JUDGMENT : Pradeep Kumar Srivastava, J. 1. Heard Mr. Shree Nivas Roy, learned counsel for the appellant as well as Mr. Pankaj Kumar Mishra, learned A.P.P. for the State. 2. The instant appeal is directed against the judgment of conviction and order of sentence dated 03.02.2003 passed by learned Additional District & Sessions Judge, Ist Fast Track Court, Giridih in Sessions Trial No. 384 of 2001, whereby and whereunder, the appellant has been held guilty and convicted for the offence under Sections 302 /34 of the I.P.C. and sentenced to undergo rigorous imprisonment for life. FACTUAL MATRIX 3. The factual matrix giving rise to this appeal is that on 17.08.2001, the village Chaukidar Moni Turi was returning back after discharging his duties then he came to know that a widow lady has been murdered in Das Tola Handadih. The informant went to the said village and enquired into the matter and came to know that Jharkhandi Das, Tejo Das, Bhuneshwar Das and Karu Das had committed murder of Most. Chandri Devi with intention to grab house and other properties because she had only three daughter and all the daughters were married and residing at their respective matrimonial home. All the four accused persons were not found present in their respective house. 4. The fardbeyan of Chaukidar Moni Turi was recorded by S.I. of Giridih (M) Police Station. Accordingly, Giridih (M) P.S. Case No. 252/2001 was registered under Sections 302 /34 of the I.P.C. After completion of investigation, charge sheet was submitted against all the four accused persons for the aforesaid offences. The learned Judicial Magistrate, after taking cognizance committed the case to the court of Sessions, where S.T. No. 384/2001 was registered and trial proceeded against the accused persons. 5. After conclusion of trial, the trial court convicted the appellant and sentenced him as stated above and acquitted the rest three accused persons. 6. Learned counsel for the appellant has submitted that on the basis of same evidence three accused persons have been acquitted in this case. In spite of that, the present appellant was held guilty for the offence under Section 302 read with Section 34 of the I.P.C. without recording any finding that the appellant was sole responsible for commission of murder of the deceased. In spite of that, the present appellant was held guilty for the offence under Section 302 read with Section 34 of the I.P.C. without recording any finding that the appellant was sole responsible for commission of murder of the deceased. There is no eye-witness of the occurrence and the appellant was implicated only on the basis of suspicion, which never culminated into legal proof. AS such, impugned judgment is fit to be set aside. Appellant deserves acquittal. 7. On the other hand, learned A.P.P. appearing for the State has opposed the aforesaid contention and has submitted that in order to grab the landed property and house of the deceased, who was a widow lady having no son and her three daughters were already married, the present appellant has committed her murder. The post-mortem report of the deceased also corroborates the prosecution story. Therefore, the impugned judgment of conviction and order of sentence for the offence of murder do not call for any interference. This appeal is devoid of merits and fit to be dismissed. 8. The only point for determination in this appeal is that “as to whether the impugned judgment and order of conviction and sentence of appellant suffers from any error of law, calling for any interference in this appeal or not?” 9. Before imparting any verdict on the above point, we have to take brief resume of the prosecution evidence adduced in this case. 10. It appears that altogether 08 witnesses have been examined by the prosecution to substantiate the charge levelled against the appellant and other three co-accused persons, who have been acquitted in this case extending benefit of doubt. 11. P.W.-1 Mani Turi is the informant-cum-Village Chaukidar. He has proved the contents of the fardbeyan and stated that on 17.08.2001, while he was returning to his home after discharging his duties, he came to know that a widow lady of Village – Handadih has been murdered. He went to the place of occurrence and saw dead body of Most. Chandri Devi. He also came to know her gotia Jharkhandi Das, Bhuneshwar, Karu and Tejo have killed her and fled away. He failed to disclose the name of any person, who told him about commission of murder by the above-named accused persons. He has also not stated that who has to succeed the landed property after death of the deceased. Chandri Devi. He also came to know her gotia Jharkhandi Das, Bhuneshwar, Karu and Tejo have killed her and fled away. He failed to disclose the name of any person, who told him about commission of murder by the above-named accused persons. He has also not stated that who has to succeed the landed property after death of the deceased. He has informed in Police Station but his fardbeyan was recorded on the place of occurrence, where he signed on it. In his cross-examination also, he has stated nothing about the involvement of any of the accused persons and he was not acquainted with the accused persons. 12. P.W.-2 Chameli Devi has stated that the house of the accused persons and the deceased is common and there is common door of the said house. She heard hulla at about 6:00 P.M. and went towards the house of Chandri Devi, then saw that Tejo Das was assaulting to her by a farsi. She was scolded and driven away by the accused, otherwise she would also be finished. She also states that Chandri Devi had only three daughters and no son. All the daughters were married. The accused persons are her gotia, but she does not know about any dispute or enmity between the deceased and accused persons. In her cross-examination also, she admits that the deceased and accused persons were residing separately in mess and house. She also admits that there was inimical terms between her husband and elder brother of Tejo Das namely, Lobhi Das and a criminal case was also instituted and there is no talking term between Lobhi Das and her husband Badhan Das. She also admits that she has no concern with the deceased Chandri. She was brought to place of occurrence by police but can’t say as to who has disclosed her name to police. She was not present in the house of the deceased after the occurrence of murder. She further admits that she did not disclose the above incident to any of the villagers in the night of the occurrence. She has denied the suggestion of defence that she has falsely implicated to Tejo Das, who is brother of Lobhi Das, who has inimical terms with her husband Badan Das and pendency of criminal case between them and she has not seen any occurrence. 13. P.W.-3 Meena Devi . She has denied the suggestion of defence that she has falsely implicated to Tejo Das, who is brother of Lobhi Das, who has inimical terms with her husband Badan Das and pendency of criminal case between them and she has not seen any occurrence. 13. P.W.-3 Meena Devi . She also came to know about murder of deceased in the next day morning and she has only heard that Tejo Das has killed her. She went to the house of the deceased and saw her dead body. She also states that Bhuneshwar, Karu, Tejo and Jharkhandi were also residing in the same house and all were not present in their house. She has not stated about any inimical terms between accused persons and the deceased. She further states that she has not stated name of any of the accused to the police, who were involved in commission of murder of deceased. Accordingly, declared hostile by the prosecution. 14. P.W.-4 Thakur Das has also been declared hostile by prosecution. He has seen the dead body of the deceased and heard about her murder. 15. P.W.-5 Dr. Biswanath Das has conducted autopsy on the dead body of the deceased and found following:- (1) External Examination: (i) Incised wound 3” x 1. ½” Brain Cavity deep over left parietal region of skull. (ii) Incised wound 1.1/2” x ½ x brain cavity deep on left side of forehead. (iii) Incised wound 1” x ¼” x brain cavity deep on left lateral size of four head. (2) On Dissection: Skull fractured into multiple pieces. Brain laceration of the brain matter. Larynx and tachea – NAD. Hyoid bone intact. Chest rib intact, lungs congested. Heart – empty in both side. Liver – Pale, stomach contained undigested food rice and pulses. Kidney, spleen pale, mucosa membrane of stomach NAD, no smell. Urinary bladder empty. Uterus non gravid and normal in size. All injuries mentioned above are ante mortem in nature, caused by sharp cutting weapons. The cause of death is shock and hemorrhage as a result of above injuries. Time elapsed till P.M. exam within 24 hours. The injuries were sufficient to cause death in ordinary course of nature. He has proved the P.M. report as Exhibit-1. 16. P.W.-6 Jaldhar Tiwari . He is witness to the Inquest Report of deceased and proved his signature also over Inquest Report marked Exhibit-2. Time elapsed till P.M. exam within 24 hours. The injuries were sufficient to cause death in ordinary course of nature. He has proved the P.M. report as Exhibit-1. 16. P.W.-6 Jaldhar Tiwari . He is witness to the Inquest Report of deceased and proved his signature also over Inquest Report marked Exhibit-2. In his cross-examination, he has stated that he knows the deceased and the accused persons, but never saw any kind of dispute in between the deceased and the accused persons. 17. P.W.-7 Banwari Das is also witness of Inquest Report and proved his signature over Inquest Report marked Exhibit-2/1. 18. P.W.8 Suraj Deo Ram is the Investigating Officer of the case. According to his evidence, on 17.08.2001, he was posted at Giridih (M) Police Station. He received information from Chaukidar 3/1 Moni Turi about murder of a lady in Village – Handadih. This witness along with other police personnel went to Handadih at the house of the deceased and saw a dead body lying in courtyard, where 10-20 villagers were also assembled. Some villagers told him that there was land dispute between accused persons and the deceased, who were residing in same house. He also prepared Inquest Report of the deceased and sent the dead body for clinical examination and recorded fardbeyan (Exhibit-3) of the informant and formal FIR as Exhibit-4. He has further proved the place of occurrence visited and inspected by him, which is house of the deceased and accused persons, having common main door towards north not fitted with door. There are four rooms and in the first room of north side was acquired by deceased and other rooms were occupied by accused persons. He obtained P.M. report of the deceased and also interrogated with witnesses and recorded their statements and finding sufficient materials submitted charge sheet against all the accused persons. He further stated that the witness Mina Devi (P.W.-4) in her statement recorded under Section 161 Cr.P.C. has stated that when she reached at the house of Chandri Devi after hearing hulla, she was lying dead and accused Tejo Das, Jharkhandi Das, Maheshwar Das, Bhuneshwar Das and Karu Das were standing there armed with lathi and farsa. She has also stated about land dispute between the deceased and the accused persons, who were adamant to grab her landed property. She has also stated about land dispute between the deceased and the accused persons, who were adamant to grab her landed property. The witness Ghalut Das has stated before him that he interrogated with neighbours and came to know that Tejo, Jharkhandi, Bhuneshwar and Karu Das had murdered the deceased Chandri Devi. In his cross-examination, he admits that at the place of occurrence mark of blood was found, which is not mentioned in the case diary. He has not conducted any search in the rooms of accused persons on the date of occurrence. There is nothing else in his cross-examination. He has denied the suggestion of defence that his investigation is defective and perfunctory and without any legal evidence, he has submitted charge sheet against the accused persons. 19. On the other hand, the case of defence is denial from occurrence and false implication, due to village politics and enmity. One witness namely Md. Rabbani, Advocate Clerk has been examined by defence, who has proved C.C. of formal FIR of Giridih (M) P.S. Case No. 233 of 2000 as Exhibit-A, written report of the informant as Exhibit-B registered for the offence under Sections 379 /411/34 of the I.P.C. against Badhan Das (husband of P.W.-2) Bhushan Rawani, Ashok Rajak, Lokhi Das and Uma Turi. 20. We have gone through the impugned judgment, it transpires that only on the basis of testimony of P.W.- 2, Chameli Devi, who claimed to be eye-witness of the occurrence, the present appellant has been held guilty and sentenced and other three co-accused persons have been extended benefit of doubt. The evidence of P.W.-2 itself does not inspire confidence to be acted upon as wholly reliable witness. She has admitted inimical terms between her husband and the elder brother of appellant - Tejo Das and the criminal case of theft was also undergoing between them, in which, her husband was in jail for about 1½ years. Her statement was admittedly recorded by the I.O. after one day of the occurrence. Moreover, her testimony that she saw the accused - Tejo Das while committing murder of the deceased by inflicting farsi blow at about 6:00 P.M., neither she disclosed to her family members nor any of the villagers about the said occurrence and the dead body of deceased was seen for the first time by the Village Chaukidar (P.W.-1), who happens to be informant of this case. She also states that in her own house in the same courtyard Kishori Master along with his wife and sons resides, but they didn’t not go to place of occurrence due to fear. These witnesses have also not been interrogated during investigation. Other witnesses of facts are either hearsay witness from P.W.-2 or declared hostile by the prosecution, having no knowledge about the occurrence. None of the witnesses have stated about any enmity between deceased and the appellant or any other co-accused persons, who were charged together. The special stress given to the evidence of P.W.-2 Chameli Devi, whose own conduct does not inspire confidence as an eye-witness of the occurrence, is absolutely unwarranted. She has animus to falsely implicate the sole appellant-Tejo Das having tendency to exculpate the others. 21. It is trite that on the basis of same evidence, if other co-accused persons are given benefit of doubt, then only one accused cannot be convicted unless there are clinching evidence against him showing his sole responsibility for the guilt. 22. We have given thoughtful consideration to the overall evidence adduced by the prosecution and defence and find that except the evidence of P.W.-2, Chameli Devi, there is no iota of evidence at all to connect the appellant with the alleged offence. The said P.W.-2 Chameli Devi has animus to falsely implicate the sole appellant Tejo Das due to previous enmity and criminal case lodged by his brother Bholu Das against the husband of this witness (P.W.-2), wherein her husband has remained in judicial custody for 1½ years. The conduct of P.W.-2 after seeing the occurrence in remaining cool and calm for all over the night and even after arrival of the police and non- disclosure to anyone cast serious doubt on her testimony. Admittedly, she was searched by villagers and called upon by the Investigating Officer and thereafter, her statement was recorded for the first time. Even after expiry of 24 hours from the occurrence, she did not disclose to any person about the said incident as has been claimed by her to be seen the occurrence from her own eyes. Admittedly, she was searched by villagers and called upon by the Investigating Officer and thereafter, her statement was recorded for the first time. Even after expiry of 24 hours from the occurrence, she did not disclose to any person about the said incident as has been claimed by her to be seen the occurrence from her own eyes. Therefore, the learned trial court has committed serious error of law in placing blind reliance upon the testimony of P.W.-2 without evaluating the same with the attending circumstances available on record and arrived at wrong conclusion in holding sole appellant as guilty for the offence under Section 302 read with Section 34 of the I.P.C., although the other three accused persons named in the FIR have been acquitted on the basis of same evidence. Therefore, we are constrained to set aside the impugned judgment and order of conviction and sentence of the appellant and acquit him from the charges levelled against him. 23. Accordingly, the impugned judgment of conviction and order of sentence of the appellant is hereby set aside. 24. This appeal is allowed 25. The appellant is on bail. He is discharged from the liability of bail bond and sureties shall also discharged. 26. Pending I.A., if any, stand disposed of. 27. Let a copy of this judgment along with trial court record be sent back to the court concerned for information and needful.