JUDGMENT : (Rongon Mukhopadhyay, J.) 1. Heard Mr. B. K. Dubey, learned counsel for the appellant and Mr. Vineet Kumar Vashishtha, learned Spl. P.P. 2. This appeal is directed against the judgment and order of conviction and sentence dated 29.11.1999 (sentence passed on 30.11.1999) passed by Smt. Vidyut Prabha Singh, learned 2 nd Additional Sessions Judge, Hazaribag in connection with S.T. No. 131/91, whereby and whereunder the appellants have been convicted for the offence punishable under Section 302/149 IPC and have been sentenced to imprisonment for life. 3. During the pendency of this appeal, appellant no. 5 Barho Mahto, appellant no. 6 Indranath Mahto and appellant no. 7 Kishun Mahto have died and, accordingly, this appeal has abated so far as these appellants are concerned. This appeal is, therefore, restricted to appellant no. 1 Triloki Mahto, appellant No. 2 Hulash Mahto, appellant no. 3 Arjun Mahto and appellant no. 4 Khudwa Mahto and their names accordingly finds place in the cause title of this judgment. 3. The prosecution case arises out of the fardbeyan of Deoki Mosammat recorded on 16.03.1990 in which it has been stated that on 15.03.1990, when the informant was in her house, her dog started barking outside which caused a suspicion and due to which the informant, her servant Bhola Sao, her daughter-in-law Soma and the other wife of her husband Bidwa went towards village Surajpura with a torch, the dog accompanying them. After going some distance, the dog stopped and started barking at which the informant put on the torch where she saw Triloki Mahto, Hulash Mahto, Arjun Mahto, Kudwa Mahto and 4-5 persons fleeing away. The informant had located her husband lying on the road in a pool of blood. When she raised an alarm, several persons had arrived at the place of occurrence. The reason for the occurrence is that about 6-7 days back, the husband of the informant had paid the rent of the land and had obtained a receipt which enraged the accused persons who had threatened the husband of the informant on the day when the murder had taken place. Based on the aforesaid allegations, Barhi P.S. Case No. 32/90 was instituted under Section 302/34 IPC. 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 S.T. No. 131/91. Based on the aforesaid allegations, Barhi P.S. Case No. 32/90 was instituted under Section 302/34 IPC. 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 S.T. No. 131/91. Charge was framed against the accused under section 302/34 IPC which was read over and explained to them in Hindi to which they 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 Dr. Shashi Bhushan Singh was posted as a Civil Assistant Surgeon in Sadar Hospital, Hazaribagh and on 16.03.1990, he had conducted autopsy on the dead body of Horil Gope and had found the following: (a) Penetrating wound over left side of neck at the level of thyroid cartilage 1” away from mid line ½” x ½” x muscle deep. (b) Penetrating wound 1” above and lateral to umbilicus 2” x ½” x instestinal coils out. (c) On dissection- Intestinal coils ruptured with blood in abdominal cavity. Injury No. (a) was only muscle deep and there was no damage to the blood vessels. Time since death- 1-16 hours. In my opinion death is due to hemorrhage and shock caused by above mentioned (a), (b) injuries due to penetrating weapon. Those injuries might have been caused by dagger. All other chest and abdominal moscoras were intact and pale. Stomach contained blood-stained fluid about 4 ozs. Bladder was intact and empty. The cause of death was opined to be due to hemorrhage and shock caused by above mentioned (a) and (b) injuries due to penetrating weapon. The post-mortem report has been proved and marked as Exhibit-1. P.W.2 Mosammat Deoki is the informant who has stated that she was in her house at Surjapur and on hearing the sound of a dog barking, she came out where she found her dog but not her husband. The dog used to be with her husband wherever he went. She had a suspicion in not seeing her husband and she, the other wife of her husband Bidwa, her servant Bhola Sao and her daughter-in-law Soma followed the dog with a torch. The dog used to be with her husband wherever he went. She had a suspicion in not seeing her husband and she, the other wife of her husband Bidwa, her servant Bhola Sao and her daughter-in-law Soma followed the dog with a torch. After a few distance, the dog stopped and started barking and when the torch light was flashed, she had seen Barho Mahto, Indrananath Mahto, Khudwa Mahto, Arjun Mahto, Kishun Mahto, Triloki Mahto and Hulash Mahto fleeing away. She found her husband lying dead with injuries on his body and his clothes were soaked in blood. She had sent Bhola Sao to Surjapur from where Mehru Gope, Chandu Gope, Sutar Gope, Kaila Gope and others had come subsequently. Her brother-in-law had informed the Chowkidar. When the Police came, her fardbeyan was recorded. A decree was passed in favour of her husband regarding the land in dispute and about 6-7 days back, her husband had obtained a receipt of the same. This led to a threat issued by the accused persons. In cross-examination, she has deposed that when she put on the torch light, the accused person started fleeing away. She has deposed that the place of occurrence is about 500 yards from her house. There is no house in the vicinity of her house. P.W.3 Ramchandra Gope has stated that at 11:00PM, Bhola Sao had informed him about the murder and when he went to the said place, he found Horil Yadav dead with his intestine protruding out and his neck cut. He had given his thumb impression upon the seizure list of seized blood-stained earth and blood-stained clothes. In cross-examination, he has deposed that when he had gone to the place of occurrence both the wives of Horil Yadav were present. P.W.4 Sukar Gope had signed on the seizure list of seized blood-stained earth and clothes. P.W.5 Pokhan Ram has stated that on hearing the news that Horil Yadav has been murdered he had gone to the place of occurrence and had seen the dead body of Horil Yadav. He had signed on the inquest report. P.W.6 Bhola Sao has stated that around 10:00-11:00PM, he had gone to the house of Horil Yadav for the purposes of some work and while he was sleeping, he had heard the sound of a dog barking. He had signed on the inquest report. P.W.6 Bhola Sao has stated that around 10:00-11:00PM, he had gone to the house of Horil Yadav for the purposes of some work and while he was sleeping, he had heard the sound of a dog barking. Since the wife of the deceased Horil Yadav had wanted to search out Horil Yadav, he, the two wives of Horil Yadav and his daughter-in-law went out and after one hour, the dead body of Horil Yadav was located with his neck cut and the intestines coming out from his abdomen. He had not seen any person in the torchlight. On being confronted with his previous statement before the Police of seeing the accused person fleeing away from the place of occurrence, he has denied to have made any such statement. On recall, he has stated that Bidwa was the second wife of the deceased, who has solemnized another marriage and had left for some other place. The daughter-in-law of the deceased had died about three years back. In cross-examination, he has deposed that he had returned to the place of occurrence with the villagers after half an hour. P.W.7 Mahru Gope has stated that the cause of the incident is land dispute. P.W.8 Padamnath Upadhyay was posted as a Sub-Inspector of Police and on 16.03.1990, he had heard a rumor about a murder committed in Surjapur village and after the Officer-in-Charge had made a station diary entry, he had left for the place of occurrence along with other police personnel. He had recorded the fardbeyan of the wife of Horil Yadav. The fardbeyan has been proved and marked as Exhibit-2. The formal FIR has been proved and marked as Exhibit- 3. After taking over the investigation, he had inspected the place of occurrence which is at Mauja Parthan Tand in the unmetalled road going from Surjapur to Padma. He had seized the blood-stained cloths and blood-stained earth. He has proved the inquest report and the seizure list which have been marked as Exhibit-4 and Exhibit-5 respectively. He had received the post-mortem report and on completion of investigation had submitted charge sheet. He has proved the receipt which has been marked as Exhibit-6. In cross-examination, he has deposed that he had not seized any torch in course of his investigation. He had not recorded the statement of the chowkidar. He had received the post-mortem report and on completion of investigation had submitted charge sheet. He has proved the receipt which has been marked as Exhibit-6. In cross-examination, he has deposed that he had not seized any torch in course of his investigation. He had not recorded the statement of the chowkidar. In the re-statement of the informant, apart from the four named accused, she had also taken the name of Triloki, Hulash, Arjun and Kudwa. The house of the accused was searched but nothing incriminating could be recovered. On recall, he has stated that Bhola Sao had disclosed before him about the name of the accused persons whom he had seen fleeing away in the light of the torch. 5. The statements of the accused were recorded under Section 313 Cr.P.C. in which they have denied their complicity in the murder of Horil Yadav. 6. It has been submitted by Mr. B. K. Dubey, learned counsel for the appellants that P.W.2 is the only eyewitness to the occurrence and so far as the second wife of the deceased as well as his daughter-in- law is concerned, they have not been examined by the prosecution. P.W.6 had also accompanied the informant as well as the second wife and daughter-in-law of Horil Yadav, but he had not seen any of the accused fleeing away thus contradicting the evidence of P.W.2. Even P.W.2 seems to have developed the case of the prosecution, as in her fardbeyan, she had named four persons but has included some other accused also in her evidence which would further indicate the perversity of her evidence. The identification of the accused persons with the assistance of a torchlight creates a further doubt on the case of the prosecution. 7. Mr. Vineet Kumar Vashishtha, learned Special P.P. has submitted that fleeing away from the place of occurrence on seeing the informant and others would draw an adverse inference against the appellants of being specifically involved in the murder of Horil Yadav. The evidence of P.W.2 is cogent, consistent and is devoid of any exaggeration and, therefore, such solitary evidence can be relied upon for the purposes of conviction. 8. We have heard the learned counsel for the respective sides and have also perused the trial court records. 9. The evidence of P.W.2 is cogent, consistent and is devoid of any exaggeration and, therefore, such solitary evidence can be relied upon for the purposes of conviction. 8. We have heard the learned counsel for the respective sides and have also perused the trial court records. 9. The dog of Horil Yadav, who used to accompany him everywhere by barking had drawn the attention of the informant in the dead of night and since there was a growing suspicion in the mind of the informant, she, along with her daughter-in-law, her servant Bhola Sao and the second wife of Horil Yadav went out and after a distance, had found the dead body of Horil Yadav in a mutilated condition and in the flash of the torchlight, had seen some of the accused persons fleeing away. This was subsequently developed and it included the name of some other accused persons who were seen fleeing away apart from those who have been named in the fardbeyan of P.W.2. As per P.W.6, the daughter-in-law of the deceased, who was an eyewitness had died about three years back while the second wife of the deceased had married again and had gone elsewhere. So far as P.W.6 is concerned, he has specifically stated about not seeing the accused/appellants fleeing away and the evidence of P.W.6, therefore, rules out even the presence of the appellants at the place of occurrence. The identification of the appellants has also to be doubted as they were identified through torchlight while they were fleeing away. It was the dead of night in an uninhabited place where the incident had taken place and it has not been stated as to whether the assailants, who were fleeing away had arms in their possession or not. Absence of any corroboration of the evidence of P.W.2, the doubt regarding the identity of the appellants, contrary evidence given by P.W.6 who had also accompanied P.W.2 to the place of occurrence and a previous enmity which does not rule out the possibility of the false implication of the appellants all add up to a scenario which leads us to conclude that the prosecution has miserably failed to prove its case against the appellants. 10. 10. We, therefore, on the basis of the discussions made hereinabove, set aside the judgment and order of conviction and sentence dated 29.11.1999 (sentence passed on 30.11.1999) passed by Smt. Vidyut Prabha Singh, learned 2 nd Additional Sessions Judge, Hazaribag in connection with S.T. No. 131/91. 11. This appeal is allowed. 12. Since the appellants are on bail, they are discharged from the liability of their bail bonds.