JUDGMENT ASHIM KUMAR ROY, J. 1. In a sessions trial held before the learned Additional Sessions Judge, Suri, Birbhum, the accused Sambhu Lohar was found guilty of committing murder of two persons, Biswanath Bagdi and Mohan Das and causing disappearance of the evidence of murder and was convicted under Section 302/201 IPC. He was sentenced to death for his conviction under Section 302 IPC and to suffer R.I. for 7 years and to pay a fine of Rs. 5,000/- and in default to suffer rigorous imprisonment for 6 months for his conviction under Section 201 IPC. 2. The Sessions Court referred the proceeding of the trial to this Court for confirmation of death sentence, whereupon the Death Reference No. 1 of 2011 was registered and the said order of conviction and sentence being challenged by the appellant, same gave rise to the Criminal Appeal No. 480 of 2011. 3. Both the aforesaid Death Reference and the Criminal Appeal are taken up for hearing together and are disposed of by this common judgment. 4. The case of the prosecution in brief runs as follows; The informant and his father Nirmal Kumar Dutta were the owner of an oil mill, viz., Joy Tara Oil Mill, situated on the ground floor of their residential house at Mayurakhi Sarani, Saithia, Birbhum. On the night of 9/10th September, 2010, three labours Biswanath Bagdi and Mohan Das, the deceased and Sambhu Lohar, the appellant were running the mill. At around 1 a.m. the informant and others woke up from their sleep, hearing a hue and cry of the local people and found smoke was coming out from their mill. He immediately tried to enter into the mill through their staircase leading to the oil mill but it was locked from outside. Thereafter, the lock was broken by the local people and they entered inside the mill and found two labours, viz. Biswanath Bagdi and Mohan Das were lying almost dead inside the mill with bleeding injuries on their heads and their wearing apparels were partly burnt and covered with gunny bags, while the other labour, the appellant Sambhu Lohar was not there. At that time they also noticed fire there. Biswanath Bagdi and Mohan Das were lying almost dead inside the mill with bleeding injuries on their heads and their wearing apparels were partly burnt and covered with gunny bags, while the other labour, the appellant Sambhu Lohar was not there. At that time they also noticed fire there. After sometime Sambhu Lohar came there and on being asked he informed he went to attend nature’s call and when came back found 3/4 persons inside the oil mill were assaulting Biswanath and Mohan and out of fear he rushed to the G.R.P.S. and reported the incident but they asked him to inform Sainthia Police Station and after informing Sainthia Police Station and he after informing about the incident to Sainthia Police Station was coming back. 5. This is a case based entirely on circumstantial evidence and the circumstances relied upon are as follows; (a) The appellant Sambhu Lohar and the victims Biswanath Bagdi and Mohan Das were working in the Joytara Oil Mill, Sainthia as labourers. (b) On the fateful night, i.e. on 9/10th September 2010 the appellant and the deceased were on duty in the night shift. (c) When the incident came to the knowledge of the prosecution witnesses and they came to the mill the appellant was not found there. After sometime he returned and the answer he gave for his absence and about the incident was not at all satisfactory and evasive. (d) The appellant then made an extra-judicial confession before the prosecution witnesses admitting his guilt. (e) After his arrest pursuant to the information given by him and being led by him the offending weapon and a sedative drug Nitrosun - 10 Tablets were discovered and seized. (f) The motive of crime was previous quarrel between the victims and the appellant. (g) In post-mortem it was established that the victim died a homicidal death and the burn injuries were found in the body were post-mortem burn. 6. In course of trial the prosecution examined as many as 24 witnesses but defence examined none. 7. (f) The motive of crime was previous quarrel between the victims and the appellant. (g) In post-mortem it was established that the victim died a homicidal death and the burn injuries were found in the body were post-mortem burn. 6. In course of trial the prosecution examined as many as 24 witnesses but defence examined none. 7. It appears from the trend of cross-examination and the argument made before us by the learned Counsel of the appellant that it is the defence case that the appellant was never working in the oil mill and in order to grab the landed property of the appellant situated adjacent to the mill premises he has been falsely implicated for murdering the labourers Biswanath Bagdi and Mohan Das. 8. The order of conviction has been challenged from the side of the appellant on the following grounds; (a) There has been an unexplained delay of nearly five and half hours in lodging the First Information Report. (b) Nothing was mentioned in the FIR about any extra-judicial confession made by the appellant. (c) Even though the accused allegedly made an extra-judicial confession admitting his guilt but he was not arrested by the police until the FIR was lodged. (d) The written complaint was made over to the police on the next day at around 6.45 hours although the police came to the spot on the fateful night at around 2 a.m. (e) The conduct of prosecution witnesses more particularly PW/1 and PW/3 are quite unnatural. Even after finding the victims lying injured no arrangement was made for their treatment. (f) All the witnesses examined by the prosecution in support of its case, viz. PW/2 Dibakar Mondal, PW/4 Soumen Sarkar, PW/5 Chhidam Bagdi, PW/6 Siasaran Chowdhury and PW/7 Mithu Bittar are all the henchman of the complainant PW/1 Pinakilal Dutta and no independent witness was examined. (g) The recovery of the offending weapon at the behest of the appellant is of no value as one of the very vital witness to the seizure Sukumar Saha was not examined during the trial. (h) Although the seized offending weapon, the “Sabal” according to the prosecution was bloodstained but the same was not sent for chemical examination. (i) No document was produced from the side of the prosecution to prove that actually the appellant was working in the mill. (j) The evidence of prosecution witnesses are full of contradictions. (h) Although the seized offending weapon, the “Sabal” according to the prosecution was bloodstained but the same was not sent for chemical examination. (i) No document was produced from the side of the prosecution to prove that actually the appellant was working in the mill. (j) The evidence of prosecution witnesses are full of contradictions. (k) The prosecution has not been able to bring the case within the category of “rarest of rare cases” and therefore the sentence of death is not called for. 9. The learned Counsel of the appellant in support of his contention relied on the following decisions of the Hon’ble Apex Court, viz. (i) Lekhraj @ Harisingh v. State of Gujarat, reported in AIR 1998 SC 242 , (ii) State of U.P. v. Sukhbasi and Ors., reported in AIR 1985 SC 1224 and (iii) Ajay Singh v. State of Maharashtra, reported in (2007) 12 SCC 341 . 10. On the other hand, the learned Public Prosecutor supported the order of conviction and made the following submissions; (i) The sequence of events clearly depicts that there was no delay in lodging the complaint and even if there is some delay the same has been properly explained. (ii) The appellant was working in the oil mill as a labour was sufficiently proved by the PW/2 Dibakar Mondal, PW/4 Soumen Sarkar, PW/5 Chhidam Bagdi and PW/6 Siasaran Chowdhury, who were working in the same mill and no suggestion was given to them that what they are telling was a complete lie. (iii) Even the absence of documentary evidence in support of the fact that the appellant was working in the said mill that would not belie the prosecution case when the same is otherwise established. (iv) The extra-judicial confession of the appellant together with the recovery of the offending weapon and the sedative drugs which were used to make the victim unconscious pursuant to the information given by the appellant clearly prove his guilt. (v) Non-sending of the offending weapon to the Forensic Laboratory is a lapse on the part of the Investigating Officer and such lapse cannot be a ground for disbelieving the prosecution case which is otherwise reliable. 11. (v) Non-sending of the offending weapon to the Forensic Laboratory is a lapse on the part of the Investigating Officer and such lapse cannot be a ground for disbelieving the prosecution case which is otherwise reliable. 11. However, on the question of sentence the learned Public Prosecutor submitted that it may be two persons were killed but the nature of crime is not such, that would bring this case within the category of “rarest of rare cases”. 12. We have given our anxious and thoughtful consideration to the rival submissions of the parties. 13. This is a case entirely based on circumstantial evidence and it is an well-recognized principle of criminal jurisprudence in such case before reaching to any conclusion as to the guilt of the accused, it is the duty of the court to see that the circumstances from which conclusion of guilt is to be drawn has been fully established and all the circumstances so relied upon by the prosecution shall form a complete chain and the chain of evidence furnished by those circumstances must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In other words the circumstances must be of conclusive nature and consistent only with the guilt of the accused. 14. In the case at hand there is no dispute that both the deceased suffered a homicidal death. Now going through the post-mortem report and the evidence of the post-mortem doctor PW/21, we find nothing which may justify us to take a different view. 15. The prosecution in support of its case that the appellant was working in the Joytara Oil Mill as a labourer besides examining its proprietor, PW/1 Pinakilal Dutta and PW/3 Nirmal Kumar Dutta examined PW/2 Dibakar Mondal, PW/4 Soumen Sarkar, PW/5 Chhidam Bagdi and PW/7 Mithu Bittar. Similarly to prove that on the fateful night the appellant and the deceased Biswanath Bagdi and Mohan Das were on duty in the night shift, PW/1 Pinakilal Dutta, PW/2 Dibakar Mondal, PW/3 Nirmal Kumar Dutta and PW/4 Soumen Sarkar were examined. Defence except suggesting those witnesses that what they were deposing “was not a fact” could not able to highlight anything which may shatter their credibility. 16. It is true that in the First Information Report there is no reference about the alleged extra-judicial confession of the appellant. Defence except suggesting those witnesses that what they were deposing “was not a fact” could not able to highlight anything which may shatter their credibility. 16. It is true that in the First Information Report there is no reference about the alleged extra-judicial confession of the appellant. As the law stands for such omission if at all only the maker of the FIR can be discredited but not the other witnesses. In this case beside the PW/1 Pinakilal Dutta, the maker of the FIR, at least 3 witnesses, viz. PW/2 Dibakar Mondal, PW/3 Nirmal Kumar Dutta and PW/4 Soumen Sarkar testified on this count. Their evidence on the point of extra-judicial confession by the appellant admitting his guilt could not be shaken during their lengthy cross-examination. In fact except suggesting them they were not telling truth nothing has been brought out from their evidence to impeach their credibility. Therefore we are of the opinion the circumstances of extrajudicial confession by the appellant stands established. 17. The next circumstance relied upon by the prosecution against the appellant is the discovery of the offending weapon pursuant to the information given by the appellant. In this regard the statement of the appellant leading to the discovery of the offending weapon and recorded by the Investigating Officer has been exhibited during the trial and marked as Exhibit – 14, the same was proved by the Investigating Officer of the case. In support of the seizure of the said offending weapon prosecution examined two witnesses, viz. PW/4 Soumen Sarkar and PW/5 Chhidam Bagdi. According to the PW/4 Soumen Sarkar on 13.09.2010 at around 7.30 p.m. the police brought the appellant in the oil mill, when the appellant brought out the “Sabal” from the godown of the mustered seeds. Similar was the evidence of the other witness to the seizure PW/5 Chhidam Bagdi. We do not find anything from their cross-examination which may justify us to disbelieve the said witness on the point of recovery of the offending weapon at the behest of the appellant. It is true that one of the seizure witnesses Sukumar Saha was not examined during the trial but in our opinion non-examination of the said witness has no adverse effect on the prosecution case. It is an acknowledged and well-recognized principle of law “Evidence is to be weighed and not counted”. It is true that one of the seizure witnesses Sukumar Saha was not examined during the trial but in our opinion non-examination of the said witness has no adverse effect on the prosecution case. It is an acknowledged and well-recognized principle of law “Evidence is to be weighed and not counted”. No particular number of witnesses is required to be examined to prove any fact. This discovery of the offending weapon pursuant to the information given by the appellant is certainly a strong incriminating circumstance against him and pointing towards his guilt. 18. The Counsel of the defence laid much stress on the fact of non-sending of the offending weapon for Chemical Examination. No doubt this is a clear lapse on the part of the Investigating Officer but for the same the entire prosecution case cannot be disbelieved when it is otherwise established. 19. In this case we find during the examination of the PW/21 Dr. Partha Pratim Mukhopadhay, who held the post-mortem, the offending weapon in question was shown to him and according to the said witness the injuries found in the dead bodies could have been caused by such weapon. 20. Now taking all the aforesaid circumstances together, we have no doubt the guilt of the appellant has been well-established. Therefore, the appellant has very rightly been convicted for an offence punishable under Section 302 IPC. The order of conviction stands confirmed. 21. Now, coming to the question of sentence we find that the Trial Court imposed death sentence on the following findings; “This is a case of pre-planned brutal murder of two poor labours. The circumstances and manner of committing offence with the entire episode project a horrifying story of ghastly committed murder. The lurid details of commission of offence strips the cruel heart of convict Shambhu Lohar and make the case fall in bracket of rarest of the rare cases. In my opinion, thus, convict deserves sentence of death.” We are of the opinion that the findings on which the Trial court imposed the sentence of death that does not bring the case within the category of rarest of rare cases. 22. Furthermore, in the case of Bachan Singh v. State of Punjab, reported in (1980) 2 SCC 684 , the Hon’ble Apex Court laid down 7 conditions as the mitigating factors against the imposition of death sentence and out of those conditions the condition nos. 22. Furthermore, in the case of Bachan Singh v. State of Punjab, reported in (1980) 2 SCC 684 , the Hon’ble Apex Court laid down 7 conditions as the mitigating factors against the imposition of death sentence and out of those conditions the condition nos. 3 and 4 is very relevant for our case which are as follows; (3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society. (4) The probability that the accused can be reformed and rehabilitated. 23. It is now for the State to prove by evidence that the accused does not satisfy aforesaid two conditions. However in this case no evidence has been led from the side of the State to show that the accused does not satisfy those conditions. Therefore it will not at all be justified to uphold the order of sentence of death. 24. Accordingly, the appeal stands partly allowed and death reference is rejected. While the order of conviction is upheld the death sentence is converted to imprisonment for life. 25. The office is directed to send down the records together with the copy of this judgment to the court below at once. 26. Criminal Section is directed to deliver urgent Photostat certified copy of this Judgment to the parties, if applied for, as early as possible. Toufique Uddin, J.; I agree