JUDGMENT : Heard Mr. Nagmani Tiwari, learned counsel for the appellant and Mr. Shiv Shankar Kumar, learned A.P.P. for the State. 2. This appeal is directed against the judgment of conviction dated 07.04.2022 and order of sentence dated 08.04.2022 passed by Sri Vijay Kumar No.-III, learned Principal District & Sessions Judge, Seraikella-Kharsawan in Sessions Trial No. 51 of 2015, whereby and whereunder the appellant has been convicted for the offence punishable u/s 302 of the IPC and Section 27 of the Arms Act and has been sentenced to undergo R.I. for life along with a fine of Rs. 5,000/-for the offence u/s 302 of the IPC and in default in payment of fine to further undergo S.I. for six months. He has also been sentenced to undergo R.I. for three years along with a fine of Rs. 2,000/-for the offence u/s 27 of the Arms Act and in default in payment of fine to further undergo S.I. for three months. All the sentences are to run concurrently. 3. The fardbeyan of Narayan Mahato was recorded on 03.11.2014, in which it has been stated that his son Prakash Mahato and his son's friend Gopal Chandra Mahato who both were J.V.M. Workers had left on a motorcycle on 01.11.2014 for Kharsawan to join in a rally organized on the eve of joining of J.M.M by Krishna Gagrai. In the evening, both returned back and on the next day i.e. 02.11.2014 they left for village Sindhukopa to join a meeting regarding construction of a culvert. From there they were to go to the house of Paltan Mahato but they did not return. On 03.11.2014, on an information received from the villagers, he had gone to village Begnadih where he found the dead body of his son and his son's friend lying on the ground and the motorcycle was also found. Based on the aforesaid allegations Seraikella P.S. Case No. 110 of 2014 was instituted against unknown persons for the offence punishable u/s 302/34 of the I.P.C. On completion of investigation charge-sheet was submitted against Sukhdeo Singh Sardar (appellant) and after cognizance was taken the case was committed to the Court of Sessions where it was registered as Sessions Trial No. 51 of 2015. Charge was framed against the accused for the offences u/s 302 of the I.P.C. and Section 27 of the Arms Act which was read over and explained to the accused in Hindi to which he pleaded not guilty and claimed to be tried. 4. The prosecution has examined as many as eight witnesses in support of its case. 5. P.W.1 (Luv Kishore Mahato) and P.W.2 (Sri Ram Mahato) did not support the case of the prosecution and were accordingly declared hostile by the prosecution. 6. P.W.3 (Narayan Mahato) is the informant who has proved his signature in the fardbeyan which has been marked as Exhibit-2. He has deposed that the incident had occurred more than a year back. His son had told him that there is a meeting at Sindhukopa with respect to construction of a culvert and thereafter he was to meet Paltan Mahato and he had left on a motorcycle with Gopal Mahato. After the meeting Prakash Mahato had gone to the house of Paltan Mahato. He has stated that Prakash Mahato and Gopal Mahato did not return even in the night and repeated calls on mobile evoked no response. In the morning it came to light that two dead bodies were lying near Jharidih Nala. On reaching the said place some blood was found as the bodies were already taken away by the Police. He went to the postmortem house to identify the dead bodies of his son Prakash Mahato and Gopal Mahato. In cross-examination, he has deposed that he had not gone through the fardbeyan before putting his signature on the same. He has stated that the information about the bodies was given to him by Janmenjay Mahato. 7. P.W.4 (Malindra Nath Mahato) has identified his signature in the fardbeyan which has been marked as Exhibit-2/1. He has deposed that the incident is of 02.11.2014. On 01.11.2014, his son Gopal Chandra Mahato had gone to Kharsawan. He had called in the evening to inform that he will not return in the night. On 02.11.2014, when his son did not return in the evening he was called on his mobile which was found switched off. The friend of his son Dhananjay Sardar was called on his mobile but he had denied to have accompanied Gopal. He has stated that on 02.11.2014 itself at midnight Police had come to his house and informed him about the occurrence. The friend of his son Dhananjay Sardar was called on his mobile but he had denied to have accompanied Gopal. He has stated that on 02.11.2014 itself at midnight Police had come to his house and informed him about the occurrence. In the morning he had gone to the postmortem house and identified the dead body of his son. He has stated that his nephew Devendra Mahato was murdered in 2013 and in such context Gopal had questioned Sukhdeo Singh Sardar but he did not disclose that Gopal Mahato is aware that the murder of Devendra Mahato was committed by him and this resulted in a friction between the two. He has further stated that Sukhdeo Singh Sardar was apprehensive that Gopal will disclose his involvement in the murder to the Police and as such he had committed the murder of Gopal and Prakash Chandra Mahato. In cross-examination, he has deposed that the Police had on several occasions questioned him. He has reiterated what has been stated by him in the examination-in-chief. He had signed on the fardbeyan of Narayan Mahato after hearing the contents thereof. 8. P.W.5 (Prafullo Mahato) and P.W.6 (Paltan Mahato) did not support the case of the prosecution and accordingly were declared hostile by the prosecution. 9. P.W.7 (Dr. Birendra Kumar Prasad) was posted as a Medical Officer at Sadar Hospital, Seraikella and on 03.11.2014 he had conducted autopsy on the dead body of Prakash Mahato and had found the following: External Findings : i. Head and neck:-One deep penetrating wound on right side of scalp about 3 inch above right ear. Wound is round in shape about ½ inch in diameter margin lacerated and inverted, adjacent hairs shined, surrounding skin scorched and blackened. Tattooing of skin around the wound present. Underline bone fractured. ii. One lacerated wound on left cheek at just below outer canthus of left eye. Size of wound 1 inch x ½ inch x bone deep. Margine lacerated and everted, underline bone fractured. iii. Left eye ruptured. Trunk : i. One deep wound on back about 3 inch left to the vertebral column at level of T-12 and L-1. Margin of wound lacerated and inverted. Shape is round about ½ inch in diameter. ii. One lacerated wound on left side of abdomen about 3 and ½ inch suprolateral to umbilicus at level of T-12 & L-1. Trunk : i. One deep wound on back about 3 inch left to the vertebral column at level of T-12 and L-1. Margin of wound lacerated and inverted. Shape is round about ½ inch in diameter. ii. One lacerated wound on left side of abdomen about 3 and ½ inch suprolateral to umbilicus at level of T-12 & L-1. Abdominal contents protruding out through the wound. Extremities : i. One round lacerated wound of size ½ inch in diameter on lateral side of right upper arm about 4 inch above right elbow. Surrounding skin blackened. ii. One lacerated wound round in shape, ½ inch in diameter on posteromedial side of right upper arm about 3 inch above elbow. Internal finding : i. Fracture right temporal bone of scalp. ii. Fracture left maxillary bone of face. iii. Fracture back of left orbital fossa. iv. Chest – hearth NAD, Lung – NAD, Abdomen – Abdomen cavity filled with blood. Liver – NAD, Spleen NAD, left kidney ruptured. Right kidney NAD, Stomach – semi digested food, intestine – ruptured. The cause of death was opined to be shock, haemorrhage and above mentioned injuries. The weapon used was firearm. On the same day, he had conducted autopsy on the dead body of Gopal Chandra Mahato and had found the following injuries: External Findings : i. One deep penetrating wound on right side of scalp just above helix of right ear, size of wound is about ½ inch in diameter round in shape, margin is lacerated and inverted, adjacent hairs shined, surrounding skin of wound, underline bone fractured. ii. One lacerated wound over occipital area of scalp, size 1 inch x ½ inch x bone deep. Margin of wound lacerated and everted, underline bone fracture. iii. Another lacerated wound on scalp occipital area, size 1.5 inch x 1 inch x bone deep, margin lacerated and averted. iv. One deep penetrating wound on back left side, 4-5 inch away from vertebral column at level of T-11, T-12 overline clothes partially burn with round whole. Shape of wound round in size about half inch in diameter, margin inverted. Adjacent skin slightly blackened, there is tattooing of surround skin. v. One lacerated wound deep penetrating on left side of chest, about 2 and half inch infero medial to left nipple. Wound is round in shape about ½ inch in diameter, margin is everted. Shape of wound round in size about half inch in diameter, margin inverted. Adjacent skin slightly blackened, there is tattooing of surround skin. v. One lacerated wound deep penetrating on left side of chest, about 2 and half inch infero medial to left nipple. Wound is round in shape about ½ inch in diameter, margin is everted. Internal finding : i. Fracture right temporal bone. ii. Fracture occipital bone. iii. Brain matter lacerated. iv. Chest – cavity filled with blood, left lung ruptured, heart ruptured. Abdomen-Liver NAD, Kidney both NAD, Spleen NAD, Stomach and intestine containing semi-digested food materials. The cause of death was opined to be shock, haemorrhage and above mentioned injuries. The weapon used was firearm. Both the postmortem reports have been proved by him which have been marked as Exhibit-3 & 3/1 respectively. 10. P.W.8 (Binod Kumar) was the Officer-in-Charge of Seraikella P.S. and on 02.11.2014 at 08:00 P.M. an information was received that in village Gohira Tola near Jharidih Nala the dead body of two persons who were murdered were lying. After making a station diary entry he along with other Police personnel left for the place of occurrence. On 03.11.2014 at 06:00 A.M. he had recorded the fardbeyan of Narayan Mahato at the place of occurrence itself. He has proved the endorsement on the fardbeyan which is in his handwriting and which bears his signature and which has been marked as Exhibit-2/2. He has proved his signature on the inquest reports which have been marked as Exhibits-4 and 1/1. After sending the dead bodies for autopsy he had taken over the investigation. He had inspected the place of occurrence which falls within the jurisdiction of Seraikella P.S. In the unmetalled road going towards Begnadih the dead body of Gopal Chandra Mahato was found along with a motorcycle and the dead body of Prakash Mahato was also found at a distance. Near the body of Gopal Chandra Mahato an empty cartridge of .315 bore was recovered while near the body of Prakash Mahato one pellet of .315 bore was recovered. Both were seized and a seizure list was prepared. In course of investigation he had recorded the restatement of the informant. He had also recorded the statements of Malindra Nath Mahato, Paltan Mahato, Anil Mahato, Prafulla Mahato, Luv Kishore Mahato, Sri Ram Mahato. The postmortem reports were obtained. Both were seized and a seizure list was prepared. In course of investigation he had recorded the restatement of the informant. He had also recorded the statements of Malindra Nath Mahato, Paltan Mahato, Anil Mahato, Prafulla Mahato, Luv Kishore Mahato, Sri Ram Mahato. The postmortem reports were obtained. He has stated that Sukhdeo Singh Sardar was arrested and his confessional statement recorded in which he had accepted his role of committing the murders. He has proved the confessional statement which has been marked as Exhibit-5. On finding the incident to be true charge-sheet was submitted against Sukhdeo Singh Sardar. He has proved the formal First Information Report which has been marked as Exhibit-6. In cross-examination, he has deposed that there is no mention in the diary as to whether any meeting was held on 02.11.2014 at Sindhukopa for construction of a culvert. He had not seized the blood stained earth from the place of occurrence. He had not seized the motorcycle. The witness Malindra Nath Mahato had not stated before him that Sukhdeo Singh Sardar had committed both the murders since Gopal Mahato had come to know about his involvement in the murder of Devendra Mahato in the year 2013. 11. The statement of the accused was recorded u/s 313 Cr.P.C. in which he has simply denied his involvement in the murder. 12. Mr. Nagmani Tiwari, learned counsel for the appellant has submitted that there are no eye-witnesses to the occurrence and even the circumstantial evidence much harped upon by the learned trial court is absent and in fact there is absolutely no evidence worth the name to bring home the charge against the appellant. He has submitted that P.W.3 and P.W.4 are the fathers of both the deceased and it is P.W.4 who had cast suspicion upon the appellant though as per P.W.8 such suspicion was never disclosed before him by P.W.4 in his statement. 13. Mr. Shiv Shankar Kumar, learned A.P.P. has defended the impugned judgment by relying upon the evidence of P.Ws. 3, 4 and 8. 14. We have heard the rival submissions and have also perused the Lower Court Records. The prosecution has examined eight witnesses, out of whom P.Ws.1, 2, 5 and 6 have been declared hostile by the prosecution. P.W.3 and P.W.4 are the fathers of the deceased Prakash Mahato and Gopal Chandra Mahato respectively while P.Ws. 7 and 8 are the official witnesses. We have heard the rival submissions and have also perused the Lower Court Records. The prosecution has examined eight witnesses, out of whom P.Ws.1, 2, 5 and 6 have been declared hostile by the prosecution. P.W.3 and P.W.4 are the fathers of the deceased Prakash Mahato and Gopal Chandra Mahato respectively while P.Ws. 7 and 8 are the official witnesses. 15. In the fardbeyan the informant has narrated about his son and Gopal Chandra Mahato having gone to attend the rally on 01.11.2014 and both had returned in the evening but on the next day i.e. 02.11.2014 they had again gone on a motorcycle to attend the meeting at village Sindhukopa relating to construction of a culvert and were also to go to the house of Paltan Mahato. Both did not return and on 03.11.2014 their dead bodies were found lying near Jharidih Nala. The informant has been examined as P.W.3 and his evidence seems to be at variance to his version as depicted in the fardbeyan. The name of the appellant does not figure in his evidence as a suspect. However, P.W.4 who is the father of Gopal Chandra Mahato has pointed a needle of suspicion towards the appellant on account of an incident which had taken place in the year 2013 in which his nephew Devendra Mahato was murdered and which led to inimical terms between the appellant and Gopal Chandra Mahato as the appellant was of the firm belief that Gopal would disclose about his involvement in the murder to the Police. The Investigating Officer who has been examined as P.W.8 has categorically stated that no such statement was given by P.W.4 before him. P.W.8 has also stated about the confessional statement of the appellant being recorded by him which has been marked as Exhibit-5. 16. What can be culled out from the evidence of the prosecution is the confessional statement of the appellant before the Police and the purported enmity between the appellant and the deceased Gopal Chandra Mahato. The extra judicial confession was made by the appellant before the Police and has not led to any clinching evidence which could be used against him. Such confession, therefore, has no evidentiary value. So far as the enmity is concerned, P.W.8 has negated the assertion of P.W.4 as no such suspicion against the appellant was rendered before P.W.8 by P.W.4. The extra judicial confession was made by the appellant before the Police and has not led to any clinching evidence which could be used against him. Such confession, therefore, has no evidentiary value. So far as the enmity is concerned, P.W.8 has negated the assertion of P.W.4 as no such suspicion against the appellant was rendered before P.W.8 by P.W.4. Moreover, the evidence of P.W.4 in such context remains uncorroborated and unsubstantiated. 17. In the backdrop of the aforesaid findings when we scrutinized the impugned judgment, we find that the conclusion which has been arrived at is based on the following: “22. The contention of the defence should be scrutinized in the light of the evidence as adduced by the prosecution. It is admitted position that these witnesses i.e. P.W.-1, P.W.-2, P.W.-5 and P.W.-6 have not supported the case of the prosecution but in the instant case, the remaining witnesses have fully supported and corroborated the case of the prosecution and also the doctor who has conducted the postmortem examination over the dead bodies of the deceased, has fully supported the case of the prosecution. So, only on this ground that some of the witnesses have been declared hostile, accused can not acquitted. In spite of that, I further find that P.W.-7 I.O. of the case has also supported the prosecution case by examining the witnesses and also recorded re-statements of the informant and further he inspected the place of occurrence. This witness i.e. P.W.-7 has also made inquest reports which were marked as Ext.4 and 1/1 respectively and further, he also recorded the confessional statement of the present accused, in which the accused himself has confessed his guilt in alleged commission of murder and after that, he found the case to be true against him. During cross-examination by the defence, nothing has come to disbelieve the evidence of I.O. as well as evidence of P.W.-3 and P.W.-4 who are fathers of the deceased. In this way, this contention of the defence that some of the witnesses have been declared hostile by the prosecution, the prosecution case can not be dismissed. Moreover, nothing has been brought by the defence on the record to show his false implication in the present case and there is no reason whatsoever assigned for the false implication of the accused in the alleged commission of crime or to disbelieve the testimonies of the prosecution witnesses. Moreover, nothing has been brought by the defence on the record to show his false implication in the present case and there is no reason whatsoever assigned for the false implication of the accused in the alleged commission of crime or to disbelieve the testimonies of the prosecution witnesses. 23. After scrutinizing the entire evidences and considering the plea of the defence, I find that the credibility of the witnesses have not been shaken in their cross-examination and the witnesses have stood test of cross-examination and I find that they are reliable and credible. The doctor has also proved the death of the deceased in his postmortem reports (Ext.-3 & 3/1) by firearm weapon which has been corroborated by the evidence of P.W.-3, P.W.-4 & P.W.-8 also. The place of occurrence has also been established by the I.O. beyond all reasonable doubts. In this way, I find that barring few contradictions, the prosecution has been able to prove the case beyond all reasonable doubts that the accused is the person who had committed murder of both the deceased, therefore the contentions of the defence that the accused is innocent and has been falsely implicated in this case during course of argument on behalf of the defence, is not acceptable and same is hereby discarded.” 18. The confessional statement of the appellant and the fact that the defence has failed to shake the credibility of the witnesses seem to have held centre stage in the impugned judgment. Neither the evidence of the witnesses have been properly scrutinized and dissected nor an attempt has been made by the learned trial court to decipher the role of the appellant. The case is virtually of no evidence. As per the learned trial court the prosecution has been able to prove the case beyond all reasonable doubt but such conclusion has not been cemented by appropriate findings. The learned trial court should have approached the factual and legal aspects of the case more cautiously and judiciously and should not have based its findings on presumptions. 19. Be that as it may, since the prosecution has failed to establish the role of the appellant in the murders on account of dearth in direct or circumstantial evidence, we have no hesitation in setting aside the impugned judgment and order of conviction and sentence. 20. 19. Be that as it may, since the prosecution has failed to establish the role of the appellant in the murders on account of dearth in direct or circumstantial evidence, we have no hesitation in setting aside the impugned judgment and order of conviction and sentence. 20. Accordingly, the judgment of conviction dated 07.04.2022 and order of sentence dated 08.04.2022 passed by Sri Vijay Kumar No.-III, learned Principal District & Sessions Judge, Seraikella-Kharsawan in Sessions Trial No. 51 of 2015 is hereby set aside. 21. This appeal is allowed. 22. Since the appellant is on bail he is discharged from the liabilities of his bail bond.