JUDGMENT : Heard Ms. Alpana Verma, learned counsel for the appellant and Mr. P.K. Appu, learned A.P.P. for the State. 2. This appeal is directed against the judgment and order of conviction and sentence dated 06.01.2007 (sentence passed on 08.01.2007) passed by Sri Rabindra Nath Tiwary, learned Additional Judicial Commissioner, (F.T.C.) Khunti in Sessions Trial No. 213/2001, arising out of Tamar P.S. Case No. 32/2000, corresponding to G.R. Case No. 210/2000, whereby and whereunder the appellant has been convicted for the offence u/s 302 of the Indian Penal Code and has been sentenced to undergo imprisonment for life along with a fine of Rs.50,000/- and in default of payment of fine he has to undergo R.I. for one year. 3. A fardbeyan was recorded of Soma Munda in which it has been stated that on 07.04.2000 he along with his father, maternal uncle and brother had gone to Doria market for purchasing articles. When the informant, his father Choriya Munda, brother Kali Munda and his maternal uncle Birsa Munda were returning to their houses all of a sudden from the bushes emerged Etwa Munda, Mangal Singh Munda (appellant) and Bol Munda who were having Farsa and they started assaulting the father and brother of the informant. The informant and his maternal uncle started raising an alarm but the accused persons committed the murder of the father and brother of the informant. It has been alleged that his maternal uncle was also assaulted with a Farsa when he tried to save the other two victims but the blow was fended off by a lathi his uncle had in his position. It has also been alleged that Mangal Singh Munda had assaulted his maternal uncle with a lathi and thereafter fled away. The reason for the occurrence is a quarrel which had taken place between Lado Munda and others in which the informant figured as a witness. Based on the aforesaid allegations Tamar P.S. Case No. 32/2000 was instituted against Etwa Munda, Mangal Singh Munda and Bol Munda for the offences punishable u/s 302, 323/34 of the I.P.C. On conclusion of investigation charge-sheet was submitted against Mangal Singh Munda while investigation was kept pending against Etwa Munda and Bol Munda. After cognizance was taken the case was committed to the Court of Sessions where it was registered as S.T. No. 213/2001. After cognizance was taken the case was committed to the Court of Sessions where it was registered as S.T. No. 213/2001. Charge was framed against Mangal Singh Munda (appellant) for the offence u/s 302 of the I.P.C. which was read over and explained to him in Hindi to which he pleaded not guilty and claimed to be tried. 4. The prosecution has examined as many as seven witnesses in support of its case. 5. P.W.1 (Sonaram Munda) has deposed that the incident in which Kali Munda @ Budhu Munda and Choria Munda had died had taken place more than a year back. He has proved his signature as well as the signature of Mathura Singh in the inquest report which have been marked as Exhibits-1 and 1/1 respectively. He has also identified his signature and that of Mathura Singh in the seizure list prepared with respect to seizure of Danda and Farsa used in the occurrence and which have been marked as Exhibits 1/2 & 1/3. respectively. In his cross-examination, he has stated that the Police had not seized blood stains which were visible in the market. 6. P.W.2 (Mathura Singh Munda) has deposed that the incident had occurred more than a year back and Kali Munda @ Budhu Munda and Choria Munda were murdered. He has stated that he had not gone to the place of occurrence. He has proved his signature and the signature of Sona Ram Munda in the carbon copy of inquest report and which have been marked as Exhibits-1/4 and 1/5 respectively. The broken Danda and a Farsa were seized by the Police from the place of occurrence in his presence and a seizure list was prepared in which he had signed and which already stands marked as Exhibit-1/3. In his cross-examination, he has stated that he had gone to the place of occurrence but he cannot tell the name of the persons who were present there. 7. P.W.3 (Fagu Munda) has deposed that the incident had taken place about one year two months back when he was in his house at which point of time Birsa Munda came shouting and disclosed that in front of the “Badiyar” a fight is going on. When this witness reached the place of occurrence he saw Choria Munda and Kali Munda dead. He does not know as to who had committed the murder. When this witness reached the place of occurrence he saw Choria Munda and Kali Munda dead. He does not know as to who had committed the murder. In his cross-examination, he has deposed that he does not know as to how Kali Munda and Choria Munda had died. 8. P.W.4 (Maraki Munda) has deposed that the incident had taken place about more than a year back at 4:30 P.M. when he was in his house and Birsa Munda came and started shouting that his brother-in-law and nephew have been murdered. He has stated that Birsa Munda had disclosed that Etwa Munda, Mangal Singh Munda and Bol Munda had committed the murder of Choria Munda and Kali Munda and Mangal Singh Munda had attacked him with a Farsa which was fended off by him. This witness had gone to the place of occurrence and had seen the dead bodies. In his cross-examination, he has stated that he had not witnessed the occurrence. The place of occurrence is at about a distance of one mile from his village. He has further deposed that the Police had seized the blood stained clothes of Choria and Kali. 9. P.W.5 (Birsa Munda) has deposed that it was a year back on a friday in the month of Chait when he had gone to Doria market along with his brother-in-law Choria Munda and nephew Kali Munda. At about 4:00 P.M. they were returning from the market and when they came near the Sarna place of worship Etwa Munda, Mangal Munda and Bol Munda came out from the bushes and Etwa Munda had assaulted his brother-in-law twice on his neck with a Tabla while Kali Munda was also assaulted by him with a Tabla. He has stated that Tabla is also known as Farsa. After Choria and Kali were assaulted Mangal Munda had struck this witness with a Tabla which was fended off by a lathi which led to the Tabla being broken. He had thereafter fled away from the place of occurrence. In cross-examination, he has stated that he does not know the cause of tension between Lado Munda and Mangal Singh Munda. He has further stated that there was no one coming from Doria market when the incident had taken place. He had seen the assault from a distance of about five hands. It was Etwa who had committed the assault with a Tabla. He has further stated that there was no one coming from Doria market when the incident had taken place. He had seen the assault from a distance of about five hands. It was Etwa who had committed the assault with a Tabla. Due to the breaking of the Tabla which was stopped with a lathi he had suffered injuries near his eye for which he was given treatment. 10. P.W.6 (Dr. Ajit Kumar Chaudhary) was posted as a Tutor in the department of Forensic Medicine, RMCH, Ranchi on 09.04.2000 and on that date he had conducted autopsy on the dead body of Choria Munda and had found the following injuries: i) Insized wound 15 cm x 3 cm x Bone Deep on left cheek cutting underline bone. ii) 14 cm x 3 cm x Bone Deep on right lateral neck upper part and adjoining chin cutting the underline mandible bone, soft tissue and blood vessels of right side of neck, trachea, oesophaegus and second cervical vertebra. iii) 13 cm x 4 cm x Bone Deep on front part of neck situated transversaly cutting the soft tissue, blood vessels, trachea oesphaehus, 7th cervical vertebra including the spinal chord. All the above injuries were opined to be antemortem in nature caused by heavy sharp cutting weapon such as Farsa. The death was opined to have been caused due to the above noted injuries. On the same day, he had conducted autopsy on the dead body of Kali Munda @ Budhu Munda and had found the following injuries: i) Insized wound 12 x 3 cm x Bone Deep and 10 x 3 cm x Bone Deep on right fronto parieto occipital region of head situated antero posteriorly cutting the underline bone and brain matter. There was presence of infiltration of blood clot. Internal orgens were pale. The cause of death was opined to be due to head injury. The insized wound suffered by Kali Munda @ Budhu Munda was caused by heavy sharp cutting weapon such as Farsa. This witness has proved the postmortem report which has been marked as Exhibit-2/1. 11. P.W.7 (Basist Narain Singh) was posted on 08.04.2000 in Tamar P.S. He has proved the First Information Report which has been marked as Exhibit-3. He was handed over the charge of investigation after which he had recorded the restatement of the informant and also inspected the place of occurrence. 11. P.W.7 (Basist Narain Singh) was posted on 08.04.2000 in Tamar P.S. He has proved the First Information Report which has been marked as Exhibit-3. He was handed over the charge of investigation after which he had recorded the restatement of the informant and also inspected the place of occurrence. He has given a description of the place of occurrence. He has proved the inquest report of Choria Munda in which Sonaram Munda and Mathura Singh Munda had signed as witnesses. He has also proved his signature in the inquest report which has been marked as Exhibit-1/6. He has also identified his signature in the inquest report of Kali Munda which has been marked as Exhibit- 1/7. He has proved the seizure of broken Farsa which has been marked as Exhibit-1/8. He had recorded the statements of Birsa Munda, Sonaram Munda, Mathura Singh Munda, Lado Munda, Budhu Munda, Ram Singh Munda and Fagu Munda. He had obtained the postmortem report, arrested the accused Mangal Singh Munda and on conclusion of investigation has submitted charge-sheet against him for the offences u/s 302, 323/34 of the I.P.C. In cross-examination, he has stated that Lado Munda had given a written application on 22.05.1999 which was registered as non FIR No. 51/1999 u/s 107 Cr.P.C. against Mangal Singh Munda. 12. The statement of Mangal Singh Munda was recorded u/s 313 Cr.P.C. in which he has denied his involvement in the incident. 13. Ms. Alpana Verma, learned counsel for the appellant has submitted that several material witnesses including the informant have not been examined by the prosecution. It has been submitted that P.W.5 claims himself to be an eye-witness but in his evidence he has not attributed any role of assault upon the deceased persons by the appellant. It has further been submitted that the assault upon P.W.5 by the appellant resulting in injuries suffered by him has not been proved as no injury report has been brought on record. 14. Mr. P.K. Appu, learned A.P.P. has primarily referred to the evidence of P.W.5 while submitting that the presence of the appellant was noted and it was the appellant who had attempted to bodily harm P.W.5 but he had a providential escape. 15. We have given our anxious consideration to the submissions advanced by the learned respective counsels and have also perused the Lower Court Records. 16. 15. We have given our anxious consideration to the submissions advanced by the learned respective counsels and have also perused the Lower Court Records. 16. The fardbeyan of Soma Munda depicts a concerted act of assault upon the father and brother of the informant by Etwa Munda, Mangal Singh Munda (appellant) and Bol Munda. It also speaks of a specific act of assault upon the maternal uncle of the informant namely Birsa Munda (P.W.5) by the appellant which however was fended off by him. The informant is an eye-witness to the occurrence but he did not turn up in course of trial to record his evidence. The other eye-witness to the occurrence is Birsa Munda (P.W.5) who also claims to have suffered injuries near his eyes. If the evidence of P.W.5 is dissected it is seen that the predominant role essayed in the murder has been enacted by Etwa Munda. Though it is said that Etwa Munda, the appellant and Bol Munda had emerged from the bushes but it was Etwa Munda only who had made the murderous assault upon Choria Munda and Kali Munda with Farsa resulting in their death. He has not attributed any act of assault upon the deceased persons by either the appellant or Bol Munda. The appellant as per P.W.5 had given a Tabla blow on his neck which was fended off with a lathi which was in possession of P.W.5. P.W.5 claims to have suffered injuries near his eye and was also given treatment but no injury report has been exhibited by the prosecution and even the Investigating Officer (P.W.7) has kept silent regarding such statement. The learned trial court has considered the evidence of P.W.5 as a gospel truth and the various intricacies, inadequacies and inconsistencies in his evidence have not at all been appreciated by the learned trial court. The fardbeyan disclosed an unified assault committed by all the accused persons which would indicate a common intention and a common sharing of platform by all the accused. However, the evidence of P.W.5 depicts a solo indiscriminate assault upon Choria Munda and Kali Munda by Etwa Munda. The fardbeyan disclosed an unified assault committed by all the accused persons which would indicate a common intention and a common sharing of platform by all the accused. However, the evidence of P.W.5 depicts a solo indiscriminate assault upon Choria Munda and Kali Munda by Etwa Munda. Bol Munda seems to have remained a mute spectator while the appellant had made an attempt to commit bodily harm to P.W.5 There appears to be animosity between both the sides as the existence of a 107 Cr.P.C. proceeding suggests which would not rule out the false implication of the appellant. It also appears that P.W.5 did not suffer any injury as nothing in contrast has been brought on record by the prosecution. No act of assault has been attributed to the appellant in connection with the death of Choria Munda and Kali Munda. The evidence of P.W.5, therefore, greatly diminishes the common intention supposedly shared by the accused persons and the act of committing the murders singularly rests upon Etwa Munda. Moreover, apart from the informant it appears that several other key witnesses have not been examined by the prosecution. The prosecution has, therefore, been unable to prove its case against the appellant beyond all reasonable doubt and in view of the circumstances noted above, we deem it fit to allow this appeal. Accordingly, the judgment and order of conviction and sentence dated 06.01.2007 (sentence passed on 08.01.2007) passed by Sri Rabindra Nath Tiwary, learned Additional Judicial Commissioner, (F.T.C.) Khunti in Sessions Trial No. 213/2001, arising out of Tamar P.S. Case No. 32/2000, corresponding to G.R. Case No. 210/2000, is hereby set aside. 17. This appeal stands allowed. 18. Pending I.A., if any, stands disposed off. 19. The appellant who is in custody is directed to be released forthwith if not wanted in any other case.