JUDGMENT : ANANDA SEN, J. 1. We have heard the learned senior counsel appearing for the appellants and the learned counsel for the State at length. 2. This Criminal Appeal arises out of the judgment of conviction dated 27.09.2002 and order of sentence dated 30.09.2002 passed in Sessions Trial No. 212 of 1996 whereby and whereunder learned Sessions Judge, Simdega convicted the appellants under Section 302/34 of the Indian Penal Code and sentenced them to undergo RI for life. 3. The FIR is at the instance of PW1, namely, Deo Narayan Singh. The FIR has been marked as exhibit-6. He narrated that on 20.10.1994 in the afternoon he had gone to Bolba weekly market. His nephew (though stated cousin), namely, Ramashankar Singh (deceased) had also gone to the same market in his motorcycle. They remained in the market till 6:00 PM when they proceeded to their respective house. The informant was in the cycle and Ramashankar Singh was in his motorcycle. They were moving keeping a distance between them. At about 6:05 PM when they reached near a culvert ahead of Bolva Animal Husbandry Hospital, these appellants, namely, Mukesh Singh, Chandrashekhar Singh, Bijay Singh, Hemant Das, Janglu Gosain appeared from the bush with an intention to commit murder, attacked Ramashankar Singh. One Suresh Singh was standing at a distance keeping a guard on the appellants. Ramashankar Singh fell down from his motorcycle. The appellants i.e. Mukesh Singh, Hemant Das and Janglu Gosain gave severe blows, with their respective weapons which they were holding, causing injuries on the face and right side of the temple and several parts of the body. Ramashankar Singh sustained incised cut injuries and he became senseless as a result of bleeding. It is further mentioned that Chandrashekhar Singh and Bijay Singh caught hold of Ramashankar Singh when the assault was going on. The aforesaid incident was witnessed by the informant and several other persons but others fled out of fear. Once the deceased become senseless, the accused fled from the place of occurrence. The informant raised alarm when Dibru Thakur PW3 of village Palemunda reached the place of occurrence but seeing the incident he also fled without adhering to the request of the informant to stay there. Meanwhile from some sources the police received information about the said assault and reached at the place of occurrence. The informant raised alarm when Dibru Thakur PW3 of village Palemunda reached the place of occurrence but seeing the incident he also fled without adhering to the request of the informant to stay there. Meanwhile from some sources the police received information about the said assault and reached at the place of occurrence. With the help of Habil Xess PW4 and other villagers the injured was brought to the Bolba Hospital for treatment. After administering some preliminary treatment he was advised to be shifted to the Simdega Hospital. Soon thereafter Maksudan Singh came to Bolba Hospital and informed that Ramashankar Singh has succumbed to the injuries, while he was on his way to Simdega Hospital. The body was brought back to Bolwa Hospital when the doctor declared him dead. 4. The genesis of the occurrence as stated in the fardbeyan is that Ramashankar Singh had some land dispute with Mukesh Singh and Vijay Singh and the rest of the assailants were their supporters. Thus the incident had occurred. On the basis of the aforesaid fardbeyan Bolba PS Case No. 13 of 1994 dated 20.10.1994 was instituted under sections 147, 148, 149, 324, 326, 307 and 302 of the Indian Penal Code 5. After investigation, the Investigating Officer submitted chargesheet against Mukesh Singh, Chandrashekhar Singh, Hemant Das, Bijay Singh, Janglu Gosai, Suresh Singh and also accused persons who were not named in the FIR like Rameshwar Singh, Bandhan Singh and Rabinder Singh for committing the offence punishable under Sections 147, 148, 149, 324, 326, 307, 302 and 120B of the Indian Penal and appellants were put on trial. 6. On the basis of chargesheet and materials available on record cognizance was taken and case was committed to Court of Sessions where charges were framed under Section 147, 148, 149, 324, 306, 307, 302 and 120B of the Indian Penal Code and trial proceeded. 7. It is pertinent to mention here that Suresh Singh, Rameshwar Singh, Bandhan Singh, Rabinder Singh, Chandrashekhar Singh and Bijay Singh were charged under section 302/149 of the Indian Penal Code whereas Mukesh Singh, Hemant Das, Jagru Gosai @ Jagru Das have been separately charged for offence under section 302 of the Indian Penal Code. 8. To prove the prosecution case, altogether 15 witnesses were examined by the prosecution, who are as under:- i. PW1 :- Deo Narayan Singh (informant) ii. PW2 :- Sukhdeo Senapati iii. 8. To prove the prosecution case, altogether 15 witnesses were examined by the prosecution, who are as under:- i. PW1 :- Deo Narayan Singh (informant) ii. PW2 :- Sukhdeo Senapati iii. PW3 :- Dibru Thakur iv. PW4 :- Habil Xess v. PW5 :- Uma Devi vi. PW6 :- Maksudan Singh vii. PW7 :- Babita Kumari viii. PW8:- Dr. C. N. Jha ix. PW9:- Durgawati Devi x. PW10:- Nannka Singh xi. PW11:- Lahar Singh xii. PW12:- Parsuram Das xiii. PW13:- Sarju Pandit, I.O. xiv. PW14:- Bachhu Prasad xv. PW15:- Surajdeo Singh 9. Following documents have been exhibited : i. Ext.1 – Fardbeyan ii. Ext.2 – signature of Babita Kumari in statement u/s 164 Cr.PC iii. Ext.2/1 & 2/2 – Signature of PWs Lahar Singh and Parshuram Das on seizure list iv. Ext.3 – Postmortem Report v. Ext.4 – Injury Report vi. Ext.5 – Seizure list vii. Ext.6 – FIR viii. Ext.7 – Inquest report ix. Ext.8 – Injury report by doctor of Ramashankar Singh x. Ext.9 – Statement u/s 164 Cr.PC of Durga Kumari xi. Ext.9/1 – Statement u/s 164 Cr.PC of Babita Kumari xii. Ext. 9/2 - Statement u/s 164 Cr.PC of Narayan Singh xiii. Ext.10 – Letter of son-in-law of B.N. Singh xiv. Ext.11 – Report of Regional Forensic Science Laboratory 10. After closure of the prosecution evidence statement of the accused were recorded under section 313 of the Cr.PC. The appellants denied the situations and circumstances which were put to them. The defence has also examined one witness, namely, Uma Shankar Jaiswal. The trial Court after considering the evidence led by the parties convicted the appellants and sentenced them as aforesaid. 11. Mr. B. M. Tripathi, the learned senior counsel submits that the entire case revolves upon the sole eyewitness i.e PW1 but if the evidence of PW1 is read with the evidence of PW13 i.e I.O and PW4 then the only conclusion would be that PW1 was not present at the place of occurrence. He submits that PW3 though has been declared hostile, as per his statement also PW1 was not present at the place of occurrence when the incident had taken place. In his cross examination also this aspect has not been touched. He submits that PW3 though has been declared hostile, as per his statement also PW1 was not present at the place of occurrence when the incident had taken place. In his cross examination also this aspect has not been touched. If PW1 is held not to be present at the place of occurrence when the incident had taken place, then there is no other witness to support the prosecution case, that these appellants had committed murder of the deceased. PW10 had stated that they have only seen these appellants fleeing with Balua towards the forest but that circumstance is a very week piece of circumstance to implicate these appellants in the crime. So far as PW7 is concerned his statement is of no consequence as he said that he had seen one of the accused (non-appellants) at 3:00 O’clock going with the Balua. This witness is of no relevance, as the aforesaid statement is unrelated with the time of the entire incident. PW13 who is the investigating officer states that on receiving information he reached the place of occurrence and found the deceased lying in injured condition. This witness has taken the name of PW4 to be present there with whose help he transported the injured to the hospital but he has not whispered about presence of PW1 which also strengthens case of the appellants that PW1 was not present in the place of occurrence. The rest of the witnesses are admittedly hearsay witnesses or are hostile. He submits that the circumstance that the appellants were seen fleeing towards the forest has not been put to the appellants while their statements were recorded under section 313 Cr.PC. Once a circumstance which emerges from evidence against the accused is not put to the accused for clarification, while his statement is recorded under section 313 of Cr.PC, the said circumstance cannot be used against the accused. He lastly submits that none of the witnesses have stated that they had seen the deceased and the informant together either in the market or they were returning together to their respective home. On these grounds he prays for their acquittal. 12. The learned counsel appearing on behalf of the State submits that PW1 is an eye-witness. He has given vivid description as to how these appellants have committed murder of the deceased. On these grounds he prays for their acquittal. 12. The learned counsel appearing on behalf of the State submits that PW1 is an eye-witness. He has given vivid description as to how these appellants have committed murder of the deceased. He further stated that all the other witnesses had fled from the place of occurrence out of fear. Thus it is natural that there would not be any other to support the prosecution case. He submits that the statement of PW1 inspires confidence and he is a reliable witness which is sufficient to convict the appellants. He also submits that the informant has also stated in the fardbeyan the genesis of the occurrence which is a land dispute between the parties. The doctor has also suggests that the death is homicidal and the manner in which the assault was done as stated in the fardbeyan is corroborated by the medical evidence. 13. The Doctor who conducted the postmortem is PW8. He found the following injuries on the dead body of the deceased. Whole face was bandaged on removal of bandage, the following two injuries, which were stitched, were found: i. On opening the stiches, a transversed incised wound measuring 10” x 1” x 2 ½” situated on right side of face, extending from middle of nose to right side of neck was found. On tracing the injury further right carotid arteries and other vessels were found severed. ii. On opening the stiches a transversed incised wound measuring 5” x 1” x 4” situated on left side of face extending from nose to left ear was found. On tracing the injury further, left auxiliary bone was cut, brain matter was looking outside. Besides above two bandaged wounds, the doctor found the following injures too:- (i) incised wound 2” x 1” x ½” situated on left side of back, 1 ‰“ lateral to mid line. (ii) incised wound 1” x … “ x skin deep on right side of back 1” lateral to mid-line. The doctor opined that all the injuries were antemortem in nature caused by sharp cutting weapon like balua and tangi. Bandaged injures were grievous in nature. While the other injuries were simple in nature. Both the bandaged wounds were sufficient to cause death in normal course. The cause of death was due to shock and hemorrhage due to bandaged injury nos. 1 and 2. Bandaged injures were grievous in nature. While the other injuries were simple in nature. Both the bandaged wounds were sufficient to cause death in normal course. The cause of death was due to shock and hemorrhage due to bandaged injury nos. 1 and 2. Thus, we find that the prosecution has proved the death of the deceased to be homicidal. 14. While going through the documents and the evidences, we find that the case hinges upon the testimony of PW1 only. PW1 is the informant and the sole eye witness. He has narrated in his evidence as what he has stated in his fardbeyan. He stated that he was returning from the village market and his nephew (deceased) was a few meters ahead of him. He was in his motorcycle and this informant was in his cycle. When they reached near the culvert which was ahead of Animal Husbandry Hospital, these appellants ambushed his nephew and assaulted him with balua and injured him very badly. He also stated that there were several persons who were present there but they fled out of fear. PW3 was requested to stay, but he also fled. He narrates as to how the assault was made. 15. If we read his evidence in isolation, it gives us an impression that he is an eye witness as he has seen the occurrence. He also stated that the police also arrived at the place of occurrence. But there is a twist. PW13 is the I.O he states that he had received information that near the market someone has been assaulted and is lying in the injured conditions. The I.O immediately reached the place of occurrence with the police force and found the deceased lying injured who was to be transported to the hospital. The I.O says that with the help of Habil Xess PW4 he was transported the injured to the hospital. This I.O did not even take the name of the informant, who according to the informant was present there. Be it noted that the informant is none but the maternal uncle of the injured. If he was really present at the place of occurrence his name should have been firstly spelt out by the I.O. His statement creates a doubt in the mind of this Court as to whether actually PW1 was present at the place of occurrence or not. PW3 has been declared hostile. If he was really present at the place of occurrence his name should have been firstly spelt out by the I.O. His statement creates a doubt in the mind of this Court as to whether actually PW1 was present at the place of occurrence or not. PW3 has been declared hostile. Though he has been declared hostile but he stated that he was in the market when he heard that Ramashankar has been assaulted near the culvert. On hearing this he and PW1 Deonandan Singh (informant) rushed from the market to the place of occurrence and had seen the deceased in an injured condition. Though at this stage he has been declared hostile but on this point he has not been cross examined by the prosecution. Further from the testimony of PW4 we also doubt the presence of PW1 informant at the place of occurrence. Name of PW4 appears in the deposition of the I.O, as the I.O stated that with the help of PW4 he transported the deceased in an injured condition to the hospital. PW4 in his evidence stated that he has helped the I.O to transport the deceased in an injured condition to the hospital. This PW4 also does not whisper about the presence of PW1. All these witnesses and their statement creates a doubt in mind of this Court as to whether actually PW1 was present at the place of occurrence or not. The credibility of the witness PW1 thus is doubted by this Court. 16. So far as PW7 is concerned she states nothing about these appellants. She takes the name of one Paku Singh going with the Balua at about 3:30 O’clock which is about three hours before the occurrence. Thus his statement is of no use for the prosecution. 17. PW10 stated that he had seen these appellants with the balua fleeing towards the forest at about 6:30 PM. Though the time matches but this statement stand alone cannot be sufficient material to convict these appellants. Further we find that this circumstance which has come from the mouth of PW10 has not been put to the appellants when his statement was recorded under section 313 Cr.PC. The circumstances and statements which the witnesses depose to implicate an accused, if not put to the accused, while recording his statement under section 313 Cr.PC, cannot be used against him. The circumstances and statements which the witnesses depose to implicate an accused, if not put to the accused, while recording his statement under section 313 Cr.PC, cannot be used against him. Even if for the sake of argument we accept the said fact, then also there are no sufficient circumstance to convict the appellants. 18. All the other witnesses are either hearsay or hostile. They have heard the story from PW1 or others. Since we have doubted the presence of PW1 at the place of occurrence, what he had stated before others simply losses relevance. 19. Considering what has been held above, by giving benefit of doubt we acquit above named appellants. 20. Criminal Appeal (DB) No. 658 of 2002 is allowed. 21. Accordingly, judgment of conviction dated 27.09.2002 and order of sentence dated 30.09.2002 in Sessions Trial No. 212 of 1996 passed by the learned Sessions Judge, Simdega is set aside. 22. Since all the appellants are on bail, they are discharged of the liability of their bail bonds, so are their bailors. 23. Let a copy of the judgment along with the Trial Court Records be sent back to the Court concerned forthwith.