JUDGMENT : (Rongon Mukhopadhyay, J.) 1. Heard Mr. Ravi Prakash, learned counsel for the appellants and Mrs. Priya Shrestha, learned Special P.P. 2. This appeal is directed against the judgment and order of conviction and sentence dated 19.05.2017 (sentenced passed on 23.05.2017) passed by Shri Abni Ranjan Kumar Sinha, learned Sessions Judge, Gumla in Sessions Trial No. 311 of 2010, whereby and whereunder, the appellants have been convicted for the offences punishable u/s 328/34, 302/34 and 120B of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life along with a fine of Rs. 50,000/- each for the offence u/s 302/34 IPC and in default of payment of fine to undergo simple imprisonment for six months, rigorous imprisonment for 10 years along with a fine of Rs. 10,000/- each for the offence u/s 328/34 IPC and in default in payment of fine to undergo simple imprisonment for one month, rigorous imprisonment for 14 years along with a fine of Rs. 10,000/- each and in default of payment of fine to undergo simple imprisonment for one month for the offence u/s 120B IPC. It was further ordered that out of Rs. 70,000/-to be paid by each convict, Rs. 50,000/- each shall be paid to the victim. 3. The prosecution case arises out of the fardbeyan of Dulanti Kumari (P.W. 3) recorded on 03.08.2010, wherein it has been stated that on 02.08.2010, she was in her house when at about 8.30 p.m. her brother Pradip Nagesia had come and straight away went to the house of his uncle Baneshwar Nagesia where the sons of Baneshwar Nagesia, namely, Surendra Nagesia, Dhirendra Nagesia and Suresh Nagesia were present. Her brother returned home at around 9.30 p.m. and disclosed that he had rice in the house of his uncle and he thereafter went to sleep. At about 2 a.m. her brother all of sudden started shouting and she saw her brother wriggling with stomach pain. Her brother disclosed that his uncle and his three sons had forced him to take rice and from that time he is facing uneasiness. It has been stated that foul smelling froth was coming out from the mouth of his brother. She had informed the incident to her neighbours who came and tried to treat her brother with some home remedies. Her brother could not be taken to a Doctor in absence of any conveyance. It has been stated that foul smelling froth was coming out from the mouth of his brother. She had informed the incident to her neighbours who came and tried to treat her brother with some home remedies. Her brother could not be taken to a Doctor in absence of any conveyance. The informant had gone to the house of her uncle and informed him about the incident who came and though he looked perturbed, but he did not say anything. In the meantime, her brother Pradip Nagesia breathed his last at 7 a.m. She has stated that about a month back her father was assaulted by Surendra Nagesia and he was taken to Ranchi for treatment, where he died and his dead body was cremated and they were threatened not to disclose about the incident to anyone. Only her younger brother was alive who was given a small share of the land and in order to grab the entire property her brother was poisoned by the accused persons. Based on the aforesaid allegations, Palkot P.S. Case No. 52/2010 was instituted for the offences punishable u/s 328/302/34/120B of the I.P.C. against the accused persons. On completion of the investigation, charge-sheet was submitted and after cognizance was taken, the case was committed to the Court of Sessions, where it was registered as Sessions Trial No. 311 of 2010. Charge was framed against the accused persons for the offences punishable u/s 328/34, 302/34, and 120B of the 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. 4. The prosecution has examined as many as thirteen (13) witnesses in support of its case. P.W. 1 Ramesh Nagesia has identified his signature in the inquest report which has been marked as Ext. 1. In cross examination he has deposed that police has not recorded his statement. P.W. 2 KishunNagesia has proved his signature in the inquest report which has been marked as Ext. 1/1. In cross examination he has deposed that the deceased was his nephew. The police had not recorded his statement. P.W. 3 Dulanti Kumari is the informant who has stated that on 02.08.2010, she was in her house at night. P.W. 2 KishunNagesia has proved his signature in the inquest report which has been marked as Ext. 1/1. In cross examination he has deposed that the deceased was his nephew. The police had not recorded his statement. P.W. 3 Dulanti Kumari is the informant who has stated that on 02.08.2010, she was in her house at night. Her brother Pradip Nagesia was called by her uncle and he was administered poison laced rice and on return at about 2 a.m., he started feeling uneasy and froth started coming out from his mouth. His uncle came when called who admitted that he had given poison to her brother. The reason for the occurrence is land dispute. In the past also her father was assaulted by the son of his uncle, namely, Surendra Nagesia and he was taken to Ranchi for treatment where he died. She has proved the signature in the fardbeyan which has been marked as Ext. 2 and the signature of witnesses Bandhu Nagesia and Inder Nagesia have been marked as Exts. 2/1 and 2/2. She has proved her signature in her 164 Cr.P.C. statement which has been marked as Ext. 3. In cross examination she has deposed that nobody had come to call her brother. She does not remember as to whether her uncle had called her brother to come to his house while meeting him on the way and she has not stated about the same either in her fardbeyan or in her 164 Cr.P.C. statement. Her father had died one week prior to the death of her brother. Her father was assaulted in her presence for which she had informed the Panchayat, but nothing was done. Her father was taken to Ranchi for treatment by the uncle of his father, namely, Sanichar Nagesia. After her brother had returned from the market, he stayed for half an hour and during that period, he had disclosed that his uncle had called him home. There is already a case pending between both the sides. Her brother had returned at 8 p.m. and he had stated about having dinner in the house of his uncle. P.W. 4 Monika Nagesia has stated that she had learnt that Putla Nagesia was assaulted by his nephew Surendra Nagesia on his stomach. He was taken to Sadar Hospital for his treatment where he died. Her brother had returned at 8 p.m. and he had stated about having dinner in the house of his uncle. P.W. 4 Monika Nagesia has stated that she had learnt that Putla Nagesia was assaulted by his nephew Surendra Nagesia on his stomach. He was taken to Sadar Hospital for his treatment where he died. A Panchayati had taken place in the village for partition of property between Baneshwar Nagesia and Pradip Nagesia and a document was also prepared. He has proved the document which has been marked as Ext. 4/1. He had come to know that after a few days of the partition, Pardip Nagesia was administered poison in the house of Baneshwar Nagesia, as a result of which he died. In cross examination she has deposed that whatever has been stated by her are all hearsay. P.W. 5 Sarita Devi has stated that the incident is of three and half years back, when Sushila had informed her over mobile that her brother had a stomach pain in the night and he died. At this she came to the village and learned that the accused persons had mixed poison in the rice fed to Pradip Nagesia and resultantly he died. In cross examination she has stated that police had not recorded her statement. The incident was informed to her over phone. P.W. 6 Dr Hemant Kumar was posted as Civil Assistant Surgeon in Gumla and on 04.08.2010 he had conducted autopsy on the dead body of Pradip Nagesia and had found the following: (1) Rigor mortise present in lower limb only. Froth and saliva present at angle of mouth. There was no any apparent external or internal injury found on body. So the following viscera preserved in plastic Jar containing saturate solution of common salt, sealed and handed over to police for chemical analysis at Forensic Laboratory Ranchi. (1) Whole of stomach with its contents. (2) Part of Brain. (3) Part of lungs. (4) Part of heart. (5) Part of liver. (6) Part of spleen. (7) Part of Kidney. (8) Part of loop of small intestine. (9) Part of scalp with tuft of hair. (10) Part of nail with its bed. The cause of death could be ascertained after chemical analysis of the viscera. He has proved the postmortem report which has been marked as Ext.-5. (5) Part of liver. (6) Part of spleen. (7) Part of Kidney. (8) Part of loop of small intestine. (9) Part of scalp with tuft of hair. (10) Part of nail with its bed. The cause of death could be ascertained after chemical analysis of the viscera. He has proved the postmortem report which has been marked as Ext.-5. P.W. 7 Vishal Srivastava was posted as a Judicial Magistrate and on 07.08.2010 he had recorded the 164 Cr.P.C. Statement of Dulanti Kumari. He has proved the 164 Cr.P.C. statement which has been marked as Ext. 6. He has identified the signature of Dulanti Kumari in the 164 Cr.P.C. statement which has been marked as Ext. 7. P.W. 8 Inder Nagesia has stated that he had come to know about the death of Pradip Nagesia. An Aam Sabha was held in the village which decided the division of the yielded crop between Baneshwar Nagesia and Pradip Nagesia for which two documents were prepared. He has identified his signature in the partition papers which have been marked as Ext. 4/2 and 4/3. In cross examination he has deposed that in the Panchayat held in the village both sides had entered into a compromise. P.W. 9 Budheshwar Nagesia has made a similar statement as that of P.W. 8. He has proved his signature in the documents regarding partition prepared in the Aam Sabha which have been marked as Exts. 4/4 and 4/5. P.W. 10 Mangri Nagesia did not support the case of the prosecution and was declared hostile by the prosecution. P.W. 11 Basanti Devi has also been declared hostile by the prosecution. P.W. 12 Shivchandra Prasad Singh was posted at Palkot P.S. and on 03.08.2010 he had recorded the fardbeyan of Dulanti Kumari. He has proved the fardbeyan which has been marked as Ext. 9. On the basis of the fardbeyan Palkot P.S. Case No. 53 of 2010 was instituted u/s 328, 302/34/120B I.P.C. and he had taken over the investigation of the case. He has proved the endorsement on the fardbeyan which has been marked as Ext. 9/1. He has identified his handwriting and signature in the forwarding report which has been marked as Ext. 9/2. He has proved the formal F.I.R. which has been marked as Ext. 10. He has proved the endorsement on the fardbeyan which has been marked as Ext. 9/1. He has identified his handwriting and signature in the forwarding report which has been marked as Ext. 9/2. He has proved the formal F.I.R. which has been marked as Ext. 10. After taking over the investigation, he had prepared the inquest report of the deceased Pradip Nagesia upon which the witness Kishun Nagesia and Ramesh Nagesia had signed. He has proved the carbon copy of the inquest report which has been marked as Ext. 11. He had inspected the place of occurrence and had recorded the restatement of the informant. He had also recorded the statement of the witnesses to the inquest report. The place of occurrence is at village Kemba, Tola Bandhdih in the mud house of the informant. In the North-East side adjacent to the house of the informant is the newly constructed house of Baneshwar Nagesia. The informant had disclosed that her brother had rice in the house of the accused and in the night he had a stomach pain and in the morning he died. In course of investigation he had recorded the statement Sarita Devi, Basanti Devi, Sunita Devi and Mangri Devi and had arrested Baneshwar Nagesia and Surendra Nagesia. The statement of the informant was got recorded u/s 164 Cr.P.C. before the Judicial Magistrate. He had also recorded the statement of Sukhlal Nagesia, Budheshwar Nagesia, Kapileshwar Nagesia, Baiju Nagesia, Sanichar Nagesia, Indra Nagesia, Lughu Nagesia, Suchita Nagesia, Mangari Nagesia, Monika Nagesia, Somari Nagesia and Sunita Nagesia and all have supported the case of the prosecution and had stated that about 20 days back Surendra Nagesia had kicked on the stomach of Putla Nagesia, the father of the deceased Pradip Nagesia and when he complained of stomach pain, he was taken for treatment to some place by Baneshwar Nagesia and Surendra Nagesia and when he died they had done his last rites after which Pradip Nagesia was pressurized for partition of the property. The Panchayat had divided the property and a Panchnama was prepared which had been produced by the Panches. The Panchayati document has been proved and marked as Ext. 12. He has proved the seizure list of the Panchnama which has been marked as Ext. 13. In course of investigation he had arrested Suresh Nagesia, whose confessional statement was recorded and which has been marked as Ext. 14. The Panchayati document has been proved and marked as Ext. 12. He has proved the seizure list of the Panchnama which has been marked as Ext. 13. In course of investigation he had arrested Suresh Nagesia, whose confessional statement was recorded and which has been marked as Ext. 14. He has also proved the arrest warrant, which has been marked Ext. 15. He had obtained the postmortem report and on the order of the supervising authority, he had submitted charge sheet against the accused showing Birendra Nagesia as an absconder. Mangari Nagesia and Basanti Devi in their statements have fully supported the prosecution case. In cross examination he has deposed that no case was lodged with respect to the death of Putla Nagesia. P.W. 13 Dr. Kiran Kumar was posted as an Assistant Director, S.F.S.L., Ranchi, and on examination of the viscera of the deceased it was opined as follows:- “An organo phosphorous pesticide was deducted in the portion of viscera contained in glass jar, described above.” 5. The statements of the accused were recorded under Section 313 Cr.P.C. in which they denied their involvement in the murder of Pradip Nagesia. 6. It has been submitted by Mr. Ravi Prakash, learned counsel for the appellants that the implication of the appellants seems to be on the basis of suspicion. It has been submitted that no one had seen the deceased having rice in the house of the appellants or the fact that the said rice even if fed to the deceased contained poison. The investigating officer has failed to recover any incriminating articles which would be suggestive of the involvement of the appellants in the poisoning of Pradip Nagesia. Once the partition had taken place amicably at the behest of Panchayat there was no occasion for existence of any enmity resulting in the appellants taking a drastic step in eliminating the deceased Pradip Nagesia. 7. Mr. Priya Shrestha, learned Spl.PP has submitted that there are strong circumstances indicating the involvement of the appellants and in fact the presence of organo phosphorus pesticide in the viscera of the deceased corroborates the allegations leveled against the appellants. 8. We have heard the rival submissions and have also perused the lower court records. 9. The appellants have been charged for committing the murder of Pradip Nagesia by poisoning him. 8. We have heard the rival submissions and have also perused the lower court records. 9. The appellants have been charged for committing the murder of Pradip Nagesia by poisoning him. It has been stated that a few days back the father of the informant was assaulted by Surendra Nagesia (appellant No. 2), as a result of which, he started suffering from stomach pain at which Baneshwar Nagesia (appellant No. 1) and Surendra Nagesia (appellant No. 2) had taken him for treatment, but he died and he was cremated. The death of the father of the informant and the subsequent death of her brother Pradip Nagesia have been projected to be the handiwork of the appellants who under a conspiracy to grab the entire property had eliminated both. The death of the father of the informant and his cremation was surreptitiously done as per the prosecution, but admittedly no case was instituted and even in course of investigation in the present when this fact was disclosed no efforts were taken to lodge any report. The informant and her brother had kept silent and this would lead us to believe that there was no intriguing factor involving the appellants in such death. Enmity is the cause which led to the death of Pradip Nagesia, but as would appear from the Panchayat document marked as Ext. 12, a partition had already taken place between the appellants and the informant side. The partition being amicable any attrition between the parties as has been alleged emphatically subsides. Even if we accept the version of the prosecution regarding existence of enmity, there was no occasion for the deceased Pradip Nagesia to have gone to the house of the appellants and have a meal. There is no allegation that rice was forcibly administered upon the deceased by the appellants. The finding of the F.S.L. report reveals organo phosphorus pesticide in the viscera of the deceased. Organo phosphorus pesticide is itself a foul smelling chemical and mixing it with rice would automatically arouse suspicion, leading to desisting in intake of the rice. There are no eye witnesses to the occurrence and only on presumption, the appellants have been implicated. Nothing incriminating has been recovered by the investigating officer, which would enhance the circumstantial evidence against the appellants of committing the murder. 10. There are no eye witnesses to the occurrence and only on presumption, the appellants have been implicated. Nothing incriminating has been recovered by the investigating officer, which would enhance the circumstantial evidence against the appellants of committing the murder. 10. The learned court has primarily relied upon the evidence of P.W. 3 and P.W. 12 and the findings in the F.S.L. report in convicting the appellants. As we have discussed, the circumstantial evidence brought forward by the prosecution is weak in nature and though motive plays an important part in a case of circumstantial evidence, but here also motive does not seem to be in a position of prominence. 11. We, therefore, on the basis of what has been discussed above, set aside the judgment and order of conviction and sentence dated 19.05.2017 (sentenced passed on 23.05.2017) passed by Shri Abni Ranjan Kumar Sinha, learned Sessions Judge, Gumla in Sessions Trial No. 311 of 2010. This appeal is allowed. 12. The appellant No. 1 has died and this appeal has already been abated as against him. Since the appellants No. 2 and 3 are in custody, they are directed to be released forthwith, if not wanted in any other case.