JUDGMENT : UJJAL BHUYAN, J. 1. This appeal has been preferred against the judgment and order dated 09.02.2011, passed by the learned Addl. Sessions Judge (FTC) No. 1 Kamrup, Guwahati in Sessions Case No. 161(K)/2004, convicting the appellant under Section 302 of the Indian Penal Code (IPC) where after, he was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/-, in default, to undergo simple imprisonment for a period of 1 year. 2. We have heard Mr. B. Chakraborty, learned counsel for the appellant and Mr. H. Sarma, learned Addl. Public Prosecutor, Assam. 3. One Mukuta Boro lodged a first information before the Officer-in-Charge, Hajo Police Station on 14.08.2000 at 9 p.m. stating that at around 12.30 p.m. on that day following a boundary dispute, the accused i.e., the appellant herein armed with sharp weapon had trespassed into the house of the informant, who thereafter chased and caused serious injuries to his father Golak Boro by stabbing him with a dagger carried by the accused resulting in the death of his father. It was mentioned that the accused had left the place of the occurrence after committing the murder. 4. The above first information was treated as FIR and on the basis of the same, Hajo PS Case No. 131/2000 was registered under Sections 447/302 IPC. 5. Police investigated the case and after completion of investigation, submitted charge sheet against the accused under Section 302 IPC. It being a case exclusively triable by the Court of Sessions, the concerned Judicial Magistrate at Hajo committed the case to the Court of Sessions, Kamrup at Guwahati for trial. 6. Learned Sessions Judge, Kamrup at Guwahati framed charge against the accused on 13.07.2006. The charge against the accused was that on 14.08.2000 at 12.30 p.m., he had committed murder by intentionally causing the death of Golak Boro. 7. When the charge was read over and explained to the accused, he pleaded not guilty and claimed to be tired. Thereafter, the case was transferred by the learned Sessions Judge to the Court of Addl. Sessions Judge (FTC) No. 1, Kamrup at Guwahati (trial court hereafter) for trial. 8. In the course of the trial, prosecution examined as many as eight witnesses, including the official witnesses. While the defence plea was that of denial, no evidence was adduced by the accused. 9. Sessions Judge (FTC) No. 1, Kamrup at Guwahati (trial court hereafter) for trial. 8. In the course of the trial, prosecution examined as many as eight witnesses, including the official witnesses. While the defence plea was that of denial, no evidence was adduced by the accused. 9. After hearing the matter, trial court convicted the accused as above vide the judgment and order dated 09.02.2011 where after, the accused was sentenced accordingly. 10. At the outset, it would be appropriate to advert to the evidence tendered by the prosecution witnesses. 11. PW-1 Smti. Ophi Bala Boro was the wife of the deceased and mother of the informant. She stated that she knew the accused. On the fateful afternoon when her husband had returned home after shopping, accused came to their courtyard and stabbed her husband in his abdomen with a dagger where after, he also stabbed her husband on his forehead. At the time of the occurrence, she was working in the courtyard. When she went near her husband, she found him dead. Her son Mukuta Boro i.e., the informant informed the police and police took away the dead body and also arrested the accused. 12. In her cross-examination, she stated that the incident took place at their courtyard and at that time, she was nearby. Four persons, namely, Puneswar Master, Madhab Master, Prabin and Kadami had witnessed the incident. She further stated that they did not put any resistance. She also stated that they did not have any dispute with the accused. She had seen the accused armed with dagger measuring one cubit. Her husband had brought lentils from the shop but he could not even enter the house. She admitted that they did not have visiting terms with the accused. 13. PW-2 was Smti. Moina Boro, daughter of the deceased and elder sister of the informant. She stated that accused Kanak Boro was her paternal uncle. He had stabbed her father when he had just reached the courtyard from the shop after buying lentils. Accused had stabbed her father in his abdomen and forehead with a dagger. She stated the she had witnessed the incident on her own. At that time, she was cooking rice inside her house. When she heard a commotion outside, she ran out and saw the accused stabbing her father. She could not resist because the accused was armed with a dagger. 14. She stated the she had witnessed the incident on her own. At that time, she was cooking rice inside her house. When she heard a commotion outside, she ran out and saw the accused stabbing her father. She could not resist because the accused was armed with a dagger. 14. In her cross-examination PW-2 stated that at the time of the occurrence, her mother was sitting inside the house. She further stated that from the kitchen the outside was not visible because the walls were plastered with mud. The courtyard was surrounded by trees and if somebody screamed in the house, the neighbours could hear such scream. She also stated that they raised hue and cry; some villagers, namely, Sikon, Kiron, Madhab Master, Bhugul Master, Prabin, Pramila and may others from the neighbourhood had turned up. She categorically stated that except her and her mother PW-1, nobody else had witnessed the incident. 15. PW-3 Shri Kubeswar Boro, who is a teacher and a neighbour, stated that on hearing commotion outside the house of the deceased, he came out of his house and found that the deceased was lying on the ground at his gate way. When he asked, wife of the deceased PW- 1 told him that following a dispute over boundary of their land accused had stabbed Golak Boro with a dagger. He saw blood oozing out of Golak Boro's dead body. When police questioned the accused, he produced the dagger by which he had committed the offence. After taking him away along with the dagger, police arrested the accused. 16. In his cross-examination, he stated that he saw the dead body near the place where the lane from the house of the deceased met the main road. He admitted that he had not witnessed the incident but had only heard about it. 17. Evidence of PW-4 Smti. Hiron Boro, a house wife of the neighbourhood was also on similar lines. She had heard about the incident from PW-1. PW-5 Smti. Rahini Boro, another house wife of the neighbourhood, deposed on similar lines stating that PW-1 had told her that accused killed her husband. 18. PW-6 Sri. Debeswar Das was the Police Officer who had submitted the charge sheet but the investigation was carried out by Ajmal Ali, PW-7. 19. Ajmal Ali deposed as PW-7. He stated that he was the Officer-in-Charge of Hajo Police Station on 14.08.2000. 18. PW-6 Sri. Debeswar Das was the Police Officer who had submitted the charge sheet but the investigation was carried out by Ajmal Ali, PW-7. 19. Ajmal Ali deposed as PW-7. He stated that he was the Officer-in-Charge of Hajo Police Station on 14.08.2000. On that day at about 1.45 p.m. one Ranjit Boro came to the police station and verbally informed him that accused had killed his brother Golak Boro over a land dispute. PW-7 made GD Entry No. 358, dated 14.08.2000 and rushed to the place of occurrence. House of the accused was surrounded by many people. On being called, accused came out of the house and confessed before PW-7 that he had killed Golak Boro. On further questioning, accused led PW-7 and showed the dagger under his sleeping cot where after, the dagger was seized vide Mat. Ext.1. Ext-1 was the seizure list. He exhibited the FIR as Ext-2. He held inquest over the dead body and Ext-3 was the inquest report. Several injury marks were found on the dead body which was sent to the Gauhati Medical College and Hospital for post mortem. He further stated that on that night, Sri. Mukuta Boro, son of the deceased had submitted written FIR i.e., Ext-2. 20. In his cross-examination, PW-7 stated that there were blood and mud stains over the wearing apparel of the deceased but PW-7 did not seize those wearing apparel. He also admitted that he did not mention in the seizure list as to whether there was any blood stain on the weapon of assault i.e., Mat. Ext-1. While the material exhibit was seized, Prabhat Ch. Kalita, Ranjit Boro and Mahiram Bora were witnesses and they had put their signatures to the seizure list Ext-1. 21. Dr. BC Roy Medhi deposed as PW-8. He stated that on 15.08.2000 he was working as Professor of Forensic Medicine in the Gauhati Medical College and Hospital. He had conducted the post mortem examination on the dead body of the deceased on 15.08.2000 at about 04.30 p.m. and found the following injuries: - "(1) One stab injury 3.5 x 2 c.m. present in front of chest x chest cavity deep 11 c.m. left from mid line and 6 c.m. above and left from left nipple. He had conducted the post mortem examination on the dead body of the deceased on 15.08.2000 at about 04.30 p.m. and found the following injuries: - "(1) One stab injury 3.5 x 2 c.m. present in front of chest x chest cavity deep 11 c.m. left from mid line and 6 c.m. above and left from left nipple. (2) One stab injury 3 x 2 c.m. x chest cavity deep in front of left chest 2 c.m. above left nipple and 8 c.m. left to mid line. (3) One stab injury 3 x 2 c.m. present in front of lateral side of abdominal wall 12 c.m. left from mid line and 7 c.m. above the anterior superior iliac spine. (4) One stab injury 2 c.m. x 1.5 c.m. on back of left chest wall 2 c.m. left from mid vertebral line and 14 c.m. below 7th cervical spine. (5) One semi circular cut injury present on right side of forehead 7 c.m. long from nasion to lateral end of right eye brow. The injury was muscle deep." Additionally he found second, third and fourth ribs were cut on the left side. The Pleura was cut along with stab injury. The plural cavity contained about 1.5 liter blood and the left lung was cut along the stab injury. He opined that the cause of death was hemorrhage and shock resulting from the injury sustained on the body as described by him. The injuries were ante mortem in nature and caused by long sharp cutting and pointed weapon. According to him, death was homicidal in nature. 22. In his examination under section 313 of the Criminal Procedure Code, 1973 (Cr.P.C.), accused denied the accusation made against him and stated that he did not commit any offence. He was falsely implicated out of grudge. He asserted that he was innocent and was in no way involved in the alleged offence. 23. We find from the paper book that when the accused was examined under Section 235(2) Cr.P.C., 1973 on sentence, which was recorded on 07.02.2011, accused had stated that he was 70 years of old which would mean that by now accused would be about 77 years old. 24. This was the evidence before the trial court. 25. 23. We find from the paper book that when the accused was examined under Section 235(2) Cr.P.C., 1973 on sentence, which was recorded on 07.02.2011, accused had stated that he was 70 years of old which would mean that by now accused would be about 77 years old. 24. This was the evidence before the trial court. 25. From the evidence of the doctor PW-8 as discussed above, it is evident that the deceased had sustained five penetrating wounds in the chest, abdomen and forehead. The above injuries also led to collateral damage in the form of cuts in the lung, ribs etc. According to PW-8, the above injuries were ante mortem in nature and were caused by long sharp cutting pointed weapon. Cause of death was hemorrhage and shock resulting from the injuries sustained by the deceased. He, therefore, opined that death of the deceased was homicidal in nature. 26. From the testimony of PW-8, there is no room for any doubt that death of the deceased was homicidal. In other words, deceased was killed, but the pertinent question is who killed the deceased or who had caused the death of the deceased by murder? 27. PW-1 was the wife of the deceased. She stated in her evidence that she was working in the courtyard when the incident took place. According to her, the accused had come to their courtyard and had stabbed her husband in his abdomen and forehead by a dagger. When she went near the husband, she found him dead. According to her, four persons, namely, Puneswar Master, Madhab Master, Prabin and Kadami had witnessed the incident but they did not put any resistance. When the husband was assaulted, he could not even enter the house. 28. Pausing here for a moment what we find is that in her evidence-in-chief, she had stated that the accused had come to their courtyard and had stabbed her husband in abdomen and forehead by a dagger and when she went near him, she found him dead. But in her cross-examination, she contradicted the above position by saying that when the incident took place, the husband could not even enter the house. According to her, she and four other persons, as named above, had witnessed the incident. She denied that her family had any dispute with the accused. 29. But in her cross-examination, she contradicted the above position by saying that when the incident took place, the husband could not even enter the house. According to her, she and four other persons, as named above, had witnessed the incident. She denied that her family had any dispute with the accused. 29. If indeed, Puneswar Master, Madhab Master, Prabin and Kadami had witnessed the incident, they were the best witnesses for the prosecution and they should have been presented before the trial court as witnesses, but from the evidence of PW-7, the Investigating Officer, it does not appear that police had recorded the statements of the above four persons under Section 161 Cr.P.C., 1973 Consequently, they were not presented before the trial court as prosecution witnesses. 30. We may now examine the testimony of PW-2 Smti. Moina Boro, the daughter of the deceased. According to her testimony, she was inside the house at the time of occurrence and was cooking rice. She stated in her evidence-in-chief that she had witnessed the incident on her own. Hearing a commotion outside the house, she rushed out of the house and found the accused stabbing her father. In her cross-examination, she stated that at the time of occurrence, her mother i.e., PW-1 was sitting inside the house. This directly contradicts the testimony of PW-1, who had stated that at the time of occurrence, she was working at the courtyard. PW-1 could not have been sitting inside the house and working at the courtyard at one and the same time. Proceeding with her cross-examination, PW-2 stated that from inside the kitchen, the outside was not visible. According to her, when she raised a hue and cry, many villagers, namely, Sikon, Kiron, Madhab Master, Bhugul Master, Prabin, Pramila and may others from the neighbourhood had turned up. She categorically stated that except her and her mother i.e., PW-2 and PW-1, none had witnessed the incident. This again clearly contradicts the testimony of PW-1, who had stated that Puneswar Master, Madhab Master, Prabin and Kadami had witnessed the incident. 31. She categorically stated that except her and her mother i.e., PW-2 and PW-1, none had witnessed the incident. This again clearly contradicts the testimony of PW-1, who had stated that Puneswar Master, Madhab Master, Prabin and Kadami had witnessed the incident. 31. At this point of time, we may refer to the evidence of the Investigating Officer PW-7, who stated that on 14.08.2000 at about 1.45 p.m. one Ranjit Boro had come to the police station and had verbally informed about the incident stating that the deceased was his brother and that accused killed his brother over a land dispute. Reverting back to the evidence of PW-2, she had categorically stated that the accused was her paternal uncle. In other words, accused and the deceased were brothers. This would also mean that Ranjit Boro was the brother of both the deceased and the accused. While PW-1 had stated that there was no dispute with the accused, according to Ranjit Boro, the incident took place because of a land dispute. Interestingly enough the said Sri. Ranjit Boro, on whose information GD Entry No. 358 was made on 14.08.2000, was not examined by the police and was not put up as a witness during the trial. This is a serious lapse on the part of the prosecution. Ranjit Boro is also conspicuous by his absence in the testimony of both PW-1 and PW-2. That apart, though the FIR was exhibited as Ext-2, the author of the FIR i.e., the informant was also not examined by the police and not put up as a witness. Informant Mukuta Boro was the son of the deceased. He had clearly stated that following a boundary dispute the accused had trespassed into their house and assaulted his father causing his death. Omission on the part of the investigating authority to record the statement of the informant and failure of the prosecution to present him as a witness has seriously dented the prosecution case. 32. What comes to the fore is a thoroughly inept investigation carried out by the investigating authority. Clothes worn by the deceased which were heavily stained with blood and mud were not seized and consequently, were not sent for forensic examination. Though the dagger was seized as Mat. Ext-1, it was not recorded in the seizure list whether there were any blood stains on the dagger. Clothes worn by the deceased which were heavily stained with blood and mud were not seized and consequently, were not sent for forensic examination. Though the dagger was seized as Mat. Ext-1, it was not recorded in the seizure list whether there were any blood stains on the dagger. The dagger was also not sent for forensic examination. It was essential to find out whether there were blood stains on the dagger; whether blood stains were that of human; if human, whether blood stains matched the blood stains in the wearing apparel of the deceased. At this stage, we may mention that blood samples of the deceased were also not collected and sent for forensic examination. That apart and most crucially, the seizure witnesses i.e., witnesses of Ext-1, namely, Prabhat Ch. Kalita, Ranjit Boro and Mahiram Bora were not examined. Therefore, the seizure itself was not proved. In addition to the above, we notice the material discrepancies and contradictions in the evidence of PW-1 and PW-2 who had pointed fingers towards the accused. From the evidence on record, it has come to light that there was a land dispute between the accused and the deceased, who were brothers. 33. In the above scenario, false implication cannot be ruled out though involvement of the accused in the incident is also distinctly possible but on the basis of the materials on record, it is difficult to pinpoint and come to a definitive conclusion that it was only the accused and none else who had committed the murder of the deceased. As already discussed above, crucial material discrepancies and contradictions have seriously eroded the credibility of the evidence tendered by PW-1 and PW-2. Failure to examine Ranjit Boro and Mukuta Boro has made the prosecution case extremely fragile. 34. In view of poor quality of investigation, inadequacy of the prosecution coupled with vital inconsistencies in the evidence of PW-1 and PW-2, we are of the opinion that it will not be safe to hold that it was the accused and accused alone who had caused the murder of the deceased. It is well settled that in a criminal trial, to convict an accused and thereafter to sustain such conviction, the charge against the accused must be proved beyond all reasonable doubt. We are afraid that is not the case here. It is well settled that in a criminal trial, to convict an accused and thereafter to sustain such conviction, the charge against the accused must be proved beyond all reasonable doubt. We are afraid that is not the case here. In such circumstances, we are of the view that appellant is entitled to be acquitted by giving him the benefit of doubt. 35. Consequently, we set aside the judgment and order dated 09.02.2011 and acquit the appellant by giving him the benefit of doubt. Appellant shall be released forthwith, unless his detention is required for some other offence. 36. In so far victim compensation under section 357A Cr.P.C., 1973 is concerned, the matter may be forwarded to the Assam State Legal Services Authority for doing the needful. 37. Criminal appeal is accordingly allowed. 38. Registry to send down the LCR forthwith.