JUDGMENT : Sujit Narayan Prasad, J. Prayer 1. The instant Death Reference No.3 of 2022 has been instituted under Section 366 of the Code of Criminal Procedure for confirmation of Death penalty awarded vide Judgment of conviction and order of sentence dated 17.08.2022 to Supay Champia @ Chara in Sessions Trial No. 142 of 2022 arising out of Gua P.S. Case No.10 of 2022 for commission of offence under Sections 302 and 201 of IPC. 2. The aforesaid reference was listed before the co-ordinate Bench of this Court and vide order dated 13.09.2022, order was passed directing the office to verify whether any criminal appeal has been filed in connection with the D. Ref. No.3 of 2022, i.e., the present one, in which the respondent has been convicted in the matter. 3. Office has pointed out that one appeal has been filed by the convict being Cr. Appeal (DB) No. 504 of 2023. 4. Accordingly, the D. Ref. No.3 of 2022 had been directed to be listed along with Cr. Appeal (DB) No. 504 of 2023. 5. The instant appeal has been filed assailing the judgment of conviction and order of sentence dated 17.08.2022, whereby and whereunder, the learned trial court convicting the appellant for commission of offence under Sections 302 and 201 of IPC and considering the nature of crime to come under the category of rarest of rare case, has awarded the death sentence and fine of Rs.1,00,000/- for the offence committed under Section 302 of IPC. 6. This Court has heard the learned Public Prosecutor for the appellant-State in D. Ref. No.3 of 23022 and Mr. Lukesh Kumar, learned counsel for the respondent/convict as also the learned Additional Public Prosecutor for the respondent-State in Cr. Appeal (DB) No. 504 of 2023. 7. This Court before entering into the legality and propriety of the impugned order and whether in the facts and circumstances and the evidence led by the prosecution to substantiate the prosecution version, can the said case be said to be under the category of rarest of rare case warranting the sentence of death or on the aforesaid fact the prosecution has been able to substantiate the charge said to be beyond all reasonable doubt. 8. 8. This Court, therefore, is now proceeding to examine the factual aspect in order to reach to the conclusion as to whether the prosecution has been able to substantiate the charge said to be beyond all reasonable doubt and if yes, then whether the nature of crime committed by the appellant will come under the category of rarest of rare case warranting the death sentence. 9. The prosecution story in brief which requires to be enumerated herein, reads as under: The son of the informant, namely, Laxman Purty, on 23.04.2022 at 12:00 p.m. (noon), aged about 11 years went towards Karo river along with his friends namely, Laxman Boipai, Hori Sardar, Muga Champia, and Dunu Champia, all residents of village – Nuiya Basti, Munda Toli, P.S. Gua for bathing and fishing but Laxman Purty did not return to his home till evening then his father (informant), namely, Juel Purty inquired about him from his neighbourers but they did not give any information about him. Then he moved towards Karo river but he did not find his son. On next day i.e. 24.04.22 he asked from Muga Champia that, where was Laxman then he stated that, when he was returning to his home after fishing in river, the accused namely, Supay Champia @ Chara met him and brought him and his friends towards river for fishing. He asked them to assist him to blow electric current in river water through electric wire tied with electric pole for fishing, he threatened them that, if they will not assist him, he will kill them. He also stated to the informant that, his son namely, Laxman Purty did not assist to the accused therefore, he killed him and threw his dead body in the river, then he went towards Karo river side along with villagers where he searched for his son and found that his dead body was lying in bank of Karo river from where he brought dead body of his son to his home with help of villagers. He submitted his written report to the police on that basis formal FIR was lodged against the accused namely, Supay Champia for the offence u/s 302 and 201 of IPC. After investigation charge-sheet was submitted for the same offence. He submitted his written report to the police on that basis formal FIR was lodged against the accused namely, Supay Champia for the offence u/s 302 and 201 of IPC. After investigation charge-sheet was submitted for the same offence. After taking cognizance and supply of police paper case was committed to the Court of Sessions and thereafter charge framed for the offence u/s 302 and 201 of IPC. 10. This Court in order to reach to the conclusion about the issue, is of the view that the argument advanced assailing the impugned judgment on behalf of the convict needs to be referred herein so as to reach to the conclusion regarding the charges as referred by the prosecution is proved beyond all reasonable doubt. Argument advanced on behalf of the convict/appellant: 11. Mr. Lukesh Kumar, learned counsel for the appellant/convict has taken the following grounds in assailing the impugned judgment. (i) It has been submitted that although altogether 8 witnesses have been examined including the investigating officer and the doctor, namely, Dr. Tapas Mahato, P.W.-8, but none of the witnesses have supported the prosecution version since none of them are eye witness which would be evident from the testimony of the aforesaid witnesses. (ii) Learned trial court has convicted the appellant/convict by considering the testimony of P.W.-4 who has been treated to be an eye witness but according to the learned counsel, if the testimony of the P.W.-4 will be taken into consideration, it would be evident that he is also not an eye witness. (iii) The investigating officer has also not supported the prosecution version since no incriminating material, i.e., electric wire or any arms or ammunitions used in the commission of crime had been recovered or seized from the place of occurrence. 12. Learned counsel for the appellant/convict has submitted that although the appellant/convict has been convicted and awarded death sentence but it is highly unwarranted since if the testimony of all the witnesses will be taken into consideration, the prosecution has miserably failed in substantiating the charge said to be proved beyond all reasonable doubt. Argument advanced on behalf of the State: 13. Mr. Argument advanced on behalf of the State: 13. Mr. Pankaj Kumar, learned counsel for the appellant-State of Jharkhand defending the impugned judgment has submitted that the nature of crime which has been committed by the convict is heinous one since the boy of 12 years has been killed only on the ground that he has not cooperated in electrifying the pond through electric wire for the purpose of fishing. 14. Learned Public Prosecutor, based upon the aforesaid ground has submitted that the P.W.-4 is the sole eye witness and his testimony if taken into consideration in entirety, it would be evident that the convict has committed the murder of a minor boy, i.e., Laxman Purty. The learned trial court if after taking into consideration the aforesaid fact has come to the conclusion that the case is under the rarest of rare warranting him to inflict punishment of death sentence, the same cannot be said to suffer from error. 15. Learned Public Prosecutor in view of the aforesaid has submitted that the instant reference being D. Ref. No.3 of 2022 be answered in favour of the prosecution. Analysis: 16. We have heard the learned counsel for the parties and considered the grounds agitated on their behalf in support of as also in assailing the impugned judgment. 17. This Court, in order to analyse the argument advanced on behalf of the parties, deems it fit and proper to refer the testimony of the witnesses. (i) P.W.-1 – Sumi Purty is mother of the deceased. She has deposed in her examination-in-chief that, deceased namely, Laxman Purty was her son, who was aged about 11 years. The occurrence took place on 23.04.22, on that day Hori Sardar and Dunu Champia both came to her home and brought Laxman Purty with them towards river side. (i) P.W.-1 – Sumi Purty is mother of the deceased. She has deposed in her examination-in-chief that, deceased namely, Laxman Purty was her son, who was aged about 11 years. The occurrence took place on 23.04.22, on that day Hori Sardar and Dunu Champia both came to her home and brought Laxman Purty with them towards river side. She returned to her home at 04:30 p.m. after discharging her duty in Angarwari and started searching for her son but did not find, she asked from Hori Sardar and Dunu Champia about her son but they stated that they do not know about him, on next day morning, she went to house of Muga Champia and asked him that, her son went with him towards river side where he left him, then he replied that clothes of her son was lying at river side but he is no more then, she called village Munda namely, Somnath Champia on phone who came and went with his towards river side searching for dead body of her son. She found dead body of her son and observed that ears, lips and below eyes parts of his body were cut, when dead body of her son was carrying to her home by Supay Champia she observed that blood was oozing out from back side of his head. She asked from the accused Supay Champia that why he kill him? Then he replied that he did nothing. He was in one side of the river and deceased was in another side of the river. Muga stated her that, Supay Champia threatened him that, if he will disclose about the occurrence to any one, he will kill him. A panchayati was convened in village and it came to the conclusion that, Supay Champia killed Laxman Purty by throttling and threw his dead body in the river. She identified the accused produced through video conferencing. Though, she is not an eye witness of the occurrence, she has not seen the occurrence herself but the eye witness Muga Champia disclosed the facts about the occurrence to her, she recovered dead body of her deceased son in presence of Village Munda and she corroborated the facts of occurrence as proved by Muga Champia. During her cross-examination no any contradiction has come out. (ii) P.W.-2 namely, Juel Purty is father of the deceased. During her cross-examination no any contradiction has come out. (ii) P.W.-2 namely, Juel Purty is father of the deceased. He has deposed in his examination-in-chief that, deceased Laxman Purty was his son and accused Supay Champia killed him by throttling and threw his dead body in river. The occurrence took place on 23.04.22, on that day after returning of his son from School his friends Dunu Champia and Hori Sardar came to his house, took him with them towards Karo river while he did not return till evening. He started searching for his son, he searched him nearby to the river also but did not find him then, he asked from Muga Champia that, where was his son then he replied that due to fear he returned to his house, Supay Champia threatened him that, if he will disclose about the occurrence to anyone, he will kill him. Muga Champia disclosed him that, Supay Champia killed Laxman Purty by throttling, cut his ears, nose and mouth, thereafter threw his dead body in the river. Accused namely, Supay Champia confessed before the villagers that, he threw dead body of Laxman Purty in river, he brought this witness and villagers towards river and recovered dead body of the deceased namely, Laxman Purty from river, which was removed and found that in back side of his head inflicted injuries, front side of neck was cut, ear, mouth and nose were also cut, village munda suggested to report the matter to police station then he submitted his written report to the police, he identified his signature upon the written report which has been marked Exhibit P-1. Further, he stated that, police reached at the place of occurrence, prepared inquest report of dead body of his deceased son and he put signature upon the inquest report, he identified his signature upon carbon copy of inquest report which has been marked as Exhibit P-2. He identified the accused produced through video conferencing stating that the appellant/convict has killed his son. He has stated in his examination-in-chief that, Muga Champia (PW4) disclosed him that accused namely, Supay Champia @ Chara killed the Laxman Purty and threatened him not to disclose this fact to anyone. He identified the accused produced through video conferencing stating that the appellant/convict has killed his son. He has stated in his examination-in-chief that, Muga Champia (PW4) disclosed him that accused namely, Supay Champia @ Chara killed the Laxman Purty and threatened him not to disclose this fact to anyone. Further proved that, the accused namely, Supay Champia @ Chara confessed before the villagers that, he has killed and threw dead body of the deceased towards river side, he brought them to the place where the dead body was threw in river and as per his disclosure, the dead body was recovered by this witness, father of the deceased. His confession before the villagers that, he threw dead body of the deceased in river and as per his disclosure dead body of the deceased recovered from river is admissible in evidence. Though, he has not seen the occurrence himself and he is not eye witness, in spite of that on the basis of his oral testimony as above it has been proved that, accused namely, Supay Champia @ Chara has killed his son namely, Laxman Purty and threw his dead body in river. In his cross-examination no any contradiction has come out. (iii) P.W.-6 namely, Gomiya Champia identified his signature upon carbon copy of inquest report which has been marked Exhibit P-2/1. Further stated that, he heard that, Laxman Purty has died, except this he has nothing stated about the occurrence, he has not corroborated the prosecution case therefore, declared hostile by the prosecution. PW3 namely, Ladu Champia stated in his examination-in-chief that, he heard that Laxman Purty, aged about 12 years has died. He identified the accused produced through video conferencing, except this he has nothing stated about the occurrence. He has not supported the case of prosecution, therefore declared hostile by the prosecution. PW5 namely, Roya Tiriya stated in his examination-in-chief that, he knew Laxman Purty who has died, except this he has nothing stated about the occurrence. He has not corroborrated the facts of occurrence therefore, declared hostile by the prosecution. (iv) P.W.-8 namely, Dr. He has not supported the case of prosecution, therefore declared hostile by the prosecution. PW5 namely, Roya Tiriya stated in his examination-in-chief that, he knew Laxman Purty who has died, except this he has nothing stated about the occurrence. He has not corroborrated the facts of occurrence therefore, declared hostile by the prosecution. (iv) P.W.-8 namely, Dr. Tapas Mahato stated in his examination-in-chief that, on 25.04.22 at 11:30 a.m., he was posted at Sadar Hospital, Chaibasa as Medical Officer and conducted postmortem upon dead body of the deceased namely, Laxman Purty @ Motkun, aged 11 years, Male, Son of Juel Purty, R/o Nuiya, MundaTola, P.S.-Gua, District-West Singhbhum dead body was brought by Constable No. 301, Manbodh Ohdar and found following findings External findings – External findings – i. Both eyes protruded ii. Puglictic contraction seen in both hands and legs. iii. Tongue in between teeth iv. Both ear cut – margin of wound sharp v. Blister in abdomen and back vi. Both hands, elbow, skin peeled off. vii. Neck skin peeled off anteriorly and posteriorly viii. Stool passed in pant ix. Injury in occiput x. Injury in upper lip Internal Findings – i. Skin and subcutaneous and muscle tissue hyperemic ii. Upper four tracheal rings iii. Trachea congested iv. Brain congested v. Lungs congested vi. Heart empty vii. Stomach digested food viii. Liver and spleen congested ix. Bladder empty Cause of death – Asphyxia caused by throttling or strangulation. Time since death – 12 to 48 hours. He identified the postmortem report in his own writing and signature which has been marked as Exhibit P-5. He has proved in his oral testimony corroborated with the document postmortem report (Exhibit P-5) that, death of the deceased was homicidal which was caused due to asphyxia by throttling or strangulation. Further, time since death was 12 to 48 hours also corroborates the facts of occurrence which was the time about when the decesed did not return from Karo river to his house. He has corroborated the facts of occurrence and oral evidence of PW1, PW2 and PW4. During his cross-examination no any contradiction has come out. Further, time since death was 12 to 48 hours also corroborates the facts of occurrence which was the time about when the decesed did not return from Karo river to his house. He has corroborated the facts of occurrence and oral evidence of PW1, PW2 and PW4. During his cross-examination no any contradiction has come out. (v) P.W.-7 namely, Dhananjay Kumar Singh, S.I. is I.O. of this case, he stated in his examination-in-chief that, on 24.04.22 he was posted as S.I. in Gua P.S., on that day he received information that, dead body of a boy was recovered in Village Nuiyan thereafter, he entered Sanha and reached to village Nuiyan along with armed forces for verification and necessary action about the information, he found that dead body of deceased namely, Laxman Purty @ Motkun, aged about 11 years, Son of Juel Purty was lying on a cot in his courtyard. On query Juel Purty disclosed that, his villager namely, Supay Champia @ Chara killed his son and threw his dead body in Karo River which was recovered with the help of villagers, thereafter inquest report of the dead body was prepared in carbon process in presence of two independent witnesses, he identified the same in his own writing and signature which has been marked Exhibit P-2/2. He sent dead body of the deceased for postmortem and thereafter returned to police station. Further stated that, on 24.04.22 on the basis of written report of the informant namely, Juel Purty FIR was lodged vide Gua P.S. Case No. 10 of 2022, dated 24.04.22, u/s 302 and 201 of IPC under signature of Anil Kumar Yadav, the then officer-in-charge of Gua P.S. and thereafter charge of investigation was made over to this witness. He identified signature of Anil Kumar Yadav, the then officer-in-charge Gua P.S. which has been marked Exhibit P-1/1. He identified formal FIR prepared by Computer Operator namely, Hare Ram Singh under signature of Anil Kumar Yadav, the then officer-in-charge Gua P.S. which has been marked Exhibit P-4. He identified signature of Anil Kumar Yadav, the then officer-in-charge Gua P.S. which has been marked Exhibit P-1/1. He identified formal FIR prepared by Computer Operator namely, Hare Ram Singh under signature of Anil Kumar Yadav, the then officer-in-charge Gua P.S. which has been marked Exhibit P-4. Further stated that, after taking over charge of investigation on 24.04.22 he entered written report and inquest report in case diary, recorded re-statement of the informant and inspected the first place of occurrence which was situated at distance of 04 kilometers from Gua P.S. in village-Nuiyan, Munda Tola, tiled pucca house of Juel Purty having two rooms, in other side of his house there was another house of his elder brother namely, Sani Purty, doors of his house opens in front side and in back side of the house there was orchard. Informant stated that, he brought dead body of his son with help of villagers from Karo river and lying it on a cot in his courtyard. He prepared sketch map of the first place of occurrence. Further stated that, during course of investigation he recorded statement of the witnesses namely, Sumi Purty, Lado Champia, Gomiya Champia, Roya Tiriya and Muga Champia, all witnesses corroborated the facts of occurrence before him. He arrested the accused Supay Champia, recorded his confessional statement, wherein he confessed his guilt. He inspected second place of occurrence which was situated at distance of 400 meters in Southern side from the first place of occurrence near village Karo river and beside it there was bushes and trees. One side of second place of occurrence there was Karo river and another side there was house of Supay Champia surrounded with bushes. In the field of accused namely, Supay Chamiya a wooden electric pole was standing tied with naked electric wire, accused disclosed that the field surrounded with bushes belongs to him. Electric wire stretched to the electric pole standing in his filed from another in village Nuiyan, the accused stated that, from the said electric pole standing in his field electric current was blown in Karo river through neked electric wire stretching from the electric pole, for fishing. Electric wire stretched to the electric pole standing in his filed from another in village Nuiyan, the accused stated that, from the said electric pole standing in his field electric current was blown in Karo river through neked electric wire stretching from the electric pole, for fishing. He also disclosed that, on 24.04.22 in the evening he came to that place for fishing by blowing electric current in the river, at the same time Laxman Purty, Laxman Boipai, Muga Champai and Dunu Champia were removing after fishing then he caught Laxman Purty, threatened him to assist otherwise he will kill him. He asked to Laxman Purty to pull electric wire from electric pole to Karo river, Laxman Purty refused to pull the electric wire then he became annoyed, thrashed him on earth, pressed his both hands with his knee and killed him by throttling thereafter, he threw his dead body in deep water of Karo river at some distance. Further stated that during course of investigation, he arrested the accused namely, Supay Champia @ Chara, obtained postmortem report and entered it in the case diary, obtained supervision note of his superior, recorded statement of witness namely, Muga Champia u/s 164 Cr.P.C. before the Judicial Magistrate, West Singhbhum at Chaibasa, snapped photograph of dead body of the deceased and made it part of case diary. On the basis of supervision of his superior and materials available with the case diary, he found the occurrence true, thereafter he submitted charge sheet against the accused namely, Supay Champia @ Chara for the offences u/s 302 and 201 of IPC vide charge sheet No. 24/22, dated 02.06.22. He identified the accused produced through video conferencing. He has proved in his examination-in-chief that, he inspected both place of occurrences, recorded statement of witnesses, obtained postmortem report, snapped photograph of dead body of the deceased, made it part of case diary, recorded statement of witness Muga Champia u/s 164 Cr.P.C. before the Court of Ld. J.M. 1st Class, Chaibasa, recorded confessional statement of accused who disclosed the facts that how he killed the deceased, found the occurrence true thereafter, submitted charge sheet against the accused A1 for the offences u/s 302 and 201 of IPC. During cross-examination no any contradiction has come out to demolish credibility of his oral testimony. Discussion on legal aspects: 18. J.M. 1st Class, Chaibasa, recorded confessional statement of accused who disclosed the facts that how he killed the deceased, found the occurrence true thereafter, submitted charge sheet against the accused A1 for the offences u/s 302 and 201 of IPC. During cross-examination no any contradiction has come out to demolish credibility of his oral testimony. Discussion on legal aspects: 18. The law is well settled that the conviction is to be based if the prosecution has been able to prove the charge beyond all reasonable doubt. Reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in Rang Bahadur Singh and Ors. vs. State of U.P., (2000) 3 SCC 454 , wherein at paragraph-22 it has been held which reads as under : “22. The amount of doubt which the Court would entertain regarding the complicity of the appellants in this case is much more than the level of reasonable doubt. We are aware that acquitting the accused in a case of this nature is not a matter of satisfaction for all concerned. At the same time we remind ourselves of the time-tested rule that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits. We really entertain doubt about the involvement of the appellants in the crime.” In Sheila Sebastian vs. R. Jawaharaj and Anr., (2018) 7 SCC 581 , wherein at paragraph-28 it has been laid down which reads as under : “28. In this case at hand, the imposter has not been found or investigated into by the officer concerned. Nothing has been spilled on the relationship between the imposter and Respondent 1. Law is well settled with regard to the fact that however strong the suspicion may be, it cannot take the place of proof. Strong suspicion, coincidence, grave doubt cannot take the place of proof. Always a duty is cast upon the courts to ensure that suspicion does not take place of the legal proof. Law is well settled with regard to the fact that however strong the suspicion may be, it cannot take the place of proof. Strong suspicion, coincidence, grave doubt cannot take the place of proof. Always a duty is cast upon the courts to ensure that suspicion does not take place of the legal proof. In this case, the trial court as well as the appellate court got carried away by the fact that accused is the beneficiary or the executant of the mortgage deed, where the prosecution miserably failed to prove the first transaction i.e. PoA as a fraudulent and forged transaction. The standard of proof in a criminal trial is proof beyond reasonable doubt because the right to personal liberty of a citizen can never be taken away by the standard of preponderance of probability.” 19. The law is also settled that if there is any iota of suspicion in coming to the conclusion about the commission of offence by the person concerned who has been arrayed as an accused and in case two views are possible, the view favouring the accused person is to be followed on the principle that before convicting a person for alleged commission of offence, the charge is to be proved beyond all reasonable doubt. Reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in State of U.P. vs. Ram Veer Singh and Ors. reported in (2007) 6 (Supreme) 164 where the Hon’ble Apex has held as follows : “A golden thread which runs through the wave of administration of Justice in criminal cases is that if the two views are possible on the evidence adduced in the case, one pointing out to the guilt on the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. The miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an accused. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not”. Similarly, the Hon'ble Apex Court in Pradeep Kumar Vrs. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not”. Similarly, the Hon'ble Apex Court in Pradeep Kumar Vrs. State of Chhatishgarh, (2023) 5 SCC 350 has held at paragraph-27 as under : “27. It is important to note that the cardinal principles in the administration of criminal justice in cases where heavy reliance is placed on circumstantial evidence, is that where two views are possible, one pointing to the guilt of the accused and the other towards his innocence, the one which is favourable to the accused must be adopted.” 20. Further, the law is settled that in which cases the capital punishment is to be imposed, i.e., death sentence. Reference of the same also needs to be made as has been held by the Hon'ble Apex Court in “Bachan Singh vs. State of Punjab [ (1980) 2 SCC 684 ]”, while determining the constitutional validity of the death penalty was pleased to examine the sentencing procedure embodied in sub-section (3) of Section 354 Cr.P.C. and held as follows:- “164 (b) While considering the question of sentence to be imposed for the offence of murder under Section 302 of the Penal Code, the court must have regard to every relevant circumstance relating to the crime as well as the criminal. If the court finds, but not otherwise, that the offence is of an exceptionally depraved and heinous character and constitutes, on account of its design and the manner of its execution, a source of grave danger to the society at large, the court may impose the death sentence.” Subsequently, in a case of “Machhi Singh vs. State of Punjab [ (1983) 3 SCC 470 ]” the Hon'ble Supreme Court has held as follows:- “The case fell in the category of the rarest of rare cases calling for capital punishment since the victim of murder was an innocent child who could not have or had not provided even an excuse, much less a provocation for murder or the murder was committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner which aroused intense and extreme indignation of the community. The motivation of the perpetrator, the vulnerability of the victim, the enormity of the crime, the execution thereof are factors which normally weigh with the court in awarding the death sentence terming it as the rarest of rare cases.” 21. This Court is now proceeding to determine the following issues which is involved in the present case based upon the aforesaid legal position : (i) as to whether the judgment passed by the learned trial court can be said to be on the principle of charge having been said to be proved beyond all reasonable doubt; (ii) as to whether in the facts and circumstances and the nature of crime committed, warrants the death sentence to be awarded to the accused person, the convict herein, if the charge has been found to be proved. 22. The issue no.(ii) depends upon the issue no.(i) reason being that if the issue no.(i) will be answered in favour of the appellant then there is no need to go for the issue no.(ii), therefore, this Court is answering the issue no.(i) first. Issue No.(i): 23. This Court in order to answer the issue no.(i) has considered the testimony of the witnesses as referred hereinbove. 24. It is evident from the testimony of P.W.-1 who is the mother of the deceased, although has supported the prosecution version in the examination-in-chief but no specific words he had deposed in the cross-examination that he has witnessed the commission of crime. For ready reference, the relevant part of the testimony is being referred as under : ^^4- ?kVuk ds le; eSa vkaxuckM+h esa M~;wVh ij FkhA 5- eSaus ?kVuk ?kfVr gksrs gq, ugha ns[kkA** 25. Similar is the position with respect to P.W.-2 who is the father of the deceased. He has also not witnessed the commission of crime as per his deposition. Relevant part of the testimony is being referred as under : ^^4- ?kVuk ds le; eSa ?kj ij FkkA ?kVuk ?kfVr gksrs gq, eSaus ugha ns[kkA** 26. P.W.-3, P.W.-5 and P.W.-6 have been declared hostile by the prosecution. 27. He has also not witnessed the commission of crime as per his deposition. Relevant part of the testimony is being referred as under : ^^4- ?kVuk ds le; eSa ?kj ij FkkA ?kVuk ?kfVr gksrs gq, eSaus ugha ns[kkA** 26. P.W.-3, P.W.-5 and P.W.-6 have been declared hostile by the prosecution. 27. P.W.-4, namely, Muga Champia who has been considered to be an eye witness by the learned trial court and based upon his testimony, the judgment of conviction has been passed, therefore, this Court has scrutinized the testimony of P.W.-4 so as to come to the conclusion as to whether the P.W.-4 can be said to be an eye witness or not. 28. It requires to be referred herein that P.W.-4 was aged about 12 years. However, the parameter which is to be followed before recording the statement of a minor, in view of the parameter fixed under Section 118 of the Evidence Act, the learned trial court came to the conclusion that the P.W.-4 has got competence to give his statement as a witness. It is evident from that there is no iota of doubt by going through the testimony of P.W.-4 that he himself has admitted that the moment the appellant has threatened that if they will not cooperate in electrifying the pond by electric wire then they all will be killed and immediately after hearing the said words, P.W.-4 fled away. It has further been deposed by him that the appellant caught hold of Laxman Purty and also assaulted him. Thereafter, he came near P.W.-4 and has threatened him that if the same will be disclosed to anyone then he will also be killed. He has further deposed that thereafter, he has also put a knife upon his neck. He has also stated at paragraph-3 that Laxman Purty was thereafter killed by the appellant. In the cross-examination, it has been deposed by him that due to fear he fled away from the place of occurrence but in para-11 he has stated specifically that he has not seen the commission of crime. He has also stated at paragraph-3 that Laxman Purty was thereafter killed by the appellant. In the cross-examination, it has been deposed by him that due to fear he fled away from the place of occurrence but in para-11 he has stated specifically that he has not seen the commission of crime. Relevant part of the testimony is being referred as under : ^^1- e`rd y{e.k iqjrh esjk nksLr Fkk] mldh e`R;q gks pqdh gSA eSa] esjk nksLr y{e.k iqjrh vkSj nquq pkfEi;k unh esa ugk jgs Fks] mlh le; pkM+k vk;k vkSj cksyk fd fctyh dk rkj fudkyus esa esjk enn djks] eSa] eNyh dks djaV d:axk rkfd eNyh ej tk;s] mlus /kedh fn;k fd enn ugha djksxs] rks lcdks ekj nwaxkA rRi'pkr eSa ogka ls Hkkx x;k] rks pkM+k us y{e.k iqjrh dks idM+ fy;k vkSj mls ekjk rFkk esjs ikl vk;k vkSj cksyk fd rqe fdlh dks cksysxs] rks rEgsa Hkh ekj nsaxs] tc eSa ?kVuk ds ckjs esa viuh ekeh dks crkus tk jgk Fkk] rks mlus esjs xnZu ij Hkh pkdw j[kk Fkk vkSj cksy jgk Fkk fd crkvksxs] rks ekj nsaxsA --- 7- ?kVuk ds oDr pkM+k us tc eq>s enn djus ds fy, cksyk] rc eSa Mj ds ekjs ?kVukLFky ls Hkkx x;kA --- 11- eSaus ?kVuk ?kVrs gq, ugha ns[kk gSA** 29. P.W.-7 is the investigating officer who has deposed regarding the statement recorded of the appellant as also other witnesses but in the cross-examination, he has stated that he has not seized any incriminating article, arms or ammunitions or knife or the blood-stained soil. Further, he has deposed at paragraph-14 that he has not seized the electric wire. In paragraph-22 he has deposed that he has not send the finger print or any sign over the body of the deceased to the forensic science laboratory. 30. Doctor has been examined as P.W.-8 who has given the opinion that death of the deceased was homicidal which was caused due to asphyxia by throttling or strangulation. Following injuries were found on the body of the deceased : External findings – i. Both eyes protruded ii. Puglictic contraction seen in both hands and legs. iii. Tongue in between teeth iv. Both ear cut – margin of wound sharp v. Blister in abdomen and back vi. Both hands, elbow, skin peeled off. vii. Neck skin peeled off anteriorly and posteriorly viii. Puglictic contraction seen in both hands and legs. iii. Tongue in between teeth iv. Both ear cut – margin of wound sharp v. Blister in abdomen and back vi. Both hands, elbow, skin peeled off. vii. Neck skin peeled off anteriorly and posteriorly viii. Stool passed in pant ix. Injury in occiput x. Injury in upper lip Internal Findings – i. Skin and subcutaneous and muscle tissue hyperemic ii. Upper four tracheal rings iii. Trachea congested iv. Brain congested v. Lungs congested vi. Heart empty vii. Stomach digested food viii. Liver and spleen congested ix. Bladder empty 31. The accused has been examined under Section 313 Cr.P.C. wherein he has denied to have committed any crime. 32. It is evident from the judgment impugned that the learned trial court has convicted the convict accused person on the basis of the testimony of P.W.-4 who has been considered to be an eye witness. 33. We have already referred the testimony of P.W.-4 but we are of the view by taking into consideration the specific content of the said testimony in entirety that since he had fled away from the place of occurrence and as such, he cannot be treated to be an eye witness. Further, he himself has deposed in the cross-examination that he has not seen the commission of crime. The question is how the learned trial court has considered the P.W.-4 to be an eye witness when he himself has deposed in the cross-examination that he has not seen the commission of crime. 34. The learned Public Prosecutor, however, has tried to impress upon the court that if the circumstances will be considered then there is no error in the judgment of conviction but we are not in agreement with the said submission since here in the impugned order passed by the learned trial court is not based upon the last seen theory or circumstantial evidence rather as would be evident that the conviction is based upon the testimony of P.W.-4 who has been considered to be an eye witness. 35. The other witnesses are also not eye witnesses but the P.W.-4 according to our considered view as per the discussion made hereinabove, based upon the testimony of P.W.-4, he cannot be said to be an eye witness. 36. 35. The other witnesses are also not eye witnesses but the P.W.-4 according to our considered view as per the discussion made hereinabove, based upon the testimony of P.W.-4, he cannot be said to be an eye witness. 36. The law is settled that it is the duty of the prosecution in view of the provision of Sections 101-105 of the Evidence Act to prove the charge beyond all reasonable doubt. The word “all reasonable doubt” is the litmus test for the prosecution to prove the charge which can only be said to be proved if there is no iota of doubt in proving the charge. If the possibility of two views is there, then the view favouring the accused person is to be taken into consideration as per the judgment rendered by the Hon'ble Apex Court in Ram Veer Singh and Ors. (supra) and Pradeep Kumar Vrs. State of Chhatishgarh (supra). 37. Herein, since we have come to the conclusion based upon the discussion made hereinabove that the P.W.-4 who is not an eye witness and the impugned judgment is based upon the testimony of P.W.-4 who has been considered to be an eye witness, therefore, this Court is of the view that the judgment impugned suffers from patent illegality and contrary to the testimony of P.W.-4. 38. The other ground has been taken regarding the corroborating piece of evidence but when the foundation itself is weak then where is the question of corroborating the weak foundation which the fact herein is. 39. The foundation is the testimony of P.W.-4 as per the judgment passed by the learned trial court and when the testimony of P.W.-4 if taken into consideration, the same since is not an eye witness, then where is the question of corroborating such testimony by the other witnesses. 40. This Court, therefore, based upon the reasons hereinabove that it is a case where the prosecution has miserably failed to prove the charge beyond all reasonable doubt which has not properly been appreciated by the learned trial court, is of the view that the impugned judgment needs to be interfered with. Issue No.(ii): 41. In view of the issue no.(i) having been answered, there is no need to consider the issue no.(ii) which pertains to the propriety of the judgment of the death sentence in view of the discussion made hereinabove. Summation: 42. Issue No.(ii): 41. In view of the issue no.(i) having been answered, there is no need to consider the issue no.(ii) which pertains to the propriety of the judgment of the death sentence in view of the discussion made hereinabove. Summation: 42. The Reference in connection with D. Ref. No.3 of 2022 is answered against the State, as such, the instant D. Ref. No.3 of 2022 stands dismissed. 43. Accordingly, the Judgment of conviction and order of sentence dated 17.08.2022 passed by learned Sessions Judge, Chaibasa in Sessions Trial No. 142 of 2022 arising out of Gua P.S. Case No.10 of 2022, is hereby quashed and set aside and Cr.A(DB) No.504/23 stands allowed. 44. In consequence thereof, the appellant is acquitted and discharged from his criminal liability and directed to be released from judicial custody forthwith in connection with Sessions Trial No. 142 of 2022, if not required in any other case. 45. Let this order/judgment be communicated forthwith to the court concerned along with the Lower Court Records. I agree.- Pradeep Kumar Srivastava, J.