JUDGMENT : R.Mukhopadhyay, J. Heard Mr. Mahesh Tewari, learned counsel appearing for the appellant and Mr. S.K. Srivastava, learned A.P.P. 2. This Appeal is directed against the judgment and order of conviction and sentence dated 16.07.2009 (sentence passed on 18.07.2009) by Shri Rabindra Nath Tiwari, Learned Additional Judicial Commissioner, Fast Track Court, Khunti in Sessions Trial No.449 of 1999 whereby and whereunder the appellant has been convicted for the offence punishable under Sections 302/34 of the I.P.C. and has been sentenced to undergo rigorous imprisonment for life. 3. The Fardbeyan of Bhola Mahto was recorded on 18.09.1998 at 11.30 P.M in which it has been stated that on the same day at 3.30 P.M. he had sent his son to the market and he was going to cut grass in his field. When he had heard a commotion coming from the house of Aklu Mahto (appellant) the informant went towards the courtyard of Aklu Mahto and he had seen Aklu Mahto close the door. Along with the informant was Ghumesh Mahto. When he asked Aklu Mahto about the happenings, he disclosed that there was a black thief inside. The informant thereafter went to cut grass. The Police came at night and when the door of Aklu Mahto was opened, the informant saw his nephew Ramu Mahto lying dead in the kitchen. When the Police opened the door, two daughters of Aklu Mahto namely Sarita Kumari and Anita Devi were found sitting. The informant was of the belief that his nephew has been murdered by the daughters of Aklu Mahto with the assistance of some male. When the box of Ramu Mahto was opened, the photographs of Anita and Sarita and two love letters were recovered which indicated that Ramu had a love affair with both the sisters. It has been stated that Ramu Mahto used to frequent the house of Aklu Mahto for the last 3-4 years. About two years back the wife of Aklu Mahto, his daughter Anita Devi and Ramu Mahto had gone to Kera Manda (Chakradharpur) for performing puja. 4. Based on the aforesaid allegations Torpa P.S. Case No.24 of 1998 was instituted for the offence punishable under Sections 302 I.P.C against Sarita Kumari and Anita Devi. About two years back the wife of Aklu Mahto, his daughter Anita Devi and Ramu Mahto had gone to Kera Manda (Chakradharpur) for performing puja. 4. Based on the aforesaid allegations Torpa P.S. Case No.24 of 1998 was instituted for the offence punishable under Sections 302 I.P.C against Sarita Kumari and Anita Devi. On completion of investigation, charge sheet was submitted under Section 302/34 I.P.C. against the accused persons and after cognizance was taken the case was committed to the court of sessions where it was registered as Sessions Trial No.449 of 1999. The case of the accused Sarita Kumari was separated since she was a juvenile. Charge was framed against the accused persons under Sections 302/34 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. 5. The prosecution has examined as many as 11 witnesses in support of its case. 6. P.W. 1 Paresh Sao, P.W.2 Giridhari Mahto, P.W.3 Sohrai Mahto, P.W. 4 Ramu Mahto, P.W. 5 Rajeev Kumar Mahto and P.W.6 Jaleshwar Bagchee have not supported the case of the prosecution and were declared hostile by the prosecution. 7. P.W.7 Ranglal Mahto has stated about coming to know regarding the murder of Ramu Mahto in the evening. 8. P.W.8 Bhola Mahto is the informant who has stated that on 18.09.1998 at 3.30 P.M. after sending his son to the market he was going towards his field to cut grass when he heard some commotion in front of the house of Aklu Mahto. He went to the said place and found the door closed from inside. Aklu thereafter came out and put a lock on the door from outside. When he asked Aklu about the commotion, Aklu had replied that there was a black thief. When he was going back Gumesh Mahto had reached and both started cutting grass. He returned back to his house in the evening. The Police had reached the village and he and others were called by the Police and the dead body was shown to them. He had recognised the dead body of that of his nephew Ramu Mahto. The Police had thereafter come to his house and had taken out two letters from the box of Ramu Mahto. The wife of Aklu had disclosed that Ramu used to frequent her house. He had recognised the dead body of that of his nephew Ramu Mahto. The Police had thereafter come to his house and had taken out two letters from the box of Ramu Mahto. The wife of Aklu had disclosed that Ramu used to frequent her house. Ramu and Sarita used to study together through Matriculation and both had failed. Later on it came to knowledge that Sarita and Ramu were having an illicit relationship. He has stated that Ramu has been murdered by Aklu and an unknown male. He has proved the Fardbeyan which has been marked as Ext.1. In cross-examination he has deposed that he had stated before the Police that Ramu was kept as a guest at Chakradharpur for a week. The letters disclosed that Ramu and Sarita were having an illicit relationship. He had seen the dead body of Ramu at 11.00 P.M. When he had gone to see the dead body, Aklu was not present. 9. P.W.9 Raju Mahto has stated that the incident is of 18.09.1998 at 2.00 P.M. He had gone to purchase medicine. Ramu Mahto was his brother. On the way he had met his friend Anil. He has stated that at 3.30 P.M. he had left for his house via Baglitoli. He had seen Aklu and the son-in-law of Aklu namely Dodia Mahto fleeing away. There were blood stains on the shirt of the son in-law of Aklu and when he asked him as to what is the matter it was replied that the matter is very serious. In cross-examination he has deposed that in the evening he had met Bhola Mahto but he had not disclosed about seeing blood stains in the shirt of Dodia Mohto. 10. P.W. 10 Ishwari Prasad Bhengra has stated that the incident is of 18.09.1998 at 3 P.M. and he was at Dorma bus stand when he had heard that some thief had entered into the house of Aklu Mahto. When he and the others proceeded towards the house of Aklu Mahto, he had met on the way Paresh Choukidar. He had left for the house of Aklu with Paresh Choukidar and when he asked the children playing near the house about the thief, Aklu replied that the thief is locked inside. When Aklu opened the door, he found the two daughters of Aklu namely Sarita and Anita sitting inside. He had left for the house of Aklu with Paresh Choukidar and when he asked the children playing near the house about the thief, Aklu replied that the thief is locked inside. When Aklu opened the door, he found the two daughters of Aklu namely Sarita and Anita sitting inside. Both the daughters had disclosed that thief is in the other room. The choukidar entered the room and disclosed that no thief is inside but a dead body is lying. It was the dead body of Ramu. In cross-examination he has deposed that he had stated before the Police that it was dark inside the room and the door was closed from inside. No one had disclosed to him about the dead body of Ramu lying inside. He had not disclosed to the Police that the dead body of Ramu was inside the house. He had heard from the people of the locality that a thief had entered into the house of Aklu Mahto. 11. P.W.11 Dr. Vijay Kumar Prasad was posted as a Medical Officer at Sub-Divisional Hospital, Khunti and on 19.9.1998 he had conducted the autopsy on the dead body of Ramu Mahto and had found the following injuries :- (i) Lacerated injury on upper part of occipital region vertical 3”x1”x ½ ” with fracture of occipital bone. (ii) Lacerated injury 3”x ½”x1/2” on middle of left shoulder. (iii) Lacerated injury 3”x1½”x1/2” at right parietal region three inches above right ear with fracture of right parietal bone anteroposteorly. Brain matter found lacerated and have come out. (iv) Sharp cut injury (stab) 1 ½” x 5” deep on right side of chest just below right nipple. (v) Torned in P.M. Report. (vi) Sharp cut injury 3”x1½”x1/4 ” on left side of chest 2” lateral to left nipple horizontal. Internal injuries :- (i) Bleeding sign from both ears cranial cavity filled with blood clots and flued blood. (ii) Brain matter under the injury no.1 found lacerated occipital bone found fractured. (iii) Brain matter found lacerated in injury no.3, right parietal bone fractured. (iv) Right middle lope of lung found cut ¼” x 4”. Pleural cavity filled with blood clot and fluid blood. (v) Peritoneal cavity normal, liver spleen, kidneys no any damage, stomach empty, small intestine faecal gases, large gut faecal matter with faecal gases, genital organs normal. (iii) Brain matter found lacerated in injury no.3, right parietal bone fractured. (iv) Right middle lope of lung found cut ¼” x 4”. Pleural cavity filled with blood clot and fluid blood. (v) Peritoneal cavity normal, liver spleen, kidneys no any damage, stomach empty, small intestine faecal gases, large gut faecal matter with faecal gases, genital organs normal. Injury No.(i), (ii), (iii) and (v) have been caused by heavy hard and blunt substance such as Sabal while injury no.(iv) and (vi) have been caused by heavy sharp cut weapon such as Chhura. The cause of death has been opined to be due to shock and haemorrhage as the injury no. (i), (iii) and (iv) are very vital and sufficient to cause death immediately. He has proved the post-mortem report which has been marked as Ext.2. 13. The statement of the accused was recorded under Section 313 of the Cr.P.C. in which he has denied his complicity in the murder of Ramu Mahto. 14. It has been submitted by Mr. Mahesh Tewari, learned counsel appearing for the appellant that most of the prosecution witnesses have turned hostile. It has been submitted that the entire case is based upon the evidence of P.W.8. Admittedly there are no eye-witnesses to the occurrence. The place of occurrence has not been established as the Investigating Officer has not been examined which has caused prejudice to the defence. 15. Mr. S.K. Srivastava, learned A.P.P. has submitted that the dead body was recovered from the house of the appellant with marks of injury on his body and a clear inference can be drawn about the culpability of the appellant in committing the murder of Ramu Mahto. Mr. Srivastava has also stated about the motive playing an active part in the murder on account of the illicit relationship between Ramu Mahto and Sarita Kumari who is the daughter of the appellant Aklu Mahto. 16. We have heard the learned counsel for the respective parties and have also perused the trial court records. 17. Admittedly there are no eye-witness to the incident. Most of the witnesses of the prosecution have not supported the case, hence declared hostile. The only evidence of substance seems to be in the form of the informant and others who have been examined as P.W.8, P.W.9 and P.W.10. 17. Admittedly there are no eye-witness to the incident. Most of the witnesses of the prosecution have not supported the case, hence declared hostile. The only evidence of substance seems to be in the form of the informant and others who have been examined as P.W.8, P.W.9 and P.W.10. The evidence of P.W.9 reveals about seeing Aklu Mahto and his son-in-law fleeing away and the son-in-law had specs of blood on his shirt. No other witnesses deposed in the same manner as P.W.9. In fact in the cross-examination of P.W.9 it seems that he had not disclosed about witnessing such incident to the informant, though the informant appears to be his uncle. The evidence of P.W.9 therefore has remained uncorroborated and cannot be of any assistance to the prosecution case. So far as P.W. 10 is concerned, his statement that Paresh Choukidar had disclosed about seeing a dead body inside the room seems to have been negated in his cross- examination wherein he has deposed that nobody had stated that the dead body of Ramu Mahto was lying inside. He has himself admitted about not disclosing the same to the Police. Moreover, his version has not been supported by Paresh Choukidar. It is the evidence of P.W.8 which has gained prominence in securing the conviction of the appellant. P.W.8 had gone to the house of the appellant on hearing some commotion and he was accompanied by Ghumesh Mahto and when Aklu Mahto had stated that there was a thief inside, he and Ghumesh Mahto had nonchalantly went away in order to cut grass. The presence of a thief would have naturally aroused an interest as was the case of P.W.10, but P.W.8 seems not to have shown any further inquisitiveness about the goings on in the house of Aklu Mahto. The person accompanying him, Ghumesh Mahto has not been examined by prosecution. The incident of murder came to light when the Police arrived. There were other inmates in the house apart from the appellant Aklu Mahto including his daughters Sarita Kumari and Anita Devi. Sarita was declared a juvenile and so far as Anita is concerned, she has been acquitted by the learned trial court on the same set of evidence. The case of the prosecution therefore is based on mere suspicion and it does not at all pin-point Aklu Mahto as the perpetrator of the murder. Sarita was declared a juvenile and so far as Anita is concerned, she has been acquitted by the learned trial court on the same set of evidence. The case of the prosecution therefore is based on mere suspicion and it does not at all pin-point Aklu Mahto as the perpetrator of the murder. In the circumstances of the case the Investigating Officer would have played a decisive role but his non-examination has caused prejudice to the defence. In a case of circumstantial evidence, motive plays an important role but herein the absence of motive falters the case of the prosecution. The witnesses have stated about an illicit relationship between the deceased and Sarita Kumari as 2 letters recovered from the box of the deceased would suggest and this was hinted to be the motive but we cannot lose sight of the fact that the deceased and Sarita had gone to Chakradharpur a few days prior to the incident along with the wife of Aklu Mahto where he had stayed as a guest for a week and Ramu Mahto used to frequent the house of Aklu Mahto which can be inferred to mean that the relationship was cordial. The circumstantial evidence which is weak in nature in absence of any motive further has decimated the case of the prosecution. 18. We therefore on the basis of the discussions made herein above set aside the judgment and order of conviction and sentence dated 16.07.2009 (sentence passed on 18.07.2009) by Shri Rabindra Nath Tiwari, Learned Additional Judicial Commissioner, Fast Track Court, Khunti in Sessions Trial No.449 of 1999. 19. This appeal is allowed. Pending I.A. No.5323 of 2024 stands closed. 20. Since the appellant is in custody, he is directed to be released immediately and forthwith, if not wanted in any other case.