SANKAR PRASAD MITRA, J. ( 1 ) THIS criminal appeal is directed against the judgment dated 12th January, 2001 passed by the Additional Sessions Judge, 3rd Court, at midnapore in Sessions Trial Case No. 33/august, 99, arising out of Gopiballavpur p. S. Case No. 20/91 dated 22nd June, 1991, whereby the appellant was convicted and sentenced under Section 302 of I. P. C. to suffer rigorous imprisonment for life and also to pay fine of Rs. 1000/-, in default to rigorous imprisonment for one year more. ( 2 ) BEING aggrieved by the said order of conviction and sentence the appellant has preferred this appeal. ( 3 ) THE crux of the prosecution case is that on 22nd June, 1991 at about 2 p. m. i. e. 02. 00 hrs. Golapi Tudu, wife of accused Motilal Tudu came to the house of the de facto-complainant Budarai Besra and reported that in the night the accused murdered his father Kailu Tudu with an axe and, in the meantime, the accused Motilal Tudu came to him and told that there was a quarrel between his father and his wife over taking of meal and his father drove out his wife and children from the house and being aggrieved he assaulted his father with an axe and as a result he died. Hearing the incident from them the de facto-complainant, P. W. 1 ,budarai Besra called Babulal Murmu, P. W. 6, Bidar Murmu, p. W. 8, Sanatan Murmu, P. W. 9 and others and informed them about the incident. Thereafter, they all went to the house of Kuber Chandra Ghosh, P. W. 2 a member of the Panchayat and informed him about the incident and also went to the house of Motilal Tudu/accused and found the dead body of Kailu Tudu lying in bleeding condition. There the accused also disclosed that his father picked up quarrel with him and as such he murdered him with an axe. The written complaint (Exhibit-1) lodged by P. W. 1 was scribed by Purna Besra not examined in the case. On the basis of the written complainant P. W. 14 filled in formal F. I. R. and started Gopiballavpurr S. Case No. 20/91 dated 22nd June, 1991 under Section 302 of I. PC. vide (Exhibit-6 ). The written complaint (Exhibit-1) lodged by P. W. 1 was scribed by Purna Besra not examined in the case. On the basis of the written complainant P. W. 14 filled in formal F. I. R. and started Gopiballavpurr S. Case No. 20/91 dated 22nd June, 1991 under Section 302 of I. PC. vide (Exhibit-6 ). P. W. 14, S. I. Kanji Murmu, took up the investigation of the case and he proceeded to the place of occurrence and after reaching there he held inquest on the dead body of the victim and prepared inquest report (Exhibit- 2 series) in presence of the accused and witnesses, P. W. 1, p. W. 2, P. W. 6 and P. W. 7, Sukhlal Murmu. Gopiballavpur U. D. Case No. C/91 dated 22nd June, 1991 was also started by P. W. 14. The I. O. also arrested the accused and seized articles from the house of the victim at Barsole on 22nd june,1991undera seizure list, vide (Exhibit-3) series in presence of witnesses, p. W. 4 Buddaswar Mandi, P. W. 6 and P. W. 7. The I. O. seized the following articles; one blood stained dhoti, one green bordered blood stained dhoti, one wooden rope cot with broken arms, one wooden pira having blood stained, blood stained controlled earth and one napkin from the person of the victim. The I. O. also prepared sketch map with index of the P. O. vide Exhibit 'f' and, also seized one axe with blood stained handle as produced by the accused from the heaps of the straw vide Exhibit-8 in presence of witnesses P. W. 1 and p. W. . 2. The dead body of the victim was sent by P. W. 14, through P. W. 12, samar Bag, Constable No. 1683 to Jhargram Morg for P. M. examination and the P. M. examination of the dead body of the victim was held by P. W. 11, Dr. N. C. Ghosh and the body was identified by P. W. 12. P. W. 14 also sent seized articles to F. S. L. , Kolkata, for examination and report and thereafter, on being transferred he made over charge of the case to O. C, of the said PS. on 7th may, 1992. Subsequently, P. W. 13, S. I,, B. K. Marik after collecting F. S. L. report vide (Exhibit-5) submitted charge-sheet against the accused under Section 302 of I. PC. on 7th may, 1992. Subsequently, P. W. 13, S. I,, B. K. Marik after collecting F. S. L. report vide (Exhibit-5) submitted charge-sheet against the accused under Section 302 of I. PC. ( 4 ) IN this case the prosecution had examined 14 witnesses, of them p. W. 5 and P. W. 10 were tender only. In addition to this, P. W. 2 Kuber Chandra ghosh and P. W. 3, Golapi Tudu had been declared hostile by the prosecution. ( 5 ) THE accused has been charged under Section 302 of I. P. C. and in answer to the charge the accused pleaded not guilty. The defence of the accused as appearing from the cross-examination witnesses, his examination under section 13 of Cr. P. C. and D. Ws. is that he neither confessed the guilty before any body nor he produced the offending weapon before any body, nor he picked up quarrel with his father. On the contrary on the dale of the incidetit he was not at home because he went to the house of a relative with his family. Another defence of the accused/appellant is that the victim was murdered elsewhere and his dead body was dumped in their house. The accused has ultimately pleaded his innocence in the matter. ( 6 ) THE learned trial Court while arriving at a conclusion as to the guilt of the accused/appellant disbelieved the defence set up by the accused and heavily relied upon the 'extra judicial confession' allegedly made by the accused, and in doing so, the learned trial Court ignored the F. S. L. report in respect of an axe allegedly recovered by P. W. 14. We are therefore to consider whether the order of conviction and sentence passed by the learned Additional Sessions judge, 3rd Court, Midnapore can be sustained nor not? ( 7 ) LEARNED Advocate, Mr. R. B. Mahato, appearing on behalf of the appellant at the very out set submitted before us that the investigation of the case conducted by P. W. 14 has been vitiated because he was not empowered to investigate the case by the concerned O. C. He, therefore, submitted that in the circumstances, the order of conviction and sentence passed against the appellant should be set aside by this Court. On the other hand the learned prosecutor, Mr. On the other hand the learned prosecutor, Mr. Ashim Roy, appearing on behalf of the State submitted that when charge-sheet has been submitted, F. I. R. has the limited use, so it is totally inconsequential whether the O. C. had actually endorsed the f. I. R. to be investigated by the I. O, or not. It is therefore submitted by him that the Investigation held in this case does not suffer from any legal defect and as such, the contention of the learned Advocate for the appellant should not be accepted by this Court. We have gone through the record of this case and it appears that P. W. 13, S. I. , B. K. Marik submitted the charge-sheet in this case and the actual investigation was held by P. W. 14 Kanjl Murmu who took up investigation of the case in absence of O. C. But, the fact remains that P. W. 13 submitted charge-sheet as O. C. Gopiballavpur P. S. which, in fact, ratified the investigation held by P. W. 14. In the circumstances we are not inclined to accept the contention of the learned Advocate for the appellant. ( 8 ) IT is submitted by Mr. Mahato that the conviction of the appellant was based upon the extra judicial confession made by the accused before P. W. 1 who subsequently informed the incident to P. W. 2, P. W. 6, P. W. 8 and P. W. 9. It is submitted by Mr. Mahato that an extra-judicial confession in the context of defence taken by the accused that he was not present in the house on the fateful day is a weak type of evidence, as a matter of fact such contention of the prosecution requires internal corroboration. It is pointed out by him that credential of witnesses, reproduction of exact words, reason or motive for confession and selection of person in whom confidence reposed is necessary for acceptance of extra-judicial confession. Mr. Mahato drawing our attention to the deposition of P. W. 1, P. W. 2, P. W. 6, P. W. 8 and P. W. 9 submitted that as regards time of making extra-judicial confession disclosed in the F. I. R. (Exhibit-l) P. W. 1 in his evidence has disclosed different time. Mr. Mahato drawing our attention to the deposition of P. W. 1, P. W. 2, P. W. 6, P. W. 8 and P. W. 9 submitted that as regards time of making extra-judicial confession disclosed in the F. I. R. (Exhibit-l) P. W. 1 in his evidence has disclosed different time. That apart the evidence of P. W. 1 discloses that the accused had property dispute with P. W. 9, moreover, there was existence of political rivalry among P. W. 1, P. W. 2 and P. W. 8. It transpires from the evidence of P. W. 6 that the accused was pressurised to confess his guilt. It is therefore submitted by the learned Advocate, Mr. Mahato that it was impossible on the part of the accused to make extra-judicial confession before persons with whom he had inimical relationship. According to him where such confession is surrounded by suspicious circumstances its credibility becomes doubtful and it loses its importance. He therefore, submitted that in the circumstances no reliance should be placed upon the extra-judicial confession as alleged by the prosecution in the context of defence taken by the accused. Learned Prosecutor, Mr. Roy appearing for the State supporting the contention of learned Advocate for the appellant submitted that absence of explanation on the part of the prosecution with regard to the credential of witnesses, reproduction of exact words, reason or motive for confession and selection of person with whom confidence reposed necessary for extra-judicial confession, no reliance should be placed upon extra-judicial confession in the context of defence taken by the accused. ( 9 ) IT is evidently clear that P. W. 1 while lodging F. I. R. stated that the incident of killing of Kailu Tudu was heard by him on 22nd June, 1991 at about 2 p. m. but in his deposition he stated that he received the information both from golapi Tudu P. W. 3 and the accused at 11. 00 hrs. in the night. Therefore, his statement contradicts the time when the alleged extra-judicial confession was made. That apart his evidence disclosed that the accused had property dispute with P. W. 9 and the accused belong to different political group and there was political rivalry with the accused, P. W. 2, P. W. 8 and himself. 00 hrs. in the night. Therefore, his statement contradicts the time when the alleged extra-judicial confession was made. That apart his evidence disclosed that the accused had property dispute with P. W. 9 and the accused belong to different political group and there was political rivalry with the accused, P. W. 2, P. W. 8 and himself. P. W. 6 has disclosed in his evidence that the accused was pressurised to confess the guilt, therefore, it cannot be said in the absence of explanation from the prosecution that the witnesses are not inimical to the accused and he was not pressurised to make confess the guilt in the context of defence taken by the accused that he was away from home on the fateful night with his family. ( 10 ) IT is submitted by learned Advocate, Mr. Mahato that Golapi Tudu. P. W. 3 has denied in her evidence that she made any statement under Section 164 of Cr. P. C. before the Magistrate stating that her husband (accused) killed the victim. The statement as cited before the learned Judge (Exhibit-9) was not proved by any witness and, therefore, it should not consider by the learned trial judge. It is further submitted by him that Golapi along with the accused and children on the fateful day of the incident went to the house of her father where her sister Durgi Murmu (D. W. 1) resided with her husband and children and on hearing the news of death of her father-in-law they started for their house on the next day at 8 a. m. It is admittedly clear that the distance between gopiballavpur PS. and P. O. is about 20 kms. And D. W. 1 has stated in her evidence that it takes 2 hrs. to reach the village Barsole from Pandisol. This statement of D. W. 1 gets support from D. W. 2, Mina Kisku a resident of Barsole and a neighbour of the accused. It is pointed out by Mr. Mahato that D. W. 2 reached the P. O. between 7 to 7. 30 a. m. subsequently, the accused with his wife and children came there at about 10a. m. and the I. O. P. W. 14 arrested the accused at 9. 45 a. m. on 22nd June, 1991. Mr. It is pointed out by Mr. Mahato that D. W. 2 reached the P. O. between 7 to 7. 30 a. m. subsequently, the accused with his wife and children came there at about 10a. m. and the I. O. P. W. 14 arrested the accused at 9. 45 a. m. on 22nd June, 1991. Mr. Mahato, therefore, submitted that the absence of the accused along with the family members from their house on the fateful day has been well-explained and it should be accepted which mars the prosecution story about extra-judicial confession made by the accused. It is therefore submitted by Mr. Mahato that the offending weapon recovered should not be treated as discovery of weapon on the basis of the statement made by the accused. That apart the said weapon which was examined by f. S. L does not contain any blood stain vide (Exhibit-5 ). It is also pointed by him that the said axe vide (Exhibit-1) was not produced before P. W. 11, who held p. M. examination of the victim on 23rd June, 1991. There Is no explanation from the I. O. P. W. 14 as to why he could not produce the same when he seized (Exhibit-1) on the previous day i. e. on 22nd June, 1991 vide (Exhibit-8 ). Mr. Mahato summing upon the defence case submitted that the accused did not make extra-judicial confession before any body nor he was present in his village with his family members on the fateful day, nor he showed recovery of axe from his house and, therefore, considering the facts and circumstances of this case it should be held by this Court that the offence was not committed by the appellant. Mr. Mahato, therefore, submitted in the circumstances the order of conviction and sentence imposed upon the appellant should be set aside by this Court. ( 11 ) MR. Ashim Roy, learned Advocate appearing on behalf of the State supporting the arguments of Mr. Mahato submitted that in absence of proof the statement of Golapi Tudu made under Section 164 Cr. P. C. before the Magistrate should not be used in evidence under any circumstances. ( 11 ) MR. Ashim Roy, learned Advocate appearing on behalf of the State supporting the arguments of Mr. Mahato submitted that in absence of proof the statement of Golapi Tudu made under Section 164 Cr. P. C. before the Magistrate should not be used in evidence under any circumstances. He therefore, submitted that seizure of axe vide Exhibit-8 by P. W. 14 in presejice of P. W. 1 and P. W. 2 should not be accepted by this Court as discovery of facts because there is no evidence that the accused showed the place wherefrom the offending weapon was discovered. It is not explained by P. W. 14 who seized this axe vide Exhibit- 8 on 22nd June, 1991 why he could not produce the same before p. W. 11 on 23rd June, 1991 when P. M. was held by the doctor. That apart f. S. L. report (Exhibit-5) in respect of Exhibit-1 shows that there was no blood stain, so under these circumstances it cannot be said that any offending weapon was recovered on the basis of the statement made by the accused and the same was used for the purpose of committing crime. Mr. Roy further submitted that in this context the defence taken by the accused to the effect that he along with his family members were away from the village on the fateful day should be accepted by this Court and the learned Court should pass necessary order as it deem fit and proper. ( 12 ) WE have considered the submissions made by the learned Counsel of both sides and the evidence-on-record as pointed out by them. It is evidently clear that (Exhibit-1), axe was not discovered on the basis of the statement made by the accused. That apart, P. W. 1 and P. W. 2 who witnessed the seizure did not say anything about the facts leading to discovery of offending weapon, so also is the evidence of P. W. 14. In addition, P. W. 1 and P. W. 2 never tried to prove their signature in the seizure list vide (Exhibit-8 ). F. S. L. report vide Exhibit-5 shows that the axe (Exhibit-1) contains no blood. Therefore, the total effect of evidence simply shows that only one axe was seized and nothing else and we cannot say that this axe was used for killing the victim, Kailu Tudu. F. S. L. report vide Exhibit-5 shows that the axe (Exhibit-1) contains no blood. Therefore, the total effect of evidence simply shows that only one axe was seized and nothing else and we cannot say that this axe was used for killing the victim, Kailu Tudu. In this context we may take into account the defence version which shows that the accused along with his family members were away from the village on the fateful day as they visited the house of D. W. 1 at Pandisol which was situated at a distance of 2 hrs. journey from their village at Barsol. The evidence of D. W. 1 and the defence taken by the accused revealed through Golapi Tudu, P. W. 3 and his statement under Section 313 of Cr. P. C. also find support from D. W. 2, Mina kisku who is a resident and co-villagers of the accused. It transpires from their evidence that after getting the news of death of Kailu Tudu, the accused along with his family members started for their village at 8 a. m. and they reached the village at about 10a. m. and P. W. 14 arrested the accused on 22nd June, 1991 i. e. the next day of the incident at 9. 45 a. m. ( 13 ) THEREFORE, considering the defence taken by the accused, evidence adduced by the prosecution witnesses and attending circumstances of the case we find that the defence set up by the accused is acceptable and reliable. Therefore, we are not inclined to accept the prosecution case that the accused was in the village on the fateful day and he killed his father with an axe. The decision arrived at by the trial Court with regard to the guilt of the accused cannot be accepted by us because the prosecution has failed to prove beyond any reasonable doubt that the accused killed his father. That being the position we find that there is merit in the appeal and it should be allowed by this Court. Accordingly, we find that the accused/appellant is not guilty under Section 302 of I. P. C. Therefore, the appeal is allowed. The order of conviction and sentence imposed upon the appellant under Section 302 of I. P. C. are hereby set aside. The appellant be acquitted. He be released at once.