JUDGMENT : Pradeep Kumar Srivastava, J. Heard learned counsel for appellant as well as learned Additional Public Prosecutor appearing for the State. 2. Above named sole appellant has preferred this appeal challenging his conviction and sentence dated 27.09.2014/29.09.2014 passed by learned Additional Sessions Judge-Ist, Seraikella in Sessions Trail No. 47/2006 for the offences under Section 302 and 201/34 of I.P.C. and sentenced to undergo imprisonment for life along with fine of Rs.5000/- for the offence under Section 302 and further R.I. of 4 years along with fine of Rs.1,000/- for the offence under Section 201/34 of the I.P.C with default stipulation. FACTUAL MATRIX 3. Factual matrix giving rise to this appeal is that on 14.01.2006, informant Anil Hembram along with father Upal Hembram had gone to see cock fight at village Podogora. In the evening, at about 06:00 PM, informant left the place saying his father that he is returning by his bicycle and he has to come on foot. It is further alleged that the informant’s father did not return in the night then, in the next day morning, he started searching his father and enquired with several villagers and relatives, but no clue was found. It is further alleged that on 18.01.2006, in the morning informant’s brother Chetan Hebram went to village Bhusandi where one Dursu Hebram told that his father might have been killed by Shikhar Hansda and Chetan Hansda and his dead body may be found in the pond at village Bhusandih. The informant along with other villagers met with Brindaban Manjhi, Dursu Hembram, Logan Hembram and Pakhan Tudu etc. who disclosed that his father was returning with Sikhar Hansda in the night of Sunday from village Podogora. Thereafter, they have not seen him. Chandan Hansda (present appellant) was also seen with them. They also disclosed that in the night at about 10:00 PM, they have also heard and seen Sikhar Hansda was doing something in the village pond calling bhoot, but the villagers ignored them due to night and also in view of fact that both were extremely under drunken state. It is further alleged that due to suspicion, the informant and villagers started searching his father in the pond and found a dead body tied with a log which was brought out and village chowkidar was also informed. It is further alleged that due to suspicion, the informant and villagers started searching his father in the pond and found a dead body tied with a log which was brought out and village chowkidar was also informed. Police arrived in the morning of 19.01.2006 and fardbeyan of the informant was recorded by S.I. Dhannajay Singh, Officer-In-Charge, Nimdih Police Station at about 09:00 AM. Accordingly, an F.I.R. was registered at Nimdih P.S. Case No. 6/2006 dated 19.01.2006 for the offences under Section 302/201 read with Section 34 I.P.C. Charge of investigation was also assumed by S.I. Dhananjay Singh (P.W.13) who after completion of investigation submitted charge-sheet against the appellant and his brother Shikhar Hansda for the offences under Section 302/201 of I.P.C. 4. Accordingly, the case was commuted to the Court of Sessions and the charges were read-over and explained to the accused persons, who denied the charges and claimed to be tried. 5. In the course of trial, the other co-accused person namely Sikhar Hansda died, hence proceeding against him was dropped and the present appellant has faced the trial. 6. In the course of trial, prosecution has examined altogether 13 witnesses and also adduced following documentary evidences. (i) Exhibit 1: - Signature of informant on Fardbeyan. (ii) Exhibit 1/1 and 1/2: - Signature of witnesses, Motilal Hembram and Mohan Hembram respectively, over inquest report of the deceased. (iii) Exhibit 2 and 2/1:- Fardbeyan and endorsement on Fardbeyan for registration of case, respectively. (iv) Exhibit 3: - Formal F.I.R. (v) Exhibit 4: - Inquest Report and, (vi) Exhibit 5: - Post-mortem report of the deceased. 7. On the other hand, in the statement recorded under Section 313 of the Cr.P.C, the accused has pleaded innocence and false implication in the case only on the basis of suspicion. However, no oral or documentary evidence has been adduced by the defence. 8. Learned Trail Court, after apprising with the oral as well as documentary evidence available on record arrived at conclusion that although, there is no direct evidence against the accused, but there are sufficient circumstantial evidences showing that the accused and his brother Sikhar Hansda were last seen with the deceased in the same night while they were returning from mela. Thereafter, in the night accused Shikhar Hansda was raising alarm of “Bhoot-Bhoot” and searching something in the pond. Thereafter, in the night accused Shikhar Hansda was raising alarm of “Bhoot-Bhoot” and searching something in the pond. Accused Chandan Hembram was also present there hence, the villagers were suspecting reasonably that the accused persons have killed the father of the informant. The dead body of the deceased was also found in the same pond which clearly indicates the involvement of the accused persons in the alleged offence of murder. Accordingly, held the appellant guilty and sentenced him for the offences under Section 302 and 201/34 of the I.P.C. as stated above which has been assailed in this appeal. 9. The learned counsel for the appellant while assailing the impugned judgment and order has vehemently argued that the learned Trial Court has committed serious illegality while appreciating the evidence of witnesses wherein no role has been attributed against the appellant rather it has been stated by some witnesses that in the night of incident at about 10:00 PM, the brother of the present appellant namely Shikhar Hansda was searching something in the pond situated in his village saying that he is searching “Bhoot”, but the witnesses believing that under heavy drunken state, Shikhar Hansda was doing such abnormal behavior and went away. The allegation against the appellant is that he was also present with his brother Shikhar Hansda. It is further submitted that neither the appellant has been last seen with the deceased at any point of time nor any scuffle ever took place between the deceased and the appellant and there were no inimical terms between them prior to the alleged occurrence. There is no evidence that the dead body of the deceased was brought out from the said pond on identification of the present appellant. 10. The learned Trial Court simply on the ground that present appellant is real brother of the co-accused Shikhar Hansda (since deceased) has fastened the criminal liability for such a serious offence of murder with the appellant without any cogent evidence. As such conviction and sentence of the present appellant is absolutely not warranted under law and fit to be set aside. 11. As such conviction and sentence of the present appellant is absolutely not warranted under law and fit to be set aside. 11. Per contra, learned counsel for the State has opposed the aforesaid contentions raised on behalf of the appellant and submitted that learned trial court has very wisely and aptly apprised, scanned and appreciated the oral as well as documentary evidences available on record against the appellant and arrived at right conclusion that the appellant was also seen with the deceased on the fateful night and subsequently, he along with his brother Shikhar Hansda in pretext of searching ghost were disposing of the dead body of the deceased which was brought out on suspicion of villagers and the matter was informed to the police. There is no illegality or infirmity in the impugned judgment and order calling for any interference by way of this appeal which has no merits and is fit to be dismissed. 12. In view of the rival contentions of the learned counsels, the moot question arises as to whether the conviction and sentence of the appellant is justified under law or not? 13. For better appreciation of the merits of the impugned judgment, it is desirable to apprise with oral testimony of witnesses examined by the prosecution. P.W.13 Dhananjay Singh, who is S.I., Officer-In-Charge is the Investigation Officer of the case and prepared the inquest report (Exhibit 4) in presence of the witnesses namely Motilal Hembran and Mohan Hembram He has also sent the dead body of the deceased for Post-mortem at MGM Hospital, Jamshedpur. He visited the place of occurrence which is pond situated in village Bhusandih which is 10 feet deep, but there was only 3 feet water. There were about 25 logs measuring 7-8 feet in the said pond. It is stated by the witness that with the help of these log, the dead body of the deceased was drowned in the pond which was brought out by the villagers. There were about 25 logs measuring 7-8 feet in the said pond. It is stated by the witness that with the help of these log, the dead body of the deceased was drowned in the pond which was brought out by the villagers. In the course of investigation, he recorded the statement of the witnesses, obtained post-mortem report of the deceased, arrested the accused persons and after finding sufficient evidences, submitted charge-sheet for the offence committed under Section 302, 201/34 of I.P.C. P.W.4:--Anil Hembram, is the informant of this who has corroborated the contents of his Fardbeyan and stated that on 15.01.2006, he along with his father went to see cock fighting at village Podogora from where when he was returning in the evening, but his father assured to return later on, did not reach the house till night. On the next day, he searched his father along with other family members, but no clue was found. On 18.01.2006, he enquired with Shyam Prasad son of Shikhar Hansda who expressed his no knowledge about his father. He has further deposed that his elder brother Chetan Hembram was also searching his father and met with one Dursu Hansda (P.W.2) who disclosed that on 15.01.2006 in the night, he has seen his father with Shikhar Hansda and went in his house. He also told that in the night at about 10:00 PM, Shikhar Hansda was calling “Bhoot-Bhoot” where Chandan Hansda (present appellant) was also present. He also expressed his suspicion that Shikhar Hansda and Chandan Hansda might have killed Upal Hansda (deceased) and disposed of the dead body in the pond. This witness has further deposed that thereafter, this witness along with village Chowkidar and other villagers went to the pond of Shikhar Hansda where the dead body of his father was found tied with rope to a big log. In the next day morning, police arrived at the pond where his statement was recorded. In his cross-examination, this witness has clearly admitted that prior to occurrence there was some dispute between the deceased and co-accused persons and there were no talking terms between them. P.W.2 Dursu Hembram who have disclosed the last seen theory to the informant (P.W.4) has simply stated that on 15.06.2006 in the evening, he saw deceased (Upal Hansda) with co-accused person Shikhar Hansda and some other villagers were returning from village Fair (Mela). P.W.2 Dursu Hembram who have disclosed the last seen theory to the informant (P.W.4) has simply stated that on 15.06.2006 in the evening, he saw deceased (Upal Hansda) with co-accused person Shikhar Hansda and some other villagers were returning from village Fair (Mela). In the night he heard Hulla of “Bhoot-Bhoot” raised by Shikhar Hansda near his pond (pit), Chandan Hansda (appellant) was also present there, but he ignored due to extreme state of drunkenness of Shikhar Hansda and he also saw. He has further deposed that in the next day morning, when son of Upal Hembram (deceased) met him and disclosed that his father is missing since 15.06.2006, then on suspicion he searched in the pond of the accused and a dead body was found and the matter was informed to police. P.W. 3 Logan Hembram has also stated about the last seen theory that the deceased (Upal Hembram) was seen with Shikhar Hansda and P.W.5 Pakhan Tudu is not a witness of last seen theory, he heard the hulla and saw Shikhar Hansda was calling “Bhoot-Bhoot” in his pond (Pit). He suggested him (Shikhar Hansda) to come out and go to his home, thereafter, he returned his home. P.W. 6 Shivnandan Manjhi has been declared hostile by the prosecution. P.W. 7 Motilal Hembram is also a hearsay witness who came to know about last seen theory from Dursu Hembram (P.W.2) and came to know that Shikhar Hansda was searching “Bhoot” in his pond (pit) when dead body was recovered from the pond, Chandan Hansda and Shikhar Hansda fled away. P.W. 8 Dasrath Hembram, P.W.9 Ajit Hembram and P.W.10 Mohan Hembram, all are the hearsay witnesses and stated in their statement that they all came to know about the incident from Dursu Hembram (P.W.2) that Shikhar Hembram was searching “Bhoot” in his pond (pit). P.W.11 Sundari Hembram is daughter-in-law of the deceased and she is also a hearsay witness and came to know about the incident from his husband (Chetan Hembram). P.W.12 Chaitan Hembram, is also son of the deceased and came to know about the incident from Dursu Hembram (P.W.2) that his father has been killed by Shikhar Hansda and Chandan Hansda and the dead body has been disposed off in the pond (pit). The accused persons did not disclose anything to him. 14. P.W.12 Chaitan Hembram, is also son of the deceased and came to know about the incident from Dursu Hembram (P.W.2) that his father has been killed by Shikhar Hansda and Chandan Hansda and the dead body has been disposed off in the pond (pit). The accused persons did not disclose anything to him. 14. From bare perusal of aforesaid testimony of ocular witnesses, it is crystal clear that the main witness Anil Hembram (P.W.4) and Dursu Hembram (P.W.2) have stated that the deceased was returning from the village fair (Mela) along with Shikhar Hansda (Co-accused, since deceased) and in the same night at about 10:00 PM, after hearing noise, they came out and saw that Shikhar Hansda was searching something in his pond saying “Bhoot-Bhoot”. The role of the present appellant is that he was also present with his brother (Shikhar Hansda). The appellant has not been claimed to have seen together with the deceased at the time of returning from village fair (Mela). It is also an admitted fact that there was no talking terms between the deceased and the accused persons. It is quite obvious that no incriminating circumstance including the last seen theory has been propounded against the present appellant by the prosecution. 15. We have given anxious consideration to the overall facts and circumstances available on record by the prosecution and of considered view that the last seen theory as propounded by the prosecution in this case is only against the co-accused Shikhar Hansda who died during the pendency of the trial. Mere presence of the appellant along with main accused Shikhar Hansda is of no consequence in this case. The prosecution has miserably failed to point out any incriminating circumstance against the appellant from which his guilt may be presumed conclusively. It appears that the learned trial court has miserably failed to properly appreciate the circumstantial evidence available against the appellant and arrived at wrong conclusion. 16. From the evidences on record as discussed above, it is obvious that present appellant was never seen with the deceased on the fateful date of incident nor he was found in suspicious circumstances showing his guilty mind. The appellant has been convicted only on the basis of suspicion. It is established law that suspicion howsoever grave it may be, cannot take place of legal proof. 17. The appellant has been convicted only on the basis of suspicion. It is established law that suspicion howsoever grave it may be, cannot take place of legal proof. 17. In view of aforesaid discussion and reasons, we arrived at definite conclusion that the conviction and sentence of the appellant is not justified under law. Accordingly, we find merits in this appeal which is hereby, allowed and conviction and sentence of appellant passed by Additional Sessions Judge-Ist, Seraikella in Sessions Trial No. 47 of 2006 is hereby set aside and appellant is acquitted from the charges levelled against him. 18. Appellant is in custody and directed to be released forthwith, if not required in any other case. 19. Let the copy of this judgment along with record of trial court be sent back to concerned Court for information and needful. 20. Pending Interlocutory Application (if any) is disposed of.