JUDGMENT Talukdar, J. 1. THIS is an appeal against the judgment dated 10th November, 2006 and order dated 13th November, 2006 passed by learned 3rd Court of Additional Sessions Judge, Darjeeling in Sessions Trial No. 15 of 2006 arising out of Sessions Case No. 47 of 2005. By the said judgment and order the learned Trial Court held the present appellant guilty of the offence under Section 302 of the I.P.C. and convicted him accordingly. He had been sentenced to suffer imprisonment for life and to pay fine of Rs. 50,000/- in default, to suffer further imprisonment for five years. The prosecution case, in a nutshell, is. On 14th of April, 2005 at about 10-00 p.m. at night, the Manager, of Ambotia Tea Estate, namely Daljit Singh was having dinner in his bungalow. Hearing the sound of someone hitting the main gate of the bungalow, he came out and found that one Jairaj Chettri was shouting and abusing in filthy language. He was carrying a sharp cutting weapon in his left hand. He rushed towards him and attempted to assault. He stated that he had no grievance against him but he had finished one Manas Mishra. The bungalow chowkidar Sri Kumar Rai was also there. Mr. Rajehdra Singh (office staff) and his sister Anita Singh and one Prasant Chettri arrived at the spot. They took the accused out. Daljit Singh then rushed out to find out as to what had happened. He was told by the factory chowkidar, Dhanraj Mangar and Dilbahadur Subba that Manas Mishra had not come to the factory. Daljit then tried to contact Manas over mobile phone. Wife of Manas received the call and reported that Manas was not in the house and he forgot to carry the mobile with him. Daljit Singh by the time received a call from one A Goswami, the Field Assistant Manager. He reported that chowkidar Padambahadur Kami @ Jantaray Kami had informed that Jairaj Chettri attacked Manas Mishra near the oil godown in front of the factory main gate. On search, Daljit being accompanied by the chowkidar discovered the dead body of Manas Mishra. Daljit then informed Kurseong Circle Inspector and he switched on the siren of the factory. Many people including all the Assistant Managers arrived at the spot. Manas was found with severe injuries on the neck (back side), forehead, right wrist, left arm and left palm. On search, Daljit being accompanied by the chowkidar discovered the dead body of Manas Mishra. Daljit then informed Kurseong Circle Inspector and he switched on the siren of the factory. Many people including all the Assistant Managers arrived at the spot. Manas was found with severe injuries on the neck (back side), forehead, right wrist, left arm and left palm. Daljit then lodged a written complaint. It was written and signed by him. It was handed over to the Inspector-in-Charge. On the basis of such written complaint, which was treated as FIR, a case was started being Kurseong P.S. Case No. 24/05 dated 15th April, 2005. 2. AFTER completion of investigation, police authority submitted charge sheet. The case was thereafter committed to the learned Court of Sessions and then sent to the learned Trial Court. The present appellant as accused person was charged for the offence under Section 323/ 302/506 of the I.P.C. He pleaded 'not guilty' to the said charge and claimed to be tried. 3. PROSECUTION in order to discharge the burden of proving the charge examined as many as 20 witnesses. 4. OF them, P.W. 1 is a chowkidar of the Ambotia Tea Estate where he used to reside. He identified the accused Jairaj Chettri as an electrician in the factory of the said tea estate. He knew Manas Mishra, Assistant Manager of the said tea estate who had died. He stated that an incident took place on 13th April, 2005. While he was on duty in the house of the Manager Daljit Singh, he heard a hue and cry at about 10-30/11 -00 p.m. He was declared hostile by the prosecution and in his evidence in cross examination by the prosecution he admitted to have stated to the police that on 14th of April, 2005 while on duty at about 10-00 p.m., he heard banging of the iron gate of the compound. On opening it he found Jairaj Chettri was standing there and abusing in filthy language. In his cross- examination by the defence he stated that he went to see the dead body of Manas Mishra at the spot with the police. He stated, that he put his signature in the inquest report at Ambotia Tea Estate office on the date of the incident. P.W. 2 identified the accused person as his brother-in-law. 5. In his cross- examination by the defence he stated that he went to see the dead body of Manas Mishra at the spot with the police. He stated, that he put his signature in the inquest report at Ambotia Tea Estate office on the date of the incident. P.W. 2 identified the accused person as his brother-in-law. 5. P.W. 3, a clerk of the tea estate stated that he knew Manas Mishra, Assistant Manager, who was murdered. 6. P.W. 4 is the owner of a grocery situated in the tea estate. He identified the accused as his maternal father-in-law. P.W. 5, a resident of the tea estate, just stated about the murder of the factory Manager, Manas Mishra. 7. P.W. 6 also just mentioned about the murder of the victim, Manas Mishra. In his cross-examination by the prosecution, he denied to have state before the police that the accused on the date of the incident went to his house and reported about his dispute with Manas Mishra. 8. P.W. 7, a chowkidar of the factory deposed, that he knew Manas Mishra was murdered on 14th April, 2005 in the night. He along with the Manager, Daljit, went out in search of Manas Mishra. He found the dead body of Manas was lying 50 yards above the factory near the garden road. The body had bleeding injuries. P.W. 8, an electrician of the tea estate, also stated about the murder of Manas Mishra on 14th April, 2005 at about 9-00 p.m. 9. P.W. 11 is a Police Personnel. His evidence is of formal nature. In his evidence-in-chief he stated about carrying the dead body of Manas Mishra to North Bengal Medical College on 15th April, 2005. He identified his signature in the command certificate, as well as in the challan (marked Exbt. 4 and 5 respectively). Wearing apparel of the deceased was brought by him from the hospital and the same was handed - over to the police officer who seized the same. 10. P.W. 11 identified the seized grey colour torn half shirt (Mat Exbt. III). He identified his signature in the seizure list and on the label on it prepared by I.0. P.W. 12 just claimed to have signed on a blank paper on 15th May, 2005 and he identified the same, marked Exbt. 7. 10. P.W. 11 identified the seized grey colour torn half shirt (Mat Exbt. III). He identified his signature in the seizure list and on the label on it prepared by I.0. P.W. 12 just claimed to have signed on a blank paper on 15th May, 2005 and he identified the same, marked Exbt. 7. He denied that the police seized an iron made sharp weapon, 'bamfok' from the kitchen of the accused Jairaj. In his evidence in cross-examination by the prosecution, he identified his signature on the label affixed on the 'bamfok' and had been marked Exbt. 8. 11. IT thus appears that none of these 12 witnesses lent any support to the prosecution case. In fact, all of them except the formal witness P.W. 11 were declared hostile by the prosecution. 12. P.W. 13, a resident of the village where the accused used to reside also lent no support to the prosecution case. P.W. 14 is the son of the accused. He stated that on 15th April, 2005, he signed on a blank paper being asked by the police. It is no wonder that prosecution could not derive any support from the evidence of such P.W. 14 who is the son of the accused. 13. P.W. 15 is the Inspector of Police who started Kurseong P.S. Case No. 24/05 dated 15.4.2005 under Section 302/323/34 of the I.P.C. on the basis of the written complaint received by him on 15.4.2005 at about 02-15 hrs. through A.S.I, M. Uddin. He proved the formal FIR which was prepared by him being marked Exbt. 11 as well as the endorsement on the written complaint marked Exbt. 2/1. 14. P.W. 17 is a very vital witness. He was the chowkidar of the bungalow in which the Assistant Manager, Manas Mishra and Goswami used to reside. But, peculiarly enough, such P.W. 17 did not come forward in support of the prosecution case. In his evidence-in-chief he just stated that while accompanying the Assistant Manager, Manas Mishra, on 14.4.2005. in between 9/10 p.m., he was hit on his back by someone. He fell down. Thereafter he got up and ran away. He was declared hostile by the prosecution, but his statements in cross-examination either by the prosecution or by the defence does not seem to have any impact on the prosecution case. P.W. 16 is an Inspector of Police. His evidence is of formal nature. He fell down. Thereafter he got up and ran away. He was declared hostile by the prosecution, but his statements in cross-examination either by the prosecution or by the defence does not seem to have any impact on the prosecution case. P.W. 16 is an Inspector of Police. His evidence is of formal nature. He received the telephonic message from the Manager of Ambotia Tea Estate on 14th April, 2005 at about 10-30 p.m. it was about the discovery of the dead body of one Manas Mishra, Assistant Manager of Ambotia Tea Estate near its factory. He started the U.D. Case No. 12/05 of the Kurseong P.S. and directed S.I., T.A. Khan to hold enquiry. He too went to the said tea estate along with S.I., T.A. Khan and force. He proved the relevant extract of the G.D. On arrival at the tea estate on 15th April, 2005 at about 01-05 hrs. he received one written complaint from Daljit Singh, Manager of the Estate. He forwarded the complaint to the I.C., Kurseong Police Station through A.S.I., M. Uddin for starting a case under Section 302/323/34 of the I.P.C. Investigation of the case was already endorsed in favour of S.I., T.A. Khan who was on the spot. P.W. 16 proved the endorsement in his hand writing on the complaint and the same had been marked Exbt. 2/2. In his cross-examination he stated that he received an information that Manas Mishra was murdered by some unknown miscreants. 15. P.W. 18 is a doctor who examined P.W. 17 on 15th April, 2005. He proved medical report, Exbt. 12. 16. P.W. 19 is the doctor who conducted post mortem examination over the dead body of the victim. In his evidence-in-chief he narrated in details the various injuries as detected by him. He opined that the death of the victim was antemortem and homicidal in nature. P.W. 20 is the Investigating Officer who after completion of investigation submitted charge sheet in this case. 17. P.W. 9 is the defacto-complainant who in his evidence-in-chief corroborated the allegations made in the written complaint on all material points. In his evidence-in-chief he proved the complaint written and signed by him, marked Exbt. 2. He identified his signature in the inquest report, marked Exbt. 1/1, claiming that such inquest was held in his presence by the police. 17. P.W. 9 is the defacto-complainant who in his evidence-in-chief corroborated the allegations made in the written complaint on all material points. In his evidence-in-chief he proved the complaint written and signed by him, marked Exbt. 2. He identified his signature in the inquest report, marked Exbt. 1/1, claiming that such inquest was held in his presence by the police. He stated that police seized some blood stained controlled earth and one pair light blue coloured hawai chappal from the spot on 15th April, 2005. This was done under a seizure list. He identified his signature being marked Exbt. 3 in the seizure list. Such P.W. 9 thereafter identified the container containing the blood stained controlled earth (Mat Exbt. I/I). He also identified the container with controlled earth (Mat Exbt. II). He identified his signature on the label on it being marked Mat. Exbt. Il/I. 18. IN his cross-examination P.W. 9 denied that it was not a fact that he did not hear Jairaj uttering that he had murdered Manas. P.W. 9 claimed that at the time Sri Kumar Rai was present. Rajendra, Anita and Dhanraj arrived 10/15 minutes after the incident. Curiously enough, he did not say anything about such uttering of such Jairaj to them. He categorically stated that Dhanraj and Dilbahadur Subba did not come to his bungalow at the time. Evidence of P.W. 10 seems to have a very interesting role to play in unveiling the mystery of the prosecution case. In his evidence-in- chief he. stated that he used to share the same house with the victim. Manasbabu. He used to reside in the first floor with Manasbabu in the ground floor. On 14th April, 2005 at about 8-30 p.m. on his way back home, he met Jairaj Chettri. After checking up his identity he told him that he had no enmity with him but he was having grudge against Manasbabu. P.W. 10 referred to his receipt of a call on mobile from P.W. 9. He reported that as informed by his wife, Manasbabu had gone to the factory with Chowkidar Padam Kami. P.W. 9 told him that Manasbabu had not gone to the factory. Within five minuets, the said Padam Kami came to him. According to P.W. 10, he was frightened and told that there was an attack on Manasbabu and probably he had been murdered. P.W. 9 told him that Manasbabu had not gone to the factory. Within five minuets, the said Padam Kami came to him. According to P.W. 10, he was frightened and told that there was an attack on Manasbabu and probably he had been murdered. He also reported that Jairaj Chettri and two other unknown persons committed the murder. 19. SIGNIFICANTLY enough, the said Padam Kami (P.W. 17) who was also examined as a prosecution witness did not state anything so as to substantiate the evidence of P.W. 10. There is absolutely no other material in the evidence of as many as 20 witnesses examined on behalf of the prosecution. The appellant as accused person was extensively examined under Section 313, Cr.P.C. and he pleaded innocence. This being the nature of the evidence on record, Mr. Mitra as learned Counsel for the appellant contended that there could be absolutely no justification for the learned Trial Court to find the appellant accused person guilty of the offence under Section 302 of the I.P.C. 20. WHILE analyzing the evidence on record, it may be said that the P.W. 17 did not state before, the Court that he reported to P.W. 10 about the assault on Manas Mishra by Jairaj Chettri and other persons. He only deposed that he was out with Manas Mishra and he was suddenly hit at his back by someone. As a result, he fell down. He thereafter got up and ran away. He thus does not seem to have implicated the appellant Jairaj with such incident. Moreover, the involvement of other persons as reportedly told by P.W. 17 to P.W. 10, makes the prosecution case more mysterious there had been no attempt on the part of any of the witnesses to substantiate such vital aspect of the case. It is true that minor discrepancies and marginal mistakes do not demolish the prosecution case. Credibility of testimony depends on judicial evaluation of the totality, not on isolated scrutiny. It also cannot be denied that proof beyond reasonable doubt is a guideline and not a fetish. Who can dispute that truth sometime suffer from infirmity when projected through human process. Law does not require the prosecution to dot every 'i' and cut every 't' while trying to establish the guilt of the accused person. But the prosecution is under legal obligation to prove the charge beyond the shadow of reasonable doubt. Who can dispute that truth sometime suffer from infirmity when projected through human process. Law does not require the prosecution to dot every 'i' and cut every 't' while trying to establish the guilt of the accused person. But the prosecution is under legal obligation to prove the charge beyond the shadow of reasonable doubt. It must establish with evidence on record that the incident alleged took place on the date and time and at the place and in the manner as alleged. 21. MR. Biplab Mitra, appearing as learned Counsel for the appellant submitted that both P.W. 9 and P.W. 10, on whom the prosecution sought to place reliance, are not trustworthy. Referring to the evidence of P.W. 9 and P.W. 10, it was submitted that they are signatories in the inquest report. But there is no mention of the name of the assailant in the said report. As regards recovery of the weapon of offence, MR. Mitra submitted that there is no statement of the accused recorded by the police which led to recovery. In this context he referred to the decision of the Apex Court in the case of Bodh Raj @ Bodha. v. State of Jammy and Kashmir as reported in 2003 C Cr LR (SC) 206. The Apex Court in the said case observed as -follows :- "The basic idea embeded in Section 27 of the Evidence Act is a doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non- inculpatory in nature, but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the Section." 22. The information might be confessional or non- inculpatory in nature, but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the Section." 22. THE Apex Court in the said case sought to derive inspiration from a decision of P.C in Palukuri Kotayya v. Emperor, AIR 47 PC 67 the relevant observation is as follows :- "Fact discovered" envisages in the Section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect." In fact, mere statement that the accused led the police and the witnesses to the place while he had concealed the articles is not indicative of the information given. In such background, we really find it difficult to agree with the findings of the learned Trial Court in this regard. In fact, there is no statement of the accused recorded by the police before the Court which resulted in discovery. Thus, to place reliance upon such recovery referring to Section 21 of the Indian Evidence Act does not seem to have any rational justification. 23. IN course of submission, Mr. Mitra further referred to the decision in the case of Ramesh Maburao Devaskar and Ors. v. State of Maharashtra, (2009)1 SCC (Cr) 212. IN view of the nature of the evidence on record, as referred to earlier, we do not think that it is necessary to really refer to the findings of the Apex Court in the said case. 24. MR. Swapan Mullick, appearing as learned Counsel for the State/ respondent frankly admitted that the prosecution case is based on the evidence of P.W. 1, P.W. 9 and P.W. 10. But the combined effect of such evidences of the three witnesses does not in fact lead us anywhere. The entire effort made by the prosecution reminds one of the blind man searching a black cat in a dark room. There is absolutely no evidence so as to justify finding of guilt. We thus fail to brush aside the assertions made on behalf of the appellant. The impugned judgment and order, in our opinion, does not pass the test of judicial scrutiny. 25. ACCORDINGLY, the appeal succeeds. 26. There is absolutely no evidence so as to justify finding of guilt. We thus fail to brush aside the assertions made on behalf of the appellant. The impugned judgment and order, in our opinion, does not pass the test of judicial scrutiny. 25. ACCORDINGLY, the appeal succeeds. 26. THE judgment and order dated November 10, 2006 passed by the learned Additional Sessions Judge, third Court, Darjeeling in Sessions Case No. 47 of 2005/ Sessions Trial No. 15 of 2006 and the order dated 13th November, 2006 passed by the learned Additional Sessions Judge, third Court, Darjeeling are set aside. The appellant/accused person be held not guilty of the offence under Section 302 of I.P.C. and be acquitted accordingly. 27. HE be released forthwith and learned Trial Court is to issue the release order accordingly. 28. SEND a copy of the judgment along with the case record to the learned Trial Court at once.