V. Dutta Gyani, C.J. (Acting)— This appeal arises out of the judgment dated 9.3.92 passed by the learned Sessions Judge, Lakhimpur, North Lakhimpur in Sessions Case No.3 (NLX91 thereby holding the appellant guilty of offence punishable under section 302 read with section 201, IPC and sentencing him to undergo imprisonment for life and also to pay a fine of Rs. 1,000/- for offence punishable under section 302, IPC and in default of payment of fine, to suffer further RI for six months. As for Offence under section 201, IPC, the appellant has been sentenced to undergo three months RI with a fine of Rs.200/- or in default of payment of fine to suffer RI for one month. The appellant was charged and tried for the same offence alongwith the accused Johan Kashyap who has since been acquitted by the trial Court and there is no appeal preferred by the State against his acquittal. 2. Stated in brief the prosecution case was that on 2.3.89 in the night the accused appellant caused the death of Nikaden Kashyap and buried his dead body in his. own compound. The deceased was the nephew of the accused. A quarrel took place between the two. It is alleged that the accused dealt several dao blows on the deceased as a result of which the following injuries were sustained by the deceased: "(1) Cut injury on the right side of the sculp about 1" from mid line placed anteroposteriorly about 6" breadth 1" x depth ½". (2) Penetrating injury about middle of the left side of face on left side 1"x¼"x3/4". (3) Penetrating injury behind left ear just below ½"x¼"x3/4". (4) Penetrating injury behind sculp about its middle 1"x½"x3/4". (5) Penetrating injury fron of middle of left arm ½"x¼"x3/4". (6) Penetrating injury front of left thigh ½"x¼"x3/4" Taking advantage of the dark night the body of the deceased was buried in the compound. As Nikaden was not seen for a couple of days his brother Kritpal Kashyap was surprised. He was informed about the quarrel by the neighbours. He saw a newly dug pit. Some bamboo were put on it. PW 1 thereafter lodged a, report at Bihpuria Police Station (Ext 1), on 4.2.89 at 3 PM. As Nikaden was not seen for a couple of days his brother Kritpal Kashyap was surprised. He was informed about the quarrel by the neighbours. He saw a newly dug pit. Some bamboo were put on it. PW 1 thereafter lodged a, report at Bihpuria Police Station (Ext 1), on 4.2.89 at 3 PM. On the basis of this report (Ext 1) a case under section 302 IPC, was registered and taken under investigation by PW 6, the IO who on registration of the crime proceeded to the spot. He was told by ASI Sushil that the dead body had been buried beneath the earth. He posted a police constable to guard the place. Thereafter he approached an Executive Magistrate for obtaining order for an exhumation of dead body which was accordingly exhumed and an inquest report (Ext 2) was prepared. The dead body was sent for post mortem examination which was performed by PW 5, Dr. Bidyut Kumar Goswami who found the injuries as already noted above. The IO claims to have recovered the material Ext 5 from the accused. On completion of investigation the appellant alongwith Johan Kashyap was charged and tried . for the above offence. 3. Prosecution examined in all seven witnsses. Out of them PW 5 is the doctor who performed the autopsy and PW 6 is the Investigating Officer. PW 7 is a formal witness, a Sub Inspector of Police who had taken over the charge of investigation and who filed the charge sheet. The other witnesses are closely related both to the accused as well as the deceased. 4. As has been noted by the trial Court there is no eye witness in this case, which totally depends on circumstantial evidence. The learned trial Judge seeking support from the statement made by the accused and recorded under section 313 CrPC, acquitted co-accused Johan Kashyap and found the appellant guilty of the offences charged and sentenced him, as already noted above. Hence this appeal. 5. This appeal has been sent from jail and since the appellant was not represented by Ms. A. Bhattacharyya who was appointed Amicus Curiae, Mr. BM Choudhury has aigued this appeal. We have also heard the learned Public Prosecutor Mr. D. Goswami on behalf of the State. 6. Hence this appeal. 5. This appeal has been sent from jail and since the appellant was not represented by Ms. A. Bhattacharyya who was appointed Amicus Curiae, Mr. BM Choudhury has aigued this appeal. We have also heard the learned Public Prosecutor Mr. D. Goswami on behalf of the State. 6. The appellant's conviction rests on circumstantial evidence, as can be gathered from the impugned judgment are (1) recovery of incriminating weapon dao at the instance of the accused and the discovery of the place where the dead body was buried. (2) An extra judicial confession allegedly made to PW 3 by the accused appellant. 7. The learned trial Judge has also made a liberal use of the statement made by the appellant under section 313 CrPC and finding fault with the same held the appellant guilty of the offence charged. There is absolutely no legal evidence to connect the recovered weapon with the alleged crime. So far as recovery of the weapon is concerned, it is nothing sort of farce. It was not at the instance of the accused. A mere reading of the FIR (Ext 1) shows that it was a fact well within the knowledge of the police and the Investigating Officer who proceeded to the spot on the basis of registration of a crime after receiving Ext 1. The IO has in his evidence admitted that he had posted a constable on guard duty on the preceding evening and it was next day that the dead body was recovered. He was also told by ASI Sushil that the dead body had been buried 'beneath the earth', a fact already known to the police or within its knowledge cannot be treated as a subject matter leading to discovery under section 27 of the Evidence Act. So far as M. Ext 1 is concerned it is surprising that the learned trial Judge instead of indicating for production of the report from the State Forensic Science Laboratory which is admissible in evidence, allowed oral evidence to be adduced and recorded about the context of a document. At any rate the oral evidence adduced cannot be and should not have been admitted in respect of a context of a document. The learned trial Judge was palpably wrong in adopting such procedure in serious cases like murder. At any rate the oral evidence adduced cannot be and should not have been admitted in respect of a context of a document. The learned trial Judge was palpably wrong in adopting such procedure in serious cases like murder. The other piece of evidence which has been relied on and acted upon by the learned trial Judge is extra judicial confession said to have been made by the accused to PW3. This witness had merely worked to gather with the accused. He is in no way related to them nor is it his claim that the accused confided and reposed faith in him to such an extent as to make a confession of having committed murder. On his own admission this witness admits and has also stated thus : ".. .I fear for police. I got frightened in the police station, police talked harshly. Police said that I shall have to be witness in the case. The statement that I have given false evidence as tutored by police is not true. It is not a fact that I did not go to the house of Motias after the occurrence. It is true that after the occurrence I gave false evidence in the police station..." It is true that extra judicial confession if proved to be true and voluntary can well form the basis of conviction. In the instant case PW 3 to whom the confession is said to have been made is a self condemned witness and no implicit reliance can be placed on his testimony and there is no conclusive evidence from any other independent source. Now coming to the use of the statement recorded under section 313, CrPC, the learned trial Judge has used the same as proved ignoring altogether the fact that he had pleaded not guilty to the charge. Hie appellant in his statement, as recorded under section 313, CrPC, stated thus : "Taking liquor Nikadin came and assaulted me. A quarrel took place. I gave a blow on his head with the spear in my hand. The night Was dark. He went away. Later on he died. Digging a pit I buried him near my house. I did not inform the villagers. Later on they came to know. Accused Johan Kashyap did not assault him. After his (Nikadin's) death I asked him to help me burying Nikadin Kashyap. He helped me. The night Was dark. He went away. Later on he died. Digging a pit I buried him near my house. I did not inform the villagers. Later on they came to know. Accused Johan Kashyap did not assault him. After his (Nikadin's) death I asked him to help me burying Nikadin Kashyap. He helped me. Johan Kashyap stays with me but his is separate eating arrangement" When asked this witness further stated thus : "I may be excused. Late Nikadin had given me two strokes with the blunt side of the dao. I did not sustain injury. I may be excused." However liberally taken and treated this statement cannot be substituted for evidence to prove the charge levelled against the accused. The trial Court has very conveniently splitted up the statement to suit the prosecution case. It is contrary to the very object and purposes of recording statement of an acccused under section 313 CrPC. Sub-section (1) of that section provides for examining the accused with a view to enable him to explain any circumstances appearing in the evidence against him. This object of examination is totally frustrated when the statement itself is treated as substitution for evidence. It is contrary to all cannons of criminal jurisprudence, and it is nothing but travesty of justice when such statement is conveniently splitted up. The Supreme Court as far back in 1952 in the case of Palvinder Kaur vs. State of Punjab, reported in AIR 1952 SC 354 has unequivocally ruled that a confessional statement made by an accused is either to be accepted as a whole or rejected as a whole and the Court is not competent to accept only the inculpatory part while rejecting the exculpatory part as inherently incredible. It cannot be proved to be splitted up as has been done in the instant case. The learned Judge while rejecting that part of the statement in the commission of the crime what emerges is that there is no legal reliable evidence on record. The law governing the circumstantial evidence has by now been settled by the Supreme Court in several judgments and to cite one of them in the case of Sharad Birdhichand Sarda vs. State of Maharashtra reported in AIR 1984 SC 1622 * The approach of the learned trial Judge in dealing the law relating to circumstantial evidence to say the least is superflous. The learned Amicus Curiae appearing for the appellant has also criticised the perfunctory nature of investigation. The Investigating Officer at every step of investigation faulted which is far from being fair. Apart from this in order to bring home a charge under section 201, IPC, the prosecution must prove : (1) That an offence has been committed. (2) That the accused knew or had reason to believe the commission of such an offence. (3) That with such knowledge or belief he (a) caused any evidence of the commission of that offence to disappear, or (b) gave any information relating to that offence which he then knew or believe to be false. (4) That he did so as aforesaid with the intention of screening the offender from legal punishment. (5) If the charge be of an aggravated form, it must be further proved that the offence in respect of which the accused did as in (3) an (4) supra, was punishable with death or imprisonment for life or imprisonment extending to ten years. None of these ingredients has even been admitted to be established by the prosecution and the whole procedure was based on conjectures and surmises. It is also seen in the instant case that the accused appellant was provided with legal assistance, but his service were not available to the accused on 5.2.92. A counsel was appointed at the State expenses to defend the accused. Providing a defence counsel at the nick of time, without affording any opportunity whatsoever to prepare the case, is nothing but a lift of service to the cause of legal aid. In a murder trial an accused is entitled to defence counsel at State expenses. The trial Court is quite unmindful of this constitutional mandate which has caused prejudice to the accused in his defence. Whenever a defence counsel at State expenses is required to be appointed or provided it is the duty of the Court to see that sufficient time is granted to such counsel so appointed so as to enable them to prepare for the case and to render effective services. It is not an empty formality to be performed during trial. 8. In view of the foregoing discussion, the conviction and sentence as recorded by the trial Court is liable to be set aside, it is accordingly set aside. The appeal stands allowed. The accused appellant best at liberty forthwith. 9. It is not an empty formality to be performed during trial. 8. In view of the foregoing discussion, the conviction and sentence as recorded by the trial Court is liable to be set aside, it is accordingly set aside. The appeal stands allowed. The accused appellant best at liberty forthwith. 9. Before parting with this finding we would like to put on record our appreciation for valuable assistance rendered by the learned Amicus Curiae and he shall be entitled to his remuneration as admissible under the rules.