JUDGMENT : RONGON MUKHOPADHYAY, J. 1. Heard Mr. D.K. Chakraverty, learned counsel for the appellant and Mr. Saket Kumar, learned A.P.P. for the State. 2. This appeal is directed against the judgment and order of conviction and sentence dated 30.07.2015 (sentence passed on 31.07.2015) passed by Sri Girish Chandra Sinha, learned 1st Additional Sessions Judge, Seraikella-Kharsawan in S.T. No. 124 of 2013, arising out of Rajnagar P.S. Case No. 02/2013, corresponding to G.R. No. 33/2013, whereby and whereunder the appellant has been convicted for the offences punishable u/s 448/34 and 302/34 of the I.P.C. and has been sentenced to undergo R.I. for six months u/s 448/34 of the I.P.C. and R.I. for life for the offence u/s 302/34 of the I.P.C. along with a fine of Rs. 5,000/- and on non-deposit of the fine amount he has to further undergo R.I. for six months. 3. A fardbeyan was recorded by Lilawati Mahto on 07.01.2013 to the effect that on 06.01.2013 her entire family members were sleeping after having dinner when at about 10:30 P.M. Dipu Mahto, Trilochan Mahto (appellant) and Bidur Mahto had entered into the house. These persons used to frequently come to the house of the informant since Dipu Mahto had a love affair with her sister Nilu Mahto. Dipu Mahto had given a mobile to her sister but the informant and others had objected to such love affair at which they were threatened with dire consequences. It has been alleged that on the night of the occurrence the informant was sleeping with her sister when the accused persons entered and when the inmates started raising alarm they had put off the lights. The informant and her relatives who were inside had come outside and started shouting and calling the villagers. It has been alleged that the accused persons poured kerosene oil upon Nilu Mahto and set her ablaze. When the villagers started assembling Dipu Mahto and Bidur Mahto managed to flee away while Trilochan Mahto was caught by the villagers after chase. Her sister was fully burnt and she was taken for treatment to M.G.M. Hospital, Jamshedpur. She has stated that Dipu Mahto is distantly related to them. 4. Based on the aforesaid allegations Rajnagar P.S. Case No. 02/2013 was instituted for the offences under Sections 448/326/307/34 I.P.C. against Dipu Mahto, Trilochan Mahto and Bidur Mahto. Her sister was fully burnt and she was taken for treatment to M.G.M. Hospital, Jamshedpur. She has stated that Dipu Mahto is distantly related to them. 4. Based on the aforesaid allegations Rajnagar P.S. Case No. 02/2013 was instituted for the offences under Sections 448/326/307/34 I.P.C. against Dipu Mahto, Trilochan Mahto and Bidur Mahto. Due to the death of Nilu Mahto Section 302 I.P.C. was added. On conclusion of investigation charge-sheet was submitted u/s 448/326/307/302/34 and 120(B) I.P.C. against the three named accused. After cognizance was taken u/s 302/34 I.P.C. by the learned Judicial Magistrate1st Class, Seraikella-Kharsawan the case was committed to the Court of Sessions were it was numbered as S.T. No. 124 of 2013. Charge was framed u/s 448/34 and Section 302/34 I.P.C. which was read over and explained to the accused in Hindi to which they pleaded not guilty and claimed to be tried. 5. The prosecution has examined as many as eight witnesses in support of its case. 6. PW-1 (Lilawati Mahto) is the informant who has stated that the incident is of 06.01.2013 at about 10:30 P.M. She was at her house and with her were her sister Nilu Mahto, father Radha Mahto and brothers Suka Mahto as well as Aklu Mahto. Her father was sleeping in the verandah and her brothers and sister were sleeping inside the house. She has stated that she was sleeping with her sister. Dipu Mahto, Trilochan Mahto and Bidur Mahto had entered into the house had caught hold of her sister Nilu who was taken outside and by pouring kerosene oil over her had set her ablaze. When an alarm was raised the villagers had assembled at which Dipu and Bidur had fled away but Trilochan was apprehended. After the villagers had informed the Police the Officer-in-Charge had come and her sister was taken to M.G.M. Hospital, Jamshedpur. In course of treatment she died. The statement of this witness was recorded on 07.01.2013 in which she had put her signature. The signature of Sunil Mahto as a witness was also taken. She has proved her signature and the signature of Sunil Mahto in the fardbeyan which have been marked as Exhibits-1 and 1/1. In her cross-examination, she has stated that her neighbours are Sukra Mahto, Arun Mahto and Baldeo Mahto. At some distance are situated the house of Mansa Mahto, Sanu Mahto and others. She has proved her signature and the signature of Sunil Mahto in the fardbeyan which have been marked as Exhibits-1 and 1/1. In her cross-examination, she has stated that her neighbours are Sukra Mahto, Arun Mahto and Baldeo Mahto. At some distance are situated the house of Mansa Mahto, Sanu Mahto and others. She has deposed that there are two rooms in front of each other in her house and her brothers were sleeping inside a room and her father was sleeping in the verandah. She had not heard about any knocking at the door. She had seen in the dark three persons entering and as soon as they came inside they had put off the lights. She awoke from her sleep and felt frightened. She has further stated that when she raised an alarm her father woke up but her brothers did not. Her father did not catch hold of any of the accused though he had shouted for help. On hearing the cry of alarm Suka Mahto had come but he was threatened by Dipu Mahto with a pistol as a result of which he had not made any attempts to catch hold of the accused. This witness has further deposed that when her sister was burnt the villagers had arrived. The villagers had arrived after she continued burning for thirty minutes. When her sister got burnt her brothers had woken up. Even though her sister burnt for thirty minutes but no attempts were made by her and her family members to douse the fire. This witness has also stated that the marriage of her sister was fixed at Chakradharpur. She has stated that it is a fact that her sister was having a love affair with Dipu Mahto and Dipu Mahto used to frequently come to her house. He has also given a mobile to her sister which was objected to by her family members. The villagers also knew about the love affair existing between her sister and Dipu Mahto. In her cross-examination, this witness has stated that it is a fact that after being put on fire her sister was running in the road. She had come to know that the villagers had tried to douse the fire. She does not know whether it is true or not as she was inside the house. In her cross-examination, this witness has stated that it is a fact that after being put on fire her sister was running in the road. She had come to know that the villagers had tried to douse the fire. She does not know whether it is true or not as she was inside the house. She has stated that the Officer-in-Charge had come to her house at about 11:30 P.M. and had recorded her fardbeyan and had also seized a kerosene container and matches. At that point of time no one was present. She has stated that she and her family members did not have any relation with Bidur and Trilochan. She has also stated that the broken door knob was shown to the Police. She had disclosed to the Police that her father was sleeping in the verandah while her brothers were sleeping inside the room. 7. PW-2 (Sano Mahto) had put his thumb impression on the seizure list regarding seizure of a Hero Honda Motorcycle bearing No. 0775. He has stated that he does not have any information about what happened to Nilu Mahto. This witness has been declared hostile by the prosecution. 8. PW-3 (Dhirendra Mahto) has stated that he does not know anything about the occurrence and hence he was also declared hostile by the prosecution. 9. PW-4 (Lakhindra Mahto) has deposed that he was in his house when he had heard Lilawati shouting and when he went to her house he found Nilu Mahto in a burnt condition outside the house. Dipu and Bidur had fled away while Trilochan was apprehended by him. He has stated that the Police had come after the villagers had informed them. He has deposed that Dipu and Bidur had poured kerosene oil upon Nilu Mahto and set her ablaze. In his cross-examination, he has deposed that when he had reached the place of occurrence several villagers had already assembled. When Trilochan Mahto was taking out his vehicle from the house of Doctor Mahto he was apprehended by the women of the village. When he was going along with some villagers towards the house of Doctor Mahto, he had seen Trilochan Mahto being thrashed by some villagers. At that point of time, this witness had seen Nilu Mahto running towards the house of Doctor Mahto, where she fell down. When he was going along with some villagers towards the house of Doctor Mahto, he had seen Trilochan Mahto being thrashed by some villagers. At that point of time, this witness had seen Nilu Mahto running towards the house of Doctor Mahto, where she fell down. He has deposed that the marriage of Nilu Mahto was fixed at Kharsawan. The villagers knew about the love affair between Nilu Mahto and Dipu Mahto. He has also stated that Nilu Mahto lay on the ground near the house of Doctor Mahto for half an hour. 10. PW-5 (Arun Mahto) has deposed that on 06.01.2013 at night he was sleeping in his house at which point of time he had heard some villagers shouting. He came out on the road and he could see that the commotion was coming from the house of Radha Mahto. The daughter of Radha Mahto, Nilu Mahto was burning. Nilu Mahto was shouting and telling that Dipu had burnt her. He has stated that the villagers had doused the fire and informed the Police. After which the Police had come and taken the victim to M.G.M. Hospital. In the cross-examination, this witness has deposed that when he came out on the road he had seen Nilu Mahto running in a burnt condition. While running Nilu Mahto had reached the house of Doctor Mahto and when he reached the house of Doctor Mahto he had seen Nilu Mahto lying on the ground. The house of Doctor Mahto is 5-6 houses from the house of Radha Mahto. Nilu Mahto was in a semi-conscious state and she was muttering something which was not clear. This witness has stated that he had not given any statement to the Police and he had also not stated before the Police that Nilu Mahto was shouting and taking the name of Dipu Mahto for causing burns to her. 11. PW-6 (Dr. J. Sriniwasan Rao) was posted on 07.01.2013 as a tutor in the Department of Forensic Medicine, M.G.M. College Hospital and he had conducted autopsy on the dead body of Nilu Mahto. The opinion given by him was: (i) Burn was ante mortem. (ii) Death was due to shock as a result of burn. However, vaginal swab 2+7 in numbers have been preserved for result of examination of seminal fluid and spermatozoa and also blood soaked in gauge piece for D.N.A. Profile. The opinion given by him was: (i) Burn was ante mortem. (ii) Death was due to shock as a result of burn. However, vaginal swab 2+7 in numbers have been preserved for result of examination of seminal fluid and spermatozoa and also blood soaked in gauge piece for D.N.A. Profile. This witness has proved the postmortem report which has been marked as Exhibit-2. 12. PW-7 (Waqur Hussain) is the Investigating Officer who has deposed that on 06.01.2013 at about 11.15 P.M. Dilip Mahto had informed him over mobile that a girl has been burnt and a person apprehended. He was at that point of time posted as Officer-in-Charge of Rajnagar P.S. This witness along with the Police force had reached Baridih where he had recorded the fardbeyan of Lilawati Mahto. He has proved the fardbeyan which is in his handwriting and bears his signature and which has been marked as Exhibit-3. He has also proved the endorsement on the fardbeyan which has been marked as Exhibit-4. After taking over investigation this witness had recorded the restatement of the informant and also inspected the place of occurrence. The place of occurrence is village Baridih, in the main door of the informant and at a distance of 10 feet the sister of the informant was said to have been burnt. Inside the premise is a verandah and on the western side the father of the informant was said to have been sleeping. In the room situated on the eastern side the informant and her sister were sleeping over haystacks. The house is built with mud having tiles. The main door and the door of the room of the informant was found in an unbroken condition. He has also described the houses nearby to the place of occurrence. This witness had taken the statements of Lakhindra Mahto and Sano Mahto. He had arrested Trilochan Mahto and has proved the seizure list of a motorcycle bearing Registration No. JH-05-0775 which has been marked as Exhibit-5. The fardbeyan of Radha Mahto was recorded which has been proved by him and marked as Exhibit-6. He has also proved the inquest report which has been marked as Exhibit-7. The confessional statements of Dipu Mahto, Bidur Mahto and Trilochan Mahto were recorded. He had also recorded the statements of Lakhindra Mahto, Arun Mahto, Dhirendra Mahto and Sudhir Mahto who have supported the allegations. He has also proved the inquest report which has been marked as Exhibit-7. The confessional statements of Dipu Mahto, Bidur Mahto and Trilochan Mahto were recorded. He had also recorded the statements of Lakhindra Mahto, Arun Mahto, Dhirendra Mahto and Sudhir Mahto who have supported the allegations. He had obtained the postmortem report and on the orders of his superior officials had submitted charge-sheet against Dipu Mahto, Bidur Mahto and Trilochan Mahto u/s 448/326/ 307/302/34 and 120(B) I.P.C. In his cross-examination, he has stated that he had not seized the earth on which kerosene had fallen. He had not taken the statement of Dilip Mahto, the person who had informed him about the incident. In course of investigation, it came to light that the deceased had a love affair with Dipu Mahto but the family members of the deceased wanted to solemnize her marriage elsewhere. None of the villagers had seen as to who had put the deceased on fire. He has also stated that the informant had never given any statement that the broken door lock was shown to him. He has not seized any articles at the place of occurrence. 13. PW-8 (Sudhir Mahto) has deposed that the incident had taken place on 06.01.2013 at about 9:30-10:00 P.M. His brother Radha Mahto had telephonically informed him that his daughter has been burnt at which he had come to Baridih and had seen Nilu Mahto in a burnt condition. He has deposed that Nilu Mahto had disclosed that Dipu, Trilochan and Bidur had put kerosene oil upon her and set her ablaze. He does not know Dipu, Trilochan and Bidur. He has stated that the Police had not recorded his statement. This witness was declared hostile on the point of identification. In cross-examination, he has stated that his house is situated at a distance of 15 K.M. from the place of occurrence. When he had reached, several villagers had already assembled. Nilu was in a very badly burnt state. She was taken to the Hospital. He has further stated that the house of Doctor Mahto is at a distance of 400-500 meters from the house of Radha Mahto. He had seen Nilu Mahto lying in front of the house of Doctor Mahto. Nilu Mahto lay there for about an hour and in order to douse the fire gunny bags and blankets were kept over her. He has further stated that the house of Doctor Mahto is at a distance of 400-500 meters from the house of Radha Mahto. He had seen Nilu Mahto lying in front of the house of Doctor Mahto. Nilu Mahto lay there for about an hour and in order to douse the fire gunny bags and blankets were kept over her. At that point of time, she was crying for help. He has stated that before he had reached the place of occurrence, the Police had already arrived and they had taken Nilu to the Hospital. She was referred to M.G.M. Hospital and they had reached the Hospital after about 1½ hours. 14. The statement of the appellant was recorded u/s 313 Cr.P.C. in which he has merely denied his involvement. 15. Mr. D.K. Chakraverty, learned counsel for the appellant has submitted that PW-1 is the only eye-witness to the occurrence but her evidence suffers from contradictions and infirmities and cannot be relied upon for securing the conviction of the appellant. According to PW-1, his father and brothers were present in the house when the incident had occurred but they have not been examined by the prosecution. In absence of any corroborative evidence even by way of circumstances the appellant cannot be said to have participated in such a dastardly act. It has been submitted that the appellant was not apprehended by the Police but had subsequently surrendered. Learned counsel submits that several key witnesses have not been examined by the prosecution and even the place of occurrence has not been established. So far as motive is concerned, Mr. Chakraverty has submitted that though Dipu Mahto had a clear cut motive but so far as the appellant is concerned, there was absolutely no motive attributed to him. On such premises, learned counsel has concluded his argument by submitting that the prosecution has failed to prove its case beyond any reasonable doubt against the appellant. 16. Mr. Saket Kumar, learned A.P.P. has submitted that the evidence of PW-1 is clear, cogent and comprehensive with respect to the act of the accused persons in committing the murder of the sister of the informant. Though PW-1 is the solitary eyewitness but her evidence does not appear to have improved her version as narrated in the fardbeyan and also appears to be consistent. 17. Though PW-1 is the solitary eyewitness but her evidence does not appear to have improved her version as narrated in the fardbeyan and also appears to be consistent. 17. We have given our anxious consideration to the submissions advanced by the respective counsels and have also gone through the Lower Court Records. The fardbeyan of the informant reveals that the accused persons had entered into the house, poured kerosene oil upon the sister of the informant and set her ablaze. When the accused persons had entered the entire family members of the informant had come outside and started raising alarms. As per the evidence of the informant who has been examined as PW-1 all the accused persons had taken the deceased outside the house and set her ablaze. The fact regarding the incident of burning has also been stated by the father of the informant namely Radha Mahto whose fardbeyan was recorded at M.G.M. Hospital and which has been marked as Exhibit-6. The presence of the family members has been mentioned by PW-1 as she has stated that her father was sleeping in the verandah while her brothers Suka Mahto and Aklu Mahto were sleeping inside the room. It would therefore, appear that the father of the informant was also a witness as the initial incident of breaking into the house by the accused persons seem to have occurred in front of the place where he was sleeping. His version in his fardbeyan (Exhibit-6) also indicates that he is an eye-witness but the prosecution has failed to examine him as a witness rendering the evidence of PW-1 fallible and susceptible to doubt as it remains uncorroborated and unsubstantiated. It would also be worthwhile to mention that the brothers of the informant who were inside the house were also not examined. In her cross-examination, she has stated that one of her brothers Suka Mahto on hearing the cry of alarm had come out but he was threatened with a pistol by Dipu Mahto. It would thus mean that when the incident had occurred PW-1, her father as well as her brothers were present but there subsequent conduct leaves a lot to be desired and vaporizes into a cloud of suspicion over the story narrated by PW-1. It would thus mean that when the incident had occurred PW-1, her father as well as her brothers were present but there subsequent conduct leaves a lot to be desired and vaporizes into a cloud of suspicion over the story narrated by PW-1. The conduct and behaviour of a witness in a given circumstance, though may vary from person to person depending on the psychological upheavals, he/she may encounter on witnessing a gruesome crime but at the same time it would be an un-seemingly odd behaviour on the part of PW-1, her father and brothers to have remained a mute spectator to the burning of their dear one. PW-1 is very categorical in stating that her sister continued to burn for half an hour but no attempts were made by her or her family members to douse the fire. As per PW-1, it was the villagers who had extended help in trying to save the deceased. PW-1 had heard about the villagers dousing the fire but the veracity or otherwise of such fact was not known to her as she was inside the house while her sister was running in the road in a burnt condition. The conduct of PW-1 and her family members in the circumstances narrated by PW-1 makes the entire evidence of PW-1 tainted with doubt. 18. When we considered the evidence of the Investigating Officer who has been examined as PW-7, we find that no incriminating articles were seized by him from the place of occurrence. During investigation, he had found the doors in an unbroken condition. PW-1 had not given any statement to him that the broken door knob was shown to him. The version of PW-7 contradicts the evidence of PW-1 who has stated about recovery of a kerosene container and match stick by PW-7 who was also shown the broken door knob. 19. PW-4 and PW-5 have stated that they had seen Nilu Mahto running in a burnt condition and had fallen down in front of the house of Doctor Mahto. PW-4 has also stated that when the appellant was taking out his motorcycle from the house of Doctor Mahto he was apprehended by the villagers. The prosecution however has not examined Doctor Mahto for reasons best known to it. PW-4 has also stated that when the appellant was taking out his motorcycle from the house of Doctor Mahto he was apprehended by the villagers. The prosecution however has not examined Doctor Mahto for reasons best known to it. So far as the motive is concerned the same can be attributed to Dipu Mahto who was having a love affair with Nilu Mahto but when her marriage was fixed elsewhere Dipu Mahto is said to have threatened her family members. The appellant has not been saddled with any motive for committing such offence. 20. The entire scenario as depicted above, would therefore, indicate that the evidence of PW-1 is fraught with contradictions and inconsistencies and in absence of any corroborative evidence it would be unsafe to sustain the conviction of the appellant based on such evidence. The learned trial court has overtly put reliance on the evidence of PW-1 which as has been discussed above is unreliable and untrustworthy. 21. This appeal, therefore, must succeed and accordingly the judgment and order of conviction and sentence dated 30.07.2015 (sentence passed on 31.07.2015) passed by Sri Girish Chandra Sinha, learned 1st Additional Sessions Judge, Seraikella-Kharsawan in S.T. No. 124 of 2013, arising out of Rajnagar P.S. Case No. 02/2013, corresponding to G.R. No. 33/2013, is hereby set aside. 22. This appeal stands allowed. 23. Since the appellant is in custody he is directed to be released forthwith, if not, wanted in any other case. 24. Pending I.A. if any, stands disposed off. I Agree - Rajesh Kumar, J.