JUDGMENT P.K. Musahary, J. 1. Heard Mr. K. Ete, learned Counsel appearing for the Appellant, and Mr. N. Lowang, learned Public Prosecutor for the Respondents. 2. One Balensious Ekka is the accused person in Mahadevpur P.S. Case No. 16/94 under Section 302of I.P.C. Charges being framed against him and tried, he was convicted under Section 304 Part-I of I.P.C. and sentenced to Rigorous Imprisonment for 7 years with a fine of Rs. 1,000/- (Rupees One Thousand only) and in default of payment of fine, he shall undergo further terms of 2 months Rigorous Imprisonment, vide judgment and order dated 19.04.2006 passed by the Addl. District & Sessions Judge, FTC, E/Zone, Namsai, in Sessions Case No. 02/94. The present appeal is preferred against the aforesaid judgment and order, not by him, but by his father Sri Julius Ekka. This is rather unusual but for the ends of justice, the appeal was admitted and thus, we are hearing the matter. 3. The prosecution story is unfurled from the FIR lodged by one Sri Ramesh Pathar, who informed the Officer-in-Charge, Mahadevpur Police Station that one Sri Balensious Ekka murdered Sushil Ekka in his residence on 14.06.1994 at around 6 a.m. early morning and after the murder, the accused fled away and the dead body was lying at the spot. On receipt of the written FIR, a crime was registered against the accused person as stated earlier. The first Investigating Officer visited the place of occurrence, prepared a rough sketch map of the place of occurrence, held an inquest over the dead body and also examined some of the witnesses including the informant. During investigation, the Investigating Officer also seized the incriminating weapon (a dao) and also forwarded the dead body of deceased Sushil Ekka to Namsai CHC for post-mortem examination. The second Investigating Officer submitted the charge-sheet against accused Sri Balensious Ekka under Section 302 I.P.C. The case was committed on 05.12.1994 to Deputy Commissioner-cum-District & Sessions Judge, Tezu, Lohit District, for trial. The charge was framed, read over and explained to the accused, to which he pleaded not guilty and claimed to be tried. 4. The prosecution examined in all 9 (nine) witnesses including the Appellant i.e. father of the accused person. The defence examined none. The Appellant Julius Ekka was examined as P.W.-1. He deposed that both the accused person and the deceased were his sons. 4. The prosecution examined in all 9 (nine) witnesses including the Appellant i.e. father of the accused person. The defence examined none. The Appellant Julius Ekka was examined as P.W.-1. He deposed that both the accused person and the deceased were his sons. He further deposed that his deceased son Sushil Ekka slept in the house of one Smt. Sushila Munda on the day of the occurrence, which situates at a distance of half a kilometer from his house. He did not see who killed his deceased son. Having come to know about the incident he visited the place of occurrence and saw the dead body with cut injury on the throat and by that time, his son already died. He further deposed that he informed the Gaon Burah to intimate the police. P.W.-3, Miss Binata Ekka; P.W.-4, Tatshila Ekka and P.W.-6, Alwis Ekka; are sister/brothers. of the deceased and the accused person. They have not seen the occurrence and they are not the eyewitnesses. They visited the place of occurrence, saw the dead body and could see cut injury on the neck. P.W.-2 Soma Munda is a co-villager who deposed that he did not see the incident but he saw the dead body. The police obtained his signatures on some papers. P.W.-5, Sri Nikudin Munda, belongs to the same village and the accused was the son of his maternal uncle. He deposed that he was in the house of his sister at Dumsa village at the time of the incident and he came to his village 2 days after the incident. He further deposed that the accused came to Bordumsa and told that Sushil Ekka had been killed and he found the accused not in his normal behaviour. According to P.W.-5, the accused admitted before his sister that he killed his own brother. 5. The Investigating Officer Sri L.L. Singpho, was examined as P.W.-9. He deposed that on 14.06.1994, he received a written complaint from one Sri Ramesh Pathar of Dumsi village to the effect that accused Balensious Ekka killed Sushil Ekka and fled away and the dead body was lying in his house. He registered a case and proceeded to the place of occurrence on the same day, he found the dead body, held inquest over the dead body and also prepared the inquest report. Thereafter, he sent the dead body to Namsai CHC for post-mortem examination. He registered a case and proceeded to the place of occurrence on the same day, he found the dead body, held inquest over the dead body and also prepared the inquest report. Thereafter, he sent the dead body to Namsai CHC for post-mortem examination. During investigation, he seized a shirt and a dao from the house of one Julious Garwal from Koju village. He further deposed that he also prepared a rough sketch map of the place of occurrence and recorded the statement of witnesses and arrested the accused person. After completion of the investigation but before filing of the charge-sheet, he was transferred out on 06.07.1994 and he handed over the case to Officer-in-Charge Mahadevpur Police Station. According to him, there was no eyewitness and the seized dao, which was stained with blood, was produced by the house owner who stated that it belonged to accused Balensious Ekka but he did not send the said dao for chemical examination by the F.S.L. 6. Dr. Chow Jeamew Mongmaw, who conducted the post-mortem examination, was examined as P.W.-7. According to him, the dead body was brought on 14.06.1994, at about 1 p.m., and he conducted the postmortem examination around the same time i.e. at 1 p.m. According to him, the dead body was 'decomposed' and there were multiple injuries thereon. The most prominent injury was on the neck which was a cut through the cervical vertebrae at the level of C-4 and C-5. He deposed that there was also a deep cut injury in the left forearm of the dead body. He further deposed that there was a similar deep cut injury in the left side of the face cutting through the left mandible bone. The cause of death, according to him, was due to deep cut multiple injuries among which there was one cut injury in the neck which had beheaded the deceased causing his sudden death. In the cross-examination, he deposed that the dead body was more than 30 hours old. He further opined in his cross-examination that according to him, all the injuries were ante-mortem. 7. After closure of the evidence of prosecution witnesses, the accused was examined by the trial Court under Section 313 of Code of Criminal Procedure. Replying to question Nos. In the cross-examination, he deposed that the dead body was more than 30 hours old. He further opined in his cross-examination that according to him, all the injuries were ante-mortem. 7. After closure of the evidence of prosecution witnesses, the accused was examined by the trial Court under Section 313 of Code of Criminal Procedure. Replying to question Nos. 1-9 put by the learned trial Court, on the basis of the evidence tendered by the prosecution witnesses, the accused replied almost in the affirmative and admitted that he killed his deceased brother Sushil Ekka. However, in regard to question No. 7, which pertains to multiple injuries on the dead body of the deceased, he replied that he cannot say how the deceased got multiple injuries. Significantly, replying to question No. 10, which pertains to whether he confessed his guilt before any Magistrate, the accused admitted that he confessed before the police but not before any Magistrate. The accused further said that the reason for confession was that he repented later for his act. 8. The said statements made by the accused Sri Balensious Ekka, under Section 313 of Code of Criminal Procedure, is the foundation of convicting him and it is, therefore, felt necessary to quote the questions put by the learned trial Court and the answers derived from the accused, as under: Q. No. 1--P.W.-1 Julius Ekka deposed that the deceased had been killed by, he went to the place of occurrence, he saw the dead body with cut injury on the neck and he informed the GB to inform the police. Do you justify this statement? Ans: Yes, I cut the deceased Sushil Ekka with the dao on his neck the statement made by the P.W.-1 is correct. Q. No. 2--P.W.-2 Soma Munda deposed that on getting information about the death of the deceased, he informed the police. Can you clarify this statement? Ans: Yes, this statement is correct. Q. No. 3--Miss Bineta Ekka deposed that he heard that the deceased was killed by the accused. Do you have any comment on this statement: Ans.: Q. No. 4--PW 4 Miss Tatsila Ekka deposed that the deceased was killed by Belensious Ekka, she came to the place of occurrence after 2 hours and saw the dead body of his younger brother. Do you have any comment on this statement: Ans.: Q. No. 4--PW 4 Miss Tatsila Ekka deposed that the deceased was killed by Belensious Ekka, she came to the place of occurrence after 2 hours and saw the dead body of his younger brother. She saw one cut injury on the right side of the neck also she saw her mother at the place of occurrence and his father came after. Can you clarify this statement? Ans.: Yes, 1 cut Sushil Ekka the statement made by this P.W. all correct. Q. No. 5--Nikudin Munda deposed that the accused came to Bordumsa and told him that Sushil Ekka had been killed. He came to Bordumsa by Bicycle, the accused was not normal in behaviour and conscious. He admitted that the accused told his sister that he has killed his own sister. Can you justify this statement? Ans.: Yes, I told Nikudin Munda at Bordumsa that I had killed Sushil Ekka. Q. No. 6--Alwis Ekka deposed that he was informed by his younger sister that Sushil Ekka has been murdered by someone. On receipt of the information he went to the PO and saw the dead body. On Grabial Kharia his brother in law informed him that the accused went to his house and informed him that he had murdered Sushil Ekka. Do you have any comment on this statement? Ans: Yes, 1 told Grabial Kharia my brother-in-law that I had killed Sushil Ekka. Q. No. 7--P.W.-7 Dr. Jeamow Mangmow deposed that he conducted post mortem examination and he found multiple injuries on the body of the deceased and he found that most prominent cut injury on the neck. How the deceased got multiple injuries and cut injuries on the neck? Ans.: I cannot say how the deceased got multiple injury. Q. No. 8--P.W.-8 SI K. Tamang deposed that he had filed the chargesheet against you. Why this PW had chargesheeted against you? Ans: PW SI K. Tamang filed the charge sheet against me for killing my own brother Sushil Ekka. Q. No. 9--P.W.-9 SI L.L. Singpho deposed that on 16.4.94 he received a complaint from one Ramesh Prasad of Dumsi to the effect that accused Belensious Ekka killed Sushil Ekka, he has done inquest over the dead body also he sent the dead body to CHC Namsai for PM examination. Can you justify this statement? Q. No. 9--P.W.-9 SI L.L. Singpho deposed that on 16.4.94 he received a complaint from one Ramesh Prasad of Dumsi to the effect that accused Belensious Ekka killed Sushil Ekka, he has done inquest over the dead body also he sent the dead body to CHC Namsai for PM examination. Can you justify this statement? Ans.: I do not know the statement of this PW. Q. No. 10--Did you confess your guilt before any Magistrate? Ans.: 1 confessed before the police but not before any Magistrate. The reason for confession was that 1 repented for my acts later on. Q. No. 11--Do you have anything more to state in connection with this case? Ans.: When I came back after working with an elephant I saw and straight way and cut my brother the shoulder. Q. No. 12--Do you have any Defence Witness to produce? Ans.: I have no defence witness to produce. 9. Going through the evidence on record, we clearly find that there is no eyewitness to the alleged occurrence. There is neither any evidence to show that there was any enmity between the accused and the deceased brother. nor was there any evidence to show that there was a sudden fight between the brothers. for which the accused struck dao blow on the deceased brother. It is beyond the normal conduct that a person would kill his own brother for some petty reasons or trivial matters without any compelling reasons like sudden attack from one side or great provocation. The incident took place in the house of the informant Sri Ramesh Pathar in the early morning between 6 AM and 7 AM. At such an hour of summer morning, villagers are expected to be awake and the deceased should have been seen by the co-villagers, particularly, the neighbours and more particularly, by the family members of the informant but it is strange enough that none has seen the occurrence, not even heard any hue and cry before, during or after the occurrence that took place in the house of the said informant. The prosecution, however, did not feel it necessary to examine the informant Sri Ramesh Pathar in whose house the occurrence took place in the early morning around 6 a.m. Although he, in his FIR, categorically stated that after the alleged murder, accused Sri Balensious Ekka fled away. Was he an eyewitness to the occurrence? The prosecution, however, did not feel it necessary to examine the informant Sri Ramesh Pathar in whose house the occurrence took place in the early morning around 6 a.m. Although he, in his FIR, categorically stated that after the alleged murder, accused Sri Balensious Ekka fled away. Was he an eyewitness to the occurrence? Was his information that accused Sri Balensious Ekka killed his brother Sushil Ekka true? It was required to be testified from the informant. No explanation has been forthcoming from the prosecution as to why such an important witness like the informant in whose house the occurrence took place was not produced before the Court as witness. 10. Had the prosecution produced the informant Sri Ramesh Pathar as an eyewitness, his evidence would have carried maximum weight besides being reliable and convincing for recording conviction of the accused person. Even if the informant was not an eyewitness, the prosecution should have examined him as a witness to testify how he made a direct allegation in the FIR to the effect that the accused Sri Balensious Ekka had murdered his own brother. If it was a case that the informant was not an eyewitness, then he must have been told by someone who witnessed the incident with his/her eyes and he would have revealed the source from whom/where, he came to know that the accused killed his brother. The P.W.-1, father of the deceased and the accused, on the other hand, categorically stated that his deceased son slept in the house of one Sushila Munda on the day of occurrence. Who is this Sushila Munda? Is she a member of the family of the informant Sri Ramesh Pathar? If she was a family member of the said informant and if she was also living in his house on that particular day, it was likely that she had seen the occurrence and she was an eyewitness. Surprisingly, she was also not examined by the prosecution. This witness could have thrown enough light on the incident of murder to the aid of the prosecution to prove the charges against the accused person. The prosecution is conspicuous about the presence of other family members of the informant Sri Ramesh Pathar but it made no endeavour to examine any family member of the said informant during investigation and/or trial. The prosecution is conspicuous about the presence of other family members of the informant Sri Ramesh Pathar but it made no endeavour to examine any family member of the said informant during investigation and/or trial. The investigation was done in a routine and perfunctory manner and it made no attempt to collect useful materials to prove the case beyond reasonable doubt. 11. In the FIR, the informant Sri Ramesh Pathar did not state that he saw the accused person in his house or that he was seen by anyone of his family members. There is no evidence to prove the presence of accused Sri Balensious Ekka in the house of the informant on the day and at the time of the alleged occurrence. If it is so, could it be justified to convict the accused person on the mere incriminating statement made by him during examination under Section 313 of Code of Criminal Procedure by the trial Court? To prove the case against the accused person, his presence must be proved by the evidence of witnesses who had seen him in the house of the informant or by circumstantial evidence. The prosecution has admittedly failed to do so and thus, the prosecution cannot claim that it has been able to prove its case against the accused person beyond reasonable doubt. 12. According to the evidence of P.W.-9, Investigating Officer, the dao was seized from the house of one Julious Garwal of Koju village on being produced and shown by him (Garwal). As per the seizure list, Ext.-P/7, one oval shaped sharp dao having a bamboo made Nal (handle) was seized from the house of one Sri Julious Dhanwar on being produced and shown by him and his wife of Koju Pathar village. As per the Ext.-P/7, the seized dao was completely rusted and no blood stain was visible. The informant Sri Ramesh Pathar, Sri Khojen Baruah and Smt. Bestha Dhanwar, W/o Julious Dhanwar, put their signatures as seizure witnesses. The said Julious Dhanwar from whose house the dao was seized, was neither made a seizure witness nor anyone of the seizure witnesses have been examined by the prosecution. The prosecution also remained silent as to why the seizure witnesses, abovenamed, were not examined to prove the seizure of the crime article although it is the case of the prosecution that the seized dao belonged to accused Sri Balensious Ekka. The prosecution also remained silent as to why the seizure witnesses, abovenamed, were not examined to prove the seizure of the crime article although it is the case of the prosecution that the seized dao belonged to accused Sri Balensious Ekka. There is, however, no evidence to show that the seized dao was the one used by the accused in committing the crime. The prosecution should have sent the seized dao to F.S.L. for chemical examination to confirm existence of any human blood and further to ascertain in case there was any human blood, to whom the said blood belonged, through DNA test. It was, therefore, not proved that the seized dao was stained with human blood, far less the blood of the deceased victim. The non-examination of seizure witnesses raises serious doubt as to the very seizure of the crime article rendering the evidence in respect of seizure of the dao unreliable. 13. As per the evidence of P.W.-7, Dr. Mongmaw, the dead body was in 'decomposed state' at the time of conducting the post-mortem examination at 1 p.m. on 14.06.1994. On the other hand, as per the FIR, the deceased was murdered at around 6 a.m. i.e. in the early morning of 14.06.1994. The time gap between 6 a.m. to 1 p.m. of 14.06.1994 is 7 hours only. It is, therefore, unbelievable that a dead body would get decomposed within a short span of 7 hours. In the cross-examination, P.W.-7, clearly stated that the dead body was 'more than 30 hours old'. He reaffirmed the same in his cross-examination by saying that "it is fact that condition of the dead body was decomposed". If the dead body was more than 30 hours old, it would mean that the deceased died/was killed, sometime in the early hours between 6 AM and 7 AM of 13.06.1994 which would also mean that the dead body might have been lying in the house of the informant since 7 a.m. of 13.06.1994 or that the deceased was killed elsewhere sometime on the day of 13.06.1994 and that his dead body was brought by somebody else to the house of informant Sri Ramesh Pathar. Or it would also mean that the deceased was inflicted with serious injuries even much before 7 a.m. of 13.06.1994 and that he was brought by somebody else to the house of the informant where he succumbed to his injuries. Or it would also mean that the deceased was inflicted with serious injuries even much before 7 a.m. of 13.06.1994 and that he was brought by somebody else to the house of the informant where he succumbed to his injuries. This would also naturally lead to a conclusion that the informant and his family members knew that the deceased was lying dead in their house long before 6 a.m. of 14.06.1994 and the informant had to inform the police only when the dead body started getting decomposed. It is beyond our comprehension as to why neither the informant Sri Ramesh Pathar nor anyone of his family members were examined by the prosecution to uphold the real tale for the purpose of unearthing the truth and also to prove its case against the accused person beyond reasonable doubt. 14. From the inquest report, Ext.-P/5, the Investigating Officer particularly recorded that the deceased slept alongwith informant Sri Ramesh Pathar, aged 17 years, S/o Jugen Pathar, Dumsi village, in the night when the occurrence took place in the house of the said informant. Inspite of this, the said informant was not even cited as a witness in the Charge-sheet (Ext.-P/1). The defence has been deprived of the chance of cross-examining the informant to testify as to whether the informant slept with the deceased in the night or at the time of occurrence. A presumption naturally follows that the prosecution withheld the informant Sri Ramesh Pathar from producing him as witness with an apprehension that he knew the real facts and he would not support the prosecution or that it preferred not to produce him as witness lest he may not withstand the cross-examination of the defence counsel and the accused would be proved innocent and/or be proved otherwise and/or the informant himself may be found guilty. 15. In column-10 of the inquest report, Ext.-P/5, the Investigating Officer recorded as follows: 10. Opinion of Witnesses as to cause of Death: As per the opinion of the witnesses, the deceased alongwith the complainant alongwith one little boy Tiphil Munda slept the night together in the same bed. In the morning of 14.6.94, the complainant got out of the room to wash his face. Meantime, saw one Balensious Ekka elder brother of deceased was in front of house cutting a Tamul with dao. In the morning of 14.6.94, the complainant got out of the room to wash his face. Meantime, saw one Balensious Ekka elder brother of deceased was in front of house cutting a Tamul with dao. Reportedly Balensious absconded from the scene when relative came to know the deceased dead. Therefore Balensious is suspected in causing murder of the deceased. The probable time is at around 6 AM of 14.6.94. The little boy named Tiphil Munda was not examined by the prosecution although he slept alongwith the deceased in the night of occurrence together in the same bed alongwith informant Sri Ramesh Pathar. The said boy has also been withheld as a witness for some obvious and undisclosed reasons known to the prosecution only, may be, with an intent to suppress the truth and help the real culprit, who may be none other than the informant himself, to bring to justice. Such doubt finds support from the 'dead body challan' (Ext.-P/6), wherein, in column-6, it is recorded by the Investigating Officer that the dead body of the deceased was found in the bedroom of informant, Sri Ramesh Pathar of Dumsi village. 16. The doubt deepens when one looks at the column-9 of the inquest report (Ext.-P/5) wherein the said Investigating Officer recorded that one blanket, one mosquito net smeared with blood and a red bed-sheet with its wearing apparel were found near the dead body. Interestingly, in the seizure list (Ext.-P/7), the said mosquito net smeared with blood, red bed-sheet and blanket were neither shown in the seizure list as seized articles nor were they seized by the Investigating Officer inasmuch as no separate seizure list was prepared. Why the aforesaid articles, particularly, the mosquito net smeared with blood, was not seized, is a matter of serious doubt as the same was required to be sent to the F.S.L. for chemical examination to ascertain existence of human blood or otherwise. It was the bounden duty of the Investigating Officer to seize any article found at, near, or around the place of occurrence and send the same to the F.S.L for chemical examination. 17. There is Anr. evidence on record that P.W.-5, Nikudin Munda, came to know about the death of Sushil Ekka after he returned to his village Bordumsa. According to this witness, the accused came to Bordumsa and told his sister (Nikudin's sister) that he killed his brother Sushil Ekka. 17. There is Anr. evidence on record that P.W.-5, Nikudin Munda, came to know about the death of Sushil Ekka after he returned to his village Bordumsa. According to this witness, the accused came to Bordumsa and told his sister (Nikudin's sister) that he killed his brother Sushil Ekka. The name of Nikudin's sister has not been disclosed. The prosecution could have filed an application for calling Nikudin's sister as witness to depose on the vital fact that the accused told her that he killed his own brother. Although P.W.-5 disclosed such material information, the prosecution for reasons best known to them only, preferred not to produce the said witness i.e. sister of P.W.-5. 18. In a classic decision, the Apex Court in Habeeb Mohammad v. State of Hyderabad reported in AIR 1954 SC 51 held that it is the bounden duty of the prosecution to examine a material witness, particularly, when no allegation has been made that, if produced, he would not speak the truth. The non-production of such witness not only gives scope for drawing adverse inference against the prosecution but also casts a serious reflection on the fairness of the trial. 19. In Anr. classic case of Narian v. State of Punjab reported in AIR 1959 SC 484 , the Apex Court held that it is not that the prosecution is bound to call all witnesses who may have seen the occurrence and to duplicate the evidence but apart from this, the prosecution should call all the material witnesses and if a material witness has been deliberately or unfairly kept back, then a serious reflection is cast on the propriety of the trial itself and the validity of the conviction resulting from it may be open to challenge. It is further held by the Apex Court that whether a witness is so essential or not would depend on whether he could speak to any part of the prosecution case or whether the evidence led disclose that he was so situated that he would have been able to give evidence of the facts on which the prosecution relied. 20. It is further held by the Apex Court that whether a witness is so essential or not would depend on whether he could speak to any part of the prosecution case or whether the evidence led disclose that he was so situated that he would have been able to give evidence of the facts on which the prosecution relied. 20. However, the Apex Court in Sarwan Singh v. State of Punjab reported in AIR 1976 SC 2304 held that before an adverse inference against a prosecution can be drawn, it must be proved to the satisfaction of the Court that the witnesses who had been withheld were eyewitnesses who had actually seen the occurrence and were therefore material witnesses to prove the prosecution case. 21. In the present case, it has been amply demonstrated that informant Sri Ramesh Pathar was an eyewitness to the killing of deceased Sushil Ekka inasmuch as the deceased was sleeping in the same bed in Pathar's house on the day of occurrence and he clearly stated in the FIR that accused Sri Balensious Ekka killed his brother Sushil Ekka. There is no doubt in our mind that the informant was as much a material witness as he was a eyewitness of the occurrence and he has been deliberately and unfairly kept back by the prosecution. The informant was such a material witness who could unfold the truth and therefore, the prosecution was bound to call him as witness. The way the prosecution has avoided producing such material witness prompts us to hold that had the informant was examined as witness, he would not have supported the prosecution case and would have rather supported the defence. 22. Situated thus, we are bound to hold that the prosecution miserably failed in proving the charge against the accused person beyond all reasonable doubt. Beyond it, we are to hold further that the deliberate and unfair withholding of the material eyewitness has cast serious reflection on the propriety of the trial itself and we would hold back from upholding the conviction and sentence passed by the learned Trial Court. The accused on being questioned by the learned Trial Court under Section 313 of Code of Criminal Procedure stated that he confessed his guilt before the police but not before the Magistrate and stated that the reason for confession was that he repented for his acts later on. The accused on being questioned by the learned Trial Court under Section 313 of Code of Criminal Procedure stated that he confessed his guilt before the police but not before the Magistrate and stated that the reason for confession was that he repented for his acts later on. The confession before the police in the eye of law does not carry any legal weight or evidentiary value nor can it be the basis for conviction of an accused. It is verified from the record that the accused did not make any confessional statement before the Magistrate. Therefore, the only question to be considered is as to whether on the basis of statements made by the accused admitting his guilt before the learned trial Court at the time of making statement under Section 313of Code of Criminal Procedure, could be convicted given the fact that there is no evidence whatsoever establishing the charge against him. Time and again, the Apex Court has been holding that answers given by the accused under Section 313 of Code of Criminal Procedure (under new Code) and 342 of Code of Criminal Procedure (under old Code) cannot be regarded as an evidence. We would like to first refer to the case of Virendrajit v. State of Bombay reported in AIR 1953 SC 247 wherein it is clearly held that the statement recorded under Section 342 of Code of Criminal Procedure cannot be regarded as evidence and conviction of the accused cannot be based merely on such statement. We would also like to refer to Anr. case, namely, State of Maharashtra v. R.B. Choudhury reported in AIR 1968 SC 110 wherein the Apex Court held that an accused when he makes his statement under Section 342of Code of Criminal Procedure, does not depose as a witness because no oath is administered to him when he is examined under this Section. It is further held that no doubt, under the Code of Criminal Procedure, statement of an accused under Section 342 may be taken into consideration in an inquiry or a trial but it is not strictly an evidence in the case. Last of all, it would be appropriate on our part to refer to the case of Ganeshmal Jashraj v. Govt. of Gujarat and Anr. Last of all, it would be appropriate on our part to refer to the case of Ganeshmal Jashraj v. Govt. of Gujarat and Anr. reported in AIR 1980 SC 264 wherein the Apex Court mandated that conviction of an accused pleading guilty after close of the prosecution case and examined under Section 313 of Code of Criminal Procedure is not sustainable as the Magistrate's evaluation of evidence may be a matter of formality and approach to assessment of evidence is likely to be different. 23. We happen to deal with the significance and consequence of the statements made by the accused under Section 313 of Code of Criminal Procedure in Baiju Baby v. State of Arunachal Pradesh reported in 2009 (1) GLT 405 wherein we held that when answers given by an accused contain admissions of circumstances appearing against him and when such admissions are not de-link from the evidence, then such admissions can be used for a finding that the accused had committed the offence. It was a case of rape of a woman where the statements of the accused corroborated by the testimony of the prosecutrix about the manner she was raped and convicted under Section 376(g) IPC by the trial Court which was sustained by the judgment delivered by us in an Appeal before this Court following and relying upon a decision rendered in the State of Maharashtra v. Sukhdeo Singh reported in AIR 1992 SC 2100 . The Sukhdeo Singh's case (supra) relates to murder of General A.S. Vaidya, the then Chief of Armed Forces, and his wife, during whose time, the Blue Star Operation was carried-out to flush out the militants who took refuge at the Golden Temple at Amritsar where some militants were killed and part of the Temple was also damaged. In that case, when the charges were framed, accused Sukhdeo Singh alongwith the other accused faced trial. Both of them pleaded not guilty and claimed to be tried but barely 2 weeks thereafter, accused Sukhdeo Singh orally informed the learned trial Court that he had killed Genera/Vaidya and he did not desire to contest the case. In that case, when the charges were framed, accused Sukhdeo Singh alongwith the other accused faced trial. Both of them pleaded not guilty and claimed to be tried but barely 2 weeks thereafter, accused Sukhdeo Singh orally informed the learned trial Court that he had killed Genera/Vaidya and he did not desire to contest the case. At a later stage, when he was examined under Section 313 of Code of Criminal Procedure, made a statement to the effect that according to him, killing of General Vaidya was not a crime because General Vaidya was responsible for conducting the Blue Star Operation and damaging the sacred religious place like Akal Takht of the Golden Temple and that is why he did not plead guilty. The said accused was given time by the trial Court to reflect upon his admissions and on a subsequent date fixed, he presented a written statement wherein he admitted to have fired four shots at General Vaidya and killed him. At the time of recording the statement under Section 313 of Code of Criminal Procedure, accused Sukhdeo Singh owned the statement which he made in writing admitting firing at and killing General Vaidya. The other accused Jindal in the aforesaid case also did not plead guilty to the charge and continued to contest the case until he was examined under Section 313 of Code of Criminal Procedure wherein he made statements, in writing, admitting to have driven the motorcycle with accused Sukhdeo Singh as a pillion rider and also admitting that accused Sukhdeo Singh fired fatal shots at General Vaidya while still sitting on the motorcycle as pillion rider. Accused Jindal supplemented his statement by yet Anr. statement which he submitted in writing which was proved as Ext. 922. 24. The present case, in appeal, before us, is distinguishable from Sukhdeo Singh's case (supra) inasmuch as accused Sukhdeo Singh and Jindal planned the killing of General Vaidya to avenge the killings of their complainant and damaging of Golden Temple during the Blue Star Operation for which they have no remorse or repentance rather felt proud of their actions. In that case, there was a motive behind the killing of General Vaidya and his wife which the accused persons admitted by tendering written statements before the trial Court and accordingly, the Apex Court under such facts and circumstances, observed and held as under: Para. 50. In that case, there was a motive behind the killing of General Vaidya and his wife which the accused persons admitted by tendering written statements before the trial Court and accordingly, the Apex Court under such facts and circumstances, observed and held as under: Para. 50. It is trite law that the attention of the accused must be specifically invited to inculpatory pieces of evidence or circumstances laid on record with a view to giving an opportunity to offer an explanation if he chooses to do so. Section 313 imposes a heavy duty on the court to take great care to ensure that the incriminating circumstances are put to the accused and his response solicited. The words 'shall question him' clearly bring out the mandatory character of the clause and cast an imperative duty on the court and confer a corresponding right on the accused to an opportunity to offer his explanation for such incriminating material appearing against him. It is, therefore, true that the purpose of the examination of the accused under Section 313 is to give the accused an opportunity to explain the incriminating material which has surfaced on record. The stage of examination of the accused under Clause (b) of Sub-section (1) of Section 313 reaches only after the witnesses for the prosecution have been examined and before the accused is called on to enter upon his defence. At the stage of closure of the prosecution evidence and before recording of statement under Section 313, the Judge is not expected to evaluate the evidence for the purpose of deciding whether or not he should question the accused. After the Section 313 stage is over, he has to hear the oral submissions of counsel on the evidence adduced before pronouncing on the evidence. The trial Judge is not expected before he examines the accused under Section 313 of the Code, to sift the evidence and pronounce whether or not he would accept the evidence regarding any incriminating material to determine whether or not to examine the accused on that material. To do so would be to pre-judge the evidence without hearing the prosecution under Section 314 of the Code. Therefore, no matter how weak or scanty the prosecution evidence is in regard to a certain incriminating material, it is the duty of the Court to examine the accused and seek his explanation thereon. To do so would be to pre-judge the evidence without hearing the prosecution under Section 314 of the Code. Therefore, no matter how weak or scanty the prosecution evidence is in regard to a certain incriminating material, it is the duty of the Court to examine the accused and seek his explanation thereon. It is only after that stage is over the oral arguments have to be heard before the judgment is rendered. It is only where the Court finds that no incriminating material has surfaced, the accused may not be examined under Section 313 of the Code. If there is material against the accused, he must be examined. 25. In the appeal case at hand, the accused person, an illiterate person belonging to a disadvantaged class of people rooted in the Tea Garden labourers, did not make any statements in writing like the accused persons in Sukhdeo Singh's case (supra) admitting his guilt nor taking action to take revenge on his own brother due to some rivalry with him. Due to such marked differences in the facts and circumstances in the present appeal from the facts and circumstances in the aforesaid cases of Sukhdeo Singh and Baiju Baby (supra), we would restrain ourselves from applying the principles laid down therein to the present appeal and thus, would come to a conclusion that the statements made by the accused Sri Balensious Ekka under Section 313 of Code of Criminal Procedure cannot be acted upon and considered as evidence for his conviction. 26. We have already noted earlier that no motive for killing the deceased persons by accused Sri Balensious Ekka has been brought on record. We are also aware of the law that lack of motive does not affect the consequences of unshaken testimony of credible and natural eyewitness who had no motive to implicate the accused falsely as was held in Faquira v. State of U.P. reported in AIR 1976 SC 915 . In the present case, we do not find any unshaken testimony of any witness which could be regarded as credible and natural rather the possible eyewitness/witnesses have been held back by the prosecution. In the present case, we do not find any unshaken testimony of any witness which could be regarded as credible and natural rather the possible eyewitness/witnesses have been held back by the prosecution. In our view, motive for such alleged ghastly murder of his own brother by the accused is required to be established inasmuch as no eyewitness has given any evidence against the accused and the material witness who might have seen the occurrence, have not been adduced as witness by the prosecution. Doubt is looming large on why the accused has killed his own brother. In this respect, we would like to refer to the case of State of Punjab v. Gurmail Singh reported in 1990 Supp SCC 67 wherein it has been held by the Apex Court that the Respondent victim murdered his own 3 daughters and no motive or reason could be established for such murder. Therein, the Apex Court observed that it is not comprehensible as to why the Respondent convict should murder his own daughters without any conceivable motive or reason and that too, by inflicting as many as incise injuries on one of his daughter. Motive in that case, for killing his 3 daughters having not been established, the Apex Court justified the acquittal order made by the High Court reversing the conviction order made by the trial Court. In the light of the aforesaid decision, we consider the accused person in the present case, is entitled to acquittal. 27. We have underlined the perfunctory and callous way of investigation carried out by the Investigating Officer of the case apart from the failure to cite some important witnesses in the charge-sheet and withholding of eyewitness including the seizure witnesses, by the prosecution, during trial, raising serious doubt and reflection on the propriety of the trial itself and the conviction and sentence passed by the learned Trial Court on the basis of evidence of the witnesses who were not the eyewitnesses, are not sufficient enough to come to a conclusion or finding that the charges levelled against the accused have been proved beyond doubt not to speak of reasonable doubt. 28. What we could found is that the impugned conviction and sentence is founded solely on the statement of the accused under Section 313 of Code of Criminal Procedure. 28. What we could found is that the impugned conviction and sentence is founded solely on the statement of the accused under Section 313 of Code of Criminal Procedure. We have already discussed the evidentiary value of any inculpatory statement of the accused on the basis of which, without any cogent and solid evidence proving the guilt of the accused, the Court would not be justified in convicting and sentencing the accused. It is a case, where, in our considered view, the prosecution misdirected itself in proving its case by not examining any eyewitness although it was possible on their part to do so and thus, left it unsuccessful in proving the case beyond all reasonable doubt as required under criminal jurisprudence. In the facts and circumstances as stated above, the accused is entitled to reap the benefit of doubt and acquittal under benefit of doubt. The corollary of the discussions we have made, as above, lead us to disagree with the conviction and sentence as handed down by the trial Court on the accused vide impugned judgment and order dated 19.04.2006 and as such, we do not hesitate to set aside and quash the impugned judgment and order aforesaid passed by the learned Addl. District & Sessions Judge, FTC, Eastern Zone, Namsai, in Sessions Case No. 02/94 and the same stands set aside and quashed. We hereby acquit the accused Sri Balensious Ekka and set him at liberty forthwith if his further detention is not required in any other case. 29. The appeal stands allowed. 30. LCRs be sent down to the court below forthwith. Appeal allowed