JUDGMENT : N. KOTISWAR, J. 1. Heard Mr. N. Mahendra, learned counsel for the Appellant; heard also Mr. R.S. Reisang, learned Senior P.P., assisted by Mr. Shyam Sharma, learned P.P. as well as Mr. A. Romenkumar, learned Amicus Curiae. 2. The present appeal has been preferred against the judgment dated 27.10.2016 passed in Sessions Trial Case No. 10 of 2014 by the Court of Sessions Judge, Bishnupur, convicting the Appellant for murder of his sister-in-law and sentenced him to undergo imprisonment for life with a fine of Rs. 5,000/- under Section 302 IPC. 3. The prosecution case is that a complaint was lodged stating that on 01.05.2013, at 10:10 p.m. one Phurailatpam Brajagopal Sharma reported that at about 9:30 p.m. while his wife, namely, Phurailatpam (O) Neena Devi was washing and cleaning utensils, he heard the children of their house screaming. Immediately, he rushed and saw his wife in a pool of blood at the washing place at the backyard near the kitchen. While he was attending his injured wife at the spot, his brother-in-law, Salam Sarattold him that he saw his younger brother, Phurailatpam Brajakishwar Sharma (Appellant herein) with a Dao (thangjou) in his hand near his injured wife. Immediately, she was evacuated to Bishnupur District Hospital for medical treatment. At that time, she was conscious and said that she feels very distressed. Afterwards, it was learnt that his younger brother (Appellant herein) had chopped his wife by using a Dao (thangjou). 4. Accordingly, on the basis of aforesaid complaint filed before the Officer-in-Charge, Bishnupur Police Station, an FIR was registered as FIR No. 36 (5) 2013 BPR PS under Section 326 IPC. The Investigating Officer, in course of investigation, visited and inspected the spot and arrested the Appellant at 11:30 p.m. on the same day, and seized one Dao (thangjou) having blood stain, one solar LED Home light, one aluminum tub, some soil, all having blood stain from the spot. Thereafter, the I.O. visited the victim at the Regional Institute of Medical Sciences (RIMS) Casualty Ward where she had been referred to from the District Hospital at Bishnupur. There the Investigating Officer (I.O)was informed by the Medical Officer that the victim succumbed to her injuries at 12:15 a.m of 02.05.2013. Accordingly, the initial charge registered under Section 326 IPC was converted to Section 302 IPC for further investigation. There the Investigating Officer (I.O)was informed by the Medical Officer that the victim succumbed to her injuries at 12:15 a.m of 02.05.2013. Accordingly, the initial charge registered under Section 326 IPC was converted to Section 302 IPC for further investigation. On completion of the investigation, the charge sheet was framed against the Appellant under Section 302 IPC, and the Appellant pleaded not guilty and claimed to be tried. Accordingly, the Appellant was tried under Section 302 IPC. 5. In course of the trial, as many as 14 prosecution witnesses were examined; 16 documents and 8 other materials/articles were exhibited. Upon appraisal of the witnesses accounts and other evidences on record, the learned Sessions Judge, Bishnupur, convicted the Appellant under Section 302 IPC and sentenced him to undergo imprisonment for life with a fine of Rs. 5,000/- 6. The learned District Judge, Bishnupur, held that the charge has been proved against the Appellant based on circumstantial evidences. Those factual circumstances have been identified as follows: - (i) The deceased was alone at the place of occurrence i.e. washing place in the backyard near the kitchen of the house at the relevant time. (ii) The deceased was found seriously injured in the said place. (iii) The accused was not along with the other members of the family at the relevant time. (iv) The weapon used in the crime was found by the Investigating Agency at the place of occurrence. (v) There is nothing on record to show that any other person had access to the place of occurrence prior to the seriously injured of the deceased, Neena Devi. (vi) The injuries found on the body of the deceased Neena Devi is homicidal in nature. (vii) The facts of the prosecution case point to the accused and not to anyone else, for the cause of the injuries on the body of the deceased at the place of occurrence. 7. The Trial Court held that the Prosecution has been able to prove the aforesaid circumstances from the evidences on record which conclusively lead to the conclusion that the accused committed the crime and to the exclusion of any other hypothesis consistent with the innocence of the accused, and it was none other than the accused who caused the death of the deceased by chopping her with a Dao (thangjou) on various parts of the body of the deceased. 8. 8. The aforesaid conviction has been assailed on various grounds as enumerated hereinafter. 9. It has been contended by Mr. N. Mahendra, learned counsel for the Appellant that the FIR is fabricated and since the FIR is fabricated and defective, the trial itself is vitiated. It has been contended by Mr. N. Mahendra, learned counsel for the Appellant that the Prosecution has not proved who wrote the FIR. He contends that the FIR lodged on 01.05.2013, admittedly was not handwritten by the complainant, Ph. Brajagopal Sharma (husband of the deceased). Mr. N. Mahendra, learned counsel has drawn attention of this Court to the testimony of the complainant Ph. Brajagopal Sharma P.W. No. 7, wherein he had stated that he had not lodged any written report to anybody including the security personnel/police personnel at the District Hospital, Bishnupur, but he only made a verbal report about the injury caused to his wife to some person whom he does not remember. During the cross examination, he also stated that he did not lodge any report either verbal or in written to any police personnel of Bishnupur Police Station as he had to take his injured wife to the RIMS hospital. He also stated that he did not know in whose handwriting the said FIR was written, though he admitted the signature to be his own. He also stated that he does not remember to whom he made the verbal report. He also stated that after having gone through the contents of the FIR, he does not remember how much he mentioned in his report. He also stated that on the day of the incident on 1.5.2013, he did not append any of his signatures to police papers including the said complaint which was exhibited as Ext. P/6. He further stated in the cross examination that since he was in a state of shock, he did not remember whether he had appended his signatures on police papers like inquest report etc. It may, however, be noted that the said witnesses, the husband of the complainant never questioned nor denied the correctness of the contents of the FIR. 10. Mr. It may, however, be noted that the said witnesses, the husband of the complainant never questioned nor denied the correctness of the contents of the FIR. 10. Mr. N. Mahendra, learned counsel for the Appellant accordingly, submits that when the complainant himself had categorically stated before the Trial Court that he did not make any written report to anybody including the police personnel at the District Hospital, Bishnupur or the Bishnupur Police Station and also he does not remember who had written the said complaint, it cannot be said that the aforesaid complainant, Ext. P/6 , on the basis of which the FIR was lodged, setting into motion the criminal investigation, has been proved. 11. Mr. N. Mahendra, learned counsel for the Appellant submits that if the original izahar which led to the filling of this FIR has not been proved, it will vitiate the trial. In support of his contention, Mr. N. Mahendra, learned counsel for the Appellant has relied on the following decisions: (i) Marudanal Augusti v. State of Kerala, AIR 1980 SC 638 where it was held that if the FIR is fabricated then the entire fabric of the prosecution would collapse. (ii) 1987 Suppl 1 SCC 363 wherein it has been held that delay in dispatch of the FIR is fatal. (iii) Malay Kumar Ganguly v. Dr. Sukumar Mukherjee and ors., 2009 (9) SCC 221 in which it has been held that unless the author of a document is examined, the document is admissible in evidence and contents cannot be said to have been proved. 12. Mr. N. Mahendra, learned counsel for the Appellant has submitted that the seizure memos are also fabricated and the recovery of weapon of crime and other evidence material objects seized have not been proved. Mr. N. Mahendra submits that examination of the statements of seizure witnesses would clearly show that seizure of the incriminating materials including the weapon of crime has not been properly effected. In this regard, learned counsel for the Appellant has drawn the attention of this Court to the statement of P.W. No. 1, Kh. Sanatomba Meitei, who had stated in the cross examination that he had only put his signatures on some papers on the request of the police personnel saying that they would be doing some writing works on the papers. Sanatomba Meitei, who had stated in the cross examination that he had only put his signatures on some papers on the request of the police personnel saying that they would be doing some writing works on the papers. Similarly, P.W. No. 2, Phurailatpam Brajayenti Devi also stated in her cross examination that the contents of Ext. P/1 from the beginning i.e. seizure memo till the line "some soil having with like blood stain" were not there on the Ext. P/1 when she put her signature on it. 13. Thus, it has been contended by learned counsel for the Appellant that since P.W. No. 2, the seizure witness stated that the writings were not present on the document when she put her signature it would clearly prove that the seizure memo was subsequently prepared after getting the signature of the P.W. No. 2, in which event, seizure memo is clearly a fabricated document. Accordingly, it cannot be said that the seizures have been proved. Further there is no evidence to show that the aforesaid seized articles were sealed. Relying on the decision of Bombay High Court in Tulshiram Bhanudas Kambale and ors. v. State of Maharashtra, (2000 CRl L.J. 1566 (BOMBAY)), it has been contended that where the recovered articles were not immediately sealed, no value can be attached to the said recovery. 14. Apart from the aforesaid formal and procedural defects, it has been also contended that there is no evidence linking the Appellant to the crime committed. Mr. N. Mahendra, learned counsel for the Appellant submits that none of the prosecution witnesses who were examined had claimed to have seen the Appellant hitting the deceased. However, the Trial Court seems to have convicted the Appellant on the basis of the statements made by P.W. No. 11 and P.W. No. 13 under Section 164 Cr.P.C., 1973 15. Mr. N. Mahendra, learned counsel for the Appellant submits that the statement recorded under section 164 Cr.P.C., 1973 is not a substantive evidence, and can be used only for the purpose of corroboration or contradiction. Therefore, conviction of the Appellant based on the statement made by these witnesses under Section 164 Cr.P.C., 1973 cannot be sustained. 16. It has been further submitted that it cannot be said that the guilt of the Appellant has been proved beyond reasonable doubt. In fact, the conviction of the Appellant is purely based on circumstantial evidences. Therefore, conviction of the Appellant based on the statement made by these witnesses under Section 164 Cr.P.C., 1973 cannot be sustained. 16. It has been further submitted that it cannot be said that the guilt of the Appellant has been proved beyond reasonable doubt. In fact, the conviction of the Appellant is purely based on circumstantial evidences. However, the Prosecution has failed to prove each and every incriminating circumstances which forms the chain of events. The Prosecution has failed to prove the links linking these events to sustain the conviction of the Appellant. 17. In order to appreciate the evidences on record, it may be necessary to briefly refer to the depositions of some of the important Prosecution witnesses. 18. The sister of the Appellant namely, Phurailatpam Brajayenti Devi, an Associate Professor in the N.C.E.R.T. (NERIE) Shillong, examined as P.W. No. 2, who was also a seizure witness to the seizure of the weapon of crime and other objects, stated that she along with her husband had come to her parental home to attend the first monthly death ceremony of her deceased father which was held on 30.04.2013. She stated that on the night of 01.05.2013, she along with the deceased Neena Devi and other members of the family had dinner together. After the dinner, the deceased Neena Devi remained in the kitchen in order to wash utensils and she had gone to the room of her mother for giving her medicines. After giving the medicines to her mother, she came out from the house to find out her younger brother, Ph. Brajagopal Sharma, the husband of the deceased and at the out-house, she met the deceased Neena Devi. She then went to the house of her elder sister, Brajamohini Devi(PW No. 10), where she found his brother Brajagopal Sharma(PW No. 7) and his sister and she joined them to discuss about the account matters of their deceased father. While they were discussing the matter, suddenly, Nirupama Devi (P.W. No. 13 and daughter of her sister Brajamohini Devi) and Saagarika Devi(P.W. No. 11 and daughter of Brajakishwar Sharma, Appellant) came running towards the southern door of the kitchen of her elder sister, Brajamohini Devi and Nirupama shouted "MAMO MAMO" to Brajagopal Sharma (husband of the deceased). When they asked her the reason for her shouting, Nirupama Devi told them that Neena Devi was beaten. When they asked her the reason for her shouting, Nirupama Devi told them that Neena Devi was beaten. Immediately, Brajagopal Sharma ran out from the kitchen and she along with her sister followed him. After proceeding about 4/5 steps, her sister Brajamohini Devi shouted that the child had fallen unconscious, and thereafter, she saw Saagarika Devi lying unconscious near the southern door of the kitchen of her sister. Thereafter, Saagarika was taken inside the house andshe put her in the bed trying to make her regain consciousness. While remaining inside the house of her sister, she heard that someone was badly injured and even the hand was amputated and also heard asking for bringing some clothes. Since Nirupama had told that Neena Devi was beaten, she presumed that it would be Neena Devi, deceased wife of her brother Brajagopal Sharma. Out of fear, she along with her elder sister and Saagarika Devi and Nirupama Devi remained inside the house of her sister. While remaining inside the house of her sister she heard the sound of taking away of the said Neena Devi to the Hospital. She further testified that after half an hour, some police personnel came to their house and arrested the Appellant, and a lady police personnel asked Brajayenti Devi (P.W. No. 2) to put her signature in the arrest memo which she did. After some time, her husband came back from the hospital and informed her that the incident was not about beating but of an assault with knife and after some time her husband again left for hospital. Later at about 2/3 a.m. of 02.05.2013, she was informed by her husband that the said Neena Devi had expired. When she went to the morgue, she found that there was some commotion between the local women folks of the paternal side of the deceased Neena Devi about the cause of death of Neena Devi, and thereafter, the dead body of Nina Devi was taken to her paternal home and the funeral ceremony was held at her paternal side. When she went to the morgue, she found that there was some commotion between the local women folks of the paternal side of the deceased Neena Devi about the cause of death of Neena Devi, and thereafter, the dead body of Nina Devi was taken to her paternal home and the funeral ceremony was held at her paternal side. She further stated that on 03.05.2013 she went to the Bishnupur Police Station to meet her brother Brajakishwar Sharma (Appellant herein) with the permission from the police and she met her brother and asked him why he had committed that act to his sister-in-law, to which Brajakishwar Sharma replied that the deceased Neena Devi did not look-after his father properly. Then she asked him why he had committed such a serious act for that reason, to which he replied that he had committed that act without thinking properly. 19. This statement made by the Appellant to his sister, P.W. No. 2 is significant as it may amounts to extra judicial confession made by the Appellant about the commission of crime charged against him. This is also important from the fact that he was making the statement to his own sister and the fact that his own sister, P.W. No. 2 stated on her own in her examination-in-chief before the Court, speaks volumes of the authenticity and credibility of the said statement made by the Appellant. This extra judicial confession made by the Appellant is not testified by any interested witness but by his own sister who was also present in the house at the time of occurrence of the crime and as such, there is no scope or room for doubting the correctness of the statement made by the Appellant to his own sister. It may be also noted that when cross examined by the Defence about the aforesaid statement made by P.W. No. 2 of the extra judicial confession made to her by the Appellant, she stated that she did not state it before the Investigating Officer of the case. It may be also noted that when cross examined by the Defence about the aforesaid statement made by P.W. No. 2 of the extra judicial confession made to her by the Appellant, she stated that she did not state it before the Investigating Officer of the case. However, she also denied that she did not ask why the Appellant had committed the aforesaid act to the deceased sister-in-law and also denied that the Appellant also did not reply that the deceased, Neena Devi did not look after and take care of his father properly or that she did not ask the Appellant why he had committed such a serious act for that reason and he did not reply that he had committed that act by not thinking properly. Thus, P.W. No. 2, has no reason to implicate her own brother. Therefore, the statement of the P.W. No. 2 to the fact that the Appellant told her that he had committed the aforesaid act to his sister-in-law for not looking after his late father is highly relevant though she did not herself witness the incident. There is no reason to doubt the statement of P.W. No. 2 who has no reason to falsely implicate her own brother. There is nothing to indicate that she had a strained relationship with her own brother, the Appellant. In fact, she had gone to the Police Station to meet her own brother. Therefore, the evidence of P.W. No. 2, which is not only natural but also credible clearly implicates the Appellant. No suggestion has been made by the Defence during the post examination to doubt the veracity of the aforesaid statement made by the P.W. No. 2. However, whether the aforesaid statement is admissible or not will be considered at a later stage. 20. It is also equally significant to note that when the seizure memo recording the seizure of the weapon of crime, the Dao (thangjou) was drawn to the attention of P.W. No. 2, she admitted to the signature appended to the said seizure memo. She also stated that as far as she remembered, one Dao was seized along with the Appellant on the night but she did not know about the other seized articles. She also stated that as far as she remembered, one Dao was seized along with the Appellant on the night but she did not know about the other seized articles. The fact that P.W. No. 2 deposed before the Trial Court that the weapon was seized along with the Appellant clearly points the finger of guilt to the Appellant. 21. Another important witness is Salam Saratchandra Singh, P.W. No. 5, who is the brother-in-law of the Appellant and who is married to the elder sister of the Appellant. He was also present near the place of occurrence when the incident occurred. He was also one of the persons who was sitting along with his brother-in-law Brajagopal Sharma and his wife. When he also heard about the commotion and was called to the backside of the house, he saw his brother-in-law Brajagopal Sharma lifting his wife in his own arms and shouting to bring some clothesstating that her hand has been cut off. He then immediately gave the Khudei(local towel) to bandage her injuries. He also helped his brother-in-law to take the injured Neena to the hospital, first to the District Hospital and thereafter to the RIMS Hospital. He also stated that, he was present when Brajagopal, PW No. 7(the husband of the deceased) informed about the incident to the police personnel attached to the District Hospital, Bishnupur that the said incident/assault of deceased Neena Devi may be caused by his younger brother, Brajakishwar Sharma, the Appellant herein. Though this may be considered to be a hearsay evidence as far as the contents of the FIR is concerned, yet this corroborates the factum of First Information Report/complaint filed before the Officer-in-Charge of the Bishnupur Police Station on 1.5.2013, and as such, the contention of the Appellant that the FIR was fabricated does not seem to hold water, merely because the scribe or the person who wrote the FIR has not been examined cannot render the aforesaid FIR suspect or doubtful, in view of the fact that the aforesaid PW No. 5 had clearly stated that he had heard his brother-in-law Brajagopal Sharma informing about the incident to the police. 22. Of course, PW No. 5 stated during the course of examination that the matter was reported orally by Brajagopal Sharma and that there was no written complaint either by Brajagopal or by anybody else. 22. Of course, PW No. 5 stated during the course of examination that the matter was reported orally by Brajagopal Sharma and that there was no written complaint either by Brajagopal or by anybody else. He also stated during the cross examination that it is correct that only the signature of Brajagopal Sharma was obtained on a blank paper to fill up the contents of the information given orally later on. Though, it may be technically correct that the complainant Brajagopal Sharma might have put his signature on a blank paper and for that reason the said complaint may not be considered to be properly executed in the eye of law, but the fact remains that the contents of the aforesaid FIR has been fully corroborated by the evidence of this witness. Therefore, even if the FIR is claimed to be not a valid document, the fact remains that the said Brajagopal Sharma's oral report to the police was perhaps later on put in writing by the police themselves. Therefore, this formal defect in proving the FIR cannot in anyway affect or vitiate the trial for it is nobody's case that there was no report given to the police concerning the aforesaid incident nor such an incident was not reported. For similar reasons, the statement of Brajagopal Sharma(P.W. No. 7), the elder brother of the Appellant that he had merely lodged the report of the incident to the security personnel attached at the District Hospital, Bishnupur and that he did not lodge any written report to anybody cannot make any difference to the nature of the complaint. The P.W. No. 7 admits that he put his signature and the signature appearing in the FIR belongs to him, though he stated that he did not read the contents of the said FIR/complaint is not credible.He had also stated in the course of cross-examination that it is possible that he might have stated the contents of the said FIR. It may be also stated that the husband of the deceased, P.W. No. 7, who was the complainant, is a Civil Engineer working with the Power Grid Corporation of India at Biharsaritt at the relevant time. The assertion made by the Defence or for that matter by the P.W. No. 7 that he put his signature on a blank paper is doubtful and can not be believed. The assertion made by the Defence or for that matter by the P.W. No. 7 that he put his signature on a blank paper is doubtful and can not be believed. In fact, he admits that it was possible that he might have stated the contents of the said document Ext. P/6 (the FIR). If he admits so, it is also quite possible that he was busy with the treatment of his wife and he must have narrated the incident to the police personnel who might have written, and thereafter, he put his signature. This Court finds it difficult to believe the statement of a very well educated and well placed official to say that he put his signature on a blank paper. In fact, neither the complainant PW No. 7, nor PW No. 5, in whose presence the Complainant informed the Police about the incident never stated that the contents of the FIR are not correct. Therefore, as far as the validity of the FIR complaint is concerned, this Court would hold that even though the admissibility of the aforesaid document, that is, the complaint/FIR exhibited as Ext. P/6 may be questioned, the correctness of the contents of the same has been corroborated by P.W. No. 5 as well as P.W. No. 7. Considering all these appeals, we reject the contention that the FIR is not proved. 23. It may be also noted that P.W. No. 7, the husband of the deceased and elder brother of the Appellant stated that, on hearing the shouting on the fateful night by the daughter of his elder sister Brajamohini Devi namely, Nirupama Devi, he went to the place of incident and saw one portable solar lamp lying nearby and found his wife lying down on the floor. He found two cut injuries on her face and blood coming out from the right hand of his wife and thereafter, he shouted for help. Though in his deposition in the examination-in-chief, he did not state as to who had committed the assault on his wife by stating that he cannot say who had exactly committed the assault on his wife, he nevertheless stated during the examination-in-chief that he saw a virtual image of a figure of a man standing near his wife.However, he did not say that he could identify what that image of that figure was like. He also stated that their homestead land did not have any brick wall fencing but merely bamboo fencing and therefore, strangers can sneak into or out of the homestead land through the bamboo fencing. Perusal of the aforesaid evident of P.W. No. 7 would indicate that he,being the elder brother of the Appellant may be interested in not implicating the Appellant and accordingly, he had stated very ambiguously about the person who was found standing near his wife. Though the remaining part of his testimony are fully corroborated by other witnesses who were near the scene of occurrence, when it came to identifying the assailant, he stated that he could not say who was the assailant and though he saw a figure like that of a man standing nearby his wife which he could not identify. This Court finds such statement of the husband of the wife very strange, curious, unusual and not believable. The aforesaid testimony of the husband of the deceased (PW No. 7)does not seem to be natural. He does not appear to be at all concerned or anxious to find out who could have caused such grievous injury to his wife even to the extent of chopping of her hand when he saw a figure of a man. It is surprising that even though he had seen a man like figure standing nearby, he did not raise any hue and cry and also did not make any attempt to apprehend him or question him or seek the help of others to identify such a person, when so many of his relatives, including male relatives were present nearby. This Court is of the view that, in absence of any evidence to show that the said P.W. No. 7 had any strained relationship with his own wife, which there is none, he would have made all endeavours to identify or apprehend the person who was standing near his wife. The only inference which can be drawn is that he knew about the identity of the person standing nearby his wife and that the said person was not a stranger. That is why, he was diverting all his attentions towards saving his wife's life. The only inference which can be drawn is that he knew about the identity of the person standing nearby his wife and that the said person was not a stranger. That is why, he was diverting all his attentions towards saving his wife's life. Or otherwise, he would have made all attempts to apprehend the said person standing nearby or seek the help of others to apprehend and to identify such a person who would be the most possible person to assault his wife. P.W. No. 7 also testified that after seeing the condition of his wife, he shouted for bringing clothes and also for help to pick up his wife as he alone could not pick her up and soon he was helped by his brother-in-law and his nephew and he instructed his nephew to drive his Maruti 800 car to take his injured wife to the District Hospital where she was given first aid where he saw another injury on the front side of her neck and his wife told him that she was very exhausted. Thereafter,the District Hospital at Bishnupur advised him to take his wife to Imphal and she was taken to RIMS at Lamphel but after sometime the doctor declared his wife dead. He stated that his wife did not tell anything except stating the word"eiyamna ware" (I amin great agony). The fact that P.W. No. 7, the husband of the deceased did not make any endeavour to find out who was the assailant throughout this period of journey from home to the hospital at Bishnupur and at Imphal is quite unusual and odd, to say the least. He ought to have made all attempts to ascertain the identity of her assailant. It is on evidence that his wife was still alive and could talk. While he would be primarily occupied with saving of her life, he was in the company of his brother in-law and the nephew and thus could have made some attempt or endeavour to find out who the assailant was from the deceased. The fact that there was no communication amongst them as to who could be the assailant is quite strange and not believable. It does not seem to be the natural course of action to a group of persons whose close relative had been severely injured within close proximity of their presence. The fact that there was no communication amongst them as to who could be the assailant is quite strange and not believable. It does not seem to be the natural course of action to a group of persons whose close relative had been severely injured within close proximity of their presence. The only conclusion that can be arrived at as regards the testimony of P.W. No. 7, the husband of the deceased and others is that,they are trying to conceal the identity of the assailant who they already knew, that is the present Appellant, and being his own brother, the PW No.7 is keen to save him. This conclusion of this Court will be fortified by other evidences on record which will be discussed herein after. 24. Another important witness is Ph. Saagarika Devi, P.W. No. 11, aged about 20 years, daughter of the Appellant,Brajakishwar Sharma. In her testimony, she had stated that when she was near the back door of the kitchen, she heard the loud cry of Nirupama Devi, her cousin. Then she saw the said Nirupama being hit by something which she could not see properly and thereafter she fainted and when she regained consciousness, she found herself lying on the bed. She was then declared a hostile witness by the Prosecution as she had resile from her previous statement recorded under Section 164 Cr.P.C , 1973and accordingly, she was allowed to be cross-examined by the Prosecution. In the cross-examination, she admitted that she had given her statement before the Court at Bishnupur under Section 164 Cr.PC. When she was shown the statement/document, she stated that the Magistrate took her signature on the said statement recorded. When the same was shown to her, she identified it to be her signature. The attention of the witness, P.W. No. 11 was then drawn to the portion which reads as follows. "When I look out at the said back door I could see that my father Brajakishwar Sharma had hit my aunty 'Imachoubi Neena'. I thought that it was an iron rod" And when the witness was asked whether the statement was correct or not, the witness replied that it was a false statement. She however, stated that on the said night of occurrence, her father did not have his food as he was staying inside his room. I thought that it was an iron rod" And when the witness was asked whether the statement was correct or not, the witness replied that it was a false statement. She however, stated that on the said night of occurrence, her father did not have his food as he was staying inside his room. She also admitted that her father was arrested by the police in the late hour of the same night on the accusation that he had assaulted her aunty, Neena Devi as told by the police. She, of course denied the suggestion that she was giving false evidence before the Court in order to save her father. The aforesaid witness, P.W. No. 11, however tried to wriggle out of the situation and deny her own statement made under Section 164 Cr.P.C., 1973by stating that after narrating the said incident before the Magistrate, the Magistrate asked her to put her signature and she put the signature as asked by the Magistrate without going through the contents of the statement. The insinuation is very clear. According to this witness the Magistrate made up the story that she saw her father (Appellant) hitting the deceased with what she thought was an iron rod. It may be stated that the said witness, P.W. No. 11, was a student and at the time of deposition before the Trial Court on 30th April, 2015 she was studying B.Sc. 2nd year in the Imphal College, Imphal and as such she must have been studying class 12 or might have passed class 12 when the incident occurred on 01.5.2013 and when her statement was recorded under Section 164 Cr.P.C., 1973 Though, the aforesaid witness, P.W. No. 11 had resile from her statement made before the Magistrate under Section 164 Cr.P.C., 1973 when she deposed before the Trial Court as regards the crucial evidence to the fact that she had seen her father hitting her aunty, the evidence of P.W. No. 11 has to be appreciated in the light of other evidences on record. 25. In this context, it may be relevant to examine the evidence of P.W. No.13, Samurailatpam Nirupama Devi, aged about 27 years, D/o Ph. Brajamohini Devi. Brajamuhini Devi is the elder sister of the Appellant, Ph. Brajakishwar Sharma. The aforesaid Sh. 25. In this context, it may be relevant to examine the evidence of P.W. No.13, Samurailatpam Nirupama Devi, aged about 27 years, D/o Ph. Brajamohini Devi. Brajamuhini Devi is the elder sister of the Appellant, Ph. Brajakishwar Sharma. The aforesaid Sh. Nirupama Devi, P.W. No. 13 stated that while she was cleaning the kitchen after the dinner in the month of May at about 9 p.m., her paternal uncle Brajagopal Sharma came to their kitchen and discussed some family matters with her mother, and her aunt Brajayenti Devi also joined the discussion. In the meantime, she went out from the kitchen through the back door and she heard the sound of a cat meowing and she saw one black figure like a man swinging something or somewhat like a stick.On seeing it she got frightened and rushed back to the kitchen by calling out for her maternal uncle, Brajagopal Sharma. Then her cousin sister, Km. Ph. Sagarika Devi (P.W. No. 11) fell down unconscious. In the meantime, she also heard some commotion outside their kitchen. At that time she was declared a hostile witness by the Prosecution as she had resile from her previous statement recorded under Section 164 Cr.P.C , 1973and was allowed to be cross examined. She was shown the statement made by her and recorded by the Magistrate and she admitted the signature appended to be her signature. However, she stated that she does not know the contents of the same as she did not read it. In the cross examination by the Defence,she stated that she along with Saagarika Devi(P.W. No. 11) went inside the chamber of the concerned Magistrate who asked them about the incident and thereafter had some conversation. After the conversation was over, the concerned Magistrate wrote down on some papers and they were asked to sign those papers. They then put their respective signatures without going through the contents of the same on which the Magistrate had written. Thus, these two witnesses, P.W. No. 11 and P.W. No. 13 apparently resile from the statements made by them under Section 164 Cr.P.C., 1973 It may be stated that in the statements made by these two witnesses under Section 164 Cr.P.C, 1973 they had clearly implicated their uncle, the Appellant herein, who was seen to have hit the deceased outside the kitchen on the fateful night. If the statements made by these two witnesses and recorded under Section 164 Cr.P.C , 1973are to be taken into consideration, certainly, the Appellant is the assailant who assaulted the deceased with the "dao (thangjou)"/machete which caused her death and certainly can be said to have murdered her. However, it has been strenuously contended by learned counsel for the Appellant that the aforesaid statements made under Section 164 Cr.P.C,, 1973 if not admitted by the witnesses during the deposition in the Trial cannot be taken into consideration, though the Prosecution has insisted that the same can be taken into consideration. In view of the above, legal position emerging as to whether the statements made by a person under Section 164 Cr.P.C., 1973 could be used at all if the same is not reiterated during the Trial by the witness concerned, this Court requested Shri A Romen kumar Singh, learned counsel to act as an Amicus Curiae to assist this Court on this legal issue as to whether such statement made under 164 Cr.P.C by a witness could be taken into consideration by the Court. We will deal with this issue at a later stage. 26. The other important witnesses is the I.O. of the case, Shri Yumnam Motilal Singh who was examined as P.W. No. 14. He stated that when he visited the spot after receiving the complaint, the elder sister of the accused, Phurailatpam Brajayenti Devi (P.W. No. 2) identified the place of occurrence where he found a pool of blood and one dao having blood stain with bamboo handle of about 32.5 cm and blade length about 23.5 cm, one Solar LED home light with blood stain, one aluminum tub also with blood stain which were seized on production by the Appellant. The seizure memo was prepared in the presence of the witnesses namely, the aforesaid Brajayenti Devi (P.W. No. 2) and one Kh. Sanatomba Meitei, Councilor of the Bishnupur Ward No. 1. (P.W. No. 1).The I.O. also arrested the Appellant on the same day on 01.05.2013 at about 11:30 pm by preparing the arrest memo. The seizure memo was prepared in the presence of the witnesses namely, the aforesaid Brajayenti Devi (P.W. No. 2) and one Kh. Sanatomba Meitei, Councilor of the Bishnupur Ward No. 1. (P.W. No. 1).The I.O. also arrested the Appellant on the same day on 01.05.2013 at about 11:30 pm by preparing the arrest memo. On the next day, during the police custody, he also seized the apparels of the Appellant i.e. (i) one T-shirt with collar having horizontal stripes with white, black, red and grey with blood stained marked with the marking "Gold" (ii) one trouser, grey in colour, (3) one under wear blue in colour on production by the Appellant in the presence of witnesses and the seizure memo was prepared. During the cross-examination he stated that the said dao was visible from the place of occurrence and was found lying at about 11 feet. He also stated that the homestead land where the place of occurrence is located is not bounded by brick wall or any bamboo fencing. 27. This Court has referred to the aforesaid deposition of the I.O. (P.W. No. 14) as the Appellant has contended that the seizure of the dao was not proved. In this regard, Mr. Mahendra, learned counsel for the Appellant has also referred to the deposition of the seizure witnesses. Kh. Sanatomba Meitei (P.W. No. 1) who was one of the seizure witnesses who had stated that the said dao was produced by the accused himself from the backside bush of his house which is in the hill side as the house was located in the hill near the Leprosy Hospital and the khudeng (tub) and the lamp were found near the washing place and the ground of the washing place was found with blood stains. It was also contended that on that day, there was no electric light and the police personnel were using torch lights and as such, they could see each other and seize the articles. The seized articles were found with blood stains. Mr. N. Mahendra, learned counsel for the Appellant, submitted that the aforesaid Kh. It was also contended that on that day, there was no electric light and the police personnel were using torch lights and as such, they could see each other and seize the articles. The seized articles were found with blood stains. Mr. N. Mahendra, learned counsel for the Appellant, submitted that the aforesaid Kh. Sanatomba Meitei (P.W. No. 1) had stated that the dao was produced by the accused himself from the backside of the house, which would clearly contradict the statement of the I.O. of the case, who had stated that he found the said blood stained dao on the place of occurrence and also by referring to the statement of the I.O. that the dao was found lying at about 11 feet. Mr. N. Mahendra, learned counsel for the Appellant, submits that the P.W. No. 1, one of the seizure witnesses, had stated that the said dao was produced by the accused himself from the backside of the house which is in the hill side but the I.O. stated that it was found lying at about 11 feet. According to Mr. Mahendra, in other words, the said dao was obviously not found at the place of occurrence but away from the place of occurrence. If that is so, the statement by the I.O, that after his visit to the place of occurrence he found a pool of blood and one dao having blood stain and other materials were found cannot be correct. He could not have seen the said dao if the said dao was recovered from the bush as testified by the P.W. No. 1 which is 11 feet away from the place of occurrence.As such, it cannot be said that the seizure was proved. This Court, however, does not find any contradiction or inconsistency in the aforesaid statements made. The fact remains that PW No. 1, one of the seizure witnesses stated that the dao was produced by the accused himself from the backside bush of his house. It does not necessarily mean that it was produced from a different place other than the place of occurrence. P.W. No. 1 himself says that the place of occurrence was on the backside of the house which was used as a washing place. It does not necessarily mean that it was produced from a different place other than the place of occurrence. P.W. No. 1 himself says that the place of occurrence was on the backside of the house which was used as a washing place. If the said dao was visible from the place of occurrence and was found lying at about 11 feet as stated by the I.O., there is nothing illogical about the said statement. The circumference of the place of occurrence cannot be confined to mere 1 foot or 2 feet. Immediate surroundings of the place of occurrence where the actual incident happened can be said to be the place of occurrence and 11 feet is not a very long distance which cannot to be considered to be not a part of the place of occurrence. There is no evidence anywhere that the dao was hidden and not visible. Merely because the P.W. No. 1 stated that the dao was produced by the accused himself from the backside bush of the house does not necessarily mean that the bush was very thick which rendered any article placed in the bush invisible. The dao not being a small article but measuring about 56 cm with bamboo handle of about 32.5 cm, can be visible with the help of a torch light even if it was lying on the bush as it was only about 11 feet away from the place of occurrence as testified by the I.O. In absence of any other evidence to the effect that it was a very thick and big bush and it was not possible to see anything lying on the bush, it cannot be presumed that the dao which was lying on the bush cannot be visible. Therefore, it cannot be held that the statement of the Investigating Officer that on arrival of the place of occurrence he saw a pool of blood and a dao having blood stains, the seizure memo prepared is not proved. It is also not the case that the dao was produced by the Appellant from another room or from another location away from the place of occurrence where it was hidden. It is also not the case that the dao was produced by the Appellant from another room or from another location away from the place of occurrence where it was hidden. If the Appellant had produced the dao from a bush which is about 11 feet away, it does not necessarily mean, in absence of other evidence to the effect, that the bush was having a thick growth and that the dao was not visible and as such the statement of the I.O. should be doubted. The P.W. No. 1 had very clearly stated and had identified before the Trial Court that the said dao was seized by the police on production by the accused. P.W. No. 1 also admitted that the signature appended on the seizure memo was his. 28. In view of the above clear testimony before the Court, the statement made by the seizure witness PW No. 1 in the cross examination that "I only put my signature on some papers on the request of the police personnel saying that they would be doing some writing works on the papers" cannot throw any doubt on the genuineness of the seizure memo as contended by the Appellant. He did not say that he put his signature on a blank paper nor did he deny his signature on the seizure memo. The contention by Mr. N. Mahendra, learned counsel for the appellant that the statement made by the aforesaid P.W. No. 1, the seizure witness that he only put his signature on some papers on the request of the police personnel saying that they would be doing some writing works on the papers indicates that the seizure memo is a false document cannot be accepted. 29. During the cross examination, it was never suggested by the Defence that the said seizure memo was fabricated and that the signature put by the P.W. No. 1 was put before the seizure memo was prepared.The witness also did not deny the preparation of the said seizure memo. Therefore, the contention of the Appellant that preparation of the seizure memo is not proved is without any basis. Similarly, other seizure witness, Ph. Brajayenti Devi (P.W. No. 2) had also categorically stated, when her attention was drawn to the said seizure memo, that the signature found as Brajayenti Devi was her signature. Therefore, the contention of the Appellant that preparation of the seizure memo is not proved is without any basis. Similarly, other seizure witness, Ph. Brajayenti Devi (P.W. No. 2) had also categorically stated, when her attention was drawn to the said seizure memo, that the signature found as Brajayenti Devi was her signature. She also categorically stated that so far as she remembered, one dao was seized along with the accused Brajakishore Sharma on the very night, though she also stated that she did not know about the other seized articles mentioned in the Ext. P/1. Mr. Mahendra, learned counsel for the Appellant, however, has relied on the aforesaid statement of the seizure witness, Brajayenti Devi (P.W. No. 2), the sister of the Appellant in her cross examination that the contents of the seizure memo from the beginning till the line "some soil having with like blood stain" was not there on the Ext. P/1 when she put her signature clearly shows that the said seizure memo was a fabricated document. Nothing much can be read into the aforesaid statement of the seizure witness P.W. No. 2 as the other witness P.W. No. 1 had clearly stated that the aforesaid articles were seized in his presence. The seizure witness Sanatomba Meitei (P.W. No. 1) who is an independent witness and being a Council or of Bishnupur Ward No. 1 was a responsible person and this Court would have no reason to doubt his evidence who had clearly testified about the seizure of the articles from the place of occurrence on the day on 01.05.2013 and having put his signature as a witness to the seizure memo. Further, if the said PW No. 2 had denied having witnessed seizure of the articles including the weapon, one perhaps could say that the seizure memo was fabricated. But PW No. 2 does not say so. Hence, we do not accept the plea that the said seizure memo has not been proved. 30. Before we proceed with the admissibility, reliability, relevancy of the oral testimonies, we may have a look at the other material evidences as to whether these corroborate the prosecution version. In this regard, as already discussed above, seizure of the weapon of the crime has been proved. 30. Before we proceed with the admissibility, reliability, relevancy of the oral testimonies, we may have a look at the other material evidences as to whether these corroborate the prosecution version. In this regard, as already discussed above, seizure of the weapon of the crime has been proved. Apart from the seizure of the weapon with blood stain from the place of occurrence, it is also on record that other incriminating materials viz., one solar LED Home light lamp with blood stain, aluminium tub with blood stain as well as some soil with blood like stain were recovered and seized. Apart from the aforesaid materials seized, other materials, viz., T-shirt with blood like colour spots on both front and backside of the shirt marked with the word "Gold", one trouser green in colour, one underwear blue in colour were also seized from the body of the Appellant on the next morning while the Appellant was in police custody in presence of the witnesses which were duly exhibited before the Court. The Defence had not made any attempt to question the seizure of the aforesaid articles from the Appellant on the next day. The aforesaid seized apparels were forensically examined and the Forensic Science Laboratory, Manipur after examination submitted the report that the stains which were found on the dao, solar LED light, aluminium tub, soil sample, T-shirt, trouser, underwear and blood sample on the piece of cloth marked as "I", which was submitted by the Doctor who performed the postmortem on the body of the deceased, were found to be identified as human blood belonging to the same blood Group "A". 31. The aforesaid forensic report was duly exhibited as Ext. P/12 and proved before the Trial Court. The Defence never questioned the correctness or otherwise on the aforesaid finding of the Forensic Science Laboratory. Shri Hodam Jagadananda Singh, who carried out the forensic examination of the seized articles, including the "dao" and other materials, was examined as P.W. No. 12. He was the Scientific Officer in the Biology Division of the Forensic Science Laboratory, Pangei and gave his opinion that the stains found on the exhibits marked as S-1 to S-8 could be identified as human blood of Group "A". The aforesaid exhibits are as follows:- 1. One Dao marked 'A', laboratory marking S-1 ; 2. One solar LED light marked 'B', laboratory marking S-2 ; 3. The aforesaid exhibits are as follows:- 1. One Dao marked 'A', laboratory marking S-1 ; 2. One solar LED light marked 'B', laboratory marking S-2 ; 3. One aluminium tub marked 'C', laboratory marking S-3 ; 4. One soil sample marked 'D', laboratory marking S-4 ; 5. One T-shirt marked 'E-1' and 'E-2', laboratory marking S-5 ; 6. One trouser marked 'G', laboratory marking S-6 ; 7. One underwear marked 'H', laboratory marking S-7 ; 8. One blood sample on a piece of cloth marked 'I', laboratory marking S-8. The aforesaid result of the forensic science laboratory clearly implicate the Appellant, as the blood of the deceased matched with the blood stains found on the weapon of crime recovered from the place of occurrence on production by the Appellant as well as the other articles, viz., solar LED lamp, aluminium tub, soil sample recovered from the place of occurrence as well as the blood stain found on the apparels of the Appellant which were seized during the investigation. The aforesaid forensic evidences clearly link the Appellant to the crime which led to the death of the deceased. It cannot be a mere coincidence that the blood of the deceased, found in the articles seized, including the weapon of crime and blood found on the apparels of the Appellant belongs to the same blood Group "A". 32. In this regard, one may refer to the postmortem report which was exhibited before the Court. In the postmortem report which were prepared on 02.05.2013, the history of the case was also clearly mentioned that on 01.05.2013 at around 10 p.m. the deceased was assaulted by a "dao" by her husband's younger brother, namely, Phurailatpam Brajakishwar Sharma at her husband's residence. She was evacuated to the RIMS casualty but she succumbed to her injuries at 2.25 p.m of 02.05.2013. This information has been recorded by a competent authority at the time of conducting postmortem, a contemporaneous evidence, which clearly corroborates the prosecution case that the deceased was assaulted with a dao by the Appellant at her husband's residence. 33. In the post mortem report, the external injuries recorded are as follows :- "(1) External injuries :- (i) Chop wound, 8 c.m x 2 c.m x cavity bevelling on upper margin, almost horizontally placed on the Rt. temple, extending up to the Rt. Eye, 5cm Rt. To midline, 2 c.m in front of Rt. 33. In the post mortem report, the external injuries recorded are as follows :- "(1) External injuries :- (i) Chop wound, 8 c.m x 2 c.m x cavity bevelling on upper margin, almost horizontally placed on the Rt. temple, extending up to the Rt. Eye, 5cm Rt. To midline, 2 c.m in front of Rt. ear, red in colour. (ii) Chop wound 3 c.m x 1 c.m x bone, bevelling on the upper margins, horizontally placed on the forehead, 5 c.m above the Rt. eyebrow, 2 c.m from midline, red in colour. (iii) Chop wound 6 c.m x 1 c.m x muscle, almost horizontally place on Rt. side of the face, 3 c.m from midline, bevelling on the upper margin, 4 c.m in front of the Rt. ear, red in colour. (iv) Chop wound 16 c.m x 2 c.m x cavity, along the lower border of the chin, bevelling on the upper margin, 2 c.m in front of the right ear and extending across the midline, red in colour with fracture of the mandible and fracture disc-location of multiple teeth in the lower jaw. (v) Lacerated wound, 2 c.m x 0.2 c.m x muscle, with red margins on the lower lip, 0.5 c.m Rt. to midline. (vi) Bruise, 3 cm x 1 cm, red in colour, just behind the right ear. (vii) Chop wound, 5 c.m x 1.5 c.m muscle, red in colour, with bevelling on the inferoleteral margin, obliquely placed on the outer aspect of right arm, 14 clm above elbow. (viii) Chop wound, 22 c.m x 5 c.m x bone, red in colour, bevelling on the in-feroleteral margin, with fracture of humerus, obliquely placed on the outer aspect of right arm, 6 c.m above elbow. (ix) Chop wound, 5 c.m x 2.5 c.m x muscle, red in colour almost horizontally place, bevelling on the lower margin, on the outer aspect of right forearm, 4 c.m below elbow. (x) Chop wound, 12 c.m x 4 c.m x bone, red in colour, horizontally placed on the outer aspect of the right wrest, bevelling on the lower margin, 13 c.m below elbow with fracture of the radius. (xi) Chop wound, 1.5 c.m x 1 c.m x bone, red in colour, on the dorsum of left little finger with fracture of the proximal phalanx." 34. (xi) Chop wound, 1.5 c.m x 1 c.m x bone, red in colour, on the dorsum of left little finger with fracture of the proximal phalanx." 34. Accordingly, the Medical Officer gave her opinion that death was due to shock and haemorrhage resulting from multiple chop wounds produced by a moderately heavy sharp cutting weapon and homicidal in nature. Evidence of the aforesaid post mortem report clearly corroborates the version of the Prosecution that a dao was used to hit the deceased resulting in various injuries as mentioned in the medical report which caused her death. The Medical Officer who conducted the postmortem examination was examined before the Court as P.W. No. 4 but her statement could not be shaken by the Defence. Thus, the aforesaid material evidences recovered from the place of occurrence and from the person of the Appellant, as well as the forensic report and the postmortem report clearly link the commission of crime by the Appellant by using a dao (thangjao). 35. Learned counsel for the Appellant has tried to introduce an element of doubt as to the identity of the Assailant by putting questions during the cross examination of the witnesses to the effect that the house was not surrounded by any brick wall or any bamboo fencing.Thus, anyone could ingress and egress the place of occurrence without much difficulty, thereby indicating that someone else other than the Appellant might have come from outside and assaulted the victim. Of course, the Defence has not produced any witnesses or witness in support of the Defence to suggest any such possibility. This, of course, is not to say that failure on the part of the Defence to adduce any evidence to make any specific plea of Defence, would lessen the onus of the Prosecution to prove its case beyond reasonable doubt. The learned counsel for the Appellant, however, is trying to establish such a possibility by referring to the deposition of the Prosecution witnesses to the effect that some of the witnesses saw a man like figure standing near the deceased though they could not identify the figure. Learned counsel for Appellant contends that if the said unidentified figure was somebody else, S other than the Appellant, it would be a case where the Prosecution has failed to prove the case beyond reasonable doubt. Learned counsel for Appellant contends that if the said unidentified figure was somebody else, S other than the Appellant, it would be a case where the Prosecution has failed to prove the case beyond reasonable doubt. However, if the Prosecution is able to prove, based on other surrounding circumstances and other evidences on record that the aforesaid figure seen near the deceased was none other than the Appellant,it can be said that the Prosecution has been able to prove the commission of the offence beyond reasonable doubt by the Appellant punishable under Section 302 IPC. 36. Accordingly, in view of above, this Court will revert back to evidences on record as to whether the Prosecution had been able to prove the charge against the Appellant beyond reasonable doubt. In this regard, we may examine evidences of the two girls viz., Ph. Saagarika Devi (PW No. 11) and Sh. Nirupama Devi (PW No. 13) who are the daughters and niece of the Appellant as well as Shri Ph. Brajagopal Sharma, husband of the deceased and elder brother of the Appellant. 37. It may be stated that all these witnesses were examined by the Investigating Officer in course of the investigation. They gave their statements under Section 161 Cr.P.C., 1973 Saagarika (P.W. No. 11) stated before the police that she also saw her father, Brajakishwor Sharma,the Appellant chopping her aunt Neena, the deceased with a dao. Thereafter, she felt unconscious. Similarly, Nirupama (PW No. 13) also stated before the police in her statement made under Section 161 Cr.P.C., 1973 that she saw her aunt cleaning utensils at the cleaning place of the backyard of the house by using a solar lamp and when she again went to the backyard, she saw her uncle Ph. Brajakishwor Sharma, the Appellant chopping her aunt Neena with a dao. For a second she thought that her uncle was killing a cat or rat, then suddenly she realised that her uncle was chopping her aunt Neena. She then shouted "MamoMamo". By then, Saagarika Devi, (P.W. No. 11) daughter of the Brajakishwor Sharma also screamed from behind by shouting "Mamo". Brajakishwor Sharma, the Appellant chopping her aunt Neena with a dao. For a second she thought that her uncle was killing a cat or rat, then suddenly she realised that her uncle was chopping her aunt Neena. She then shouted "MamoMamo". By then, Saagarika Devi, (P.W. No. 11) daughter of the Brajakishwor Sharma also screamed from behind by shouting "Mamo". Thereafter, her uncle Brajagopal Sharma, (P.W. No. 7) husband of the deceased ran out quickly and asked what had happened and he went near his wife and she also followed him and she was with her aunt, who was found with multiple injuries on the head, right arm, right side face, lower chin, etc. The police officer later arrested her uncle Brajakishwor Sharma and seized the dao which was used by her uncle in chopping her aunt. 38. It may be stated that these two witnesses also gave their statements before the Magistrate recorded under Section 164 Cr.P.C., 1973 In the statement made by Saagarika (PW No. 11) recorded under Section 164 Cr.P.C., 1973 she stated that she was giving her statement on her free will and wish and that there is no pressure or enticement at all from anybody. She stated that the "shradha" of her grandfather was performed on 11.04.2013 and one "utsav" was held on 30.04.2013. She stated that on 1st May, 2013 in the evening, they were playing ludo/dice along with her cousin sister Nirupama, (P.W. No. 13) daughter of her aunt Brajamohini Devi after having dinner. She stated that her aunt Neena had prepared the dinner. After preparing the dinner, her aunt Neena asked her father Brajakishwar Sharma, the Appellant to take dinner but he refused saying that he did not feel like having food and he remained in his bedroom but she did not know whether he had slept or not. After family dinner in the kitchen, she saw her uncle, her aunt Brajamohini Devi and Brajayenti Devi discussing about worshipping (Lai Khurumba). When she left from the backdoor of the kitchen she heard her cousin Nirupama shouting "Mamo Mamo". When she got out of the back door of the kitchen, she could see that her father Brajakishwor Sharma was hitting her aunt Neena. She thought that it was with an iron rod. She then felt unconscious and when she regained consciousness, she was lying in the bedroom of Nirupama Devi. When she got out of the back door of the kitchen, she could see that her father Brajakishwor Sharma was hitting her aunt Neena. She thought that it was with an iron rod. She then felt unconscious and when she regained consciousness, she was lying in the bedroom of Nirupama Devi. Later, she came to know that her father had been arrested by the police. 39. Similarly, Sh. Nirupama Devi, (PW No. 13) daughter of the Appellant's sister, Brajamohini Devi, also gave her statement recorded under Section 164 Cr.P.C., 1973 In her statement made before the Magistrate, she also stated that on 01.05.2013 at around 9:30 p.m after having dinner, her mother along with her uncle Brajagopal Sharma and aunt Brajayenti Devi were sitting in the house engaging in family talks. At that time, she did not see her uncle Brajakishwar Sharma with them but she believed that he was in his room. She stated that her uncle Brajakishwar Sharma drinks frequently and used to come home late though he occasionally scolds his children. She stated that at around 9:30 p.m of 01.05.2013 she was cleaning the dining table with a "nurra" and she when went outside through the kitchen door to wash the clothes "nurra" with which she was cleaning the dining table, she saw her aunty Neena cleaning utensils under the solar lamp at the backyard of the house where her uncle Brajakishwor Sharma lives. After washing the "nurra", she went into the kitchen, kept the cloth and went back out the same door to wash her hands. At that moment, she saw her uncle Brajagopal Sharma chopping with a big knife. However, she did not clearly see due to darkness but her reaction was that her uncle was chopping/killing a cat or a mouse. Then, suddenly, she realised that her aunty Neena was washing dishes at that very place with a solar lamp but she could not see her aunty Neena as the solar lamp had fallen down. She was shocked and frightened by such violent act of her uncle and she came rushing back inside calling loudly for her uncle Brajagopal Sharma who quickly rushed towards the place and when he reached the place he pulled up her aunty Neena and shouted for bringing clothes. She had also placed two clothes and saw the blood on the ground and a big knife left there. She had also placed two clothes and saw the blood on the ground and a big knife left there. She could not look at her aunty Neena. She panicked and ran back inside the house. After sometime, the police personnel came. 40. Thus, the aforesaid statement made by the two witnesses Saagarika Devi (P.W. No. 11) and Nirupama Devi (P.W. No. 13) clearly implicated the Appellant. Of course, the statements made under Section 161 Cr.P.C., 1973 by these two witnesses cannot be considered by this Court. As regards the statements made by the witnesses under Section 164 Cr.P.C , 1973could have been considered. However, it has been seen that both these two witnesses while making their testimony in the Court resile from their statements made under Section 164 Cr.P.C., 1973 where they claimed to have seen the Appellant chopping their aunty Neena on the fateful night. In course of their deposition in the Court, Saagarika stated that as she was rushing from the backdoor of the kitchen, she heard the loud cry of Neena but she did not know what she was saying. Then, she saw Neena, the deceased being hit by something which she could not see properly. Thereafter, she fainted and was unconscious. She thus, does not testify before the Court that she had seen her father Brajakishwor Sharma, the Appellant to have assaulted her aunty Neena. Accordingly, she was declared hostile witness and was allowed to be cross examined by the State. In the cross examination by the learned P.P., she stated that it is correct that she had given her statement before the Magistrate and recorded under Section 164 Cr.P.C., 1973 regarding the present case. She had also admitted that she had put her signature on the statement when it was shown to her, she could also identify the said statement along with her signatures when and the same was shown to her. She identified the signatures appearing on the 3 (three) pages statement. The attention was drawn to the portion of the statement which is marked "X" and which reads as, "When I look out the said back door I could see that my father Brajakishwor Sharma had hit my aunty 'Imachoubi Neena'. I thought that it was an iron rod". The witness was asked whether the said statement was correct or not. She replied that the statement marked as "X" was a false statement. I thought that it was an iron rod". The witness was asked whether the said statement was correct or not. She replied that the statement marked as "X" was a false statement. She however, stated that on the night of the occurrence, her father had not eaten his food and was staying inside his room and denied that she was giving false evidence before the Court in order to save her father. She admitted that at the late hour of the same night her father was arrested by the police. She also admitted that her father was arrested by the police on the accusation that he had assaulted her aunty, Neena Devi, as told by the police. 41. In the cross examination by the Defence she stated that she narrated the incident to the Judge in the Bishnupur Court as she had narrated before this Court and nothing more or nothing less. She stated that the Judge asked her to put her signature on the statement which was exhibited Ext. P/8 and she also stated that on being asked to put her signature by the Judge she had simply put her signatures without going through the contents of the statements of Ext. P/8. 42. Similarly, Nirupama (PW No. 13) also stated before the Court that, when she went out to the kitchen she heard the sound of a cat meowing and she saw one black figure like a man swinging something or somewhat like a stick. On seeing the situation, she got frightened and rushed back to the kitchen by calling out for her maternal uncle, Brajagopal Sharma. Then, her cousin sister Km. Ph. Saagarika Devi fell down unconscious. She also heard some noise/sound outside their kitchen. Thus, in her statement made before the Trial Court, she did not state what she had stated before the police under Section 161 Cr.P.C., 1973 and before the Judge recorded under Section 164 Cr.P.C., 1973 Accordingly, she was also declared hostile by the Prosecution and she was allowed to be cross examined by the Prosecution. In the cross examination by the learned Public Prosecutor, she admitted that the aforesaid statement exhibited as Ext. P/12 was the statement recorded by the Magistrate and she also admitted that the signatures appended therein was her signature. However, she did not know the contents of the said Ext. P/12 as she had not read it. In the cross examination by the learned Public Prosecutor, she admitted that the aforesaid statement exhibited as Ext. P/12 was the statement recorded by the Magistrate and she also admitted that the signatures appended therein was her signature. However, she did not know the contents of the said Ext. P/12 as she had not read it. During the cross examination by the Defence she stated that she along with Saagarika Devi were called inside the Chamber of the concerned Magistrate and the concerned Magistrate asked them about the incident and they had some conversation. Thereafter, the Magistrate wrote down on some papers and they were asked to sign on those papers and they put their signatures on those papers without knowing the contents of the papers of which, the Magistrate had written, and throughout the conversion with the concerned Magistrate, she along with her cousin were present together in the chamber of the concerned Magistrate and she also claimed that they did not have conversation with the concerned Magistrate separately. She also stated that before they had the conversion with the concerned Magistrate, a police officer was inside the chamber of the concerned Magistrate and perhaps the police officer might have had conversation with the concerned Magistrate about the incident. Thus, it is very clear from the testimony of these two witnesses before the Court that they had resile from their statements before the police as well as the Magistrate recorded under Section 164 Cr.P.C., 1973 Therefore, the question which arises for consideration before this Court is whether such recorded statements under Section 164 Cr.P.C., 1973 can be taken into consideration at all by this Court in the light of the witnesses resile from their statements? 43. It was in this context that this Court, requested Mr. A. Romenkumar to act as Amicus Curiae to submit on the law relevant to the admissibility of statement made under Section 164 Cr.P.C., 1973 when the witness resile from such statement in the Court. 44. Section 164 Cr.P.C , 1973provides for recording of confession and statement before any Judicial Magistrate at any time after ward before the announcement of the enquiry or trial as provided under section 2 of section 164 if the Magistrate is of the view that such statement is not made voluntarily, the Magistrate shall not record such confession. 44. Section 164 Cr.P.C , 1973provides for recording of confession and statement before any Judicial Magistrate at any time after ward before the announcement of the enquiry or trial as provided under section 2 of section 164 if the Magistrate is of the view that such statement is not made voluntarily, the Magistrate shall not record such confession. This statement made under Section 164 Cr.P.C , 1973is in contradistinction to the statement made under Section 161 Cr.P.C , 1973before the police during the course of the investigation.Statement made under Section 161 Cr.P.C., 1973 can not be used for any purpose during the trial except for the purpose of contradicting the witness in the manner provided under section 145 of the Indian Evidence Act and any part thereby may be used in the reexamination of such witness, but only for the purpose of explaining any matter referred to in his cross-examination. In other words, there is a general bar on the use of statement made under section 161 of Cr.P.C , 1973except for the situation contemplated as mentioned under Section 162 Cr.P.C., 1973 However, as far as any confessional statement made by an accused while in the custody of the police is concerned, there is also a complete bar on using such a confessional statement against the person under section 25 of Indian Evidence Act which provides that no confession made to the Police Officer shall be proved as against the person taking of the offence. 45. However, there is no such restriction on the use of the statement of the witness made under Section 164 Cr.P.C , 1973The issue is whether the statement made by any witness under Section 164 Cr.P.C , 1973can be used to prove any offence? As regard this issue, there are plethora of decisions in which it has been held that the statement made under Section 164 Cr.P.C , 1973can not be used as substantive evidence of the fact stated but can be used to support or challenge evidence given in the Court by the person who made the statement. See, Josh v. State of Kerela, AIR 1998 SC 1376 ; Ramkrishan v. Harmit Kaur, AIR 2017 SC 468. See, Josh v. State of Kerela, AIR 1998 SC 1376 ; Ramkrishan v. Harmit Kaur, AIR 2017 SC 468. In view of the above law, this Court is doubtful as to whether the statements made by PW-11 and PW-13 under Section 164 Cr.P.C , 1973that they had seen their father/uncle, the Appellant hitting their deceased aunt Neena can be taken into consideration for the purpose of establishing the guilt of the Appellant, as these two witnesses have resile from the statements recorded under Section 164 Cr.P.C., 1973 Saagarika Devi, PW-11 stated that she saw her father hitting her aunty is a false statement. Similarly, Nirupama Devi PW 13 also stated that she saw one black figure like a man swinging something or somewhat like a stick and she got frightened and rushed to the kitchen by calling her maternal uncle Brajagopal Sharma. She did not specifically mention or implicate the Appellant as she had done in her statement made under 164 Cr.P.C. She also claimed in the cross-examination that she did not know the contents of the statement (exhibit P-12) which was the statement recorded by the Magistrate under Section 164 Cr.P.C., 1973 She also stated that she put her signature on the paper without going through the contents. It may however, be noted that the aforesaid PW-13, Nirupama Devi did not specifically deny her statement made under Section 164 Cr.P.C , 1973that she saw her uncle chopping her aunt Neena with a big knife. 46. In view of the above aforesaid resile statements made before the Magistrate made under Section 164 Cr.P.C., 1973 this Court has to consider whether there are other evidences on the basis of which, it can be stated that the Prosecution has proved the offence beyond reasonable doubt. As already referred to above, there is a very crucial piece of evidence, that is the extra judicial statement. This is the statement made by the Appellant to his sister PW-2 Brajayenti Devi, while the Appellant was in the police custody which clearly implicated the Appellant that the aforesaid portion of the evidence as disposed by the PW-2 reads as follows :- "On 3/5/2014 I went to the Bishnupur P.S to meet my brother Brajakishore Sharma and I requested the then O.C., Rishikesh Sharma for meeting with my brother. Thereafter, with the permissions of the then O.C,, BPR. Thereafter, with the permissions of the then O.C,, BPR. I met my brother Brajakumar Sharma and I asked him why he had committed that act to his sister-in-law. Brajakumar Sharma replied that the deceased Neena Devi did not lookafter/taking care his father properly. I also told him that why had committed such serious act for that purpose and he replied that he had committing that act for not thinking properly." 47. The issue is whether the aforesaid statement which clearly implicated the Appellant can be used against the Appellant or not? However, if the aforesaid evidence can be construed to be confessional, it will be barred by section 26 of the Indian Evidence Act which provides that no confession made by any person while he is in custody of the Police Officer, unless it is made in the immediate presence of a Magistrate, shall be proved against such a person.Undisputed, the aforesaid statement was made to PW-2 while the Appellant was in the Police custody and not in the presence of a Magistrate. However, if the aforesaid statement is not considered to be confessional statement in that event, the bar placed by section 26 of the Evidence Act on such a statement made will not be operative and would be admissible as admissibility of only confessional statement is barred under Section 26.We, therefore, would examine this issue as to whether the statement is confessional statement or not? If it does not amount to confessional statement but a mere an admission, it may be admissible and can be proved under section 21 of the Indian Evidence Act. Only when an admission amounts to confession, its use is prohibited by section 26 of the Indian Evidence Act. We have then, to examine as to what admission or statement amounts to confession. It may be mentioned that neither the Evidence Act nor any other statute on criminal law defines what confession is. The Hon'ble Supreme Court in Palvindar Kaur v. State of Punjab, 1952 AIR SCC 354 dealt with this issue by referring to the earlier decision of the Privy Council in Pakala Narain Swami v. Emperor, AIR 1939 PC 47 wherein, it was held that the word "confession" as used in Evidence Act cannot be construed as meaning a statement by an accused suggesting the inference that he committed the crime. A confession must either admit in terms of the offence or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession. A statement that contains self exculpatory matter cannot amount to a confession, if the exculpatory statement is of the some fact, which if true would be negative offence alleged to be confession as held in Para 16 as follows :- "16. It was observed by their Lordships of the Privy Council in Pakala Narayana Swami v. Emperor, A.I.R. 1939 P.C. 47,that the word "confession" as used in the Evidence Act cannot be construed as meaning a statement by an accused suggesting the inference that he committed the crime. A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively, incriminating fact, is not of itself a confession. A statement that contains self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact, which if true, would negative the offence alleged to be confessed." 48. The Hon'ble Supreme Court again considered the issue as what amounts to confession in Aghnoo Nagesia v. State of Bihar, AIR 1966 SCC 119 by referring to the aforesaid decision in Narainaswami(Supra) and Palvindar Kaur(Supra) and held that confession may be defined as admission of offence by the person charged with the offence. A statement which contains exculpatory matter cannot amount to a confession, if the exculpatory statement is of the some fact which, if true, would negative the offence alleged to be confessed. If the admission of an accused is to be used against him, the whole of it should be tendered in evidence, and if part of the admission is exculpatory, and part inculpatory, prosecution is not at liberty to use of evidence part inculpatory,the prosecution is not at liberty to use the inculpatory part only. It was further held that a confession may consist of several parts and may reveal not only the actual commission of the crime but also the motive, preparation, opportunity, propagation, weapons used,intention, conceal of weapon and subsequent conduct of the accused. It was further held that a confession may consist of several parts and may reveal not only the actual commission of the crime but also the motive, preparation, opportunity, propagation, weapons used,intention, conceal of weapon and subsequent conduct of the accused. If the confession is tainted the taint attach to each part of it.It is not permissible in law to separate one part and to admit in evidence as a non confessional statement. 49. In the light of the aforesaid principle of law it is clearly evident that the statement made by the Appellant is to be treated as a confessional statement as he had admitted to have hit the deceased Neena as she was not taking care of his father properly.Since the said confessional statement made while he was in police custody and not in the presence of a Magistrate, even it is made to her relative, it is hit by section 26 of Indian Evidence Act and cannot be used against the Appellant. If the aforesaid evidences, namely, the statements made by the eye witnesses, No. PW-11 and PW 13 under Section 164 Cr.P.C , 1973which are clearly inculpatory,and the aforesaid extra judicial confession made by the Appellant to her sister-in-law and, PW-2 are removed from the evidence, the question is whether there are other evidences which can sustain the conviction. Thus, the success of the Prosecution in convicting the Appellant would depend on the other evidences. 50. The case of the Prosecution is that, it was the Appellant who had committed the murder. It was the Appellant who assaulted the deceased with a dao. It led to her death, since the eye witness accounts and extra judicial confession have been discounted from the evidence, what are the evidences to indicate the presence of the Appellant in the scene of the occurrence? In this regard, it may be mentioned that PW No-7,the husband of the deceased, stated that he saw a virtual image figure like a man standing nearby his wife. In this regard, it may be mentioned that PW No-7,the husband of the deceased, stated that he saw a virtual image figure like a man standing nearby his wife. Though he did not identify the image of the figure like a man, it may be noted that he nowhere stated that his brother did not commit the crime, though he was arrested by the police on the same day and he had mentioned of the possible involvement of his Appellant brother to the police personnel at the hospital and which was also mentioned in the complaint before the police. It may be noted that the said witness PW No.7 did not categorically state that it was not the Appellant who was seen standing near his wife. It is on record that the Appellant was very much present in the house complex where the incident took place. As evident from the sketch map of the place of occurrence, the room where the Appellant used to stay was located next to the kitchen where the incident had occurred. In other words, the room where the Appellant stayed was in close proximity to the place where the murder had occurred and was intervened only by the kitchen. It may also be noted that at the time of the occurrence at around 9.30 PM, the presence and activities of all the members of the household were accounted for. The Appellant, though was also in the house, his presence was not accounted for, as if he did not exist at all. As emerged from the evidences, the family consisted of two brothers, namely, Ph. Brajagopal PW No. 7 husband of the deceased and Ph. Brajkiswar Sharma, the Appellant and two sisters, namely Ph. Brajamohini Devi(PW-10), and elder sister, Ph. Brajenti Devi (PW-2) and Ph. Brajayenti Devi (PW-2). The other persons who were present on the date of the occurrence were Nirupama (PW No.13), daughter of Brajamohini Devi and Sagaarika (PW No. 11), daughter of Brajakishwar Sharma the Appellant, Salam Saratchandra, PW-5, husband of Ph. Brajayenti Devi sister of the Appellant and Bishorjit Sharma(PW-6), son of the Ph. Brajamohini Devi. In course of the investigation, it has been found that all these persons were present and identified at the relevant point of time and gave their statements. Brajayenti Devi sister of the Appellant and Bishorjit Sharma(PW-6), son of the Ph. Brajamohini Devi. In course of the investigation, it has been found that all these persons were present and identified at the relevant point of time and gave their statements. They were either meeting together in the room chatting in the room belonging to the house of the Brajamohini Devi or either they were playing Ludo, etc. PW No. 6, S. Bishorjit Sharma stated that at the time of the incident of assaulting of the deceased, the Appellant Brajakishwar Sharma was present in his house. Though the said Brajakishwar Sharma, Appellant was very much present in the house, nobody mentioned about what he was doing at the time of occurrence. Brajayenti (PW No. 2) mentioned that everyone except the Appellant was present at the time of the incident. As to what he was doing, there is no reference to it in the statements of the witnesses. S. Saratchandra (PW-5) only mentioned about the Appellant in his disposition in which he stated that while he was sitting on the verandah the Appellant, Brajakishwar Sharma saw him coming back and he called him to which the Appellant responded by calling him Dada(elder brother) and on seeing him stated that the Appellant seemed to be drunk and he went inside his room. He also stated that the deceased Neena Devi called the Appellant after dinner was prepared for having dinner but the Appellant replied that he will not have dinner. The other witnesses, namely, S. Bishorjit (PW-6) is one who mentioned about the Appellant and who stated that at the time of assaulting of deceased Neena Devi, the Appellant Brajakishwar Sharma was present in his house. He also stated that while the deceased Neena Devi was being given first aid at the back side of the house and preparations were being made for taking her at the hospital, the Appellant was not involved/participated. 51. Ph. Brajagopal Sharma PW-7, husband of the deceased did not make any reference as to what the Appellant was doing at the relevant point of time and at the time of the incident. Ph. 51. Ph. Brajagopal Sharma PW-7, husband of the deceased did not make any reference as to what the Appellant was doing at the relevant point of time and at the time of the incident. Ph. Brajamohini Devi, sister of the Appellant also did not make any reference to the presence of the Appellant immediately on prior to and after the incident, except for saying that he was not involved and that her younger brother Brajakishwar Sharma, the Appellant was arrested in connection with the said incident. The other witness, P. Sagaarika, PW-11 also in her disposition did not make reference to the presence or activities of the Appellant. Similarly Nirupama PW-13 also did not make any reference to the presence or activities of the Appellant. In other words, none of the household members and relatives of the deceased as well as the Appellant, did make any reference to his activities at the relevant point of time when the incident occurred, except for two witnesses PW-5 and PW-6. Both the PW-5 and PW-6 had categorically stated that the Appellant was present in the house when the incident occurred. Thus, the presence of the Appellant in the house when the incident occurred is proved. However, as mentioned by PW-6,strangely and quite inexplicably when such a crisis of serious proportion occurred in the family, the Appellant was not to be seen in the scene at all as mentioned by Bishorjit PW-6 as if he did not exist. He was not involved while the deceased was given first aid on the backside of the house nor when preparation was being made for taking her to the hospital or after being taken her to the hospital. It seems quite strange that a person who is a member of an apparently close knit family who had all gathered together on account of the first yearly death ceremony of their father, the Appellant was not at all involved nor participated in any of the hectic activities as evident from the evidences. All the male members, other than the Appellant were actively involved in trying to help the seriously injured Neena Devi and to secure her treatment by taking her to the hospital at Bishnupur and thereafter at Imphal. The Appellant, though was very much present in the house, was conspicuous by his absence in the midst of the family crisis. 52. All the male members, other than the Appellant were actively involved in trying to help the seriously injured Neena Devi and to secure her treatment by taking her to the hospital at Bishnupur and thereafter at Imphal. The Appellant, though was very much present in the house, was conspicuous by his absence in the midst of the family crisis. 52. Surprisingly, none of the witnesses who are relatives of the Appellant in their testimony have not adverted to any activities by the Appellant at that time, as if he did not exist. It is also quite strange that when the injured body of Neena Devi was being taken to the hospital, there seems to be no interaction, conversation amongst the male members as to who had caused the fatal injury to the said seriously injured person as if they either knew the identity of the assailant. It is not possible that they were least bothered about the identity of the assailant. When such a serious incident had taken place, naturally there would have been some discussion amongst the family members or persons nearby the scene of the occurrence, as to who could be responsible for such a crime. Strangely enough, there was no such discussion amongst the family members except for saying that the Appellant was arrested by the police on the allegation that he had killed the said deceased Neena Devi. It may also be noted that these family members are apparently well to do and well educated and not merely rustic villagers, who may not be highly conscious and aware of the surroundings and the circumstances. Ph. Brajayenti PW-2, the elder sister of the Appellant at the relevant time was serving as an Assistant Professor in the NCERT (NERIT), Shillong. She had come down to her parental house to attend the first monthly death anniversary of her father, Gauramohan Sharma. Ph. Brajagopal Sharma PW No. 7, elder brother of the Appellant is a Civil Engineer by profession at the relevant time and was posted at Power Grid Co-operation of India, Biharshar if and the deceased herself was serving as a primary teacher. Ph. Brajamohini, PW-10 was also serving as an Assistant Teacher in the Bishnupur High School, Government of Manipur. Salam Saratchandra PW-5 is the brother-in-law of the Appellant, married to her elder sister. The profession of PW-5 and PW-6 are not disclosed in their dispositions. Ph. Brajamohini, PW-10 was also serving as an Assistant Teacher in the Bishnupur High School, Government of Manipur. Salam Saratchandra PW-5 is the brother-in-law of the Appellant, married to her elder sister. The profession of PW-5 and PW-6 are not disclosed in their dispositions. From the above, it is quite apparent that the relatives of the Appellant and the deceased were well educated and relatively well placed in the society. Therefore, the stunning silence in their dispositions of the activities and role played by the Appellant prior to and at the time of the incident speaks volumes of the intention of these witnesses. They certainly seemed to have decided not to incriminate the Appellant. This view of the Court is also supported by the fact that two eye witnesses, Sagaarika PW-11 and Nirupama PW-13 who had earlier claimed to have seen the Appellant assaulting the deceased completely resile from their earlier statement simplicating the Appellant. It may be significant to note that none of these witnesses has categorically stated that the Appellant was not the one who assaulted the deceased. These witnesses seem to have decided to keep silent on who actually killed the deceased just to sane the Appellant. 53. However, silence on the part of the members of the family of the Appellant to speak out against him can not be the basis for drawing the inference that the Appellant was the one who was responsible for committing the crime. Fortunately, in the present case, incriminating evidences against the Appellant which clearly link the crime to the Appellant are present as already discussed above. The seizure of the blood stained weapon of crime (dao), recovery of the LED lamp from the place of occurrence with blood stains, aluminium tub, soil from the place of occurrence with the blood strains have been found to belong to the same blood group as that of the deceased. This common blood group "A" also matched with the blood group from the apparel worn by the Appellant which were seized from him after he was arrested. The T-shirt, trousers and underwear which were seized from the Appellant in the police station in the presence of witnesses were found to carry the blood belonging to the same group as that of the deceased. The seizure of the aforesaid incriminating articles/materials has been proved. The T-shirt, trousers and underwear which were seized from the Appellant in the police station in the presence of witnesses were found to carry the blood belonging to the same group as that of the deceased. The seizure of the aforesaid incriminating articles/materials has been proved. There has been total failure on the part of the Defence to explain how he got the blood strains on T-shirt, trousers and underwear, either by adducing evidence or through cross examination of the witnesses. The recovery and seizure of apparels worn by the Appellant with the blood stains bearing the same group as found on the weapon of the crime and other articles recovered from the place of occurrence with that of the deceased clearly link the crime to the Appellant. It is not the case of the Defence or anybody that the Appellant was nowhere near the place at the relevant point of time. In fact, as already mentioned by PW-5 and PW-6,the Appellant was very much in the house at the time when the incident occurred. 54. Though, the Defence had made a feeble attempt by suggesting that since the house where the incident occurred does not have a brick wall or fencing, anybody/on outsider could come and go without any hindrance. This suggestion itself cannot be said to create any reasonable doubt on the role of the Appellant in committing the said crime. The fact that the husband of the deceased and other family members are attempting to save the Appellant is clearly borne by the fact that even though the husband of the deceased, Ph. Brajagopal, PW-7 saw virtual image of figure like a man standing near surrounding, surprisingly and inexplicably, he did not make any attempt to find out the identity of the said male figure or raise any hue and cry to apprehend the person, which he could have done as other male members were available in the vicinity. The Appellant himself was not informed. His help could have also been taken along with other male members who were near the place of occurrence. The statement of the husband of the deceased, Brajagopal PW-7 is significant. The Appellant himself was not informed. His help could have also been taken along with other male members who were near the place of occurrence. The statement of the husband of the deceased, Brajagopal PW-7 is significant. During the cross examination, he clearly stated that it is possible that he might have stated the contents of Exhibit PW-6, which is the FIR wherein it has been clearly mentioned that his brother-in-law, PW-5, had told him that he saw his younger brother Ph. Brajakishwar Sharma, the Appellant who was holding a dao in his hand,injured his wife. In the same report, it was also mentioned that it was learnt that his younger brother had chopped the deceased by using a dao as mentioned above. Further, it may be also mentioned that S. Saratchandra PW-5, himself stated and deposed before the Court that he was present when the said Brajagopal PW-7 informed about the incident to the Police Station at Bishnupur District Hospital attached to the Bishnupur Police Station. At the time, Brajagopal PW-7 informed the police that the assault of Neena may have been caused by his brother, Brajakishore Sharma, the Appellant. Accordingly, the statement of the aforesaid two witnesses, S. Saratchandra PW-5 and Brajagopal PW-7, the husband of the deceased along with complaint/FIR corroborate the finding that the blood stains recovered from the place of occurrence, weapon of the claim and wearing apparels belong to the same blood group "A". Similarity of the blood group found in the seized articles and that blood group of the deceased cannot be mere Co-incidence. Therefore, the conclusion arrived by the Trial Court based on circumstances evidences can not be said to be untenable. In view of the above, this Court also hold that the following facts are established. (1) That the deceased Neena Devi died of shock and haemorrhage resulting from the multiple sharp injuries caused by a moderately sharp, heavy cutting weapon has also opined by the Medical Officer. (2) The weapon/dao used in the crime was recovered and seized at the instance of the Appellant and seizure of the weapon has been proved. (3) Injuries received by the deceased were caused by aforesaid weapon. (2) The weapon/dao used in the crime was recovered and seized at the instance of the Appellant and seizure of the weapon has been proved. (3) Injuries received by the deceased were caused by aforesaid weapon. (4) Blood stains found at the weapon of crime and other articles recovered from the place of occurrence matched with the blood group of the blood stains found on the apparels worn by the Appellant seized from the body of the appellant in the next morning of the incident by the Police. These matched with the blood group of the deceased. (5) The Appellant was seen within the proximity of the place of occurrence prior to the incident and was arrested by the police after the incident had occurred. He was not seen leaving or absent from the house at the time of occurrence. (6) There is no evidence on record either of the possibility of any other intruder or outsider coming inside the house and assaulting the deceased on that night. It may be noted that even assuming the suggestion of the Defence that there might be a possibility of an intruder entering the house assaulting the deceased, it was most unlikely that such assailant could run away from the place by leaving the weapon of crime near the place of the occurrence when he was seen by the husband of the deceased in a hazy manner as claimed. This theory of possibility of stranger assaulting put forth by the Defence, is too far fetched to be believed and is amere surmise without any shred of evidence, thus, it cannot throw any genuine doubt on the Prosecution version. (7) This Court is of the view that all the aforesaid evidences clearly forma chain linked properly which clearly pointed to the culpability of the Appellant to the exclusion of any hypothesis consistent with the innocence of the Appellant. All the evidences clearly point to the Appellant who had caused the death of the deceased by assaulting and by hitting with a dao on different parts of the body causing her to death. 55. Accordingly, for the reasons discussed above, we are of firm opinion that there is no merit in the appeal and is, accordingly, dismissed.