JUDGMENT : PRADEEP KUMAR SRIVASTAVA, J. 1. Heard Mr. Anil Kumar Jha, learned counsel appearing for the appellants and Mr. Manoj Kumar Mishra, learned A.P.P. appearing for the State. 2. The instant appeal has been preferred by above named appellants against the judgment of conviction dated 10.01.2003 and order of sentence dated 16.01.2003 passed by learned 3rd Additional Sessions Judge, Deoghar in S.T. No.391 of 2001, whereby and whereunder the appellants have been held guilty for the offence under sections 302/34 of INDIAN PENAL CODE and sentenced to imprisonment of life. FACTUAL MATRIX 3. The factual matrix giving rise to this appeal is that since 2-3 days prior to occurrence, some quarrel ensued between Rafique Ansari, Maternal grandfather of the informant, Fatima Khatoon and the accused persons for resisting the drainage of the court yard of Md. Rafique Ansari (since deceased). It is further alleged that on 07.02.2001 at about 8:00 AM, when Ushman was blocking the flow of drain water, Rafique Ansari protested, suddenly Ainul Hoda caught hold of Rafique and dragged towards the court yard of Ushman Mian and laid down him on earth and gave several bhujali blows on him. It is further alleged that Jamila Khatun gave a spade to Ainul and asked him to kill Rafique. It is further alleged that Ushman, Israfil and Nijam having sabbaal, tangi respectively also assaulted to Rafique. Nijam and Jamila had assaulted with stone. It is further alleged that due to severe injuries sustained by Rafique, he died. The informant was also assaulted by Israfil by fists and slaps and indecently assaulted on her chest making her naked. It is alleged that Israfil had committed theft of some articles like radio, watch, bicycle, utensils, pass-books and other households articles and cash of Rs.7,000/-. In course of treatment, Rafique Ansari died. On the basis of above information, Karon P.S. Case No.12 of 2001 was registered for the offences under sections 341, 323, 448, 379, 376, 511, 504, 302, 120B/34 of INDIAN PENAL CODE . After completion of investigation, charge-sheet was submitted against all the accused persons. The appellants have faced trial for charges under sections 448, 302/34, 379/34, 376/511 of INDIAN PENAL CODE but they were held guilty and sentenced only for the offence under section 302/34 of INDIAN PENAL CODE and acquitted from the rest of charges. Submission of learned counsel for the appellants. 4. The appellants have faced trial for charges under sections 448, 302/34, 379/34, 376/511 of INDIAN PENAL CODE but they were held guilty and sentenced only for the offence under section 302/34 of INDIAN PENAL CODE and acquitted from the rest of charges. Submission of learned counsel for the appellants. 4. Learned counsel for the appellants assailing the impugned judgment and order has submitted that there is only one eye- witness of the occurrence, namely Fatima Khatoon, who was examined as P.W.11 but her testimony suffers from materials contradictions and discrepancies as regards the role and participation of each appellant in the alleged offence of murder. She has been disbelieved as regards commission of theft and attempt to commit rape upon her by the learned trial court. 5. The genesis of the occurrence is dispute between the parties about drainage of water. The doctor, who conducted autopsy on the dead body as well as the Investigating Officer has not been examined in this case, therefore, the defence has seriously been prejudiced in their defence. The exact cause of death has not been brought on record. No seized materials were proved by the prosecution to connect the same with the alleged occurrence. It is further submitted that specific allegations are against Ainul Hoda @ Ainul Mian alone and no specific overt act has been attributed against the rest of appellants. The prosecution has also failed to prove the ingredients of section 34 of INDIAN PENAL CODE , which is not applicable in this case and the learned trial court has also not touched the above issue. It is not discussed anywhere in the impugned judgment that appellants have acted in a concerted manner and in furtherance of their common intention to kill the deceased or they have taken part in the actual assault caused to the deceased. In the alternative, it is submitted that admittedly there was dispute of drainage and the occurrence has taken place in a sudden manner without any pre-meditation and hatching any plan to eliminate the deceased due to hot exchange at the spur of moment. Therefore, the intention and knowledge as required to constitute the offence of murder is absolutely lacking in this case and the case of the prosecution falls under Section 304 Part II of the INDIAN PENAL CODE . Jamila Khatun was all along on bail during trial. Md. Israfil, Md. Ainul and Md. Therefore, the intention and knowledge as required to constitute the offence of murder is absolutely lacking in this case and the case of the prosecution falls under Section 304 Part II of the INDIAN PENAL CODE . Jamila Khatun was all along on bail during trial. Md. Israfil, Md. Ainul and Md. Ushman had surrendered on 12.02.2001 and thereafter they were sent to judicial custody and they remained all along in jail throughout the trial and post- conviction and ultimately they were released on bail by the Hon’ble High Court vide order dated 18.04.2003. It is further submitted that the deceased was old aged, sick and infirm person, who succumbed to injuries due to his vulnerable condition. Therefore, conviction and sentence of the appellants for the offence under Section 302 of INDIAN PENAL CODE is not sustainable under law and fit to be set aside. Submission of learned counsel for the State 6. On the other hand, learned A.P.P. appearing for the State defending the conviction and sentence of the appellants has submitted that there is substantive evidence of eye-witnesses showing actual participation of all the appellants in brutally assaulting the deceased by sharp-cutting weapon, which was provided by appellant No.4, Jamila Khatun to appellant No.1, Ainul Hoda. Learned trial court has discussed over all evidence of the witnesses in threadbare manner, which suffers from no material contradictions and discrepancies. There were five sharp-cutting injuries on vital part of the body caused to the deceased as per post-mortem report Ext.8 (marked under section 294 Cr.P.C.) which were sufficient in ordinary course of nature to cause death. Therefore, the case falls under clause Thirdly to section 300 of IPC. The case does not come within any of exceptions mentioned under section 300 of IPC. It was pre-planned and well designed murder of the deceased by the appellants. Therefore, there is no illegality or infirmity in the impugned judgment and order of conviction and sentence of the appellants calling for any interference by way of this appeal, which is fit to be dismissed. 7. We have gone through the record of the case along with the impugned judgment and order in the light of contentions raised on behalf of the both side. 8. 7. We have gone through the record of the case along with the impugned judgment and order in the light of contentions raised on behalf of the both side. 8. The only point for determination in this appeal is that as to whether the impugned judgment and order of conviction and sentence of the appellants passed by learned trial court suffers from any error of law calling for any interference in this appeal? 9. Before imparting over verdict on the above point, we have to appraise from oral and documentary evidence adduced by the prosecution. 10. It appears that altogether 19 witnesses were examined by the prosecution: P.W.1 Md. Nausad is son-in-law of the deceased. According to his evidence, he along with his wife arrived at the place of occurrence after hearing hulla and he came to know from the villagers and the daughter of his saarhu, Fatima Khatun that his father-in-law has been assaulted by Ainul, Ushman, Israfi, Nijam, Jamila and others with tangi, farsa, sabal, stones and etc. Thereafter, this witness also went to the hospital where he saw the dead body of the deceased, Rafique, who has sustained injuries on his head, both hands and both leg. In his cross-examination, this witness admits that from his house, the place of occurrence is situated at the distance of one mile. Admittedly, this witness is a hearsay witness of the occurrence. P.W.2-Md. Safique is also son-in-law of the deceased. According to his evidence, on 07.02.2001, he was present at the clinic of Dr. Harihar Mandal at Madhupur, meanwhile, his father-in-law was brought there on a tricycle by Ainul, Usman, Nijam, Israfil and others where Fatima disclosed that Ainul, Ushman, Israfil, Nijam and Jamila have assaulted to Rafique, who died on the same day in the clinic, where inquest report was prepared by the police and he has also put his thumb impression. Therefore, this witness is not an eye-witness of the occurrence. P.W.3-Gulam Rasool had gone to market and returned at about 10 to 10:30 am then he came to know about some scuffle between Rafique Mian and Ainul Mian. He saw that Rafique Mian was lying in injured condition on earth in front of his house sustaining injuries on his head, both arms and both leg. He came to know from the villagers that Ainul, Ushman, Israfil, Nijam and Jamila have assaulted Rafique due to dispute of drainage. He saw that Rafique Mian was lying in injured condition on earth in front of his house sustaining injuries on his head, both arms and both leg. He came to know from the villagers that Ainul, Ushman, Israfil, Nijam and Jamila have assaulted Rafique due to dispute of drainage. The injured was brought to clinic of Dr. Harihar Mandal on a tricycle where he died. This witness is not an eye-witness of the occurrence but he has seen the deceased in injured condition, who subsequently died. P.W.4- Khursid Alam is a private car driver and was working at Patna. He came to know about the occurrence from his brother-in-law through telephonic message. On the next day morning, he returned and saw the dead body of his father. His bhagini, Fatama Khatun told that Ainul, Ushman, Israfil, Jamila and Nijam have assaulted his father by tangi, farsa, sabal and spade due to which Rafique died. This witness has admitted the dispute about drainage between the parties. P.W.5-Jamila Khatoon is daughter of the deceased. On the date of occurrence, she was at her matrimonial home and after receiving message about the incident of assault to her father, she came to her parental home and saw the dead body of her father at the clinic of Dr. Harihar Mandal. She came to know from Fatima that Ainul, Ushman, Israfil and Nizam have assaulted her father by Kudal, Bhujali, tangi and stones. P.W.6-Najma Khatoon is wife of the deceased. According to her evidence, at the time of incident, she was at her parental home situated at Bishnugardh, Hazaribagh. She received information from her son-in-law, Nausad about the occurrence of assault with her husband then she returned to her matrimonial home where Fatima disclosed about the incident that Ainul, Ushman, Israfil, Nijam and Jamila have assaulted to her husband by tangi, sabal and stones. She saw the dead body of her husband after post-mortem. P.W.7-Md. Salauddin Ansari is also a hearsay witness and saw the dead body of the deceased in injured condition. He specifically admitted that he has not seen the occurrence. P.W.8-Md. Masibul Hasan is son-in-law of the deceased. Admittedly he was at home and received information about the occurrence from bhagina, Jainul and also came to know that Fatima is present at Karon Police Station. He specifically admitted that he has not seen the occurrence. P.W.8-Md. Masibul Hasan is son-in-law of the deceased. Admittedly he was at home and received information about the occurrence from bhagina, Jainul and also came to know that Fatima is present at Karon Police Station. He went to Police Station where Fatima disclosed that Ainul, Ushman, Israfil, Nijam and Jamila have brutally assaulted to Rafique by sabal, tangi, kudal and bhujali. P.W.9 Md. Khalil is also a hearsay witness, who came to know about the occurrence from the daughter of Rafique Mian. He saw the dead body of the deceased at the clinic of Dr. Harihar Mandal. P.W.10-Md. Samid is also a hearsay witness, who came to know from the son of his nephew, Munku that Rafique has been assaulted by Ainul, Ushman, Israfil, Nijam and Jamila by tangi, sabal and stones due to which Rafique died. P.W.12-Pranav Pushp is the son of Dr. Harihar Mandal and he has admitted that the deceased, Rafique was admitted in his father’s clinic for treatment where he died and inquest report was prepared by the police, which has been signed by him and marked as Ext.1. Therefore, he is only witness of the inquest report. P.W.13- Amar Kumar Jha is witness of the seizure list. According to him, two tricycles and one stone weighing about 10 to 12 kgs were seized by the police from the house of Ushman Mian and the stone found from the house of Rafique Mian, which was blood stained. He has also proved the signature of other seizure list witness, Arvind Kumar Jha on the seizure list. P.W.14-Arvind Kumar Jha is the seizure list witness and admitted his signature over Ext. 1/C and 1/D proved by P.W.13. P.W.15-Akhtar Sheikh is also a witness of seizure list, which was also signed by his co-villager Jainath Mandal and he has proved his own signature as well as Jainath Mandal as Ext.1/E and 1/F. He has gone through the seizure list and told that in the seizure list, a cycle and sabal have been seized and the paper was prepared at the house of Israfil Mian. P.W.16- Suraiya Khatoon aged about 7 years has been tendered as incompetent witness. P.W.16- Suraiya Khatoon aged about 7 years has been tendered as incompetent witness. P.W.17-Punit Dev is an advocate clerk, who has proved fardbayan written in the hand writing of S.I. Shiv Shankar Prasad as Ext.2 and formal FIR in the hand writing of ASI Bishnu Dev Prasad as Ext.3. P.W.18-Janardan Tiwari is Officer-in-Charge of Karon Police Station, who has proved the formal FIR Ext. 3 and has identified the inquest report Ext.4, seizure list Ext.5 to 5/D. He has also produced the material exhibits like bloodstained lungi material Ext. I, bloodstained earth wrapped in paper material Ext.II, bloodstained stone, material Ext.III, bloodstained stick material Ext.IV, two silver Jhumkas kept in a plastic container material Ext.V, Black frame goggles material Ext.VI, a wrist watch with belt of HMT company material Ext.VII, seat cover of bicycle material Ext.VIII, two key rings, material Ext.IX, one tin box material Ext.X. According to him, the seized cycle was given in Jimmanama Khursid Alam and thela is lying at police station, which is not possible to bring before the court. He has admitted in his cross-examination that all the seized materials are not sealed and does bear any label or specific mark of identification and he has no personal knowledge about the seized materials. Officer-in-Charge has produced the seized materials. P.W.19- Arjun Srivastava is an advocate clerk, who has unauthorizedly marked exhibits some pages of case diary in connection with Karon P.S. Case No.12 of 2001 from Paras 74 to 76 as Ext.6 and Paras No. 1 to 73 as Ext.7 marked with objection. 11. From the aforesaid discussion of testimony of prosecution witnesses, it is apparent that they have no first hand knowledge of the occurrence rather either seen the deceased in injured condition or came to know from others about the incident. 12. The sole star prosecution witness is P.W.11, Fatima Khatun, who happens to be maternal granddaughter of the deceased. She is a married lady and usually resides at her matrimonial home situated in village Sarwaan Bhandaro. According to her evidence, on 07.02.2001 at about 7-8 am, she was present at her maternal grandfather’s house at village Badhnadih. Her evidence goes to show that at the time of occurrence, Ushman was leveling the drainage by putting soil, which was protested by her maternal grandfather (nana) then Ushman, Ainul, started abusing him. According to her evidence, on 07.02.2001 at about 7-8 am, she was present at her maternal grandfather’s house at village Badhnadih. Her evidence goes to show that at the time of occurrence, Ushman was leveling the drainage by putting soil, which was protested by her maternal grandfather (nana) then Ushman, Ainul, started abusing him. Upon hearing abusive words, she went out and saw that Ainul Hoda was dragging her Nana towards the courtyard of Ushman and laid down on earth, thereafter, Ainul climbed over the chest of her Nana and started assaulting by bhujali. Meanwhile, Jamila brought a spade and ordered to kill her nana, Ushman also came with a sabal and started assaulting to Md. Rafique and Israfil also assaulted by tangi. Thereafter, Jamila and Nijam holding a big stone threw upon the body of Md. Rafique. When this witness raised alarm, she was also assaulted by Israfil but she managed to enter into the house. Israfil chased her and caught hold of her breast and started pulling down the knot of her trousers on the point of knife and threatened to kill her but she managed to flee away raising alarm. She narrated the above incident to the villagers, who have assembled at the place of occurrence upon hearing her alarm. Thereafter, on suggestion of villagers, her Nana was brought to the clinic of Dr. Harihar Mnadal by a tricycle of Ushman. This witness has further deposed that household articles were also taken away by the accused persons. Her evidence further goes to show that on the same day at about 12:00 hours, she along with her Mausa, Md. Nausad went to hospital and saw her maternal grandfather was live but in between 4:00 to 4:30 pm, he died. The police had also arrived at the hospital and recorded her statement, which was read over to her then she put her Right Thumb Impression and her Mausa, Md. Nausad also put his Left Thumb Impression. In her cross-examination, she has categorically admitted that after hearing the sound of abusive words, she came out and in the first sight she saw her nana, Md. Rafique was lying on earth towards mouth side. She stayed at the place of occurrence about five minutes, thereafter, she rushed towards the house of her Mausa, Nausad and disclosed about the incident to him and his wife Noorjahan. Rafique was lying on earth towards mouth side. She stayed at the place of occurrence about five minutes, thereafter, she rushed towards the house of her Mausa, Nausad and disclosed about the incident to him and his wife Noorjahan. She has further admitted that her Mausa and Mausi also came to place of occurrence and stayed about 2-3 minutes, thereafter his Nana was carried on a cot towards Madhupur and she along with her Mausa, Nausad went to the hospital of Dr. Harihar Mandal on a rickshaw. This witness further admits that she had not seen the assault that how many spade, farsa, tangi, stones and bhujali blows were given to her Nana. The injury from stone was caused on right side. After death of Md. Rafique, she went to Madhupur police station and stayed there overnight along with her Mausa. She also admits that prior to going to her Mausa’s house, no one came to place of occurrence and again says that some villagers arrived there. Her attention has been drawn towards contradictions appearing in her evidence from the statement under section 161 of Cr.P.C., she specifically admits that she has not disclosed before the police that Ushman dragged Md. Rafique towards his courtyard and laid down on earth. She has only stated to the police about part of the body of Md. Rafique, where she saw the injuries. She has also not disclosed before the police that Nijam has assaulted by a big stone and threw on the body of her Nana. She arrived at the hospital at about 12: 00 hours but no information was given to police. She stays at her maternal grandfather’s house after the occurrence till 20-25 days. She has denied the suggestion of the defence that she has not seen the occurrence and she was not present on the date of occurrence and with connivance of her Mausa and Mausi and other relatives, she has given false evidence implicating the accused persons. 13. The cumulative effect of the testimony of P.W.11 as discussed above, if considered with the material elicited in her cross- examination clearly goes to show that she is not an eye-witness of the occurrence. 13. The cumulative effect of the testimony of P.W.11 as discussed above, if considered with the material elicited in her cross- examination clearly goes to show that she is not an eye-witness of the occurrence. She has miserably failed to disclose as to how her maternal grandfather was assaulted by the accused persons rather when she came out after hearing the sound of abusive words, she saw her Nana was lying on earth in the courtyard of Ushman. It is also admitted position that there was a dispute of drainage between the deceased and the accused persons since long. The presence of P.W.11 also appears to be doubtful, in as much as, she has stated in her examination-in-chief that just after the occurrence she rushed towards the house of her Mausa, Md. Nausad, where his wife, Noorjanah was also present and she returned to place of occurrence with them and by that time, no villagers were arrived, but the testimony of Md. Nausad(P.W.1) and Noorjahan stands on different set of facts. They have claimed to arrive at the place of occurrence after hearing hulla then Fatima (P.W.11) disclosed about the incident. 14. It is also obvious that the occurrence has happened in early morning and the deceased was brought to the clinic of Dr. Harihar Mandal immediately and the informant along with other relative witnesses i.e. her Mausa, Md. Nausad and Mausi, Noorjahan went to the said hospital and reached there at 12:00 hours. No information regarding the incident was given to the police station rather her fardbayan was recorded at about 5:00 pm at the said hospital. It further transpires that no weapon of offence was recovered and seized in this case from the accused persons. The seized materials were produced before the court under suspicious condition without being sealed and signed. Moreover the bloodstained earth and stone were not sent for chemical examination to FSL to ascertain the origin of blood. Similarly, no other connecting evidence showing complicity of the appellants in the alleged offence has been proved by the prosecution. The Investigating Officer and the doctor, who conducted autopsy on the dead body of the deceased, have not been examined by the prosecution. Therefore, the place of occurrence is also not proved. The whole spectrum of prosecution evidence does not satisfy the judicial conscience to place reliance upon testimony of P.W.11 as an eye-witness of the occurrence. The Investigating Officer and the doctor, who conducted autopsy on the dead body of the deceased, have not been examined by the prosecution. Therefore, the place of occurrence is also not proved. The whole spectrum of prosecution evidence does not satisfy the judicial conscience to place reliance upon testimony of P.W.11 as an eye-witness of the occurrence. 15. If we proceed towards circumstantial evidence then also except the dispute about the drainage showing motive of crime, there is no link evidence to conclusively prove the guilt of the appellants. Therefore, in our considered view, learned trial court has committed serious error of law in placing reliance upon the sole eye-witness, P.W.11, Fatima Khatun whose testimony has been scrutinized in detail and appears to be self-contradictory as regards genesis, manner and place of occurrence coupled with specific overt act attributed to any of the appellants. It is hazardous to base conviction of the appellants on the testimony of P.W.11 without any corroboration from some independent source either direct or circumstantial but we are constrained to note that except the testimony of sole eye-witness, P.W.11 which is absolutely shaky in nature and full of contradictions in material particulars, no other direct of circumstantial evidence is available on record to conclude about the guilt of the appellants. Therefore, we are of the affirm view that the learned trial court has committed serious error of law in not appreciating the testimony of ocular witnesses in proper perspective as a whole rather swayed upon materials disclosed in examination-in-chief in total ignorance of material elicited in cross-examination and arrived at wrong conclusion. 16. In view of the above discussion and reasons, we set aside the impugned judgment and order of conviction and sentence of the appellants dated 10.01.20223 passed by learned 3rd Additional Sessions Judge, Deoghar in S.T. No.391 of 2001 is hereby set aside and this appeal is allowed. 17. The above appellants are acquitted from the charges levelled against them and set at liberty forthwith. 18. The appellants are on bail, hence, they are discharged from liability of bail bond. The sureties are also discharged. 19. Pending I.A(s), if any, is also disposed of accordingly. 20. Let the copy of this judgment along with Trial Court Records be sent back for information and needful.