JUDGMENT : Shree Chandrashekhar, J. On 28th December, 2010 at about 03:00 PM the fardbeyan of Mohan Mahto was recorded near river Kari by S.K. Suman, Officer Incharge of Bhagabandh Outpost within Putki PS. An information along with the fardbeyan of Mohan Mahto was sent to Putki PS at 08:00 PM and on that basis Putki (Bhagabandh) PS Case No. 115 of 2010 was lodged against Umesh Kumar Mahto and Puspa Devi for committing murder of their son Ajay Kumar Mahto - Puspa Devi is the step mother. In his fardbeyan, Mohan Mahto has stated that at about 01:00 PM Bablu Mahto informed him that Ajay Kumar Mahto was murdered and his dead body was concealed at cremation ground near river Kari - Ajay Kumar Mahto was son of his daughter. Upon receiving this information he had gone to the house of his son-in-law who was not there at that time and his grand children told him that on 26.12.2010 Ajay Kumar Mahto was strangulated by their father and step mother with a cloth. The informant has further stated that Umesh Kumar Mahto threatened his younger son not to disclose the incident to anyone and on 27.12.2010, early morning at 03:00 AM, buried the dead body of his son in the cremation ground. The informant has seen that head and feet of the dead body of his grandson were out of the ground and expressed his apprehension that his son-in-law and Puspa Devi had killed Ajay Kumar. Mahto because Umesh Kumar Mahto was suspecting illicit relationship of his son with Puspa Devi, his fourth wife. In course of investigation statement of Vijay Kumar Mahto, younger son of Umesh Kumar Mahto, was recorded but no information IS available on record about N andini Kumari the sister of the deceased who was aged about 9 years at the time of the occurrence. The statement of Vijay Kumar Mahto was recorded also under section 164 of the Code of Criminal Procedure (hereinafter referred to as CrPC). PW2 and PW4 are distantly related to PW3, the informant. PW6 was Officer Incharge of Bhagabandh OP, PW9 is the Circle Officer who has conducted the inquest proceedings and PW8 is the Judicial Magistrate who has recorded statement of Vijay Kumar Mahto under section 164 CrPC on 15.01.2011. 2. Dr. PW2 and PW4 are distantly related to PW3, the informant. PW6 was Officer Incharge of Bhagabandh OP, PW9 is the Circle Officer who has conducted the inquest proceedings and PW8 is the Judicial Magistrate who has recorded statement of Vijay Kumar Mahto under section 164 CrPC on 15.01.2011. 2. Dr. Shailendra Kumar who has conducted the postmortem examination on 29.12.2010 at PMCH, Dhanbad around 12:30 PM found one ligature mark on front of the neck 1 ¼ inch wide, below the vocal cord. The ligature mark which surrounded the neck completely and horizontally had become hard, dark brown leathery and like parchment. On dissection ecchymosis was seen underneath the ligature mark all over front of the neck on both sides. In the opinion of the doctor death was caused due to asphyxia resulting from strangulation and time elapsed since death was 48 hours [(+)(-) 12 hours]. On completion of the investigation a chargesheet was filed against the accused and both have faced the trial on the charge under sections 302/201/34 of the Indian Penal Code. 3. The learned Sessions Judge, Dhanbad has held that In his statement under section 164 CrPC which was recorded within one month of the Occurrence Vijay Kumar Mahto has given a similar narration of the Occurrence as he deposed in the Court and therefore chance of his tendering tutored evidence on the ground that he had remained under influence of his maternal grandfather was not probable. His evidence that his parents strangulated his brother to death was corroborated by the medical evidence and therefore on the ground of non-production of the seized articles such as motorcycle, bedsheet and hoe (Kudal) the prosecution story cannot be disbelieved. The learned trial Judge has ventured to consider character of the witnesses and conduct of the accused who according to the prosecution did not inform the police about missing of his son. In paragraph no. 28 of the judgment in Sessions Trial No. 273 of 2011, the learned Sessions Judge has held that the accused intended to kill Ajay Kumar Mahto and their criminal act was not covered by any exception in section 300 of the Indian Penal Code. The learned Sessions Judge has held as under: “(28. In this case) prosecution evidence is that murder of Ajya Mahto was committed by both the accused persons inside their house. The learned Sessions Judge has held as under: “(28. In this case) prosecution evidence is that murder of Ajya Mahto was committed by both the accused persons inside their house. Section 34 IPC envisaged when a criminal act is done by several persons in furtherance of the common intention of all each of such persons is liable for that act in the same manner as if it were done by him alone. Underlying principle of section 34 is that if two or more persons intentionally do an act jointly) the position in law is just the same as if each of them has done it individually by himself or herself. It is not necessary that act of several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character but must have been actuated by one and the same common intention in order to attract the provision of section 34, which has been enacted on the principle of joint liability in the doing of a criminal act. Section 34 is only rule of evidence and does not create a substantive offence. Intention is always gathered from the surrounding circumstances. To strangulate neck of a person is suggestive that accused had intention to kill the deceased. There is prosecution evidence that neck of Ajay Mahto was strangulated and this ocular version also find support from medical evidence. Therefore, act of both the accused persons come within ambit of murder and does not come in any exception of section 300 IPC. 29. In this case, there is consistency in ocular version and medical evidence. Previous and subsequent conduct of both the accused persons is deplorable. Recovery of bed sheet used for strangulation, kudal used for digging the graveyard and motorcycle for carrying the dead body, was made from the house of the accused persons. Though confessional statement of Umesh Mahto is not admissible in evidence but when fact is discovered in consequences of the information received from the accused of offence in custody of police officer such part of the information can be proved. In this case, recovery of case property have been proved. 30. In view of discussion, this court comes to conclusion that prosecution has succeeded to explain delay in FIR, previous and subsequent conduct of the accused persons. In this case, recovery of case property have been proved. 30. In view of discussion, this court comes to conclusion that prosecution has succeeded to explain delay in FIR, previous and subsequent conduct of the accused persons. Recovery of incriminating articles from their house has also been proved. Therefore, prosecution proved its case against both the accused persons by adducing reliable, cogent, clinching and consistent evidence against both the accused persons. In the light of decision of the Hon'ble Apex Court (supra) both the accused persons are not entitled for benefit of doubt. Therefore, I hold both the accused persons guilty for offence u/s 302/201/34 IPC for causing death of Ajay Mahto in their home on 26.12.10 and concealing his dead body in cremation ground at the bank of Kari rivir within jurisdiction of P. S.Putki. 4. According to the prosecution, Vijay Kumar Mahto saw the appellants committing murder of his brother. There seems two eyewitnesses in the case but Nandini Kumari, younger daughter of the victim, was not produced during the trial. She was aged about 9 years at the time of the occurrence and keeping in mind that age of a witness may be relevant but not a ground to discard her testimony, non-examination of Nandini Kumari may affect the prosecution case. However, if the prosecution produces cogent and consistent evidence and Vijay Kumar Mahto is found a reliable and trustworthy witness merely on the ground that Nandini Kumari was not examined during the trial the prosecution story about the appellants committing murder of their son cannot be disbelieved. What would be the effect of non-examination of Nandini Kumari on the prosecution case can therefore be examined after scrutinizing other evidences laid during the trial. 5. In “Sawal Das v. State of Bihar” (1974) 4 SCC 193 the Hon'ble Supreme Court has observed as under: 13. What would be the effect of non-examination of Nandini Kumari on the prosecution case can therefore be examined after scrutinizing other evidences laid during the trial. 5. In “Sawal Das v. State of Bihar” (1974) 4 SCC 193 the Hon'ble Supreme Court has observed as under: 13. Even if, as the trial court and the High Court had correctly held, there is admissible and credible evidence of five witnesses, Ganesh Prasad, PW 1, Nand Kishore, PW 2, Radhey Shyam Sharma, PW 9, Laxmi Narain, PW 16, and Basdeo Prasad, PW 27, who are said to have heard or watched from outside, from varying distances, of what was going on in the verandah no eyewitness was produced who could prove what actually took place inside the room where the murder was committed……..But, there is no explanation even attempted to show why the maid servant, Geeta Kurmini, who, according to the prosecution case, was also in the verandah at the time of the occurrence, was not produced at the trial although her statement was recorded under Section 164, Criminal Procedure Code and was brought on the record (Ex.12). This statement could only be used as evidence to corroborate or contradict Geeta Kurmini if she had appeared as a witness at the trial. The appellant could therefore, quite reasonably ask the Court to give him the benefit of the optional presumption under Section 114 Illustration (g) of the Evidence Act and to infer that, if she had been produced, it would have damaged the prosecution case against the appellant. Her statement, if it had been there as evidence in the case, may very well have shown that it was Jamuna who was taking the leading part in bringing about the death of Smt Chanda Devi. There is some evidence in the case as to the kind of man Jamuna was. It shows that he was not a naturally kind or gentle or amiable individual liked by people. The normal inhibitions of a father-in-law with regard to his daughter-in-law, which learned Counsel for the State emphasized so much may not really be there at all in this case. Indeed, we think that, in the circumstances of the case, Geeta Kurmini, the maid servant, was a witness essential to the unfolding of the prosecution case. 6. The normal inhibitions of a father-in-law with regard to his daughter-in-law, which learned Counsel for the State emphasized so much may not really be there at all in this case. Indeed, we think that, in the circumstances of the case, Geeta Kurmini, the maid servant, was a witness essential to the unfolding of the prosecution case. 6. There is no prohibition in law in convicting the accused on the basis of testimony of a solitary eyewitness provided his evidence inspires confidence of the Court - as a general rule the Court may act on the testimony of a single eyewitness. Section 134 of the Evidence Act provides that no particular number of witnesses is required in any case for the proof of a fact. The import of section 134 of the Evidence Act is that the Court may act on the testimony of a single witness provided he is wholly reliable. 7. Strictly speaking, at the time of the occurrence Vijay Kumar Mahto was a child. From his testimony we gather that before his evidence was recorded in the Court the learned trial Judge did not assess his maturity. The reason seems to be that at that time he was aged about 15 years. 8. The prosecution case is that around 03:00 PM on 26.12.2010 the appellants strangulated Ajay Kumar Mahto to death in their house and the dead body was concealed there for about 12 hours. Early morning, on 27.12.2010, Umesh Kumar Mahto forced his younger son to help him causing disappearance of the dead body and on 28.12.2010 someone has seen a part of the dead body of Ajay Kumar Mahto visible in the cremation ground near river Kari. Who has first seen dead body of Ajay Kumar Mahto is not known and who is the woman who informed PW4 about murder of Ajay Kumar Mahto was not revealed by him. The defence case is that Ajay Kumar Mahto was missing since 26. 12.2010 and he left home stealing Rs. 500/ -. The prosecution has tried to demonstrate that to mislead the villagers Umesh Kumar Mahto had spread a false information that his elder son had fled away, but no villager has come forward to support the prosecution on this point. 9. The testimony of PW 1 has been challenged by the defence on the ground of his unnatural conduct. 500/ -. The prosecution has tried to demonstrate that to mislead the villagers Umesh Kumar Mahto had spread a false information that his elder son had fled away, but no villager has come forward to support the prosecution on this point. 9. The testimony of PW 1 has been challenged by the defence on the ground of his unnatural conduct. He is younger brother of the victim who remained at home and for three days did not disclose the incident to any other person. His maternal grandfather was living nearby, his maternal uncle had a shop just about 50 feet away and there was a temple which was thronged by local people playing cards there. Conduct of a witness per se is not a ground to discard his testimony but we are required to examine whether there is any satisfactory explanation for his unusual conduct. PW 1 has deposed in the Court that his father had threatened him and we would assume that he was afraid, but then, if that is so how he could gather courage to inform his maternal grandfather about the occurrence is difficult to see. 10. In “Maruti Rama Naik v. State of Maharashtra” (2003) 10 SCC 670 a witness, who was a close relative of deceased Krishna Mahada Naik, was going to the bus-stand to board a bus to reach his factory where he was working. On the way he saw the assault on the Krishna Mahada Naik by the assailants including the appellants. But having noticed the incident, he did not go to anyone of his relatives or the police to inform about the attack in question. He went to the factory, worked there for a while and thereafter gone home. The Hon'ble Supreme Court has observed that the Court would be hesitant to place any reliance on his evidence. 11. From cross-examination of PW1, PW3 and PW4 it is quite apparent that the defence has challenged truthfulness of PW 1 on the ground that he was under influence of his maternal grandfather, and the witnesses have levelled various allegations against Umesh Kumar Mahto which were not supported by other independent evidence. In a sessions trial, where the prosecution witnesses have tendered unsubstantiated allegations and the defence has challenged their testimony on the ground of animosity, the learned Judge in charge of the sessions trial must remain alert at all times. 12. In a sessions trial, where the prosecution witnesses have tendered unsubstantiated allegations and the defence has challenged their testimony on the ground of animosity, the learned Judge in charge of the sessions trial must remain alert at all times. 12. The evidence of PW1 is not free from doubt. His statements in the cross-examination provide a solid background for the defence that there was probability of a tutored evidence tendered by him. His admission in the cross-examination that he would ask his father not to marry again gives a hint about his dislike for his father. He had lost his mother and according to his maternal grandfather she was burnt to death by his father. Naturally he would not have such affection for his father as a loving son may demonstrate. There is evidence on record which indicates that the probability of his living with his maternal grandfather cannot be ruled out. These circumstances indicate a reason for him to give a tutored false evidence against his father. It is also surprising that he has not stated anything about the affairs of house, if he was staying with his father. And, he has not made any allegation of harassment, torture or beating at the hands of his step mother. His statements in the cross-examination which have no foundation or corroboration by other materials create further doubt on his testimony. 13. The fardbeyan of PW3 was based on the information given to him by PW1 and PW4. However, in the fardbeyan and when he deposed in the Court, PW3 has not stated about beating of his grand children at the hands of his son -in -law whereas PW 1 has made specific allegations against his father that he used to beat his brother. In the First Information Report there is an allegation that the appellants strangulated Ajay Kumar Mahto with cloth but there is no reference of a bedsheet used by them for strangulation. Apparently, when a rope or a cloth which would have fit in the story given by the informant was not found in the house of the accused story of a bedsheet used for strangulation was floated. Apparently, when a rope or a cloth which would have fit in the story given by the informant was not found in the house of the accused story of a bedsheet used for strangulation was floated. The dimension of the bedsheet has been given by PW 1 in his evidence and by any stretch of imagination it cannot be held that a bedsheet of the size 5 feet x 3 feet would cause strangulation mark of 1 Y4 inches. 14. PW5, Dr. Shailendra Kumar though has stated in his evidence that ligature mark found on Ajay Kumar Mahto can be caused by a bedsheet but his opinion shall be in the realm of conjunctures because the bedsheet allegedly used in the crime was not shown to him. The evidence of a medical man is his opinion and it is not conclusive or atleast cannot be the sole basis for conviction. 15. In “Madan Gopal Kakkad v. Naval Dubey” (1992) 3 SCC 204 the Hon'ble Supreme Court has held as under: “34. A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the Court.” 16. There may appear doubt on involvement of Umesh Kumar Mahto in murder of his son, but once evidence of PW1 is excluded what remains on record is doubt only. The basis of Suspicion was delay on his part to inform the police about missing of his son, but when there is clear doubt whether Ajay Kumar Mahto was living with his father no adverse inference on the conduct of Umesh Kumar Mahto can be drawn. The basis of Suspicion was delay on his part to inform the police about missing of his son, but when there is clear doubt whether Ajay Kumar Mahto was living with his father no adverse inference on the conduct of Umesh Kumar Mahto can be drawn. On the other hand, he has taken a position that on 28.12.2010 he had gone to the police station to lodge a report of missing of his son and under the influence of his brother-in-law he was arrested there. According to the prosecution Umesh Kumar Mahto was arrested from his house and he suffered a disclosure statement in the same evening but there is no conclusive evidence on this point, rather in the cross-examination of PW3 a specific question was put to the witness about arrest of Umesh Kumar Mahto at the police station. We further find that the disclosure statement of Umesh Kumar Mahto is not in tune with the prosecution story inasmuch as no witness has spoken about illicit relationship of Ajay Kumar Mahto who was aged about 16 years old with his step mother. The story of Puspa Devi pressurising Umesh Kumar Mahto to change nominee in his service record would also not be a reason to kill him, for on his death name of Puspa Devi would not automatically be recorded as nominee of Umesh Kumar Mahto. It seems that the prosecution has not disclosed true facts and there is no witness who has seen murder of Ajay Kumar Mahto. Any recovery was made at the instance of the accused has not been proved, still, the learned trial Judge has placed reliance on the recovery evidence. We further find that the learned trial Judge has committed serious error in law in holding that Puspa Devi was liable for murder on the principle of joint criminal liability. The learned trial Judge has recorded laxity on the part of the investigating officer and we also find that there are missing materials, which could have been collected during the investigation, to connect the appellants with the crime. 17. In "Sujit Biswas v. State of Assam” (2013) 12 SCC 406 the Hon'ble Supreme Court has held as under: "13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be" proved, and something that "will be proved". 17. In "Sujit Biswas v. State of Assam” (2013) 12 SCC 406 the Hon'ble Supreme Court has held as under: "13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be" proved, and something that "will be proved". In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "may be" and "must be" is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof The large distance between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be" true and “must be" true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense.” 18. In the final analysis, we find that Vijay Kumar Mahto is not a reliable witness and the motive projected by the prosecution for murder of Ajay Kumar Mahto was not proved. The prosecution evidence is so discrepant and inconsistent that it would be improper to place reliance to convict the appellants. 19. For the aforesaid reasons, we find that there is substantial doubt on complicity of the appellants in the crime. The prosecution has failed to establish charges against them and, therefore, their conviction under section 302/34 IPC and section 201 IPC is held unsustainable. 20. 19. For the aforesaid reasons, we find that there is substantial doubt on complicity of the appellants in the crime. The prosecution has failed to establish charges against them and, therefore, their conviction under section 302/34 IPC and section 201 IPC is held unsustainable. 20. Accordingly, the judgment of conviction and the order of sentence of the appellants, namely, Umesh Kumar Mahto [in Criminal Appeal (D.B) No.762 of 2013] and Puspa Devi [in Criminal Appeal (D.B) No.763 of 2013] of R.I for life and a fine of Rs. 3000/ - each under sections 302/34 of the Indian Penal Code and R.I for two years and a fine of Rs.l 000 / - each under section 201 of the Indian Penal Code, both dated 02.08.2013, passed by the learned Sessions Judge, Dhanbad in Sessions Trial No. 273 of 2011 for causing death of Ajay Kumar Mahto and disappearance of his dead body, are set-aside. 21. Mr. Bhola Nath Ojha, the learned APP states that the appellants above-named, who have served the sentence for more than 13 years and 4 months, with remission, are in custody. 22. Accordingly, the appellant, namely, Umesh Kumar Mahto [in Criminal Appeal (D.B) No.762 of 2013] and the appellant, namely, Puspa Devi [in Criminal Appeal (D.B) No.763 of 2013] who are in custody shall be set-free forthwith, if not wanted in connection to any other criminal case. 23. In the result, Criminal Appeal (D.B) No. 762 of 2013 and Criminal Appeal (D.B) No.763 of 2013 are allowed. 24. Let the lower Court records be sent to the Court concerned forthwith. 25. Let a copy of the judgment be transmitted to the Court concerned and the concerned Jail Superintendent through 'Fax'.