JUDGMENT : Songkhupchung Serto, J. 1. By this judgment and order, the criminal appeal and the writ petition are being disposed of together since, the cause of action in both the petitions are the same. The criminal appeal is directed against the judgment and order dated 18.02.2015, of the learned Sessions Judge, Dimapur, passed in G.R. Case No. 339/2013 corresponding to Dimapur (West) Police Station Case No. 61/2013, by which the respondent/(accused) was acquitted of the offences charge against him under section 302/376(1)/380/447 of IPC. The writ petition under Article 226 of the Constitution of India read with under section 482 of Cr. P. C, 1973, was filed by the sister of the victim in the Dimapur (West) Police Station Case No. 61/2013, praying for quashing and setting aside the order dated 22.08.2014, passed in G.R. Case No. 339/2013 corresponding to Dimapur (West) Police Station Case No. 339/2013, by the learned Sessions Judge, Dimapur, acquitting three of the accused persons in the case namely, T. Yapang Ao, Samarenba and Santosh Nath, under section 233 of Cr. P.C, and also praying for quashing and setting aside the final judgment and order dated 18.02.2015, passed by the same learned Sessions Judge acquitting the last accused Rikumkaba @ Rikum, and further praying for a direction directing the State respondents to handover the case to the CBI for conducting further investigation of the case and to give adequate relief(s) to the family members of the deceased victim. Facts of the case: On 04.07.2013 at about 7:00 to 7:30 A.M. a verbal information was received at Dimapur (West) Police Station from one Havildar Arenba, Nagaland Police, that a dead body was found at the residence of Mr. T. Yapang Ao at Residency PWD Colony, Dimapur. Following the verbal information, the Police visited the residence of Mr. T. Yapang Ao, where they found a dead body of a female lying naked with her throat slit and the handle of a mop inserted in her private part. On further checking they found a bite mark on the left breast of the deceased. They also found at the place of occurrence a blood stained machete, a blood stained potato peeler, a brick stained with blood and hairs stuck on it, two kitchen knives, a mop, a blood soaked pillow and two bed sheets. The same were seized by observing the formalities of seizure. They also found at the place of occurrence a blood stained machete, a blood stained potato peeler, a brick stained with blood and hairs stuck on it, two kitchen knives, a mop, a blood soaked pillow and two bed sheets. The same were seized by observing the formalities of seizure. Inquest was conducted over the dead body and on completion of all formalities the dead body was sent to Civil Hospital, Dimapur for post-mortem examination. On the same day, Mr. T. Yapang Ao in whose residence the dead body was found was summoned to the Police Station and he was asked to file a written FIR. Accordingly, a written FIR was prepared by Mr. T. Yapang Ao with the help of the Police personnel and submitted the same to the Police Station. In the written FIR, it was stated that his sister-in-law late Nungshilila was found murdered at his residential compound at Residency PWD Colony, Dimapur, by unknown miscreants and she was found naked and suspected to have been raped. He also stated that his room was also found ransacked by the miscreant. The Police thereafter, registered Dimapur (West) Police Station Case No. 61/2013, under section 376(1)/302/380 of IPC and conducted the investigation. During the investigation, the complainant and other witnesses were examined by the Police. During such examination, the complainant also mentioned that a sum of Rs. 2,50,000/- was found missing from his almirah. The Police suspected the complainant, Samarenbaand Santosh Nath because they were together in the place of occurrence the previous night, therefore, they were arrested and interrogated. In the meanwhile, on 05.07.2015 in a hotel at Kohima namely, Capital Hotel, the personnel of North Police Station, Kohima on a routine check found Rikumkaba @ Rikum (the prime accused) in possession of a sum of Rs. 1,25,325/-, the source of which he could not explained properly when asked. At first, he stated that the money was meant for his uncle but he could not give the address of his uncle so he changed his statement by stating that he found the money on the road and had stated that he found the same in an auto-rickshaw. The Police suspected that he had stolen the money, therefore, he was taken to Kohima North Police Station along with his friends namely, Miss Nicka Chishi, Mr. Imkongakum, Mr. Jaffrey, Mr. Takusashi and Mr. The Police suspected that he had stolen the money, therefore, he was taken to Kohima North Police Station along with his friends namely, Miss Nicka Chishi, Mr. Imkongakum, Mr. Jaffrey, Mr. Takusashi and Mr. Tovi Zhimo who were with him in the hotel. While in the Police Station, it was noticed that the respondent in the Criminal Appeal Rikumkaba @ Rikum had recent injury marks over his body that is on his right ankle, right thumb, beneath lower jaw and neck for which he could not give any satisfactory answer. He also could not give convincing explanation regarding the source of the money which was seized from him. In the course of the interrogation, he broke down and disclosed that while stealing the money from the house of his uncle T. Yapang, the deceased/victim happened to saw him as he was passing through the room which she was sleeping. In order to hide his misdeed he killed her by hitting on her head with a brick and slitting her throat with a machete (dao) and to make it look like a rape and murder, he bite her left breast and insert the handle of a mop on her private part. Two of the persons with whom the accused Rikumkaba @ Rikum were arrested also admitted that they were presented with new mobile phones purchased by Rikumkaba @ Rikum. It was also stated by the five accused persons who were arrested with Rikumkaba @ Rikum that on 04.07.2013 they were all invited by Rikumkaba @ Rikum for marry making and enjoyment at restaurants and discotheques at Dimapur and they spend the whole night till the morning of 5th July and went to Kohima where they check in at Capital Hotel. All the expense were borne by Rikumkaba @ Rikum, All of them were also arrested. However, since no connection was found between the crime the other accused persons they were released on bail bond. On 06.07.2013, the respondent/Rikumkaba @ Rikum was produced before the Magistrate and he was remanded to Police custody for 15 days prayed for. On 19.07.2013, the accused/Rikumkaba @ Rikum was once again produced before the Magistrate concerned for judicial remand and a prayer for recording his confessional statement under section 164 of Cr.P.C was also submitted. The Judicial Magistrate recorded the confessional statement of Rikumkaba @ Rikum and thereafter, he was remanded to judicial custody. On 19.07.2013, the accused/Rikumkaba @ Rikum was once again produced before the Magistrate concerned for judicial remand and a prayer for recording his confessional statement under section 164 of Cr.P.C was also submitted. The Judicial Magistrate recorded the confessional statement of Rikumkaba @ Rikum and thereafter, he was remanded to judicial custody. In the course of investigation, blood samples of the respondent/Rikumkaba @ Rikum and that of T. Yapang Ao, Samarenba and Santosh Nath and the vaginal Swab of the deceased were collected and sent for forensic examination to ascertain as to whether rape was committed on the deceased. The forensic report, however, shows negative. On completion of the investigation, the charge sheet was submitted only against the respondent/Rikumkaba @ Rikum and three others i.e. T. Yapang, Samarenba and Santosh Nath, under section 302/376(1)/447 of IPC. 2. On receipt of the charge sheet, the learned Sessions Judge, Dimapur, registered G.R. Case No. 339/2013 and tried the case. Though, the prosecution submitted lists of 26 PWs but examine only 25 P.Ws. The prosecution also exhibited 27 Exhibits. After the examination of the prosecution witnesses was completed all the accused persons were examined on 11.08.2014 under section 313 of CrPC. Date 22.08.2014, was fixed for hearing of the parties under section 232 of CrPC. On that day, the learned Sessions Judge, Dimapur, heard the learned P.P. and defence counsel under section 232 of Cr. PC and acquitted the accused T. Yapang, Samarenba and Santosh Nath for lack of evidence but directed that the accused Rikumkaba @ Rikum to produce DWs. The contents of the order dated 22.08.2014, are reproduced here below;- "Accused Rikum produced from J/C. Accused on bail Yapang, Samarenba and Santosh Nath present. I have heard P.P as well the defence counsels u/s. 232 Cr. PC. I am of the opinion that this is a case of no evidence against accused. T. Yapang, Samarenba and Santosh Nath. Accordingly, they are acquitted from the charges u/s. 34, 376(1), 302, 380 IPC. Bail bonds stand discharged. Detailed order in separate sheets: As far as accused Rikum & Rikumkaba is concerned the court is not satisfied. That it is a case of 'no evidence'. Accordingly, defence is asked to adduce evidence. Defence counsel representing prays for same time to produce DWs. Re-fix on 8th September, 2014 for P.Ws. Accused Rikum to be produced on 8.9.14." 3. Detailed order in separate sheets: As far as accused Rikum & Rikumkaba is concerned the court is not satisfied. That it is a case of 'no evidence'. Accordingly, defence is asked to adduce evidence. Defence counsel representing prays for same time to produce DWs. Re-fix on 8th September, 2014 for P.Ws. Accused Rikum to be produced on 8.9.14." 3. On 0.8.09.2014, the date fixed for examination of DWs, the defence counsel submitted that no DWs would be examine for the accused Rikum & Rikumkaba. Therefore, the case was fixed for final hearing. After hearing the parties on 30.10.2014, the final judgment was announced on 18.02.2015, wherein the prime accused Rikum & Rikumkaba was acquitted of all the charges. The statement of PWs and the operative portion of the judgment and order are giver here below;- "14. Evidence For a better appreciation of the evidence the relevant portions of the depositions of the P.Ws are extracted as under. P.W. 1-S.I. Ramokla (Assisting I.O): She states, "along with the I.O went to the village of the victim's sister and brought her back to Dimapur and along with the I.O recorded her statement. I also assisted the SDPO in drawing the blood samples of the accused persons for sending it to the FSL for expert opinion. Cross-examination: • I was not an arresting officer in this case. • After the arrest of the accused persons I did not personally interrogate any of them. • I examined only the victim's sister. • My part in the investigation in this case was limited to examination of the victim's sister and the drawing of blood samples from the accused. • It is correct to say that the name of the victim's sister I examined was Mrs. Watimongla. • Her statement was recorded into writing and handed over to the investigating officer. P.W-2 S.I. Atuono: She states, "On 4th July 2013 evening, we examined some witnesses along with the West O.C at West P.S. and on 6th July, 2013 I along with S.I. Ramokla examined some of accused Rikum's friends and on 7th of July, 2013, I was deputed to Kohima to inquire where they had bought the three mobile handsets from and it was ascertained that they had bought it from one shop called Libra International near Capital Hotel. Sometime in the month of August 2013 I took blood samples of the accused Samarenba, Santosh and Yapang for DNA test. Cross examination: • I was involved in the investigation from the very beginning. • I was not involved in the arrest of the accused Rikum. Even after his arrest, as a member of the SIT, I did not have any interaction with the accused Rikum. • It is correct that I the investigation process, my role was confined to drawing of blood sample of the accused for DNA analysis. The blood sample of the accused Rikum was also taken for DNA analysis. • In the instant matter, the allegation against the accused is rape and murder of deceased Nungshilila. Re-examination It is correct to say that besides rape and murder, the charge of robbery is also booked against the accused persons. P.W. 3 Relo T. Aye SDPO: He states, "At present I am serving as SDPO Dimapur. I am not actually the SDPO Niuland, however at that point of time SDPO Niuland was on leave, so I was taking charge of SDPO Niuland besides my normal official assignment. On 4th July 2013 after the incident was reported to the West P.S, an SIT was constituted and I was made the team leader for investigation of the case. On the same day basing on strong circumstantial evidence three accused persons namely Yapang, Samarenba and Santosh Nath were arrested. On the 5th July evening we received information from Kohima Police that six youth were detained as they were suspected to be involved in the instant case and some unaccounted cash was found in the possession of one of them i.e. Rikumkaba. Out of the six detained by the Kohima police, one Rikumkaba was suspected to be involved in the instant case. Accordingly, we dispatched police personnel for Kohima to bring the six youths detained from Kohima. The six youths detained by the Kohima police were brought to Dimapur West P.S. and their statements taken. During interrogation one of the six youth brought to Dimapur i.e. Rikumkaba admitted to the commission of the offence. He stated that he went to his uncle Yapang's house to steal his wallet and while stealing the wallet, he saw that the outer door of the almirah was open and thought that the locker was open, but when he tried to open it was locked. He stated that he went to his uncle Yapang's house to steal his wallet and while stealing the wallet, he saw that the outer door of the almirah was open and thought that the locker was open, but when he tried to open it was locked. Thereafter, he went to the kitchen and collected one naga dao and three knives and somehow with that he managed to open the locker, inside the locker he found bundles of cash wrapped in a polythene bag. He took the money and while going out a thought came to him that he should also steal the victim's bag, while trying to steal the victim's bag, the victim got up and called his name and asked him what he was doing at such an odd hour. Accused Rikum sensing that he could be caught, caught hold of the victim's mouth, pulled her out of the bed along with the mosquito net and while struggling the accused and the victim fell into a small drain at that point of time. The victim called out "Oku Yapang" 2 to 3 times. After that the neighbour of the accused Yapang by the name Bendangla was woken up and his neighbour P.W. 4 told the SIT that she heard someone threatening the victim in nagamese not to make any noise and she also heard the victim replying that she would not shout for help in nagamese. Accused Rikum said that he picked up the brick and started hitting the victim on the head with the brick. Thereafter, accused Rikum stabbed the victim with a sharp potato peeler on the back side of the head and since the victim was still moving, the accused took the naga dao and slit her throat. At that point of time accused Rikum remembered the Boro-lengri murder incident where the accused had dressed up the crime scene to make it look like a rape. He therefore pulled up the victim's T-shirt, bit the breast of the victim, pulled down her half pant, caught hold of a mop with a handle and inserted the handle inside the victim's private part. At that point of time accused Rikum remembered that he had left the wallet inside the house. He therefore went inside, picked it up and left the house by jumping over the neighbour's gate. At that point of time accused Rikum remembered that he had left the wallet inside the house. He therefore went inside, picked it up and left the house by jumping over the neighbour's gate. Outside the gate he changed his clothes and put them in a polythene bag, he also checked Yapang's wallet, took out Rs. 4000/- and put back the wallet in a polythene bag along with his changed clothes and threw the bag somewhere around PWD junction. Thereafter, he went back to his uncle's house where he was staying and hid the money in a place behind the house, had a bath and went to sleep but he could not do so. Next morning his (Rikum's) aunty at about 8 o'clock informed him that the victim Alila had been murdered and also told him to attend the funeral service. Accordingly, he went to attend the funeral service of deceased. But accused Rikum stated that he was disturbed and scared, so he left the funeral and went to his friend Sunep's house. He also called up his friend Imkong who came on his bike and together the three of them went to the stadium on Imkong's bike and had a few drinks there, after they finished drinking they went and bought some more. From there they called another friend Takusashi to get a vehicle but since Takusashi did not have a vehicle, he went to Jeffrey's house to ask for a vehicle. But they could not get a vehicle from Jeffry's house, so Rikum, Sunep and Imkong went to a liquor shop near super market. In the meantime Jeffrey called up Nicka his female friend who came along with her vehicle and another friend Apika. The four of them left for Super Market. On the way they met another friend Tovi and together they reached super market in a liquor shop. Rikum then took them to Blues Restaurant and after sometime Rikum told Nicka to take him to his house to fetch some more money. Nicka was asked to stop outside the house, after which Rikum returned back with a bundle of cash wrapped up in a polythene bag. On coming back to the restaurant, Nicka told Jeffrey that she was not comfortable with the huge amount of money which Rikum was carrying but Jeffrey told her that they should not interfere. Nicka was asked to stop outside the house, after which Rikum returned back with a bundle of cash wrapped up in a polythene bag. On coming back to the restaurant, Nicka told Jeffrey that she was not comfortable with the huge amount of money which Rikum was carrying but Jeffrey told her that they should not interfere. After having drinks in the restaurant, Rikum told the group that they should go to Kohima wherein they all agreed except for Sunep and Apika who stayed back in Dimapur. Thereafter, they left for Kohima and booked into a hotel from where they were caught by Kohima Police. Rikum was charge sheeted basing on his confession to the commission of the crime along with the material evidence of 1.2 lakh rupees (accused Yapang had stated that 2.5 lakhs rupees was stolen from the locker) Cross-examination: • I agree that my evidence in court today is totally against accused Rikum. • During the course of investigation I did not find any evidence to show that there was uniting of the mind for the commission of the crime. • It is true that I am the team leader of the SIT constituted to investigate the present case. • It is also correct to say that the story I have narrated about the commission was collected during the course of investigation. • The accused Rikum could not explain how he had caught hold of the money which was recovered from him (1.2 lakhs). On failing to explain the source of Rs. 1.2 lakhs which he was caught with, he finally confessed the commission of the crime. • Accused Rikumkaba confessed to the commission of the crime on 6th July 2013 at Dimapur West P.S. • It is correct to say that accused Rikumkaba was detained in police custody for 14 days and during that period no person had ever visited him. • It is correct to say that accused Rikumkaba was kept with basic facility during the police custody and no threats have been used by us/police. • It is also correct to say that during the 14 days police custody, accused Rikumkaba was thoroughly and continuously interrogated by the police. • It is correct to say that accused Rikumkaba was kept with basic facility during the police custody and no threats have been used by us/police. • It is also correct to say that during the 14 days police custody, accused Rikumkaba was thoroughly and continuously interrogated by the police. • It is also correct to say that we have suggested to the court for taking confessional statement before the Magistrate and we have received an extract copy of the confessional statement of accused Rikumkaba before the Magistrate. • It is also correct to say that accused Rikumkaba was brought before the Magistrate for making confessional statement. • It is correct to say that the actual happening or the sequence of happening stated by me about the commission of the crime is based on accused Rikum's statement only. • It is also correct to say that accused Rikumkaba has stated that after commission of the crime, he had put the wallet of his uncle Yapang into black polythene bag along with his changed clothing and threw it somewhere in PWD colony, we have tried to find those articles within the perimeter of roughly around 200 meters in and around PWD junction and also Sunep's place and the house of Rikumkaba's uncle where he lives but could not find it. • It is correct to say that except in Rikum's room where a blood stained jacket was found, no other suspicious item evidencing the commission of the crime was discovered. • The area is a compact colony and the house is basically a Type-I Govt. Quarter enclosed by a brick wall, the gate is a CGI sheet gate. There is a kitchen on the left, and as we entered common room is on the right, it's an extended room and as we entered the quarter there is one room on the left with a door and corridor outside and there is one room without door. • The distance between the actual place where late Nungshilila was killed and the common room where accused Yapang and his wife slept that fateful night will be about 10-15 feet. • It is correct to say that the distance from the almirah from where cash was said to have been stolen and the common room where accused Yapang and his wife slept is less than 6 feet. • It is correct to say that the distance from the almirah from where cash was said to have been stolen and the common room where accused Yapang and his wife slept is less than 6 feet. • It is correct to say that if burglary by opening a locker with daos and knives is happening within such compact distance as in the present case I can say that anybody can hear the burglary sound. • It is correct to say that with 2.5 lakhs cash in hand and the wallet stolen, since accused Rikum was very greedy he will be tempted to enter the next room where late Nungshilila was sleeping. • The entry to the house where crime was committed is possible through the concrete post of neighbour but we could not conduct any finger print examination to take evidence. • It is also correct to say that one of the witnesses P.W. 4 Bendangla stated that she heard a deep male voice conversing with the victim Nungshilila. • It is correct to state that I was the team leader of the SIT constituted to investigate the July 4th 2013 incident. • It is correct to state that I have recorded the statement of complainant's Yapang complainant's wife Watimongla. • It is correct to state that the purpose of constituting the SIT was to investigate the entire sequence of circumstances leading to the commission of offence. Re-examination: We have interrogated the accused Rikum not on a daily basis but with a gap of 2-3 days. P.W. 4 Bendangla: I am undergoing beautician training and presently residing at Residency colony PWD Dimapur. On the day of the incident in the early morning at around 2 a.m., I woke up from my sleep on hearing some uneasy sound from my neighbour's house, as such I informed my brother-in-law Pikaho who was sleeping with family in the TV room which is next to my room. However, my brother-in-law simply replied that it must be a quarrel between husband and wife and told me just to ignore it. However, out of curiosity I opened the window and tried to confirm what was happening. I heard a moaning sound of a lady whom I do not know and after sometime she uttered and called out "aku Yabang" about three, four times. Then after sometime I heard the girl saying "Ineka nakuribi". However, out of curiosity I opened the window and tried to confirm what was happening. I heard a moaning sound of a lady whom I do not know and after sometime she uttered and called out "aku Yabang" about three, four times. Then after sometime I heard the girl saying "Ineka nakuribi". I also have heard a male voice speaking in a low tune which I could not understand. Thereafter, after sometime I heard some sound "thup...thup". After that there was not sound, so I went to bed to sleep in my bed again. Cross-examination: • The accused Yapang and his family and my family are neighbour in PWD/Residency colony. We share a Govt. Quarter. We share 3 (three) rooms each. The bedroom in our respective residence are separated by a single wall. The walls are semi pucca, i.e., bamboo wall plaster with cement. What is happening in one's house is clearly audible to the other. We had been neighbour for about three years. • I do not know the deceased and I was also not aware that she was residing with the accused Yapang and his family. At about 2:00 o'clock in the morning 04.07.2013, I heard some thumping sounds from neighbour's residence. It appeared to me that some struggle was going on. Out of curiosity I opened the window but I could not see anything as it was dark and the fencing was covered, I heard someone thumping. Thereafter I heard someone calling "aku Yapang" three to four times and from the tone of the voice it appeared the said person was calling help. After that I heard a male voice but I could not pick up what he was saying as the voice was low. I could not recognize the voice to whom the voice belongs. After this I heard the victim saying in nagamese. "Enika nakoribi, achami halla nakoribo". This statement was repeated twice. It was after this that I heard the thumping sound for about three or four time. It was during the course of this occurrence that I heard my neighbour, the accused Yapang saying in nagamese, "Tomikhan Ekela Etu colony te thake nahoi, kile halla kori thake chupchap ghumai jabi". "Enika nakoribi, achami halla nakoribo". This statement was repeated twice. It was after this that I heard the thumping sound for about three or four time. It was during the course of this occurrence that I heard my neighbour, the accused Yapang saying in nagamese, "Tomikhan Ekela Etu colony te thake nahoi, kile halla kori thake chupchap ghumai jabi". • It is correct the since I did not the deceased Nungshilila and further that I was not aware that she was staying with the accused, I am not aware of any enmity between the accused and deceased. Though we are neighbours I am not aware of the use of the Quarters by the accused and his family. • It is correct to say that at around 2:00 a.m. on July 4th 2013 I heard the struggling voice of a lady coming our banding doors of a room and for sometime outside uncle Yapang's house I clearly heard the banging sound of the doors. The calling of "Aku Yapang" was just normal but not very high or very loud. I presume that the sound of "Aku Yapang" came out from the door steps of uncle Yapang's house in the middle of the house on the backside. • It is correct to say that I have also heard the voice of a male in low voice which 1 presume was the voice of an elder male in bass. I have known Rikumkaba prior to 4th July 2013. I cannot say that the voice I heard on 4th July morning was Rikumkaba's voice. • I have heard from one of my girlfriends named Esther that Rikum was a "Badmash" guy during school days. • Whatever I have stated herein is true and nothing is false. P.W. 5 Pikaho: I am presently a resident of middle point colony near Metro hospital. On the night of the incident I along with my family were at the resident of my mother-in-law at Residency colony PWD Dimapur. In the morning of 04.07.2013 at around 2 a.m. when I was asleep I heard the sound of a girl yelling for help which I presumed that she was in distress. However, the sound died down after sometime after I heard a sound "thup, thup" for three four times. In the morning of 04.07.2013 at around 2 a.m. when I was asleep I heard the sound of a girl yelling for help which I presumed that she was in distress. However, the sound died down after sometime after I heard a sound "thup, thup" for three four times. It may be mentioned that my sister-in-law Bendangla informed me what she has heard and I replied it must be just a quarrel between husband and wife. Therefore let us not poke our head in their family matters. After hearing that sound and after it died down I also went to sleep. Cross examination: • My wife and I along with my children spent the 2nd and 3rd of July 2013 with my in-laws at PWD/Residency colony. My in-laws are neighbours with the accused Yapang and his family. I do not know the deceased and I was also not aware that she was residing with the accused Yapang. At about 2:00 a.m on 04.07.2013 my sister-in-law Bendangla woke me up saying that our neighbours were quarrelling. • It is correct that as soon as I woke I heard the accused Yapang shout in Nagamese "chupchap ghumabi". I thought that the husband and wife are fighting among themselves and I went back to sleep again. Before I went back to sleep I heard some thumping sounds and someone shouting. Thereafter in the morning I was woken up by my wife saying that someone is lying on the ground in the accused Yapang's compound. I did not go to see the bogy but on the assumption that someone was lying on the ground, I did not proceed to investigate further. Though they were neighbours, my in-laws and the family of the accused Yapang were not close. The thumping and sobbing sounds that I heard were towards the back of the house. • When my sister-in-law woke me up I was suffering from cough so I did not go outside and heard the sobbing of a lady. In the morning when I went to accused Yapang's house there were about 10 people gathered outside the gate of Yapang's house and the gate was locked from outside. P.W. 6 Temsuinla: I am the wife of Mr. Pikaho and we have three minor children. In the morning when I went to accused Yapang's house there were about 10 people gathered outside the gate of Yapang's house and the gate was locked from outside. P.W. 6 Temsuinla: I am the wife of Mr. Pikaho and we have three minor children. It was early in the morning, the date of which I do not remember exactly, when I went to the bathroom to wash clothes I saw one object suspected to be dead body just next to my bathroom. Seeing the unnatural object and suspecting it to be dead body I informed my husband what I had seen. It may be stated that at the relevant time my husband was on his bed and told me to inform about it to the immediate neighbours. Accordingly I informed one immediate neighbour about what I saw next to my house. After I informed the matter some of the neighbours assembled and went to the place however, I stayed back as I had my small children to look after. • I am the elder sister of Bendangla and wife of Pikaho. Our family and accused Yapang's family are neighbours and we share a govt. Quarter. Though we are neighbours we do not have a close relationship with the accused Yapang and his family. • I was asleep throughout the night of 03.07.2013 till I woke up in the morning 4.7.13. I cannot exactly describe the property of the accused Yapang and his family. The compound is fenced by a short wall made of wooden planks. The wall would be about 3 to 4 feet. There is no gate leading into it. • We used to visit frequently my mother's house and stay overnight from time to time. At my mother's house my elder brother who is unmarried, my younger sister and my mother stays permanently. • At my mother's house we use to hear argument sometimes but not late at night. At the time of incident, I did not hear anything and I have nothing to say. P.W. 7 Tiayanger (posted at DEF Dimapur in SOT): I am a seizure witness of Ex. P/6 and my signature in the said exhibit is shown as Ex. P/6 (c). • The seizure in question was earlier made by the personnel of North P.S. Kohima. P.W. 7 Tiayanger (posted at DEF Dimapur in SOT): I am a seizure witness of Ex. P/6 and my signature in the said exhibit is shown as Ex. P/6 (c). • The seizure in question was earlier made by the personnel of North P.S. Kohima. Thereafter it was formally seized by the Investigating Agency and I appended my signature in the seizure memo. P.W. 8 Imlichiba: I live in Signal Angami Village Dimapur. I am a seizure witness of Ex. P/6 in the instant case. My signature in the said exhibit is shown as Ex. P/6 (B). I was present when the police made the seizure in the Ex. P/6. Cross-examination: • I am also a police personnel constable at West P.S. Dimapur. While seizure of the articles was made I was present. • Some seized articles were brought from Kohima P.S. Former seizure was made from Dimapur. • I was just assisting my superior officers in the seizure. • I was not involved in any other investigation in the instant case other than seizure. P.W. 9. S.I. Nchembemo Ngullie (posted to North P.S. Kohima): I am a seizure witness of Exhibit P/2(B). Besides being a witnesses to the seizure of money amounting to Rs. 1,25,325/- I have not taken part in the investigation. The money was seized inside the room of Capital Hotel. The money was seized from the possession of accused Rikumkaba and I identify the accused Rikumkaba who is at the dock today. Cross-examination: • I am standing here today as a seizure witness of money. I was personally present in the hotel room from where money was seized but I cannot correctly remember where the seized money was lying at the time of seizure. • We have been to that particular hotel on routine checking. That particular checking was led by S.I. Keneisanyu. It was S.I. Keneisanyu who actually seized the money. Besides the seizure I am not involved in the investigation of the present case. P.W. 10 Simon Angami: My name is Simon Angami I am the Chairman of Residency colony, Dimapur. I am a seizure witness of EX. P/9 and Ex. P/9(B) is my signature appended thereon. Cross-examination: • My deposition today is limited to the extent of being a seizure witness only. P.W. 11 I. Rongba: I am secretary of Residency colony Dimapur. P.W. 10 Simon Angami: My name is Simon Angami I am the Chairman of Residency colony, Dimapur. I am a seizure witness of EX. P/9 and Ex. P/9(B) is my signature appended thereon. Cross-examination: • My deposition today is limited to the extent of being a seizure witness only. P.W. 11 I. Rongba: I am secretary of Residency colony Dimapur. I am a seizure witness to the exhibit P/9 and my signature there on is shown as Ex. P/9(c). I am also a witness in the seizure memo marked as Ex. P/8 and my signature there on is shown as Ex. P/8(B) Cross-examination: • The Police Officer brought it and the Chairman of the colony, prepared the seizure memos and asked us to append our signatures there. Re-examination: It is correct to state that I saw the seized the materials of Exhibit P/9 at the place of the incident. P.W. 12 Imlimongba Ao (presently posted at P.S. No. 2 Mokokchung): During July 2013 I was posted at West P.S. Dimapur. Exhibit P/12 and Exhibit P/13 are the seizure memos with regard to seizure of mobile hand set (Nokia 10i) from Imkongakum and Takusashi. My signatures in the said seizure memos are marked as Exhibit P/12(A) and Exhibit P/13(A) and Exhibit P/13 (A) respectively. Cross-examination: • I was present at the time of seizure of two mobile handsets from Imkongakum and Takusashi from west P.S. Dimapur. I am aware of the present case and apart from being seizure witness I have not taken any part in the investigation of the case. P.W. 13 Takusashi: I am a student of class XII at Goodwill College Shillong. On 4th July 2013 evening at around 5 to 7 p.m. my cousin brother Imkongakum called me up and asked to bring my father's vehicle so that we could go and drink somewhere. I replied that I could not do it as my father would not allow it. Thereafter my cousin asked me if I can call my friend Jaffrey and whether he can bring his father's vehicle, to which Jaffrey said that it would not be possible to take vehicle in the evening as his father will scold him. After that I along with Jaffrey and his brother went to Livingstone School, met a teacher of Jaffrey's brother and came back to Jaffrey's house. After that I along with Jaffrey and his brother went to Livingstone School, met a teacher of Jaffrey's brother and came back to Jaffrey's house. At Jaffrey's house, Jaffrey got a phone call from his friend and Jaffrey told me my cousin brother that we have got a vehicle. Accordingly, I told my cousin brother Imkong and he came with one Sunep on a motor bike to Jaffreys house. We waited for the vehicle and after some time Nicka and Apika came with the vehicle (Ritz). From there we went to Super market. When we reached super market we found that Rikum was already there. When we reached super market we found that Rikum was already there. From super market along with Rikum we all went to the public ground to bring liquor. We brought liquor and came back to supermarket and drank there. After that Rikum suggested that we go to Bules Lounge, we then went to Kushiabill to take Apika's vehicle. In Apika's house Tovi was also picked up and we all went to Blues Lounge. We had drinks till about 3:30 in the morning. After we finished drinking at Blues and came out, Rikum suggested that we all go to Kohima. Sunep and Apika stayed back at Dimapur and the rest of us, namely 1. Nicka, 2. Tovi, 3. Jaffrey, 4. Rikum, 5. Imkongakum and 6. Me, Takusashi went to Kohima. First we went to hotel Fira. We could not get a room and then went to Hotel Capital and booked two rooms. We took rest for some time and after that four of us went to buy tooth paste (things) and some cold drinks. Thereafter, we four (Rikum, Imkongakum, Jaffrey and myself) went to a mobile shop and Rikum bought mobile handsets and gave to three of us. We came back to our hotel room and washed up. As I came out from the bathroom I saw some police personnel checking. Police personnel asked me whether I am also inmates of the hotel to which I replied 'yes'. Police personnel told me to wait for sometime as checking were going on. I was outside the room when the police checked the room. Police personnel were asking my other friends who were inside the room to whom the recovered amount belonged and from where they got it. Police personnel told me to wait for sometime as checking were going on. I was outside the room when the police checked the room. Police personnel were asking my other friends who were inside the room to whom the recovered amount belonged and from where they got it. To which Rikum replied back that the money belonged to him and he found it on the way. Police did not believe him and we were all taken to Police Station. In the Police Station Rikum was kept in one place and the rest of us were kept in another place. After that our statements were recorded and we were also given food and kept us in a lock up. After that Jaffrey and Nicka also came looking for us in the Thana, Jaffrey was kept with us in the lock but I do not know where Nicka was kept. The next morning police personnel came from Dimapur and brought us back to Dimapur. I know the accused Rikum who is at the dock today. Cross-examination: • When the police came to our hotel room four of us namely Rikum, Tovi, Imkongakum and myself were present at the hotel. • We never made any disturbing activities or sounds during out stay at the hotel at Kohima. • It is correct to say that the police came to our hotel when we were having a fine time. • It is correct that the entire expanse for our enjoyment on the evening of the 4th July at Dimapur and 5th July at Kohima borne by the accused Rikum. • None of us who were with him questioned him about the source of the money in his possession. • He had a big bundle of cash money in his possession covered by a black polythene bag. • When we were in Kohima on 5th of July, 2013, police searched our hotel room and found the bundle of cash. When questioned by the police he told them that he found money on the road. PW14 Nicka: I am free lancer, I am going to do professional course in photography. On 04.07.2013 in the evening after 6:00 P.M. my friend Jeffrey called me over telephone to go for roaming. Accordingly, I went to Jaffrey's place with Apika. In Jeffrey's I met Takushashi and together we went near Sarmati hotel. PW14 Nicka: I am free lancer, I am going to do professional course in photography. On 04.07.2013 in the evening after 6:00 P.M. my friend Jeffrey called me over telephone to go for roaming. Accordingly, I went to Jaffrey's place with Apika. In Jeffrey's I met Takushashi and together we went near Sarmati hotel. Rikum, Sunep and Akum then came in a motor bike. From there all of us went to the Dimapur district Stadium and bought some liquor opposite to the Stadium. From there all of us went to Apika's house to pick up his car. Apika took his car and picked Tovi who was in his house and from there we went to a place near Sarmati and had some beer and went to a restaurant and had some liquor. Then from there we went to Blues Lounge and stayed till 3:00 A.M. in the morning. From there we went to Kohima except Sunep and Apika. We went and stayed in the Capital hotel Kohima. I decided to visit my friend at Kohima, so Jeffrey dropped on a motor bike since the traffic was heavy. I was in my friend's house the whole day and since it was raining I called Jeffrey to come and take the car key from me and bring the car to pick me up. Jaffrey brought the car and told me that our other friends have been picked by the police. So we went to the hotel and enquired as to where our friends were taken and they say that they have been taken to North Police Station. We went to North Police Station and when the police asked whether we came to Kohima together with the other friends who were already in custody and I said "yes" we were also taken into custody. In the North Police Station the police took our statement. We were in the North Police Station for one night and from there my friends were taken down to Dimapur but I was released. I came to know the accused Rikum only on the 4th July, 2013 and prior to that I did not know him. While having booze in one of the restaurant accused Rikum bought booze for all of us and requested Apika to get some more money as he was running short of money but Apika refused as he was drank. I came to know the accused Rikum only on the 4th July, 2013 and prior to that I did not know him. While having booze in one of the restaurant accused Rikum bought booze for all of us and requested Apika to get some more money as he was running short of money but Apika refused as he was drank. So I took accused Rikum in my car and when to a house in Midland and he made me wait in the car. He then jump over a wall and when he came back had some bundle of cash in a green polythene bag. I do not know whose house it was. Rikum told me that he does not have any ATM card or any saving and so whatever he had he will spend it. All the expenditure like fuel for the car booze etc was borne by Rikum. I identify accused Rikum who is standing in the dock today. Cross-examination: • It is true that it was only on the 4th July evening I have met accused Rikum. • I have not seen accused Rikum paying the entire expenses but since none of us had the money he definitely would have made payment. • While entering a restaurant below Blues accused Rikum was stopped by Security for having lots of money in his pocket. • The wall accused Rikum jumped over to collect the money was a concrete wall. • I did not notice whether accused Rikum struggled to cross the wall or not. • It is correct that in all the rounds of partying the expenses was borne by Rikum alone. • Rikum took me to Midland from where he climbed a wall and brought back some cash. P.W. 15 Tovi: My name is Tovi Zhimo. I am doing my 3rd semester from Dimapur Public College of Commerce. During July 2013 summer break, Apika called me to come over and stay at his place for the night.... I called him up to enquire whether he was coming since I was already in his house. After sometime Apika came and there were other friends who had come along with him on one bike and one car namely, Nicka, Apika, Jaffrey, Imlisunep, Takusashi and Rikum. Apika took out his Zen Estillo car and we all went together to Purana Bazaar. From there we went to super market. After sometime Apika came and there were other friends who had come along with him on one bike and one car namely, Nicka, Apika, Jaffrey, Imlisunep, Takusashi and Rikum. Apika took out his Zen Estillo car and we all went together to Purana Bazaar. From there we went to super market. All of them got out from the vehicle and brought some beer and as I was sitting in the vehicle I also had beer in the vehicle. From there we went to Pebbles. Before we went to pebbles t told Apika that since it was already late we will go home but since all of them insisted that we all go together, I also accompanied them. I told my friend that I was not in a proper dress but they insisted so we all went to the disco in the same building. We had some beer and my other friends were dancing, we enjoyed till 5 to 6 a.m. in the morning, from there we all went to drop Imlisunep somewhere near PWD colony. We all came back to Purana Bazaar and from there Apika went back home and from there the rest of us went up to Kohima. After we reached Kohima we booked into Capital Hotel and booked two rooms. Nika requested me to take her to her friend's house but I refused saying that I am tired and wanted to take rest, so Jaffrey took Nicka in a motor bike and I went to sleep and got up only in the evening. When I got up I found that some new cell phones, some clothes and eatable things were purchased. I went to the bathroom and washed up and I found that there was another room booked and we were in the hotel room. While we were sitting in a room police personnel came and checked our room and found some cash in the drawer. When police asked to whom the cash belonged, Rikum said that the cash was for his uncle. But when the police enquired about his uncle asking his uncle's contact number, Rikum could not answer. After that Rikum told the police that the money belongs to him. The police asked Rikum about the source of money and Rikum first said that he found it on the road then he said that he found it in an auto rickshaw. But when the police enquired about his uncle asking his uncle's contact number, Rikum could not answer. After that Rikum told the police that the money belongs to him. The police asked Rikum about the source of money and Rikum first said that he found it on the road then he said that he found it in an auto rickshaw. Thereafter police took all of us to North P.S. Kohima. In the North P.S. our statements were recorded by police and our personal belongings, cell phones, cash etc were seized by the police. In the North P.S Rikum was interrogated separately. The next morning police Personnel from Dimapur came and took all of us down to Dimapur except Nicka. I do not know who bore the expenditure but later Nicka and Rikum went to collect money so I think the expenditure was borne by accused Rikum. I identify the accused Rikum who is at the dock today. Cross-examination: • After reaching Kohima none of us have disturbed anybody. • It is true that the Police report about our arrest after drunken misconduct is false. • While police came to our Hotel room three of us were present in the hotel room and another friend Mr. Takusashi was downstairs washing up. • After our arrest we were taken to North P.S. and there at the Police station Rikum was kept separately from the rest of us and I saw him being beaten by police and his tears rolled out form his eyes. • From 4th July evening till we reached Kohima I did not bear any of the expenses. P.W 16 Imlisunep: I reside at PWD colony. I left studies sometime in the month of July 2013. We were playing carom in my house when Rikum came to my house and asked for fare to go to his house and I gave him some money. Maybe it was Rs. 30/- or Rs. 40/-. After that Rikum left and then came back again in the evening and brought two cases of beer, we called another friend Akum (Imkongakum) and the three of us went to Stadium near St. Edmund School. When we were there Imkongakum called some of his friends on the phone, then the three of us went towards super market area. We bought some more beer near supermarket. Edmund School. When we were there Imkongakum called some of his friends on the phone, then the three of us went towards super market area. We bought some more beer near supermarket. When we were there Rikum asked akum for his bike keys and Akum gave him the keys and he left on the bike. After some time Rikum came back and we stayed there drinking for some time. Then Akum and me went and waited near Metro hospital. Some of his friends came in a car after sometime then all of us went towards the super market area again. From super market area again we all went towards zion hospital to take another vehicle. From there we took a vehicle which belonged to another friend of Akum and we all went towards Nagaland gate and bought some more drinks and then came back to super market. After some time we all went to Blues and took some more drinks. Thereafter I got drunk and Akum dropped me in my place. I know the accused Rikum who is at the dock today. Cross-examination: • It is true that accused Rikum had approached me and asked for auto fare to go to his place although I do not know exact date and time. I paid him Rs. 30/- or 40/-. • After some time accused Rikum came back to my house with a polythene bag probably a 'Jack and Jill' bag in his hand. • When he came back he brought new clothes and changed his clothes with the new one and left the old clothes wrapped in a polythene bag in my house. • Next day police came to my house and asked whether accused Rikum's clothes were left in my house and I handed over the old clothes left by Rikum to the police. At that time no other person except the police personnel came to my house. • My residence is at PWD colony. • I do not remember whether it is the day on which Nungshilila was found dead. • When Rikum came back, apart from the polythene bag which had new clothes; he also brought two cases of beer. • All the expenditure was borne by Rikum. • It is correct to state that I reside a PWD colony. • It is also correct to state that Rikum resides at Midland colony. • When Rikum came back, apart from the polythene bag which had new clothes; he also brought two cases of beer. • All the expenditure was borne by Rikum. • It is correct to state that I reside a PWD colony. • It is also correct to state that Rikum resides at Midland colony. • It is also correct to state that the place of occurrence where Nungshilila was murdered was at PWD colony. • It is correct to state that the auto fare which Rikum had taken from me was to go to Midland his place of residence. P.W. 17 Setsachem: Presently I am posted to West P.S. Dimapur. I have been serving in Police department since 10 years. I was the first person to visit the P.O. and took photograph of the P.O. and the crime scene. I was accompanied by other 4 to 5 police personnel, it was 4th July 2013. Exhibit P/5 containing 32 numbers of photographs of the crime scene and the deceased victim were taken by me. Except taking photograph of the deceased and crime scene I have not taken part in any investigation. I also took blood samples of the deceased and the accused persons for expert analysis. Cross-examination: • I was the first person to visit the scene of the crime (P.O). • I visited the said crime scene at about 7:30 am. • When I reached the crime scene I found a huge crowd gathered. • Neither I nor any of the police officers secured the crime scene for the purpose of collection of evidence. • After my arrival along with my team I cordoned off the area. I proceeded to collect information and evidence. • After I cordoned off the area I began to take photographs of the crime scene. • It is correct that my role in this case is limited for taking photographs of the crime scene and taking of blood samples from the deceased as well as accused. • I clarify that I did not actually take the blood samples from the deceased and the accused but after the investigation team obtained the samples of CFSL Kolkata. • When I took the photographs of the deceased she was found naked. • I recall that there was a brick and a potato peeler near the body of deceased. • I clarify that I did not actually take the blood samples from the deceased and the accused but after the investigation team obtained the samples of CFSL Kolkata. • When I took the photographs of the deceased she was found naked. • I recall that there was a brick and a potato peeler near the body of deceased. Her upper torso was wrapped in a bed sheet and the body was naked from the waist down. She was also found lying in a pool of blood. I also found a plastic handle inserted into her private parts. • My team collected the brick, potato peeler and the handle as evidence; however, I do not know why the same has not been produced as evidence. • I have conducted photography and sketch map of the place of occurrence under the instruction my superior O/C West P.S. • It is true that my job was limited to taking photographs and sketch map of the place of occurrence. • Whatever I have stated in my early statement those are only evidences that I presumed to have been connected with the crime. • I cannot say whether the deceased was moved from the actual place of occurrence although by the time I arrived the body was already wrapped by a bed sheet. • It is correct to state that although I do not have firsthand knowledge about the contents that were taken to CFSL Kolkata; I was informed that it was the exhibit of the instant case. P.W. 18 Ruyosai: I am posted to West P.S. Dimapur. I have been working in the Police Department for the last four years. On 4th July 2013 at about 7 a.m. I received a phone call from West P.S. asking me to report to the P.S. immediately. Accordingly I went to the P.S. and along with our Sherishtadar Setchachem and other Police Personnel went to the P.O. on reaching the P.O. we found that the crowd had already gathered and so our officer told us to stop the crowd from disturbing the crime scene. Thereafter our officer namely Setchachem tool photographs of the crime scene as well as the deceased. Thereafter our officer namely Setchachem tool photographs of the crime scene as well as the deceased. After some time women cell party arrived at the P.O. and after observing necessary formalities the dead body was removed from the P.O. I have not seen the printed photo taken by Setsachem but I saw it in the digital camera. • It is correct that in the instant matter I was in the company of my officer Setchachem and I performed duties as directed by him. P.W. 20 Dr. Imcha Jamir: I am Deputy Chief Medical Officer in C.M.O. office Dimapur. I have been working for the last 26 years. I conducted the post mortem on the deceased Nungshilila and accordingly I submitted a report to this effect. Exhibit P/4 is the post mortem report submitted by me and Exhibit P/4(A) is my signature thereon. • In the post mortem report I have recorded my findings to the effect that Late Nungshilila died due to haemorrhage and shock arising out of injuries caused by some sharp weapon. No weapon of any sort was brought to me by the investigation agencies to co-relate the same with the injuries inflicted upon the deceased. • The body of the deceased was lying in the morgue at Civil Hospital. The body was clothed and I have conducted the post mortem after removing the clothes of the deceased. When I undressed the decease I did not find any external objects on the body of the deceased. • Clinically, I did not find any evidence of rape suffered by the deceased. • It is correct to state that my role was only for the conducting of post mortem. • I have not examined any other person in connection with this case. P.W. 21 Arenba: I am Halvidar Arenba presently posted at S.P. Office Dimapur. In the early morning of 04.07.2013 I received a telephone call from accused Yapang informing that his sister-in-law Miss Nungshilila was found dead in his compound and requested me to inform the police about the incident. On receipt of the information I thought for a while and decided to confirm the report. In the early morning of 04.07.2013 I received a telephone call from accused Yapang informing that his sister-in-law Miss Nungshilila was found dead in his compound and requested me to inform the police about the incident. On receipt of the information I thought for a while and decided to confirm the report. As such I went to the place where the incident took place and when I reached the place there were several other persons and after I reached it was confirmed that the report was true and therefore I immediately proceeded to the Dimapur West P.S. and reported the same to the officer on duty. Subsequently the officer on duty requested me to take them to the place of the incident. Accordingly I accompanied the Police officer with other police personnel to the spot. Cross-examination; • The accused Yapang is personally known to me as we belong to the same village i.e. Longkhum. We also reside near each other in Dimapur. • The accused Yapang knows that I am police personnel. • During the course of investigation my statement was not recorded by the investigating officer. • I also know the deceased. • I have never seen any signs of discord between the accused Yapang and his sister-in-law Nungshilila. • I do not know the accused Rikumkaba. • It is correct to state that I am the first person who has informed the police about the incident. • It is also correct to state that the FIR was made to the concerned P.S orally however, it was not reduced into writing. • It is also correct to state that I am not aware about the occurrence of the offence. • It is correct to say that in the morning of July 4th 2013 accused Yapang informed me that his sister-in-law Miss Nungshilila was found dead in his compound and requested me to inform the police. • It is also correct to say that I did not go to the P.S while filing the written FIR. P.W. 22 Yapang: I am the complainant in this case. The Police Officer drafted the contents of the FIR and I was asked to sign in the FIR. Accordingly, I appended my signature in the FIR Exhibit P/1 is the FIR lodged by me and Exhibit-P/1(1) is my signature in the FIR. P.W. 22 Yapang: I am the complainant in this case. The Police Officer drafted the contents of the FIR and I was asked to sign in the FIR. Accordingly, I appended my signature in the FIR Exhibit P/1 is the FIR lodged by me and Exhibit-P/1(1) is my signature in the FIR. Cross-examination: • It is correct that I am an accused in this case. • It is correct to say that I am in this court today as a witness for the prosecution. • On 4.7.2013 I was summoned to West P.S. and questioned. Thereafter, I was released and proceeded home to complete the funeral rites for the deceased Nungshilila. When we were about to proceed to the village police personnel again summoned me to P.S. and then placed me under arrest. • I was then asked to submit a written F.I.R. • In my F.I.R, I wrote that cash, ATM card, driving card and my office ID card and my wallet had been stolen in addition to the report of my sister-in-law. • One police officer in the P.S. known as Rengma told me that FIRs are not written in the manner written by me. He then proceeded to write the FIR exhibited as Exhibit P/1 and asked me to affix my signature thereon. • At around midnight on 04.07.2013 the police took me to the place where the accused Rikum was residing. • The accused Rikum was residing with my brother-in-law and elder sister in Midland, Dimapur. • I stay with my family in PWD Colony. • The distance between my residence and the residence of my elder sister is about 2 kilometres. • On this night the police found some cash under the pillow of Rikum's bed. • I am not aware as to how much cash was found by the police. • I was taken again to Rikum's place. On 05.07.2013 police recovered a shirt belonging to Rikum from the store and I know that this was the shirt he was wearing the previous night when he committed the offence in as much as one button found in the place of occurrence matched the button in the shirt and from the shirt itself one button was missing. On 05.07.2013 police recovered a shirt belonging to Rikum from the store and I know that this was the shirt he was wearing the previous night when he committed the offence in as much as one button found in the place of occurrence matched the button in the shirt and from the shirt itself one button was missing. • On the 4th morning after the discovery of the body Rikum also came to my residence and I noticed that he had scratch marks in his neck area and a cut on his right ankle. • It is correct to say that Miss Nungshilila was murdered in my own house. She came for her post confirmation as she was recently appointed as S.A in PWD Department, Government of Nagaland. • On the night of 04.07.2013 when police came to Rikumkaba's house Rikumkaba was already arrested at Kohima. • At the time of the incident my wallet with Rs. 4000/- and driving license, vehicle smart card, Office ID card were found lost. However, I do not know how much money was lost from my house as it was under my wife's custody. • It is correct to state that after my arrest on 4th July I was made to append my signature on the FIR prepared by the Police and thereafter I was taken to Rikum's place on the subsequent night on the 5th. • The witness further volunteers that he is confused with the dates and that he was actually taken to Rikum's place on the evening of the 5th and thereafter on the next day the 6th. P.W. 23 Katimongla: I am residing at Residency colony PWD Dimapur. I am the wife of accused Yapang Ao. On the night of 03.07.2013 at around 9:00 P.M accused Samarenba and one non local whom I do not know came to my house. When they came to my house we had dinner already and we were just sitting. I do not know whether they brought anything with them. I am the wife of accused Yapang Ao. On the night of 03.07.2013 at around 9:00 P.M accused Samarenba and one non local whom I do not know came to my house. When they came to my house we had dinner already and we were just sitting. I do not know whether they brought anything with them. Accused Samarenba and the other non local were seated outside my house and we stayed back in our room while my husband watched T.V. It may be stated that at the relevant time the inverter that belonged to us was not working due to some defects and as it became late night I told accused Samarenba and his friend to leave the house as it was late. In the meantime, I told my husband to sleep in his common room. Heeding to my request accused Samarenba and his friend left my house at around 11:30 p.m. After the friends left I went to sleep while my husband started watching T.V but it was not disturbing for me so I told my husband to switch off the T.V. Accordingly, he complied and he came and slept with me. After some time I as well as my husband heard the sound of female yelling. However, we simply thought that it might be a quarrelling in our neighbour's house as usual. In return my husband cried out saying and rebuking why they always disturb the neighbour's and even said that you are not the only person staying in the colony and after that my husband went outside and attended the call of the nature and came back and slept. In the early morning the next day while I was in my compound some of my immediate neighbour was seen coming to my house and as such, I opened the gate of my fencing. They informed me about a dead body in our compound. On hearing it I immediately it I immediately went to the place where my husband was still sleeping and informed what was reported by my neighbours. My husband immediately got up from his bed and joined the others and proceeded to the place where the dead body was reported to be lying. But I did not go there since I had come unconscious and fainted. My husband immediately got up from his bed and joined the others and proceeded to the place where the dead body was reported to be lying. But I did not go there since I had come unconscious and fainted. After I regained my consciousness I came to know that the dead body happened to be that of my younger sister Nungshilila. There are two rooms between the room where deceased Nungshilila slept and the common room where we slept on the night of the incident. I can said that my husband accused Yapang is not involved in the murder of my sister. Cross-examination: • I am the wife of the accused Yapang and I am witness for the prosecution. • My late sister Nungshilila used to visit and stay with me from time to time. She came to stay with me sometime in the last week of June, 2013 and she was with me in my residence until her demise. • My compound is fenced by a bamboo wall. The bamboo wall is about 10 feet. In the wall towards the front there is a gate and this gate was made by our neighbour who is a Lotha. Though this gate is closed it permits easy access. • The quarter occupied by my family comprises of three rooms. My late sister used to sleep in a small room next to our bed room. After our visitors left on 03.07.2013, my sitting room because it was very hot, we kept the doors and windows open, however there was a curtain. My husband and I went off to sleep at about at about 12.00 p.m. We were woken up from our sleep when we heard someone screaming 'Aahh'! Both my husband and I woke about the same time and heard the scream. My husband awoke and assuming that it was the neighbours quarrelling, shouted at them to stop and go back to sleep. After saying this, my husband went out of the house to relieve himself towards the nullah near the wall. He returned after about two minutes. I laid the blanket over him and we went back to sleep. Both of us woke up at about 6:00 a.m. in the morning. The well is towards the front of the house. After saying this, my husband went out of the house to relieve himself towards the nullah near the wall. He returned after about two minutes. I laid the blanket over him and we went back to sleep. Both of us woke up at about 6:00 a.m. in the morning. The well is towards the front of the house. When I was brushing my teeth near the well, I found that many persons from the locality were gathered over the gate. These people shouted at me that there is a dead body lying towards the back of the house. • I had a close relationship with my deceased sister Nungshilila. My deceased sister was an educated lady and she maintained cordial relationship with everyone including my husband. The distance between the sitting room where my husband and I slept on that fateful night and the room where my deceased sister usually sleeps is about 20 feet. The accused Rikum is a relative of my husband. He used to visit us every now and then. He was also known to my deceased sister. Since he was a frequent visitor to my house, he knew the layout of the house and the habits of my family. • I know and believe that there is no reason whatsoever or enmity between my husband and my deceased sister. • I am absolutely certain that my husband is innocent and not involved in any way in the murder of my deceased sister. • It is also correct to say that my late sister Nungshilila used to visit my place time to time and stayed with us. My late sister came for service matter and I know that she was recently appointed as S.A. in PWD. • It is also correct to say that my late sister who was earlier appointed as tracer in Chief Architect in PWD, Govt. of Nagaland had cancelled her appointment by order dated 26.06.2013. • It is also correct to say that her appointment as S.A. and tracer are different post. • I cannot say whether there was any problem in cancellation of her appointment as tracer. • I do not know whom my husband had entrusted for securing the post for my deceased sister but it was my husband who had taken care of such matters. • It is also correct to say that I have good hearing till today. • I cannot say whether there was any problem in cancellation of her appointment as tracer. • I do not know whom my husband had entrusted for securing the post for my deceased sister but it was my husband who had taken care of such matters. • It is also correct to say that I have good hearing till today. • On 3rd July 2013 the accused Rikumkaba came to my house at 7:30 and left at around 9:00 p.m. Rikumkaba also made food on that evening and after he had taken food, he left. On that evening Rikum took his food earlier and my late sister and I took food together, but I do not remember at what time my husband Yapang ate his food. • On 3rd night Samremba and one non local came to my house at around 8:00 but at that time Rikum was not at my place. When Samerenba and one non-local came to my house that night, my husband was watching TV. and my sister Alila and I sat together. Samarenba and the non-local brought two bottles of either rum/whisky and said that since they are tired they would drink it and my husband offered them curry but I do not know whether they took it or not. Since it was late, I requested them to leave them and they heeded/complied to my request and left. • It is correct to say that 3rd July night was the only night we slept in the common room as our inverter had defect. Our inverter had defect only on that night. • On the 4th morning I heard an unnatural sound "Aaahh"! And that is all I heard. On 4th July morning 1 woke up at around 6:00 and while 1 was brushing my teeth my neigbours assembled near the gate of my house. I opened the gate for my neighbours and they said that there is a dead body in my compound. Thereafter, I woke up my husband and the first thought came to my mind was that, the dead body would be no other than that of my sister Alila as no other family members were present, as such I fainted. • On 4th July 2013, before the funeral police interrogated funereal took place at 12:00 noon on 4th July. Thereafter, I woke up my husband and the first thought came to my mind was that, the dead body would be no other than that of my sister Alila as no other family members were present, as such I fainted. • On 4th July 2013, before the funeral police interrogated funereal took place at 12:00 noon on 4th July. After the funeral I saw Rikum helping and lifting the coffin of my deceased sister inside the vehicle, but I found him a bit different, but I cannot describe the difference in his character at that time. • In my house around Rs. 2,50,000/- (rupees two lakhs 50 thousand) which was borrowed was kept in the locker of the Godrej almirah inside our master room and the locker was properly locked. • On 6th July morning I informed to the police about the loss of money from our house. • I clarify that accused Rikum visited our house on the night of 2nd July and not 3rd July. I agree to the suggestion that there is no reason whatsoever that may prompt Samarenba and Santosh Nath from committing the offence against my deceased sister. P.W. 24 Insp. Jenmei Konyak: Presently I am the O.C. of West P.S. Dimapur. I have been working in the Police Dept for the last 16 years. I am the investigating officer in the instant case. On the morning of 4th July 2013 telephonic information was received stating that a murder has taken place at Landmark colony Dimapur. After sending few personnel from the West P.S, I also reached the place of occurrence. On arrival of crime scene a female dead body was lying on the ground. After observing necessary legal steps the dead body was shifted to Civil Hospital, Dimapur for post mortem examination. At the place of occurrence several implements and objects were recovered and seized. Meanwhile a written FIR was received from Shri. Yapang for the murder of late Nungshilila. Immediately the complainant and several others were examined. On the same day the complainant Yapang Ao and two others were examined. On the same day the complainant Yapang Ao and two others were arrested and detained at P.S. on suspect. In further course of investigation another suspect later identified as Rikumkaba was arrested at Kohima and brought to Dimapur for thorough investigation. During investigation hard cash amounting to Rs. On the same day the complainant Yapang Ao and two others were arrested and detained at P.S. on suspect. In further course of investigation another suspect later identified as Rikumkaba was arrested at Kohima and brought to Dimapur for thorough investigation. During investigation hard cash amounting to Rs. 1,25,000/- something and three new mobile handsets were recovered and seized from his possession. During examination accused Rikumkaba revealed how he murdered the deceased Nungshilila. Accordingly after collection evidence against him charge sheet was filed against the four persons namely Rikumkaba, Yimyapang, Samarenba and Santosh u/s. 447/380/376/302 IPC. During investigation I prayed to the court for recording confessional statement as he was willing to give his confessional statement. Accordingly confessional statement of accused Rikumkaba was recorded and the same was forwarded to the court. In respect of other three accused persons I have not prayed for recording of confessional statement as they have denied their involvement in the instant case and I also have not found any direct evidence against them. Exhibit P/6 is the seizure memo dated 06.07.2013 which was prepared by me regarding seizure of cash amounting to Rs. 1,25,325/- in different denominations, 3 mobile handsets (Nokia 101) and a wrist watch (Fast track) and Exhibit P/6 (A) is my signature thereon. Exhibit P/7 is the seizure memo dated 04.07.2013 regarding seizure of one mobile handset (Karbon) from accused T. Yabang. Exhibit P/7(A) is my signature thereon. Exhibit P/8 is the seizure memo dated 04.07.2013 regarding seizure of one mobile handset from accused Samarenba (Nokia). Exhibit P/8 (A) is my signature thereon. Exhibit P/9 is he seizure memo dated 04.07.2013 regarding seizure of 1. One mobile handset, 2. Two bed sheets, 3. One dao, 4. One brick with blood stain, 5. One pillow, 6. One floor wiper, 7. One potato peeler, 8. Two empty bottles of whisky Blenders Pride. These articles were seized from the place of occurrence. Exhibit P/9(A) is my signature appended thereon. I know the accused persons and I can identify all of them. All the accused persons except accused Santosh Nath are present in the court today Exhibit P/10 is the charge sheet dated 02.10.2013 submitted by me exhibit P/10(A) is my signature appended thereon. Cross -examination: • A team was constituted by S.P. Dimapur to investigate the case. In the said team I am the principle investigating officer. All the accused persons except accused Santosh Nath are present in the court today Exhibit P/10 is the charge sheet dated 02.10.2013 submitted by me exhibit P/10(A) is my signature appended thereon. Cross -examination: • A team was constituted by S.P. Dimapur to investigate the case. In the said team I am the principle investigating officer. • The verbal information regarding the incident was given to the duty officer in the West P.S. by one Havildar Arenba. I do not know who received the written FIR form the accused Yabang. I merely found FIR in the file. • I am aware that when the accused Yapang filed a written FIR in his own hand he was told by ASI Achem that what he had written was not in a proper way of filing an FIR and subsequently ASI Achem wrote another FIR and made the accused Yapang append his signature thereon. • I was told by ASI Achem that the written FIR by accused Yapang was vague therefore he resorted to write another FIR. • I agree that a report of someone having been found murdered is not a vague statement. • It is correct that I did not send that articles collected from the crime scene viz, the brick, the potato peeler, dao and other articles for any sort of forensic test whatsoever. • It would be correct to say that in the charge sheet submitted by me the charges are primarily focused on accused Rikumkaba. • It is correct that according to my charge sheet the accused Rikumkaba disclosed to me in minute detail the manner in which he murdered the deceased and stole from the accused Yapang. When the accused Rikum was arrested and the money recovered from his possession he straight away told us that the money seized from him was the money he stole from Yapang. • It is correct that suspicion cannot replace evidence in the criminal case. As stated in my examination in chief I did not find any direct evidence against accused Yapang. During the court of my investigation I did not recover any evidence whatsoever to even suggest that there was a meeting of the mind between the accused persons to murder the deceased. As stated in my examination in chief I did not find any direct evidence against accused Yapang. During the court of my investigation I did not recover any evidence whatsoever to even suggest that there was a meeting of the mind between the accused persons to murder the deceased. • The oral information about the incident was not given to me but was given to the subordinate officers in the P.S. and the same was conveyed to me. When the verbal information was conveyed to me I was in Signal area driving on the way. • I first noticed the written FIR after I came back to my office from the place of occurrence. In the verbal information I was told that a murder had taken place at Landmark colony Dimapur and in the written complaint Mr. Yapang stated that his sister in law late Nungshilila was murdered and his living room was also ransacked by unknown persons. • On the same day ii examined all the three suspects arrested and some of the neighbours. The place of occurrence was located in a Govt. Quarter which was an Assam type building shared by two families and the compound where the incident took place was bounded by bamboo wall. • It is true that the almirah from where the money was reported to have been stolen is shown in the picture produced before this court however, there is no breaking mark visible in the photograph. • On the eastern side of the place of occurrence there were marks of disturbance on the wall seeming to be entry or exit but I have not collected anything from there as evidence. On that very moment I found that suspicious entry and exit to the place of occurrence. • It is true that there was no clear cut point of entry and exit to the place of occurrence. I arrested accused Rikum on the morning of 6th July 2013 from West P.S. Dimapur. • I do not remember the exact date when accused Rikum gave confessional statement to the Magistrate. • I do not remember the exact location where the accused made his confessional statement to the Magistrate. • I am very sure that only after expiry of police remand accused Rikum was forwarded to the court and his confessional statement was recorded while he was in the judicial custody. • I do not remember the exact location where the accused made his confessional statement to the Magistrate. • I am very sure that only after expiry of police remand accused Rikum was forwarded to the court and his confessional statement was recorded while he was in the judicial custody. • I am sure that accused Rikum was forwarded to the court form West P.S. Dimapur. • The charge sheet I submitted is based on findings during investigation. • At about 8:30 a.m. in the morning of 04.07.2013 accused Rikum went to the place of occurrence i.e. after commission of the crime; he went to his friend's house, asked for auto fare then went home. After reaching home he collected Rs. 15,000/- out of the stolen money and went for shopping. • Other than the money and some other articles like mobile phones no other direct evidences have been found against accused Rikumkaba. • It is true that even though accused Rikum confessed that he committed the crime alone 1 still doubt that such gruesome act could not have been committed by him alone. • It is correct to say that FSL report is necessary only when there is rape. Re-examination It is correct to state that I have not accompanied accused Rikum for recording his confessional statement. It is correct to state that besides the seized form accused Rikumkaba, his confessional statement recorded by Magistrate, his own statement recorded under 161 Cr.P.C. are other evidences against accused Rikumkaba. Re-cross: • it is correct to state that the instant case is a very sensitive case. Widely publicised, therefore a lot of pressure was put on me by the society, higher up police officers and politicians for properly investigating the case. • It is correct to state that in the entire investigation I have not been able to connect anything between accused Rikum and accused Samarenba and Santosh Nath. • It is correct to state that as per the charge sheet I have filed charge sheet against all the accused persons, however I state that the offence was committed by accused Rikum and in that connection I have not found any link to connect accused Samarenba and Santosh Nath to accused Rikum. • It is correct to state that as per the charge sheet I have filed charge sheet against all the accused persons, however I state that the offence was committed by accused Rikum and in that connection I have not found any link to connect accused Samarenba and Santosh Nath to accused Rikum. Re-examination; I reiterate my statement made in my examination-in-chief to the effect that charge sheet against accused Rikumkaba was based on direct evidence and charge sheet against the other three accused namely accused Yapang, accused Samarenba and accused Santosh Nath was submitted based on circumstantial evidence. P.W. 25 Keneisanyu Linyu: I am from Kohima Village. Presently I am posted to DEF Phek. During July 2013 I was posted at North P.S. Kohima I am the seizing officer who seized Rs. 1,35,325/- from accused Rikum at Capital hotel Kohima. Exhibit P/2 is the seizure memo prepared by me and Exhibit P/2(A) is my signature thereon. The seized money was found in a Hotel room of the accused Rikum and his friends wrapped in a green polythene bag. When the seizure was made I was with S.I Nchumbemo, one UBC and some 15 Mahila E coy personnel. I asked accused Rikum whether he was employed, to which he said he was not employed. I also asked him from where he got the money and he told me that he found it in an auto rickshaw. Since I was not satisfied with the answer given by accused Rikum, he was taken to North P.S. along with three other persons and detained them for further enquiry. In the North P.S. Rikum stated that that he found the money in auto rickshaw and on 4th July 2013, he hid it near his house. Accused Rikum also stated that after the funeral service of his cousin Nungshilila, he called his friends and came to Kohima for having fun. (Seized money of Rs. 1,25,325/- exhibited before the court and the P.W has identified the seized money as the one seized from accused Rikum) Exhibit P/3 is the seized money produced before the court today. Cross-examination: • When we were on daily routine checking the hotel we arrested Rikum and his friends. • The only objectionable item I found in the hotel room of the accused person and his friends was Rs. 1,25,325/-. Cross-examination: • When we were on daily routine checking the hotel we arrested Rikum and his friends. • The only objectionable item I found in the hotel room of the accused person and his friends was Rs. 1,25,325/-. • The seized cash amount was found lying on the table of the hotel room with the money exposed. • I could identify the cash amount seized depending on the amount I have seized although no serial number of the currency had been noted down at the time of seizure. • It is true that apart from the seizure, I have not taken any part in investigating the case of late Nungshilila murder. • It is true that the cash amount is the only item I have seized. P.W. 26. M.T. Therieh: Presently I am working as CJM, Kohima. During July 2013 I was the CJM Dimapur. I recorded the confessional statement of accused Rikumkaba in the instant case. The accused Rikumkaba confessed before me and admitted that he committed theft and then murdered the deceased. The theft was committed on the property of his uncle Yabang. In my opinion accused Rikumkaba had given the confessional statement voluntarily. He was also given time for reflection. Exhibit P/11 is the confessional statement containing six pages in respect of Rikumkaba recorded by me and Exhibit P/11(A) is my signature appended thereon. Cross-examination: • On 19th July 2013 I have recorded the examination of accused Rikumkaba inside the courtroom. • Accused Rikumkaba was brought to me by officer in charge of Dimapur West P.S. Jenmei Konyak. • After leaving the accused in the court room the said officer-in-charge informed me. • The accused Rikumkaba was brought at about 9:30 to 10:00 a.m. • The examination started at around 12:00 p.m. • The examination was going on about an hour. • About 2 to 3 hours cool reflection time was given to accused person. • During the cool reflection period accused Rikumkaba was kept alone inside the court room and I was in the chamber. • I did not ascertain whether any police officer or police personnel were present outside the courtroom at the time of examination of the accused. • I did not ask the accused person how long he had been kept in police custody. • It true that accused Rikum was produced was produced from police custody. • I did not ascertain whether any police officer or police personnel were present outside the courtroom at the time of examination of the accused. • I did not ask the accused person how long he had been kept in police custody. • It true that accused Rikum was produced was produced from police custody. I did not peruse the previous records of the present case more specifically that on 6th July 2013 the I/O of the present case had prayed for 15 days of police custody of accused person and granted the said prayer fixing 21st July 2013 for subsequent steps. • I have asked the accused person as to how he was treated by the police during the police custody. • I have examined whether there were any marks of torture or violence on the person of the accused person. • To satisfy whether the confession was made voluntarily, I asked the accused person whether he was making the confession voluntarily or not an the answer was "yes". • I am not aware of the distinction between a confession or a statement under sec. 164 Cr.P.C. • The recording made under oath under accused person was by ways of question and answer as well narrative forms. • The recordings made oath does not have any question. Re-examination: It is correct to state while recording the statement of accused Rikumkaba there was no other person inside the court room except the accused and me Point for decision No. (C); Judgment (operative portion) Whether the accused Rikum intending to commit murder, caused death of the victim/deceased by hitting/cutting her on the head and neck with a dao, brick and potato peeler and thereby committed an offence punishable under section 302 IPC? Section 299 IPC: "Culpable homicide/whoever causes death by doing an act with the intentions of causing death, or with the intention causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence culpable homicide". Section 299 IPC: "Culpable homicide/whoever causes death by doing an act with the intentions of causing death, or with the intention causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence culpable homicide". Section 300 IPC: "Murder as Except-in the cases herein after excepted, culpable is murder, if the act by which the death is caused is done, with the intention of causing death, or Secondly- If it is done with the intention of causing such bodily injury as the offender know to be likely to cause the death of the person to whom the harm is caused, or Thirdly-If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Section 302 IPC: Punishment for murder-whoever commits murder shall be punish with death, or imprisonment for life, and shall also be liable to fine. The principles which should guide the court administering criminals justice in dealing with a case base on circumstantial evidence have been laid down as earlier as in 1952 in the case of Hanumant Govind Nargundkar & Anr. v. State of Madhya Pradesh. Reported in AIR 1952 SC 343 , where the Hon'ble Supreme Court held as follows:- "It is well to remember that in case where the evidence is of a circumstantial nature, the circumstantial from which the conclusion of guilt is to be drawn should in first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstantials should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. Again, the circumstantials should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other word, there must be a chain of evidence so far completed as note to leave any reasonable for a conclusion consistent with the innocence of the accused and it must be such as to show that we think all human probability the act must have been done by the accused. This court is also guided by the "five golden principles" laid down by the Apex Court in 1984 (4) SCC 116 , Sharad Birdhichand Sarda v. State of Maharashtra." "the circumstance from which the conclusion of guilt is to drawn should be fully established". "(i) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (ii) the circumstances should be of a conclusive nature and tendency. (iii) they should exclude every possible hypothesis except the one to be proved, and (iv) There must be a chain of evidence so complete as now to leave any reasonable ground for the conclusion consistent with the innocent of the accused and must show that in all human probability the act must have been done by the accused". So far as circumstantial evidence is concerned, our Hon'ble Gauhati High Court has also held in Gurnam Singh & Anr. So far as circumstantial evidence is concerned, our Hon'ble Gauhati High Court has also held in Gurnam Singh & Anr. v. State of Assam, reported in (1996) GLT 1 476, as follows; "the circumstantial evidence in order to sustain the conviction must satisfied three conditions: (i) the circumstances from which and inference of guilt is sought to be drawn, must be cogently and firmly established, (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused, (iii) the circumstances taken, cumulatively, should form a chain so complete that there is no escape from the conclusion within all human probability the crime was committed by the accused and none else, and it should also be in capable of explanation of any other hypothesis then that of the guilt of the accused." Defence has also relied on 1997 CrLJ 2535 (SC), Tanviben Pankajkumar Divetia v. State of Gujarat, where the Supreme Court at paragraph 45 laid down that, "the principle for basing a conviction on the basis of circumstantial evidence has been indicated in a number of decisions of this court and the law is well settled that each and every incriminating circumstance so proved must be clearly established by reliable and clinching evidence and the circumstance so proved must form a chain of events from which the only resistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. This court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjuncture or suspicion may take the place of legal proof. The court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot, in any manner, establish the guilt of the accused beyond all reasonable doubts. It has been held that that the courts has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof, for sometimes unconsciously it may happen to be a short step between moral certainty and legal proof. It has been held that that the courts has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof, for sometimes unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by this court that there is a long mental distance between 'may be true' and 'must be true' and the same divides conjectures from sure conclusions." Let us examine the evidence in the light of the aforementioned principles and also keeping in mind the two fundamental factors of criminal law, presumption of innocence and proof beyond reasonable doubt. The following circumstances have been relied upon by the prosecution for the purpose of conviction of the accused; i. The crime could have been committed only by a person who knew the house well. The accused knew the deceased and her family members well and was familiar with the P.O., the house where the deceased was staying and the entire lay out of the house. ii. Depositions of PW-7, 9 and 25 proved that a large amount of money was recovered from his possession, the source of which he could not explain being an unemployed person, except that it was found in a auto-rickshaw. iii. PWs-13, 14, 15 and 16, the friends of the accused who were with him on the evening of 4th July 2013 proved that accused was carrying a large amount of money that night and that he bore all the expenditure. iv. A sum of Rs. 2,50,000/- (two lakh fifty thousand) only was reported missing from the P.O. v. PW-3 deposed that a blood stained jacket was recovered from his room and PW-22 deposed that on the 4th July morning after the discovery of the body, accused came to his residence and he noticed that he had scratch marks on his neck and a cut on his right ankle. vi. Accused confessed before the Police and the Magistrate that he killed the deceased and stole the money. Admittedly there is no eye witness in the present case and consequently no direct evidence incriminating the accused. It Is seen in the present case that apart from the statement u/s. 164 Cr. vi. Accused confessed before the Police and the Magistrate that he killed the deceased and stole the money. Admittedly there is no eye witness in the present case and consequently no direct evidence incriminating the accused. It Is seen in the present case that apart from the statement u/s. 164 Cr. PC before the learned Magistrate, the entire case rests upon circumstantial evidence only and therefore this court is to examine whether there is enough circumstantial evidence to convict the accused under section 302 IPC. Accused Rikumkaba @ Rikum was arrested in Kohima from Capital Hotel on 05.07.2013 for possession of unaccounted and unexplained cash amounting to Rs. 1,25,325/- (Rupees one lakh twenty five thousand three hundred twenty five) only. The possession is proved by PW-25 who is the officer who seized the cash from the accused. He has proved the Seizure Memo of the said cash dated 05.07.2013 as Ext-P/2 and his signature therein as Ext-P/2(A). He deposed that the accused told him that the money was found in an auto-rickshaw on 4th July 2013 and then he hid it in his house. PW-9 has also proved his signature in Ext-P/2(B). PW-9 has deposed that he was also a witness to the seizure and accordingly appended his signature in the Seizure Memo dated 05.07.2013. Some of the friends of the accused, PWs-13, 14, 15 and 16 who were also arrested along with him and released later have deposed in detail about the events leading to the arrest and recovery of the money. They have deposed that on the evening of 4th July 2013, all of them spent a night drinking and enjoying themselves at various restaurants and lounges in and around Dimapur. They have also deposed that all the expenditure was borne by the accused. At one point of time in the evening the accused ran out of money and PW-14 stated that she took accused in her car to a house in Midland and made her wait in the car. He then jumped over a concrete wall and came back with some bundles of cash in a green polythene bag. She did not know whose house it was. She met accused for the first time that night. She also deposed that accused told that since he does not have any ATM card or any saving, he will spend whatever he had. She did not know whose house it was. She met accused for the first time that night. She also deposed that accused told that since he does not have any ATM card or any saving, he will spend whatever he had. PW-13 deposed that in Kohima they went to a mobile shop with the accused and he bought handsets for three of them. He also said that all the expenditure on the evening of 4th July 2013 at Dimapur and on 5th July 2013 were all borne by the accused. PW-15 and PW-16 also deposed that accused bore all the expenditure during their night out on 4th July, 2013 evening. The recovery of cash amounting to Rs. 1,25,325/- from the possession of accused Rikum therefore stands proved as the statements of PWs-9, 13, 14, 15, 16 and 25 corroborate each other and there is no reason to disbelieve them. Defence has also not adduced any evidence to rebut the same. Now the important question before the court is, does the recovery of the amount of Rs. 1,25,325/- from the accused link him to the crime? Recovery of the money by itself cannot connect him with the offence. The accused stated before the police when he was arrested in Kohima that the money was found in an auto-rickshaw. The law is that prosecution has to prove its case and cannot gain any mileage from the conduct of the accused remaining silent on the source of the money. What is the evidence that the prosecution led therefore to link accused with the offence? PW-3 has deposed in his cross examination that after accused was arrested at Kohima, he was brought down to Dimapur and detained in Police custody for 14 days and during these 14 days he was thoroughly and continuously interrogated by the police. He deposed that accused stated before the police and also made confessional statement before the Magistrate that he made a plan to steal the wallet and belongings of his uncle Yapang (PW-22) on the night of the incident. Accordingly, around 10-10:30 PM of 03.07.2013, he carried change of clothing in a polythene bag so that people would not recognize him and then went to Yapang's house. He entered the compound by climbing the pillar of the closed gate. Accordingly, around 10-10:30 PM of 03.07.2013, he carried change of clothing in a polythene bag so that people would not recognize him and then went to Yapang's house. He entered the compound by climbing the pillar of the closed gate. He tried to enter thought the sitting room but he saw his uncle and his wife sleeping on the floor. So he went to the rear of the house and entered through the door of the room where victim was sleeping which was open. He entered the bedroom and picked up Yapang's wallet. Thereafter, on checking the almirah, he found it unlocked but the locker was locked and could not find the key. To open the locker he went to the kitchen and collected the dao (machete) and three kitchen knives. With the help of the knife he tried to open the locker but could not, so he opened it with the dao. And then he stole all the cash which was in the locker. While leaving through the room of the deceased the victim woke up and started to call his name and asked him what he was doing with the dao and knives. He told her not to shout but she started shouting out her sister's name as "Ati Among", so he gagged her mouth with a pillow and dragged her outside. When she struggled with him he hit her head on the back with a stone lying nearby. Then with the dao he tried to cut her throat so that she stopped shouting. He then hit the back of her head twice with a stone. He also used a knife to hit her. She was still making sound. He wanted to make it appear like a rape case, so removed her pants and underwear, he bit her breast and pushed a stick inside her private part. Then he remembered Yapang's wallet which he had left behind, so he went back to collect it. His hand was dirtied with blood, so he wiped it on his clothes and changed his bloodstained clothes after going outside the gate, then he put the dirty clothes in a plastic bag threw it near the power house and went home. He men hid the money in the grass behind his house and went off to sleep. His hand was dirtied with blood, so he wiped it on his clothes and changed his bloodstained clothes after going outside the gate, then he put the dirty clothes in a plastic bag threw it near the power house and went home. He men hid the money in the grass behind his house and went off to sleep. He was woken up by his grandmother around 7 a.m. Actually he could not sleep and he kept thinking that he should have just taken the wallet and left or as to why he had gone to such an extent of killing the deceased. He stated that he used to pick pocket from his parents but he had never stolen money from Yapang's house. He stated that he carried extra clothes because he thought of changing clothes so that he will not be suspected. He also stated that he felt remorse for killing the deceased. PW-26, the Magistrate who recorded the confessional statement has proved the same as Ext-P/11 and her signature therein as Ext-P/11(A). PW-3 also deposed in his cross examination that a blood stained jacket was found in the room of the accused but besides that no other incriminating item connecting with the commission of the crime was incriminating item connecting with the commission of the crime was recovered. PW-3 as well as PW-24(I.O) have admitted in their deposition that the accused was charge-sheeted basing only on his section 161 Cr. PC statements before the police, confessional statement u/s. 164 Cr. PC and the seizure of Rs. 1,25,325/- from his possession. The I.O and PW-3 have deposed that the weapons seized from the P.O were never sent for chemical analysis. No fingerprints were taken at the P.O. It is admitted that the soiled clothes packed in a polythene bag which the accused is alleged to have thrown away after the offence were never recovered. The blood stained jacket supposed to have been recovered from the room of the accused was never exhibited or produced in court during the trial. The settled principle of law is that mere marking of an article as an exhibit does not prove it and unless seized articles are exhibited in the court, the article cannot be held to be proved. The settled principle of law is that mere marking of an article as an exhibit does not prove it and unless seized articles are exhibited in the court, the article cannot be held to be proved. This statement of PW-22 that when he was taken to the room of accused on the evening of 5th July with the police, a shirt was recovered which he knew was the one accused wore during the commission of crime as one button found at the P.O matched the buttons in the shirt and one button was missing has not been corroborated by any other evidence and this statement was never made before the police but stated for the first time in court. This statement is therefore not admissible as evidence. The I.O has proved Exhibit P/9 as the seizure memo dated 04.07.2013 regarding seizure of 1) one mobile handset, 2) two bed sheets, 3) one dao, 4) one brick with blood stain, 5) one pillow, 6) one floor wiper, 7) one potato peeler, 8) two empty bottles of Blenders Pride Whisky. These articles were seized from the place of occurrence and he also proved his signature in the seizure memo as Exhibit P/9(A). Admittedly these seized articles were never sent for chemical analysis. Vaginal swab of the victim, blood sample of the accused, a blood stained shirt belonging to accused and blood sample of the victim were sent for forensic examination. Human semen was detected in the vaginal swab and human blood was detected in the shirt but the results vide CFSL (K)/EE/2013(NAGA)-1024 dated 23.4.2014 showed that none of the samples matched each other. Therefore, I am of the opinion that the prosecution has not been able to prove any connection or link between the seized articles in Ext-P/9 and the accused. The prosecution places reliance on the section 161 Cr PC statement of the accused also and PW-3 and PW-24 (I.O) have both stated that accused admitted before the police that he had committed the murder. However, such a statement is hit by section 26 of the Evidence Act and cannot be proved against him. Even assuming that it may be allowed as corroboration along with other circumstantial evidence, a bare reading of the statement reveals too many inconsistencies when compared with the depositions of other P.Ws. However, such a statement is hit by section 26 of the Evidence Act and cannot be proved against him. Even assuming that it may be allowed as corroboration along with other circumstantial evidence, a bare reading of the statement reveals too many inconsistencies when compared with the depositions of other P.Ws. One such instance is that the PW-4 who heard the victim shouting during the incident deposed that she heard the victim calling out "aku Yapang' but the accused stated before the police that the victim called out her sister "ati among" when she struggled with him. The statement made to the police is therefore inadmissible. The prosecution has also relied on the 164 Cr.PC statement and also stated that accused has admitted to the commission of the offence in his 313 Cr.PC examination. Record shows that the defence has filed an application on 15.10.13 praying for retraction of the 164 Cr. PC statement. Besides, defence counsel has also submitted that the I.O had prayed on 06.07.2013 before the Magistrate for 360 days police remand stating that they needed thorough interrogation of the accused. The prayer is allowed and 21.07.2013 was fixed for next production. However, accused was brought before the CJM on 19.07.2013 from police custody by the I.O himself and prayed for recording of confessional statement. I have perused the order sheets which show that the submission of the defence is a fact. PW-26, the Magistrate who recorded the statement deposed in her cross examination that the accused was brought by the O/C of West P.S. She did not ask how long he had been in police custody. She did not peruse the previous orders in the records specifically that police remand was granted on 6th July 2013 and that 21st July 2013 was fixed for production. She has stated that the recording was made under oath and that the recording under oath does not have any questions and answers. She did not peruse the previous orders in the records specifically that police remand was granted on 6th July 2013 and that 21st July 2013 was fixed for production. She has stated that the recording was made under oath and that the recording under oath does not have any questions and answers. As referred by the defence in the case of Sankhi Chiba v. State of Arunachal Pradesh, 2008 CrLJ 1734 (Gau), the Hon'ble High Court at paragraph-17 stated that "before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution still lurking in the mind of the accused." It is evident from the evidence that the Magistrate did not make any such searching enquiry to ascertain how long the accused had been in police custody and the sort of treatment he had been in police custody and the sort of treatment he had been receiving from the police. There is no admission of guilt in the 313 Cr.PC examination by the accused. In fact he has stated that the confessional statement was made under duress as the police tortured him relentlessly, warning him that they would break his arms and legs if he did not admit that he had killed the deceased and he stated that he is not at all involved in the murder. Further stated that he was naughty before the incident, but he would never kill anyone and that he was made a scapegoat. He reiterated that he had not killed the deceased. Whatever he stated before the police was made up as they kept prompting him to say this or mat. Therefore, the 313 Cr.PC examination also does not help the prosecution case. Defence has also taken the plea that administration of oath to accused at the recording of the confession has rendered it bad in law and inadmissible as evidence. PW-26 admitted in her cross examination that the recording was made under oath. Therefore, the 313 Cr.PC examination also does not help the prosecution case. Defence has also taken the plea that administration of oath to accused at the recording of the confession has rendered it bad in law and inadmissible as evidence. PW-26 admitted in her cross examination that the recording was made under oath. Defence has relied on the decisions of the High Courts in Akanman Mora v. State of Assam, 1988 CrLJ 573 (Gau) at paragraph 6, Jayanti Bhattacharya v. State of west Bengal, 2006 CrLJ 3414 (Cal), and Arjun Rai v. State, 2004 CrLJ 4747 (Sikkim) to support his submission. A perusal of these judgments reinforces the position of law regarding administrating of oath before recording confession. This Court has no hesitation therefore to hold that the confessional statement of accused Rikumkaba @ Rikum is vitiated by the administration of oath and is inadmissible in evidence. Hon'ble Apex Court in Sarwan Singh v. State of Punjab reported in AIR 1957 SC 639 has held that in any given case before recording confession under section 164 would be reasonable to insist upon giving an accused person at least 24 hours to decide whether or not to make confession. Taking therefore the evidence as it stands there is nothing to connect the accused with the murder of the victim or even with stealing any money. The prosecution has not been able establish/prove the connection of the seizure of money from the accused with the offence. Lapses in investigation, failure of Magistrate to record confessional statement in accordance with law and absence of corroborative evidence leaves this Court with no option but to give accused the benefit of doubt. It cannot be held that the prosecution has proved a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. This is an unfortunate case where due to lapses in the investigation, the gruesome murder of a young woman has to go unpunished. The investigating agency seems to have been completely sidetracked and has not followed even the basic requirements in a murder investigation. The evidence is not enough to hold that accused is guilty beyond reasonable doubt. Point for decision No. (C) is decided in the negative. The investigating agency seems to have been completely sidetracked and has not followed even the basic requirements in a murder investigation. The evidence is not enough to hold that accused is guilty beyond reasonable doubt. Point for decision No. (C) is decided in the negative. 17. Point for Decision No. (d) and (e): d. Whether accused Rikum committed rape as defined in Section 375 IPC on the victim and thereby committed the offence punishable u/s. 376(1) IPC. e. Whether accused Rikum committed criminal trespass punishable under section 447 IPC? In view of the discussion of the evidence and the conclusion arrived at by this Court while deciding Point for decision No. (b) and (c), the Court has no hesitation in holding that prosecution has not been able to prove beyond reasonable doubt that accused Rikumkaba @Rikum committed rape or criminal trespass, more so when no evidence at all has been adduced to prove rape and criminal trespass. Decision: The accused Rikumkaba @ Rikum is acquitted of the charges under Section 302/376 (1)/380/447 IPC. Accused is in custody, he is set at liberty forthwith. The seized articles be destroyed in due course. The seized money amounting to Rs. 1,25,325/- (Rupees one lakh twenty five thousand three hundred twenty five) only is confiscated to the State. Furnish a copy of the judgment free of cost to the accused person. For the purpose of Section 357 (A) Cr. PC, I find that this case is one where the next of kin of the deceased needs to be granted compensation. Hence I refer the matter to the Dimapur District Legal Service Authority, to examine the case, make due enquiry and decide the quantum of compensation and endorse it to the Home Department, Relief & Rehabilitation Branch, Govt. of Nagaland in order to compensate the parents/next of kin of the deceased as per the Nagaland Victim Compensation Scheme 2012 Notification. Given under my hand and seal of this Court, I have signed and delivered this Judgment on this the 18th day of February, 2015 at Dimapur. Case disposed on contest". 4. Not being satisfied, the State of Nagaland, represented by the Chief Secretary, filed the Criminal Appeal No. 1(K) of 2015, challenging the judgment and order, dated 18.02.2015. At the same time, Smti. Case disposed on contest". 4. Not being satisfied, the State of Nagaland, represented by the Chief Secretary, filed the Criminal Appeal No. 1(K) of 2015, challenging the judgment and order, dated 18.02.2015. At the same time, Smti. Asangla, who is stated to be sister of the victim/deceased has also filed W.P.(Crl.) No. 18 (K) of 2015, challenging both the orders, dated 22.08.2014, by which the three accuseds, namely T. Yapang Ao, Samarneba and Santosh Nath, were acquitted and the final judgment and order, dated 18.02.2015, by which the accused Rikum @ Rikumkaba, was acquitted and praying for a direction directing the State respondents to let the CBI to conduct further investigation or re-investigation of the case. 5. In the Criminal Appeal No. 1(K) of 2015, the sole respondent/accused Rikumkaba, did not appear in spite of notice served to him through registered post. However, considering the seriousness of the charges against him this Court appointed Mr. N. Mozhui, learned Advocate as Amicus curiae to represent him in the appeal. In W.P. (Crl.) No. 18(K) of 2015, though the State respondents are represented by learned Sr. Government Advocate, Mr. K. Wotsa, the private respondents/accuseds No. 6, 7, 8 & 9 did not appear in spite of the notice served to them through Officer-in-Charge of West Police Station, Dimapur. 6. Heard Mr. K. Wotsa, learned Sr. Government Advocate-cum P.P. who appeared on behalf of the State/appellants in Criminal Appeal No. 1(K) of 2015 and the State respondents in W.P.(Crl.) No. 18(K) of 2015. Also heard Mr. N. Mozhui, learned Amicus curiae on behalf of the sole respondent in Criminal Appeal No. 1(K) of 2015. I have also heard Mr. Taka Masa, learned Sr. counsel who appeared on behalf of the petitioner in W.P.(Crl.) No. 18(K) of 2015. In Criminal Appeal No. 1(K) of 2015, Mr. K. Wotsa, learned Sr. Government Advocate-cum-P.P read over the grounds of the appeal given in the petition and submitted that he is relying on those grounds only. Therefore, the same are reproduced here below;- (i) For that the decision rendered by the court below isn't the judgment dated 18.02.2015 is bad in law and in fact the same is therefore liable to be quashed and set aside. (ii) For that the case against the respondent was based on formidable circumstantial evidence which unerringly led to the conclusion of the guilt of the respondent. (ii) For that the case against the respondent was based on formidable circumstantial evidence which unerringly led to the conclusion of the guilt of the respondent. In overlooking the evidence which was only consistent with the guilt of the respondent the trial court prejudiced the state and committed an illegality. (iii) For that the trial court having come to the conclusion that the death of the victim is homicidal the court below ought to have convicted the respondent u/s. 302/376 (1) 380/447 IPC as the evidence led by the state during the trial of the case invariably inferred that it was the respondent alone who stole the money from the complainant house and committed the murder of the deceased. (iv) For that the court below committed an illegality in coming to a finding that the prosecution has failed to prove that the money amounting to Rs. 2.50/- lakhs was lost from the locker (chest) of the almirah from the complainant's bed-room as the FIR dated 04.07.2013 (Ext-P1) did not mention about the loss of money. The court has also doubted the credibility of the FIR as it was written by a police officer at the police station though signed by the complainant. In this the court below completely failed to appreciate the circumstances under which the FIR was written by the police on the information of the complainant (PW-22). The court below did not at all consider the evidence of the complainant in his cross-examination wherein the complainant has deposed that while in the course of writing the FIR the police personnel at the police station told the complainant that the FIR is not written in the manner as should have been and rewrote the complaint on which the complaint on which the complainant appended his signature. No evidence was led by the defense in the cross examination of the complainant that the information given by the complainant was tempered with or that the rewritten complaint scribed by the police did not reflect the correct information of the crime. So also no evidence was led by the defense to establish that there was deliberation and/or discussions between the complainant and the police personnel before lodging the FIR on which the court have validly presumed that the FIR was tempered with and/or manufactured. So also no evidence was led by the defense to establish that there was deliberation and/or discussions between the complainant and the police personnel before lodging the FIR on which the court have validly presumed that the FIR was tempered with and/or manufactured. Moreover the court below failed to appreciate that there was no evidence on record that the rewriting of the FIR by the police had in any way prejudice or harmed the respondent in the case. The court below failed to appreciate that rewriting of the FIR spelling out the crime of the murder and ransacking of the complainants house was by of assisting the complainant to lodge a proper FIR and that the investigation of the case was only in respect of the present crime. Furthermore by giving a finding that as the complaint did not mentioned about the loss of Rs. 2.50/- lakhs no case was made out against the accused u/s. 380 IPC. This finding is fallacious for the reason that the complaint exhibited in evidence also mentions about ransacking of the rooms which is followed by the statements of the complainant to the police on the same date i.e 04.07.2013 that about Rs. 2.5/- lakhs is found missing or stolen from his almirah. In the cross-examination of PW-23 Mrs. Katimongla wife of the complainant has also deposed about the loss of Rs. 2.5/- lakhs from the locker of their godrej almirah which has been informed to the police on 6th July morning. Non-mention of the money amounting to about Rs. 2,50,000/- in the FIR by itself is not fatal to the prosecution's case when the complaint had clearly stated about the murder and ransacking of the house and the police in their investigation of the complaint had unearthed that the said amount was also found to have been stolen during the commission of the crime. The court below has also laid emphasis on the conflicting statements of the complainant and his wife on the source of the lost money to arrive at the finding that such contradiction itself infers that no money was lost however little realizing that when the said money is proved to have been stolen from the scene of the crime the source by itself becomes immaterial. None consideration of all this relevant facts and evidence on records presupposes that the court below did not properly apply its mind to arrive at the finding that no conviction can be made against the accused u/s. 380 IPC. (v) For that the when the court below has arrived at the clear findings that the cash amounting to Rs. 1,25,325/- has been recovered from the possession of the respondent and the defense has not lead any evidence to rebut the same, the trial court erroneously came to a finding that no offence under Section 380 IPC was established against the respondent. The prosecution evidence undoubtedly established that Rs. 1,25,325/- seized from the possession of the respondent was part of Rs. 2,50,000/- which was stolen from the complainant's house on 4th July 2013 Pw-25 is the police officer who has seized the money on 5th July 2013 amounting to Rs. 1,25,325/- from the possession of the respondent at Capital Hotel Kohima. In his examination-in-chief the witness has deposed that he is the officer who has seized Rs. 1,25,325/- from the respondent at Capital Hotel Kohima. The witness has also deposed that on enquiry from the respondent as to whether he was employed the respondent replied in negative and on further enquiry about the source of the money the accused replied that it was found in an auto-rickshaw on 4th July 2013. It is also in the statement of this witness that on enquiry the respondent stated that after the funeral service of his cousin Nungshilila he called his friends and came to Kohima for having fun. This witness has identified the seized money of Rs. 1,25,325/- (Ex-P3) as the money recovered from the respondent. The evidence of PW-25 remains un-impeached in cross examination by the defence. PW-13, 14 and 15 are independent witnesses who were all invited by the respondent on 4th July 2013 along with others for party and merry making at Dimapur and thereafter taken to Capital Hotel Kohima on 5th July morning. All this witnesses have deposed that the entire expenses incurred for the enjoyments were borne by the respondent PW-14 in her examination-in-chief has deposed that while having booze in one of the restaurants in Dimapur she took the respondent home in her car to get more money. All this witnesses have deposed that the entire expenses incurred for the enjoyments were borne by the respondent PW-14 in her examination-in-chief has deposed that while having booze in one of the restaurants in Dimapur she took the respondent home in her car to get more money. On reaching the house of the respondent at midland the witness was made to wait in the car and she saw the respondent jumping over a wall and coming back with bundles of cash in a green polythene bag. The respondent told with witness that he does not have any ATM Card or any saving and so he will be spending whatever he has. This statement of PW-14 remains un-impeached in cross-examination by the defence. PW-13 in his cross examination-in-chief had deposed that as he was outside the hotel room he saw police personnel's checking the room and enquiring as to whom the money belonged and to which the respondent replied that the money belongs to him and he found it on the road. In his cross examination this witness has deposed that the entire expenses for the enjoyment on 4th and 5th July was borne by the respondent who was carrying a big bundle of cash in black polythene. On enquiry by the police the respondent replied that the money was found on the road. This witness has further deposed that at Kohima he went to a mobile shop along with respondent and others where the respondent purchased 3(three) new mobile handsets and gave one to him. The evidence of this witness is also supported by the statements of the respondent made to the police. PW-15 in his examination-in-chief has deposed that while he was in the hotel room police personnel came and checked the room and found some cash in the drawer. On enquiry as to whom the money belonged the respondent told that the money was for his uncle but on enquiry of his uncle the respondent could not give any answer, after which the respondent told the police that the money belongs to him and on further asking the source of the money the respondent first told the police that it was found on the road and again told the police that it was found in an auto-rickshaw. The evidence of PW-15 remains un-impeached in cross examination by the defence. The evidence of PW-15 remains un-impeached in cross examination by the defence. PW-24 is the I.O of the case who in his examination-in-chief has stated that in the course of the investigation the accused was arrested by the Kohima police and hard cash amounting to Rs. 1,25,000/- something and 3(three) new mobile handsets were recovered and seized from the possession of the respondent and others and on further examination of the respondent he admitted his guilt and revealed how he stole the money and murdered the deceased. The witness has exhibited the seizure memo as Ex-P6. In his cross-examination the I.O had deposed that the accused had disclosed in minute detail the manner in which he murdered the deceased and stole the money from the complainant's house and the money seized from the respondent was the money which he stole from the complainant. PW-3 is the Team leader of the SIT constituted for the investigation of the case. In his examination-in-chief he had deposed that the 6(six) youths detained by the Kohima police were brought to Dimapur West P.S and during their interrogation the respondent admitted to the commission of the offence. The witness in his examination-in-chief has in detail deposed as to how the respondent narrated his involvement in the entire episode of the crime. In his cross examination the witness has deposed that as the respondent could not explain the source of the money which was recovered from him he finally confessed the commission of the crime. The evidence of PW-3 in his examination-in-chief remains un-impeached. PW-23 is the wife of the complainant. In her cross examination she has deposed that on the wall towards the front of her house there is a gate made by her neighbour which permits easy ingress and egress even when it is closed. She has deposed that on 03.07.2013 she and her husband decided to sleep in the sitting room with all the doors and windows open as it was very hot and their inverter had broken down. She has further deposed that the respondent a relative of her husband who used to visit them every now and then and is also known to the victim. The witness has deposed that since the respondent is a frequent visitor to her house he knows the layout of the house and the habits of her family. She has further deposed that the respondent a relative of her husband who used to visit them every now and then and is also known to the victim. The witness has deposed that since the respondent is a frequent visitor to her house he knows the layout of the house and the habits of her family. PW-22 is the complainant who in his examination-in-chief has deposed that on 4th morning after discovering the body the respondent also came to his house and during which he noticed that the respondent had scratch marks on his neck area and a cut on his right ankle. This injuries on the body of the respondent was also found by the I.O and recorded in the CD when on 6th July 2013 the respondent was brought to West P.S Dimapur from North P.S. Kohima. PW-4 is the neighbour of the complainant who in her examination-in-chief has deposed that on the day of the incident she heard a moaning sound of a lady whom she does not know and she heard the lady uttering and calling 'Aku Yabang" (uncle Yabang) three or four times. After sometime the complainant heard the girl saying "inika nokuribi" (do not do this) and after sometime the witness heard some sound like "top, top" and thereafter silence followed. The witness has reiterated the statements in her cross examination. The respondent in his statements to the police has stated that while wrestling with the victim and keeping the victim faced down towards the ground, the victim called out her brother-in-law and sister and during which the respondent picked up a brick and hit the victim on her head. The evidence of PW-4 corroborates the statement of the respondent made to the police during investigation lending credibility that there is no exaggeration or falsehood in the statements of the respondent before the police and making it highly probable that it was the respondent who trespassed into the complainant's house and committed the offence of theft, murder and rape. PW-16 is a friend of the respondent who in his examination-in-chief deposed that sometime in the month of July 2013 the respondent came to his house and asked for fare for going home and to which the witness gave Rs. 30-40/- to the respondent. PW-16 is a friend of the respondent who in his examination-in-chief deposed that sometime in the month of July 2013 the respondent came to his house and asked for fare for going home and to which the witness gave Rs. 30-40/- to the respondent. The respondent came back in the evening and brought tow cases of beer and after calling another friend they went to the stadium near St. Edmunds School. In his cross examination the witness reaffirms the statement and also states that on the same day the respondent came back to the house of the witness with a polythene bag probably a Jack and Jill bag. The respondent brought new cloths and changed his cloths with the new and left the old cloths wrapped in a polythene bag in the house of the witness. Next day police came to the house of the witness and enquired whether the respondent had left his cloths in the house and to which the witness handed over the cloths to the police. This evidence which remains un-impeached also finds a clear mention in the statement of the respondent before the police and the evidence of this witness and the statements read together leads to a logical inference that the admission made by the respondent to the police about the commission of the crime is true and it is none other than the respondent who has committed the crime of which he has been acquitted. All this evidence though circumstantial in nature formidably established the guilt of the respondent in the crime. The court below however discarded all this material evidence to acquit the respondent. The impugned judgment therefore suffers from non appreciation of evidence and is liable to be quashed and set aside. vi. For that the evidence of PW 3, PW-4, PW-13, PW-14, PW-15, PW-24 & PW-25 clearly established that the money recovered from the possession of the respondent was part of the money stolen from the complainant's residence and this could be painly inferred from the false statement of the respondent when enquires were made to unearth the source of the money. The false answers and/or the inability of the respondent to properly explain the source of the money recovered from his possession was presumptive of the fact that it was the respondent who not only stole the money but also committed the rape and murder of the deceased. The false answers and/or the inability of the respondent to properly explain the source of the money recovered from his possession was presumptive of the fact that it was the respondent who not only stole the money but also committed the rape and murder of the deceased. In failing to appreciate that failure on the part of the respondent to explain the source of the money provided a vital link in inculpating the respondent in the crime the court committed an illegality and occasioned a miscarriage of justice. vii. For that the learned court below miserably failed to appreciate the fact that possession of Rs. 1,25,325/- by the respondent which was a part of the stolen money of Rs. 2,50,000/- strongly incriminated the respondent in the crime. The respondent did not lead any evidence to establish that possession of Rs. 1,25,325/- was in some way consistent with his innocence and that by itself inculpated the respondent in the crime. The trial court further failed to consider the sequence of the events leading to the recovery of the stolen money from the respondent immediate to the commission of the crime. The crime was committed in between mid-night of 3rd July 2013 and early morning of 4th July 2013, the respondent who is an orphan, school dropout and unemployed and no affluent to own such a huge amount of money went on a spending spree at Dimapur on 4th July 2013 right after the funeral service of the deceased by inviting his friends for merry making which continued at Kohima till the respondent was arrested by the police on 5th July 2013 at Capital Hotel Kohima. The respondent had even purchased brand new mobile handsets for two of his friends whom he had invited, however on detection of the money amounting to Rs. 1,25,325/- by the police a Capital Hotel the respondent could not give any plausible answer about the source of the money but gave incredible lies firstly by stating that the money was for his uncle and then changing statements that the money was found on the road and again by saying that the money was found in an auto-rickshaw. On 6th July 2013 the respondent was produced at West P.S. Dimapur and during which the officer-in-charge found fresh injury marks on the body of the respondent which could not be explained. On 6th July 2013 the respondent was produced at West P.S. Dimapur and during which the officer-in-charge found fresh injury marks on the body of the respondent which could not be explained. This injury also appears in the evidence of PW-22. It was during investigation by the police that the respondent having failed to explain the money finally admitted the crime by minutely describing how he stole the money from the complainant's house and also raped and murdered the deceased. Recovery of a part of the stolen money from the respondent, the false answers as to how the respondent got possession of the money and the inability to give any satisfactory explanation by itself lead to a valid presumption that it was the respondent who committed the offences which were all integral part of one and the same transaction by carpeting this vital evidence to acquit the respondent the impugned judgment militated against criminal justice viii. For that the case of the prosecution was based on circumstantial evidence which did not suffer from any legal infirmities but conclusively and unerringly pointed only to the guilt of the respondent. The trial court however perversely came to a finding that the circumstantial evidence against the accused was incompatible with the guilt of the accused. The chronology of the facts and circumstances and the evidence adduced in the case undeniably infers that it was the respondent who committed the crime beyond any shadow of doubt. On 4th July 2013 in the early morning hours complainant telephonically informed the police about the murder of the deceased in his residential compound. The police immediately reached that spot and found a dead body of a female lying in a pool of blood. The upper torso was covered by a bed sheet and was naked from waist down. A plastic handle was found inserted in her private part. A mobile handset, two bed sheets, one machete (dao), one brick with blood stain, one pillow, one floor wiper, one potato peeler etc. were recovered from the place of occurrence under proper seizure memo (Ex-9). Inquest of the death body was conducted by the police and post mortem (Ex-P4) was conducted at Civil Hospital Dimapur. FIR dated 4th July 2013 (Ex-P1) was lodged by PW-22 who was examined by the police on the same day. were recovered from the place of occurrence under proper seizure memo (Ex-9). Inquest of the death body was conducted by the police and post mortem (Ex-P4) was conducted at Civil Hospital Dimapur. FIR dated 4th July 2013 (Ex-P1) was lodged by PW-22 who was examined by the police on the same day. PW-22 in his statement to the police stated that on 4th July 2013 at about 5:45 a.m. he found the deceased lying naked in the pool of blood with the handle of the mop inserted in her private part. He immediately brought a bed sheet and covered the body. He was totally shocked nothing came to his mind. The witness also told the police that about Rs. 2.50 Lakhs which was kept in the almirah was missing and stolen. On 4th July morning the respondent also came to the residence of PW-22 and during which PW-22 observed scratch marks on the neck and a cut on the right ankle of the respondent, the witness however did not suspect any person at that relevant point of time. On the same day the respondent came to the residence of PW-16 and took auto fare for going to his residence and after sometime came back to the residence of PW-16 with new cloths and some bottles of beer. The respondent changed the new cloths and left his old cloths at the residence of PW-16 which was seized by the police on the information given by the respondent The respondent thereafter invited PW-13, 14, 15, 16 and 4 (four) others and went on a spending spree by taking them to restaurants and discotheques. The non-stop merry making continued with the respondent taking PW-13, 14, 15 and 2 (two) others to Kohima on 05.07.2013 where they were detained by the police at Capital Hotel for carrying unaccounted money amounting to Rs. 1,25,325/-. The respondent who claimed ownership of the money could not give any explanation about the source of money but only gave false answers that the money was meant for his uncle and again changed statements that the money was found on the road and again answered that it was found in an auto-rickshaw. This false answer of the respondent is corroborated by the evidence of PW-13, PW-15 & PW-25. This false answer of the respondent is corroborated by the evidence of PW-13, PW-15 & PW-25. The money was seized by the Kohima police and the respondent and others were detained and forwarded to West Police Station Dimapur and during which the Officer-in-charge of West Police Dimapur found fresh injury marks on the right leg just above the ankle, right thump, beneath lower jaw and on the back just below the neck of the respondent. On persistent inquiry by the police the respondent finding himself trapped confessed the crime. The respondent statement to the police is that he is an orphan and a school drop-out. He lives in midland Dimapur with his uncle Akangkokba who is married to the sister of the complainant and is therefore close to the complainant's family and is also acquainted with the deceased. The respondent has often observed his uncle (Complainant) gambling with cards and as he was in need of money to enjoy with friends, a thought came to his mind to steal the complainant's wallet which he executed on the night of 3rd July 2013. The respondent has meticulously narrated how he entered the complainant's room through the room of the deceased. The complainant and his wife were sleeping in the room and all the doors and windows of the rooms were the complainant and the deceased were sleeping were kept open. The respondent located the wallet of his uncle in the bedroom and also found the almirah open however the inner locker was found closed. The respondent searched for the keys of the locker but could not find it so he steadily sneaked inside the kitchen which was usually kept open brought a machete and a knife and opened the inner locker and found two three wads of currency notes in a polythene. After collecting the wallet and the wads of currency notes the respondent went inside the room of the deceased for stealing her purse however the deceased saw the respondent and called him and enquired as to what he was doing. The respondents got frighten and therefore gagged the deceased with the pillow and forcibly dragged her out of the room along with the mosquito net under which the deceased was sleeping. The respondents got frighten and therefore gagged the deceased with the pillow and forcibly dragged her out of the room along with the mosquito net under which the deceased was sleeping. The deceased was kept face down facing the ground by the respondent and as the deceased attempted to call her brother-in-law and her sister the respondent picked up a brick and hit her head several times and also stained the head of the deceased with potato peeler. However as the deceased was still moaning the respondent picked up the machete and slit the throat of the deceased. Thereafter to dress-up the crime as a rape and murder the respondent removed the T-shirt and half pant worn by the deceased, bit the left breast of the deceased and inserted the handle of the mop in her private part. The respondent thereafter sneaked out of the house collected the bag which he had left at the gate went to a dark corner and changed his cloths. The respondent took out the money from the wallet and put both the blood stained cloths and the wallet in the polythene and threw it near PWD Junction on his way home. On reaching him he hid the money outside the house without counting it. The respondent went to bed but could not sleep. In the morning at about 8:00 a.m. respondent was informed by his aunty that the deceased has been murdered and told him to go to the complainant's house. At the complainant's house the respondent was frightened and disturbed on seeing the police so he sneaked out and went to the residence of PW-16 and borrowed Rs. 30/- from PW-16 for meting his fare expenses. On reaching home he collected few thousands rupees and went straight to Hazi Park from where he bought a new half pant and a T-shirt and again went to the residence of PW-16 along with some bottles of beers. At the residence of PW-16 the respondent changed his cloths by putting on the new ones. The respondent thereafter invited 8 (eight) other friends and went on a spending spree drinking liquor and enjoying at restaurant and discotheque for 2(two) continuous days i.e. 4th & 5th July and during which the respondent also brought new mobile handsets on each for PW-13 and his cousin one Mr. Imkongakum. The respondent thereafter invited 8 (eight) other friends and went on a spending spree drinking liquor and enjoying at restaurant and discotheque for 2(two) continuous days i.e. 4th & 5th July and during which the respondent also brought new mobile handsets on each for PW-13 and his cousin one Mr. Imkongakum. The respondent was arrested by the Kohima Police 5th July afternoon from Capital Hotel Kohima for possessing unaccounted money amounting to Rs. 1,25,325/- and on being forwarded to West Police Station Dimapur and interrogated the respondent admitted his involvement in the crime by stating the facts as narrated above. All the statements stated by the respondent before the police was also admitted by the respondent in his confessional statement before the Judicial Magistrate. So also all the incriminating evidence against the respondent was admitted by him U/s 313 Cr.PC. The case against the respondent which was circumstantial in nature was cogently established by the evidence of PW-2, PW-3, PW-4, PW-13, PW-14, PW-15, PW-16, PW-17, PW-20, PW-22, PW-23, PW-2, PW-25 and PW-26, leaving no scope for the respondent to escape the liability of the crime. However the court below basing its findings solely on conjectures and surmises came to a decision that the recovery of the money by itself cannot connect the respondent with the crime as there were serious infirmities in the evidence of the prosecution which does not warrant conviction of the respondent. ix. For that the Court below committed an illegality in failing to perceive the correctness of the law as enunciated under Section 313 Cr.PC. by cumulatively reading the examination of the respondent with the other evidence on record. The court failed to appreciate that the very purport of Section 313 is to enable the respondent to come forward with acceptable explanation while refuting the incriminating evidences against him. While answering to the question No. -4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 19, 20, 21, 22, 23, 30, 32, 34, 35, 36, 37, 38, 39 & 40 which contained the evidence of PW-3, PW-4, PW-9, PW-13, PW-14, PW-15, PW-23, PW-24, PW-25 & PW-26 to the offence of theft, rape and murder, the respondent unequivocally admitted his involvement in the crime with the clear answer 'True' and 'Correct'. The trial court however erroneously weighted consideration only to the answer given by the respondent to question No-41 wherein the respondent when asked as to whether he has anything to say answered that he did not murder the deceased and the confessional statement was made under threat and warning by the police. By solely taking this answer to be the gospel truth and ignoring the clear admissions made by the respondent the very object and intent of Sec. 313 Cr.PC was violated. The trial court failed to digest the fact that the denial of the respondent while answering the question No. 41 was only a defense strategy to cunningly escape the crime and the consequential punishment. In failing to examine the entirety of the statements made under Section 313 Cr.PC with the other evidence in the case and by dissecting and accepting only the exculpatory statements while completely brushing aside the statements inculpating the respondent and by arriving at the finding acquitting the respondent the trial Court acted with malafide and prejudiced the state. x. For that the trial Court while correctly observing that the confessional statement made by the accused u/s. 164 Cr.PC is vitiated due to the administration of the oath in violation of the provisions u/s. 164 CR.PC. committed an error by over looking the other material evidence on record. The Court failed to appreciate that even if the confession was kept excluded from consideration there was full proof circumstantial evidence warranting the conviction of the accused in the case. xi. For that the learned Court below committed an illegality in coming to a finding that the negative report of CFSL Kolkata established that there was no link between the respondent and the seized articles (Ex-P/9) which were recovered from the place of the occurrence. The trial Court did not prudently consider that the exhibits sent to Kolkata for Forensic Examination included the vaginal swap of the deceased and the blood samples of four of the accused to ascertain the offence of rape and a blood stained shirt of the respondent to match the blood found on the body of the victim. While exhibit P/9 pertained to the seizure of the weapons of the crime which were not sent for any forensic examination. While exhibit P/9 pertained to the seizure of the weapons of the crime which were not sent for any forensic examination. The forensic report by itself could not have concluded as to whether the weapons of the offence was used by the respondent to commit the crime and it was only the circumstantial evidence which inferred that Ex-P/9 was used by the respondent to commit the crime. The evidence adduced rules out physical rape therefore the forensic report will be obviously negative. The shirt with suspected blood stain was seized from the residence of the respondent on 6th July 2013 and was sent for the examination to arrest all possible suspicion. It is relevant to note that PW-3 in his evidence has stated that the blood stained cloths worn by the respondent during the commission of the crime was packed in polythene and thrown around PWD Junction which despite efforts could not be retrieved. This evidence of PW-3 is clearly admitted by the respondent in his examination U/s 313 Cr.PC and this makes it obvious that the shirt sent for examination was not the shirt worn by the respondent while committing the crime. In hastily coming to a finding that the forensic report is a proof that there is no link between the respondent and Ex-P/9 the trial Court exhibited non-application of a proper mind and reasoning. xii. For that the court below came to a wrong finding that no offence of rape was proved against the respondent as there was a serious infirmity in the circumstantial evidence of the prosecution and the forensic examination report did not indicate rape. The court below failed to appreciate that there was a clear evidence that the respondent after killing the victim had bitten the breast of the deceased and had also inserted the handle of a mop in her private part which clearly amounted to rape under the Indian penal code and it was not necessary to have forceful physical relation to constitute the offence of rape. xiii. For that the court below failed to appreciate that there was no embellishment or exaggeration in the circumstantial evidence of the prosecution. There was continuity in circumstances and the evidence did not suffer from any contradictions to acquit or absolve the respondent from the criminal liability of the case. xiii. For that the court below failed to appreciate that there was no embellishment or exaggeration in the circumstantial evidence of the prosecution. There was continuity in circumstances and the evidence did not suffer from any contradictions to acquit or absolve the respondent from the criminal liability of the case. By however coming to a finding that there was a serious infirmity in the case of the prosecution the court committed an error not tenable in law. xiv. For that in any view of the matter the impugned Judgment dated 18.02.2015 being bad in law and in facts cannot stand the scrutiny of law the same is therefore liable to be quashed and set aside. 7. Mr. Taka Masa, learned Sr. counsel appearing for the petitioner in W.P.(Crl.) No. 18(K) of 2015 submitted as follows; (i) That the investigation machinery did not investigate the case properly and the prosecution also did not prosecute the case by producing all the vital evidences collected during the investigation and that as led to discharge of the three accuseds namely, T. Yapang Ao, Samarenba and Santosh Nath and acquittal of the accused Rikumkaba @ Rikum, therefore, to instill confidence of the public in the system and to bring the culprits to book further investigation or re-investigation needs to be done either by a CBI or SIT constituted of people of competence and impeachable integrity. (ii) That the investigation machinery had committed error by not waiting for the forensic expert report before the charge sheet was submitted and that the Investigation Officer himself had stated that involvement of other persons in the commission of the crime besides the main accused Rikumkaba @ Rikum cannot be ruled out. Therefore, further investigation is called for. The learned Sr. counsel also submitted that the blood stained jacket found and seized in the room of the accused Rikumkaba @ Rikum was not sent for forensic examination, and the cloths worned by him while committing the crime and which he stated have been thrown at a place have not been recovered. From all these it can be seen that the investigation was conducted in a casual manner and much lesser degree of seriousness then that is required in investigating a crime like this. From all these it can be seen that the investigation was conducted in a casual manner and much lesser degree of seriousness then that is required in investigating a crime like this. (iii) That no proper investigation was done regarding the money that was seized though the same could have led to the finding of real culprits of the crime and their conviction. The learned Sr. counsel lastly submitted that a grown up woman could not have been killed by a person alone as made out to be by the prosecution, therefore, further investigation needs to be done to find the real culprits involved in the commission of the crime. The learned Sr. counsel in support of his submission that this High Court under Article 226 and section 438 of CrPC has the power to direct further investigation or re-investigation cited the following judgments, only the relevant portions relied upon are reproduced here below one after the other;- (1) Dharam Pal v. State of Haryana & Ors., reported in (2016) 4 SCC 160 . "21. In this context, we may notice the statutory scheme pertaining to investigation. Section 173 CrPC empowers the police officer conducting investigation to file a report on completion of the investigation with the Magistrate empowered to take cognizance of the offence. Section 173 (8) Cr.PC empowers the officer-in-charge to conduct further investigation even after filing of a report under Section 173(2) Cr.PC if he obtains further evidence, oral or documentary. Thus, the power of the police officer under Section 173(8) Cr.PC is unrestricted. Needless to say, the Magistrate has no power to interfere but it would be appropriate on the part of the investigating officer to inform the court. It has been so stated in Rama Chaudhary v. State of Bihar. 22. In Vinay Tyagi v. Irshad Ali, wherein a two-Judge Bench, after referring to the decision in Bhagwant Singh v. Commr. of Police has held thus: (Vinay Tyagi case, SCC p.789, para 38) "38. However, having given our considered thought to the principles stated in these judgments, we are of the view that the Magistrate before whom a report under Section 173(2) of the Code is filed, is empowered in law to direct 'further investigation' and require the police to submit a further or a supplementary report. However, having given our considered thought to the principles stated in these judgments, we are of the view that the Magistrate before whom a report under Section 173(2) of the Code is filed, is empowered in law to direct 'further investigation' and require the police to submit a further or a supplementary report. A three-Judge Bench of this Court in Bhagwant Singh has, in no uncertain terms, stated that principle, as aforenoticed." 23. In the said case, the question had arisen whether a Magistrate can direct for reinvestigation. While dealing with the said issue, the Court has observed: (Vinay Tyagi case, SCC p.791, para 43) "43. At this stage, we may also state another well-settled canon of the criminal jurisprudence that the superior courts have the jurisdiction under Section 482 of the Code or even Article 226 of the Constitution of India to direct 'further investigation,' 'fresh' or 'de novo' and even 'reinvestigation'. 'Fresh', 'de novo' and reinvestigation' are synonymous expressions and their result in law would be the same. The superior courts are even vested with the power of transferring investigation from one agency to another, provided the ends of justice so demand such action. Of course, it is also a settled principle that this power has to be exercised by the superior courts very sparingly and with great circumspection." (emphasis supplied) And again: (SCC p. 794, para 51) "51...Whether the Magistrate should direct 'further investigation' or not is again a matter which will depend upon the facts of a given case. The learned Magistrate or the higher court of competent jurisdiction would direct 'further investigation' or 'reinvestigation', as the case may be, on the facts of a given case. Where the Magistrate can only direct further investigation, the courts of higher jurisdiction can direct further, reinvestigation or even investigation de novo depending on the facts of a given case. It will be the specific order of the court that would determine the nature of investigation." 24. Be it noted here that the constitutional courts can direct for further investigation or investigation by some other investigating agency. The purpose is, there has to be a fair investigation and affair trial. The fair trial may be quite difficult unless there is a fair investigation. Be it noted here that the constitutional courts can direct for further investigation or investigation by some other investigating agency. The purpose is, there has to be a fair investigation and affair trial. The fair trial may be quite difficult unless there is a fair investigation. We are absolutely conscious that direction for further investigation by another agency has to be very sparingly issued but the facts depicted in this case compel us to exercise the said power. We are disposed to think that purpose of justice commands that the cause of the victim, the husband of the deceased, deserves to be answered so that miscarriage of justice is avoided. Therefore, in this case the stage of the case cannot be the governing factor. 25. We may further elucidate. The power to order fresh, de novo or reinvestigation being vested with the constitutional courts, the commencement of a trial and examination of some witnesses cannot be an absolute impediment for exercising the said constitutional power which meant to ensure a fair and just investigation. It can never be forgotten that as the great ocean has only one test, the test of salt, so does justice has one flavour, the flavour of answering to the distress of the people without any discrimination. We may hasten to add that the democratic set-up has the potentiality of ruination if a citizen feels, the truth uttered by a poor man is seldom listened to. Not for nothing it has been said that sun rises and sun sets, light and darkness, winter and spring come and go, even the course of time is playful but truth remains and sparkles when justice is done. It is the bounden duty of a court of law to uphold the truth and truth means absence of deceit, absence of fraud and in a criminal investigation a real and fair investigation, not an investigation that reveals itself as a sham one. It is not acceptable. It has to be kept uppermost in mind that impartial and truthful investigation is imperative. If there is indentation or concavity in the investigation, can the "faith" in investigation be regarded as the gospel truth? Will it have the sanctity or the purity of a genuine investigation? It is not acceptable. It has to be kept uppermost in mind that impartial and truthful investigation is imperative. If there is indentation or concavity in the investigation, can the "faith" in investigation be regarded as the gospel truth? Will it have the sanctity or the purity of a genuine investigation? If a grave suspicion arises with regard to the investigation, should a constitutional court close its hands and accepts the proposition that as the trial has commenced, the matter is beyond it? That is the" tour de force" of the prosecution and if we allow ourselves to say so it has become "idee fixe" but in our view the imperium of the constitutional courts cannot be stifled or smothered by bon mot or polemic. Of course, the suspicion must have some sort of base and foundation and not a figment of one's wild imagination. One may think an impartial investigation would be a nostrum but not doing so would be like playing possum. As has been stated earlier, facts are self-evident and the grieved protagonist, a person belonging to the lower strata. He should not harbor the feeling that he is an "orphan under law". (2) State of Punjab v. Central Investigation of Bureau & Ors., reported in (2011) 9 SCC 182 . "21. Sub-section (8) of Section 173 states that nothing in the section shall be deemed to preclude any further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate. Thus even where charge-sheet or challan has been filed by the police under sub-section (2) of Section 173, the police can undertake further investigation but not fresh investigation or reinvestigation in respect of an offence under sub-section (8) of Section 173 Cr.PC. 22. Section 482 Cr.PC, however, states that nothing in Cr.PC shall be deemed to limit or affect the inherent powers of the High Court to make such orders as is necessary to give effect to any order under Cr.PC or to prevent the abuse of the process of any court or otherwise to secure the ends of justice. 22. Section 482 Cr.PC, however, states that nothing in Cr.PC shall be deemed to limit or affect the inherent powers of the High Court to make such orders as is necessary to give effect to any order under Cr.PC or to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Thus, the provisions of Cr.PC do not limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order of the court or to prevent the abuse of any process of the court or otherwise to secure the ends of justice. The language of sub-section (8) of Section 173 Cr.PC, therefore, cannot limit or affect the inherent powers of the High Court to pass an order under Section 482 Cr.PC for fresh investigation or reinvestigation if the High Court is satisfied that such fresh investigation or reinvestigation is necessary to secure the ends of justice. 23. We find support for this conclusion in the following observations of this Court in Mithabhai Pashabhai Patel v. State of Gujarat cited by Mr. Dhavan; (SCC p.337, paras 13 & 15) "13. It is, however, beyond any cavil that 'further investigation' and 'reinvestigation' stand on different footing. It may be that in a given situation a superior court in exercise of its constitutional power, namely, under Articles 226 and 32 of the Constitution of India could direct a 'State ' to get an offence investigated and/or further investigated by a different agency. Direction of a reinvestigation, however, being forbidden in law, no superior court would ordinarily issue such a direction. Pasayat, J. in Ramachandran v. R. Udhayakumar opined as under: (SCC p. 415, para 7) '7. At this juncture it would be necessary to take note of Section in 173 of the Code. From a plain reading of the above section it is evident that even after completion of investigation under sub-section (2) of Section 173 of the Code, the police has right to further investigate under sub-section (8), but not fresh investigation or reinvestigation.' A distinction, therefore, exists between a reinvestigation and further investigation. "15. The investigating agency and/or a court exercise their jurisdiction conferred on them only in terms of the provisions of the Code. "15. The investigating agency and/or a court exercise their jurisdiction conferred on them only in terms of the provisions of the Code. The courts subordinate to the High Court even do not have any inherent power under Section 482 of the Code of Criminal Procedure or otherwise. The pre-cognizance jurisdiction to remand vested in the subordinate courts, therefore, must be exercised within the four corners of the Code." 24. It is clear from the aforesaid observations of this Court that the investigating agency or the court subordinate to the High Court exercising powers under Cr.PC have to exercise the powers within the four corners of Cr.PC and this would mean that the investigating agency may undertake further investigation and the subordinate court may direct further investigation into the case where charge-sheet has been filed under sub-section (2) of Section 173 CrPC and such further investigation will not mean fresh investigation or reinvestigation. But these limitations in sub-section (8) of Section 173 of Cr.PC in a case where charge-sheet has been filed will not apply to the exercise of inherent powers of the High Court under Section 482 Cr.PC for securing the ends of justice. 25. This position of law will also be clear from the decision of this Court in Nirmal Singh Kahlon v. State of Punjab cited by Mr. Raval. The facts of that case are that the State Police had investigated into the allegations of irregularities in the selection of a large number of candidates for the post of Panchayat Secretaries and had filed a charge-sheet against Nirmal Singh Kahlon. Yet the High Court in a PIL under Article 226 of the Constitution passed orders on 7.5.2003 directing investigation by CBI into the case as it thought that such investigation by CBI was "not only just and proper but a necessity". Nirmal Singh Kahlon challenged the decision of the High Court before this Court contending inter alia that sub-section (8) of Section 173 CrPC did not envisage and investigation by CBI after the filing of a charge-sheet and the Court of Magistrate alone has the jurisdiction to issue any further direction for investigation before this Court. 26. Amongst the audiorities cited on behalf of Nirmal Singh Kahlon was the decision of this Court in Vineet Narain case that once the investigation is over and charge-sheet is filed the task of the monitoring court comes to an end. 26. Amongst the audiorities cited on behalf of Nirmal Singh Kahlon was the decision of this Court in Vineet Narain case that once the investigation is over and charge-sheet is filed the task of the monitoring court comes to an end. Yet this Court sustained the order of the High Court with inter alia the following reasons: (Nirmal Singh Kahlon case, SCC pp.465-66, para 63) "63. The High Court in this case was not monitoring any investigation. It only desired that the investigation should be carried out by an independent agency. Its anxiety, as is evident from the order dated 3-4-2002, was to see that the officers of the State do not get away. If that be so, the submission of Mr. Rao that the monitoring of an investigation comes to an end after the charge-sheet is filed, as has been held by this Court in Vineet Narain and M.C. Mehta(Taj Corridor Scam) v. Union of India, loses all significance." 32. In the recent case of State of W.B. v. Committee for Protection of Democratic Rights a Constitution Bench of this Court, while holding that no Act of Parliament can exclude or curtail the powers of the High Court under Article 226 of the Constitution, has cautioned that the extraordinary powers of the High Court under Article 226 of the Constitution must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and confidence in investigation or where the incident may have national or international ramifications or where such an order may be necessary for doing complete justice and enforcing fundamental rights. This caution equally applies to the cases where the High Court exercises inherent powers under Section 482 Cr. PC to direct investigation by CBI for securing the ends of justice". 8. Mr. N. Mozhui, learned Amicus Curiae submitted that the prosecution failed to built its own case by producing material evidence that are required to prove the guilt of the accused, therefore, they cannot now come back and find fault with the judgment and order of the trial court which was well crafted and drawn up based on the evidence submitted by the prosecution. The learned counsel also submitted that the trial court had taken all the evidences into account and arrived at the conclusion given in the judgment, therefore, there is no scope for interference. The learned counsel also submitted that the trial court had taken all the evidences into account and arrived at the conclusion given in the judgment, therefore, there is no scope for interference. Lastly, the learned counsel submitted that the forensic report which stated that there was no sign of rape on the victim has been conveniently ignored by the prosecution since the same was in favour of the accused. The learned counsel also submitted that the case of the appellant that the accused did not produce any defence witness, therefore, it has to be concluded that the charges against him are proved is against the settled principle of criminal law that a charge against accused has to be proved beyond reasonable doubt. 9. I have considered the evidences produced by the prosecution, the facts and circumstances of the case and the submissions of the learned counsels representing the parties. The judgment and order dated 18.2.2015 and the order dated 22.08.2014 have also been perused and considered. As it appears from the case record there is no doubt that there was no eye witness to the crimes charged against the accused persons. Therefore, one has only to see whether the circumstantial evidences provided by the prosecution statement of the accused Rikum recorded under section 164 Cr. PC and his statement under section 313 of the same code are connected to each other and if so, they can constitute the offences charged against the accused persons and lead to the conclusion that no one else but only the accused persons had committed the offences. 10. The first part of the prosecution story is that in the evening of 4th July 2013, the accused Rikumkaba @ Rikum, along with his friends namely, (i) Imkong akum, (ii) Jaffrey, (iii) Apika, (iv) Sunep, (v) Nicka, (vi) Tovi and (vii) Takusashi, drunk and eat together at the Blues Lounge at Dimapur till 3:30 A.M. of the next morning at his expense and thereafter, all of them except, Sunep and Apika, went to Kohima by a car and a motorcycle and booked two rooms at Capital Hotel and thereafter, Rikum, bought three mobile handsets and presented to his friends Imkong akum, Jaffrey and Takusashi and when they came back from the mobile shop, police personnel checked their room and found unaccounted sum of money which later on was found to be Rs. 1,25,325/- and Rikum admitted that the money belongs to him. The same is testified by 4(four) PWs who are none other than among the 7(seven) friends with whom Rikum spent the evening. They are; (i) PW. No. 13 Takusashi, (ii) PW No. 14 Nicka, (iii) PW. No. 15 Tovi, and (iv) PW No. 16 Imlisunep @ Sunep. Further, the prosecution story that when the accused Rikum kept on changing his statement regarding the source of the money found and seized from him he along with his friends were taken to the Kohima, North Police Station is supported by the testimony of the same PWs No. -13, 14 & 15. It is stated by PW No. 13, Mr. Takusashi that the accused Rikum told the police that he found the money on the road. PW No. 14 Mr. Nicka stated that he was informed by one of his friends Mr. Jaffrey that the other friends have been picked up by the Police and so he along with his friends went to Kohima North Police Station and they were also taken into custody and interrogated. He also stated that in the night when they were having the party in the restaurant the accused Rikum requested Apika to go with him to get some more money but Apika refused as he was drunk. So, he took Rikum in his car and went to a house in Midland and while he was made to wait in the car Rikum jump over a wall and when he came back he had bundles of cash in a green polythene bag. PW No. 15, Mr. Tovi stated that accused Rikum on being questioned stated that he found the money on the road and then again stated that he found the money on an auto-rickshaw. The testimony of the above witness is supported and corroborated by the testimony of PW No. 25, Keneisanyu Linyu who is a Police Officer. The witness testified that at Capital Hotel, Kohima, he seized a sum of Rs. 1,25,325/- from the accused Rikum @ Rikumkaba wraped in a green polythene bag in the presence of SI Nchembemo one UBC and some 15 Mahila E Coy personnel. He exhibited the seizure memo as Ext. P-2 and also identified the seized money before the court. He also testified that the accused Rikum told him that he found the money on an auto-rickshaw. He exhibited the seizure memo as Ext. P-2 and also identified the seized money before the court. He also testified that the accused Rikum told him that he found the money on an auto-rickshaw. This testimony of PW No. 25 is further supported by the testimony of PW No. 9, Nchembemo Ngullie who testified that he was the seizure witness and identified his signature on the seizure memo marks as Ext. P/2(B). From the testimonies of the above witnesses which are neither denied nor refuted or rebutted, it is established beyond doubt that the accused Rikumkaba @ Rikum treated his friends with food and liquor and gifted them with gifts by spending huge amount of money and was later on arrested with a large sum of money, the source of which he could not explained satisfactorily, therefore, could only be concluded that the same was stolen by him. The same is also admitted by the accused Rikum when he was given the chance to explain the charge against him under the provision of section 313 of Cr.PC. The relevant portions of the same is reproduced here be-low;- "Q. No. 1: PW-3 is Relo. T. Aye presently the SDPO Dimapur. He was Team leader of the SIT constituted in this case. He has deposed that 6 persons including you were apprehended by the Kohima police and brought to Dimapur. Is that correct? Ans: Yes, it is true. Q. No. 2: PW-3 also deposed that you were brought to the West P.S Dimapur and your statements recorded. He stated that during the examination you admitted that you went to your uncle Yapang's house to steal his wallet and while stealing the wallet you saw that the almirah was open. What do you have to say about this? Ans: Yes, I have told the police but in reality it was not true. Q. No. 3 : PW-3 further deposed that you admitted that when you saw the almirah open you thought that the locker was open and tried to open it but it was locked. Is this correct? Ans: I do not remember. Q. No. 4: PW-3 also deposed that you admitted that thereafter you went to the kitchen and picked up a Naga dao and three knives and managed to open the locker with those. Is this correct? Ans: I do not remember. Q. No. 4: PW-3 also deposed that you admitted that thereafter you went to the kitchen and picked up a Naga dao and three knives and managed to open the locker with those. Inside the locker you found bundles of cash wrapped in a polythene bag, so you took the money. What do you have to say on this? Ans: Yes, it is true". The above evidences are further corroborated the statement of the accused Rikum recorded under section 164 of Cr.PC. it is true that the confessional statement of the accused cannot be as treated as substantial evidence as oath was administered to him by the Magistrate when the same was recorded but that has not mean that the same has to be discarded totally. It can still be used for corroboration. The law on this will be discussed later in this judgment. 11. The prosecutions' further story is that during the investigation the accused Rikumkaba @ Rikum disclosed that he had stolen the money from the accused T. Yapang Ao and while trying to leave the place the deceased/victim saw him so in order to stop her from shouting he gagged her with a pillow and a struggle ensured and in the process he hit her with a brick and a potato peeler and thereafter to ensure she died he cut her throat with a dao. And thereafter to make it appear as a case of rape he bit one side of her breast and inserted a plastic stick in her private part. This story of the prosecution is supported by the testimony of PW No. 24 Inspector, Jenmei konyak, who was the Investigating Officer of the case. The witness testified that the accused Rikumkaba @ Rikum was arrested at Kohima and brought to Dimapur for thorough investigation and during the investigation hard cash amounting to Rs. 1,25,000/- and something and three new mobile handsets were recovered and seized from his possession and during his examination the accused Rikum revealed how he murdered the deceased Nungshilila. The witness in his cross examination stated that: "It is correct that according to my charge sheet the accused Rikumkaba disclosed to me in minute detail the manner in which he murdered the deceased and stole from the accused Yapang. The witness in his cross examination stated that: "It is correct that according to my charge sheet the accused Rikumkaba disclosed to me in minute detail the manner in which he murdered the deceased and stole from the accused Yapang. When the accused Rikum was arrested and the money recovered from his possession he straight away told us that the money seized from him was the money he stole from Yapang". This testimony of the PW is also supported by the testimony of PW No. 3 namely, Mr. Relo T. Aye, SDPO. The witness stated that the SIT was constituted for investigation of the case and he was made the team leader. He also stated as follows: "On the 5th July evening we received information from Kohima Police that six youth were detained as they were suspected to be involved in the instant case and some unaccounted cash was found in the possession of one of them i.e. Rikumkaba. Out of the six detained by the Kohima police, one Rikumkaba was suspected to be involved in the instant case. Accordingly, we dispatched police personnel for Kohima to bring the six youths detained from Kohima. The six youths detained by the Kohima police were brought to Dimapur West P.S. and their statements taken. During interrogation one of the six youth brought to Dimapur i.e. Rikumkaba admitted to the commission of the offence. He stated that he went to his uncle Yapang's house to steal his wallet and while stealing the wallet, he saw that the outer door of the almirah was open and thought that the locker was open, but when he tried to open it was locked. Thereafter, he went to the kitchen and collected one naga dao and three knives and somehow with that he managed to open the locker, inside the locker he found bundles of cash wrapped in a polythene bag. He took the money and while going out a thought came to him that he should also steal the victim's bag, while trying to steal the victim's bag, the victim got up and called his name and asked him what he was doing at such an odd hour". He also testified that the accused disclosed as follows; "Outside the gate he changed his clothes and put them in a polythene bag, he also checked Yapang's wallet, took out Rs. He also testified that the accused disclosed as follows; "Outside the gate he changed his clothes and put them in a polythene bag, he also checked Yapang's wallet, took out Rs. 4000/- and put back the wallet in a polythene bag along with his changed clothes and threw the bag somewhere around PWD junction." The witness also testified as follows; "After having drinks in the restaurant, Rikum told the group that they should go to Kohima wherein they all agreed except for Sunep and Apika who stayed back in Dimapur. Thereafter, they left for Kohima and booked into a hotel from where they were caught by Kohima Police". In his cross examination the witness also stated as follows; "The accused Rikum could not explain how he had caught hold of the money which was recovered from him (1.2 lakhs). On failing to explain the source of Rs. 1.2 lakhs which he was caught with, he finally confessed the commission of the crime". It is true that the statements of the Police Officers which are based on the alleged admissions of the accused are not admissible in evidence but we must see if they are corroborated or supported by evidence that follows. Some of the evidence are as follows; One of the accused Mr. Yapang in whose house the crime took place and who was examine as PW-22 testified that in his FIR he wrote that cash, ATM card, driving card and his Office ID card and his wallet were lost. He also testified that at the time of incident there was Rs. 4,000/- in his wallet. The witness also testified that he was taken to Rikum's place on 5.7.2013, and a shirt belonging to Rikum was found and he knew that the same shirt is the one worned by Rikum in the previous night when he committed the offence as one bottom found in the place of occurrence matched the bottom in the shirt and there was one bottom missing from the shirt. He also stated that he noticed in the morning of 4th July 2013, Rikum had scratch marks in his neck area and a cut mark on his right ankle. Lastly, the witness also stated that Rikum was residing with his brother-in-law and his elder sister. Wife of Yapang, Mrs. Katimongla, who was also examined as PW-23 testified that around Rs. He also stated that he noticed in the morning of 4th July 2013, Rikum had scratch marks in his neck area and a cut mark on his right ankle. Lastly, the witness also stated that Rikum was residing with his brother-in-law and his elder sister. Wife of Yapang, Mrs. Katimongla, who was also examined as PW-23 testified that around Rs. 2,50,000/- which was borrowed was kept in the locker of the godrej almirah inside their master bedroom and the locker was properly locked. She also stated that in the morning of 6th July, she informed the Police about the loss of the money from their house. The witness also testified that the accused Rikumkaba visited their house at about 7:30 and left around 9:00 p.m, in the evening of 3rd July 2013, but before he left he joined in the preparation of food and also ate. She also stated that the accused Rikum helped in lifting the coffin of her deceased sister to the vehicle but she found him to be a bit different on that day though she cannot exactly describe. The accused Rikumkaba admitted in his confessional statement recorded under section 164 of Cr.PC that he had stolen money from the house of his uncle Yapang. The confessional statement of the accused is reproduced here below:- "Confessional Statement of accused Rikumkaba @ Rikum in connection with Dimapur (West) P.S Case No. 61/2013, Under Section 376(1)/302, 280 IPC GR 339/13. My name is Rikumkaba@ Rikum and I stay at Midland. I stay with my father's brother (elder) Akang. I study class 9 at St. Edmund's school DMR dropped it half way. This was in the year 2009/2010. After that I was working at Aircel shop at Purana Bazaar and use to sell SIM cards of Aircel, Airtel and Vodafone. The place where the incident happened belongs to my father's wife's brother T. Yapang at PWD colony. I use to frequent the place. On 1st July I went to their place of visiting them on 2nd July, Ali (the deceased) had told me to come collect Pomegranate for my father and mother. I went and stayed for sometime say from 1:00 p.m to 8:30 p.m. On 3rd, I was at home till evening. Around 7:00- 7:30 p.m, I went to Midland junction and was with some friend. I had some alcohol. After that I went home. I went and stayed for sometime say from 1:00 p.m to 8:30 p.m. On 3rd, I was at home till evening. Around 7:00- 7:30 p.m, I went to Midland junction and was with some friend. I had some alcohol. After that I went home. My father (real) had died so I live with my father's elder brother. Around 10:00-10:30 p.m, I went to my room and after some thought going to Yapang place. Yapang use to play cards with friends on regular intervals, and even if I steal money from his purse he will not know I thought. Therefore I decided to go and steal some money. I took some extra clothes with me so that people would not recognize me while committing offence. I went to his house but found the light's on. So I was waiting for the light's to be off. But since the light's continue to be on I thought I will give a try. I climbed the pillar of the closed gate and peeped in. my uncle Yapang and wife were sleeping in the common room. So I went through the back door. The deceased Ali was sleeping in one of the room. It has no door. So I entered through the room and went to my uncle Yapang and aunty's bedroom. I picked up the purse of my uncle. There was an almirah and I opened it. I found the chest closed but could not find the key. I went to the kitchen and took three knives and a dao to open the chest. Since I could not open the chest key hole with knife, I brought it open with dao. There was money inside and I took the whole money. After that I came out at while working through the deceased's room, she saw me. She called my name "Rikum" "what are you doing". She asked what I was doing with a dao in nagamese "dao khan loikeneh kikori aseh" I did not say anything but told her not to shout "hala nakorbi" she shouted her sister's name "Ati Among" but I gagged her mouth with a pillow and took her outside we both struggled there was a stone nearby so I hit her head on the back with it. With the dao I tried to cut her throat so that she thus not shouts. With the dao I tried to cut her throat so that she thus not shouts. Out of fear I was hurriedly trying to stop her, so whatever came to my hand I use it. So with a stone I hit back head twice by turning her. After that dao was use as I have told earlier I also use a knife and hit her, though not sure where I hit her. She was still making some sound. I wanted to make the scene look like rape, so I removed her pants and underwear, I bit her breast and with a stick I push it inside her private parts, I took some time to think whether I left anything behind. I remembered the purse of uncle Yapang which I left behind while trying to break open the chest. My hand was dirtied with blood so I wiped on my clothes. Then I went outside the gate and changed my clothes and put the dirty clothes in a plastic bag. I threw it away near power house. After that I went home. Behind, my house, I kept the money between the grasses. I went off to sleep and woken up by my grandmother around 7:00 a.m. actually I could not sleep and I was think I should not have gone or I should have just taken the purse and left or so many other thought as to why I had gone to such an extend of killing the deceased (he called her Ati Ali didi Ali/sis Ali) I was too afraid to be arrested or people would come to know so I kill her and make the scene look like rape and theft. I use to read in the new paper about goondas committing rape and how the incident take place so thinking of that, I tried to make the scene look like a rape. I used to pick pockets in my house from my parent I have never stolen money from uncle Yapang's house. I carried extra clothes because if anyone noticed with the clothes I had gone, I will be caught, so I thought of changing the clothes so that I will not be suspected. I feel very remorse committing the crime of theft and finally killing deceased (Ati Ali). I have committed the crime which I should not have and could have avoided. I feel very remorse committing the crime of theft and finally killing deceased (Ati Ali). I have committed the crime which I should not have and could have avoided. That is all I have to say. R.O & A.C. I have explain to Rikumkaba @ Rikum that he is not bound to make a confession and that if he does so, any confession it may be used as evidence against and I believe that this confession voluntarily made. It was taken in my present and hearing and was read over to the person making it and admitted by him to be correct and it contains a full and true account of the statement made by him. Sd/- Smti. M.T. Therieh. Chief Judicial Magistrate, Dimapur Court". This confessional statement of the accused has been totally discarded by the learned Trial Court on three grounds:- (i) That the learned Magistrate had administered oath to the accused while recording his statement. (ii) That no sufficient time was given for reflection and, (iii) That the confessional statement was retracted. Whether the confessional statement of accused Rikumkaba before the Judicial Magistrate can be treated as confessional statement in letter and spirit of section 164(1) of Cr. PC need no further discussion because of what is provided under sub-section(5) of the same section. The same is reproduced here below;- "(5) Any statement (other than a confession) made under sub-section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded". The words of this provision of law makes it clear that no oath should be administer to the person making confessional statement under sub-section (1) of the section 164 Cr. PC. A confession made under section 164(1) Cr.PC, to give its full potent evidential value should have been recorded in the manner as provided. But in this case both the record and statement of the magistrate who recorded the statement of the accused shows that oath was administered to the accused when his statement was recorded. PC. A confession made under section 164(1) Cr.PC, to give its full potent evidential value should have been recorded in the manner as provided. But in this case both the record and statement of the magistrate who recorded the statement of the accused shows that oath was administered to the accused when his statement was recorded. Therefore, the statement of the accused recorded under section 164 of Cr.PC cannot be treated or accepted as one recorded under section 164(1) Cr.PC and it cannot be given the evidential value of a confession recorded under that provision of law. The Apex Court in the case of Babubhai Udesinh Parmar v. State of Gujarat, reported in (2006) 12 SCC 268 , passed in Appeal (Crl.) Case No. 1635 of 2005, held that oath administered to accused while recording his confessional statement under section 164 was not proper as taking of a statement of an accused on oath is prohibited. This does not, however, mean that the confessional statement of the accused should be totally discarded. The same can be treated as one recorded under (5) of section 164 of the same code which has been already reproduced above. Once the statement is treated as one recorded under section 164(5) of Cr.PC the same can be used for corroborating the statement of the same person given subsequently. To make it clear though the confessional statement of the accused which was purportedly recorded under section 164(1) of Cr.PC cannot be treated as substantive evidence for the reason stated above it can still be used for corroboration. The accused Rikumkaba in his examination under section 313 of Cr.PC also had admitted that he had stolen bundles of cash wrapped in a green polythene bag from the locker of his uncle Yapang. He had also further admitted that in order to stop the deceased/victim whose room he had to passed through from shouting hit her with a stone/brick on the back side of her head and also hit her with a knife and later on to make sure that she died he cut her throat with a dao. He also admitted that to make it look like rape he had inserted handle of floor wiper in her private part. Statement of an accused given under 313 Cr.PC can be taken aid of to lend credence to evidence led by prosecution. He also admitted that to make it look like rape he had inserted handle of floor wiper in her private part. Statement of an accused given under 313 Cr.PC can be taken aid of to lend credence to evidence led by prosecution. The Hon'ble Supreme Court of India in the case of Mohan Singh v. Prem Singh & Anr. reported in (2002) 10 SCC 236 had stated at para-27 of the judgment as follows;- "27. The statement made in defence by the accused under section 313 Cr. PC can certainly be taken aid of to lend credence to the evidence led by the prosecution, but only a part of such statement under section 313 of the Code of Criminal Procedure cannot be made the sole basis of his conviction. The law on the subject is almost settled that statement under section 313 Cr.PC of the accused can either be relied in whole or in part. It may also be possible to rely on the inculpatory part of his statement if the exculpatory part is found to be false on the basis of the evidence led by the prosecution." The Hon'ble Supreme Court in the case of Ashok Debbarma @ Achak Debbarma v. State of Tripura, 2014(2) GLT(SC) 121 : Criminal Appeal No. 47-48 of 2013 had also affirmed the law stated above and followed the same. Para-22-23 of the judgment states as follows:- "22. This Court in Mohan Singh v. Prem Singh and another, (2002) 10 SCC 236 held that the statement made in defence by accused under Section 313 CrPC can certainly be taken aid of to lend credence to the evidence led by the prosecution, but only a part of such statement under Section 313 CrPC cannot be made the sole basis of his conviction. In this connection, reference may also be made to the judgment of this Court in Devender Kumar Singla v. Baldev Krishan Singla, (2004) 9 SCC 15 and Bishnu Prasad Sinha and another v. State of Assam, 2007) 11 SCC 467. The above-mentioned decisions would indicate that the statement of the accused under Section 313 Cr. In this connection, reference may also be made to the judgment of this Court in Devender Kumar Singla v. Baldev Krishan Singla, (2004) 9 SCC 15 and Bishnu Prasad Sinha and another v. State of Assam, 2007) 11 SCC 467. The above-mentioned decisions would indicate that the statement of the accused under Section 313 Cr. PC for the admission of his guilt or confession as such cannot be made the sole basis for finding the accused guilty, the reason being he is not making the statement on oath, but all the same the confession or admission of guilt can be taken as a piece of evidence since the same lends credence to the evidence led by the prosecution. 23. We may, however, indicate that the answers given by the accused while examining him under Section 313, fully corroborate the evidence of PW 10 and PW 13 and hence the offences levelled against the Appellant stand proved and the trial Court and the High Court have rightly found him guilty for the offences under Sections 326, 436 and 302 read with Section 34 IPC." The statement of the accused Rikumkaba recorded under section 313 Cr.PC in the form of question and answer are given here below:- "Q. No. 1: PW-3 is Relo.T. Aye presently the SDPO Dimapur. He was Team leader of the SIT constituted in this case. He has deposed that 6 persons including you were apprehended by the Kohima police and brought to Dimapur. Is that correct? Ans: Yes, it is true. Q. No. 2: PW-3 also deposed that you were brought to the West P.S Dimapur and your statements recorded. He stated that during the examination you admitted that you went to your uncle Yapang's house to steal his wallet and while stealing the wallet you saw that the almirah was open. What do you have to say about this? Ans: Yes, I have told the police but in reality it was not true. Q. No. 3 : PW-3 father deposed that you admitted that when you saw the almirah open you thought that the locker was open and tried to open it but it was locked. Is this correct? Ans: I do not remember. Q. No. 4: PW-3 also deposed that you admitted that thereafter you went to the kitchen and picked up a Naga dao and three knives and managed to open the locker with those. Is this correct? Ans: I do not remember. Q. No. 4: PW-3 also deposed that you admitted that thereafter you went to the kitchen and picked up a Naga dao and three knives and managed to open the locker with those. Inside the locker you found bundles of cash wrapped in a polythene bag, so you took the money. What do you have to say on this? Ans: Yes, it is true. Q. No. 5: P.W. 3 in his evidence also deposed that you stated that while going out of the house with the money, the thought came to your mind to steal the bag of the deceased Nungshilila too but she got up from her sleep when you were trying to grab her bag and called out your name and asked you what you were doing at such an odd hour. Is this correct? Ans: It is true. Q. No. 6: P.W. 3 further deposed that you stated that when you sensed that you would be caught you got hold of the victim and pulled her out of the bed along with the mosquito net and while struggling with her, both of you fell in the small drain outside and at that time the victim called out "oku Yapang" two or three times. What do you want to say in this regard? Ans: True. Q. No. 7: P.W. 3 deposed that you further stated that you then picked up a brick and started hitting the victim on the head with it. And thereafter stabbed her with a potato peeler on the backside of the head. Since the victim was still moving you took the naga dao and slit her throat. What do you have to say in this regard? Ans: It is correct. Q. No. 8: P.W. 3 has also deposed that you said when you slit the throat of the victim, you remembered a murder incident which happened at Bor-Lingri where the crime scene was dressed up to make it look like a rape incident You therefore pulled up the victim's T-shirt, bit her breast, pulled down her half pant, caught hold of a mop with a handle and inserted the handle inside the victim's private part. What do you have to say in this regard? Ans: True. What do you have to say in this regard? Ans: True. Q. No. 9: P.W. 3 deposed that at that point of time you remembered that wallet left inside the house, so you went inside, picked it up and left the house by jumping over the neighbor's gate. Outside the gate you changed your clothes, put the old clothes in a polythene bag, took out Rs. 4000/- from the wallet and put the wallet also along with the changed clothes in the bag and threw the bag somewhere around PWD junction. What do you want to say in this regard? Ans: Correct. Q. No. 10: P.W. 3 has stated that you also said that you went back to your uncle's house where you live, hid the money in a place behind the house, had a bath and tried to sleep but could not do so. What do you have to say about this? Ans: Correct. Q. No. 11: P.W. 3 has deposed in court that you said that you had even gone to attend the uneral service of the victim, but you were disturbed and scared and so you left the service and went to your friend Sunep's house. What do you have to say about this? Ans: Correct. Q. No. 12: P.W. 3 in his evidence further deposed that you stated that on that day after leaving the funeral service you took 7 of your friends, namely, Tovi Zhimo, Imkongakum Jamir, Takosashi Imsong, Jeffrey Ngullie, Apika, Sunep and Nicka Chishi to the restaurant 'Blues' in Dimapur. After spending some time there you took Nicka to your house to get more money, Nicka was left waiting outside and you returned back with the bundle of cash wrapped in a polythene bag. What do you have to say on this? Ans: Correct. Q. No. 13: P.W. 3 also further deposed that after having drinks at the restaurant you stated that you suggested that the group should go to Kohima and everybody agreed except for Sunep and Apika. And so all 6 of you left for Kohima, booked into a Hotel and from there you were caught by Kohima police. What you have to say in this regard? Ans: Correct. Q. No. 14: P.W. 3 also deposed that you could not explain the source from where you got the money amounting to about Rs. And so all 6 of you left for Kohima, booked into a Hotel and from there you were caught by Kohima police. What you have to say in this regard? Ans: Correct. Q. No. 14: P.W. 3 also deposed that you could not explain the source from where you got the money amounting to about Rs. 1 lakh 25 thousand which was found in your possession and on failing to explain you finally confessed to the commission of the crime on 6th July 2013 at Dimapur West P.S. What do you want to say in this regard? Ans: Not correct. I told them I found the money from an auto rickshaw. Q. No. 15: P.W. 3 deposed that a blood stained jacket was recovered from your room. What do you have to say about this? Ans: False. Q. No. 16: P.W. 4, Bendangla is a neighbor of T. Yapang. She stated in her cross-examination that her friend Esther had told her that you were a 'badmash' guy during school days. What do you have to say about this? Ans: True. Q. No. 17: P.W. 9 is S.I. Nchumbemo Ngullie from North P.S Kohima. He has deposed that he is a witness to the seizure of about Rs. 1,25,325/- and he has stated that the money was seized from you. What do you have to say about this? Ans: I don't remember the exact amount but it is true that the police seized money from my possession at a hotel in Kohima. Q. No. 18: P.Ws 10 and 11 are Simon Angami, Chairman of Residency Colony and Rongba, Secretary of Residency Colony respectively. They have deposed that they witnessed the seizure of one nokia handset, 2 bed sheets, one dao, one brick with blood stain, one pillow, one floor wiper, one potato peeler and two empty bottles of Blender's Pride Whisky from the RO. What do you have to say about this? Ans: I don't know. Q. No. 19: P.W. 13, Takosashi, has deposed that the expenditure for the whole group starting from drinking at Blues Lounge Dimapur, trip to Kohima, lodging at Capital hotel Kohima were borne by you. He deposed that you bought new mobile handsets for him, Imkongakum and Jeffrey and that you had a big bundle of cash with you wrapped in a black polythene bag. What do you have to say on this? Ans: True. He deposed that you bought new mobile handsets for him, Imkongakum and Jeffrey and that you had a big bundle of cash with you wrapped in a black polythene bag. What do you have to say on this? Ans: True. Q. No. 20: P.W. 13 further deposed that when the police came to the Hotel where all of you were staying and found the cash, you told them that you found it on the road. What do you say in this regard? Ans: Correct. Q. No. 21: P.W. 14 Nicka also deposed that you bore all the expenses on the night when you and your friends went to Blues Lounge and thereafter to Kohima. He deposed that he accompanied you to a house in Midland and he waited in the car. You jumped over a wall and when you came back you were holding some bundles of cash in a polythene bag. What do you say about this? Ans: Correct. Q. No. 22: P.W. 14 also stated that you told him that since you don't have any saving or ATM card, whatever money you have, you will spend it. What do you say in this regard? Ans: Correct. Q. No. 23: P.W. 15 is Tovi Zhimo. He has stated in his deposition that when the police found the money in you possession at Capital Hotel Kohima, you said that you found it on the road, then later you said that you found it in an auto-rickshaw. What do you say about this? Ans: Correct. Q. No. 24: P.W. 16 Imlisunep has also stated in his evidence that all the expenditure for drinks, fuel, etc were borne by you on the night of 4th July 2013. What do you say about this? Ans: Correct. Q. No. 25: P. W.20 is Dr. Imcha Jamir. He is the M.O who conducted the post mortem examination on the body of the victim. He deposed that according to his findings late Nungshilila died due to hemorrhage and shock. In his post mortem report he has said that victim died as a result of two injuries, one injury on the neck caused by a sharp cutting weapon and one injury on the head caused by a hard blunt object. What do you say about this? Ans: I don't know. In his post mortem report he has said that victim died as a result of two injuries, one injury on the neck caused by a sharp cutting weapon and one injury on the head caused by a hard blunt object. What do you say about this? Ans: I don't know. Q. No. 26: P.W. 22 is T. Yapang Ao who was examined by the prosecution as the complainant. He deposed during his cross-examination that around midnight on 04.07.2013 the police took him to your uncle's house where you stayed. That night the police found some cash under your pillow. What do you have to say about this? Ans: I don't know. Q. No. 27: P. W.22 also deposed that he was again taken to your place on 05.07.2013 and the police recovered a shirt of yours. He stated that he knew that the shirt was the one you were wearing the previous night while committing the crime as one shirt button found at the place of occurrence matched the buttons on that shirt and in fact one button was missing from the shirt. What do you have to say in this regard? Ans: I don't know. Q. No. 28: P.W. 22 further deposed that on the 4th morning when you went to his house after the body of the victim was discovered he noticed some scratch marks on your neck and a cut on your right ankle. What do you say about this? Ans: Not correct. Q. No. 29: P.W. 22 stated that during the incident he lost his wallet with Rs. 4000/-, a driving license, vehicle smart card and I.D card. What do you have to say in this regard? Ans: I don't know. Q. No. 30: P. W.23 is Katimongla, wife of T. Yapang. She stated that you were a frequent visitor to their house and knew the layout of the house and the habits of their family. What do you say about this? Ans: True Q. No. 31: P.W. 23 also deposed that she had borrowed Rs. 2 lakhs 50 thousand and kept it in the locker of their Godrej almirah, the locker was locked properly but this money was also lost on the night of the incident and she informed the police about this loss on the morning of 6th July 2013. What do you have to say in this regard? 2 lakhs 50 thousand and kept it in the locker of their Godrej almirah, the locker was locked properly but this money was also lost on the night of the incident and she informed the police about this loss on the morning of 6th July 2013. What do you have to say in this regard? Ans: I don't know Q. No. 32: P.W-24 is Jenmei Konyak, presently O.C of West P.S and the I.O of the case. He deposed that at the time of your arrest hard cash amounting to about Rs. 1,25,000/- was recovered from your possession and during interrogation you revealed how you had murdered the victim Nungshilila. What do you have to say in this regard? Ans: Correct. Q. No. 33: P.W-24 also stated that one mobile handset, 2 bed sheets, one dao, one brick with blood stains, one pillow, one floor wiper, one potato peeler and two empty bottles of Blender's Pride whisky were seized from the P.O. What do you say about that? Ans: Don't know. Q. No. 34: P.W-24 further stated that in his charge sheet he has stated how you told him in minute detail the manner in which you murdered the victim and stole from Yapang and he has also stated that when you were arrested with the money in your possession, you straight away told him that the money was the one you stole from Yapang. What do you have to say about this? Ans: Correct. Q. No. 35: P.W-24 has also stated that you told him in the morning of 6th July 2013 that you had committed the crime in the early hours of 4th July 2013. Is this correct? Ans: I told him I committed the murder between 10-12 p.m on 3rd July. Q. No. 36: P.W-25 is Keneisanyu Linyu who was posted at North P.S during July 2013. He is the seizing officer of cash from your possession at Kohima. He has deposed that an amount of Rs. 1,25,325/- (rupees one lakh twenty five thousand three hundred and twenty five) was seized from your possession at Capital Hotel Kohima in the room where you were staying wrapped in a polythene bag. What do you have to say about this? Ans: The money was seized from the drawer of the hotel room. 1,25,325/- (rupees one lakh twenty five thousand three hundred and twenty five) was seized from your possession at Capital Hotel Kohima in the room where you were staying wrapped in a polythene bag. What do you have to say about this? Ans: The money was seized from the drawer of the hotel room. Q. No. 37: P.W-25 also deposed that when asked about the source of the money you replied that it was found in an Auto Rickshaw. What do you say? Ans: True. Q. No. 38: P.W-26 is Smti M.T. Therieh who was the CJM, Dimapur at the time of the incident. She has deposed that she recorded your confessional statement. Is this correct? Ans: Correct. Q. No. 39: P.W-26 has deposed that she recorded your confessional statement after observing all due formalities, after giving you sufficient time for reflection and that your statement was made voluntarily. What do you say about this? Ans: Correct. Q. No. 40: P.W. 26 has deposed that you confessed before her that you stole the money from your uncle Yapang and also that you murdered the victim. What do you say in this regard? Ans: Correct. Q. No. 41: Do you have anything else to say in connection with this case? Ans: I did not murder the deceased. The confessional statement was made under duress and the police tortured me relentlessly, warning me that they would break my arms and legs if I don't admit that I had killed the deceased. I am not at all involved in the present case. I was naughty before the incident, but I would never kill anyone. I have been made a scapegoat in this case. I reiterate that I have not killed the deceased. Whatever I stated before the police was made up as they kept prompting me to say this or that. Q. No. 42: Will you adduce evidence? Ans: (Signature of the accused) Sd/- (Sessions Judge) Dimapur, Nagaland The above examination was taken in my presence and hearing and contains a full and true account of the statement made by the accused. Sd/- (Sessions Judge) Dimapur, Nagaland". It would be seen from the above that the accused was asked questions which will give him the opportunity to explain the circumstances and evidences which are pointers to the commission of the crime and his involvement. Sd/- (Sessions Judge) Dimapur, Nagaland". It would be seen from the above that the accused was asked questions which will give him the opportunity to explain the circumstances and evidences which are pointers to the commission of the crime and his involvement. To all the relevant questions asked he answered in the positive. Taken all these together what is revealed is that the accused had stolen money from the house of Yapang and his wife Katimongla and in order to hide his crime he killed the victim when she incidentally saw him leaving the house and asked him what he was doing in late hour of that night. The statement of the accused under section 313 of Cr.PC is also not a substantive evidence since it is not taken under oath but has corroborated value as stated above. The admissions of the accused in his statement under section 313 of Cr.PC are corroborated by his statement recorded purportedly under (1) of section 164 of Cr.PC but which has now been treated as statement recorded under section (5) of the same section of the same code. Besides the testimony of Yapang that he saw fresh injury marks on the neck and cut marks on the right ankle of the accused Rikumkaba points to the fact that he had physical struggle with the deceased while trying to stop her from shouting which eventually led him to kill her. The Investigation Officer had seized at the spot of the crime one dao, one brick with blood stained, one pillow with blood stained, one floor wiper, one potato peeler, two empty bottles of whisky blender's pride for which seizure memo was Exhibited P-9. Unfortunately, the seized articles were not produced before the court, however, the fact that the seizure memo was proved and it was not refuted or rebutted by the defence counsel goes to prove that the articles were found at the place of occurrence and were actually seized by the Police. The accused Rikumkaba had stated in his confessional statement which is treated as statement given under section 164(5) of Cr.PC, that he had used a pillow to get the mouth of the victim and also used a stone which is nearby to hit her head and used a dao for cutting her throat and used a knife to hit her are corroborated by the findings at the crime scene. Further, the accused had also stated in his statement recorded under section 164 that to make it look like rape he had bitten the breast of the victim and pushed a stick inside her private part. This is also corroborated by the findings at the crime scene. The dead body of the deceased/victim was found naked from her chest down with a green plastic handle of a wiper inserted in her private part. As stated above, the Investigation Officer found among other articles two bed sheets, one dao, one brick with blood stained, one pillow, one floor wiper and one potato peeler. This is also confirmed by PW No. 7, the Police Officer, according to whom he was the first to see the crime scene and took photographs. He stated that there was a brick, a potato peeler near the body of the deceased and he also found a plastic handle inserted in the private part of the deceased/victim. He also exhibited Pr-5 which are 32 photographs of the crime scene. Among the photographs one of the photographs shows the dead body naked from her chest down. Another photograph shows a brick and a potato peeler near the dead body. There are also photographs showing body of the deceased/victim from her chest to down naked with one plastic handle inserted inside her private part. There are two photographs showing the picture of a dao with wooden handle with the floor wiper without handle. There are also photograph showing the throat of the deceased with a big cut opening. There is also a photograph showing a white colour pillow with red marks on it. There is also another photograph that shows a bed sheet stained with blood. This crime scene seen in the photographs is corroborated by the statement given by the accused under section 164 of Cr.PC. Further, the same is also corroborated by the admission of the accused in his statement given under section 313 of Cr. PC specially with the answer given at the question No. 6, 7 & 8. Besides, there are circumstantial evidences against the accused as stated above; The fact that he was caught with huge amount of money source of which he could not explained, which led to his arrest. The fact that the sum of Rs. PC specially with the answer given at the question No. 6, 7 & 8. Besides, there are circumstantial evidences against the accused as stated above; The fact that he was caught with huge amount of money source of which he could not explained, which led to his arrest. The fact that the sum of Rs. 2.50 lakhs was lost from the locker inside the godrej almirah of Yapang and his wife at their residence which is the place where the crime took place in that fateful night the crime took place and which has been proved by both Yapang and his wife. The fact that the accused was one of the persons who visited the house of Yapang and his wife that is the place of occurrence in that night when the crime was committed. The fact that the wife of Yapang Mrs. Katimongla has testified that she has no reason to suspect the other two accused i.e. Samarenba and Santosh Nath to commit the crime and the fact that she also testified that she was sure that her husband had not committed the crime, all these points to only one conclusion that is only the accused Rikumkaba could have committed the crime. Further, the testimony of the Doctor who conducted the post-mortem and examined as PW No. 25 shows that the victim died due to hemorhrage and shock due to injury caused by the sharp weapon. This corroborates with the statement of the accused that he cut the throat of the victim with a dao. From the above, it would be seen that the circumstantial evidence on material points are link or connected by unbroken chain of events which supported by evidence and they are corroborated by the statement of the accused Rikumkaba recorded under section 164 Cr. PC and 313 of the same code. 12. (i) Now coming to the offences charged against the accused Rikumkaba, since there are evidence that he had entered in the house of Yapang and his wife with the intention to steal money and actually had taken away the money belonging to Yapang and his wife, and was caught spending it and with some of it, it can be concluded without any doubt that he had committed criminal trespass and theft punishable under section 447 and 480 of IPC. The offence of criminal trespass and theft are given here below;- Section 447. The offence of criminal trespass and theft are given here below;- Section 447. Punishment for criminal trespass.-Whoever commits criminal trespass shall be punished with imprisonment of either description for a term which may extend to three months, with fine or which may extend to five hundred rupees, or with both. Section 441 IPC. Criminal trespass.- Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass". Section 380 IPC. Theft in dwelling house, etc.-Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Section 378 IPC. Theft.-Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft. (ii) As for the charge of rape under section 376(1) of IPC, the Doctor who conducted the post-mortem on the deceased/victim has stated that there are no signed of rape. The fact that the deceased/victim was found naked and a plastic handle was inserted in her private part does not necessity constitute rape as defined under section 375 of IPC, the contents of which is reproduced here be-low:- "Section 375 IPC. The fact that the deceased/victim was found naked and a plastic handle was inserted in her private part does not necessity constitute rape as defined under section 375 of IPC, the contents of which is reproduced here be-low:- "Section 375 IPC. Rape.-A man is said to commit "rape" if he- (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person, or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person, or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any person, under circumstances falling under any of the six following descriptions:- (First) - Against her will. (Secondly) -Without her consent. (Thirdly) - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. (Fourthly) -With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be law-fully married. (Fifthly) - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent." The contents of clause (a) to (d) of the section of IPC given above it is amply clear that the act of the accused committed on the deceased/victim does not come under the definition of rape. Therefore, the accused cannot be held guilty of the offence punishable under section 376(1) of IPC which reads as here under:- "Section 376(1) IPC; Punishment for rape. Therefore, the accused cannot be held guilty of the offence punishable under section 376(1) of IPC which reads as here under:- "Section 376(1) IPC; Punishment for rape. (1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine." (iii) The only question left is whether in the facts and circumstances of the case and with the evidence available it can be concluded that the accused had committed murder as described under section 300 of IPC punishable under section 302 of the same code. From the evidence given by Yapang and his wife Katimongla and the statement of the accused Rikumkaba given under section 313 Cr.PC corroborated by his statement under section 164 Cr. PC and the testimonies of his associates that is P.Ws. No. 13, 14, 15 & 16 it can safely be concluded that the prosecution story that none other than the accused Rikumkaba had stolen the money from the locker of the godrej almirah of Yapang and his wife in that fateful night. Once concluded as such, the only conclusion that automatically follows is the prosecution story that while the accused Rikum was trying to leave the house with the stolen money he was seen by the deceased/victim, so in order to stop her from shouting and in order not to leave any trace of his crime he killed the victim is a fact and true. Both circumstantial and corroborative evidence as stated above have already been discussed, therefore, it would be unnecessary repetition if it has to be stated here again. So it is avoided. The only thing left now is whether the killing of the deceased/victim amounts to murder as defined under section 300 of IPC which is punishable under section 302 of the same code. The two sections are given here below;- "Section 300 IPC. So it is avoided. The only thing left now is whether the killing of the deceased/victim amounts to murder as defined under section 300 of IPC which is punishable under section 302 of the same code. The two sections are given here below;- "Section 300 IPC. Murder.-Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or- (Secondly)-If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or- (Thirdly) -If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or- (Fourthly) -If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Section 302 IPC. Punishment for murder.- Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine." Section 300 of the Code provides that subject to the exceptions contained therein culpable homicide would be murder if the act by which the death is caused is done with the intention of causing death. In this case, the accused Rikumkaba hit the victim first with brick on her head and to make sure she died he cut her throat with dao. The weapons used and the injuries inflicted shows that there was only one thing in the mind of the accused Rikumkaba that is to cause certain death to the deceased/victim in order to make sure that no trace of his crime of criminal trespass and theft is left behind. At the cost of repetition but to make it more clear the Doctor who conducted post-mortem had stated that late Nungshilila (deceased/victim) died due to haemorrhage and shock arising out of injuries caused by some sharp weapon. The photographs of the deceased/victim also shows clearly the widely cut throat of the deceased/victim. At the cost of repetition but to make it more clear the Doctor who conducted post-mortem had stated that late Nungshilila (deceased/victim) died due to haemorrhage and shock arising out of injuries caused by some sharp weapon. The photographs of the deceased/victim also shows clearly the widely cut throat of the deceased/victim. The accused both in his confessional statement given under section 164 Cr.PC and his statement given under section 313 of the same code had admitted that he hit the deceased/victims' head with a stone/brick and cut her throat with a dao. All these in corroboration with each other and with the circumstantial evidence which are connected by chain of events has proved that the accused Rikumkaba had intentionally killed the deceased/victim. Therefore, there can be no other conclusion then to say that the accused Rikumkaba had committed murder of the deceased/victim. Therefore, he is held guilty of having committed the crime punishable under section 302 of IPC. 13. Accordingly, the judgment and order dated 18.02.2015, of the learned Sessions Judge, Dimapur, passed in G.R. Case No. 339/2013 corresponding to Dimapur (West) Police Station Case No. 61/2013, is quashed and set aside. 14. In summing up the above findings and conclusions, it is made clear here that the accused Rikumkaba alone has been found guilty of having committed the offence punishable under sections 447, 380 & 302 of IPC. As for the other accused since there is no indication of their involvement in the commission of the crime from the evidence collected and since it has been found and concluded that there is none other than the accused Rikumkaba who had committed the crime, there is no need of issuing any direction for further investigation of the case. However, as for the prayer for victim compensation the Nagaland State Legal Services Authority shall take necessary action for making payment of the same to the family member of the deceased/victim as per the law in force in the State at the earliest. The learned Sessions Judge, Dimapur, Nagaland, after procuring presence of the accused Mr. Rikumkaba @ Rikum now convict shall fix a date for sentence hearing and after that award appropriate sentence to the convict as per law. The State Legal Services Authority, Kohima, shall release appropriate fee as per rule to Mr. N. Mozhui, learned Amicus curiae appointed by this Court. Rikumkaba @ Rikum now convict shall fix a date for sentence hearing and after that award appropriate sentence to the convict as per law. The State Legal Services Authority, Kohima, shall release appropriate fee as per rule to Mr. N. Mozhui, learned Amicus curiae appointed by this Court. With this, the criminal appeal and the writ petition are disposed. Send back the LCR along with a copy of this order to the learned Sessions Judge, Dimapur, Nagaland, for compliance.