JUDGMENT : MD. MUMTAZ KHAN, J. 1. This appeal has been preferred by the appellant assailing the order of conviction dated January 21, 2004 and sentence dated January 22, 2004 passed by the learned Additional Sessions Judge, Durgapur in Sessions Trial No. 18 of 2002 arising out of Sessions Case No. 40 of 2001. 2. By virtue of the impugned judgment appellant was convicted for commission of the offence punishable under Sections 302/323 of the Indian Penal Code (hereinafter referred to as IPC) and was sentenced to suffer imprisonment of life with a fine of Rs. 2000/- in default to undergo rigorous imprisonment for two years for the offence under Section 302 IPC and to suffer imprisonment for one year and fine of Rs. 500/- in default to suffer rigorous imprisonment for six month for the offence under Section 323 IPC with a direction that both the sentences were to run concurrently with usual set off under Section 428 of the Code of Criminal Procedure (hereinafter referred to Cr.P.C.). 3. On September 20, 2000 at about 4.10 a.m., on hearing screaming of his parents when P.W.1 came out of his room to see what had happened he saw his father (Monsa Murmu) lying in their lawn bleeding from his head and left hand and mother having bleeding injury on her head. On being asked they told him that the appellant had caused those injuries with a 'Saval'. At that time P.W.1 heard cries of his wife who was coming out of the room telling that the appellant had hit her on her head with an 'Saval'. He then rushed there, then appellant hit him on his head causing bleeding injury there from. P.W.1 then snatched the 'Saval' from the appellant and hit him on his hands and legs as a result of which appellant fell down. He then tied the appellant with a rope. 4. Hearing their cries local people came running there and on their interrogation appellant told them that he came there after killing his wife and daughters. On hearing this, P.W.1 and other local people went to the house of the appellant and saw his wife Pati Teli and daughters named Laxmi Teli, aged about 12 years and Manju Teli, aged about 6/7 years lying dead on bed having injuries of their head. They then detained the appellant and lodged the complaint which was scribed by P.W2. On hearing this, P.W.1 and other local people went to the house of the appellant and saw his wife Pati Teli and daughters named Laxmi Teli, aged about 12 years and Manju Teli, aged about 6/7 years lying dead on bed having injuries of their head. They then detained the appellant and lodged the complaint which was scribed by P.W2. 5. On the basis of the above complaint of P.W.1, P.W.8 started Andal P.S. Case No. 176/2000 dated September 21, 2000 against the appellant. P.W.10 took up investigation of the case. On the same date P.W.10 held inquest over the dead body of Pati Teli, Laxmi Teli and Manju Teli at their house and prepared inquest reports (Ext. 4/2, Ext.5/2 and Ext. 6/2) and thereafter sent the dead bodies for post mortem examination. P.W.10 also seized one 'Saval' by a seizure list (Ext. 2/2). He also seized some blood stained earth, controlled earth, blood stained wearing apparels by another seizure list (Ext. 3/2). P.W.7 conducted post mortem examination over the dead bodies of deceased Pati Teli, Manju Teli and Laxmi Teli in connection with Andal P.S. Case No. 61/2000 dated September 21, 2000 and during examination he found they had head injuries which were ante mortem in nature and opined that their death was due to cardiac respiratory failure. After postmortem examination he prepared PM reports (Ext.7, Ext.8 and Ext.9). P.W.11 who took up further investigation of case due to transfer of P.W.10 and on completion of investigation submitted charge sheet against the appellant under Section 302/326 IPC. 6. On February 21, 2002 charges under Sections 302/326 of the IPC were framed against the appellant and after he denied his involvement in the crime, trial commenced. 7. Prosecution in order to prove the case examined 11 witnesses and also produced and proved the FIR, seizure list, rough sketch map with index, inquest reports, PM reports etc and thereafter on conclusion of trial after examination the appellant under Section 313 Cr.P.C., learned Trial Judge passed the impugned judgment. 8. Ms. 7. Prosecution in order to prove the case examined 11 witnesses and also produced and proved the FIR, seizure list, rough sketch map with index, inquest reports, PM reports etc and thereafter on conclusion of trial after examination the appellant under Section 313 Cr.P.C., learned Trial Judge passed the impugned judgment. 8. Ms. Trina Mitra, learned amicus curiae appointed by the Court to argue the case on behalf of the appellant submitted that the impugned judgment, order of conviction and sentence are not sustainable in law as the case of the prosecution has not been supported by any independent witness, FIR was drafted as per instruction of police, injury reports reportedly seized were not produced during trial nor was the seized weapon produced extra, judicial confession reportedly made by the appellant was also not proved, prosecution also failed to prove any motive. 9. According to learned amicus curiae prosecution has failed to prove the charges against the appellant beyond shadow of doubt. 10. Mrs. Sujata Das, learned advocate appearing for the State submitted that the case relating to death of the wife and children of the appellant is based on extra judicial confession of the appellant which has been proved by prosecution witnesses P.W.3, P.W.4 and nothing was brought out from their evidence to cast any shadow of doubt. She also submitted that appellant was caught by P.W.1 when after assaulting the parents and wife of P.W.1 also assaulted P.W.1 and accordingly he was tied with a rope. According to Mrs. Das prosecution has been able to prove the charges against the appellant. 11. We have considered the submissions of the learned counsels appearing for the respective parties and given our thoughtful consideration to the evidence and the materials on record to consider the propriety of the impugned judgment and order passed by the learned trial judge. 12. According to Mrs. Das prosecution has been able to prove the charges against the appellant. 11. We have considered the submissions of the learned counsels appearing for the respective parties and given our thoughtful consideration to the evidence and the materials on record to consider the propriety of the impugned judgment and order passed by the learned trial judge. 12. Learned trial judge took into consideration the evidences of P.W.1, P.W.2, P.W.3 and P.W.4 besides the evidences of doctor and the investigating officer to arrive at the conclusion that prosecution has been able to prove the extra judicial confession of the appellant and from the circumstances and extra-judicial confession it was evident that it was the appellant who committed murder of his wife and minor daughters and also caused injuries on the person of the complainant, his wife and parents and prosecution has been able to prove the charge under Sections 302/323 IPC against the appellant and accordingly passed the impugned judgment. 13. The death of the victims Pati Teli, Laxmi Teli and Manju Teli due to cardiac respiratory failure on account of head injuries was not in dispute. P.W.7, the doctor also during post mortem examination on September 21, 2000 over the dead body of Pati Teli found multiple head injuries which were ante mortem in nature and opined that the death was due to cardiac respiratory failure and that such injuries may be caused by sharp cutting weapon like 'Saval'. On the same day he also conducted post mortem examination over the dead bodies of Laxmi Teli and Manju Teli and found head injuries which were ante mortem in nature and opined that their death was due to cardiac respiratory failure. 14. Admittedly, none of the witnesses examined by the prosecution was a witness to the occurrence of the first incident of causing death of Pati Teli, Laxmi Teli, Manju Teli and the entire case relating to their death is based on the extra judicial confession. 15. In the matter of acceptability of extra-judicial confession it is well settled that if such extra-judicial confession is made voluntary and in a fit state of mind and the evidence of extra-judicial confession is reliable, trustworthy and beyond reproach and passes the touchstone of credibility it can be accepted and can be the basis of a conviction. 16. 15. In the matter of acceptability of extra-judicial confession it is well settled that if such extra-judicial confession is made voluntary and in a fit state of mind and the evidence of extra-judicial confession is reliable, trustworthy and beyond reproach and passes the touchstone of credibility it can be accepted and can be the basis of a conviction. 16. To prove the same prosecution has relied on the evidence of P.W.3 and P.W.4, mother and wife respectively of the complainant. 17. According to P.W.3, on the relevant morning at 4 a.m. appellant came to her house, called her and when she came out appellant assaulted her with a 'Sabal' on her head. On hearing her cries when her husband came, he was also assaulted by appellant by a 'Sabal' on his head as a result her husband fell down on the ground. On hearing cries when her son and his wife Malati Murmu came there, appellant assaulted her with a 'Sabal' on her head and when her son went there appellant also assaulted him with 'Sabal' on his head but somehow he managed to catch hold the appellant and tied him with a rope. Many people assembled there and then appellant confessed before the public that he had killed his wife and two daughters. 18. According to P.W.4 also on the relevant night appellant assaulted her, her father-in-law, mother-in-law and husband by a 'Sabal' on their head. Appellant was then apprehended by her husband who tied him with a rope and then appellant confessed in their presence that he had killed his wife and two daughters. 19. Interestingly, the above claim of P.W.3 and P.W.4 did not find support either from the defacto-complainant (P.W.1) who apprehended the appellant or any person of the locality before whom appellant reportedly made extra-judicial confession, not even the I.O. They have also not spelt out what were the exact words uttered by the appellant. Inquests over the dead bodies were held by P.W.10 in presence of P.W.5, P.W.6 and others. Story of extra-judicial confession figured in the inquest reports. But during examination before court neither of them has corroborated the same. They were even not declared hostile by the prosecution rather prosecution relied on their evidence. P.W.3 and P.W.4 are no doubt interested witnesses. Inquests over the dead bodies were held by P.W.10 in presence of P.W.5, P.W.6 and others. Story of extra-judicial confession figured in the inquest reports. But during examination before court neither of them has corroborated the same. They were even not declared hostile by the prosecution rather prosecution relied on their evidence. P.W.3 and P.W.4 are no doubt interested witnesses. Under the circumstances, the evidence of P.W.3 and P.W.4 with regard to extrajudicial confession does not appear to be reliable and trustworthy and as such story of extra-judicial confession can not be accepted. 20. With regard to the incident of assault and sustaining injuries on the person of the defacto-complainant, his wife and parents due to assault by appellant, we find from the record that not a single injury report/medical paper was produced nor any doctor was examined by the prosecution though reportedly all of them sustained bleeding injuries on their head due assault with a 'Sabal' and reportedly received treatment in the hospital. The story of assault and sustaining bleeding injury by the defacto complainant, his wife and his parents do not find corroboration by any medical evidence, not even by any independent witness of the village. P.W.5 and P.W.6 also did not support the above claim of the defacto-complainant. Even 'Sabal' in question used in the commission of the offence though seized was not produced during trial for identification. To add further, factum of seizure of 'Sabal' from the possession of the appellant was also not corroborated by the witnesses to the reported seizure namely P.W.5 and P.W.6. P.W.10 has deposed that he seized the 'Saval' from the hand of the appellant but the seizure list (Ext.2/2) shows such seizure from P.W.1. 21. Admittedly, P.W.1 did not see to assault his parents nor P.W.4 saw the same. P.W.1, his mother P.W.3 and wife P.W.4 have admitted during cross-examination that it was dark night and at the relevant time there was no electric light at the place of occurrence. There is no evidence on record with regard to the source of light by which they could be able to identify the assailant. According to P.W.3 they had good relation with the appellant. Nothing was brought on record to show the motive behind such assault. P.W.1 has deposed that his maternal uncle wrote the FIR when he came in the evening. According to P.W.3 they had good relation with the appellant. Nothing was brought on record to show the motive behind such assault. P.W.1 has deposed that his maternal uncle wrote the FIR when he came in the evening. P.W.2, the scribe, during cross-examination admitted that he wrote the FIR at the P.S. as per instruction of police and it was not known to him who assaulted whom in the alleged incident. According to I.O.'s own version he did not examine the neighboring house owners. 22. Thus we find that the incident of assault by ‘sabal’ and sustaining bleeding injuries on the head of P.W.1, his wife and his parents did not find corroboration by any medical evidence or from any independent persons of the locality. Admittedly, it was a dark night and there was no whisper of any source of light. Factum of seizure of arm in question from the possession of the appellant did not find support from the seizure witnesses and even the seizure list shows seizure from P.W.1. No such seized articles were produced during trial nor sent to the FSL. FIR was written at the P.S. as per instruction of police. Motive was also not proved. 23. The learned trial judge did not take into consideration the above facts and circumstances. 24. Having considered the entire evidence before us, we are not satisfied about credibility of these 3 witnesses (P.W.1, P.W.3 and P.W.4) and their evidence leaves an element of doubt in our mind. 25. Therefore, considering the entire facts and circumstances and the evidence on record together with the discussions and observations made hereinabove, we have no hesitation to come to the conclusion that prosecution has failed to prove the commission of offence by the appellant beyond reasonable doubt and as such the conviction of the appellant cannot be sustained. 26. We accordingly set aside the conviction and sentence of the appellant and acquit him of the charges levelled against him. He be released forthwith from custody, if his detention is not required in any other case. 27. The appeal is allowed accordingly. 28. Copy of this judgment along with the lower court records be sent down to the trial court expeditiously. 29. Urgent photostat certified copy of this judgment, if applied for, be given to the parties expeditiously upon compliance with the necessary formalities in this regard. Jay Sengupta, J. - I agree