JUDGMENT : Rongon Mukhopadhyay, J. 1. Heard Mr. Rohan Majumdar, learned counsel for the appellant in Cr. Appeal (DB) No. 14 of 1999(R), Mr. Harsh Tiwary, learned counsel for the appellants in Cr. Appeal (DB) No. 20 of 1999(R) and Mr. Pankaj Kumar Mishra, learned A.P.P. as well as Mrs. Shweta Singh, learned A.P.P. appearing for the State. 2. Since both these appeals arise out of a common judgment, they are being disposed of by this common order. 3. These appeals are directed against the judgment and order of conviction and sentence dated 15.12.1998 (sentence passed on 18.12.1998) passed by Sri Rajesh Kumar, learned 5th Additional Sessions Judge, Dhanbad in S.T. No. 36 of 1996, whereby and whereunder the appellants have been convicted for the offence punishable under Section 302/34 IPC and have been sentenced to undergo rigorous imprisonment for life. 4. The prosecution case arises out of the fardbeyan of Fulwa Bhuini recorded on 29.01.1995 in which it has been stated that her son Badri Bhuiya used to work in the colliery as a labour for 10-15 years. On the date of occurrence, the informant was preparing food and Badri Bhuiya was sitting when Parbati Bhuini, who was acquainted with Badri Bhuiya for the last 2-3 years came and both started conversing. After sometime, Parbati Bhuini and Badri Bhuiya went out of the house. Parbati Bhuini wanted to solemnise marriage with Badri Bhuiya. After they left, Ramni Bhuini, the mother of Parbati Bhuini had come and was asking about the whereabouts of her daughter and thereafter she had left. It has been alleged that when even in the night the son of the informant did not return, the informant along with her daughter Somri Bhuini went on a search for him and at about midnight, while they were passing the dilapidated house of Gobind Singh, she heard a cry of alarm. It has been alleged that when she went near the said house, she saw Prabhu Bhuiya with a rod and along with him were Jogi Bhuiya, Ramchander Bhuiya and Ramni Bhuini coming out from the house and on seeing the informant, they started fleeing away. Parbati Bhuiya had disclosed to her that her father Prabhu Bhuiya, uncle Jogi Bhuiya and others have committed the murder of Badri Bhuiya. Based on the aforesaid allegations, Jharia P.S. Case No. 48/95 was instituted under Section 302/34 IPC. Parbati Bhuiya had disclosed to her that her father Prabhu Bhuiya, uncle Jogi Bhuiya and others have committed the murder of Badri Bhuiya. Based on the aforesaid allegations, Jharia P.S. Case No. 48/95 was instituted under Section 302/34 IPC. On completion of investigation, charge sheet was submitted and after cognizance was taken, the case was committed to the Court of Sessions, where it was registered as S.T. No. 36 of 1996. Charge was framed against the accused under Section 302/34 IPC which was read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried. 5. The prosecution has examined as many as six witnesses in support of its case: P.W.1 Tulsi Ram has proved his signature on the inquest report which has been marked as Exhibit-1. P.W.2 Phulwa Bhuini is the informant, who has stated that it was midnight and she was sleeping in her house. Her son Badri was called by Parbati at 6:00PM and had taken her to a hut. Ramni and Prabhu had come in search of her son Badri and when she replied that Badri is not in the house, they had left after threatening her. There was a love affair between Badri and Parbati. When on hearing an alarm at 12:00 in the night, she had gone to the hut, she had seen Prabhu Bhuiya, Ramni Devi, Jago Bhuia and Ramchander Bhuia fleeing away. Prabhu had a rod in his hand. When she went inside the hut, she found her son lying dead. In cross-examination, she has deposed that besides her house, there are 25-50 houses which include the house of Munna Bhuiya, Rameshwar, Lakhan and Raju Bhuiya. The sound of alarm was coming from a hut besides the river. The distance of the hut from her house is about 20-25 yards. The hut is on the other side of the river. She has deposed that there are 10/15/20 houses in between her house and the hut. None of the neighbours had woken up even on hearing the commotion. When she had heard the cry of alarm at 12:00 in the night, she along with her daughter Somri and son-in-law Sanjay Bhuiya had left her house in search of Badri Bhuiya. After finding her son dead, she had neither informed the Police nor her neighbours.Parbati was with her at the time of the incident. When she had heard the cry of alarm at 12:00 in the night, she along with her daughter Somri and son-in-law Sanjay Bhuiya had left her house in search of Badri Bhuiya. After finding her son dead, she had neither informed the Police nor her neighbours.Parbati was with her at the time of the incident. P.W.3 Parbati Bhuini did not support the case of the prosecution and was declared hostile by the prosecution. P.W.4 Puran Rajwar was also declared hostile by the prosecution. P.W.5 Dr. Binod Kumar was posted as an Assistant Professor in Pataliputra Medical College and Hospital and on 29.01.1995, he had conducted autopsy on the dead body of Badri Bhuiya and had found the following: (i) Multiple bone deep lacerated wound size varied from 3” x 1” x bone deep to 1” x 1” x bone deep mixed with each other seen on the right-side forehead, face and also front of face. Frontal bone and all facial bones showed multiple fractures. Left eye ball was protruding out of broken socket. (ii) Abrasion ½” x ½” on back outer aspect of right elbow. (iii) Abrasions ½” x ¼” and ¼” x ¼” seen on the back of right hand. (iv) Abrasion 1” x ½” on the back of left middle finger. (v) On dissection- Both side chambers of the heart were empty. Ecchymosis seen in the soft tissues of upper part of front of chest and front of neck. Stomach contained about 75ml blood mixed fluid without any particle and smell, urinary bladder was empty, internal organs were pale, on removal skull linear fracture of left parietal bone was seen, meninges and brain were pale. The cause of death was haemorrhage and shock due to the aforementioned injury number (i) caused by hard and blunt object such as iron rod. He has proved the post-mortem report which has been marked as Exhibit-2. P.W.6 Arun Kumar Sahay was posted as an In-Charge of Dhanwadih O.P. and he had conducted the investigation of Jharia P.S. Case No. 48/95. He had recorded the fardbeyan of Phulwa Bhuini which has been proved and marked as Exhibit-3. He had recorded the restatement of the informant and the statements of other witnesses.He had inspected the place of occurrence which is a dilapidated hut of Gobind Singh situated in Dhanwadih No. 12. There are no doors in both the rooms. He had recorded the fardbeyan of Phulwa Bhuini which has been proved and marked as Exhibit-3. He had recorded the restatement of the informant and the statements of other witnesses.He had inspected the place of occurrence which is a dilapidated hut of Gobind Singh situated in Dhanwadih No. 12. There are no doors in both the rooms. On the eastern side of the place of occurrence at a distance of 500 yards, Dhowra Basti is situated and on the south at a distance of 400 yards D.V.C. colony is situated. He has proved the inquest report which has been marked as Exhibit-4. He had seized the blood-stained rod and earth and had prepared a seizure list. He had received the post-mortem report. On his transfer, he had handed over the investigation to Assistant Sub-Inspector of Police Shri K.K. Singh. In cross-examination, he has deposed that the seized blood-stained rod and blood-stained soil were not sent for forensic analysis. The witnesses had stated about a love affair between the deceased and the daughter of one of the accused. He had not recorded the statement of any witnesses of Dhowra Basti. 6. The statements of the accused were recorded under Section 313 Cr.P.C. in which they have denied their complicity in the murder of Badri Bhuiya. 7. It has been submitted by the learned counsels for the appellants that it is a case of no evidence. There are no eyewitnesses to the occurrence and the case of the prosecution is based upon the evidence of P.W.2, but the contradictions appearing in such evidence makes it fallible. 8. Learned A.P.P.s have relied upon the evidence of P.W.2, who had seen the appellants fleeing away with the appellant Prabhu Bhuiya being armed with an iron rod and apart from the dead body of Badri Bhuiya recovered from inside the hut, the I.O. (Investigating Officer)(P.W.6) had also seized an iron rod from the place of occurrence which leads credence to the case of the prosecution. 9. We have heard the learned counsel for the respective sides and have also perused the trial court records. 10. Admittedly, there are no eyewitnesses to the actual incident. As per P.W.2, when she had gone to the hut belonging to Gobind Singh on hearing a cry of alarm, she had seen the appellants coming out from the hut with Prabhu Bhuiya having a rod in his possession. 10. Admittedly, there are no eyewitnesses to the actual incident. As per P.W.2, when she had gone to the hut belonging to Gobind Singh on hearing a cry of alarm, she had seen the appellants coming out from the hut with Prabhu Bhuiya having a rod in his possession. On going inside the dilapidated hut, she found the body of her son Badri Bhuiya. P.W.2 has stated about being accompanied by her daughter Somri and son-in-law, but none of these witnesses have been examined by the prosecution. P.W.3 is the paramour of the deceased and the daughter of the appellant Prabhu Bhuiya and as per P.W.2, she had taken away the deceased with her which was not uncommon considering the fact that both had a love affair for the last 2-3 years. However, P.W.3 did not support the case of the prosecution and was declared hostile by the prosecution. The only witness of substance so far as the prosecution is concerned, is P.W.2 but her evidence throws up more contradictions than consistencies. In the fardbeyan, P.W.2 has stated about hearing a cry of alarm when she was passing by the dilapidated hut in the midnight while searching for her son Badri Bhagat. However, in her evidence, it seems that P.W.2 had heard a commotion coming from the hut after which she had gone to the said place. The place of occurrence is not a lonely place and there are several houses/hutments between the said place and the house of P.W.2. It also appears that the place of occurrence was on the opposite bank of the river. What cannot be disputed from the testimony of P.W.2 and the Investigating Officer (P.W.6) is that though there are several houses in the vicinity but nobody had come forward or showed any inquisitiveness if at all there was a cry of alarm emerging from the hut. P.W.2, it seems, even in spite of having seen the dead body of her son with marks of injury on his body did not raise any alarm or informed her neighbours and appears to have nonchalantly returned home. This conduct of P.W.2 leaves much room for doubt. P.W.2, it seems, even in spite of having seen the dead body of her son with marks of injury on his body did not raise any alarm or informed her neighbours and appears to have nonchalantly returned home. This conduct of P.W.2 leaves much room for doubt. The incoherence in the evidence of P.W.2 and absence of any corroborative evidence from any source are the inherent flaws emanating from the case of the prosecution and the weak nature of evidence would, in no way, point to the guilt of the appellants. The learned trial court has not made an in-depth analysis of the evidence on record while convicting the appellants and sentencing them accordingly. 11. We, therefore, in view of the discussions made hereinabove, set aside the judgment and order of conviction and sentence dated 15.12.1998 (sentence passed on 18.12.1998) passed by Sri Rajesh Kumar, learned 5 th Additional Sessions Judge, Dhanbad in S.T. No. 36/1996. 12. These appeals are allowed. 13. Since the appellants are on bail, they are discharged from the liability of their bail bonds. 14. Pending I.A.s, if any, stands closed.