R. Mukhopadhyay, J.

1. Heard Mrs. Snehlika Bhagat, the learned amicus curiae and Mr. Pankaj Kumar, the learned public prosecutor.

2. This appeal is directed against the judgment of conviction dated 8th August, 2003 and the order of sentence dated 12th August, 2003, passed by Shri Nagendra Kumar, the learned 2nd Additional Judicial Commissioner, Khunti in Sessions Trial No. 113/2000, whereby and whereunder, the appellants have been convicted for the offences under section 364/34 of the Indian Penal Code and have been sentenced to undergo RI for 10 years along with a fine of Rs.2000/- each and in default in payment of fine to undergo RI for one year.

3. The prosecution case arises out of the fardbeyan of Sahar Devi recorded on 6.1.1999 in which it has been stated that on 4.1.1999 at about 7:00 p.m. the son of the informant namely Gudhu Puran along with his friends Ringa Singh Munda and Dubraj Singh Munda had gone to attend Budu festival to the house of Antu Puran and Beer Singh Puran. After about half an hour Ringa Singh Munda and Yuvraj Singh Munda had returned and disclosed that the son of the informant has been intercepted by Puran Puran, Praphul Puran, Gopal Puran, Mahadeo Machhua, Beer Singh Puran, Bhelan Puran, Purno Puran and Budhe Puran and Mahadeo Machhua had shot at the son of the informant. On such information, the informant along with her daughter-in-law Budhani Devi had rushed to the place of occurrence where the informant saw signs of blood having been washed away and ashes spread over it. The reason for the incident is a quarrel which had taken place between the son of the informant and Bhelan Puran.

                  Based on the aforesaid allegations, Arki P.S. Case No.01/99 was instituted under sections 302/201/34 of the Indian Penal Code. 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 Trial No. 113/2000. Charge was framed against the accused under sections 302/34 and 364/34 of the Indian Penal Code which was read over and explained to the accused who pleaded not guilty and claimed to be tried.

4. The prosecution has examined as many as three witnesses in support of its case.

5. PW-1 Ringa Singh Munda has stated that on 4.1.1999 at 7:00 p.m. he had gone to the house of Bhelan Puran and Beer Singh Puran to have prasad and when he came out after having prasad he had seen Bhelan Puran, Beer Singh Puran, Praphulo Puran, Uday Puran, Puran Puran, Gopal Puran and Madhav Machhua catching hold of Gudhu Puran and while Madhav Machhua shot at the back of Gudhu Puran. Gopal had assaulted him with a farsa on back. Dubraj Singh Munda was also present with him at the place of occurrence. He and Dubraj Singh Munda left the place of occurrence and having met Sahar Devi had disclosed the incident to her. He has stated that all three of them had come to the place of occurrence where they found signs of washing and nothing else was seen. They had searched for the dead body but it could not be traced out. He cannot say as to the cause of the incident.

                  In cross-examination, he has deposed that at the place of occurrence there were no houses except that of Beer Singh and Bhelan. At the time of the incident it had become dark though it was a moonlit night. He had not tried to lift the dead body but had fled away from the place of occurrence. They had not raised any alarm while fleeing away. He had not disclosed the incident to anyone in the village except the mother of the deceased.

6. PW-2 Budhani Devi has stated that on the fateful evening her husband had gone to the house of Beer Singh Puran and Bhelan Puran to have prasad along with Ringa Munda and Dubraj Munda. She was in the house along with her mother-in-law Sahar Mani. After half an hour Dubraj and Ringa had come and disclosed that her husband has been assaulted by the accused persons. When she went to the place of occurrence, she could not find the dead body of her husband. Cow dung and ashes were kept over the place where blood had spilled. She has stated that prior to the incident there was an enmity with her husband due to a land dispute.

                  In cross-examination, she has deposed that apart from her, her mother- in-law, Ringa, Dubraj and 8-10 villagers had also assembled to search out the dead body of her husband.

7. PW-3 Sahar Mani Devi is the informant and the mother of the abducted person who has stated about her son going to the house of Beer Singh to have prasad and Ringa and Dubraj were also accompanying him. After an hour Ringa and Dubraj had informed her that her son has been shot at by Mahadeo Machhua and Gopal Puran had assaulted him with a farsa. At his information, she had gone to the place of occurrence but the dead body could not be traced out. The occurrence had taken place because of previous enmity with respect to land between her son and the accused persons.

                  In cross-examination, she has deposed about a land dispute between her family and the accused persons.

8. The statements of the accused were recorded under section 313 of the Code of Criminal Procedure in which they have denied their complicity in the commission of the offence.

9. It has been submitted by Mrs. Snehlika Bhagat, the learned amicus curiae that the entire case of the prosecution is based on hearsay evidence. There has been a dearth of examination of material witnesses and even the Investigating Officer has not been examined by the prosecution which has caused prejudice to the defence. It has been submitted by Mrs. Bhagat that the place of occurrence has not been established and nothing incriminating was recovered to give a semblance of truth to the allegations made. Merely on account of a purported disclosure made by Ringa Singh Munda and Dubraj Singh Munda which is also not backed up by any plausible circumstances the appellants have been convicted. It has been submitted that the prosecution has completely failed to prove any incident of either murder or kidnapping and that neither there is any post-mortem report nor any injury report or forensic report to substantiate the allegations against the appellants. Mrs. Bhagat has further submitted that the learned trial Court has based its judgment on erroneous findings as well as on the basis of presumption despite there being no oral or documentary evidence supporting the case of the prosecution.

10. Mr. Pankaj Kumar, the learned public prosecutor has submitted that though three witnesses have been examined by the prosecution but such evidence has a sterling quality and the learned trial Court has rightly relied on such evidence while convicting the appellants.

11. We have heard the learned counsel for the respective sides and have also perused the trial Court records.

12. The invitation of the son of the informant to the house of Beer Singh Puran and Bhelan Puran proved tragic on account of the son of the informant becoming traceless pursuant to a purported assault committed upon him by the accused persons including firing at his back by Mahadeo Machhua. As per PW-1, he and Dubraj Singh Munda had witnessed the firing made by Mahadeo Machhua and Gopal Puran having assaulted Gudhu Puran with a farsa on back. Dubraj Singh Munda has not been examined by the prosecution and it is only PW-1 who has been projected by the prosecution to be the eye- witness. Though PW-1 claims to have seen the incident which had unfolded in his presence but his subsequent conduct has put a spanner in his evidence. Despite having seen an incident of firing and assault with a farsa neither PW- 1 nor his accomplice had raised any alarm while fleeing away and such non- chalance on their part speaks volumes about the genuinity of their evidence. PW-1 has also stated about not disclosing the incident to anyone except the informant. The contradictions and ambiguities in the evidence of PW-1 puts it in a cradle of suspicion. Another interesting aspect of the case is the distance of the place of occurrence from the house of the informant which takes about 2-3 minutes as stated by PW-2. If that be so, it is indeed startling that even though the firing was made but neither PW-2 nor PW-3 has stated about hearing the sound of firing. Moreover, the place of occurrence does not seem to suggest of any incident having taken place as there has been no recovery of any incriminating material at the said place and even blood stains were not found. There is also nothing on record to suggest that any material connected with the incident has been recovered from any of the accused persons. The Investigating Officer has not been examined which has caused prejudice to the defence as he could not be confronted with the evidence of the witnesses.

                  The prosecution has miserably failed to prove its case against the appellants in absence of any material worth consideration. The learned trial Court has erroneously convicted the appellants without any basis and consequently, in view of the discussions made hereinabove, we hereby set aside the judgment of conviction dated 8th August, 2003 and the order of sentence dated 12th August, 2003, passed by Shri Nagendra Kumar, the learned 2nd Additional Judicial Commissioner, Khunti in Sessions Trial No. 113/2000.

13. This appeal is allowed.

14. Since the appellants are on bail, they are discharged from the liability of their bail bonds.

15. We take this opportunity to appreciate the efforts taken by Mrs. Snehlika Bhagat, the learned amicus curiae in assisting this Court and we consequently direct the Member-Secretary, Jharkhand High Court Legal Services Committee to extend an amount of Rs.10,500/- to Mrs. Bhagat, the learned amicus curiae, within a period of four weeks from the date of receipt/ production of a copy of this order.

16. Pending IA, if any, stands closed.

17. Let a copy of this order be sent to the Member-Secretary, Jharkhand High Court Legal Services Committee for needful.