JUDGMENT AND ORDER (ORAL) [Katakey, J.] This appeal is directed against the judgment of conviction dated 29.11.2010 passed by the learned Sessions Judge, Hailakandi, in Sessions Case No.21/2008, convicting the appellant under Section 302 IPC and sentencing him to undergo rigorous imprisonment for life and to pay a fine of Rs.5,000/-, in default, to suffer simple imprisonment for further period of 2(two) months. 2. Based on the G.D. Entry No.636, dated 21.02.2008, made by Sri Ajit Chakraborty (PW-8), Officer-in-Charge of Lala Police Station, the police started investigation into the killing of the appellant’s wife Meherun Nessa and visited the place of occurrence, where a written FIR was filed by Zakir Hussain Borbhuiya (PW-3) on 21.02.2008 alleging that Mehrun Nessa has been found dead in her house and as the appellant was found to be absent, the people of the locality suspect him to be the killer. Lala Police Station Case No.80/2008 has then been registered under Section 302 IPC on the basis of the said first information report. During investigation the police recorded the statements of the witnesses acquainted with the facts under Section 161 Cr.P.C., conducted the inquest and also sent the dead body of Mehrun Nessa for post mortem examination. Police also seized a piece of wood vide Ext.-3 from the place of occurrence. On completion of the investigation the police charge-sheeted the accused appellant under Section 302 IPC. The case being exclusively triable by the Court of Sessions, the case was committed by the learned Addl. Chief Judicial Magistrate, Hailakandi, on 13.06.2008 to the Sessions Court, based on which Sessions Case No.21/2008 has been registered in the Court of the learned Sessions Judge, Hailakandi. Charge under Section 302 IPC was framed on 26.06.2008 by the learned Sessions Judge, which when read over and explained to the accused appellant, he denied the same and claimed to be tried. Hence the trial commenced. 3. During the course of trial, the prosecution in order to bring home the charge framed against the accused appellant examined 8(eight) witnesses, namely, Dr. K.Z. Choudhury (PW-1), who conducted the post mortem examination on the dead body of Mehrun Nessa, the deceased; Sri Fakrul Islam Mazumdar (PW-2), Sri Zakir Hussain (PW-3), the first informant; Sri Moinul Haque Laskar (PW-4); Sri Samsul Haque Laskar (PW-5); Musst. Fakrun Nessa Laskar (PW-6); Musst. Bilatun Nessa (PW-7) and Sri Ajit Chakraborty (PW-8), the Investigating Officer. K.Z. Choudhury (PW-1), who conducted the post mortem examination on the dead body of Mehrun Nessa, the deceased; Sri Fakrul Islam Mazumdar (PW-2), Sri Zakir Hussain (PW-3), the first informant; Sri Moinul Haque Laskar (PW-4); Sri Samsul Haque Laskar (PW-5); Musst. Fakrun Nessa Laskar (PW-6); Musst. Bilatun Nessa (PW-7) and Sri Ajit Chakraborty (PW-8), the Investigating Officer. Sri Tazamul Ali Laskar, on the basis of whose information G.D. Entry No.636, dated 21.02.2008 (Ext.-5) was recorded, was examined as Court witness. The defence though cross-examined the witnesses examined by the prosecution, he, however, did not lead any evidence in defence. The statement of the accused appellant under Section 313 Cr.P.C. was recorded. 4. The learned Sessions Judge, upon appreciation of the evidence adduced by the prosecution passed the judgment convicting the accused appellant, based on the circumstantial evidence, as there were no eye witness to the occurrence. Hence the present appeal. 5. We have heard Ms. Anjali Das, learned amicus curiae and Mr. Dhanesh Das, learned Addl. Public Prosecutor. 6. The learned amicus curiae referring to the deposition of witnesses examined by the prosecution in support of the charge framed against the accused appellant has submitted that admittedly there is no eye witness to the occurrence and that apart there is no circumstances appearing against the accused appellant so as to convict him for the offence committed under Section 302 IPC and hence the learned Sessions Judge ought not to have convicted the accused appellant under Section 302 IPC. The learned amicus curiae further submits that none of the prosecution witnesses has stated about the presence of the accused either just before the occurrence or at the time of occurrence or immediately thereafter in the house of the accused, where the dead body of his wife was found. That apart, according to the learned amicus curiae, none of the witnesses examined by the prosecution has stated anything relating to involvement of the accused with the commission of the crime. It has also been submitted by the learned amicus curiae that though PW-4 in his evidence has stated about making an extra judicial confession by the accused, such confession cannot be the basis for recording the conviction, since admittedly the same was allegedly made while he was in custody of the police and in the police station. It has also been submitted by the learned amicus curiae that though PW-4 in his evidence has stated about making an extra judicial confession by the accused, such confession cannot be the basis for recording the conviction, since admittedly the same was allegedly made while he was in custody of the police and in the police station. The learned amicus curiae, therefore, submits that the judgment of conviction recorded by the learned Sessions Judge needs to be set aside. 7. The learned Addl. Public Prosecutor, on the other hand, supporting the judgment of conviction, has submitted that it appears from the deposition of prosecution witnesses examined in support of the charge framed against the accused appellant that the prosecution could prove the circumstances appearing against the appellant and since the chain of circumstances is complete, which leads to the guilt of the accused alone and no one else, the learned Sessions Judge has rightly recorded the judgment of conviction, which does not require any interference in appeal. 8. We have considered the submissions advanced by the learned counsel for the appearing parties and also perused the evidence adduced by the prosecution in support of the charge levelled against the accused appellant. 9. The prosecution in order to prove the charge, under Section 302 IPC framed against the accused appellant, has examined Dr. K.Z. Choudhury, who conducted the autopsy on the dead body of the deceased Mehrun Nessa, as PW-1, who in his deposition has stated about the injuries found on the body of the deceased, which are reproduced below:- “1. The left side of the head is found depressed anterio-posteriorly and show a massive lacerated injury measuring 21.3 cm x 6.3 cm x 5.2 cm. Brain matter is seen scattered around the lacerated injury. 2. On lacerated injury of size 3.4 cm x 1 cm x ½ cm, seen on the right side of the nasal bridge. 3. One lacerated injury of size 4.2 cm x 2 cm x 1 cm is seen on the right frontal region just behind the hair line. 4. One lacerated injury of size 1 cm x 1 cm x ½ cm is seen on the right maxillary region of the face, left side of the frontal bone, left parietal bone and the left temporal bone. 4. One lacerated injury of size 1 cm x 1 cm x ½ cm is seen on the right maxillary region of the face, left side of the frontal bone, left parietal bone and the left temporal bone. The meninges of the left side of the brain are found crushed and torned and covered with some brain matter and blood. The frontal lobe temporal lobe and parietal region and anterior part of the occipital bone of the left cerebral hemosphere show massive laceration.” The doctor has opined that the death was caused due to massive crush injury on the left cerebral haemosphere following the grievous crush injuries on the skull caused by a massive blow on the left side of the head by a heavy blunt object. Though the accused appellant has cross-examined this witness, he, however, did not dispute the injuries found on the body of Mehrun Nessa and also the cause of death. The prosecution could, therefore, prove that the death was caused to Mehrun Nessa because of the injuries found, which are homicidal in nature. 10. The next question which requires determination, based on the evidence adduced by the prosecution, is whether the accused appellant is the author of the crime. As noticed above, the prosecution in order to prove the guilt of the accused appellant, apart from examining the PW-1, has also examined PWs-2 to 8. Tazamul Ali Laskar, on the basis of whose information G.D. Entry No.636 dated 21.02.2008 was registered, has also been examined as Court witness, he having not been examined by the prosecution. 11. PW-2 Fakrul Islam Mazumdar is a reported witness. This witness in his evidence has stated that he was present when the accused was interrogated by the police at the police station and during interrogation the accused confessed before the police that he has committed the murder of his wife Mehrun Nessa with the help of a wooden hammer. This witness, however, during cross-examination has stated that the accused did not specifically mention whom he has killed. PW-3 Zakir Hussain is another reported witness, who came to the place of occurrence on being informed about the death of Mehrun Nessa and saw the police personnel at the place of occurrence. This witness has further stated that he thereafter lodged the first information report (Ext.-2). PW-3 Zakir Hussain is another reported witness, who came to the place of occurrence on being informed about the death of Mehrun Nessa and saw the police personnel at the place of occurrence. This witness has further stated that he thereafter lodged the first information report (Ext.-2). During cross-examination this witness has stated that he lodged the first information report as per direction of CI of Police and whatever has been written is as per his instruction. During cross-examination he has further stated that after the occurrence though they also made an enquiry to find out the culprit, but they were not successful. PW-4 in his deposition has stated relating to making confession by the accused while he was interrogated by the police in the police station. PW-4 during cross-examination has also stated that while he visited the place of occurrence, the people present there, were discussing that the accused was a mad person and after committing the crime he fled away. 12. PW-5 Samsul Haque Laskar, elder brother of the accused, is another reported witness, who came to the place of occurrence on being informed about the death of Mehrun Nessa. This witness is also the witness to the seizure of a wooden hammer. According to this witness the accused was taken into custody after 4/5 days of the occurrence when he was found loitering adjacent to his house. During cross-examination this witness has stated that the accused was suffering from insanity at the time of occurrence. PW-6, another reported witness, in his deposition has stated that on receiving the information about the death of Mehrun Nessa, he came to the place of occurrence and did not find the accused at the house and thereafter the dead body was taken to the Hailakandi Civil Hospital for conducting the post mortem examination. He has stated that he cannot say who committed the murder. PW-7 Musst. Bilatun Nessa, was the first person who came to the place of occurrence. This witness has stated that on the date of occurrence she went to the house of the deceased Mehrun Nessa to bring some vegetables and on her arrival she found the door of the house was closed, which was not open despite raising the alarm, so she pushed the door and found the dead body of Mehrun Nessa lying on the floor. This witness has further stated that she raised hue and cry and at that time the neighbouring people came to the spot and noticed the dead body of Mehrun Nessa. This witness has also stated that she did not find the accused in the house, apart from deposing that she does not know who has killed Mehrun Nessa. PW-8 is the I.O., who has deposed about the investigation carried out by him and the seizure of the wooden hammer. Tazamul Ali Laskar, who has been examined as CW-1, in his deposition has stated relating to the information furnished to the police, based on which the G.D. Entry has been recorded. 13. From the aforesaid evidence of the prosecution witnesses, it, therefore, appears that there is no eye witness to the occurrence. The prosecution story was based on the circumstantial evidence. To record conviction on the basis of the circumstantial evidence, there must appear the circumstances against the accused appellant and chain of circumstances must be complete, which points to the guilt of the accused person alone and no one else. 14. From the discussion of the evidence of the prosecution witnesses, it transpires that none of the prosecution witness has stated anything about the presence of the accused appellant at his house either just prior or at the time of occurrence or immediately thereafter. On the other hand, PWs-4 and 5 have stated about the insanity of the accused appellant. The story of the prosecution relating to the confession made also cannot be believed as except PW-4, who claims to be present at the time when such confession was made, no other witnesses, who also claimed to be present at the relevant point of time, supported such version of PW-4. That apart, such statement having been made in presence of the police during interrogation, it cannot be the basis for recording the conviction of the accused appellant. The prosecution could not prove any incriminating circumstances appearing against the accused appellant and hence the learned Sessions Judge ought not to have recorded the judgment of conviction against the appellant convicting him under Section 302 IPC. 15. The judgment of conviction dated 29.11.2010 recorded by the learned Sessions Judge, Hailakandi, in Sessions Case No.21/2008, convicting the accused appellant under Section 302 IPC is, therefore, set aside. 15. The judgment of conviction dated 29.11.2010 recorded by the learned Sessions Judge, Hailakandi, in Sessions Case No.21/2008, convicting the accused appellant under Section 302 IPC is, therefore, set aside. The accused appellant is directed to be released from custody forthwith, if not wanted in any other case. 16. The appeal is accordingly allowed by setting aside the judgment of conviction. 17. The learned amicus curiae shall be paid the professional fee of Rs.7,500/- by the State within a period of 1(one) month from today. 18. Registry is directed to send down the records.