JUDGMENT : Pradeep Kumar Srivastava, J. Originally, this appeal has been filed by two appellants. During the pendency of this appeal, appellant no.2 Naiki Marandi died and his appeal has been abated vide order dated 25.08.2025. 2. Instant criminal appeal is directed against the judgment and order of conviction and sentence dated 25.08.2003 and 28.08.2003 passed by learned Additional Sessions Judge, Fast Track Court No.1, Pakur in Sessions Case No. 247 of 1997/ 72 of 2002 whereby and whereunder the present appellant alongwith deceased appellant have been held guilty for the offence under Section 302 of the INDIAN PENAL CODE and sentenced to undergo rigorous imprisonment for life along with a fine of Rs.1000/- with default stipulation. 3. We have already heard the learned counsel for the appellant Mr. Shubham Mishra and Mr. Bhola Nath Ojha, learned Special Public Prosecutor appearing for the State assisted by Mr. Faisal Allam, learned counsel for the informant. Factual Matrix 4. Factual matrix giving rise to this appeal is that on 17.09.1996 at about 07:00 O'clock in the morning, the informant Mohan Hansda (P.W.3) came to know from Buddhu Hari that at Littipara Chowk, dead body of a person is lying at Samsan Ghat. On the said information, informant went to Samsan Ghat and saw the dead body of a person aged about 25 years having injury on his neck and face. Blood was oozing from his nose and it appears that he has been killed by someone. 5. On the basis of above fardbeyan of the informant, F.I.R. was registered against unknown miscreants for the offence under Section 302 /34 of the INDIAN PENAL CODE . After investigation the police has submitted charge- sheet against present appellant and deceased appellant under Section 302 /34 of the I.P.C. The case was committed the court of Sessions where the appellants did not plead guilty and claimed to be tried. After conclusion of trial, the present appellant alongwith deceased appellant have been held guilty and sentenced as stated above. 6. Learned counsel for the appellant has submitted that F.I.R. was lodged against unknown miscreants and dead body of the deceased was also not identified. Admittedly, there are no eye-witnesses and conviction of the appellant is based upon last seen theory propounded by P.W.2 who is absolutely not a reliable witness. 6. Learned counsel for the appellant has submitted that F.I.R. was lodged against unknown miscreants and dead body of the deceased was also not identified. Admittedly, there are no eye-witnesses and conviction of the appellant is based upon last seen theory propounded by P.W.2 who is absolutely not a reliable witness. There is nothing else showing involvement of the appellant in the alleged offence of murder and no motive is attributed against the appellant to kill the deceased. The learned trial court has swayed upon unreliable testimony of P.W.2 alone and made the basis of conviction of the appellant, which is liable to be set aside and this appeal is fit to be allowed and appellant may be acquitted from the charges leveled against him. 7. On the other hand, learned Special Public Prosecutor assisted by the learned counsel for the informant defending the impugned judgment of conviction and order of sentence of the appellant submitted that learned trial court has very wisely and aptly considered the entire aspects of the case and culpability of the appellant in commission of murder of the deceased, therefore, there is no merit in this appeal, which is fit to be dismissed. 8. The only point for determination in this appeal is that "as to whether the impugned judgment of conviction and order of sentence suffers from any error of law, calling for any interference in this appeal? 9. We have gone through the record of the case along with impugned judgment as well as contentions raised on behalf of both side. 10. Prosecution has examined altogether 08 witnesses in this case and we have to apprise with the testimony of witnesses examined by the prosecution:- P.W.1 Birbal Mandal:- According to his evidence, he has simply seen the dead body of a person on the next day morning near the Shamshan Ghat at Littipara. He could not identify the deceased. P.W.2 Prem Murmu @ Premlal Murmu has stated that about 04 years ago, a scuffle took place between Rawan Kishku, Naiki Marandi with another person at Paderkola, Hatia. He could not recollect as to with whom the scuffle was going on. According to him, the scuffle took place in connection with a girl namely Medho Kisku who is sister of Robin Kisku. Later on, he recollects the name of the person (Motilal Murmu) with whom the scuffle took place. He could not recollect as to with whom the scuffle was going on. According to him, the scuffle took place in connection with a girl namely Medho Kisku who is sister of Robin Kisku. Later on, he recollects the name of the person (Motilal Murmu) with whom the scuffle took place. He has further deposed that Motilal Murmu has given some money to Medho Kisku which he was demanding back, meanwhile, Ravan Kisku and Naiki Marandi started scuffling with him. He also admits that there was love affair between Motilal and Medho Kisku, but marriage of Medho was fixed with Naiki Marandi. Hence, in the said scuffle Naiki and Rawan threatened to kill Motilal Murmu which was pacified by him. He has further deposed that the scuffle took place on Wednesday between the accused persons and thereafter, on Monday the deceased Motilal Murmu was murdered. P.W.3 Mohan Hansda:- has simply seen the dead body of the deceased lying near the funeral ghat at Littipara chowk. He came to know about the said dead body from one Budhu Hadi. He informed about the above dead body to police and his statement was recorded which was signed by him and marked as Exhibit-1. P.W.4 Motiur Rahman is an advocate clerk and simply proved the F.I.R. which is marked as Exhibit-2. P.W.5 Shiv Tudu is a witness of inquest report of an unidentified dead body and he knows nothing about it. P.W.6 Basi Tudu is the mother of the deceased and according to her, his son was engaged in selling of rice. He was under love affair with one Lemdhe Kisku. When guest has come to the house of Lemdhe, then she demanded money from his son Motilal. His son has given Rs.200/- to Lemdhe Kisku for her expenses and after 5 to 6 days, Lemdhe Kisku solemnized marriage with Naiki Marandi. As such her son was very much aggrieved and asked Lemdhe Kisku to retrun his Rs.200/-, then she replied that she will return the money at the place where he gave it. Thereafter, Motilal went to Padarkola Hatia where Ravan Kisku and Naiki Marandi scuffled with Moti Lal Murmu and also killed him. She came to know about the above occurrence from one Shanti. Thereafter, Motilal went to Padarkola Hatia where Ravan Kisku and Naiki Marandi scuffled with Moti Lal Murmu and also killed him. She came to know about the above occurrence from one Shanti. In her cross-examination, she admits that incident of murder has not been committed in her presence and on the date of occurrence she had not gone to Padarkola Hatia and the incident was disclosed by Shanti on Tuesday. P.W.7 Rijha Oraon is investigating Officer of this case who has submitted charge-sheet in this case, He has stated that he has taken charge of investigation on 03.03.1997 and after taking charge perused the case-diary of previous investigation. He has recorded the statement of Manjarash Murmu and other witnesses and arrested the accused persons and forwarded them in Court. P.W.8 Dr. Shyam Prasad Bhagat is the medical officer who has conducted the post-mortem of an unidentified male body brought by Havaldhar of police station-Littipara and found following:- (i) Average built body of dark complexion black curly hairs. Height 5.4". Mole on right side of chest. Rigor mortis passed off- practically. Blotted decomposing body with black and black formation. Face swollen tongue protruded, lips swollen by lateral eye protruded. Ante-mortem multiple abrasion of different size and shape around neck and over the face. Ante-mortem abrasion right side of the mid-chest 3" x 1.1/2". (ii) On dissection subcutaneous hemorrhagic spots about larynges wall. Trachea filled with brownish froth. Fracture of the right side hyoid bone. Brain lungs liver spleen both kidneys decomposing and Fleming. Stomach contain liquid foul smelling material, small intestine with gases. Large bowl filled with faecal matter and gases. Bladder decomposing and empty. Geneteria intact but swelling. He has opined that the cause of death due to asphyxia caused by throttling. He has proved this post-mortem report and marked as exhibit-4. 11. On the other hand, no oral as well as documentary evidence has been adduced by the defence. The case of the defence is denial from occurrence and false implication only on the basis of suspicion and accused has pleaded his innocence. 12. From the aforesaid discussion of evidence, it is crystal clear that there is no eye-witness to the occurrence at all. The P.W.2 has simply stated that he saw that a scuffle took place between Ravan Kisku, Naiki Kisku with Motilal Murmu (deceased). 12. From the aforesaid discussion of evidence, it is crystal clear that there is no eye-witness to the occurrence at all. The P.W.2 has simply stated that he saw that a scuffle took place between Ravan Kisku, Naiki Kisku with Motilal Murmu (deceased). The scuffle is alleged to have happened on Wednesday and the dead body of the deceased was found on Monday. Therefore, there is no link between the last seen theory as propounded by P.W.2 and the alleged offence of murder of the deceased. Except the aforesaid last seen theory, there is no iota of evidence to prove the involvement of present appellant in commission of murder of the deceased. Therefore, the sole circumstance relied upon by the learned trial court for conviction and sentence is absolutely illegal and not warranted under law. Therefore, impugned judgment of conviction and order of sentence of the appellant suffers from serious error of law and cannot be sustained. Accordingly, impugned judgment and order of sentence of the appellant is hereby set aside and this appeal is allowed. 13. Appellant is on bail, hence, he is discharged from the liability of his bail bond and sureties are also be discharged. 14. Pending I.As, if any stand disposed of. 15. Let a copy of this judgment along with trial court record be sent to the concerned court forthwith for information and needful.