JUDGMENT : Rongon Mukhopadhyay, J. : 1. Heard Mr. P.S. Dayal, learned counsel for the appellant and Mr.Subodh Kumar Dubey, learned A.P.P. 2. This appeal is directed against the judgment and order of conviction and sentence dated 28.01.1998 (sentence passed on 05.02.1998) passed by Sri Ram Nath Ram Mahto, learned 1 st Additional Sessions Judge, Dhanbad in S.T. No. 07/1996 whereby and whereunder the appellant has been convicted for the offences punishable under Section 394 and 302 IPC and has been sentenced to undergo imprisonment for life under Section 302 IPC and rigorous imprisonment for 10 years for the offence under Section 394 IPC. Both the sentences were directed to run concurrently. 3. The prosecution case arises out of the fardbeyan of Hakim Mondal recorded on 27.07.1995 in which it has been stated that at 6:00A.M., the informant and his wife, Soru Bala Devi had gone to Katras Bazaar for marketing and when they returned at 12:00 noon to their house in Kanko Basti, they saw Rupesh Mondal coming out from his house. On seeing Rupesh Mondal fleeing away, the same raised a suspicion in the mind of the informant and his wife and when they rushed inside the house, they saw their daughter Asha Kumari lying on the ground with a cloth pushed in her mouth and signs of pressure on neck. On seeing the dead body, the informant and his wife started shouting, at which, several persons of the locality arrived. In the northern side of the room, cash and ornaments were found missing. It has been stated that Rupesh Mondal used to stay in an adjacent room sharing the same courtyard. Rupesh Mondal used to gamble by playing cards and he used to lose often. Based on the aforesaid allegations, Katras P.S. Case No. 254 of1995 was instituted against Rupesh Mondal. 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. 7 of 1996. Charge was framed against the accused under Section 394 IPC and 302 IPC which was read over and explained to him in Hindi to which he pleaded not guilty and claimed to be tried. 4. Charge was framed against the accused under Section 394 IPC and 302 IPC which was read over and explained to him in Hindi to which he pleaded not guilty and claimed to be tried. 4. The prosecution has examined as many as twelve witnesses in support of its case: P.W.1 Hakim Mondal is the informant who has stated that about 16 months back, on a Thursday, he had gone to Katras bazaar with his family to purchase ration and he returned back at 12:00 noon to his house. When he went to the courtyard, he saw Rupesh Mondal rushing out from his house. This aroused a suspicion in his mind at which he and his wife went inside the house and saw his daughter Asha Kumari lying dead on the ground with her mouth stuffed with a cloth. Besides the dead body, a crowbar and a hammer were lying. He started wailing on seeing the dead body of his daughter, at which several persons assembled. He has stated that the lock of a door was found broken and the lock of a box was also found broken. Cash of Rs. 5000/- and a gold chain were found missing. The accused Rupesh Mondal stayed in front of his house. Rupesh Mondal used to indulge in gambling. He has stated that Rupesh had committed the murder of his daughter because he had seen the money kept in the box. In cross-examination, he has deposed that Rupesh is his own nephew. He and his family, Rupesh Mondal and his uncle Shankar Mondal used to reside in the same campus having a common courtyard. The house was divided into three parts where he, Rupesh Mondal, Shankar Mondal and Deglal Mondal with their families resided. On the date of the incident, his four-year-old son Anand was inside the house. There was no animosity between his family and the family members of Rupesh. Their lands had been partitioned. When he had gone to the courtyard, he had seen Rupesh coming out from his house. When he had raised a cry of alarm, Deglal was the first to arrive followed by Shekhar, Amulyo Mondal and Nitai Mondal. The mother of Rupesh had also come later on. He has deposed that he has two wives and both reside with him. When he had gone to the courtyard, he had seen Rupesh coming out from his house. When he had raised a cry of alarm, Deglal was the first to arrive followed by Shekhar, Amulyo Mondal and Nitai Mondal. The mother of Rupesh had also come later on. He has deposed that he has two wives and both reside with him. P.W.2 Saru Bala Devi is the wife of the informant, who has stated that she had gone to purchase ration at 7:00AM to Katras. Her daughter Asha Kumari was in the house. She and her husband returned home at 12:00 noon and when she reached the courtyard, she found Rupesh Mondal hurriedly leaving her house which raised a suspicion and when both entered the room, they found their daughter Asha Kumari lying dead with her mouth stuffed with a cloth and a black mark on her neck. A crowbar and a hammer were lying besides the dead body. She and her husband raised a cry of alarm, at which several persons assembled. The latch on the door of a room and the lock of a box were found broken. Cash of Rs. 5000/- and a gold chain were found missing. Rupesh Mondal used to indulge in gambling. In cross-examination, she has deposed that her husband has two wives. Rupesh Mondal and his family stays in a separate house adjacent to the courtyard. Her family had not gone to the house of Rupesh Mondal for four years and neither she, nor her husband have conversed with the mother of Rupesh for four years. The courtyard is bounded by walls on all sides and there is only one exit door. Rupesh had fled away from the same door. He has deposed that the Police had reached at 6:00 PM. P.W.3 Deglal Mondal has proved the seizure list of seized crowbar and a white cloth which has been marked as Exhibit-1. In cross-examination, he has deposed that he was returning home with the Police and Rupesh Mondal, who was standing in the bus stand was arrested by the Police. Hakim and his wife had reached the village after the Police had arrived. P.W.4 Amulyo Ratan Mondal has proved the inquest report which has been marked as Exhibit-2. In cross-examination, he has deposed that he had seen Asha Kumari at 8:00 AM near the Shiv Mandir. Hakim and his wife had reached the village after the Police had arrived. P.W.4 Amulyo Ratan Mondal has proved the inquest report which has been marked as Exhibit-2. In cross-examination, he has deposed that he had seen Asha Kumari at 8:00 AM near the Shiv Mandir. He had also seen Rupesh Mondal standing near a betel shop waiting for a tractor. He had seen Rupesh going on a tractor with Binod and Sukhdeo. P.W.5 Shankar Mondal has stated that when he came back home at 12:00-1:00 PM, he found Hakim and his wife crying. When he went to the house of Hakim, he saw the dead body of Asha Kumari and a crowbar and a hammer were lying beside the dead body. The latch of the door and the box were found broken. Rupesh could not be found in spite of a search. In cross-examination, he has deposed that Hakim is his nephew, while Rupesh is his grandson in relation. Rupesh and Hakim shared a common courtyard. When he had seen the dead body, nobody had disclosed to him as to who had committed the murder. P.W.6 Jitu Mondal has stated that he was at Rajganj Katras Road when he learned that Rupesh Mondal has committed the murder of the daughter of Hakim Mondal. At this information, he went to the house of Hakim Mondal. The Police reached the said place thereafter. In a room of the house of Hakim Mondal, the dead body of Asha Kumari was lying. Besides the dead body, a crowbar and a hammer were found. In the other room, the latch was found broken and the lock of a box was also found broken. Hakim had disclosed that Rs. 5000/- cash and some ornaments were found stolen. He had disclosed that Rupesh had committed the murder of his daughter and had fled away. He had signed on the inquest report which was prepared in his presence. In cross-examination, he has deposed that his statement was not recorded by the Police. He had heard about the murder when Amulyo Ratan had raised an alarm. The Police had disclosed that they have already apprehended Rupesh. P.W.7 Gobardhan Mondal did not support the case of the prosecution and was declared hostile by the prosecution. P.W.8 Arjun Ravidas has stated that on 21.10.1995, he had taken over the charge of investigation from Bindeshwar Thakur. He had heard about the murder when Amulyo Ratan had raised an alarm. The Police had disclosed that they have already apprehended Rupesh. P.W.7 Gobardhan Mondal did not support the case of the prosecution and was declared hostile by the prosecution. P.W.8 Arjun Ravidas has stated that on 21.10.1995, he had taken over the charge of investigation from Bindeshwar Thakur. After going through the case record and finding the investigation to have been completed, he had submitted charge sheet. He has proved the fardbeyan and the formal FIR which have been marked as Exhibit-3 and 4 respectively. P.W.9 Dr. Shailendra Kumar was posted as a Tutor in Department of Forensic Medicine and Toxicology, P.M.C.H., Dhanbad and on 28.07.1995, he had conducted autopsy on the dead body of Asha Kumari and had found the following: (i) Multiple abrasions size varying from 1/10” x 1/10” to ¼” x 1” in an area of 3/2” x ½” on the upper part of front of neck. (ii) Abrasion of ½” x ½” on the upper part of back of chest in middle over3 rd vertebral arch. (iii) Abrasion of 1/3” x ¼” on the lower end of right shoulder blad. (iv) On dissection- there was extravasation of blood into the subcutaneous tissue under the abrasion marks of neck. The cornea of hyoid bone was found fractured on right side. Thyroid cartilage and laryngeal cartilages were intact. Tracheal rigs were also found intact. Larynx and trachea were found congested and were containing bloody froths. Left side of heart was empty and right side contained dark fluid blood. Stomach contained about 30 c.c. of pasty food. Bladder was empty. Uterus was normal and non- pregnant. Private parts were found normal. Other internal organs were found congested. The cause of death has been opined to be due to asphyxia as a result of pressure over neck, i.e., strangulation. He has proved the post-mortem report which has been marked as Exhibit-5. P.W.10 Rajesh Prasad Mondal has been tendered by the prosecution. P.W.11 Tikam Mondal has stated that on hearing the news about Rupesh Mondal committing the murder of Asha Kumari, he had gone to the house of Hakim Mondal. He has stated that Hakim Mondal had disclosed that as soon as he had entered the courtyard, Rupesh Mondal had fled away. A hammer as well as a crowbar were found besides the dead body. He has stated that Hakim Mondal had disclosed that as soon as he had entered the courtyard, Rupesh Mondal had fled away. A hammer as well as a crowbar were found besides the dead body. In cross-examination, he has deposed that the Police had recorded his statement. P.W.12 Bindeshwar Thakur was posted as a Sub-Inspector of Police in Katras P.S. and on 27.07.1995, a person from Kanko had informed that the daughter of Hakim Mondal has been murdered. After making a station diary entry, he left for Kanko Basti where he found a large crowd present in the house of Hakim Mondal. When he entered the house of Hakim Mondal, in the middle room, he found the dead body of a girl with her mouth stuffed with a cloth and a crowbar and a hammer kept besides the body. From the place of occurrence, he had seized a two feet long iron crowbar, one hammer, a white and red cloth and had prepared a seizure list in which Tikam Mondal and Tek Lal had signed as witnesses. He had recorded the fardbeyan of Hakim Mondal on 27.07.1995 at 6:00 PM. He had inspected the place of occurrence which is a three-roomed brick house of Hakim Mondal situated at Kanko Basti and in the middle room, the dead body was found. In one of the rooms, he found the lock broken of the door as well as the box. He had recorded the statement of other witnesses. On account of his transfer, he had handed over the investigation to Arjun Ravidas. He had also obtained the post-mortem report. In cross-examination, he has deposed that Hakim Mondal and Rupesh Mondal stay in houses facing each other over a common courtyard. He had searched the house of Rupesh Mondal. Hakim Mondal had not disclosed to him about the previous enmity with Rupesh Mondal. On recall, by the prosecution, he has produced in the Court the crowbar and the hammer which have been marked as Material Exhibits No. I & II. 5. The statement of the accused was recorded under Section 313 Cr.P.C. in which he has denied his complicity in the murder of Asha Kumari. 6. Mr. On recall, by the prosecution, he has produced in the Court the crowbar and the hammer which have been marked as Material Exhibits No. I & II. 5. The statement of the accused was recorded under Section 313 Cr.P.C. in which he has denied his complicity in the murder of Asha Kumari. 6. Mr. P.S. Dayal, learned counsel for the appellant has submitted that there are no witnesses who had seen the incident of murder and so far as the appellant is concerned, he happens to have been made an accused only on account of the fact that he was seen coming out from the house which appears to be quite natural as the appellant shares the same courtyard with the informant (P.W.1). The evidence of P.W.2 reveals about an undercurrent of animosity between the family of the informant and the appellant and, therefore, the false implication of the appellant cannot be ruled out. 7. Mr. Subodh Kumar Dubey, learned A.P.P. has submitted that there are strong circumstances which would indicate that the appellant,after committing the murder of Asha Kumari, had decamped with Rs. 5000/- cash and a gold chain and his unnatural conduct of rushing out from the house of P.W.1 concretizes such allegation. 8. We have heard the learned counsel for the respective sides and have also perused the trial court records. 9. The visit of the informant and his wife to Katras Bazar early in the morning for purchasing ration proved disastrous as on their returning, they found their daughter Asha Kumari dead and Rs. 5000/- cash and a gold chain missing. The coming out of the appellant from the house of P.W.1, as seen by P.W.1 and P.W.2, seems to be the only circumstance projected by the prosecution. As per P.W.1, he and the appellant shared a common courtyard and as per P.W.12 (I.O.), their houses face each other. It also appears that the entire precincts were bounded by boundary walls and there was only a solitary door for entry and exit. Given such background, it was not unnatural in seeing the presence of the appellant when P.W.1 and P.W.2 returned from the market. No prominent feature in the demeanor of the appellant has either been noticed by P.W.1 or by P.W.2. If the appellant was involved in committing the murder, he must have exuded some distinctive behaviour. Given such background, it was not unnatural in seeing the presence of the appellant when P.W.1 and P.W.2 returned from the market. No prominent feature in the demeanor of the appellant has either been noticed by P.W.1 or by P.W.2. If the appellant was involved in committing the murder, he must have exuded some distinctive behaviour. The appellant also seems to have been unarmed as can be inferred from the fardbeyan and the evidence of P.W.1 and P.W.2. P.W.12 also seems to have remained silent with respect to recovery of any incriminating articles from the house of the appellant on a search conducted in his house. The evidence of P.W.2 reveals about an undercurrent of tension between the families of the informant and the appellant as neither went to each other’s house or conversed for 4 years. This can be a circumstance detrimental to the cause of the prosecution as false implication of the appellant cannot be ruled out. There is no evidence worth mentioning which can act as a prop to the disintegration of the prosecution case. Absence of any evidence which would complete the chain of circumstances cannot lead to conviction of the appellant as has been erroneously held by the learned trial court. 10. We, therefore, on account of the aforesaid discussions, set aside the judgment and order of conviction and sentence dated 28.01.1998 (sentence passed on 05.02.1998) passed by Sri Ram Nath Ram Mahto learned 1st Additional Sessions Judge, Dhanbad in S.T. No. 7 of 1996. 11. This appeal is allowed. 12. Since the appellant is on bail, he is discharged from the liability of his bail bonds. 13. Pending I.A.s, if any, stands closed.