JUDGMENT : R. Mukhopadhyay, J. 1. Heard Mr. C.A. Bardhan, learned counsel for the appellant and Mr. Saket Kumar, learned A.P.P. 2. This appeal is directed against the judgment and order of conviction and sentence dated 29-11-2002, (sentence passed on 03-12-2002) passed by Sri Prabhu Nath Lal, learned 1st Additional Sessions Judge, Saraikella in S.T. No. 262 of 2001, whereby and whereunder the appellant has been convicted for the offences under Sections 364 and 302/34 IPC and has been sentenced to undergo rigorous imprisonment for 10 years along with a fine of Rs. 10,000/- for the offence under Section 364 IPC and in default in payment of fine, to undergo simple imprisonment for 6 months and rigorous imprisonment for life along with a fine of Rs. 10,000/- for the offence under Section 302 /34 IPC and in default in payment of fine, to undergo simple imprisonment for 6 months. 3. The prosecution case arises out of the Fardbayan of Budheshwar Yogi recorded on 10-01-2001 in which it has been stated that in the previous evening at 4.00 p.m. the father of the informant Pati Yogi was readying himself to attend the Shradh in the house of Sukra Gope when Thakur Das Yogi and Manoranjan Yogi had come to his house and had told the father of the informant that they will also go to Pandra to attend the Shradh and they had asked the father of the informant to accompany them. The father of the informant left with those two persons but when he did not return in the night, the informant became anxious since Pandra village is at a distance of only 1.5 k.m. from his house. It has been stated that thereafter the informant along with his brother Ganesh Yogi went towards the village in search of their father and at 9.00 p.m. they had reached the house of Sukra Gope and when they enquired about their father Shyamlal Gope had disclosed that after having food, the father of the informant expressed his desire to attend his duty at Tiruldih O.P. at which Thakur Das Yogi and Manoranjan Yogi convinced him to go to Tiruldih O.P through the village. The father of the informant had thereafter left with both the accused. The father of the informant had thereafter left with both the accused. The informant and his brother were returning to their village while searching for their father when in the dry pond of Bhushan Mahto at village Pandra in the moonlight a person was found lying and on verification the body was identified to be that of the father of the informant. It has been alleged that about 6 months back Thakur Das Yogi had taken Rs.6500/- from the father of the informant for selling his land but later on neither the land was transferred nor the money returned. Based on the aforesaid allegations, Ichagarh P.S. Case No. 01 of 2001 was instituted under Sections 302 /201/34 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. 262 of 2001. Charge was framed against the accused under Sections 364 , 302/34 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 10 witnesses in support of its case. 5. P.W.1 Chinta Yogi is the wife of the deceased. She has stated that Pati Yogi was a Chowkidar who had gone to Pandra village to the house of Sukra Gope and he was accompanied by Thakur Das and Manoranjan. Her husband did not return. The dead body of her husband was found near Pandra Dam. Her husband had a dispute with Malu who had taken Rs.1200/- for selling a land but neither the land was sold nor the money returned. The accused Thakur Das is the son of Malu. In cross-examination, she has deposed that her husband had given Rs.1200/- to Malu about 6/7 years prior to his murder. 6. P.W.2 Ganesh Yogi has stated that on 09-01-2001 his father had gone to Pandra along with Thakur Das Yogi and Manoranjan Yogi. When his father did not return, he had gone to the house of Sukra Gope where Sukra Gope had disclosed that all three after having their meal had left at 6.00 p.m. He had seen the bicycle and bag of his father near the pond of Bhushan Mahto. When he searched further, he found the dead body of his father lying in the pond which was dry. When he searched further, he found the dead body of his father lying in the pond which was dry. His father had a land dispute with both the accused. In cross-examination, he has deposed that his father had given money to the accused persons 6 months prior to his murder. When his father had gone to the house of Sukra Gope he had gone to village Suisa which is at a distance of 20 km from his village and he returned at 5 pm after which he and his brother Budheswar started searching for their father. After they had detected the dead body, they had come back home and had informed the villagers. He had stated before the police that Sukra had disclosed that his father had left with the accused persons. 7. P.W.3 Dr. Akhilesh Kumar Chowdhary was posted as a Tutor in the Department of Forensic Medicine, M.G.M. Medical College, Jamshedpur and on 11-01-2001 he had conducted autopsy on the dead body of Pati Gope and had found the following:- Group A- Abrasions:- I) Small abrasions over front of lower chest 3cm x 2cm and 4 cm x 1.1/2 cm. II) Over left scapular area of back 5 cm x 1 cm x 3 cm x 1 cm. III) Over right scapular area of back 3 cm x 1 cm and 2 cm x 1 cm. IV) Drugging abrasion over back of right forearm 15 cm x 3 cm. Group B. Sharp cut looking lacerated wounds:- I) Over mid forehead 6 cm x 4 cm x 4 cm x cranial cavity with commutated fracture of under laying frontal scalp. II) Over right side of head 4.1/2” cm x 4 cm x cranial cavity with commuted fracture under laying scalp bone. III) A long right side of lower jaw 3.1/2 cm x 3cm x bone deep with fracture of jaw. IV) Over lower jaw left side and adjoin central portion 6 cm x 4 cm x bone deep with fracture of lower jaw. V) Over left side of the face 4 cm x 2.1/2 cm x bone deep with fracture of jaw. VI) Over left side of upper face 3 cm x 1 cm x bone deep with fracture of under laying faecal bone. VII) Along the left eye brow 1.1/2 cm x 1 cm x bone deep. V) Over left side of the face 4 cm x 2.1/2 cm x bone deep with fracture of jaw. VI) Over left side of upper face 3 cm x 1 cm x bone deep with fracture of under laying faecal bone. VII) Along the left eye brow 1.1/2 cm x 1 cm x bone deep. Group-C Internal injuries :- (i) Soft tissues under skin over frontal temporal and occipital area of scalp contused. (ii) Sub dural and sub arachonis blood clot all over the brain. (iii) Spleen ruptured blood clot inside abdomen. The cause of death was opined to be due to head, face and abdominal injuries. He has proved the post-mortem report which has been marked as Exhibit-1. 8. P.W.4 Gaur Yogi has stated that Ganesh Yogi had disclosed to him that his father was called by the accused persons at 4.00 pm and had taken him to have a feast. The deceased had given Rs 6,500/- to the accused for transfer of a land but neither the land was transferred nor the amount returned. He had seen the dead body of Pati Yogi which had marks of violence upon it. In cross-examination he has deposed that the amount of Rs 6,500/- was not given in his presence. He had not attended the feast. 9. P.W.5 Budheshwar Yogi is the informant and son of the deceased who has stated that on the date of occurrence his father had gone to have a feast at village Pandra and the accused persons had accompanied him. His father did not return and when he went to the house of Sukra in search of his father Shyam Lal had disclosed that his father had returned back with the two accused persons. When he was returning back on a cycle he found near the pond a bicycle and a bag of his father as well as his dead body. The police had come and his Fardbayan was recorded. There was a previous dispute with the accused persons. The accused persons had taken an amount of Rs 6,500/- from him for selling their land but neither the land was transferred nor the amount returned. In cross-examination he has deposed that he does not know as to when his father had given the money to the accused. His father had not filed a case for enforcement of the agreement. The accused persons had taken an amount of Rs 6,500/- from him for selling their land but neither the land was transferred nor the amount returned. In cross-examination he has deposed that he does not know as to when his father had given the money to the accused. His father had not filed a case for enforcement of the agreement. When the accused persons had taken away his father he was not present in the house. None of the families visited each other also since long and they did not even talk to each other. 10. P.W. 6 Chaita Yogi has stated that Pati Yogi had gone to the house of Sukra Yogi at Pandra and Thakur Das Yogi and Manoranjan Yogi had accompanied him. When Pati Yogi did not return, his sons had gone in search of him. He had not gone. Ganesh Yogi and Budheshwar Yogi had disclosed about the incident after which he had gone to see the dead body of Pati Yogi. The dead body was lying in the pond of Bhushan Mahto. The police had come and had recorded the Fardbayan of Budheshwar Yogi and he had put his thumb impression on the Fardbayan. He had also put his thumb impression on the inquest report. He has stated that Pati Yogi had a land dispute with the accused persons. In cross-examination he has deposed that he had not seen the incident but had gone to the place of occurrence. There was a cordial relationship between Pati Yogi and the accused persons though quarrel also used to take place. 11. P.W.7 Shyamlal Gope and P.W.8 Kantu Yogi did not support the case of the prosecution and they were declared hostile by the prosecution. 12. P.W.9 Nitai Yogi has stated that he had seen the dead body of Pati Yogi in the pond of Bhushan Mahto. The police had prepared a seizure list of seized stone and blood stained earth in which he had put his thumb impression. 13. P.W.10 Krishna Dutta Jha was posted as the in-charge of Tiruldih O.P. and on 10.01.2001 he had recorded the Fardbayan of Budheshwar Yogi near the dry pond of Bhushan Mahto. He has proved the Fardbayan which has been marked as Exhibit-2. The formal F.I.R has been proved and marked as Exhibit-3. 13. P.W.10 Krishna Dutta Jha was posted as the in-charge of Tiruldih O.P. and on 10.01.2001 he had recorded the Fardbayan of Budheshwar Yogi near the dry pond of Bhushan Mahto. He has proved the Fardbayan which has been marked as Exhibit-2. The formal F.I.R has been proved and marked as Exhibit-3. He had taken over the investigation of the case and had inspected the place of occurrence which is the dry pond of Bhushan Mahto situated at village Pandra. He had prepared the inquest report which has been proved and marked as Exhibit-4. He had seized from the place of occurrence blood stained earth and two blood stained stones weighing 2 and ½ kg and had prepared a seizure list which has been proved and marked as Exhibit-5. He had sent the body for post-mortem examination. He had recorded the restatement of the informant and the statements of witnesses. He had arrested the two accused, obtained the post-mortem report and on completion of investigation had submitted charge sheet. He had recorded the statement of Shyamlal Gope who had stated that the Chowkidar of Pandra village Pati Yogi had attended the Shradh with Thakur Das Yogi and Manoranjan Yogi and after having food the accused persons convinced Pati Yogi to go to Tiruldih O.P. via Shishi village and thereafter all of them had left for Shishi village. In cross-examination he has deposed that he has not shown any papers indicating money taken by Thakur Das Yogi. 14. The statement of the accused was recorded under Section 313 Cr.P.C in which he has denied his complicity in the commission of murder of Pati Yogi. 15. It has been submitted by Mr. C.A. Bardhan, learned Amicus Curie that the entire case of the prosecution is based on circumstantial evidence of the deceased being last seen in the company of the appellant and Thakur Das Yogi. The said circumstance gets nullified by virtue of P.W. 7 being declared hostile. No incriminating articles have been recovered from the possession of the appellant and there is vital contradiction in the evidence of the witnesses with respect to the money given to the accused by the deceased which has been projected to be the motive for committing the murder. 16. Mr. No incriminating articles have been recovered from the possession of the appellant and there is vital contradiction in the evidence of the witnesses with respect to the money given to the accused by the deceased which has been projected to be the motive for committing the murder. 16. Mr. Saket Kumar, learned A.P.P has submitted that it was the appellant and the other accused person who have been instrumental in taking away the deceased from his house and brutally assaulting him leading to his death. 17. We have heard the learned counsel for the respective sides and have also perused the trial court records. 18. The father of the informant had gone to attend a feast in the house of Sukar Gope and the accused persons who were also destined for the said place had convinced him to accompany them but thereafter he did not return and on a search being conducted by P.W.2 and P.W.5 the dead body of their father was found lying in the dry pond of Bhushan Mahto. The body had marks of violence over it and the face was crushed with a stone. The only circumstance emanating from the prosecution case is of the deceased being last seen in the company of the appellant and Thakur Das Yogi (since deceased). So far as the last seen theory propounded by the prosecution based on the disclosure of Shyamlal Gope is concerned, the same has become inconsequential on account of Shyamlal Gope who has been examined as P.W.7 being declared hostile by the prosecution. P.W.1 seems to be the only person present in the house when her husband had gone to the house of Sukar Gope accompanied by both accused. P.W.2 and P.W.5 were not present in the house when the accused persons had come. Though as per P.W.5 the relationship between both the families were not cordial but the evidence of P.W.1 does not indicate in any forcible taking away of the deceased by the accused persons; rather the deceased had willingly accompanied the accused persons. There is nothing on record to indicate that all these persons did not reach the destined place which was the house of Sukar Gope. No incriminating articles were also recovered from the possession of the accused. 19. There is nothing on record to indicate that all these persons did not reach the destined place which was the house of Sukar Gope. No incriminating articles were also recovered from the possession of the accused. 19. So far as motive is concerned, the same also appears to be at variance as though P.W.1 has stated about an amount of Rs 1200/- given to Malu the father of Thakur Das Yogi about 6/7 years back but P.W.2 has stated about the money given 6 months prior to the murder. P.W.5 has expressed his ignorance about when the money was given to the accused persons. None of the witnesses have stated about the money being given in their presence. Admittedly no case was instituted against the accused persons for enforcement of the agreement or for return of the amount advanced. Thus, it is clear that motive has also not been proved by the prosecution. 20. The Learned Trial Court has not made an in-depth analysis of the evidence on record while arriving at a finding of guilt of the appellant. There are no circumstances of consequence highlighted by the prosecution and based on our reasonings as aforesaid, we hereby set aside the judgment and order of conviction and sentence dated 29- 11-2002 (sentence passed on 03-12-2002) passed by Sri Prabhu Nath Lal, learned 1st Additional Sessions Judge, Saraikella in S.T. No. 262 of 2001. 21. This appeal is allowed. 22. Since the appellant is on bail, he is discharged from the liability of his bail bond. 23. We appreciate the assistance rendered by Mr. C.A. Bardhan, learned Amicus Curiae and consequently direct the Member Secretary, Jharkhand High Court Legal Services Committee to extend the stipulated fees to the learned Amicus Curiae within a period of four weeks from the date of receipt/production of a copy of this order.