical evidence. Dr. However, he has denied that he has seen the accused inflicting 3-4 kulhari blows on the neck of Koto Munda. 7. The prosecution has sought to prove the charge against the appellant through P.W.2, P.W.3 and P.W.5 which is corroborated by the medical evidence. Dr. Sudhir Kumar Sandilya who has been examined as P.W.1 has conducted the post-mortem examination on 12.11.1993 at about 3:00 p.m. He has found the following injuries on Koto Munda : (1) Two incised injuries on the upper part of the left lateral aspect of the neck situated transversely 3'' x 1'' x 1½'' – 3'' x 1'' x 2½''. All underlying structures, soft tissues, vessels, mussels and lateral wall of pharyngs and trachea were cut. (2) Incised injury over left cheek on lateral aspect 3''x1/2''x1/2'' cutting all underlying structures, soft tissues, vessels and rounces of left mandible. (3) Incised injury over chin 3'' x 1/2'' x 1/3''. 8. According to the doctor, the injuries were ante-mortem in nature and caused by a sharp-cutting heavy weapon such as tangi. In the opinion of the doctor, the injury nos. (1) and (2) were sufficient to cause death in ordinary course and the time elapsed since death was within 24 hours. 9. On such evidence, a charge under section 302 of the Indian Penal Code can be successfully proved, however, in the present case on their own saying P.W.2, P.W.3 and P.W.5 are not the eye-witnesses. 10. P.W.2 who is the informant has stated that she has seen the accused assaulting her husband and when she raised hulla P.W.3, P.W.4 and P.W.5 arrived at the place of occurrence. P.W.3 and P.W.5 both have admitted during their cross-examination that the distance between their house and the place of occurrence (bari) is about 1/2 kilometer. If testimony of P.W.2 is to be believed, it is unbelievable that on hearing cries of P.W.2 the other witnesses who were at a far distance have come there. P.W.2 has stated that there is no other house near her house and when her husband raised cries she alone had gone to the place of occurrence and at that time no other person was present there. Both P.W.3 and P.W.5 have spoken about presence of several villagers when they arrived at the place of occurrence, however, they have not stated that P.W.2 was also present there. Both P.W.3 and P.W.5 have spoken about presence of several villagers when they arrived at the place of occurrence, however, they have not stated that P.W.2 was also present there. The prosecution witnesses have stated that the police has seized blood-stained soil and tangi from the place of the occurrence, however, these material objects were not produced in the court. There is no serological report on the blood-stains seen by the prosecution witnesses at the place of occurrence and the tangi. The investigating officer who has conducted the investigation has not been examined during the trial and, therefore, the reason why the co-villagers who according to the prosecution witnesses had arrived at the place of occurrence were not produced during the trial could not be elicited by the defence from him. 11. The aforesaid factual scenario has created a serious doubt on veracity of the prosecution's case. 12. From testimony of P.W.4 what appears to us is that at the time when Koto Munda was going to irrigate the field the accused was also seen going behind him and at that time he was carrying a kulhari. It has come on record that the last evening the deceased had scolded him and that is the reason since he was found going behind his brother, on suspicion he was implicated in this case. The prosecution story, that he was caught by the villagers with a blood-stained tangi and the police has seized a blood-stained tangi and the villagers handed over him to the police, has not been proved by the prosecution for none of the villagers and the investigating officer have been examined during the trial. 13. Having found so, we hold that not only P.W.2, P.W.3 and P.W.5 are not the eye-witnesses, the appellant has been implicated in this case only on suspicion, but then, suspicion howsoever strong cannot take the place of legal evidence so as to render the judgment of conviction and, that too, for a serious offence like murder. 14. In the end, we find that the prosecution has failed to prove the charge under section 302 of the Indian Penal Code against the appellant and, accordingly, his conviction for the said offence is set-aside. 15. The appellant is acquitted of the charge framed against him in S.T No. 273 of 1994. 16. 14. In the end, we find that the prosecution has failed to prove the charge under section 302 of the Indian Penal Code against the appellant and, accordingly, his conviction for the said offence is set-aside. 15. The appellant is acquitted of the charge framed against him in S.T No. 273 of 1994. 16. The appellant, namely, Mani Munda, who is on bail, shall stand discharged of liability of the bail-bonds furnished by him. 17. In the result, Criminal Appeal (DB) No. 143 of 2001 is allowed. 18. Let a copy of the Judgment be transmitted to the court concerned through FAX. 19. Let the lower-court records be sent to the court concerned forthwith. 20. We appreciate the assistance rendered by Mr. Rajesh Kumar Dubey, the learned Amicus. He shall be reimbursed on submission of bills.