JUDGMENT : Mir Dara Sheko, J. 1. This criminal appeal arose against the judgment and order of conviction dated 19th May, 2005 delivered by learned Additional Sessions Judge, Fast Track 1st Court, Alipore in Sessions Case No. 60 of 2005 (Sessions Trial No. 25 of 2005) sentencing the appellant Suman Lugun @ Munda to suffer life imprisonment with fine as mentioned therein for the offence under section 302 of the Indian Penal Code. The appellant before us is represented by his own learned Counsel Mr. Partha Sarathi Bhattacharya. Heard Mr. Bhattacharya representing the appellant, who is lying in jail. At the very outset Mr. Bhattacharya brought to our notice by handing over the detention slip issued by the Superintendent, Jalpaiguri Central Correctional Home that the appellant has already undergone with the imprisonment for a period of twelve years one month. Mr. Bhattacharya argued that the prosecution failed to prove the charge against the appellant beyond all reasonable doubt. Submitted, there was no eyewitness of the alleged incident of murder, even there was no evidence as to how the alleged offending weapon was recovered. The evidence was also doubtful as to what weapon actually was used as the offending weapon, what was the description of such weapon so allegedly recovered, the evidence also was discrepant as to wherefrom it was recovered. Further argued that even a forensic report would be of no assistance to the prosecution, since there was no matching report between the blood group of the deceased and the human blood, if any, appeared on the recovered weapon. Further submitted that the merit of the prosecution case was dependant on the evidence of PW-2, before whom the appellant allegedly not only made extra judicial confession but also said PW-2 disclosed said fact by making statement before learned Magistrate under section 164 of the Code of Criminal Procedure implicating the appellant as the offender of the day. During course of argument, Mr. Bhattacharya criticized the propriety and sanctity of the observation of the learned Sessions Judge deciding for the conviction on the basis of the evidence so adduced ignoring the fact that PW-2, who had made the alleged statement under section 164 of the Code of Criminal Procedure by remaining detention in Police Station for three nights previous to the date of making those statements before learned Magistrate. Submitting thereby, there being no direct evidence, last seen theory having not been established, there being no evidence completing chain of circumstance, the impugned judgment cannot sustain both in fact and in law. Mr. Bhattacharya therefore prays to set aside the judgment of conviction and to allow the appeal in setting the appellant free of the charge. 2. Mr. Saibal Bapuli, learned Additional Public Prosecutor for the State supported the judgment of conviction. Submitted, the merit of the prosecution case virtually was dependent upon the evidence of PW-2, couple with his statement made voluntarily before the learned Magistrate under section 164 of the Code of Criminal Procedure and when through those statements the implication of the appellant has come out beyond all reasonable doubt and when also leading to the statement of the appellant the offending weapon was recovered by the Investigating Officer, the appeal should be dismissed affirming the judgment of conviction. 3. Perused the evidence on record. According to the prosecution, the very genesis of the case started on receipt of the written complaint submitted by Manistela Ekka, sister of the deceased. According to the text of the FIR, she had seen her brother Suman Munda since deceased and PW-2 together taking liquor in her residence. She had seen the dead body of her brother lying near the north side of the drain at about 6 a.m. in the morning. According to the text of the written complaint, she was fully confident that the appellant had committed murder. The alleged occurrence of taking liquor by the appellant along with the deceased allegedly took place on 14th January, 2005 in the evening at about 7.30 p.m. and she had seen the dead body in the following morning at about 6 a.m., though she had waited for her brother till whole-night, but her brother did not return. The text of the FIR further reflects that when she came out from her house in search of her brother, she saw the appellant fleeing away. If this text of FIR would have remained as firm in evidence without change or deviation, then the text of such FIR might have been accepted as a corroborative piece of evidence. Because this part of the text of the written complaint would be very much indicative towards implication of the appellant. If this text of FIR would have remained as firm in evidence without change or deviation, then the text of such FIR might have been accepted as a corroborative piece of evidence. Because this part of the text of the written complaint would be very much indicative towards implication of the appellant. During scrutiny of the evidence in chief of PW-1, the complainant, we noticed that the text of the FIR under reference that on seeing her the appellant fled away is absolutely absent. Rather she confirmed "later I heard that Suman Munda killed my brother." From whom she had heard, it was not disclosed. Therefore, such hear-said evidence is held as inadmissible. That apart, from the text of the FIR it reveals that before 6 a.m. the complainant would have no opportunity to trace out her brother. But in cross-examination PW-1 stated "in the night I searched my younger brother Andhrias along with my elder brother and found the dead body of my brother in the night itself." If this part of evidence of PW-1 is accepted as sacrosanct, then the text of the FIR as mentioned above is untrue or vice versa. Even if the evidence of PW-1 quoted above is given any favourable consideration, then we failed to find out any prompt natural reaction of such sister PW-1 seeing the dead body of her brother in the night itself. The reason remained as obscure to us as to why she had waited for lodging the complaint at Police Station till 11.25 hours on the next date, i.e. on 15.01.2015. No evidence is available what she did with the dead body since its detection in the night till 6 A.M. in the morning or before lodging of FIR. No evidence as to what was done in the locality by the local persons with the appellant though the local persons were expected to have come across by that time about suspicion on the appellant as the offender. However, PW-1 in cross-examination further stated that in the same night he had informed the matter to Sudhu, Debba and some others. In this sequence if we examine the evidence of PW-10, Investigating Officer, from where we found that he did not examine any such Sudhu or Debba. 4. Admittedly, the appellant belonging to tribal class was habituated to take liquor sitting together even with the family members, friends. In this sequence if we examine the evidence of PW-10, Investigating Officer, from where we found that he did not examine any such Sudhu or Debba. 4. Admittedly, the appellant belonging to tribal class was habituated to take liquor sitting together even with the family members, friends. During examination under section 313 of the Code of Criminal Procedure the appellant admitted about the murder of Suman Munda. He also admitted that he took wine on the day in evening with the deceased, but he flatly denied about his implication with such murder. During examination under section 313 of the Code of Criminal Procedure he also denied about making any statement before PW-2 implicating himself as murderer of the deceased. 5. From the evidence of PW-6, who held post mortem over the dead body of the deceased coupled with the post mortem report, we find that the deceased had sustained as many as five cut injuries in different parts of his body including right hand, left check, throat etc. Taking note of such injuries including right hand covering index, middle and ring fingers, it can be very much said that there was sufficient unsuccessful resistance on the part, of the deceased before his death, but ultimately he succumbed. Though PW-6 in cross- examination admitted that he was not a specialist autopsy surgeon, but the post mortem report disclosed that injuries sustained by the deceased were all anti mortem homicidal in nature on which there was never any dispute. Therefore, the question is who was responsible for such homicidal death of the deceased. 6. Despite above disparity noted on the face of FIR and evidence of PW-1, even if the evidence of PW-1 is taken into account, then it remained confined to have seen the appellant and her deceased brother together lastly at about 7 P.M. on 14.01.2015. From Amongst evidence it reveals from evidence of PW-5 that it was then night, while PW-5 was sleeping. The appellant together with Andhrias Ekka came to the house of PW-5 Iswar Das Guria. The relevant portion from evidence-in-chief of PW-5 is set out: "I was in my house on that night and sleeping. In that night Suman Lugun and Andhrias Ekka came to my house and wanted to take my Thela (wooden carrier). I refused to give them Thela (wooden carrier) because they were drunken. But they forcibly took away my Thela (wooden carrier). In that night Suman Lugun and Andhrias Ekka came to my house and wanted to take my Thela (wooden carrier). I refused to give them Thela (wooden carrier) because they were drunken. But they forcibly took away my Thela (wooden carrier). In the next morning I found that my Thela (wooden carrier) was lying in bum condition. I also found that by the side of the burn Thela (wooden carrier) one dead body of Andhrias Ekka was lying in the drain. I found injury in the neck of the dead body. Later on police officer came. He enquired who actually murdered the man. Andhrias Ekka's elder sister told that Suman killed her brother." PW-5 also told, "Police Officer arrested Suman. Later on Suman confessed that he killed Andhrias Ekka. Later on Sumar, took out the weapon of offence from inside the culvert and handed over to the police officer. I saw that weapon. We called the weapon as kukri." Before further discussion some portions from cross-examination of PW-5 are set out: "I stated before the police officer that Suman Lugun took out the dagger and assaulted Andhrias Ekka twice on his head. I also started before police officer that Andhrias fell down and then Suman cut his head by that dagger. I also stated that Andhrias died on this spot. I saw the incident when they took away the Thela (wooden carrier) from my house and then this incident took place." "They forcibly took away my Thela (wooden carrier) even if I refused, Andhrias told Suman not to take the Thela (wooden carrier) and that is why Suman got enraged and he assaulted Andhrias and so Andhrias died." In addition to above, PW-5 in cross-examination further said, "it is a fact that Suman killed Andhrias" as if he had seen the incident of murder committed by the appellant being enraged by the altercation took place over taking out the Thela (wooden carrier or a carrier made of bamboo) belonging to PW-5. But the entire above evidence lost credence when PW-5 in cross-examination admitted by saying, "it is fact that I have not seen Suman assaulting Andhrias. But the entire above evidence lost credence when PW-5 in cross-examination admitted by saying, "it is fact that I have not seen Suman assaulting Andhrias. I do not know whether there is enmity between the families of Andhrias and Suman." Therefore the value of evidence of PW-5 became of hear said nature which is held equally inadmissible and collection of all above evidence from PW-5 became as a futile exercise. 7. It is evident that there was no eyewitness of the occurrence. There was of course an attempt and the prosecution case remained dependent on the alleged last seen theory and circumstantial evidence. Before entering into further discussion over those two aspects, let us set out our observation and conclusion about acceptability of evidence of PW-2, because according to the prosecution, said witness was very vital one, as apart from making extra judicial confession before him by the appellant, he had made statement under section 164 of the Code of Criminal Procedure. PW-2 Bandey Lakra claimed that on his query as to why the appellant had cut the deceased, to which the appellant disclosed, "he himself and Andhrias went to Eswar for bringing thela but Eswar refused to give. They then took away the upper part of the thela. Suman told that he would set fire in the body of the thela, but Andhrias resisted him in setting fire to the thela. Then Suman brought some hays made of paddy stags and set fire and then Andhrias started shouting and then Suman Lugun assaulted Andhrias from back side by a kriz (a sharp cutting weapon with a bending at the top and about 1 feet in length which is kept in the waist in a container)." 8. Law is set at rest that any extra judicial confession ought to be a voluntary expression by the offender, may be in public or elsewhere. It ought not to be pursuant to any query as happened in this case. PW-5 or even PW-2 did not disclose as to on which day, when and where the alleged confession was made by the appellant. PW-5 told that the appellant allegedly confessed that he killed the deceased some times after being arrested by police. There is no confessional statement of the appellant under section 164 of the Code of Criminal Procedure. PW-5 or even PW-2 did not disclose as to on which day, when and where the alleged confession was made by the appellant. PW-5 told that the appellant allegedly confessed that he killed the deceased some times after being arrested by police. There is no confessional statement of the appellant under section 164 of the Code of Criminal Procedure. Therefore the alleged confession of appellant before PW-5 during police custody is held to be not an extra judicial confession. On the contrary, PW-2 admitted in cross-examination, "two days after the incident probably on 16th police officer examined me in the P.S. I was in the P.S. for 3 nights. On the 4th day I was brought to Court. Police Officer took down what I stated." From the alleged statement recorded under section 164 of the Code of Criminal Procedure marked as Exht. 1, it reveals that it was recorded by the learned Magistrate, 1st Court, Alipurduar on 18th January, 2005. We already took note that the date of occurrence, according to the prosecution case, was 14th January, 2005 and the FIR was lodged on 15th January, 2005. Had it been so and if according to PW-2, he was kept detained at Police Station for consecutive 3 nights, then the date, i.e. 18th January, 2005 is noticed to be very matching one for the purpose of persuading him to make statement before the learned Magistrate under section 164 of the Code of Criminal Procedure. 9. In this sequence, on examining the evidence of the Investigating Officer, we find that he arrested the appellant on 15th January, 2005. On the same day he brought also PW-2 Bandey Lakra to the Police Station and sent him to Court on 18th January, 2005 for recording his statement under section 164 of the Code of Criminal Procedure. PW-5 in cross-examination disclosed "going to P.O. I found Rajen there. I also found Bandey there being arrested by police........In the Police vehicle Suman and Bandey were taken. After two days I found Bandey again in the village." So this evidence shows that though as per FIR the appellant was the only named offender, but PW-2 also was in the suspect list. Therefore, by keeping PW-2 under detention at police station for three nights procured his statement under section 164 of the Code of Criminal Procedure on 18.01.2015. After two days I found Bandey again in the village." So this evidence shows that though as per FIR the appellant was the only named offender, but PW-2 also was in the suspect list. Therefore, by keeping PW-2 under detention at police station for three nights procured his statement under section 164 of the Code of Criminal Procedure on 18.01.2015. The Investigating Officer, however, had no opportunity but to take shelter by making untruthful statement to save his own skin for keeping anyone under illegal detention and that is why, he had to say that Bandey Lakra was in his house from 15th January, 2005 to 18th January, 2005, which ought to have been noted by learned Sessions Judge to reject the evidence planted by the Investigating Officer. 10. Be that as it may, in view of above evidence and when PW-2 himself admitted the truth that he was produced before the learned Magistrate from Police Station after keeping him under detention at Police Station for 3 nights, his alleged statement under section 164 of the Code of Criminal Procedure is held as planted and thereby is inadmissible. Such statement before learned Magistrate in such circumstances cannot be accepted as voluntary and therefore is not accepted as any legal corroborative evidence, far to speak of acceptability of the alleged extra judicial confession of the appellant as also claimed by PW-2 like PW-5. 11. We have already indicated above that though FIR was lodged on 15th January, 2005, but PW-1 had seen the dead body in the midnight of that frightful night and she also informed some persons of that locality at that night. The Investigating Officer in cross-examination disclosed that he had received some verbal information from one Stifen, which was diarised in the G.D. book. Stifen Ekka was examined as PW-8. He also corroborated that under instruction of their Prodhan Rajen Ekka he informed the matter to police. For the reasons best known to the Investigating Agency/prosecution, said entry of the G.D. book was not produced before this Court to test the semblance between the said entry of G.D. Book and the text of the FIR lodged at Police Station. Benefit of these latches obviously shall not be credited favouring the prosecution. 12. For the reasons best known to the Investigating Agency/prosecution, said entry of the G.D. book was not produced before this Court to test the semblance between the said entry of G.D. Book and the text of the FIR lodged at Police Station. Benefit of these latches obviously shall not be credited favouring the prosecution. 12. There was an effort on the part of the prosecution about seizure of the offending weapon on the basis of statement made by the appellant leading to discovery this aspect again we can remind ourselves that any force, influence, coercion. On scrutiny of the total evidence on record the offending weapon was described somewhere as kriz, somewhere as knife, somewhere as bhojali, somewhere as dagger and somewhere as kukri. So far as recovery of weapon, seizure list has been marked as Exht.2/3. It reveals that such seizure list was prepared on 15th January, 2005 at 13.45 hours. According to the prosecution case, the alleged statement leading to discovery goes to show that the offending weapon was brought out by the appellant, which was kept under the culvert. The sketch map is absolutely silent to indicate the recovery place of the alleged offending weapon. Therefore, if the features of the seizure list as noted above and the case of the prosecution are construed together, then either of it has got no semblance with the other. Because according to the alleged statement leading to discovery, the offending weapon was recovered from under the culvert, as it was allegedly brought out by the appellant, whereas the seizure list shows that it was allegedly recovered from southern side of the house of Sudhu as allegedly shown by the appellant. That apart, the seizure list shows that the Investigating Officer had seized one dagger measuring about 19 inches in length including 4 inches wooden handle with wooden scabbard measuring about 15 inches tied with a piece of cotton printed saree. Therefore, the prosecution cannot either divert its attention or submit in other way that the alleged offending weapon was other than a dagger, which was allegedly seized by the Investigating Officer. It appears that though the alleged seized Bhojali was shown to Bandey Ekka, PW-2 but he allegedly identified the same as Kriz. The alleged seized weapon however was not marked as alamat of the case during examination of PW-2. The alleged recovered weapon was marked as MAT Ext. It appears that though the alleged seized Bhojali was shown to Bandey Ekka, PW-2 but he allegedly identified the same as Kriz. The alleged seized weapon however was not marked as alamat of the case during examination of PW-2. The alleged recovered weapon was marked as MAT Ext. 1 on identification by PW-3, who described it as Bhojali. However, though it was not marked during examination of PW-2 Bandey Ekka but he had given its description as follows: "At the relevant time when I saw it the thread was tagged with the weapon. On the tip of the kriz container there is a silver pin and the container is bounded with 3 iron brackets. The handle of the kriz also being seen by now." PW-3 told that during evidence that the appellant confessed that he had hidden the knife inside the culvert to the south of house of Sudhu Khujur and the appellant brought out the Bhojali from that hidden place. PW-4 narrated the sequence of recovery by describing the weapon as follows: "After sometimes Suman along with police went to a place close to the house of Andhrias wherein there was a culvert and the bhojali was hidden there. Police Officer asked Suman to find out the kukri and Suman took out the kukri from that place. Police Officer seized the kukri by a seizure list in my presence wherein I signed." But PW-4 identified said MAT Ext. 1 as 'Kukri' of which he gave description as follows: "The handle of the kukri/bhojali is broken. There is one aluminium plate in between handle and the actual weapon part. The container of the weapon is tight with 3 tin plates. This is the weapon seized by police officer." At the end PW-4 demolished his entire evidence by turning it to complicity in nature which he stated "as police officer arrested Suman and Bandey so I though that they too might have committed the crime." We can take note of the fact that the alleged incident took place in the district of Jalpaiguri in North Bengal, where the arms like bhojali, kukri are widely known. Those are long sharp cutting weapon having bent on the top, whereas a dagger is unlike bhojali or kukri or even kriz. Because it is straight. Those are long sharp cutting weapon having bent on the top, whereas a dagger is unlike bhojali or kukri or even kriz. Because it is straight. Therefore, on the point of recovery of the offending weapon, the prosecution could not withstand its own case as to what was the weapon actually used for the purpose of murder or as to what weapon was so recovered, far to speak of proving admissibility of the alleged statement leading to discovery. The description of the weapon allegedly seized had no semblance with the description given by the witnesses quoted above. 13. Now if we look to the result of examination of the offending weapon and other alamat, as was sent to forensic laboratory, then it appears that one bhojali was received at the forensic laboratory for examination. Therefore, no dagger was received though dagger was allegedly seized as the offending weapon. Moreover in said bhojali though human blood was noticed in the laboratory but there was no report that said human blood had matching semblance with the blood group of the deceased. Had there been such matching report then it could have been ascertained that the weapon examined at the forensic laboratory was actually used by the offender for the murderous assault. It is needless to mention that fruitfulness of examining blood appearing on the recovered weapon would come out, if blood appearing on any part of the recovered weapon could be matched with the blood group of the deceased. The Investigating Officer on the contrary in cross-examination admitted very curiously, "J do not take any finger print to ascertain that the weapon was belonging to the accused. The weapon was not blood stained. I made no investigation as to why there was no stain of blood in the weapon". This was absolutely perfunctory nature of investigation and the same should not get any liberal treatment in allowing the prosecution any kind of latitude. In the face of such evidence it is really surprising now as to wherefrom the human blood appeared on the weapon examined in the forensic laboratory when the Investigating Officer himself admitted that the recovered weapon was not stained with blood, be it is bhojali, or a dagger, or a knife, or a kriz, or a kukri. 14. Mr. In the face of such evidence it is really surprising now as to wherefrom the human blood appeared on the weapon examined in the forensic laboratory when the Investigating Officer himself admitted that the recovered weapon was not stained with blood, be it is bhojali, or a dagger, or a knife, or a kriz, or a kukri. 14. Mr. Bapuli during course of argument did not leave to argue that only due to defective investigation or latches in the investigation or latches caused by the Investigating Officer there should not be order of acquittal. Accepting the proposition as submitted by Mr. Bapuli, we do incline to repeat our observation that defective investigation or latches or loopholes in the investigation cannot warrant a Court of law to record order of acquittal, provided there are evidence of substantive nature to earn full credence and confidence of the Court. If there are evidence in the main from where attention cannot be diverted to any other angle howsoever the same may be in quantity and if the same is full of quality and without embellishment will be sufficient to warrant conviction nonetheless of having latches or defective investigation. In the case on hand we did not depreciate the prosecution case due to the latches or defective investigation but we appreciated the evidence on record, which have been adduced in Court. To recapitulate once again we found the latches and deficiency, rather embellishment and overt act since inception of the case. One information about the murder was diarised at the police station before reaching of the First Information Report, but said entry of the General Diary Book was withheld. The text of the First Information Report as discussed above is held exaggerated having no corroboration during course of evidence. Evidence of PW-1 suffers from contradiction and omission from the statements made in the First Information Report. The evidence of PW-2 is held as planted after keeping him under detention for three nights consecutively. 15. Though the basis of the prosecution case was on last seen theory and circumstantial evidence the chain was not made complete even it could not reach half of the way to earn credence and confidence of the Court even to think once for conviction in such a case. 15. Though the basis of the prosecution case was on last seen theory and circumstantial evidence the chain was not made complete even it could not reach half of the way to earn credence and confidence of the Court even to think once for conviction in such a case. Law is set at rest that if the prosecution case wants to rely upon the circumstantial evidence then the chain of circumstances, which ought to be natural and probable are to be framed and formulated like a complete uniformed garland having no thorny material in between which will not be enabling anyone in common parlance in smooth using the same only to wear and not to remove being disgusted. Meaning thereby there will not be any lack of uniformity or missing link in such usual expected chain of circumstantial evidence that the merit of the prosecution case will bound to limp. In other way the established cardinal principles for acceptance of circumstantial evidence may be cited hereunder: (i) the circumstances from which the conclusion of guilt is to be drawn must be fully satisfied without any second inference. (ii) the facts so established through legal evidence with the only hypothesis of guilt of the accused. (iii) the circumstances so arrived through consistent evidence must be conclusive in nature without any other hypothesis. (iv) it is to be established that in all human probability the offence could not have been done except the accused. 16. There was no eyewitness of the incident of murder. Last seen theory though was started through PW-1 there was missing link till the appellant and the deceased were allegedly found by PW-5 in his house. But on his refusal to hand over the wooden carrier the appellant and the deceased allegedly by force took away said carrier and in the following morning PW-5 saw the same in burnt condition by the side of the dead body. PW-2 who was in the suspect list, through him there was attempt to connect the chain by bringing some nature of evidence like extrajudicial confession of the appellant and recording statement of PW-2 under section 164 of the Code of Criminal Procedure, which are already held as incompetent to earn any confidence and credence of the court for want of its admissible value. Therefore the chain of circumstance could never be framed through legal or consistent evidence. Therefore the chain of circumstance could never be framed through legal or consistent evidence. We are surprising as to how learned Trial Judge arrived at the only hypothesis that such inconsistent half-hearted evidence proved the charge against this appellant beyond all reasonable doubt. The attempts of the investigating agency cannot be said only as the latches or defect in the investigation, rather, these are all evidence on record showing desperate overt acts making embellishment to put the appellant deliberately behind the bar to give a show of success in investigation. We cannot shut our eyes but to criticize also learned Sessions Judge conducted the trial who ought not to keep close his eyes while appreciating the self same existing evidence on record behind the deceptive investigation. 17. However, taking note of the hierarchy of the judicial system in the discharge of criminal administration of justice, we can only lay the result on conclusion of hearing of the appeal to which we are duty bound. Upon above observations and findings in the face of the evidence on record we cannot approve the judgment of conviction by accepting the observations of the learned Sessions Judge indicating implication of the appellant since it is not sustainable under law. Rather, learned Judge by ignoring the perversity and planting of evidence discussed above committed out and out illegality in concluding the trial ending with conviction instead of acquittal of the appellant at least by dint of benefit of doubt if not on merit itself. 18. Therefore, setting aside the judgment of conviction bearing the order of sentence as imposed, we allow the appeal. The criminal appeal is hereby allowed accordingly. The department is directed to communicate copy of this judgment in appeal immediately to the Superintendent of the concerned Correctional Home for information that the appellant Suman Lugun alias Munda, who was convicted and sentenced in the Sessions Trial No. 25 of 2005 arising out of Sessions Case No. 60 of 2005 is hereby acquitted and set at liberty with direction to release him at once. 19. Lower Court Records along with a copy of this judgment be also sent at once to the concerned Sessions Court for information and necessary action.