JUDGMENT Nure Alam Chowdhury, J.: This appeal on behalf of the condemned prisoner Pranab Chakraborty @ Patak from jail is directed against the judgement and order dated 19.11.98 passed by a ld. Additional District and Sessions Judge, 4th Court, at Barasat, District-North 24 Parganas in Sessions Trial No. 2(4) of 97 (Sessions case No. 1(4)' 93) convicting the appellant under section 302 of the Indian Penal Code for committing murder of his father and sentencing him to "HANG To DEATH". Ld. Trial Judge also submitted reference under section 374 of the Code of Criminal Procedure to the Hon'ble High Court for confirmation of the sentence of death awarded to the appellant which has been registered as Death Reference No.6 of 1998. 2. A Division Bench of this court by order dated 11.1.99 directed to appoint a Govt. Panel Advocate for the appellant since it was an appeal from jail and the appeal registered as Criminal Appeal No. 363 of 1998 was directed to be heard along with the aforesaid Death Reference No.6 of 1998. Accordingly both the aforesaid appeal and the reference are heard together and Mr. Barindra Nath Roy ld. Govt. Panel Advocate was engaged on behalf of the appellant who appeared before this court at the hearing of the appeal and the reference. 3. Prosecution case, in brief is that the victim Sudhendu Chakraborty @ Dilip Chakraborty was a resident of village-Bhatsala within Habra P.S. in the district of North 24 Parganas. He was a school teacher of Devi Nagar Gouranga Vidyapith and his wife Juthika Chakraborty (P.W.7) was also a teacher of Kalyan Garh Uttarpara Binapani Primary School. Accused Pranab Chakraborty @ Potak is the eldest son of the victim Sudhendu @ Dilip Chakraborty. The victim had another son named Mrinmoy Chakraborty who was not present in the house at the time of occurrence and he has not been examined in this case. The only daughter of the victim Karabi Chakraborty (P.W.2) lodged the written complaint relating to the occurrence scribed by one Paritosh Karmakar (P.W.14) relating to the occurrence which was treated as F.I.R. in which it was alleged that her first elder brother Pranab Chakraborty, the appellant, was unemployed and he used to stay at the residence of her mother's sister Smt. Jyotsna Das at 5, Lara Bagan Road, Calcutta6, about three years ago and used to work at Calcutta. At that time the appellant fell in love with a woman named Parbati Chakraborty (P.W.8) who used to reside just beside her mother's sister's house. It was also stated that some time in the month of March, 1998, the appellant, in presence of her parents, proposed to marry that woman and the parents of the appellant being agreed, Parbati (P.W.8) was married to the appellant. However some time after the marriage the appellant and his wife used to have frequent quarrels and the complainant could understand from their quarrels that the appellant used to suspect his wife Parbati (P.W.8) having illicit relationship with the appellant's father, the victim. However a male child was born to them. It was further stated that the appellant and his wife Parbati came to their house (the house of the victim) along with their son. The house is a pucca two storeyed construction with two bedrooms downstairs and one bedroom upstairs. The appellant, his wife Parbati and the complainant lived in one of the bed rooms downstairs and the appellant's brother Mrinmoy lived in the other room and the victim and his wife lived in the bedroom upstairs. On 11.6.90 at about 2.30 P.M. the victim fell asleep on the bed of Mrinmoy after taking his lunch and the appellant's mother went to the house next to their house. Appellant's wife was having her meal consisting of rice and the complainant had been lying on the bed of the appellant. Suddenly the complainant awoke from her sleep on hearing her father's shout in her younger brother's room and found the appellant quickly fleeing out with a bill-hook (Da) stained with blood as also blood on his person from the room of his younger brother. The complaint shouted and on entering the room, found many injuries on her father's throat and blood was oozing out and the complainant's father (the victim) was lying on his right side. The complainant shouted and at her shouting, wife of the appellant (P.W.7), Sudhir Pal, a neighbour (P.W.9) and Liton (P.W.10) and many other people of the locality came to their house and saw the occurrence. It was also stated in the F.I.R. that the appellant murdered his father for his suspicion of his wife of her illicit relationship with the appellant's father. 4. It was also stated in the F.I.R. that the appellant murdered his father for his suspicion of his wife of her illicit relationship with the appellant's father. 4. That the written complaint of Karabi Chakraborty (P.W.2) scribed by one Paritosh Karmakar (P.W.14) was received at Habra P.S. on 11.6.90 at 20.05 hours which was treated as F.I.R. and recorded as Habra P.S. case No. 210 dt.16.1.90 under section 302 I.P.C. and the investigation of the case was entrusted to Sub-Inspector Ratneswar Debnath who, after completion of investigation, submitted charge sheet against the appellant under section 302 I.P.C. and ultimately the appellant was placed on trial before the aforesaid Id. Addl. Sessions Judge on the said charge and convicted and sentenced as above. 5. The prosecution examined 24 witnesses in support of the prosecution case but among them there was no eye-witness. Regarding the evidence of other witnesses P.W.1 stated in his evidence that he heard from the daughter and wife of Sudhendu Babu (the 'deceased) that he was killed by his eldest son Pranab Chakraborty (the appellant) P.W.2 is the daughter of the deceased. She lodged the written complaint treated as F.I.R. but she resiled from her statement contained in the F.I.R. and was declared hostile by the prosecution at the time of giving her evidence in court as she stated in her examination-inchief that she came back to their house at dawn and heard that her father had died. In cross-examination she stated that at the time of hearing the shouting of the appellant's wife, the appellant, his son and she herself were only present in their house. P.W.3 was a maid servant at the house of the deceased. She stated in her examination-in-chief that she found Sudhendu Chakraborty (deceased) going to sleep after meal at a room on the corner of the house and she entered into the bathroom for taking bath and before entering into bathroom she found Karabi Chakraborty (P.W.2) lying with the son of the appellant, in the bigger room. She stated in her examination-in-chief that she found Sudhendu Chakraborty (deceased) going to sleep after meal at a room on the corner of the house and she entered into the bathroom for taking bath and before entering into bathroom she found Karabi Chakraborty (P.W.2) lying with the son of the appellant, in the bigger room. She also stated that the appellant and his wife (P.W.7) were also present in the house while she entered into the bathroom and coming out from the bathroom she found Sudhendu Babu from the veranda that there was bleeding injury on the neck of Sudhendu Babu who was lying on a chowki which she found through window of that room and the appellant was not found in the house at that time. In cross-examination, she stated that the wife of Sudhendu Babu went to the house of the elder brother of her husband and on that date she prepared rice, and vegetable curry, which was taken by Sudhendu Babu before going to sleep. P.WA a school teacher who arrived at the house of the deceased after the occurrence stated in his examination-in-chief that he did not see the appellant at the place of occurrence and he saw the dead body of Sudhendu Babu lying on the bed in his room with bleeding injury on his neck and stains of blood on the eastern wall, floor, of that room as well as on his bed sheet and his pillow. In cross-examination he stated that he himself and Liton (P.W.10), at first, went to Habra P.S to report the incident of the murder, P.W.5 stated in his evidence that he was not present in his house on the date of occurrence. P.W.6 stated in her evidence that she did not see the dead body of the deceased. P.W.7 is the wife of the deceased and mother of the appellant and she stated in her examination-in-chief that the appellant murdered her husband. She also stated that prior to their meal her husband repeatedly asked the appellant to take meal but the appellant refused to comply and was lying on bed hiding his face on the pillow. P.W.7 is the wife of the deceased and mother of the appellant and she stated in her examination-in-chief that the appellant murdered her husband. She also stated that prior to their meal her husband repeatedly asked the appellant to take meal but the appellant refused to comply and was lying on bed hiding his face on the pillow. She also stated that on the previous Thursday, the appellant asked her at about 8 or 9.00 a.m. to remove doubt which appeared in his mind regarding illicit relationship of her husband with the wife of the appellant and she told the appellant in reply that her husband loved the wife of the appellant as his own daughter Karabi, P.W.8 is the wife of the appellant. She stated in her evidence that she had cordial conjugal relationship with her husband and her father-in-law (deceased) had affection for her like his daughter. She also stated that on the date of occurrence she was asked by her husband (appellant) to take meal in their kitchen and while she was taking her meal in the kitchen, she heard some sound of "AH, AH" and then she opened the door of her kitchen and found her husband (appellant) coming out from the room where her father-in-law (the deceased) was lying with stains of blood in his person and a "DA" in his hand and then she called others and her husband then left the place without saying anything. She further stated that she peeped into the room and found her father-in-law lying on a cot with pool of blood with cut injury in his throat but his head was not totally severed from his body. In cross-examination she stated that she heard the sound of cutting "cup, cup" and a sound "AH" of her father-in-law. She also stated that she saw her husband coming out form their bedroom at that time and she also saw her father-in-law lying in a pool of blood in their bed in their bedroom. She also stated that their big bedroom was on the ground floor adjacent to their kitchen and her bedroom was accessible through the said big room in the ground floor. She also stated that their big bedroom was on the ground floor adjacent to their kitchen and her bedroom was accessible through the said big room in the ground floor. She further stated that she had never any illicit relationship with her father-in-law and at the time of the alleged incident her husband had no job and he all along had doubts over their relation and so used to remain at their house all along. P.W.9 stated in his evidence that he did not know anything about the incident. P.W.10 stated in his evidence that he was not examined by the police. P.W.11 stated in her evidence that on the date of the incident the appellant took a "DA" from their house and the said "DA" belonged to them and she was able to identify that "DA". She identified the said "DA" in court (Mat. Ext. II). P.W.12 stated in his evidence that on the date of murder he found the appellant coming while he was standing in from of his house at about 3/3.30 P.M. and at that time the appellant told him that he had killed his father and hearing that he went to the appellant's house and found a huge crowd assembled there. P.W.13 was an assistant sub-inspector of police attached to Habra P.S. at that time and he received the written complaint of Karabi Chakraborty (P.W.2) daughter of the deceased which was handed over to him by constable Bankim Saha (P.W.21) and filled up the formal F.I.R. (Ext. 3). P.W.14 is the scribe of the written complaint. He stated in his evidence that he had talks with Karabi (P.W.2), daughter of the deceased who disclosed her intention to lodge complaint at local P.s. and so they brought her to Habra P.S. and as per her desire and dictation he wrote the written complaint and read over the contents therein to the said Karabi Chakraborty and thereafter Karabi put her signature thereon in his presence admitting the contents to be true and he also put his signature on the complaint as a writer. He also proved the said written complaint and stated that it was lodged at the P.S. at about 8/8.15 P.M. P.W. 15 stated in her evidence that he heard from others that the appellant killed his father. He also proved the said written complaint and stated that it was lodged at the P.S. at about 8/8.15 P.M. P.W. 15 stated in her evidence that he heard from others that the appellant killed his father. P.W.16 stated in his evidence that he was not examined by I.O. P.W.17 stated in his evidence that in his presence as well as in presence of others the appellant pointed out the "DA" with which the appellant made the assault, to the police who recovered that from the side of one high drain and after recovery of the "DA" the appellant told in his presence that he killed his father with that "DA" and the police seized that "DA" by preparing a seizure list in carbon process and he put his signature in the seizure list. He also proved his signature in the carbon copy of the seizure list (marked Ext. 6). He also proved other material Exhibits such as the taktaposh on which the victim was lying, the blood stained pillow, blood stained bed sheet, the wearing apparel of the appellant. P.W.18 stated in his evidence that one day he was standing a Kachuamore with his wife with a view to getting on a bus at about 3/3. 30 P.M. and at that time the appellant came to him with bare body and only a lungi as his wearing apparel and told him that he had killed his father and would go to P.S. to surrender. P.W. 19 was the autopsy surgeon who conducted the "post mortem examination on the dead body of the deceased Sudhendu identified by the constable (P.W.21) on 12.6.90 at about 4.00 P.M. and he found the injury in the person of the victim as multiple incised looking injury at the level of 2nd and 3rd cervical vertebra in oblique manner from the back side of neck upto front of trachea and esophagus (about 4 times attempt on the same injury) and injured all structures thereby. He also stated that as a result of such injury, the neck of the victim was almost severed and in his opinion death was due to shock and haemorrhage due to above injuries which was ante-mortem and homicidal in nature and such type of injury might be caused by the "DA" (Mat.Ext. II) as shown to him. He also stated that as a result of such injury, the neck of the victim was almost severed and in his opinion death was due to shock and haemorrhage due to above injuries which was ante-mortem and homicidal in nature and such type of injury might be caused by the "DA" (Mat.Ext. II) as shown to him. He further stated that the original P.M. Report as prepared by him was sent to S.P. Barasat and he proved the second copy of P.M. Report which was prepared and signed by him with official seal (Marked Ext. C, objected to). In cross-examination he stated that rigor mortis indicated that death might be caused at 8.00 or 9.00 of 11.6.90 and the injury mentioned above might also be caused by any sharp cutting weapon like henso, sword etc. and except the neck he did not notice any fracture or dislocation of bone in the body of the victim and the aforesaid injury was caused by repeated strike on the same place of the neck which were counted as four by him on the basis of laccration of the skin, bone, muscle and the above injury could not be suicidal. P.W.20 supplied food to the accused persons at Habra P.S. and a witness to the seizure of the lungi from the person of the appellant at the P.s. P.W.21, a police constable brought the dead body to the hospital and identified the dead body to the autopsy surgeon. P.W.22 a resident of Kalyangarh stated in his evidence that one day, long ago at about 3.00 P.M. he gave lift to the appellant on his bicycle on the request of the appellant on his way from Bhatsala More to No.2 scheme. P.W.23, another police constable carried some sealed packets from Habra P.S. to F.S.L. P.W.24 is the Investigating Officer. He stated in his examination-in-chief that A.S.I. Kanai Chakraborty at first communicated to him at the place of his duty about the murder committed at the house of Dilip Chakraborty (victim) at Kalyangarh which was received from an unknown person over phone on the basis of which Habra P.S. G.D. Entry No. 520 dated 11.6.90 was lodged at 15.15 hrs. (Marked Ext. II) and went to the place of occurrence at 15.45 hrs. (Marked Ext. II) and went to the place of occurrence at 15.45 hrs. He also stated that on arrival at the P.O. he found huge gathering at the house of Dilip Chakraborty and entered into his house and found his dead body with bleeding injury, on a bed and there Karabi Chakraborty (P.W.2) stated before him that her father was murdered by her elder brother Pranab Chakraborty @ Potak on that date at about 14.30 hrs. by a "DA" cutting the throat of her father who was then sleeping and she also identified the dead body of her father Dilip Chakraborty and then he requested her to submit a written complaint stating all facts. He also prepared the investigation report over the dead body lying on a bed on the eastern side ground floor room of the house in presence of the witnesses and in the mean time be received the written complaint from Karabi Chakraborty (P.W.2), perused the same, endorsed receipt of that complaint and sent the written complaint through constable (P.W.21) to Habra P.S. for starting a case under section 302 I.P.C. and also sent the dead body of Dilip Chakraborty through that constable to the P.S. with necessary challan as no dead body could be received at hospital after sunset. He also stated that at the P.O. he received R.T. message with information that the P.S. case had been started asking him to investigate the case an accordingly he started investigation of the case, took description of the place of occurrence. Prepared sketch map of the P.O. with index, prepared seizure list in respect of a taktapas, and other blood stained articles etc., examined the witnesses and also arrested the appellant being identified by his source. He also stated that he arrested the appellant, examined him and recorded his statement and the appellant confessed before him and the other witnesses that he murdered his father and was able to recover the instrument by which he killed his father. He further stated that the appellant then led them to Bhatsala crossing and pointed out the place where he kept the instrument of assault and the instrument was recovered, and at the identification of the appellant in presence of local people, he seized the same by preparing a seizure list. He further stated that the appellant then led them to Bhatsala crossing and pointed out the place where he kept the instrument of assault and the instrument was recovered, and at the identification of the appellant in presence of local people, he seized the same by preparing a seizure list. The instrument was a "DA" with wooden handle and it was sent for F.S.L. He also seized the wearing blood-stained lungi of the appellant and on the next day he prayed for recording the statement of the appellant under section 164 Cr. P.C. before the ld. S.D.J.M. Barasat. However, later on, he declined to confess when he was produced before the ld. S.D.J.M. for recording his statement under section 164 Cr. P.C. He collected the P.M. report of the victim, the report of the serologist from the Director, F.S.L. and after completion of investigation, submitted chargesheet against the appellant for committing offence punishable under section 302 I.P.C. In cross-examination he stated that at the time of his deposition he did not seen any lebel at the material exhibits. He also stated that at the time of his deposition he had not seen any lebel in the exhibited "DA" bearing his signature or signatures of any witness and before starting the P.S. case he prepared the investigation report of the dead body as in Ext. 4/1 and in the sketch map, there is no mention of the owner of the house but it bore only the relevant case number and the P.O. is identified as room No. "A" in the sketch map and in his C.D. it was noted that the said room on the ground floor of the premises belonged to Mrinmoy Chakraborty. He further stated that he did not take any photograph of the room in which the said Dilip Chakrabory was murdered. 6. We have heard the ld. Advocate on behalf of the appellant who submitted that there is no eye-witness to the occurrence and as such the prosecution case stands only on circumstantial evidence and the chain of circumstances as proved by the evidence of the prosecution in this case is not complete so as to point out that the appellant is the only person who committed the murder of his father in all probability. He further submitted that the contradictions and inconsistencies in the evidence of the prosecution witnesses rater have established of benefit of doubt in favour of the appellant. It is further contended that the ld. Trial Judge failed to consider that the alleged place of occurrence had not been proved in the sketch map in view of the evidence of P.W.7, wife of the victim, that the murder was committed not at the ancestral house of her husband but at the house which is adjacent to their ancestral house, clearly proves that the occurrence did not take place in the house of the victim as sought to be proved on behalf of the prosecution. It is also contended that the P.M. report of P.W. 19 the autopsy surgeon cannot be accepted as he admitted in cross-examination that he had not used any magnifying lens at the time of observing the injury and he had not noted any starting point of the aforesaid injury i.e. from left to right or right to left except from back and he was also unable to say whether such type of injury was inflicted upon the victim while he was standing or sitting and the shape of the injury of the victim was not noted in the P.M. report. It is further contended that as the blood group in the seized blood stained article could not be ascertained by the serologist it cannot be concluded definitely that the appellant committed the murder of his father. It is further contended that the absence of any food in the stomach of the victim as found on the P.M. report clearly disproves the prosecution case that the victim was murdered after taking his meal at about 2.30 P.M. It is further contended that the alleged recovery of the "DA" was doubtful and the alleged extrajudicial confession of the appellant being a very weak place of evidence should not be relied upon for conviction of the appellant and the ld. Trial Judge erred in relying on the evidence of P.W.8, the wife of the appellant as she had not seen the appellant to cut the throat of her father-in-law but on her evidence the conviction of the appellant is mainly based. Trial Judge erred in relying on the evidence of P.W.8, the wife of the appellant as she had not seen the appellant to cut the throat of her father-in-law but on her evidence the conviction of the appellant is mainly based. It is further submitted that on the totality of the evidence on record the prosecution miserably failed to prove the charge against the appellant beyond reasonable doubt and as such the appeal should be allowed and the conviction and sentence of the appellant should be set aside and the appellant should be acquitted in the interest of justice. 7. Ld. Advocate appearing on behalf of the State however supported the judgement of the trial court and further contended that the ld. Trial Judge has considered and exhaustively dealt with all the evidence and materials on record including the conduct of the appellant, the role of the appellant in course of occurrence, disappearance of the appellant immediately after the occurrence, his extrajudicial confession within a few hours of occurrence, discovery of the weapon used in the murder at the instance of the appellant as well as the testimony of the appellant's mother, sister, wife and the maid servant and the totality of the evidence prove the charge against the appellant beyond any reasonable doubt. He further contended that this is a case of patricide and the brutality of the murder brings it in the category of rarest of rare cases and as such the appeal is liable to be dismissed and the conviction and sentence of the appellant should be affirmed and the reference should be accepted in the interest of justice. 8. We have carefully considered all the evidence and materials on record as well as the respective submissions on behalf of the appellant as well as on behalf of the State. We have also carefully perused and considered the judgement of the trial court and we do not find any justifiable reason to differ with the findings or conviction by the ld. Trial Judge. However, we do not think it a case of rarest of rare cases in view of the facts and circumstances of the case and accordingly we uphold and affirm the conviction of the appellant under section 302 I.P.C. but commute the sentence of "Death by hanging" to "Imprisonment for life". Trial Judge. However, we do not think it a case of rarest of rare cases in view of the facts and circumstances of the case and accordingly we uphold and affirm the conviction of the appellant under section 302 I.P.C. but commute the sentence of "Death by hanging" to "Imprisonment for life". In the result, the appeal is allowed in part and the sentence of the appellant passed by the ld. Trial Judge is commuted to imprisonment for life and the Death Reference No.6 of 1998 is rejected. Let a copy of the judgement and order be sent down to the appellant in jail forthwith. Joytosh Benerjee, J. I agree. Appeal allowed in part. Death Reference rejected.