JUDGMENT : Rongon Mukhopadhyay, J. 1. Heard Mr. Ranjan Kumar Singh, learned counsel for the appellant and Mrs. Kumari Rashmi, learned A.P.P. 2. This appeal is directed against the judgment and order of conviction and sentence dated 23-03-1999 (sentence passed on 26- 03-1999) passed by Sri Mungeshwar Sahoo, learned 1 st Additional Sessions Judge, Godda in Sessions Case No. 219 of 1998 by 153 of 1998 whereby and whereunder, the appellant has been convicted for the offence punishable under Section 302 IPC and has been sentenced to undergo rigorous imprisonment for life. 3. The prosecution case arises out of the fardbeyan of Fulki Devi recorded on 30.04.1996 in which it has been stated that it was around 8:00 A.M. and she had put her two-month-old sleeping child in the cot. Her husband Kailash Yadav(appellant) had asked her to bring water from the village. The informant had accordingly gone to the village and brought water and after her husband drank water, he left for the village for selling milk. It has been alleged that when the informant came near the child Chaita Yadav, she found foam coming out from the mouth of her child. The informant tried to feed milk to her child but there was no response as the child was dead. It has been alleged that the husband of the informant had administered poison on her child which led to his death. The informant was married to Kailash Yadav for 10 years and about a year back, Kailash Yadav had solemnized a second marriage after which the informant was regularly subjected to torture and assault. When a son was born to the informant, her husband used to threaten her of committing her murder as well as the murder of the infant. It was about 2-3 days since the husband of the informant had returned back from the parental house of his second wife and it was Kailash Yadav, who had administered poison upon the son of the informant. Based on the aforesaid allegations, Meharma (Belbadda) P.S. Case No. 49 of 1996 was instituted under Section 328/302 IPC against Kailash Yadav. 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 Sessions Case No. 219 of 1998 by 153 of 98. Based on the aforesaid allegations, Meharma (Belbadda) P.S. Case No. 49 of 1996 was instituted under Section 328/302 IPC against Kailash Yadav. 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 Sessions Case No. 219 of 1998 by 153 of 98. Charge was framed against the accused under Section 302/328 IPC which was read over and explained to him, to which he pleaded not guilty and claimed to be tried. 4. The prosecution has examined as many as eight witnesses in support of its case: P.W.1 Fulki Devi is the informant, who has not supported the case of the prosecution and has been declared hostile by the prosecution. P.W.2 Mansi Devi alias Manti Devi has expressed her ignorance as to how Chaita Yadav had died. P.W.3 Anjani Devi and P.W.4 Muni Yadav have not supported the case of the prosecution and were declared hostile by the prosecution. P.W.5 Md. Anwar Khan was posted as an officer-in-charge of Belbadda P.S. and on 30.04.1996, he had come to know that Kailash Yadav had murdered his son by administering poison upon him. He proceeded on such information to village Chhoti Lakarmara and had recorded the fardbeyan of Fulki Devi. He has proved the fardbeyan which has been marked as Exhibit-1. He has proved the formal FIR and the inquest report which have been marked as Exhibit-1/1 and Exhibit-2 respectively. The dead body of Chaita Yadav was sent by him for the purposes of autopsy. He had inspected the place of occurrence which is at village Chhoti Lakarmara in the house of the informant in a cot where the dead body was found. Near the cot, at a distance of 4 feet from the dead body, a brown coloured tablet used as pesticide was seized, for which a seizure list was prepared which has been marked as Exhibit-3. He had recorded the statement of the witnesses, had obtained the post-mortem report, and on his transfer, had handed over the investigation to Birendra Prasad. Near the cot, at a distance of 4 feet from the dead body, a brown coloured tablet used as pesticide was seized, for which a seizure list was prepared which has been marked as Exhibit-3. He had recorded the statement of the witnesses, had obtained the post-mortem report, and on his transfer, had handed over the investigation to Birendra Prasad. He had recorded the statement of Fulki Devi, who had stated that she had gone to fetch water leaving her son Chaita Yadav with her husband Kailash Yadav and when she returned, she gave water to Kailash and as she tried to give milk to the infant, she found him dead and foam was coming out from his mouth. She had stated that it was her husband who had administered poison upon her son. The witness Anjani Devi had stated that she had come to learn from Fulki Devi about the incident. In cross-examination, he has deposed that the tablet which was seized was not sent for forensic examination. P.W.6 Anil Kumar Singh had taken charge of the investigation, who has stated that he had obtained the F.S.L. report on 19-07-1998. He had arrested the accused on 21-07-1998 and had thereafter, submitted charge sheet on the direction of the higher authorities. P.W.7 Dasrath Yadav has been declared hostile by the prosecution. P.W.8 Pramod Kumar Jha has stated that after chemical examination of both samples, Aluminum Phosphite was detected in them. In cross-examination, he has deposed that the viscera was completely decomposed. On the paper packet, there was no seal. 5. The statement of the accused was recorded under Section 313 Cr.P.C . in which he has denied his complicity in the incident. 6. It has been submitted by Mr. Ranjan Kumar Singh, learned counsel for the appellant that none of the witnesses have supported the case of the prosecution. The learned trial court had erroneously relied on the evidence of P.W.5, who is the Investigating Officer, while discarding the evidence of the informant (P.W.1), who was declared hostile by the prosecution. 7. Mrs. Kumari Rashmi, learned A.P.P. has submitted that the informant, in her statement before the Police, has spelled out the circumstances from which it could be deciphered that it was the appellant who was instrumental in administering poison upon his son. 7. Mrs. Kumari Rashmi, learned A.P.P. has submitted that the informant, in her statement before the Police, has spelled out the circumstances from which it could be deciphered that it was the appellant who was instrumental in administering poison upon his son. She has also stated about the estranged relationship between the informant and the appellant on account of the second marriage solemnized by the appellant. 8. We have heard the learned counsel for the respective parties and have also perused the trial court records. 9. The prosecution case relates to the death of the son of the informant and allegation has been levelled that it was the appellant who was the father of the child, who had poisoned the child and the reason behind such act is the second marriage solemnized by the appellant after which, the informant was subjected to torture and assault. The informant, who has been examined as P.W.1, has been declared hostile by the prosecution. Though in the viscera report, Aluminium Phosphite was detected, but the prosecution has failed to attribute the administration of the same upon the deceased by the appellant. Aluminium Phosphite is a commonly used pesticide and a tablet of the same was also found near the dead body. The incident happened in a village and presence of pesticide is very common and the accidental intake of the same by the infant cannot be ruled out. The suspicion upon the appellant seems to be on account of his estranged relationship with the informant and the solemnisation of the second marriage about a year prior to the incident. The learned trial court has primarily based the conviction on the revelations made by the informant before P.W.5 (I.O.) being seemingly oblivious to the hostility of the informant as P.W.1, which has basically demolished the case of the prosecution. The impugned judgment and order of conviction and sentence dated 23.03.1999 (sentence passed on 26.03.1999) passed by Sri Mungeshwar Sahoo, learned 1 st Additional Sessions Judge, Godda in Sessions Case No. 219 of 1998 by 153 of 1998 is apparently erroneous and perverse and consequently, the same is hereby set aside. 10. This appeal is allowed. 11. Pending I.A.s, if any, stands closed. 12. Since the appellant is on bail, he is discharged from the liability of his bail bonds.