JUDGMENT : PRADEEP KUMAR SRIVASTAVA, J. 1. Both the appeals are arising out of common judgment passed in S.T. No. 1110/2001 by learned Sessions Judge, Garhwa whereby and whereunder all the above named appellants have been held guilty for the offence under Section 302 read with Section 34 of the I.P.C. and sentenced to undergo imprisonment for life. 2. We have heard the arguments advanced on behalf of learned counsel for the appellants Mr. A.K. Kashyap as well as learned Additional Public Prosecutor and learned Special Public Prosecutor appearing for the State and perused the record. Factual Matrix 3. Factual matrix giving rise to these appeals as per Fardbeyan of one Chaturi Yadav dated 08.10.2001 is that the informant along with Rajendra Yadav was going to graze their cattle at the time of sun rise. It was about 05:30 AM while they were present at a distance of 500 yards from the place of occurrence, the informant heard cries of his wife and proceeded to that direction and saw that Ayodhya Yadav and Birendra Yadav were fleeing towards north side. Ayodhya Yadav was having a tangi in his hand. It is further alleged that a woman was also running towards north-western side with empty hands. When informant reached near his wife, he saw her in injured condition sustaining severe injuries on her forehead and she was not in a position to speak anything. The informant has expressed his suspicion that his wife has been killed due to Witch Craft. On last Monday, at about 03:00 PM, informant come Belwa Damar at his Pahi where his wife was also present and disclosed that Ayodhya Yadav and his wife are adamant to kill her, but due to intervention of Chitra and Ram Chandra, they could not succeed. Thereafter, the informant send his wife to Bhojpur from where in the morning she was coming and the accused persons Ayodhya Yadav and Birendra Yadav and Nepuri Devi (wife of Ayodhya Yadav) in a pre-planned manner have assaulted to his wife resulting in her death. 4. On the basis of above information Nagar Untari P.S. Case No. 118/2001 was registered for the offence under Section 302 /34 of the I.P.C. After completion of investigation, charge-sheet was submitted against all the above named appellants who claimed to be tried. After conclusion of trial, impugned judgment and order of sentence was passed. 5. 4. On the basis of above information Nagar Untari P.S. Case No. 118/2001 was registered for the offence under Section 302 /34 of the I.P.C. After completion of investigation, charge-sheet was submitted against all the above named appellants who claimed to be tried. After conclusion of trial, impugned judgment and order of sentence was passed. 5. Learned counsel for the appellants assailing the impugned judgment has vehemently argued that in the F.I.R. there is simple allegation that Ayodhya Yadav was seen fleeing having tangi in his hand and other two appellants had no arms. The motive for the occurrence was about suspicion of witch craft against the deceased has not been found to be true even by the informant who appointed a 'Dewas' and report was negative. Further after completion of investigation, charge-sheet has not been submitted for the offence under the provision of Prevention of Witch Practices Act, 1999. Therefore, no motive for the occurrence has been proved. The prosecution during trial of the case materially exaggerated and improved the story with a specific case of assault given by the appellants to the deceased by projecting some arms. It is also very strange that as per prosecution the deceased was assaulted at the place of occurrence by tangi, but no blood was found there and nothing has been seized from the place of occurrence. The manner of assault as deposed by the projected eye- witnesses does not find corroboration from the post- mortem report of the deceased. Therefore, except alleged presence of appellants for the time being and fleeing from the place of occurrence itself is not sufficient to fasten with the liability of murder. The prosecution has miserably failed to prove any specific overt act against the appellants except suspicion. It is trite that the suspicion howsoever strong it may be, cannot take place of legal proof. In the instant case, the suspicion expressed by the informant in the F.I.R. itself never culminated into evidence against the appellants. The learned trial court from the single circumstance mentioned in the F.I.R. has inferred the guilt of the appellants without appreciating the whole cumulative effect of evidence led by the prosecution and passed the judgment only on conjecture and surmises and some assumptions and presumptions of fact. The learned trial court from the single circumstance mentioned in the F.I.R. has inferred the guilt of the appellants without appreciating the whole cumulative effect of evidence led by the prosecution and passed the judgment only on conjecture and surmises and some assumptions and presumptions of fact. Therefore, impugned judgment and order of conviction and sentence of the appellants is absolutely illegal and beyond the weight of evidence available on record and liable to be set aside. 6. On the other hand learned A.P.Ps appearing for the State has defending the impugned judgment of conviction has submitted that the eye witnesses of occurrence have proved the actual role and participation of the appellants in the alleged offence of murder and also the motive behind occurrence. Learned trial court has very wisely appreciated in a threadbare manner, the oral and documentary evidence adduced by the prosecution and arrived at right conclusion, which suffers from no illegality or infirmity calling for any interference by way of this appeal, which is devoid of merits and fit to be dismissed. 7. On the basis of respective submissions of the parties, the only point for determination in these appeals is that as to whether the impugned judgment of conviction and sentence of appellants suffers from any error of law or not ? 8. In order to prove its case, the prosecution has examined altogether 08 (eight) witnesses in this case, and one court witness has also been examined. Apart from oral evidence following documentary evidence has also been adduced:- Exhibit- 1:- Signature of Sita Ram Yadav on inquest report. Exhibit- 1/1:- Signature of Dsrath Pd. Gupta on inquest report. Exhibit- 2:- Signature of Chaturi Yadav on Fard Beyan. Exhibit- 3:- Post-mortem report. Exhibit- 4:- Inquest Report. Exhibit- 5:- Formal F.I.R. 9. On the other hand, no witness has been examined on behalf of defence and no documentary evidence has been adduced. 10. Before imparting our verdict on aforesaid point we have to apprise with the testimonies of the witnesses examined in this case. P.W.1 Rajendra Yadav has stated that he went from his house along with his cattle for grazing and reached near Nimiya Dhoda, where Ayodhya Yadav and Birendra Yadav and Nepuri Devi were already sitting and Kamla Devi (deceased) was going to Bhojpur for attending a party. P.W.1 Rajendra Yadav has stated that he went from his house along with his cattle for grazing and reached near Nimiya Dhoda, where Ayodhya Yadav and Birendra Yadav and Nepuri Devi were already sitting and Kamla Devi (deceased) was going to Bhojpur for attending a party. In the midway, Ayodhya Yadav and Birendra Yadav armed with tangi and lathi respectively and Nepuri Devi having no arms but empty hands rushed towards Kamla Devi to kill her and Ayodhya Prasad gave a tangi blow on her head due to which she fell down, thereafter, Birendra Yadav assaulted her by lathi and Nepuri Devi assaulted on mouth by stone. Although, this witness has given aforesaid vivid description of the alleged crime, but in the last line of his testimony has given a serious jolt to above evidence by saying that after hearing hulla and alarm, he along with Chaturi Yadav and Charitra Yadav arrived there, still assault was going on with Kamla Devi. When this witness along with Chaturi Yadav and Charitra Yadav attempted to intervene and save the injured (Kamla Devi), then they were also threatened be killed. Thereafter, accused persons fled away. From perusal of cross-examination of P.W.1, it appears that his attention has been drawn towards the statement recorded under Section 164 of the Cr.P.C. wherein he has not stated about any specific role to any of the accused persons and not seen the actual assault being given to the deceased. He was for the first time interrogated by the police on the next day of the occurrence in the morning near the dead body of Kamla Devi. He also admits a very surprising story that at the time of recording of statement at Nimiya Dhoda, informant was not present at the spot rather he was at Bhojpur which is situated at a distance of 2 kilometers. He further states that the occurrence was informed by his father Ishwari Yadav to the police. He also admits that from the place of occurrence, the police station is situated only at a distance of 06 kilometers. He further states that he has seen the occurrence from a distance of 50 steps. Ayodhya Yadav gave four tangi blows on the head of the deceased, after one tangi blow she fell down, he stroke further three tangi blows; one tangi blow was inflicted on the middle of the head. He further states that he has seen the occurrence from a distance of 50 steps. Ayodhya Yadav gave four tangi blows on the head of the deceased, after one tangi blow she fell down, he stroke further three tangi blows; one tangi blow was inflicted on the middle of the head. The tangi was heavy and big in size. Thereafter, Birendra Yadav gave two lathi blows. He saw only two injuries to the deceased. He has denied the suggestion of defence that one shepherd namely Vijay Yadav informed them about a dead body lying near the jungle, then they went to the place of occurrence and thereafter, in connivance with informant lodged this false case. P.W.2 Sitaram Yadav is witness of inquest report and has proved his signature as Exhibit-I. P.W.3 Dashrath Prasad Gupta is also witness of inquest report and has proved his signature as Exhibit-1/1. He has no personal knowledge of the occurrence. P.W.4 Chaturi Yadav is the informant of this case. According to his evidence, on the date of occurrence at about 05:30 AM, he was going to Nimiya Dhoda for grazing cattle meanwhile he heard hulla of his wife from a distance of 50-60 steps and rushed towards the place of occurrence and saw that Birendra Yadav, Ayodhya Yadav and Nepuri Devi were assaulting to his wife. Ayodhya Yadav gave tangi blow, Birendra Yadav assaulted by lathi and Nepuri Devi assaulted by stone. Due to sustaining injuries his wife died. He has also stated that the accused persons were calling her Daain. He has proved his signature as Ext-2 on his Fardbeyan. Although, he has stated that the accused persons were assaulting to his wife, but the manner of assault and presence of other witnesses has not been stated by him. His attention has also been drawn towards the statement before police, wherein also he has not stated about the specific role of any of the accused persons rather stated that they were seen fleeing from the place of occurrence. P.W.5 Charitra Yadav is 65 years old and according to his evidence he heard hulla of Kamla devi, her husband and Rajendra Yadav rushed towards the place of occurrence and he could not run due to his oldness. Hence, he was far behind them. Therafter, Chaturi Yadav and Rajendra Yadav disclosed that Kamla Devi has been assaulted by Birendra Yadav, Ayodhya Yadav and Nepuri Devi. Hence, he was far behind them. Therafter, Chaturi Yadav and Rajendra Yadav disclosed that Kamla Devi has been assaulted by Birendra Yadav, Ayodhya Yadav and Nepuri Devi. This witness has not stated the above story as testified before Court at the time of recording his statement under Section 161 of the Cr.P.C. P.W.6 Dr. Braj Kishore Mundari has conducted autopsy on the dead body of deceased on 09.10.2001 about 03.30 PM and found following injuries:- (i) Lacerated injury over the chin 11/2" x ½ x bone deep with fracture of mandible. (ii) Laceration on margin of the lower lip ½" x 1/4" x muscle deep. (iii) Lacerated wound on right side of the face below the eye 1/2" x1/4" x muscle deep. (iv) Lacerated injury on frontenale 1.1/4"x 1" x bone deep. (v) Bruise on the right side of the face 3.1/2" x 2.1/2". (vi) Sharp injury on right side of the frontal part of the head and such as by tangi farsa or like transverse in direction 3.1/2" x 1" x bone deep. (vii) Bruise on posterior part of right elbow 1/4" x 1/4". (viii) Bruise on top of the left shoulder 1" x 1". Out of eight injuries except injury no.6, all injury were caused by hard blunt substance like lathi, stones or the like. On dissection:- Fracture of right parietal bone membrane of brain congested and lacerated, trachea, larynx congested, both lungs pale, heart chambers all empty and incisor teeth of both jaw found fractured. The stomach was found empty. Intestine contains gas, rectum empty, liver pale spleen pale kidney also pale, urinary bladder empty, uterus found small. The cause of death opined as "Death occurred due to hemorrhagic shock due to above injures. Time since death is 08 to 18 hours. Above injuries were sufficient to cause death in ordinary course. Injury No. (VI) caused by sharp cutting weapon Post-mortem report is marked as exhbit-3. P.W.8 S.I. Upendra Kumar Singh got information about the occurrence through rumor that on 09.10.2001 at about 09:15 AM, a lady has been killed in village Bhojpur. After making station diary entry, he proceeded along with other police personnels to verify the matter and reached at village Nimiya Dhoda, where he saw the dead body of Kamla Devi, who has sustained fresh injuries caused by sharp weapon on forehead. After making station diary entry, he proceeded along with other police personnels to verify the matter and reached at village Nimiya Dhoda, where he saw the dead body of Kamla Devi, who has sustained fresh injuries caused by sharp weapon on forehead. This witness recorded Fardbeyan of husband of the deceased namely Chaturi Yadav, he has clearly stated that they have seen the accused persons fleeing with the tangi and nothing else. He prepared inquest report of the deceased in presence of witnesses which is marked as exhibit 4 and sent the dead body of the deceased for post-mortem. After receiving post-mortem report, recording the statement of other witnesses finding sufficient evidence submitted charge-sheet against the accused persons. His attention has been drawn towards the statement of the witnesses Rajendra Prasad (P.W.1) who has stated nothing about the specific overt act of any accused persons in his statement recorded under Section 161 of the Cr.P.C. In his cross examination the investigating officer has stated, the extract of which is as under:- 11. It is utter surprising that during course of trial, the informant Chaturi Yadav (P.W.4) has also stated that he had seen the accused persons assaulting his wife, witness Charitra Yadav has also stated that he heard hulla of the wife of the Chaturi Yadav and rushed towards the place of occurrence. 12. One court witness namely Ram Dhyan Pal has proved the formal F.I.R. 13. On the other hand no oral as well as documentary evidence has been adduced by the defence. The case of the defence is false implication merely on the basis of suspicion. 14. From the aforesaid discussion of testimony of the prosecution witnesses, it appears that none of the witnesses are eye-witnesses of occurrence. The story about actual participation of the appellants in the alleged crime, appears to be material improvement. The single circumstance as alleged is that appellants Ayodhya Yadav with Tangi, Birendra Yadav with Lathi and Nepuri Devi were seen fleeing just after the occurrence. The motive behind the occurrence attributed against the appellants is that they were suspecting the deceased to be Daain and indulging in Daain Practices due to which wife of Ayodhya Yadav was ailing. No other connecting evidence has been collected during investigation like any weapon of offence, blood stained arms or stone from the place of occurrence. The motive behind the occurrence attributed against the appellants is that they were suspecting the deceased to be Daain and indulging in Daain Practices due to which wife of Ayodhya Yadav was ailing. No other connecting evidence has been collected during investigation like any weapon of offence, blood stained arms or stone from the place of occurrence. It is a case of murder which is severely punishable and the minimum sentence is life imprisonment, therefore, it requires evidence of high degree. No conviction can be based only on the basis of suspicion. In the instant case, the suspicion raised by the informant at the time of lodging the F.I.R. never culminated into any legal proof. The evidence of witnesses also suffers from exaggerations, material improvements and discrepancies in material particulars. Admittedly, during the course of investigation as well as at the time of instituting the F.I.R., no specific role or participation or manner of assault to the deceased at the hands of appellants has been asserted, but such improvements are appearing in the evidence before the court for the first time from the mouth of witnesses who are close relatives of the informant. 15. The overall spectrum of the incident as focused by the witnesses does not inspire our confidence about their truthfulness. We are of the concrete view that the learned trial court has relied the examination-in-chief of the witnesses without analyzing and appreciating the materials elicited in their cross-examination and also the contradictions got explained through the mouth of Investigating Officer. As such, arrived at wrong conclusion. Therefore, we are constrained to hold that learned trial court has committed serious error of law in not appreciating the testimony of witnesses in proper manner and undue weightage has been given to the exaggerated testimony. There is no iota of evidence to prove the culpability of the appellants in the alleged offence of murder. Accordingly, we set aside the judgment of conviction and sentence of the appellants for the offence under Section 302 of the I.P.C. passed by Sessions Judge, Garhwa in S.T. Case No.1110 of 2001 and this appeal is allowed. 16. Appellants are on bail, hence, they are discharged from the liability of bail bond and sureties are also discharged. 17. I.A. if any stands disposed of. 18. 16. Appellants are on bail, hence, they are discharged from the liability of bail bond and sureties are also discharged. 17. I.A. if any stands disposed of. 18. Let a copy of this judgment along with trial court records be send back to the court concerned for information and needful.