JUDGMENT : Ananda Sen, J. Appellant has preferred this appeal against the Judgment of Conviction and Order of Sentence dated 27th February, 2018 passed by the learned Additional Sessions Judge-I, Dumka in Sessions Trial No. 121 of 2011 arising out of Kathikund Police Station Case No.08 of 2011 corresponding to G.R. No.236 of 2011, whereby and whereunder the appellant has been convicted under Section 302 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life and a fine of Rs.10,000/-and in default of payment of fine to undergo rigorous imprisonment for one year. 2. The case of the prosecution, as per the fardbeyan of the informant Deshai Dehari, recorded by Surendra Ram, Sub Inspector of Police, Kathi Kund Police Station on 28.02.2011, is that, on 27.02.2011 at about 04.00 p.m. in the evening Ravindra Dehari (appellant) pursuant to a quarrel with his wife, ran to kill his wife with an iron khukhri, but she escaped. Thereafter the appellant ran to kill his daughter Mangri Kumari. Seeing this, the deceased in order to save Mangli Kumari tried to catch hold of the appellant and tried to reason with him but in the meantime the appellant assaulted the deceased on her head with iron khukhri, which caused injury on her head and she sat on the floor and again the appellant attacked her with khukhri severing her head from the body and the deceased died. On hearing hue and cry the neighbours rushed and caught hold of the appellant and in course of the same they also sustained injuries. 3. On the basis of the fardbeyan of the informant, Kathikund Police Station Case No.8 of 2011 was registered for offence under Section 302 of the Indian Penal Code as against the appellant, being the sole accused. 4. After investigation, chargesheet being Charge Sheet No.11 of 2011 dated 31.03.2011 was submitted against the appellant for offences under Section 302 of the Indian Penal Code. Cognizance of the offence was taken by order dated 21.04.2011 and case was committed to the Court of Sessions. Charges were framed under Section 302 of the Indian Penal Code, which was read over and explained to the appellant. The appellant pleaded not guilty and claimed to be tried. 5. Cognizance of the offence was taken by order dated 21.04.2011 and case was committed to the Court of Sessions. Charges were framed under Section 302 of the Indian Penal Code, which was read over and explained to the appellant. The appellant pleaded not guilty and claimed to be tried. 5. Prosecution, in order to bring home the charges, had examined altogether 11 (eleven) prosecution witnesses, namely, P.W.1 Desai Dehari, the informant; P.W.2 Hopna Chunda Marandi, who is also a witness to the Inquest Report; P.W.3 Sonalal Dehari; P.W.4 Ramesh Dehari, who is a witness to the seizure list as well as inquest report; P.W.5 Dukhan Dehari, who is also a witness to the seizure list; P.W.6 Krishankant Dehari; P.W.7 Dr. Ajay Kumar Singh, who had conducted autopsy on the dead body of the deceased; P.W.8 Sundari Maharani; P.W.9 Rooplal Marandi; P.W.10 Kameshwar Singh, the second investigating officer of the case and P.W.11 Hawaldar Silvester Murmu. In addition to examining the above witnesses, the prosecution also got the following documents exhibited: - Ext. 1 Signature of the Informant on the Fardbeyan Ext. 1/1 Fardbeyan Ext. 1/2 Endorsement on the fardbeyan Ext. 2 Signature of witness Ramesh Dehari on the seizure list. Ext.2/1 Signature of the witness Dukhan Dehari on the seizure list Ext.2/2 Seizure list Ext. 3 Signature of the witness Ramesh Dehari on the inquest report Ext. 3/1 Carbon copy of Inquest Report Ext. 4 Postmortem report Ext.5 Signature of S.I. Surendar Rai on the Formal F.I.R. The prosecution has also brought on record material exhibit, one iron Khukhari (Dab) alleged to have been used by the accused for committing murder of the deceased as Material Exhibit I; and blood stained earth as Material Exhibit II. 6. Upon conclusion of the evidence of the prosecution, statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure. He did not adduce any evidence in defence. 7. After hearing the arguments of the parties, upon conclusion of the trial, the appellant has been convicted and sentenced by the Judgment of Conviction and Order of Sentence dated 27th February, 2018, as stated in paragraph 1 of this judgment. 8. Challenging the aforesaid judgment of conviction and order of sentence, the appellant has preferred this appeal. 9. 7. After hearing the arguments of the parties, upon conclusion of the trial, the appellant has been convicted and sentenced by the Judgment of Conviction and Order of Sentence dated 27th February, 2018, as stated in paragraph 1 of this judgment. 8. Challenging the aforesaid judgment of conviction and order of sentence, the appellant has preferred this appeal. 9. Learned Amicus Curiae, defending the appellant, submits that the case hinges on the testimony of P.W.1, who claims himself to be the eye witness. If the First Information Report is read independently, one will get the impression that the P.W.1 the Informant is an eye witness, but if his deposition is read, a doubt is created as to whether he is actually an eye witness or not. In the First Information Report, the informant gave minute details and narrates the cause of committing murder, but while deposing in Court as P.W.1, he does not disclose any details nor states as to why the murder was committed. He argues that as per the prosecution case, villagers had caught hold of the appellant and had confined him, but name of the villagers, who had confined him has not been stated by any of the villagers or witnesses nor any villager, who had caught him, confined him and handed him over to the police were examined as witness. Further, there is a doubt about the place of occurrence as in terms of the First Information Report, the place of occurrence is house of the appellant, but the body was found in the field. There is no whisper by the prosecution as to how the body was found in the field. The main investigating officer has not been examined in this case, which prejudiced the appellant. Amicus Curiae further submits that even the arrest memo has not been proved. On these grounds he prays to allow this appeal. 10. Learned A.P.P. appearing for the State submits that from the First Information Report, it is clear that P.W.1 is an eye witness as he had seen the entire occurrence and narrated in detail as to why and how the murder was committed. On these grounds he prays to allow this appeal. 10. Learned A.P.P. appearing for the State submits that from the First Information Report, it is clear that P.W.1 is an eye witness as he had seen the entire occurrence and narrated in detail as to why and how the murder was committed. He fairly admits that in the deposition, this informant as P.W.1 has not stated as to how and why the occurrence was committed, but he stated that it is this appellant, who committed the murder of the deceased, who happened to be sister of P.W.1. He argues that the witnesses have stated that the villagers had caught and confined the appellant but admitted that the name of those villagers have not been whispered by any one nor they have been examined as witness. He submits that the statement made in the First Information Report by the informant read with his deposition is sufficient to convict the appellant. 11. After hearing the parties, we find that the First Information Report is at the instance of the P.W.1. In the First Information Report, he states that on 27.02.2011 at about 04.00 p.m. in the evening Ravindra Dehari (appellant) pursuant to a quarrel with his wife, ran to kill his wife with an iron khukhri, but she escaped. Thereafter the appellant ran to kill his daughter Mangli Kumari. Seeing this, the deceased in order to save Mangli Kumari tried to catch hold of the appellant and tried to reason with him but in the meantime the appellant assaulted the deceased on her head with iron khukhri, which caused injury on her head and she sat on the floor. Again the appellant attacked her with khukhri severing her head from the body and the deceased died. On hearing hue and cry the neighbours rushed and caught hold of the appellant and in course of the same they also sustained injuries. 12. P.W.1 is the informant himself. He stated that the incident occurred three years ago. Her sister was murdered. She had gone to the neighbour’s house. The person, who had murdered his sister was caught by the villagers. With a khukhri (sharp cutting weapon), murder was committed by severing the head from the body. Ravindra Dehari (appellant) had committed the murder. He stated that he had narrated the incident to the police. He identified his fardbeyan, which is marked as Annexure 1. The person, who had murdered his sister was caught by the villagers. With a khukhri (sharp cutting weapon), murder was committed by severing the head from the body. Ravindra Dehari (appellant) had committed the murder. He stated that he had narrated the incident to the police. He identified his fardbeyan, which is marked as Annexure 1. In cross examination nothing special was extracted from him. P.W.2 is Hoopna Chunda Marandi. He stated that he was in his house when the Chaukidar Mahadeb Mirdha had taken him to Chumarbhui Tola. He had gone and seen that the deceased was dead. Her head was separated from the body and this appellant was kept tied. On query, people said that this appellant with the help of Khukhri committed the murder of the deceased. Police came and prepared the inquest report. On seeing the appellant in Court, he says that it is this appellant, who had committed the murder, who was caught by the villagers, but he said that he does not know his name. From his evidence it transpires that he is not an eye witness to the occurrence and he has only seen the dead body. P.W.3 Sonalal Dehari has stated that he was in his house and on hearing hue and cry from the house of Dishai Dehari, he went to the house of Dishai Dehari and saw the dead body of the deceased lying beside the house of Lakhu. On query, Ajit, who is son of P.W.1 told him that it is this appellant, who had committed the murder by Khukhri. Police came and prepared the document. He heard that there was a dispute between the appellant and his wife and the deceased tried to intervene, when this appellant committed her murder. In cross examination, he stated that when he reached the place of occurrence, several people gathered there and Dishai Dehari, who is P.W.1 had told him about the occurrence. Dukhan Dehari, Ramesh Dehari and others were present there. He stated that the police had not interrogated him. P.W.4 is Ramesh Dehari, who stated that the dead body was recovered from the barren land of Somnath Dehari. Police had seized blood stained Khukhri (murder weapon) and blood stained soil for which seizure list was prepared and he had put his signature. He had identified his signature, which was marked Exhibit 2. P.W.4 is Ramesh Dehari, who stated that the dead body was recovered from the barren land of Somnath Dehari. Police had seized blood stained Khukhri (murder weapon) and blood stained soil for which seizure list was prepared and he had put his signature. He had identified his signature, which was marked Exhibit 2. Police also prepared the inquest report, which was signed by him and his signature was marked as Exhibit 3. He admitted that he had not seen this appellant committing murder. P.W.5 is Dukhan Dehari. He stated that murder was committed by this appellant by separating the head from the body. He stated that the murder weapon was recovered by Ajit from the house of this appellant. Villagers had caught this appellant and when the police came, they handed over him to the police. He stated that he has put his signature on the seizure list of Khukhri, which was marked Exhibit 2/1. He admits that he was not present in the village at the time of occurrence and when he returned he came to know about the occurrence. P.W.6 is Krishna Kant Dehari. He also reached the place of occurrence after hearing hue and cry. He stated that dead body was found on the barren land of Somnath Dehari. On query, he was told that this appellant had committed murder by separating the head from the body. Villagers had caught hold of the appellant. He stated that the Khukhri was also found where the body was lying. He stated that Deshai Dehari, P.W.1 told him that there was quarrel going on between the appellant and his wife and deceased tried to intervene, as a result of which appellant committed her murder. In cross examination, he stated that the police had interrogated him. P.W.7 is the Doctor, who performed postmortem examination on the dead body of the deceased. He found the following antimortem injuries:- 1. Head part and trunk part found separately. 2. Head Part : Sharp cut off skin found all around the upper part of neck in front. Sharp cut of all muscles and vessels of the neck found. First cervical vertebra found in head part with sharp cut of spinal cord. 3. Trunk Part : Sharp cut off skin all over the neck. All muscles and vessels of the neck was cutting sharply. Second cervical vertebra found present at the exposed part of the wound. Sharp cut of all muscles and vessels of the neck found. First cervical vertebra found in head part with sharp cut of spinal cord. 3. Trunk Part : Sharp cut off skin all over the neck. All muscles and vessels of the neck was cutting sharply. Second cervical vertebra found present at the exposed part of the wound. Other cervical vertebra present at trunk part. 4. Matching of the head and truck part: Wound margin of the head part was completely matched with the cut margin of the skin, all muscles and cord and cervical vertebra of the trunk part. Opinion : In the opinion of the doctor the death of the deceased was due to shock and haemorrhage as a result of above injury which is caused by sharp cutting weapon. Time elapsed since death was within 24 hours. The doctor has proved postmortem report which has been marked Exhibit 4. P.W.8 Sundari Maharani is a hostile witness, who happens to be the wife of this appellant. In cross examination, she stated that she has not given any statement to the police that there was any dispute between her and appellant and deceased came to intervene, when she was murdered by the appellant. P.W.9 is Ruplal Marandi. From his evidence, it is clear that he is not an eye witness. He did not even know the name of the deceased as he is a resident of different area of the village. He had only seen the dead body and he does not know, who had committed murder nor he had seen the occurrence. P.W.10 is Kameshwar Singh, who is the Sub Inspector of Police. He only stated that he has taken over investigation from S.I. Surendra Rai. He is the Officer, who has submitted the chargesheet which was numbered as 11 of 2011. P.W.11 is Hawaldar Silwester Murmu, who only produced the Khukhri, the murder weapon and blood stained soil, which was marked as material Exhibit I and Material Exhibit II. 13. From the aforesaid evidence, we find that none of the witnesses have stated as to who are the villagers, who had caught the appellant and handed him over to the police. P.W.1 in the First Information Report has given details as to why and how the occurrence had taken place. 13. From the aforesaid evidence, we find that none of the witnesses have stated as to who are the villagers, who had caught the appellant and handed him over to the police. P.W.1 in the First Information Report has given details as to why and how the occurrence had taken place. In the First Information Report he has stated that this appellant became ferocious as there was quarrel between him and his wife. He went with Khukhri to commit murder of his wife, but his wife escaped. He then tried to kill his daughter when the deceased intervened. Appellant thereafter assaulted the deceased, as a result of which she sustained injury on her head and thereafter by Khukhri severed her head from the body. 14. The statement given by this Information in the Fardbeyan gives an impression that he is an eye witness, but when we go through his evidence, we do not find that any where he has stated that he has seen the occurrence. In his evidence he only states that this appellant has committed murder. He also never stated the cause of the murder in his evidence. He also has not stated that the appellant had first tried to kill his own wife and thereafter not getting her, tried to assault his daughter when the appellant intervened. All these facts about the incident are missing. From the evidence of this witness P.W.1, a doubt is created in the mind of this Court as to whether he is actually the eye witness or not. 15. Further, we find that none of the witnesses have stated that who were the villagers, who had caught the appellant and tied him and handed over to the police. At this stage, it is important to note that the Investigation Officer has not been examined in this case. As the Investigation Officer has not been examined, it is also not clear as to who are the villagers, who handed over the appellant to the police. 16. Another glaring aspect is that of recovery of murder weapon. As per P.W.5, the murder weapon was recovered from the house of the appellant, which was taken out by one Ajit. This Ajit has not been produced as a witness. 16. Another glaring aspect is that of recovery of murder weapon. As per P.W.5, the murder weapon was recovered from the house of the appellant, which was taken out by one Ajit. This Ajit has not been produced as a witness. P.W.5 says that the murder weapon was recovered from the house of this appellant by Ajit whereas P.W.4 stated that a blood stained khukhri (murder weapon) was lying just beside the dead body of the deceased. This is a major contradiction, which only could have been resolved if the Investigating Officer would have been examined. Further, there is no forensic test of the murder weapon to prove that whether there was any blood on it and whether the blood is of any human or that of the deceased. These flaws will only benefit the accused. The daughter of this appellant was also not examined. Be it noted that the wife of this appellant was declared hostile. 17. So far as the place of occurrence is concerned, as per the First Information Report, entire incident occurred in the house of this appellant, but, surprisingly the dead body was lying in the barren land of Somnath Dehari from where the dead body was recovered. This is also a discrepancy about the place of occurrence. 18. Other witnesses, i.e., P.W.2, P.W.3 etc. have stated that the people present at the place of occurrence, had told them that it is this appellant, who had committed the murder. Surprisingly, those villagers were not produced as witnesses nor their names have been disclosed by any of the witnesses. 19. All the aforesaid laches on the part of the prosecution is fatal for the prosecution case. Benefit of these laches should go in favour of the appellant. 20. Thus, we are inclined to hold that the prosecution has not been able to prove the guilt of the appellant beyond all reasonable doubts. There is an element of doubt about the involvement of this appellant in this case. Thus, giving benefit of doubt, we are inclined to allow this appeal. Impugned Judgment of Conviction and Order of Sentence dated 27th February, 2018 passed by the learned Additional Sessions Judge-I, Dumka in Sessions Trial No. 121 of 2011 are hereby set aside. The appellant is acquitted of the charges against him. He is directed to be released from custody forthwith if not wanted in any other case. 21. Impugned Judgment of Conviction and Order of Sentence dated 27th February, 2018 passed by the learned Additional Sessions Judge-I, Dumka in Sessions Trial No. 121 of 2011 are hereby set aside. The appellant is acquitted of the charges against him. He is directed to be released from custody forthwith if not wanted in any other case. 21. Let the Trial Court Records be transmitted to the Court concerned along with a copy of this judgment.