JUDGMENT : In the present Jail Criminal Appeal, the appellant has challenged the order of conviction dated 19.8.2004 passed by the learned Ad hoc Additional Sessions Judge, Karnakhyanagar in Criminal Trial (Sessions) No. 22 of 2003/Criminal Trial (Sessions) No. 261 of 2003 under Section 302, IPC and consequent sentence to undergo imprisonment for life. 2. The prosecution case in brief is that the deceased (Gomati Pradhan) is the sister of the present appellant and mother of the informant (P.W.7). On 27.3.2003 at night, the mother of the informant slept after taking her meal. The appellant quarrelled with the mother of the deceased. The mother of the informant came there and protested the appellant. The appellant was asking for money from the mother of the deceased (Gomati Pradhan) to purchase battery for his tape recorder. When the mother of the informant protested the appellant as to why he was asking for money to her mother, the appellant got annoyed and brought a grinding stone (Silapua) which was kept in the house and gave a blow by throwing the grinding stone on the head of the deceased (Gomati Pradhan). The deceased fell down being unconscious. When the informant (P.W.7) called the deceased, she did not respond. The villagers came and told that Gomati Pradhan was dead. They took the dead body and kept the same inside the house. The informant (P.W.7) informed the matter to the Grama Rakhi and reported the matter at Mahabir Road Out-Post. The police registered the case and investigated the matter. After completion of investigation, the police submitted the charge sheet against the present appellant under Section 302, IPC. The defence plea is one of complete denial. 3. The prosecution in order to prove charges examined as many as 12 witnesses including the informant (P.W.7) and the mother of the deceased (P.W.10). The defence examined none. On completion of trial, the learned Ad hoc Additional Sessions Judge, Kamakhyanagar convicted the present appellant under Section 302, IPC basing upon extra judicial confession made by the appellant before P.W.3 and the evidence of P.W.6. 4. Mr. The defence examined none. On completion of trial, the learned Ad hoc Additional Sessions Judge, Kamakhyanagar convicted the present appellant under Section 302, IPC basing upon extra judicial confession made by the appellant before P.W.3 and the evidence of P.W.6. 4. Mr. J. Dash, learned counsel for the appellant assailed the judgment of the trial Court on the following ground; Conviction of the appellant cannot be sustained basing upon of the evidence of P.W.3 before whom the appellant made an extra judicial confession, when his evidence has been demolished in cross-examination and when the same is also not supported by P.W.12, the I.O. He also submitted that the last seen theory as relied upon by the learned Court below has not legs to stand. 5. Mr Sk. Zafarulla, learned Additional Standing Counsel for the State submits that the evidence of P.W.3 is sufficient for conviction of the present appellant. Such evidence is backed by the last seen theory. Further, evidence of P.W.6 also supported the prosecution case. 6. Perused the LCR and gone through the statements of the witnesses. P.W.1 is a co-villager and seizure witness. He turned hostile. P.W.2 is also a co-villager and post-occurrence witness and witness to the inquest. He proved the inquest report vide Ext. 2. He also turned hostile. P.W.3 was the Ward Member and a post-occurrence witness and a witness to the seizure of Grinding Stone (Sila Pua) (Ext. 1). He proved Ext. 1 and Ext. 2. In his examination-in-chief he stated that the appellant stated before him that he had killed the deceased (Gomati Pradhan) by assaulting on her head with the Sila Pua. In the cross-examination, he admitted that he was never examined by the police in this case or he has stated anything to the police. He had seen the dead body of the deceased, which was lying in the house facing upwards. He had seen injuries on the head and chest of the deceased at the time of inquest. Blood was coming out from those injuries. Further in the cross-examination he has stated that he does not know anything about the case. P.W.4 is the post-occurrence witness. In his examination-in-chief he stated that the occurrence took place in the Dola Jatra and he did not know anything about this case. Blood was coming out from those injuries. Further in the cross-examination he has stated that he does not know anything about the case. P.W.4 is the post-occurrence witness. In his examination-in-chief he stated that the occurrence took place in the Dola Jatra and he did not know anything about this case. From the mother of the deceased (P.W.10), he came to know that there was a quarrel between the appellant and the mother of the deceased for purchase of battery. Thereafter, when deceased protested, the appellant assaulted her. He came to know about the same from P.W.7. In the cross-examination he admitted that for the first time he was deposing in the Court about the incident. P.W.5 was the scribe of the FIR and witness to the inquest. In the cross-examination, he stated that he did not know the informant, his mother or Nirmala prior to the writing of the report. He proved the FIR under Ext. 3. He wrote the FIR as police asked the informant, to lodge a report. The contents of the inquest report was not explained to him, P.W.6 is the Doctor, who conducted the autopsy and found the following injuries: "External injuries : 1. Welling 4 cm x 4 cm present on left occipital area of the head starting from occipita parietal area, Internal Injuries : 2 (i) On dissection of the dead body of the deceased a haematoma 3 cm x 2 cm below the scalp of the left occipital area corresponding to the swelling. (ii). Haematom 2 cm x 2 cm on the duramatter and below the left occipital bone, brain matter was intact." P.W.6 opined that the cause of death was due to shock and head injury. The injuries were ante mortem in nature and was homicidal. The time of death was within 20 hours at the time of Post-Mortem Examination. Nothing has been elicited to demolish his evidence. He proved the Post-Mortem Examination Report under Ext. 4. P.W.7 is the informant and is the son of the deceased. He in his examination-in-chief stated that the appellant killed his mother by assaulting her with a Sila Pua on her head. The appellant was asking money from his mother. When his mother protested, he assaulted her. The matter was reported to the police. In the cross-examination, he stated that he had not seen the deceased at the time of her death. The appellant was asking money from his mother. When his mother protested, he assaulted her. The matter was reported to the police. In the cross-examination, he stated that he had not seen the deceased at the time of her death. He heard from others that the appellant dealt a blow with a Sila Pua on the head of his mother and she died for the same. P.W.8 in his examination-in-chief stated that the appellant is his uncle-in-law (Kaka Sasura). Returning from the Jatra, he saw the dead body of the deceased lying in the house. In the cross-examination, he admitted that he had not seen the assault on the deceased. P.W.9 is the wife of P.W.8. In her examination-in-chief, she stated that she along with her husband (P.W.8) and the informant (P.W.7) had been to witness Opera show at night. P.W.10, the deceased and appellant were there in their house. After returning from the Opera show, Ali Bewa (P.W.10) told him that the appellant had killed the deceased (Gomati Pradhan) by assaulting her with a Sila Pua on the head. In the cross-examination, she admitted that P.W.10, her grandmother was unable to see properly due to her old age. Further she admitted that she had stated before P.W.12 that the appellant had also gone to witness the opera show. Such version of P.W.9 has been supported by P.W.12. P.W.10 is the mother of the appellant. In her examination-in-chief she stated that she was unable to see properly due to her old age. On the night of incident, the deceased was with her and had also slept with her. She cannot say whether the appellant was present in the house in the night of incident or had been to witness the opera show. She could know the death of the deceased in the early morning. In the cross-examination, she admitted that P.Ws. 7, 8 and 9 had been to witness the Opera show at night along with the appellant. P.W.11 is the brother of the appellant. In his examination-in-chief he stated that the occurrence took place about more than a year back. He could not say how his sister (deceased) died. P.W.12 was the O.I.C., Parjang Police Station. He registered the case; investigated the matter, and sent the dead body of the deceased for Post-Mortem Examination. He also examined the witnesses, seized the Sila Pua. In his examination-in-chief he stated that the occurrence took place about more than a year back. He could not say how his sister (deceased) died. P.W.12 was the O.I.C., Parjang Police Station. He registered the case; investigated the matter, and sent the dead body of the deceased for Post-Mortem Examination. He also examined the witnesses, seized the Sila Pua. After receipt of Post-Mortem Examination Report and upon completion of investigation, he submitted the final form. In the cross-examination, he admitted that P.W. has not stated before him that the appellant killed the deceased by assaulting her with the Silapua on the head and that P.W.9 had told him that the appellant had been to witness Jatra. 8. On scanning of the entire evidence, it is crystal clear that P.W.3 for the first time has made a statement before the Court about the extra judicial confession. He did not state before the I.O. about the confession made by the present appellant. P.W.3 also admitted in the cross-examination that he did not know anything about the case. In view of the above, it appears that P.W.3 is not a believable witness and basing upon his statement before the Court, conviction cannot be sustained. By relying upon the evidence of P.W.3 the trial Court has gone wrong. Actually such suspicious circumstances, there exists no legal proof of extra-judicial confession. In this context, this Court relies upon the decisions reported in AIR 1959 SC 1012 (Tahasildar Singh and another v. State of Uttar Pradesh) and 1983 Cri.L.J. 521 (Sadasiva Jena v. State of Orissa). Basing upon the ratio decided in the aforesaid judgments, this Court is not in a position to accept the evidence of P.W.3. P.Ws. 9 and 10 are the witnesses to the last seen theory as contended by Mr. Sk. Zafarulla. On scanning of evidence of P.Ws. 9 and 10, it is crystal clear that they are not the witnesses to the last seen theory. P.W.9 in the cross-examination admitted that the appellant also had gone to witness the Opera show. P.W.10 also corroborated the evidence of P.W.9. P.W.10 in her examination-in-chief stated that she was unable to see properly due to her old age. In the cross-examination, P.W.10 stated that P.Ws. 7, 8 and 9 had been to witness the Opera at night along with the appellant. 9. P.W.10 also corroborated the evidence of P.W.9. P.W.10 in her examination-in-chief stated that she was unable to see properly due to her old age. In the cross-examination, P.W.10 stated that P.Ws. 7, 8 and 9 had been to witness the Opera at night along with the appellant. 9. In view of the above, the trial Court has illegally convicted the appellant. The Jail Criminal Appeal is accordingly allowed. It is stated by the learned counsel for the appellant that the appellant is languishing in custody from the date of his arrest. If that be so the appellant (Murali Pradhan) be set at liberty forthwith, unless his detention is required otherwise. Appeal allowed.