JUDGMENT : ANJANA PRAKASH, J. Sole Appellant has been convicted and sentenced to R.I. for life and fine of Rs.5000/- under Section 302 I.P.C., in default of which rigorous imprisonment for another six months by judgment dated 27.1.2010/28.1.2010 passed by the Additional District & Sessions Judge IInd, Katihar in Sessions Trial No.139 of 2009/Trial No.121 of 2009. 2. The case of the prosecution, according to Informant Lalita Devi (P.W.8), is that the relationship between the Appellant and his wife was not good and they were constantly quarrelling, on account of which his wife used to stay in the maternal home. At one point in time the Appellant stated that his mother, the deceased, was the cause of the problems and he would finish her. On the night of occurrence the Appellant came and disclosed to her that he had killed his mother Sharda Devi i.e. the sister of the Informant, at which she went there and found the dead body of her sister with cut injury on the neck. The Appellant allegedly gave an extra judicial confession before the villagers and also in front of the police and disclosed that he had kept Dabiya in a nearby place which he also gave to the police 3. During trial the prosecution examined nine witnesses. P.W.1 Dr. Dayanand Roy conducted the postmortem of the deceased Sharda Devi and found the following injuries on her person : (i) Upper part on the front of the neck was sharply and transversely cut up to the level of survical vertibra. Manges of brain was pale and intact thorax both lungs and pale and intact heart impact and empty. Abdomen stomach contains 100-150 ml of fluid with small quantity of semi digested food and abdominal visceras are normal limit. Uterus small and normal limit. Urinary bladder empty and external genitalia NAD. He also proves the postmortem examination report as Exhibit 1. 4. P.W.2 Renuka Rani stated that on the night between 24/25.10.2008 the Appellant had killed his mother. When she went to the place of occurrence the next day at 11.30 A.M. she saw a big crowd of villagers and also the Officer Incharge. In front of the villagers and the Officer Incharge the Appellant confessed his guilt. In cross examination she stated that she had learnt about the occurrence the next day at 11 A.M. and was not an eye witness. 5. In front of the villagers and the Officer Incharge the Appellant confessed his guilt. In cross examination she stated that she had learnt about the occurrence the next day at 11 A.M. and was not an eye witness. 5. P.W.3 Pradip Kumar Mandal stated that on 24.10.2008 Sharda Devi was murdered and it was learnt that the Appellant had committed the murder. The next morning i.e. 25.10.2008 he went to the place of occurrence at 7 A.M. and saw the dead body with a cut injury on the neck. About 25-30 villagers had gathered there including P.W.2 Renuka Rani, who was Sarpanch of the village. In front of the villagers the Appellant gave his confessional statement which was recorded by the Daroga Jee. He signed on the same and he proves his signature as Exhibit 2/1. It was on the statement of the Appellant the Dabiya and a gunny bag used for wiping the hand was recovered. The seizure list was prepared by Chandra Shekhar Patro, upon which he signed and proves his signature as Exhibit 3. He also proves his signature on the fard beyan as Exhibit 4. In cross examination he stated that on seeing a crowd on the place of occurrence he had gone there. He stated that he had seen the dead body in one of the three houses of the Appellant and he was standing nearby with a white shirt. 6. P.W.4 Parmanand Mandal stated that about 9-10 months back while he was sleeping in the morning the Officer Incharge came and called him. So he went to the house of Appellant Dinesh Mandal where he saw the mother of the Appellant dead with a cut injury on her neck. He found the police questioning the Appellant. Choukidar said that the earth was freshly dug out and from inside, on the pointing out of the Appellant the sickle was recovered. The Appellant confessed that he had killed his mother with the said weapon. He stated that the Appellant had not confessed to his guilt in his presence. The Sarpanch Renu Kumari (P.W.2) was also not present at that point in time. Her husband was present since before he had reached. He stated that the police did not record his statement. It was the first time that he was giving the statement in Court. 7. P.W.5 Alok Kumar Rajak has been declared hostile. 8. The Sarpanch Renu Kumari (P.W.2) was also not present at that point in time. Her husband was present since before he had reached. He stated that the police did not record his statement. It was the first time that he was giving the statement in Court. 7. P.W.5 Alok Kumar Rajak has been declared hostile. 8. P.W.6 Kapildeo Mandal stated that about 10 months back in the morning he heard a hulla, upon which he reached the house of Appellant Dinesh Mandal and found his mother dead with cut injuries on the neck. The police recorded his statement and he went to Katihar for postmortem examination. He had seen a blood stained Dabiya. In cross examination he stated that he was not the Choukidar and on the order of Sarpanch he had gone along with the dead body. 9. P.W.7 A.S.I. Md. Sarif is a formal witness, who brought the material Exhibits to Court marked as Material Exhibits 1 and 2. In cross examination he stated that he had no personal information about the occurrence and there was not report as to whether the blood was of human or that of cattle. 10. P.W.8 Lalita Devi is the Informant, who did not support the case of the prosecution and hence was declared hostile. 11. P.W.9 Ajay Kumar Jha was an S.I., who was posted in Dandkhaura Police Station. On information he along with A.S.I. Chandra Shekhar Patro had gone to the village where Sri Patro recorded the fard beyan of the Informant. He proves his writing as Exhibit 5. He further stated that on the basis of the confessional statement of the Appellant in front of the villagers the Bora and Dabiya was recovered with which the Appellant had committed murder of his mother. He proves the signature of the witnesses on the seizure list as Exhibit 3. He proves the formal First Information Report in his hand as Exhibit 6 and that he took over investigation. He stated that the place of occurrence was a temporary structure made with straw which had two rooms and on the chouki of one of the rooms the dead body was found. The gunny bag and Dabiya was recovered from behind the house under the earth. He proves the Inquest report which is Exhibit 7. He stated that the place of occurrence was a temporary structure made with straw which had two rooms and on the chouki of one of the rooms the dead body was found. The gunny bag and Dabiya was recovered from behind the house under the earth. He proves the Inquest report which is Exhibit 7. In cross examination he stated that the fard beyan was not recorded by him nor did the Appellant give his statement before him. He further confirmed that apart from extra judicial confession there was no other material against the Appellant. 12. On going through the evidence, we find that there is no direct evidence against the Appellant. The circumstances as against him are : (i) Extra judicial confession: - Evidently as per the evidence of the witnesses it appears that the same was given before the police and therefore not admissible. (ii) The recovery of the Dabiya/sickle and gunny bag on the pointing out of the Appellant: - We find that there is very weak evidence in this regard since most of the witnesses, who had gone at the place of occurrence, did not confirm such a fact. P.W.2 Renuka Rani merely stated about the confession of the Appellant. P.W.3 Pradip Kumar Mandal has categorically stated that the seizure list was prepared by Chandra Shekhar Patro, who has not been examined. His statement with regard to recovery of the articles at his behest also appears confusing. P.W.4 Parmanand Mandal stated about the Choukidar had noticed that the earth was freshly dug and even though he stated that it was at the pointing out of the Appellant that the articles were recovered, he is not a signatory to the seizure list. P.W.6 Kapildeo Mandal has not stated anything about recovery of the articles at the pointing out of the Appellant. P.W.9 S.I. Ajay Kumar has stated that the statement of the Appellant was not recorded in his presence. 13. In such circumstances, we find the statement leading to recovery of the murder weapon is also not completely established. 14. In view of the discussions above, the appeal is allowed by setting aside the judgment of conviction and order of sentence passed by judgment dated 27.1.2010/28.1.2010 by the Additional District & Sessions Judge IInd, Katihar in Sessions Trial No.139 of 2009/Trial No.121 of 2009. 14. In view of the discussions above, the appeal is allowed by setting aside the judgment of conviction and order of sentence passed by judgment dated 27.1.2010/28.1.2010 by the Additional District & Sessions Judge IInd, Katihar in Sessions Trial No.139 of 2009/Trial No.121 of 2009. The Appellant Dinesh Prasad Mandal son of late Khokha Prasad Mandal, who is in custody, be released forthwith, if not wanted in any other case.