JUDGEMENT : Shree Chandrashekhar, J. In S.T. No.389 of 2008, Narayan Ganjhu who is the appellant in Cr. Appeal (DB) No.615 of 2018 has been convicted and sentenced to R.I for life and fine of Rs.30,000/- under section 302 of the Indian Penal Code and Gopal Mahto who has filed Cr. Appeal (DB) No.396 of 2018 has been convicted and sentenced to R.I for life and fine of Rs.30,000/- under section 302 read with section 120-B IPC. 2. The case of the prosecution runs like this. Balkisun Sao was associated with Prajapita Brahma Kumari Ishwariye University for the last several years. His daughter and son were also working with them and they were living in Ashram. At Barkaam a building was being constructed for Prajapita Brahma Kumari and Balkisun Sao was supervising the construction work. For the past few days he was staying there in the night and his son used to bring food for him. Prem Sahu and Gopal Mahto, both residents of village-Keredari, had several quarrel with Balkisun Sao and they were threatening to teach lesson to him. On 08.03.2008, at about 10.00 P.M., Brahma Kumar Yogendra, Awadh Mahto and Dhaneshwar Mahto had gone to Barkaam with food for Balkisun Sao but he was not found in his room. An information was given to Brahma Kumari Sarita, daughter of Balkisun Sao, then she along with Indrajeet Mahto, Ramdhani Mahto and others reached there. In course of search when they moved towards south-eastern side they heard cries of Balkisun Sao in the forest. When they reached there saw five persons assaulting him who on seeing them coming there left him and fled away. However, after some chase one of them was caught by them. He disclosed his name Narayan, an Ganjhu and said that Yadav Ganjhu Rijhan Ganjhu, Govind Ganjhu and Laldeo Ganjhu were with him. He has further disclosed that Yadav Ganjhu had offered drinks to them and at his instance they had gone to Barkaam and brought Balkisun Sao from his room in Lebarwa forest to kill him. 3. He disclosed his name Narayan, an Ganjhu and said that Yadav Ganjhu Rijhan Ganjhu, Govind Ganjhu and Laldeo Ganjhu were with him. He has further disclosed that Yadav Ganjhu had offered drinks to them and at his instance they had gone to Barkaam and brought Balkisun Sao from his room in Lebarwa forest to kill him. 3. Around 5.40 AM on 09.03.2008, a written report was given by Brahma Kumar Yogendra at the police station and on that basis Keredari P.S. Case No.14 of 2008 was registered against Narayan Ganjhu, Yadav Ganjhu, Rijhan Ganjhu, Govind Ganjhu, Laldeo Ganjhu, Prem Sao and Gopal Mahto under section 302/ 120-B IPC and after the investigation a charge-sheet was submitted against Narayan Ganjhu and Gopal Ganjhu on 06.06.2008; they were put on trial in S.T.No. 389 of 2008. At that time the investigation against other accused persons was pending and after supplementary charge-sheets were filed against Yadav Ganjhu, Govind Ganjhu, Rijhan Ganjhu, Laldeo Ganjhu and Prem Sao, S.T.No.574 of 2008 commenced against them. Subsequently, trial against Govind Ganjhu and Yadav Ganjhu was amalgamated in S.T. No. 389 of 2008 which was started against Narayan Ganjhu and Gopal Ganjhu, but, vide order dated 18.05.2012 trial against Govind Ganjhu and Yadav Ganjhu was separated and re-numbered as S.T. No.389(A)/2008. 4. During the trial, the prosecution has examined six witnesses to prove charge against the appellants. Brahma Kumari Sarita PW-2 is the daughter and Brahma Kumar Yogendra PW-6 is son of Balkisun Sao. Dhaneshwar Mahto PW-3, Awadh Mahto PW-4 and Ramdhani Mahto PW-5 were living in Ashram at the time of the Occurrence; Ramdhani Mahto is brother of Gopal Mahto, the appellant. 5. PW-2, daughter of the deceased, has deposed in the Court that at about 12.30 midnight her father was killed by Narayan Ganjhu, Laldeo Ganjhu, Yadav Ganjhu, Rijhan Ganjhu and Govind Ganjhu. She was residing in a Ashram at Keredari and her father was supervising the construction work at Barkaam. For the past few days her father was staying in the night at Barkaam and her brothers would take food for him. In the night of the occurrence at about 11.30 p.m. she received a phone call from her brother that their father is not there whereafter she started from Ashram with five other persons in search of her father and in Course of search she heard cries coming from Lebanva forest. In the night of the occurrence at about 11.30 p.m. she received a phone call from her brother that their father is not there whereafter she started from Ashram with five other persons in search of her father and in Course of search she heard cries coming from Lebanva forest. They moved towards that direction and found that five persons had thrashed her father on the ground. On seeing them coming there they started running away, however, Narayan Ganjhu was apprehended. On enquiry, he disclosed the name of other accused persons. He was brought to the police station and handed over to the police. She has stated that she was accompanied by Inderjeet Mahto, Ramdhani Mahto, Swastika, Jyoti and Yasoda Devi, her mother, and her father had died at the place of occurrence. The inquest was conducted in her presence and she has signed the inquest report which was marked as Ext.2. 6. PW-3, Ohaneshwar Mahto has also stated that in the intervening night of 8/9.03.2008, at about 12.30 p.m., Balkishan Sao was murdered. At about 10.00 p.m. in the night he had taken food for Balkishan Sao at Barkaam which was about 2 kilometers from Ashram. At that time, Brahma Kumar Awadh Mahto and Brahma Kumar Yogendra were with him. When they did not find Balkisun Sao at the construction site they started searching him, however, he was not traced out. Yogendra Sao informed his sister on telephone about missing of his father and his sister came there with Yasoda, Swastika, Jyoti, Inderjeet and Ramdhani. They moved towards south-eastern side and when reached near Lebarwa forest heard cries of 'Bachao Bachao'. There they found Narayan Ganjhu and other four miscreants assaulting Balkisun Sao and when they questioned them they started running away. After some chase Narayan Ganjhu was caught however other four managed to escape. Narayan Ganjhu revealed the name of other four accused persons after they gave 2-4 blows to him. He further disclosed that Yadav Ganjhu had served drinks to them and at about 9.00 PM they brought Balkisun Sao inside Lebarwa forest. PW-3 has stated that in the morning at 4.00 a.m. Narayan Ganjhu was handed over to police at the police station but he had stayed with the dead body. 7. PW-4 is another inmate of Ashram. He further disclosed that Yadav Ganjhu had served drinks to them and at about 9.00 PM they brought Balkisun Sao inside Lebarwa forest. PW-3 has stated that in the morning at 4.00 a.m. Narayan Ganjhu was handed over to police at the police station but he had stayed with the dead body. 7. PW-4 is another inmate of Ashram. He has deposed in the Court that at about 11.00 p.m. at 08.03.2008 he had gone to Barkaam with Dhaneshwar Mahto and Brahma Kumar Yogendra taking food for Balkisun Sao, his uncle, however, he was not found there. He has also stated about information to PW-2 by PW-6, search for Balkisun Sao in the forest and cries of 'Bachao Bachao' from south-eastern direction. He has stated that they were nine persons searching for Balkisun Sao in Lebarwa forest and he had heard cries from a distance of about 1-1/2 kilometers. He has stated that five accused persons were assaulting Balkisun Sao and amongst them Narayan Ganjhu assaulted him near his neck with a knife. He has also stated that on enquiry Narayan Ganjhu revealed name of other accused persons who were resident of village-Niri and that at the instance of Yadav Ganjhu who had served drinks to them, they had come to kill Balkisun Sao and that Yadav Ganjhu was acting on the direction of Prem Sahu and Gopal Mahto. He has further stated that about one week before the incident Prem Sahu and Gopal Mahto had threatened them with dire consequences. They were claiming that the land given by Ramdhani Mahto over which construction was made by Brahma Kumari belonged to them and they were threatening to leave the land. Narayan Ganjhu was taken to the police station where PW-6 gave a written report to the police. 8. PW-5 was also living in Ashram with other prosecution witnesses. He has transferred a piece of land to PW-2 and a building was being constructed at Barkaam on that land. When Balkisun Sao was not found in his room he had gone there with PW-2 and others and during search gone towards Lebanva forest. He has also deposed in the Court that he heard cries from south-eastern side of the forest and seen the accused persons assaulting Balkisun Sao with stone and Narayan Ganjhu with a knife on the back of his neck. He has also deposed in the Court that he heard cries from south-eastern side of the forest and seen the accused persons assaulting Balkisun Sao with stone and Narayan Ganjhu with a knife on the back of his neck. Like other witnesses he has also stated that Narayan Ganjhu was caught after a chase and he disclosed the name of other accused persons. He has further stated that Prem Sahu and Gopal Mahto were objecting to construction of the temple and about eight days prior to the incident they had threatened them with dire consequences. 9. PW-6, son of the deceased, is the informant of this case. He has substantially reiterated the occurrence as narrated by him in the written report. He has deposed in the Court about construction at Barkaam, stay of his father there in the night, missing of his father in the night of 08.03.2008 when he along with PW-3 and PW-4 had gone there with food, and search for his father. He has stated about assault on his father by 4-5 persons with a sharp-cutting object and capture of Narayan Ganjhu, who disclosed the name of other miscreants who had managed to flee away. In paragraph nos.8 and 9 of his examination-in-chief he has disclosed motive for the crime. 10. Mr. Jitendra S. Singh. the learned counsel appearing for Narayan Ganjhu has contended that discrepancy in the time of arrest and information to the police; absence of motive on the part of Narayan Ganjhu and; variance between medical evidence and ocular evidence have shrouded death of Balkisun Sao in mystery, and evidence of the prosecution witnesses that Narayan Ganjhu was found assaulting Balkisun Sao with a knife but a knife or any other incriminating article was not found at the place of occurrence and none of the prosecution witnesses has seen blood on his hand or clothes would completely ruled out involvement of Narayan Ganjhu in the occurrence. He has further contended that non-examination of the investigating officer has caused serious prejudice to the accused and in view of a clear finding recorded by the doctor that death has been caused due to injuries caused by hard and blunt 'substance, Narayan Ganjhu cannot be convicted under section 302 IPC. To fortify his contentions, Mr. He has further contended that non-examination of the investigating officer has caused serious prejudice to the accused and in view of a clear finding recorded by the doctor that death has been caused due to injuries caused by hard and blunt 'substance, Narayan Ganjhu cannot be convicted under section 302 IPC. To fortify his contentions, Mr. Jitendra S. Singh, the learned counsel has relied on the judgments in; (i) "Mohinder Singh v. State" reported in AIR 1953 SC 415 and (ii) “Thaman Kumar v. State (UT of Chandigarh) reported in (2003) 6 SCC 380 . 11. Mr. Rohan Mazumdar, the learned counsel appearing for Gopal Mahto has submitted that no one has identified Gopal Mahto and the appellant has been convicted on the basis of extra-judicial confession of the co-accused which was not voluntary and by- itself cannot be the basis for conviction. The learned counsel has further submitted that testimony of PW-4, PW-5 and PW-6 who have spoken about motive suffers from serious inconsistencies and Gopal Mahto has been convicted only on suspicion. 12. PW-2 and PW-6 are intimately related to the deceased and PW-3, PW-4 and PW-5 were residing with them in Ashram. The evidence of a related or interested witness cannot be discarded merely because the witness may be interested or inimically disposed towards the accused but, as observed by the Hon'ble Supreme Court in “Raju v. State of T.N." reported in (2012) 12 SCC 701 his testimony must be scrutinized with care and caution and only when it is found that his evidence is clear, cogent and credible and there is no reason to discard his evidence, the Court can safely act on testimony of a related witness. We shall also keep In mind the standard of scrutiny that has been indicated by the Hon'ble Supreme Court in (Ramanand Yadav Vs. Prabhu Nath Jha and Others" reported in (2003) 12 SCC 606, wherein it has been observed that the Court has a duty to analyse the evidence of an interested witness with deeper scrutiny and then come to a conclusion as to whether it has a ring of truth. 13. The registration of First Information Report has generated considerable controversy in this case. 13. The registration of First Information Report has generated considerable controversy in this case. According to the prosecution, a written report was given by PW-6 in the police station at about 5.40 AM on 09.03.2008 and on that basis Keredari P.S Case No.14 of 2008 was lodged against the accused persons under section 302/120-B IPC. In the written report, the time of occurrence is stated at about 12.30 AM and it is written that Narayan Ganjhu, the accused, is handed over to the police. PW-2 and PW-3 have deposed in the Court that they reached the police station at about 4.00 AM and Narayan Ganjhu was given in custody of the police and PW-4 and PW-5 have also stated that Narayan Ganjhu was handed over to police at the police station. So this is consistent case of the prosecution that the accused was handed over to police at police station, but there is wide gap in the statement of the informant and other witnesses as to time when the accused was handed over to police. In cross-examination, the informant has stated that Narayan Ganjhu was handed over to police at 01.15 AM. He has further stated that he had given written report, which was written by Awadh Mahto, in the police station at 6.00 AM on 09.03.2008 but before that he had already given his statement at 1.00 AM in the night when Narayan Ganjhu was handed over to police. At that time, PW-2, PW-3, PW-4, PW-5 and Inderjeet Mahto were with him, police had made enquiries from them and his statement given to police at that time was recorded. His aforesaid statements in paragraph nos.15 and 16 are in tune with his further statement in paragraph no.34 wherein he has stated that he stayed at the place of occurrence for about 10-15 minutes and thereafter straightway he had gone to police station; according to the prosecution the incident has taken place at 12.30 midnight. Normally, this 3 hours' period would not have made much difference, but for the fact that the entire prosecution story appears artificial. That is so because we find inconsistencies everywhere in the testimony of the prosecution witnesses. PW-2 has stated in her cross-examination that her statement was recorded by the police at 4.00 AM on 09.03.2008 and she had put her signature on the statement. That is so because we find inconsistencies everywhere in the testimony of the prosecution witnesses. PW-2 has stated in her cross-examination that her statement was recorded by the police at 4.00 AM on 09.03.2008 and she had put her signature on the statement. At that time, PW-4, PW-6 and her mother were also present there. She has stated that distance between Keredari and the place where Ashram building was constructed was about 2-1/2 kilometers and in paragraph no.13 of her cross-examination, she has stated that distance between the place of occurrence and police station is about a half kilometer. PW -4 has stated that he came back to the place of occurrence with police at about 7.45 AM and PW-5 has stated that PW-6 had given information about the occurrence to the police through his mobile phone and police had arrived at the place of occurrence at about 5.00, a.m. 14. In the cross-examination, more discrepancies have surfaced in testimony of the prosecution witnesses which also make the prosecution story doubtful. PW-2 has stated that the distance between - Barkaam and the place of occurrence was about one kilometer and one can reach there in 5-10 minutes. She has stated that she received a phone call from her brother about missing of their father at 11.30 p.m. but did not inform the police. She has further stated that police station was at a distance of about half kilometer from the place of occurrence. PW-3 has stated that the distance between Ashram and Barkaam was about 2 kilometers; proceeded from Ashram at about 10 PM and; within half an hour PW -2 along with others reached Barkaam. He has further stated that the forest is adjacent to Ashram. PW-4 has stated that the police station is at a distance of 2-1/2 kilometers from the forest and on hearing cries of Balkisun Sao they had gone about l-1/2 kilometers inside the forest and found the accused persons assaulting him. PW-5 has stated that at about 10.30 p.m., PW 2, who had received information from her brother, had informed him about missing of her father. PW-5 has stated that at about 10.30 p.m., PW 2, who had received information from her brother, had informed him about missing of her father. PW-6 has stated that there are few houses (5-7 houses) at a distance of about 30-40 feet from the building in which his father was staying in the night and the place where he was assaulted by the accused persons was at a distance of about 1-1/2 kilometers on south. This also has to be kept in mind that the prosecution witnesses were carrying mobile phone but none has informed police about the occurrence. 15. These discrepancies and inconsistencies in testimony of the prosecution witnesses which may appear minor in the first instance have assumed considerable significance in this case, because the investigating officer was not examined during the trial. In every case, non-examination of the investigating officer may not ipso facto cause prejudice to the accused and as observed by the Hon'ble Supreme Court in "Behari Prasad v. State of Bihar" reported in (1996) 2 SCC 317 , a cause of prejudice likely to be suffered by an accused must depend on the facts of the case and no universal straight-jacket formula should be laid down that non-examination of the investigating officer per se vitiates criminal crime, but then, in a case in which the place of occurrence, the manner of occurrence and participation of the accused in the crime are seriously challenged by the defence, if the investigating officer is not produced during the trial the accused would be seriously prejudiced, inasmuch as, the statement of the prosecution witnesses cannot be tested with reference to their previous statements and objective findings of the investigating officer. In the present case, examination of the investigating officer was necessary also for the reason that the prosecution witnesses have stated that in the evening of 09.03.2008 police had visited Ashram and the informant has also admitted that police came to Ashram at 5.00 PM on 09.03.2008 and recorded statement of several persons including his mother and Inderjeet Mahto, but those witnesses were not produced during the trial. The defence set-up by the accused has also remained unverified. Naraan Ganjhu has taken a specific stand that he was caught by the prosecution witnesses in Keredari market and falsely implicated in this case. The defence set-up by the accused has also remained unverified. Naraan Ganjhu has taken a specific stand that he was caught by the prosecution witnesses in Keredari market and falsely implicated in this case. During her cross-examination, PW-2 has admitted that the market is laid at Keredari, however, she has denied the suggestion that Narayan Ganjhu was caught at Keredari market and falsely implicated in this case. PW-5 has also denied such a suggestion by the prosecution. 16. In "Nallabothu Venkaiah v. State of A.P.” reported in (2002) 7 SCC 117 , it has been observed that the evidence of an interested witness should be examined in the light of the medical evidence and other surrounding circumstances. When we turn to medical evidence, we find there also serious discrepancy between the medical evidence and the ocular evidence and the prosecution has failed to explain variance between the both. 17. PW-l, Dr. Sayyad Noor Mohammad, who has conducted the post-mortem examination at 12.35 PM on 09.03.2008, has found the following injuries on Balkisun Sao: Ante-mortem Injury : (I) Abrasion on chest 4”x2” (II) incised wound on chin 3”x1”x bone deep (III) incised wound on left mandible near chin 1”x 1/4"x bone deep (IV) incised wound on occipital region right side 4”x1”x bone deep. 18. PW-l has found fracture of sternum bone, second to sixth left rib and all ribs on the right side. He has also observed that lungs, heart and liver were ruptured and blood was clotted in the chest cavity. In his estimation, the time elapsed since death was within 6 hours to 36 hours and the injury nos.2, 3 and 4 were caused by sharp-cutting weapon. The prosecution witnesses have stated that Narayan Ganjhu gave knife blow on the neck of Balkisun Sao and PW-5 has stated that other miscreants were assaulting him with stone. The fracture of ribs and rupture heart, lungs and liver may be caused by stone blow, but incised wound of the size of "3 inches x 1 inches" and "4 inches x 1 inch" cannot be said to be caused by a knife, particularly, when the knife was not produced during the trial. The fracture of ribs and rupture heart, lungs and liver may be caused by stone blow, but incised wound of the size of "3 inches x 1 inches" and "4 inches x 1 inch" cannot be said to be caused by a knife, particularly, when the knife was not produced during the trial. From the post-mortem report it can also be seen that injury nos.2, 3 and 4 were caused from the front whereas, PW-5 and PW-6 have stated that Narayan Ganjhu gave knife blow on Balkisun Sao on the back of his neck. In her cross-examination, PW-2 has stated that she cannot say whether blood was on the body of Narayan Ganjhu and any article was seized from the place of occurrence. PW-3 has however stated that blood was spilled at the place of occurrence. PW-4 and PW-5 have not stated anything about blood found at the place of occurrence but PW-6 has stated that he had seen his father drenched in blood, injury on all sides or his neck and blood spilled on the place of occurrence. There would be profuse bleeding if a person has suffered several injuries on the neck and in our opinion the stray statement of the doctor in paragraph no.3 of the cross-examination that lot of blood may not have oozed from the external injuries caused to Balkisun Sao is not the correct observation. It is also an admitted position that from the place of occurrence a knife or any or any weapon of assault was not recovered and as rightly contended by Mr. Jitendra S. Singh, the learned counsel, that had Narayan Ganjhu was apprehended just after a chase of 15-20 meters a knife should have been found in his possession or recovered near the place of occurrence. It is an admitted position that all the prosecution witnesses have deposed in the Court that no incriminating article was seized from the place of occurrence and none of them has stated that blood mark was found on the clothes or person of Narayan Ganjhu. On such facts, a serious doubt would therefore arise on the manner of occurrence as spoken by the prosecution witnesses. 19. The prosecution has based the case against the appellants on arrest of Narayan Ganjhu near the place of occurrence and his confession before the prosecution witnesses, as also motive and medical evidence. 20. On such facts, a serious doubt would therefore arise on the manner of occurrence as spoken by the prosecution witnesses. 19. The prosecution has based the case against the appellants on arrest of Narayan Ganjhu near the place of occurrence and his confession before the prosecution witnesses, as also motive and medical evidence. 20. An extra-judicial confession is a weak piece of evidence but if voluntarily made and fully consistent with the other evidence it can establish the guilt or the accused, however, the extra-judicial confession cannot be the sole basis for conviction of an accused. If the extra-judicial confession is surrounded by suspicious circumstances its credibility is substantially eroded and consequently it loses it importance. In Maghar Singh v. State of Punjab) reported in (1975) 4 SCC 234 , the Hon'ble Supreme Court has observed that if the Court believes the witnesses before whom the confession is made and it is satisfied that the confession was voluntary, then in such a case conviction can be founded on such evidence alone. 21. The extra-judicial confession of Narayan Ganjhu was the basis for conviction of Gopal Mahto and therefore a question at once arises, m what manner and how far confession of an accused can be used against a co-accused? Section 30 of the Evidence Act provides that when more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. In Haricharan Kurmi Vs. State of Bihar reported in AIR 1964 SC 1184 , the Hon'ble Supreme Court has held that if a statement by an accused person is found to be voluntary and it amounts to a confession in the sense that it implicates the maker, it is not likely that the maker would implicate himself untruly, and so section 30 provides that such a confession may be taken into consideration even against a co-accused, however, the proper approach to adopt would be to consider the other evidence against the co-accused and if such evidence may sustain the charge framed against him the Court may turn to the confession with a view to lend assurance to the tentative opinion formed by it. 22. 22. The extra-judicial confession of Narayan Ganjhu was not voluntary, inas-much as, the prosecution witnesses have stated in the Court that when they gave 4-5 blows to him he disclosed name of other miscreants. PW-2 has stated in her cross-examination that Narayan Ganjhu was caught after a chase and her brother gave him 2-4 blows. PW-3, PW-5 and PW-6 have also stated that Narayan Ganjhu was asked sternly and when assaulted disclosed name of other miscreants. Another feature of the alleged extra-judicial confession of Narayan Ganjhu is that different witnesses have given different version of his confession. Two of the witnesses have stated that Narayan Ganjhu disclosed before them that Yadav Ganjhu served drinks to them and at his instance they have killed Balkisun Sao, PW-4 has stated that Narayan Ganjhu told them that Prem Sahu and Gopal Mahto had asked Yadav Ganjhu to kill Balkisun Sao and PW-5 has stated that Narayan Ganjhu had said that Prem Sahu and Gopal Mahto had asked them to kill Balkisun Sao. And, PW -6 has stated that Narayan Ganjhu disclosed that Prem Sao and Gopal Mahto served drinks to them and asked to kill Balkisun Sao (ye karya karne ka kaha). It further transpires from testimony of the prosecution witnesses that the extra-judicial confession of Narayan Ganjhu contains only two sentences. Though it is not necessary that an accused must give a detailed narration of the entire incident but, in our opinion, the extra-judicial confession of an accused must contain the basic details or the incident. 23. For the aforesaid reasons, we hold that the extra-judicial confession of Narayan Ganjhu cannot be acted upon and it must be excluded from consideration. 24. Another important feature of the case is identification of Gopal Mahto by the prosecution witnesses for the first time in the Court. PW-2, PW-3, PW-4, PW-5 and PW-6 have deposed in the Court that it was a 'moon-lit night and PW-2, PW-4 PW-5 and PW-6 have stated that they were carrying a torch. They have claimed that they have seen the accused persons in torch light. PW-3 and PW-4 have stated in examination-in-chief that Narayan Ganjhu told them name of other persons and they have also admitted that they were not knowing the accused persons. PW-4 has admitted that he did not tell the police that he can identify the accused persons. They have claimed that they have seen the accused persons in torch light. PW-3 and PW-4 have stated in examination-in-chief that Narayan Ganjhu told them name of other persons and they have also admitted that they were not knowing the accused persons. PW-4 has admitted that he did not tell the police that he can identify the accused persons. Further, all the prosecution witnesses have claimed that they have seen the accused persons fleeing away from the place of occurrence and none of them has claimed that the accused persons were known to them. The identification of an accused by a witness for the first time in the Court is substantive evidence and identification of the accused in Test Identification Parade lends assurance that his subsequent identification in the Court during trial can be safely relied upon, and as a general proposition failure to hold Test Identification Parade would not be fatal for the prosecution, however, in a case like the present one in which the prosecution witnesses have admitted in the Court that the appellants were unknown to them; they had only a fleeting glimpse of the accused persons and; atleast Gopal Mahto was known to them but no one has claimed that he was also among the accused persons and, that too, when it was a moon-lit night and some of them were carrying torch, in our opinion, in absence of identification of Gopal Mahto in Test Identification Parade he cannot be convicted on the basis of his identification by the prosecution witnesses for the first time in the dock. 25. According to the prosecution, motive behind the occurrence was construction of Ashram building at, Barkaam. PW-4 has stated that Prem Sahu and Gopal Mahto had threatened that they would make them leave the place. They were claiming that the land donated by PW - 5 belong to them. In his examination-in-chief, PW-5 has stated that he had donated land to PW-2 for construction of Ashram but Prem Sahu and Gopal Mahto had declared that they would not permit construction of the temple and about eight days prior to the occurrence they had threatened that they would not spare any one. PW-6 has however given a different version of the dispute. He has stated that Prem Sao has land adjacent to Ashram and he was claiming that they were encroaching upon his land. PW-6 has however given a different version of the dispute. He has stated that Prem Sao has land adjacent to Ashram and he was claiming that they were encroaching upon his land. He was pressing for measurement else consequences would follow (thik nahi hoga, bata denge khatm kar denge). He has further stated that there was land dispute between Gopal Mahto and Ramdhani Mahto and Gopal Mahto was claiming that the well was situated over his land and does not fall inside the land donated by Ramdhani Mahto over which building was being constructed, These witnesses have claimed that there are documents pertaining to transfer of land III favour of PW-2, however, PW-5 and PW-6 have admitted in their cross-examination that no document was produced before the investigating officer. The construction of Ashram building had commenced about 18 months before the occurrence and therefore it is unlikely that the alleged dispute between PW-5 and his brother and dispute with Prem Sao were the reason for the occurrence rather it seems that it was the reason for their false implication in this case. None of the witnesses has imputed any motive to Narayan Ganjhu and in his cross-examination PW-2 has admitted that he had no dispute with Ashram nor had he any dispute with her family. On such facts, it cannot be said that the prosecution has proved motive for the crime. 26. In the above slate of affairs, we have no hesitation to hold that the prosecution has failed to establish the place of occurrence, the manner of occurrence and participation of the appellants in the crime and, accordingly, their conviction in S.T. No. 389 of 2008 for committing murder of Balkisun Sao is held unsustainable. 27. Accordingly, the judgment of conviction and the order of sentence, both dated 19.02.2018 of R.I for life with fine of Rs.30,000/- under section 302 IPC passed against the appellant, namely, Narayan Ganjhu and R.I for life and fine of Rs.30,000/- under section 302 IPC read with section 120-IPC passed against the appellant, namely, Gopal Mahto by the learned Additional Sessions Judge-IX-cum-F.T.C, Hazaribag in S.T. No. 389 of 2008 are set-aside. 28. Mr. Abhay Kumar Tiwari, the learned A.P.P states that the appellant, namely, Narayan Ganjhu is in jail and the appellant, namely, Gopal Mahto is on bail. 29. 28. Mr. Abhay Kumar Tiwari, the learned A.P.P states that the appellant, namely, Narayan Ganjhu is in jail and the appellant, namely, Gopal Mahto is on bail. 29. Therefore, the appellant, namely, Narayan Ganjhu in Criminal Appeal (DB) No. 615 of 2018, who is in custody, shall be released forthwith, if not wanted ill connection to any other case and the appellant, namely, Gopal Mahto in Criminal Appeal (DB) No. 396 of 2018, who is on bail, stands discharged of the liability of bail-bonds furnished by him. 30. In the result, Criminal Appeal (DB) No. 615 of 2018 and Criminal Appeal (DB) No. 396 of 2018 are allowed. 31. Let the lower Court records be sent to the Court concerned forthwith. 32. Let a copy of the judgment be transmitted to the Court concerned and concerned and Superintendent through FAX. Appeal allowed.