JUDGMENT : Rongon Mukhopadhyay, J. 1. Heard Mrs. Snehlika Bhagat, learned amicus curiae for the appellant(s) and learned A.P.P. 2. Since both these appeals arise out of a common judgement, they are being disposed of by this common order. 3. Both these appeals are directed against the judgement and order of conviction and sentence dated 27-03-2003 (sentence passed on 29-03-2003) passed by Sri Ravindra Prasad Ravi, learned 8 th Additional Sessions Judge, Hazaribag in S.T. No. 20/2001 whereby and whereunder, the appellants have been convicted for the offence punishable under Section 302/34 IPC and have been sentenced to undergo imprisonment for life. 4. The prosecution case arises out of the fardbeyan of Shatrughan Prasad Dangi recorded on 25-08-2000 in which it has been stated that he had gone to Hazaribag for the treatment of his wife Usha Devi and after getting her treated, he had reached Chauparan by Rahul Bus at 8:30PM. It has been stated that the informant asked his wife to stay near Chatra More and in the meantime, he had gone to return the dues of Rs. 4,500/- to Laxmi Sao. Since the shop of Laxmi Sao was closed, the informant had returned back to Chatra More and started going on foot with his wife towards his village. On the way, the informant had met four fakirs who sells rings and after having small talk, all the four persons left. When the informant reached Jhumri Tar at 10:00PM, the said four persons surrounded him. While two persons took him towards the field, the other two persons took away his wife. The informant was subjected to assault as a result of which he became unconscious. The miscreants had taken away Rs. 4,500/- which was in the possession of the informant. After some time, the informant regained consciousness, but he could not find his wife and on search, he found his wife lying dead at some distance. The informant came to the village and informed about the incident after which the informant was taken to the Police Station and thereafter, he was medically treated for his injuries. Based on the aforesaid allegations, Chauparan P.S. Case No. 150/2000 was instituted under Sections 302, 394, 376/34 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. 20/2001. Based on the aforesaid allegations, Chauparan P.S. Case No. 150/2000 was instituted under Sections 302, 394, 376/34 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. 20/2001. 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. 5. The prosecution has examined as many as twenty witnesses in support of its case: P.W.1 Anil Singh and P.W.2 Bipin Kumar Singh did not support the case of the prosecution and were declared hostile by the prosecution. P.W.3 Basudeo Mahto has proved his signature on the seizure list which has been marked as Exhibit- 2. In cross-examination, he has deposed that the articles which were mentioned in the seizure list were not seized in his presence. P.W.4 Prameshwar Mahto did not support the case of the prosecution and was declared hostile by the prosecution. P.W.5 Jagu Mahto is the father of the deceased Usha Devi who has stated that he suspected his son-in-law of committing the murder of his daughter. He had gone to see his son-in-law at Chauparan Hospital, but he had not seen any injuries on his person. He got his daughter married to Shatrughan Prasad Dangi about a year back and whenever his daughter came home, she used to disclose to her mother about the torture committed upon her by her husband. She also used to disclose that Shatrughan Prasad Dangi was having an illicit affair with his cousin sister-in-law. In cross-examination, he has deposed that no one had any suspicion of his son-in-law committing the murder of his daughter except himself. His son-in-law had never assaulted his daughter. After marriage, his daughter used to stay at her matrimonial house and on rare occasions, she used to come to her parents' house. P.W.6 Sita Devi is the mother of the deceased who has stated that her daughter used to disclose that Shatrughan Prasad Dangi had an illicit affair with his cousin sister-in-law which was objected by her daughter. She has stated that Shatrughan Prasad Dangi used to assault his daughter and did not also provide food. In cross-examination, she has deposed that no panchayati was held regarding the illicit relationship between Shatrughan Prasad Dangi and his sister-in-law. She has stated that Shatrughan Prasad Dangi used to assault his daughter and did not also provide food. In cross-examination, she has deposed that no panchayati was held regarding the illicit relationship between Shatrughan Prasad Dangi and his sister-in-law. She has suspicion against her son-in-law of committing the murder of her daughter. P.W.7 Dr. Ashok Kumar Sinha was posted at Sadar Hospital, Hazaribag as a Civil Assistant Surgeon and on 25-05- 2000, he had conducted autopsy on the dead body of Usha Devi and had found the following: i) Incised wound in front and mid of neck of 2" x 2.1/2" x esophagus deep, from vessels and nerves incised cut, trachea inside cut. ii) Abrasion 1/4" x 1/2" over right wrist. iii) Abrasion 1/2" x 1/2" over left wrist. On internal examination :- Lungs- both lungs intact and pale. Heart- Both chamber empty. Liver, spleen and kidney- all intact and pale. Stomach- Wall normal contains 2 ounces mucoid fluid. Urinary bladder- empty. Uterus- Normal in size and non-gravity. On external examination of vagina:- There was no bruise, no laceration on vagina from outside. On internal examination of vagina:- Vagina admits two fingers. hymen torn- old tear. No spermatozoa was found. The definite opinion about rape cannot be given. Fecal matter is found inside the under garment (Panty). The cause of death was opined to be due to shock and hemorrhage caused by injury no. (i). He has proved the post-mortem report which has been marked as Exhibit-3. P.W.8 Dr. Dashrath Prasad Mandal was posted at Sadar Hospital, Hazaribag as a Civil Assistant Surgeon and on 26-05-2000, he had examined Shatrughan Prasad Dangi and the X-ray report showed no bone injury on the chest. He had submitted a supplementary report which has been proved and marked as Exhibit-4. In cross-examination, he has deposed that he had not found any external injury on his person. P.W.9 Narayan Sao has stated that the incident is of one and half years back and he was in his shop. He has stated that no passenger had got down at Itkhori, Chatra More from Rahul Bus on that day. He was acquainted with Shatrughan Prasad Dangi who used to have tea in his shop. In cross-examination, he has deposed that on the next day, he had come to know about the murder of the wife of Shatrughan Dangi. He has stated that no passenger had got down at Itkhori, Chatra More from Rahul Bus on that day. He was acquainted with Shatrughan Prasad Dangi who used to have tea in his shop. In cross-examination, he has deposed that on the next day, he had come to know about the murder of the wife of Shatrughan Dangi. P.W.10 Rambriksh Prasad Dangi was declared hostile by the prosecution. P.W.11 Rajendra Prasad Dangi has stated that he had gone to see the dead body along with the villagers. The Police had prepared the inquest report. In cross-examination, he has deposed that the relationship between Shatrughan Prasad Dangi and his wife was cordial. He does not know the cause relating to the death of Usha Devi. P.W.12 Murli Prasad Dangi has been declared hostile by the prosecution. P.W.13 Ramjanam Kumar Singh has stated that the fakirs who used to sell rings frequented his hotel but stopped coming after the incident of murder had taken place. In cross-examination, he has denied of having any knowledge about the relationship between Shatrughan Prasad Dangi and his wife. P.W.14 Ashok Prasad Gupta has been declared hostile by the prosecution. P.W.15 Jhari Prasad Dangi has proved his signature on the confessional statement of Shatrughan Prasad Dangi which has been marked as Exhibit-7. His statement was recorded before the Judicial Magistrate, Hazaribag which has been marked as Exhibit-4. In cross-examination, he has deposed that at the time of the incident, he was in Mumbai and returned back to his village after two days. He does not know as to how Usha Devi had died. The relation between his brother and Usha Devi was cordial. P.W.16 Parbati Devi has stated that despite a commotion, she had not gone to see the dead body. P.W.17 Imatiya Devi has stated that when the public started assembling, she had come to know that the dead body of the wife of Shatrughan Dangi was lying in the field. P.W.18 Rajbali Sharma was posted as an Officer-in-charge in Chauparan P.S. and he was in charge of the investigation on 27-08-2000 and 07-09-2000. He had again inspected the place of occurrence and had obtained the post-mortem report and the injury report of Shatrughan Prasad Dangi. After taking over investigation for the second time, he had submitted charge sheet. In cross-examination, he has deposed that he had not found any footprints at the place of occurrence. He had again inspected the place of occurrence and had obtained the post-mortem report and the injury report of Shatrughan Prasad Dangi. After taking over investigation for the second time, he had submitted charge sheet. In cross-examination, he has deposed that he had not found any footprints at the place of occurrence. P.W.19 Dr. Awadhesh Kumar Singh was posted at Chauparan State Dispensary and on 25-08-2000, he had examined Shatrughan Prasad Dangi and had found the following injuries on his person: i) Patient was full conscious at the time of examination. ii) Multiple abrasion over left chest of various sizes. iii) There is no apparent injuries on his person. All the injuries were opined to be simple in nature caused by nail bite. He has proved the injury report which has been marked as Exhibit-9. In cross-examination, he has deposed that injury no. (ii) can be possible due to friction on rough hard substance. P.W.20 Prameshwar Prasad has proved the seizure list which has been marked as Exhibit-11. He has also proved his handwriting and signature on the seizure list which has been marked as Exhibit-11/1. 5. The statement of the accused were recorded under Section 313 Cr.P.C. in which they have denied their complicity in the commission of the murder. 6. It has been submitted by Mrs. Snehlika Bhagat, learned amicus curiae that there are no eyewitnesses to the occurrence and only on the basis of suspicion, the appellants have been convicted. It has been submitted that a knife was recovered from the house of Saryug Bhuiyan, but the prosecution has failed to ascertain as to whether the said knife was used in the commission of the murder or not. Mrs. Bhagat has submitted that though the learned trial court has taken recourse to Section 106 Evidence Act, but the same would not be applicable as the appellant Shatrughan Prasad Dangi has given a justifiable explanation regarding the circumstances which led to the murder of Usha Devi. The implication of the appellant Dhanu Bhuiyan is solely based on the confessional statement of Shatrughan Prasad Dangi. Mrs. Snehlika Bhagat, learned amicus curiae has taken us through the evidence of P.W.5 and P.W.6, the parents of the deceased, while submitting that the appellant Shatrughan Prasad Dangi was merely suspected to have been involved in eliminating his wife without there being any cogent material in support of the same. 7. Mrs. Snehlika Bhagat, learned amicus curiae has taken us through the evidence of P.W.5 and P.W.6, the parents of the deceased, while submitting that the appellant Shatrughan Prasad Dangi was merely suspected to have been involved in eliminating his wife without there being any cogent material in support of the same. 7. Learned A.P.P. has relied on the confessional statement of Shatrughan Prasad Dangi and the recovery of a knife from the house of Sarjug Bhuiyan while submitting that the chain of circumstances has been complete and the post-mortem report furthermore cements the involvement of the appellants. The relationship between the appellant Shatrughan Prasad Dangi and the deceased was strained as stated by P.W.5 and P.W.6 and the same was a motive for the appellant to eliminate her. 8. We have heard the learned counsel for the respective sides and have also perused the trial court records. 9. The informant of the case Shatrughan Prasad Dangi was, in course of investigation, found to have conspired and hired other persons to eliminate his wife and consequently he was made an accused. Admittedly, there are no eyewitnesses to the incident and only on the basis of circumstantial evidence, the appellants have been convicted. So far as the appellant Dhanu Bhuiyan in Cr. Appeal (DB) No. 586 of 2003 is concerned, there is an absolute dearth of evidence and the only incriminating circumstance pitted against him is the confessional statement of Shatrughan Prasad Dangi. None of the witnesses have even whispered an iota of suspicion against the said appellant and his conviction by the learned trial court is contrary to the materials available on record. 10. So far as the appellant Shatrughan Prasad Dangi in Cr. Appeal (DB) No. 604 of 2003 is concerned, he has been projected to be the main accused and responsible for committing the murder of his wife Usha Devi and spinning a story to eliminate any suspicion against him of his involvement in the murder. As we have noted above, there are no eyewitnesses to the incident. It is a fact that the deceased was married to this appellant and P.W.5 and P.W.6 who are the parents of the deceased had tried to highlight the strained relationship which was existing between the deceased and the appellant and which according to them led to the murder being committed. It is a fact that the deceased was married to this appellant and P.W.5 and P.W.6 who are the parents of the deceased had tried to highlight the strained relationship which was existing between the deceased and the appellant and which according to them led to the murder being committed. The purported illicit relationship between the appellant and his cousin sister-in-law appears to be the cause of such tumultuous marital life but it seems from their evidence that no efforts were taken to resolve the issue and such vague assertion seems only in order to point the arrow of suspicion towards the appellant. P.W.5 in his cross-examination has stated that the deceased used to stay put at her matrimonial house and rarely visited her parental house which enunciates the fact that the relationship between the appellant and the deceased was cordial. This fact has also been reiterated by P.W.11 and P.W.15. In order to enhance the case of the prosecution, P.W.9 has stated that on the fateful evening, no passenger had deboarded from Rahul bus at Itkhori More which was in order to contradict the claim of the appellant that they had come to Itkhori More on Rahul bus. As per P.W.9, the said incident took place one and a half years back and he was in his shop. Memorizing such fact in the distant past and in the circumstances of P.W.9 running his shop does not inspire any confidence and the evidence of P.W.9 seems only with an agenda to frame the appellant. The confessional statement of the appellant seems to be the focal point of discussion in the impugned order. However, such confession would not have any admissibility in absence of recovery of any incriminating material adverse to the cause of the appellant. The knife recovered from the house of Sarjug Bhuiyan was never sent to the F.S.L. and it has not been asserted by the prosecution that the said knife was used in the commission of murder. The entire circumstances depicted by the prosecution cannot be said to be convincing enough to record an order of conviction against the appellants. The knife recovered from the house of Sarjug Bhuiyan was never sent to the F.S.L. and it has not been asserted by the prosecution that the said knife was used in the commission of murder. The entire circumstances depicted by the prosecution cannot be said to be convincing enough to record an order of conviction against the appellants. Thus, on an overall consideration of the various materials available on the record, we come to the conclusion that the learned trial court has erred in convicting the appellants for the offence under Section 302/34 IPC and consequently, we set aside the judgment and order of conviction and sentence dated 27-03- 2003 (sentence passed on 29-03-2003) passed by Sri Ravindra Prasad Ravi, learned 8 th Additional Sessions Judge, Hazaribag in S.T. No. 20/2001. 11. These appeals are allowed. 12. Pending I.A.(s), if any, stands closed. 13. Since the appellant(s) are on bail, they are discharged from the liability of their bail bonds. 14. We take this opportunity to appreciate the assistance rendered by Mrs. Snehlika Bhagat learned amicus curiae and consequently, we direct the Member Secretary, Jharkhand High Court Legal Services Committee to extend an amount of Rs. 10,500/- to the learned amicus curiae within a period of three weeks from the date of receipt/production of a copy of this order. Office is directed to send a copy of this order to the learned Member Secretary, Jharkhand High Court Legal Services Committee immediately and forthwith.