JUDGMENT Shree Chandrashekhar, J. - Birju Malakar @ Birju Mali, Pintua, Biku Paswan and one unknown person were named as accused by the informant in her fardbeyan which was recorded at about 6:30 hrs. on 26.07.2006 at village-Hesla. On the basis of fardbeyan of Pairwa Devi, wife of Tulsi Sao, Chhatarpur P.S. Case No. 78 of 2006 has been lodged on 26.07.2006 under section 302/34 of the Indian Penal Code. 2. The appellants have faced the trial on the charge under section 302/34 of the Indian Penal Code and they have been convicted and sentenced to R.I for life and fine of Rs. 5000/- each for the said offence; the accused Pintua has been declared juvenile and, accordingly, his case was separated. The unknown accused person, who according to the prosecution has participated in the occurrence, has not been found. 3. During the trial, the prosecution has examined 9 witnesses; the informant who is wife of the deceased died before the trial commenced and, therefore, her evidence could not be recorded. 4. The prosecution witness, namely, Munar Bhuiyan-P.W.2 has been projected by the prosecution as an eye-witness. 5. In her fardbeyan, the informant has stated that in the night of 25.07.2006 she was at home with her husband and they had dinner together. At about 8:00 p.m four persons came to their house and said that they belong to Party (Naxal/Maoist), whereupon she closed the door, however, they forced open the door and put-off the lantern in the room. The accused persons were abusing her husband. They dragged him outside the house and assaulted him with lathi and tangi. At that time, Munar Bhuiyan was also present in her house having dinner with them and when he tried to flee away he was also assaulted by the accused persons by lathi. The informant says that she had locked herself in the northern room. She has asserted that she has identified Birju Malakar @ Birju Mali and Biku Paswan in the lantern light. P.W. 2 has also identified the appellants as the persons who came to the house of Tulsi Sao in the night of 25.07.2006. He has also stated that after the accused persons entered the house of Tulsi Sao they put-off the lantern. P.W. 2 has also identified the appellants as the persons who came to the house of Tulsi Sao in the night of 25.07.2006. He has also stated that after the accused persons entered the house of Tulsi Sao they put-off the lantern. During his cross-examination, presumably to a suggestion by the defence that he has weak eye sight he has stated that he can see properly and he does not use glasses. He has described the incident in some detail. He has also spoken about assault on him by lathi and that he has told the police that he has seen the incident. 6. P.W.1 has been declared hostile and P.W.3, P.W.5 and P.W.6 are hearsay witnesses. P.W.4 and P.W.7 are son of deceased but they are not the eye-witnesses. 7. P.W.4 has stated that he had gone to the police station with Girija Ram and Gopal Ram and recorded his statement, however, Gopal Ram has not been examined and his fardbeyan has not been produced during the trial. P.W.7 has stated that he was informed about the incident by Ram Sewak Prasad Yadav-P.W.6, Mutur Yadav, Munna Yadav and Lalu Yadav, but these three persons have not been examined during the trial. During his cross-examination, he has stated that his brother, namely, Raj Kumar Sao-P.W.4 has lodged a First Information Report to the Police. He has thus corroborated P.W.4 on lodging of a Report by P.W.4 to the police. P.W.3, who is a co-villager and claims that he reached the place of occurrence on hearing hulla, has stated that the informant did not inform him who has assaulted Tulsi Sao and next morning when P.W.4 came to him he also did not say who had killed his father. He has also said that there was a rumor in the village that on account of differences with his son Tulsi Sao has been killed. It has also come in the evidence of the prosecution witnesses, particularly, P.W.3, P.W.5 and P.W.6 that Pairwa Devi who was married to Jharik Bhuiyan was a concubine of Tulsi Sao and that was the reason his sons were annoyed with him. 8. Dr. Jayant Lakra-P.W.8 who has conducted the post-mortem examination on 26.07.2006 at about 11:20 a.m has found the following injuries on Tulsi Sao : On External Examination: (I) Lacerated wound '' x '' bone deep back side perital region of head. 8. Dr. Jayant Lakra-P.W.8 who has conducted the post-mortem examination on 26.07.2006 at about 11:20 a.m has found the following injuries on Tulsi Sao : On External Examination: (I) Lacerated wound '' x '' bone deep back side perital region of head. (II) Lacerated wound '' x '' skin deep left side chin. (III) Bruise on right-side chest A. 2 x '' B. 2'' x '' C. 2'' x '' Blackusin Colour (IV) Bruise on left side chest- A. 2 x '' B. 2'' x '' C. 2'' x '' Blackusin Colour (V) Bruise 5'' x '' left side back. (VI) Bruise 5'' x 3'' right side back. (VII) Bruise 5'' x '' left side abdomen. (VIII) Abrasion 2'' x '' on right hand. (IX) Lacerated wound '' x '' skin deep on back of right ear. 9. The doctor has observed fracture of back side of skull bone and fracture of four ribs on the right side and five on the left side of the body of Tulsi Sao. During his cross-examination, the doctor has stated that except injury no. (I), other injuries may be caused due to a fall. 10. It is elementary in a criminal trial that identity of the accused must be established beyond reasonable doubt. It is also well-settled that if the prosecution has come out with a definite case it must establish the whole of its case [refer, " Mohinder Singh Vs. The State, (1953) AIR SC 415 "]. From the prosecution''s evidence, we gather that the prosecution has failed to establish who amongst the four accused persons has inflicted which particular injury on Tulsi Sao. In her fardbeyan, the informant has stated that after the accused persons entered her house they put-off the lantern and she had closed herself in another room. P.W. 2 has also stated that the accused persons had put-off the lantern after they entered the house. During his cross-examination, P.W.2 has admitted that it was a dark night and raining. P.W.3 has also stated that it was dark when he heard hulla of maar-pit. The number of injuries found on the person of Tulsi Sao are many but all of them except injury no. (I) are bruises, abrasions and lacerated wounds which were just skin-deep. The doctor has suggested that such injuries can be caused by dragging on hard surface. The injury no. The number of injuries found on the person of Tulsi Sao are many but all of them except injury no. (I) are bruises, abrasions and lacerated wounds which were just skin-deep. The doctor has suggested that such injuries can be caused by dragging on hard surface. The injury no. (I) which was found on perietal region of head of the deceased has been caused by who amongst the appellants has not been established by the prosecution; according to the prosecution atleast four persons have taken part in the incident. 11. From the prosecution''s evidence, it can be gathered that there is serious controversy on participation of the appellants in the crime. The defence has suggested that the informant herself or the sons of Tulsi Sao have killed him. It has also come in the evidence of P.W. 3 that there was land dispute between Birju Malakar @ Birju Mali and Tulsi Sao. 12. In the above facts and in view of the aforesaid discussions, all that we gather is that the appellants have been implicated in this case on suspicion, but then, suspicion howsoever strong cannot be the basis for conviction of an accused for a serious offence like murder. In the end, we find that the appellants are entitled for the benefit of doubt. The prosecution has failed to establish charge under section 302/34 of the Indian Penal Code against the appellants and, accordingly, the judgment of conviction passed against them in Sessions Case No. 24 of 2007 is set-aside. 13. The appellants are acquitted of the criminal charges framed against them in Sessions Case No. 24 of 2007. 14. The appellant, namely, Birju Malakar @ Birju Mali in Criminal Appeal (DB) No. 1241 of 2008, who is on bail, shall stand discharged of liability of the bail-bonds furnished by him. 15. The appellant, namely, Biku Paswan in Criminal Appeal (DB) No. 675 of 2009 is in jail and, therefore, he shall be set free forthwith, if not wanted in connection to any other case. 16. In the result, Criminal Appeal (DB) No. 675 of 2009 and Criminal Appeal (DB) No. 1241 of 2008 are allowed. 17. Let a copy of the Judgment be transmitted to the court concerned through FAX. 18. Let the lower-court records be sent to the court concerned forthwith.