JUDGMENT : 1. It is to be mentioned at the very outset that another co-convict namely Butru Mahato, the sole appellant in Cr.A.DB No. 864 of 2003 has died. Hence, the appeal related to him stands abated. 2. Instant criminal appeal is preferred by sole appellant for setting aside the judgment and order of conviction dated 19.06.2003 and order of sentence dated 20.06.2003 passed by Learned Sessions Judge, Seraikela, Kharsawan in S.T. Case No. 23 of 2002 whereby and whereunder, the appellant along with one Butru Mahato has been held guilty for the offence under Section 302 read with Section 34 of the INDIAN PENAL CODE and sentenced to undergo imprisonment for life. 3. We have heard Mr. R.C.P. Sah, learned counsel for the appellant as well as Mr. Manoj Kumar Mishra, Additional Public Prosecutor appearing for the State and perused the record. 4. Learned counsel for the appellant assailing the impugned judgment submitted that main overt act has been attributed against the co-convict namely Butru Mahato and not against the present appellant. Admittedly, the informant is not an eye-witness of the occurrence and other witnesses of facts except P.W.4 are either hearsay witnesses or declared hostile or witnesses of formal nature. The star witness of prosecution is P.W.4 (Dhani Ram Mahto) has specifically admitted that when the police had come to lift the dead body of Daitari Mahato then interrogated with him but he did not disclose any knowledge about the occurrence and when the accused persons were arrested then, he was also apprehended by police and brought to the police station, where he was kept for four days and after recording confessional statement of Butru and Kashi Mahato, he was forced to give statement as desired by the police. Apart from the above suspicious circumstances under which the statement of P.W.4 was recorded, this witness has deposed to the effect that on request of Daitari Mahato (since deceased) he left him towards the village pond and Kashi Mahato and Butru Mahato were also holding the deceased. Thereafter, he returned to his home due to fear. Thereafter what happened, this witness knows nothing. Therefore, except last seen theory nothing has been stated by P.W.4, which also appears to have been given under compulsion. No other witnesses have been able to prove the charges leveled against the appellant. Thereafter, he returned to his home due to fear. Thereafter what happened, this witness knows nothing. Therefore, except last seen theory nothing has been stated by P.W.4, which also appears to have been given under compulsion. No other witnesses have been able to prove the charges leveled against the appellant. The learned trial court has miserably failed to properly appreciate the evidence of P.W.4 and held the appellant guilty without any legal and cogent evidence against him. Therefore, impugned judgment and order of conviction and sentence of appellant is liable to be set aside, allowing this appeal. 5. On the other hand, learned Additional Public Prosecutor has opposed the aforesaid contentions raised on behalf of the appellant and submitted that in the examination-in-chief, P.W.4 and other witnesses have supported the prosecution case. In the cross-examination, P.W.4 has stated about force used against him by the police in order to record his statement, but only by that reason his testimony cannot be disbelieved or discarded as a whole. The learned trial court has very wisely and in threadbare manner appreciated the evidence available on record and arrived at right conclusion about guilt of the appellant. There is no reason to interfere with the impugned judgment and no legal force in contentions raised on behalf of the appellant. Therefore, this appeal is fit to be dismissed. 6. The only point for determination in this appeal is that whether the impugned judgment of conviction and order of sentence of the appellant suffers any error of law calling for any interference by way of this appeal? 7. It appears that first information report has been lodged on the basis of Fardbeyan of Sushen Mahato (P.W.5) stating inter alia that on 16.05.2001 at about 14:30 hours near Turasai village S.I. Arbind Kumar Manjhi got recorded his statement, wherein it is alleged that on 16.05.2001 in the morning, informant had gone to Rajnagar market, where he was informed about the death of a person near government pond towards north side of the village. The name of the deceased was disclosed as Daitari Mahato. It is further alleged that the deceased Daitari Mahato was elder brother of the informant, he went towards the pond and saw dead body of his brother, throat was cut by sharp cutting weapon and there was blood stains on earth. The name of the deceased was disclosed as Daitari Mahato. It is further alleged that the deceased Daitari Mahato was elder brother of the informant, he went towards the pond and saw dead body of his brother, throat was cut by sharp cutting weapon and there was blood stains on earth. It is suspected that deceased was indulged in Ojhagiri and due to some dispute with any person informant's brother might have been killed. Informant has also expressed his suspicion that since 15 years, land dispute is going on with Radhey Shyam Mahto, Jagarnath Mahto and Kusho Mahto, who might have committed murder of the deceased. 8. On the basis of above information, Seraikella P.S. Case No.55/2001(Exhibit-3) dated 16.05.2001 was registered for the offence under Section 302 /34 of the I.P.C. against Radhey Shyam Mahto, Jagarnath Mahto and Kusho Mahto. After completion of investigation, charge-sheet was submitted against Kashi Mahato (present appellant) and Butru Mahato. The appellant denied the charges and claim to be tried. 9. After conclusion of trial, impugned judgment of conviction and order of sentence has been passed, which has been assailed in this appeal. 10. In order to prove the charges, the prosecution has examined altogether 10 witnesses. Apart from oral evidence following documentary evidences have also been adduced:- Exhibit- 1 to 1/1- Signature of witnesses on inquest report. Exhibit-1/2 to 1/3- Signature of witness Manoj Kumar and Sudhir Mahto on seizure list. Exhibit-2- Fardbeyan of Sushen Mahato. Exhibit-2/1- Endorsement on fardbeyan. Exhibit-3- Formal F.I.R. Exhibit-4- Carbon copy of inquest report. Exhibit-5- Seizure list of blood stained soil and red colour Gamchha. Exhibit-6- Seizure list of Hasua. Exhibit-7- Post-Mortem Report. Exhibit-8- Statement recorded under Section 164 of the Cr.P.C. of Dhani Ram Mahato. 11. It appears that in the course of investigation statement of Dhani Ram Mahato (P.W.4) was recorded under Section 164 of the Cr.P.C. on 10th September, 2001 which is the basis of filing charge-sheet filed against the present appellant. 12. On the other hand no oral or documentary evidence has been adduced by defence. The case of defence is false implication due to previous enmity and plea of innocence. 13. In the above background of the case, we have to examine the evidence adduced by prosecution in order to prove the charges leveled against the appellant. 12. On the other hand no oral or documentary evidence has been adduced by defence. The case of defence is false implication due to previous enmity and plea of innocence. 13. In the above background of the case, we have to examine the evidence adduced by prosecution in order to prove the charges leveled against the appellant. P.W.1 Muchiram Mohanty:- According to his evidence, he has only seen the dead body of the deceased at his village pond. The murder was committed by cutting throat and inquest report was prepared in his presence on which he has put his signature and marked as Exhibit-1. Nothing else has been stated by this witness. P.W.2 Kailash Mahato: is also the witness of inquest and proved his signature as Exhibit 1/1 and does not know anything about the occurrence. P.W.3 Bidya Mahato is also a local villager, he has stated nothing and declared hostile by the prosecution. P.W.5 Sushen Mahato is the informant and younger brother of the deceased. Admittedly, he is not the eye-witness of the occurrence rather he had gone to Rajnagar market, where he came to know from a man of village Satrusal that his brother Daitari Mahato has been murdered and the dead body is lying near the government pond. Police also arrived at the place of occurrence where his statement was recorded and he put his left thumb impression. Nothing else has been stated by this witness against the appellant. P.W.6 Sudhir Mahato has been declared hostile by the prosecution, although he has admitted his signature on seizure list as Exhibit-1/2, but failed to state that what was recovered. In his cross-examination by the prosecution, he has denied the suggestion that on 07.09.2001 at 09:45 AM, the police have searched the house of Butru Mahto and recovered a Hasua. P.W.7. Manoj Kumar Mahato although has denied any search in the house of Butru Mahato, but has proved his signature on seizure list as Exhibit-1/3. P.W.8 Arbind Kr. Manjhi is the sub-inspector and investigating officer of this case. According to his evidence, on 16.05.2001 he was posted as Sub-Inspector at Seraikella Police station and S.I. Satananad Singh was the Officer-In-Charge. On that day, on the basis of rumor that a dead body was lying at village Kala Gujju near government pond, entry was made in station diary and he was sent to verify the incident. According to his evidence, on 16.05.2001 he was posted as Sub-Inspector at Seraikella Police station and S.I. Satananad Singh was the Officer-In-Charge. On that day, on the basis of rumor that a dead body was lying at village Kala Gujju near government pond, entry was made in station diary and he was sent to verify the incident. This witness arrived at place of occurrence at about 02.30 P.M. and saw the dead body in presence of several villagers where Fardbeyan of Sushen Mahato, brother of the deceased was recorded which is marked as Exhibit-2. 14. On the basis of fardbeyan, formal F.I.R. (Exhibit-3) was registered and charge of investigation was given to him. He has further proved the inquest report of the deceased which was prepared in presence of the witnesses namely, Muchi Ram Mohanty and Kailash Mahato which is marked as Exhibit-4. He also seized blood stained earth and blood stained Gamcha of the deceased wrapped in his neck in presence of witnesses Birendra Singh Sardar and Ram Barik and seizure list was prepared (Exhibit-5). He also obtained the post-mortem report of the deceased. In course of investigation, he recorded the statement of Kailash Mahato, Muchi Ram Mohanty, Vidya Mahato and Dhani Ram Mahato (P.W.4) and also inspected the place of occurrence. Thereafter he was transferred and further charge of investigation was handed over to the then Officer In-charge on 20.08.2001. He has also conducted the investigation as regards the involvement of Radhey Shayam Mahato, Jagarnath Mahato and Kusho Mahato against whom the F.I.R. was registered, but in connection with their involvement in this case, he has not mentioned the name of witnesses interrogated by him in the case diary. He also admits in his evidence that Dhani Ram Mahato (P.W.4) has stated before him that on the date of occurrence at about 07:00 PM he was coming along with wife of Bengali Mahato and he has not stated that anyone has threatened him. He recorded the statement of Dhani Ram Mahato on 21.05.2001, but his statement was not recorded under Section 164 of Cr.P.C. He also admits that seized materials from the place of occurrence were not sent to F.S.L. for chemical examination. P.W.9 Satanand Singh is the second investigating officer of this case, he took charge of investigation of this case on 20.08.2001 from the previous investigating officer. P.W.9 Satanand Singh is the second investigating officer of this case, he took charge of investigation of this case on 20.08.2001 from the previous investigating officer. According to his evidence, on the basis of information from spy, he raided the house of Kashi Mahato and Butru Mahato who confessed their guilt and also produced the ‘Hasua’ concealing in their house used in this occurrence. The said ‘Hasua’ was seized in presence of witnesses namely, Sudhir Mahato and Manoj Kumar and seizure list (Exhibit-6) was prepared. He has also recorded the statement of Dhani Ram Mahato (P.W.4) and on the basis of supervision note of D.S.P., he got recorded the statement of Dhani Ram Mahato under Section 164 of the Cr.P.C. and finding sufficient evidence submitted charge-sheet against the accused persons Kashi Mahato and Butru Mahato. In his cross-examination, this witness specifically admits that after arrest of the accused persons namely Kashi Mahato and Butru Mahato, he recorded the statement of Dhani Ram Mahato (P.W.4) on 09.09.2001. He also admits that the Hasua seized in this case was not blood stained. He also admits that he has conducted no investigation in respect of named accused persons in the F.I.R. He denied the suggestion of defence that after threatening and assaulting the witness Dhani Ram Mahato, his statement was recorded by him as well as under Section 164 of the Cr.P.C. P.W.10. Dr. Ajit Sharan is the doctor who has conducted the post- mortem examination on the dead body of the deceased Daitari Mahato on 17.05.2001 and found following injuries:- i) Incised wound on front neck, transversely place above adami apple 3" X 1" X cutting of trachea, Oesophagus major vessels and soft tissues. ii) Multiple abrasion on back of chest 2" X 1", 1" X 1/2 ", 1" X 11/2" iii) Multiple abrasion on buttock 1" X 1", 2" X 1/2", 11/2" X 1". He has opined that all the injuries were ante-mortem in nature and injury No.1 was caused by sharp cutting weapon while injury No.(ii) and (iii) were caused by hard and blunt substance. According to him, injury was sufficient to cause death. 15. On the other hand case of defence is denial from occurrence and false implication and plea of innocence. He has opined that all the injuries were ante-mortem in nature and injury No.1 was caused by sharp cutting weapon while injury No.(ii) and (iii) were caused by hard and blunt substance. According to him, injury was sufficient to cause death. 15. On the other hand case of defence is denial from occurrence and false implication and plea of innocence. The Statement of the accused persons recorded under Section 313 of the Cr.P.C. also do not go to show that any incriminating circumstances were got explained by them. 16. The evidence of witnesses as discussed above does not disclose anything showing involvement of the appellant in the alleged offence of murder. The appellant has been convicted in this case only on the basis of evidence of Dhani Ram Mahato (P.W.4) whose testimony is as under:- According to his evidence, on the date of occurrence he was grazing cattle, then he met with Daitari Mahato (deceased) and on his request left Daitari Mahato to the pond. Thereafter, Kashinath and Butru proceeded along with Daitari Mahato towards bandh side, this witness was threatened by Kashi Mahato and Butru Mahato, hence he returned to his home. Later on, he came to know that Daitari Mahato has been killed. From the evidence of P.W.8, the first investigating Officer (S.I. Arbind Kumar Manjhi), it is obvious that the statement of this witness recorded under Section 161 of the Cr.P.C., but nothing was disclosed by him implicating the appellants in the alleged murder. The Second Investigating Officer (P.W.9) Satanand Singh has also stated in the examination- in-chief that in the course of investigation, he also recorded statement of Dhani Ram Mahato (P.W.4) on 09.09.2001, but did not find anything exculpatory to the accused persons Kashi Mahato and Butru Mahato. The statement under Section 164 of the Cr.P.C. was recorded at the instance of D.S.P. who was supervising the investigation. It is also admitted by P.W.4 (Dhani Ram Mahato) in his evidence that he was assaulted and threatened and kept at police station by the police for four days, therefore, his statement was recorded by police by using force and he does not know what was recorded by the police. He has not made any statement regarding involvement of the accused persons in the alleged offence. 17. He has not made any statement regarding involvement of the accused persons in the alleged offence. 17. We further find that if the statement of P.W.4 Dhani Ram Mahato may be taken on its face value even then, he has disclosed only the last seen theory and nothing else. Neither the first investigating officer nor the second investigating officer has conducted any investigation in respect of named accused persons in the F.I.R. and no reason or explanation has been given during examination at trial. The seized material is the weapon of offence which has also stated by the investigating officer to be not stained with blood, therefore, no question arises that the said weapon was used in commission of offence, in spite of the fact that the same has been recovered from the house of co-accused Butru Mahato. Blood stained gamcha and blood stained earth was also not sent to F.S.L. for chemical examination. Therefore, no connecting evidence is available against the appellant. 18. In view of aforesaid discussion and reasons we are of the firm view that Dhani Ram Mahato (P.W.4) is projected by the prosecution on threat and compulsion as an eye-witness, but only material stated by him is the last seen theory of deceased and accused persons Kashi Mahato and Butru Mahato. We also find that the P.W.9, the second Investigating Officer of the case has specifically admitted that both the accused persons were arrested on the basis of information furnished by the police spy and not on the basis of any disclosure statement of Dhani Ram Mahato (P.W.4) whose statement was recorded after arrest of the accused persons. In view of above discussion, there appears no cogent or reliable evidence at all against the appellant to fasten with the liability of murder of the deceased. It appears that learned trial court has miserably failed to properly appreciate the evidence available on record and arrived at wrong conclusion. Therefore, impugned judgment of conviction and order of sentence of the appellant is hereby set aside and this appeal is allowed. 19. Appellant is on bail, as such he is discharged from the liability of bail bond and sureties shall also be discharged. 20. Pending I.As, if any stand disposed of. 21. Let a copy of this judgment along with trial court record be sent to the concerned court forthwith for information and needful.