Sambhu Urang @ Naga vs State Of Tripura

S.G. Chattopadhyay, J

[1] This appeal under section 374(2) Cr.P.C. is directed against the judgment and order of conviction and sentence dated 01.03.2017 passed by the learned Sessions Judge, North Tripura Judicial district, Dharmanagar in case number ST (T-I) 0000030 of 2016 whereby the convict appellant was sentenced to rigorous imprisonment for life and fine of Rs.10,000/- with default stipulation for committing murder punishable under section 302 of the Indian Penal Code, in short, IPC while acquitting the co-accused namely, Samra Urang of the charge under section 302 read with section 34, IPC.

[2] Smt. Sonamani Urang, wife of the deceased, had lodged an oral information to the Officer-in-Charge, Panisagar Police Station in North Tripura on 21.02.2016 disclosing that when she was away from home at Kailashahar she received a telephone on 21.02.2016 in the morning from her brother in law [elder brother of her husband] who informed her that he found the blood smeared dead body of her husband inside the room in their house at Indurail at Panisagar. Her brother in law also informed her that he noticed blood stains on the soil in the courtyard of their house and following the blood stains he entered into the room where he discovered the dead body of her husband. She rushed in to her house at Panisagar from Kailashahar and saw her husband lying dead in his room.

[3] Based on the said information, Panisagar P.S. case number 11 of 2016 was registered. Having been entrusted with investigation of the case, SI Sri Raju Baidya [PW-11] carried out the entire investigation and at the conclusion of investigation he filed charge sheet against accused appellant Sambhu Urang @ Naga, a neighbor of the deceased, for offence punishable under section 302 & 201, IPC and accused Samra Urang for offence punishable under section 201, IPC.

[4] After the case was committed to the court of Sessions, the learned trial judge framed the following charge of offence against Sambhu Urang & Samra Urang:

"That on 20/21-02-2016 in the intervening night at anytime at Indurai road side under Panisagar PS both of you in furtherance of your common intention committed the murder of Naresh Urang by intentionally causing his death by means of dao and both of you thereby committed an offence punishable under section 302 read with section 34 IPC and within the cognizance of this court.

And I hereby direct that both of you be tried by this court on the said charge."

Both of the accused pleaded not guilty to the charge and claimed trial.

[5] In order to substantiate the charge against the accused persons, as many as 11 [eleven] witnesses were examined and 13 [thirteen] documents [Exbt. 1-13] were introduced on behalf of the prosecution.

[6] After the recording of evidence was concluded, the learned trial judge explained to the accused, the incriminating circumstances appearing in evidence against them in terms of section 313, Cr.P.C. They pleaded innocence and false implication. At the conclusion of trial, the learned trial judge having appreciated the evidence convicted and sentenced the accused appellant to RI for life with a fine of Rs.10,000/- with default stipulation under section 302 IPC which is under challenge before us. The co-accused namely, Samra Urang was acquitted of the charge framed against him.

[7] Assailing the judgment and order aforesaid, Ms. S. Chakraborty, learned counsel appearing for the appellant, has strenuously argued that the finding of conviction and sentence of the appellant is unsustainable inasmuch as there is no evidence regarding the involvement of the appellant in the alleged murder of the deceased. It is further contended by learned counsel of the appellant that Smt. Sonamani Urang, wife of the deceased, who reported the matter to police, is not even examined in the case and her non examination has created a doubt about the veracity of the prosecution case. With regard to the findings of the learned trial judge that the weapon of offence was recovered pursuant to the disclosure statement of the accused, it is contended by the learned counsel of the appellant that no such disclosure statement has been proved on behalf of the prosecution and as such learned trial court's finding of guilt of the appellant is erroneous. Further contention on behalf of the appellant is that the extra judicial confession allegedly made by the appellant to PW-2, PW-3, PW-5 & PW-7 which has also been relied upon by the learned trial court was not proved to be true and voluntary and the conviction returned by the learned trial court based on such extra judicial confession is grossly illegal and erroneous. In support of her contention learned counsel has relied on the decision of Gauhati High Court in Abdul Alim Vs. State of Assam reported in (2012) 6 GLR 268. Reliance has also been placed by her on the decision of this High Court in Monaranjan Das Vs. State of Tripura reported in (2015) 2 TLR 65. Further submission on behalf of the appellant is that the motive of crime attributed to the appellant could not also be established.

On the premises aforesaid, learned counsel urges the court for dismissal of the judgment of conviction and sentence returned by the learned trial court.

[8] Mr. S. Ghosh, learned Addl. P.P representing the state respondent on the other hand has opposed the submissions made on behalf of the appellant with reference to the evidence on record and findings recorded by the learned trial court and contended that the trial court's judgment is based on cogent evidence and sound reasoning which does not merit any interference in appeal. According to Mr. Ghosh, learned Addl. P.P, it has been proved that the weapon of offence was discovered by the Investigating Officer at the behest of the accused appellant and the discovery evidence together with the other incriminating circumstances including the extra judicial confession proved against the appellant irresistibly lead to the inference of his guilt and therefore the learned trial judge rightly convicted and sentenced the accused appellant. Learned additional public prosecutor, therefore, urges for dismissal of the appeal.

[9] We have given anxious consideration to the rival submissions of learned counsel representing the parties and examined the entire record with reference to the law applicable to ascertain the correctness of the findings of the learned trial judge.

[10] It is evident on the face of the record that none of the witnesses saw the appellant committing the offence. Sri Ringrairoy Halam [PW-1], a neighbor of the deceased, asserted in his examination in chief that after hearing that Sri Naresh Urang was murdered in his house, he went there and saw his blood smeared dead body inside his hut. Within a while police came there and seized blood stained soil from the place of occurrence in his presence and procured his signature on the seizure list. The PW gave no evidence regarding the involvement of the appellant in the commission of murder.

In his cross examination, he simply stated that marks of blood on the soil indicated that after killing him, the body of the deceased was dragged inside his room from the courtyard.

[11] Sri Bishu Urang [PW-2], a nephew of the deceased had also gone to the hut of the deceased where his dead body was found. The PW found cut injuries on the face of the deceased. Seeing the blood stains on the soil he got assured that the body was dragged into the hut after killing him in the courtyard. According to the PW, the appellant was known to him who was staying in the same house with him. The PW has further stated that after the dead body was discovered, the appellant was trying to escape into a jungle who was then caught by the local people and the appellant after being caught confessed his guilt to the villagers. The appellant confessed that he killed the deceased with a dao.

In cross, the PW gave a different version which embellished his version made out in his examination in chief. He stated in cross that he did not see the appellant being apprehended by the local people. He further stated that on the date of occurrence he was not at home.

[12] Sri Ratan Munda [PW-3] is also a neighbor of the deceased. Like PW-1 & PW-2, he had also seen the blood smeared dead body of the deceased in his hut and seeing the blood stains on the soil he was confirm that the dead body was dragged into the hut from the courtyard of the house. Police seized blood stained soil in his presence and procured his signature on the seizure list as a witness. According to the PW, there was a dispute between the deceased and the appellant and the appellant used to stay in the adjoining house of the brother of the deceased. It was further stated by the PW that on 21.02.2016, i.e. the day after the occurrence a meeting was scheduled at the village for resolution of the dispute between the deceased and the appellant but, the day before the meeting, the deceased was killed. According to the PW, the appellant confessed that he killed the deceased with a dao and the appellant also wanted the villagers to hand him over to police.

The PW was confronted in cross examination when he stated that he was not aware actually from where the appellant was detained by the villagers. He admitted that he did not go to detain the appellant.

[13] Sri Shanta Bhil [PW-4] is also a neighbor of the deceased who witnessed the inquest of the dead body. Regarding the involvement of the appellant in the murder of the deceased the PW simply said that local people detained him in connection with the murder.

[14] Smt. Lalentling [PW-5] was a Deputy Collector and Magistrate at Panisagar on 24.02.2016. She accompanied the Investigating Officer to the place of occurrence on 24.02.2016 and in her presence the appellant confessed that he committed the murder of the deceased with a dao and after killing the deceased he kept the dao concealed in the house of co-accused Samra Urang. Following the disclosure statement of the appellant, search was carried out by Police in the house of Samra Urang in presence of the PW but no dao could be recovered from there. Initially, Samra Urang told that he had no knowledge about the dao. But, when Police created pressure on him, Samra Urang went to the jungle behind his hut and brought out the dao which was then seized by police. The PW further stated that she had seen red spot on the dao which according to her might be blood stains. During trial she identified the dao as Exbt. MO-1.

In her cross examination, the PW stated that when the search operation was being carried out there were 10 [ten] Police personnel inside the house of Samra Urang. The PW further stated that there were several huts at the place from where a dao was recovered and she was not sure whether all those huts belonged to Samra Urang. She, however, denied the suggestion of the cross examiner that dao was not recovered by Samra Urang from the jungle in his house. The relevant assertions of her cross examination read as under:

"When Sambhu Urang made confession he was in police custody. I did not count the number of police personnel present there but there might be ten police personnel. I did not try to know who was the actual owner of the dao. I did not inquire whether police obtained any medical certificate regarding mental capacity of the accused Sambhu Urang.

I do not know Bengali correctly but I understand. I noticed only one hut in the house of Samra Urang but behind that hut there was another hut I did not know whether that hut belonged to Samra Urang or not. When I entered into the hut of Smara Urang I found there were partitions and also there were corridors inside the hut but I did not count the number of partitions. Samra was present at his house. I found disabled female in the house of Samra. I did not notice whether any children there. I could not actually recollect what kind of disability I dound in the disabled lady. After we arrived there the local people also went there. Number of local people might be 10/20. When initially police asked Samra about the weapon of offence and Samra denied anything then some local people were there but I was not definite whether they heard the statement of Samra because they were mutually discussing."

[15] Sri Radhakishore Debbarma [PW-6] is a Sub Inspector of Police who received a telephonic information at Panisagar Police Station on 21.02.2016 at 08.05 AM from one Sri Anteram Halam to the effect that a dead body was found at Urang basti but the informer could not provide the details of the occurrence. However, the information was recorded in the Police Station diary vide G.D. entry number 7 dated 21.02.2016. The extract of which was produced in court and marked as Exbt.4.

[16] Sri Ramdinglian Halam [PW-7] went to the house of Sri Suresh Urang, brother of the deceased, in the evening on 21.02.2016 where the appellant used to reside. The PW detained the appellant there with the aid of the local people who on interrogation confessed that he killed the deceased and after killing him he brought the dead body into the hut of the deceased from the road. The appellant wanted the villagers to hand over him to Police. Police was then informed and after Police came the appellant was handed over to Police.

In his cross examination, the PW stated that he lived 2Km away from the house of the appellant. He denied the suggestion of the cross examiner that no confession was made by the appellant in his presence.

[17] Dr. Satish Kumar Singh [PW-8] held the post mortem examination over the dead body of the deceased at Panisagar Health Centre day after the occurrence on 22.02.2016 and opined as follows about the cause of death in his report [Exbt.6]:

"I am of the opinion that the probable cause of death is due to sudden blood loss leading to hypovolemic shock which is caused as a result of cutting of major vessels of left side of neck which is homicidal in nature."

The PW was subjected to cross examination but the opinion of the PW as to the cause of death of the deceased was not denied or disputed in cross examination. This witness, PW-8, in his cross examination on behalf of the appellant stated as under:

"I am a simple MBBS. Regarding PM we had a course in MBBS".

[18] Sri Lalmohan Nama [PW-9] only identified the dead body of the deceased at the time of the post mortem examination and Sri Subhash Ch. Das [PW-10] witnessed the seizure of the wearing apparels of the appellant which according to the PW were stained with blood. He had no knowledge about the involvement of the appellant in the commission of the murder of the deceased.

[19] Sri Raju Baidya [PW-11] is the Investigating Officer of the case who carried out the whole investigation of the case. According to the PW at 08.05 AM in the morning on 21.02.2016 a telephonic information was received at his Police Station from Sri Anteram Halam, a local shopkeeper to the effect that a dead body was found in Urang basti. The information was recorded in G.D. of the Police Station and following the information he reached the spot at 09.25 AM. The Forensic Mobile Van and Dog Squad also arrived there at 10.30 AM on his requisition. The PW received formal FIR from Smt. Sonamani Urang, wife of the deceased. The dead body was sent for PM examination and the witnesses were examined by the PW. Blood stained soil and the wearing apparels of the deceased were seized. A t-shirt of the appellant was also seized. The appellant was arrested on the same day at 07.05 PM. After arrest he confessed his guilt to the PW. He also confessed to the PW that after killing the deceased with a dao he kept it concealed in the house of co-accused Samra Urang near his bed. The Police team led by the PW and accompanied by the Executive Magistrate [PW-5] went there and in their presence co-accused Samra Urang brought out the dao from a jungle behind his hut.

In his cross examination, the PW admitted that in Forensic examination no blood stain could be detected from the weapon of offence [Exbt.MO-1] & from the wearing apparels of the accused. The PW, however, denied the suggestion of the cross examiner that no confession was made by the appellant.

[20] The judgment of the learned trial court demonstrates that the learned trial judge held the appellant guilty relying on the circumstances which were brought on record on behalf of the prosecution. Relevant extract of the findings of the learned trial judge is as under:

"[17] So, in totality of the prosecution evidence, I find that prosecution in this case is able to prove the following facts:-

[i] That the deceased had dispute with the principal accused Sambhu Urang @ Naga regarding allegation of theft of one hen/cock by the accused and in that regard a local Shalishi was scheduled to be held on 21-02-2016. So, accused had mens rea to kill the deceased.

[ii] That immediately after the detection of the dead body, the accused escaped from the house where he was staying i.e. from the house of Suresh Urang and local people in the evening managed to apprehend the accused from the jungle and during that time accused Sambhu Urang @ Naga made a confession that he had killed Naresh Urang by means of a dao in the road sie and then he drageed the body to the hut of Naresh Urang and kept the dao in the jut of Samra Urang which is evident from the evidence of PW 2, 3, 4 and 7.

[iii] That in leading to discovery in presence of DCM, police went to the house of Samra Urang for recovery of the dao, the weapon of offence but initially the dao was not available. Then Samra Urang, the co-accused admitted that he threw the dao in the jungle at the back side of the house of Naresh Urang and he led the witnesses as well as the DCM to that place and recovered the dao.

[iv] It is also proved that the IO had sent the dao for chemical analysis but no blood stain was found in the dao.

[v] Medical evidence proved that the death of the deceased was homicidal in nature as a result of sharp cutting weapon.

[18] In view of the proved facts it is clearly established that prosecution is able to prove that it was the accused Sambhu Urang @ Naga and none else had committed the offence of murder of Naresh Urang at the road side of the house of Naresh Urang and thereafter the body was dragged into the hut of Naresh. It is also proved that accused kept the weapon of offence into the house of Samra Urang and Samra Urang out of fear had thrown the dao in the jungle at the back side of the house of Naresh Urang. It is clear from the prosecution evidence that Samra Urang had got not privi to the offence. He simply threw the dao in the jungle only out of fear that he might be involved by police in this case. So, he had no intention to conceal the evidence. So, he cannot be held liable for the offence under section 201 of the Indian Penal Code. It is not established beyond reasonable doubt that in order to conceal the prosecution evidence intentionally he threw the dao in the jungle for concealment of evidence.

[19] So, I find and hold that section 201 of the Indian Penal Code is not proved against the accused Samra Urang. In the circumstances of this case, I find and hold that accused Sambhu Urang @ Naga intentionally caused the death of the deceased by giving blows of dao in the road side near the house of the deceased and left. So, I am of the opinion that prosecution in this case able to prove the offence under section 302 of the Indian Penal Code against accused Sambhu Urang @ Naga. So, I find him guilty for the offence under section 302 of the Indian Penal Code."

[21] The above passage of the trial court's judgment would clearly show that the learned trial court found that the prosecution version rested on circumstantial evidence and the following circumstances were highlighted in the judgment to find the accused guilty:

a. The medical evidence proved that the death was homicidal in nature.

b. The appellant developed a rivalry towards the deceased because the deceased suspected the appellant to have stolen his hen which motivated the appellant to eliminate the deceased.

c. After the body of the deceased was recovered, the appellant tried to flee away from the village when he was caught and detained by the local people and after his detention he made confession to the local people that he committed the murder of the deceased.

d. The weapon of offence was recovered at the behest of the appellant pursuant to a disclosure statement made by him.

[22] The learned trial judge held that the above circumstances were proved against the appellant and having relied on those circumstances he found the appellant guilty of the charge of murder and convicted and sentenced him while acquitting the co-accused namely, Samra Urang who was charged with the same offence.

[23] According to Ms. S. Chakraborty, learned counsel of the appellant, none of the above circumstances has been proved against the appellant. It is contended by learned counsel that the learned trial judge erroneously found the appellant guilty without being satisfied whether the confession made by the appellant was true and voluntary. It is also contended by learned counsel of the appellant that the alleged confession made by the appellant about his guilt is not supported and corroborated by cogent circumstances and as such conviction based on such confession is unsustainable. As we have noted above, in support of her contention, learned counsel relied on two decisions, one of the Gauhati High Court and the other of this High Court. In Abdul Alim Vs. State of Assam (supra), the Gauhati High Court in a completely different context examined the acceptability of the confessional statement made by the accused under section 164 (4), Cr.P.C. which was not accompanied by a memorandum certifying the voluntariness of the statement in terms of section 164 (4), Cr.P.C. and observed that the conviction based on such statement was erroneous. Context of the present case being completely different, the decision does not have any application in this case.

[24] In Manoranjan Das Vs. State of Tripura (Supra), which has also been relied upon by learned counsel of the appellant, this High Court dwelt on the ingredients which would make an extra judicial confession reliable and observed as follows:

"[21] It is well settled that the first and foremost ingredient that is required to rely on the extra judicial confession which is otherwise a weak piece of evidence by itself is that it has to be made voluntarily and it should be truthful. An extra judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and it is further corroborated by other prosecution evidence. When an extra judicial confession is made the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities."

[25] According to learned counsel of the appellant the extra judicial confession allegedly made by the appellant in the given case is not supported and corroborated by other circumstances brought out on record by the prosecution. It is contended by learned counsel that except mere suspicion, there was no other cogent circumstance against the appellant which was likely to drive him to make such confession. Even if any confession was made by the appellant it resulted from the fear of persecution at the hands of the villagers. Learned counsel, therefore, argued that in view of the decision of this High Court in Manoranjan Das (Supra) the evidence led by the prosecution in this regard may be discarded. We shall discuss the merit of such argument and the reliability of the confession allegedly made by the appellant in the succeeding paragraphs.

[26] The first of the circumstances relied upon by the learned trial court for convicting the appellant is the homicidal death of Sri Naresh Urang. The fact that the death of Sri Naresh Urang was homicidal in nature stand established. We have quoted the opinion of the autopsy surgeon [PW-8] in the preceding paragraphs who opined in his report [Exbt.5] that death of Sri Naresh Urang was caused due to sudden blood loss leading to hypovolemic shock caused as a result of cutting of major vessels of left side of the neck which is homicidal in nature. The opinion of the autopsy surgeon is neither denied nor disputed on behalf of the appellant in the cross examination of the PW. Undoubtedly, therefore, the death of Naresh Urang [the deceased] was homicidal in nature.

[27] With regard to the motive of the appellant in committing the murder of Sri Naresh Urang [the deceased], the learned trial court accepted the prosecution version and placing reliance thereon had drawn up the inference of guilt of the appellant. The motive which has been attributed to the appellant for killing the deceased appears insignificant and unacceptable to us. Only one PW namely, Sri Ratan Munda [PW-3] deposed at the trial that the deceased made an allegation to him that the appellant had stolen his hen and ate it and a village meeting was convened for resolving their dispute and day before the meeting the deceased was killed. On the contrary, the PW, in his cross examination categorically stated that there was no dispute between the appellant and the deceased relating to property. Moreover, none of the other PWs had supported such evidence of PW-3. This apart, the FIR [Exbt. 8] was lodged by none but the wife of the deceased. Had this fact been true, it would have been indicated in the FIR lodged by her. But, Smt. Sonamani Urang, wife of the deceased, did not say anything against the appellant in her FIR in which the genesis of the prosecution case was rooted. Even the Investigating Officer [PW-11] did not make any enquiry into the motive of the appellant in committing the crime. There is no evidence about any prior ill will or enmity existing between the deceased and the appellant. Rather, it is proved that the deceased was the next door neighbor of the appellant because evidently the appellant lived in the adjoining house of Suresh Urang, elder brother of the deceased from long before the occurrence. In these circumstances, the motive which has been relied upon by the trial court as one of the incriminating circumstances for finding the accused guilty does not stand established.

[28] To appreciate whether in the given context, the alleged extra judicial confession of the appellant made to the prosecution witnesses named above can be accepted by us, we may gainfully refer to the decision of the Apex Court in Sahadevan & Anr. Vs. State of Tamil Nadu reported in (2012) 6 SCC 403 in which the Apex Court after referring to some of its earlier judgments on the issue and after making an analysis of those judgments laid down the following principles which would make extra judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. The principles laid down by the Apex Court vide paragraph 16 of the judgment are as follows:

"The principles

Upon a proper analysis of the above-referred judgments of this Court, it will be appropriate to state the principles which would make an extra- judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused:

i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.

ii) It should be made voluntarily and should be truthful.

iii) It should inspire confidence.

iv) An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.

v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.

vi) Such statement essentially has to be proved like any other fact and in accordance with law."

[29] As noted by us, only PW-2, PW-3, PW-5 and PW-7 stated at the trial that the appellant confessed his guilt to them. Among them, PW-2 and PW-3 deposed in their examination in chief that the accused made confession of his guilt after he was apprehended by the local people. But, both of the PWs in their cross examination stated that they were not aware from where and under what circumstances the appellant was apprehended by the local people. Similarly, the evidence of PW-7 is not also reliable because he deposed that when such confession was made by the appellant Sri Ringrairoy Halam [PW-1] was also present there. But, said Sri Ringrairoy Halam [PW-1] in his deposition said nothing about such confession being made by the appellant. PW-7 also told that Sri Jambirman Halam and Sri Anteram Halam were also present when the confession was made by the appellant. But, none of them has been introduced as prosecution witnesses. The fact that he tried to escape after the dead body was recovered and the local people caught and detained him is not also supported and corroborated by cogent evidence.

[30] Though the circumstances cannot be outlined exhaustively, it is noticed that the accused of a crime ordinarily makes a confession in the following circumstances:

He may confess his guilt out of repentance. Apparently, it did not occur to the case of the present appellant. In a situation, where the offence is committed out of sheer vengeance, the offender, regardless of the consequence may come out and make a bald statement to others about his commission of the offence. The facts of this case are not also akin to such situation. Also there may be situation when confession is made under duress in fear of torture when the accused apprehends that he is likely to be tortured unless he pleads guilty. Therefore, for argument's sake even if we believe that the appellant of this case, after his detention made any confession, in all probability it was made by him in fear of torture because it is evident from the deposition of Sri Ratan Munda [PW-3] that the appellant after being detained by a large number of the local people appealed to them to hand him over to police and in all probability such appeal was made by the appellant to save him from public grudge. The relevant extract of the assertion of PW-3 in his examination in chief is as under:

"After his confession, he was handed over to police. When he confessed before us there was no police. Naga himself pleaded us to hand over him to police."

[31] This apart, insofar as the evidence of Smt. Lalentling [PW-5] with regard to extra judicial confession is concerned, in her cross examination PW-5 has very categorically stated that when the appellant made such confession of guilt, he was in Police custody and there were 10/20 villagers at that place and about 10 [ten] Police personnel. Obviously, it was not an ideal situation to make a true and voluntary confession. Moreover, in view of section 25 & 26 of the Evidence Act, such confession made by the appellant while in Police custody is inadmissible in evidence. Thus, the evidence of PW-5 also loses its significance and evidentiary value inasmuch as it was stated by the PW that the accused made confession of guilt in her presence.

Having applied the tests laid down by the Apex Court in Sahadevan (Supra) to the given context particularly with regard to the voluntariness and truthfulness of the confession allegedly made by the appellant of this case, we are of the view that the learned trial court, in view of the discrepancies and contradictions appearing in the evidence of the prosecution witnesses and the circumstances in which such confession was allegedly made by the appellant should not have relied on the prosecution evidence with regard to extra judicial confession allegedly made by the appellant.

[32] As regards the finding of the learned trial court about the recovery of the weapon of offence, it is evident that no disclosure statement of the appellant was proved on behalf of the prosecution. According to prosecution, the discovery of the weapon of offence viz. dao was made pursuant to the disclosure statement of the appellant. But, it has surfaced from the evidence of the Investigating Officer [PW-11] that on 24.02.2016 i.e. three days after the occurrence he seized one dao with wood made handle and that too from the possession of co-accused Samra Urang. Following is the relevant extract of his evidence:

"Subsequently on 24.02.2016 at about 13.25 hour I seized one dao with wood made handle from the possession of Samra Urang. This is the seizure list. On identification it is marked as Exbt. 3/a."

It has also appeared from his evidence that following the oral statement of the appellant he had taken the appellant to the house of co-accused Samra Urang but the appellant could not find out the weapon of offence viz. dao [Exbt. MO-1] there. Thereafter, Samra Urang brought out the dao from the jungle behind his house and that too after he was subjected to pressure by Police, as deposed by PW-5. Moreover, it is also doubtful whether this weapon viz. dao was actually used in committing the murder of Sri Naresh Urang because no blood stain was detected in Forensic examination of the object. In this regard, the Investigating Officer [PW-11] in his examination in chief asserted as follows:

"In the weapon of offence though blood stain could be detected but blood group could not be detected".

But, when the object was subjected to Forensic examination in State Forensic Science Laboratory, no blood stain could be detected thereon. PW-11 i.e. the Investigating Officer confirmed it in his cross examination where he asserted as follows:

"As per SFSL report no blood stain could be detected in Exbt. MO-1."

Though the Forensic expert has not been examined and his report has not been taken into evidence, we have perused the report dated 15.06.2016 of Dr. Sabyasachi Nath who has clearly stated in paragraph 12 (iii) of his report that no blood stain could be detected in Exhibit K [one metallic dao with wooden handle, said to be sharp cutting dao]. Allegedly the appellant chopped the deceased with this weapon and therefore it is quite unlikely that the weapon of offence recovered from a dry place within three days of the murder of the deceased would have no blood stain at all. For the foregoing reasons, the recovery of the weapon of offence also appears to be doubtful to us. Moreover, in order connect the appellant to the murder of the deceased, the wearing apparel of the appellant [T-shirt] was also seized by the Investigating Officer [PW-11] vide. seizure list [Exbt.7a] dated 24.02.2016 and as per the seizure list, the wearing apparels contained stains which were akin to blood stains. About the seizure, the IO [PW-11] categorically asserted in his examination in chief as follows:

"On that date I also seized one half sleeve gangi (T-shirt) being wearing apparels of the accused."

In his cross examination, the Investigating Officer categorically asserted that no blood stain was detected on the wearing apparel of the accused in Forensic examination. Following is the extract of his statement:

"In the SFSL report no blood stain were detected from the wearing gangi (T-shirt) of accused Sambhu."

Allegation against the appellant is that he chopped the deceased with a dao. It was, therefore, quite unlikely that his wearing apparel seized within three days of the occurrence would have no blood stain at all. Situated thus, the seizure evidence [Exbt.7a] also failed to connect the appellant to the alleged crime.

[33] One more infirmity of the prosecution case which was overlooked by the learned trial court is that three material witnesses were not introduced by the prosecution whose evidence was necessary to verify the truth of the prosecution version. As per the prosecution version, Police stepped into action soon after the telephonic information was received from Sri Anteram Halam, a local shopkeeper. As deposed by PW-6, the telephonic information received from said Sri Anteram Halam at 08.05 hours on 21.02.2016 was recorded in the G.D. vide G.D. entry number 7 dated 21.02.2016 [Exbt.4] and following the G.D. entry Police left the PS for the place of occurrence. Similarly, Smt. Sonamani Urang, wife of the deceased, filed the FIR [Exbt.8] on 21.02.2016, morning, after she received the information from Sri Suresh Urang, elder brother of the deceased. None of said Sri Anteram Halam, Smt. Sonamani Urang and Sri Suresh Urang have been introduced and examined at the trial on behalf of the prosecution. The facts and circumstances stated above, would go to show that the genesis of the prosecution case was rooted in their evidence. Sri Suresh Urang, elder brother of the deceased in whose house the appellant used to live and Smt. Sonamani Urang, wife of the deceased, were likely to be the best witnesses to unfold the genesis of the incidence and explain as to whether the appellant had any rivalry towards the deceased sufficient to drive the appellant to commit his murder. Among these witnesses, Sri Anteram Halam was included in the list of prosecution witnesses in the charge sheet in serial number 7 and the name of Smt. Sonamani Urang, wife of the deceased, was also included in serial number 14 of the list of witnesses in the charge sheet. But, they were not examined for reasons best known to the prosecution. We are of the view that it was necessary to examine these witnesses and their non examination has reinforced our doubts in the prosecution version against the accused appellant.

[34] For the reasons stated above, we are unable to accept the findings of the learned trial court. In our considered view, in the given facts and circumstances of the case and evidence on record, the conviction of the appellant cannot be sustained and the appeal ought to be allowed.

[35] Resultantly, the appeal stands allowed. The appellant shall be set at liberty forthwith, if not required in any other case.

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