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2019 DIGILAW 1379 (GAU)

Tasok Hari v. State of Arunachal Pradesh

2019-12-20

HITESH KUMAR SARMA, PRASANTA KUMAR DEKA

body2019
JUDGMENT : Hitesh Kumar Sarma, J. 1. This is an appeal under Section 374 of the Cr.PC against the judgment and order, dated 15.01.2019, passed by the learned Additional Sessions Judge, West Sessions Division, Basar, in Sessions Case No. 48/2017, convicting the accused-appellant, and sentencing him to undergo rigorous imprisonment for life and to pay a fine of Rs. 2,000/- with a default clause under Section 302 of the IPC. 2. An FIR was lodged on 23.09.2015, by Sri Lilung Chaber (PW 1), with the officer-incharge, Nacho Police Station to the effect that, on 20.9.2015, one Sri Tasok Hari (hereinafter referred to as "A2") and Sri Shiv Narayan Karmakar (hereinafter referred to as"A1"), killed his hand sawer Sol Telenga without any reason. 3. On perusal of the entire materials on record, it has come out that the deceased was killed at a place called Taksing. This place of occurrence is about 100 km away from the police station. On being informed by the PW 3 and PW 4 about discovery of a dead body, in the absence of the Circle Officer, his Political Interpreter (PW 6) gave an announcement through loud speaker to indentify the dead body. The dead body was ultimately identified to be of the deceased Sol Telenga. 4. After completion of investigation, the investigating police officer laid charge-sheet for offence under Sections 302/34 of the Indian Penal Code against both A1 & A2. In due course, after exhausting all required formalities, the learned Additional Sessions Judge, Basar framed a formal charge against both the accused persons under Sections 302/34 of the IPC. They pleaded innocence to the charge while explained to them. Therefore, the trial commenced. 5. The prosecution examined as many as 11 (eleven) witnesses, who are, except PW 3 and PW 4, cross-examined by the defence. After closure of the prosecution evidence, the statements of the accused persons were recorded under Section 313 of the Cr.PC. The accused-appellant, Tasok Hari (A2) admitted that he along with the co-accused (A1) and the deceased left the home of PW 5 together in the evening of 20.9.2015, stating further that it was the co-accused person (A1) who had killed the deceased. Similarly, A1 stated that although he had admitted committing murder of the deceased while arrested, out of fear of the co-accused (A2) Tasok Hari, yet, in fact, the deceased was murdered by the co-accused (A2) Tasok Hari. Similarly, A1 stated that although he had admitted committing murder of the deceased while arrested, out of fear of the co-accused (A2) Tasok Hari, yet, in fact, the deceased was murdered by the co-accused (A2) Tasok Hari. The accused persons examined themselves and another as defence witnesses in support of their respective plea. 6. We have heard Mr. M. Partin, learned Senior Counsel for the appellants and learned Additional Public Prosecutor, Ms. L. Hage for the state respondent. We have also perused the records of the learned trial court, the judgment appealed against and the evidence on record. 7. For convenience, we have first examined the evidence of the Autopsy doctor, PW 8. It has come out from his evidence that on the direction of the Deputy Commissioner, the Circle Officer/Executive Magistrate, disinterred the dead body of the deceased on 9.11.2015 and on that day itself the postmortem examination was done. On postmortem examination, he found as follows. "I. External appearance;- 1. Condition of subject, stout emaciated decomposed etc.:- Semi decomposed found inhumed covered with green plastic and wrapped in purple bed sheet whose height 5 3" and dark in colour wear army dress shirt inside brown T-shirt, blue trouser and brown innerwear. Head extended with north open, both knee flexed right hand flexed. And left hand extended. 2. Wounds-position size and character:- Incised wound (5 X 1 cm) on dorsum of left hand cutting proximal phalange of middle finger and middle metacarpal bone. 3. Mark of Ligature on Neck Dissection etc.: Incised wound (3 X 2 cm) on the front of neck transversely flexed. II. Cranium and Spinal Canal: 1. Scalp, skull, Vertebrae: Scalp developed adipocerous, soft, moist and greasy hairs are loose. III. Thorax: 1. Larynx and Tracheae: was cut above the level of thyroid notch. 2. Right lung: small, soft and black in colour. 3. Left lung: small, soft and black in colour. 4. Vessels: Jugular vein cut. IV. Muscles, bone vein joint: 1. Fracture: Fracture of left middle proximal phalange and middle metacarpal bones." In his cross-examination, he has admitted that the postmortem of the dead body was conducted almost one and a half month after the death of the deceased and the dead body was disinterred. However, on 5.10.2015, he was asked to perform the postmortem examination by an order of District Medical Officer (DMO), Daporijo. However, on 5.10.2015, he was asked to perform the postmortem examination by an order of District Medical Officer (DMO), Daporijo. But, on his request, the investigating officer told him that as he was busy otherwise, he would intimate him the date and time of exhumation of the dead body. Accordingly, on 9.11.2015, the dead body was exhumed and then postmortem examination was performed. He also opined that the death of the deceased was due to asphyxia and hemorrhage produced by sharp cut injury to neck vessel and larynx. He has further disposed, in his cross-examination, that it was difficult to ascertain the date and the time of the deceased as well as the age of the wounds found on the dead body of the deceased. He has also clarified, in his cross-examination, that as per information given to police, the deceased died on 20.9.2015. 8. Therefore, it appears from the evidence of PW 8 that the deceased died due to injury sustained by him and the cause of death is due to asphyxia and hemorrhage produced by sharp cut injury to neck vessel and larynx. Such evidence shows that the death of the deceased was homicidal in nature. 9. Now, the question needs to be answered is as to who had committed the murder of the deceased. 10. The evidence of PW 1 (informant) is that the A2 is the son of his younger sister. The deceased was working under him as labourer and A1 was working under A2 as labourer. The deceased was on leave with intimation to him from 17.9.2015. On 21.9.2015, he came to know from PW 2 (Sri Potom Enium) that the deceased was killed and his dead body was lying on the road at Taksing. On enquiry, he came to know that the deceased was last seen with both the accused persons (A1 & A2). He met both the accused persons and told them to accompany him to the office of the Circle Officer where they met the Political Interpreter of the Circle Officer, Sri Takia Bai (PW 6). The A1 admitted before PW 6 that he had killed the deceased. Thereafter, A1 was arrested by PW 6 and handed over to Nacho Police Station. The dead body was buried by PW 1, 2, 6 & one Yako Enium (not examined as witness). The A1 admitted before PW 6 that he had killed the deceased. Thereafter, A1 was arrested by PW 6 and handed over to Nacho Police Station. The dead body was buried by PW 1, 2, 6 & one Yako Enium (not examined as witness). There are several injury marks noticed on the dead body of the deceased by PW 1. Thereafter, he came to know from the Nacho Police Station that the wrong person was arrested and that the offence was committed by A2 only. At the instance of Nacho Police Station, this PW 1 lodged the FIR, vide Ext. 1. 11. The evidence of PW 2 is that himself and PW 1 identified the dead body. He also stated that on his enquiry he came to know that the deceased was last seen with A1. He also supported the evidence that the PW 1 and himself went to the house of A2 and brought the accused persons to PW 6, and thereafter, A1 was arrested. 12. The evidence of PW 3 & 4 is to the effect that on a day, in the month of September, 2015, in the early morning at about 4:00 am, both of them had seen one dead body, and accordingly, informed PW 6. 13. It has come out from the evidence of PW 5 that one evening both the accused persons (A1 & A2) and the deceased along with one Sri Sakti Hari (PW 7) came to his house at Taksing, stayed with him for about one hour and at around 6:00 pm, all of them left his house. Next morning at around 5:00 am, PW 6 announced that one dead body was found. His further evidence is in cross that the A1 and the deceased came to his house and, after sometime, A2 and PW 7, came there and A2 told A1 and the deceased to accompany him to his house. Accordingly, they accompanied him and went out of his (PW 5) house. Next morning, he came to know about the death of the deceased. In his cross-examination, he is heard saying that he did not see the A2 carrying a dao. 14. The evidence of PW 6 is that, on 20.9.2015 at around 4:00 to 5:00 am, PW 3 & PW 4 knocked his door and told him that a dead body was lying on the road. In his cross-examination, he is heard saying that he did not see the A2 carrying a dao. 14. The evidence of PW 6 is that, on 20.9.2015 at around 4:00 to 5:00 am, PW 3 & PW 4 knocked his door and told him that a dead body was lying on the road. He announced the said fact in load speaker for the purpose of identification of the dead body. The wife of PW 2 identified the dead body. He noticed cut injuries on the neck and hand of the dead body of the deceased. Thereafter, at about 10:00 to 11:00 am, both A1 and A2 were brought to his office by PW 1 & PW 2 and the A1 admitted that he had killed the deceased. Thereafter this witness informed this fact to the Nacho Police Station and the investigating officer (PW 11) arrested A1. This witness also deposed in his cross-examination that his mother and the mother of A2 are sisters. Supporting the evidence of PW 1 & PW 2, this witness stated that he along with the PW 1 & PW 2 buried the dead body of the deceased. 15. PW 7 deposed that on a day, in the year 2015, while he was playing carom with A2, PW 2 told A2 to take A1 with him to his house as he was drinking in the residence of Kumar Cherry (PW 5). While this witness accompanied A2 to the residence of PW 7, he found A1 and the deceased were drinking alcohol. A2, Tasok Hari, then told A1, Shiv Narayan Karmakar, to accompany him. Then, A1 told A2 to take the deceased also with them as he was drunk. Accordingly, all of them came out of the house of PW 7 and proceeded towards Yaja village. On the midway, he (PW 1) went back to his own house and both the accused persons (A1 & A2) and the deceased proceeded further. Next morning, he came to know that the deceased died. He also deposed that A2 was not carrying a dao at that time. The A1 admitted that he had killed the deceased because the deceased injured him earlier with a dao on the right side of his stomach. He also deposed that while A1 admitted to have committed the offence, nobody was present near him. 16. He also deposed that A2 was not carrying a dao at that time. The A1 admitted that he had killed the deceased because the deceased injured him earlier with a dao on the right side of his stomach. He also deposed that while A1 admitted to have committed the offence, nobody was present near him. 16. The evidence of PW 9 (a police constable) is to the effect that, on 10.11.2015 at about 0600 hours, while he was on duty with the investigating officer (PW 11), one dao was recovered from the residence of the A2 in his presence and the same was seized vide Ext. 6. He proved the same in the court as M.Ext. 13. In his cross-examination, this witness has stated that M.Ext. 13 was kept hidden in the house of A2 and the same was taken out from his house and handed over to the investigating officer. 17. PW 10 is a formal witness. He deposed that on being ordered by the Deputy Commissioner on 29.9.2015 he conducted exhumation of the dead body of the deceased. He also issued an order on 9.11.2015 for performing the exhumation. He proved the order for exhumation and the photographs of the deceased taken at the time of exhumation. 18. PW 11 is the investigating officer. He deposed from the stage of receiving the FIR till completion of investigation of the case. While A1 was being taken to the police station, he met them on the way and formally arrested A1 at the police station. According to him, A1 disclosed that the co-accused A2 had killed the deceased and he (A1) was compelled under threat to confess that he had killed the deceased. He also narrated about performing the postmortem examination as well as seizure of the weapon of offence i.e. the dao from A2. He also stated that vide Ext. 7, the confessional statement of A1 was recorded by the learned Magistrate. However, during his cross-examination, this PW 11 (Investigating Officer) clearly stated that the A1 did not commit murder of the deceased. He also deposed that from the statement of PW 1 that he came to know about the involvement of A2. A1 told them that he did not kill the deceased and that A2 had killed the deceased. 19. However, during his cross-examination, this PW 11 (Investigating Officer) clearly stated that the A1 did not commit murder of the deceased. He also deposed that from the statement of PW 1 that he came to know about the involvement of A2. A1 told them that he did not kill the deceased and that A2 had killed the deceased. 19. On reading paragraphs-28 & 29 of the impugned judgment, it is found by this court that the learned trial court has taken the following as circumstances to hold that it was none but A2 who had committed the murder of the deceased. i. That, the PW 7 entrusted A2 with the responsibility of taking A1 and the deceased with him from the house of PW 5 and A2 took A1 and the deceased to his house from the house of PW 5. ii. That, the deceased was on the way to Yaja village with both A1 & A2. iii. That, the defence evidence of A2 that he left A1 and the deceased midway had intention to take A1 and the deceased with him. iv. That, A2 has not given any cogent reason or explanation for leaving the A1 and the deceased midway and thereafter travelled alone 9 kms to reach his home. v. That, the failure on the part of A2 to explain as to why he left the deceased and A1 on the way draws an adverse inference that he had killed the deceased and did not carry the dead body with him. vi. That, both A1 and A2 were last seen together. However, apart from the above circumstances, the learned court below also relied upon the admission of A2 as DW 1, the Ext. 7, said to be a confessional statement of the A1 and the statement of A1 recorded under Section 313 of the Cr.PC. The evidence of DW 2 (A1) is also taken to be the evidence of an eye witness. 20. We have examined Ext. 7 which is said to be a confessional statement. On perusal of the said statement, it appears that it is so exculpatory that there is nothing found implicating himself by the A1. The A1 has implicated A2 i.e. the accused-appellant, stating the manner in which he had committed the murder of the deceased. The learned Magistrate, who recorded the statement, has not been examined by the prosecution. On perusal of the said statement, it appears that it is so exculpatory that there is nothing found implicating himself by the A1. The A1 has implicated A2 i.e. the accused-appellant, stating the manner in which he had committed the murder of the deceased. The learned Magistrate, who recorded the statement, has not been examined by the prosecution. On the other hand, A1 is the co-accused who also faced the trial with the accused-appellant (A2). The Ext. 7, being an exculpatory statement, made by A1, even without a single whisper implicating himself, cannot be accepted as a confessional statement as held by the learned trial court. Section 30 of the Indian Evidence Act is not applicable in respect of the Ext. 7. The learned trial court, referring to Section 30 of the Indian Evidence Act, held that the confession of A1, vide Ext. 7, is relevant and admissible against co-accused as both are facing the trial for the same offence. However, we have already discarded the Ext. 7 as a confessional statement of A1 for the reason that it is a wholly exculpatory statement. Section 30 of the Indian Evidence Act provides for a confession made by a co-accused in a joint trial for the same offence affecting himself also along with some other persons, if proved, the court may take into consideration such confession as against such other person as well as against the person who makes such confession. Since A1 made the statement, aforesaid, affecting only the A2 and not himself at all, such statement cannot be taken into consideration by the court as a confession of A1 for holding the co-accused guilty of the offence. Therefore, Section 30 of the Indian Evidence Act is of no aid to hold A2 guilty of the offence. The learned trial court has also discussed that the law relevant to confession viz-a-viz co accused citing several authorities including State Vs. Nalini, (1999) 5 SCC 253 and also quoted paragraph 102 of the judgment. However, this court has found, on examination of the record of the learned court below as well as the judgment that the A1 is not an accomplice. He had made a statement vide Ext. 7 which has also not been taken into account by this court in view of the exculpatory nature of the said statement. However, this court has found, on examination of the record of the learned court below as well as the judgment that the A1 is not an accomplice. He had made a statement vide Ext. 7 which has also not been taken into account by this court in view of the exculpatory nature of the said statement. That being so, the above authority, referred to by the learned court below, does not have any application in the instant case. 21. With respect to the "last seen together" theory the Hon'ble Supreme Court in the case of Shyamal Ghosh Vs. State of W.B., (2012) 7 SCC 646 , held that application of the "last seen theory" requires a possible link between the time when the person was last seen alive and the fact of the death of the deceased coming to light. There should be a reasonable proximity of time between these two events. This proposition of law does not admit of much excuse but what has to be seen is that this principle is to be applied depending upon the facts and circumstances of a given case. The Hon'ble Supreme Court in Shyamal Ghosh (supra) re-iterated the settled law that the last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. The reasonableness of the time gap is, therefore, of much significance. If the time gap is very large, then it is not only difficult but may even not be proper for the court to infer that the accused had been last seen alive with the deceased and the former, thus, was responsible for commission of the offence. The purpose of applying this principle, while keeping the time factor in mind, is to enable the court to examine that where the time of last seen together and the time when the deceased was found dead is short, it inevitably leads to the inference that the accused person was responsible for commission of the crime and the onus was on him to explain how the death occurred. 22. Again, in the case of Kanhaiya Lal Vs. 22. Again, in the case of Kanhaiya Lal Vs. State of Rajasthan, (2014) 4 SCC 715 , the Hon'ble Supreme Court held that circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, by itself, cannot lead to proof of guilt against the appellant. 23. In the instant case, it has come out from the evidence of PW 6 that at about 4:00 to 5:00 am, the dead body of the deceased was found lying on the road. This evidence is supported by PW 3 & PW 4 also as these two witnesses had informed the PW 6 about noticing the dead body at about 4:00 am. It is found from the evidence of PW 1 and PW 11 that the deceased was buried on 21.9.2015. PW 5 deposed that at about 6:00 pm, on the previous day, both the accused persons (A1 & A2), PW 7 and the deceased, left his house together. From the evidence of PW 5 & 7, it appears that the deceased was last seen together with A1, A2 (accused-appellant) and PW 7 at about 6:00 pm and from the evidence of PW 3, 4 & 6, it is found that the dead body was found at about 4:00 to 5:00 am next morning. The gap between the time when the A1 & A2 and the deceased were last seen alive and the deceased is found dead is about eleven (11) hours. This time gap is so huge that it is not only difficult but also not safe to infer that the accused found last seen alive with the deceased, and therefore, the accused-appellant is the author of the offence. We have also noticed that the dead body of the deceased was disinterred after about one and a half month and the autopsy doctor opined that the date and time of death of the deceased could not be ascertained. 24. Therefore, in the backdrop of such evidence, application of "last seen together" theory is not safe to hold that the accused-appellant had committed the crime. 24. Therefore, in the backdrop of such evidence, application of "last seen together" theory is not safe to hold that the accused-appellant had committed the crime. The learned trial court also mentioned in the judgment that when the accused-appellant parted with the deceased on 20.9.2015 and as to why he had left him are not explained satisfactorily raising a presumption under Section 106 of the Indian Evidence Act which is considered to be an additional link to the "last seen together" theory. In view of the decision of the Hon'ble Supreme Court in the case of State of Rajasthan Vs Kashi Ram, reported in 2006 (12) SCC 254 , the accused-appellant must offer an explanation as to how and when they parted company of the deceased. He must furnish an explanation which appears to the court to be acceptable and satisfactory. But, the Hon'ble Supreme Court in Kanhaiya Lal (Supra) has laid down that Circumstance of last seen together does not by itself necessarily lead to inference that it was accused who committed crime - There must be something more establishing connection between accused and crime, that points to guilt of accused and none else - Mere non-explanation of being last seen together with deceased person on part of accused, by itself cannot lead to proof of guilt against him. But, in his statement, under Section 313 of the Cr.PC, the accused-appellant (A2) has given his explanation against question No. 5 as follows. "......Ans: It is a fact that Shakti Han had gone with me to residence of Kumar Chetry as Potum Enium told me to take accused Shiv Narayan Karmakar and deceased person to work site. Accused Shiv Narayan Karmakar and deceased person were drinking alcohol with Sri Kumar Chetry and I told accused Shiv Narayan Karmakar and deceased person to accompany me. Both of them were drunk and could not walk properly. Sri Shakti Hari left us and I also left accused Shiv Narayan Karmakar and deceased person." It is found in the evidence of PW 5 and PW 7 that A1, A2, PW 5 and the deceased had taken liquor in the house of PW 5 and thereafter the deceased left with A1 & A2. Sri Shakti Hari left us and I also left accused Shiv Narayan Karmakar and deceased person." It is found in the evidence of PW 5 and PW 7 that A1, A2, PW 5 and the deceased had taken liquor in the house of PW 5 and thereafter the deceased left with A1 & A2. Therefore, the explanation given by the A2 in his statement, under Section 313 of the Cr.PC, that the deceased was drunk and was not in a position to walk and hence he left him midway appears to this court to be a plausible explanation. 25. The Hon'ble Supreme Court has laid down the law as to what are the requirements that need to be established by the prosecution to prove a case rests on circumstantial evidence, in the case of Sharad Birdhi Chand Sarda Vs. State of Maharashtra reported in AIR 1984 SC 1622 . The relevant paragraph of the above decision is reproduced below for convenience. "152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. V. State of Maharashtra where the following observations were made "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence." 26. So far the circumstance of "last seen together" and the explanation, required under Section 106 of the Indian Evidence Act, as given by the A2, as indicated above, in the considered view of this court, do not constitute a chain leading to an irresistible conclusion that it was none but the accused-appellant who had committed the crime. The circumstances indicated by the learned trial court in the judgment, are not conclusive in nature and the same can only raise a suspicion about the involvement of A2 with the commission of the alleged murder. But, as held by the Hon'ble Supreme Court in Sharad Birdhi (supra), the circumstances 'must or should' and not 'may be' established. However, as found in the discussions above, the circumstances have not been proved as laid down in Sharad Birdhi (supra). This court has also noticed that the learned court below has taken note of the consistent statement made by the A1 under Sections 161, 164 & 313 of the Cr.PC. The A1 was tried by the learned court below as an accused and was acquitted by the impugned judgment. Since he was not a witness in the trial, rather an accused, in the absence of any evidence contradicting or corroborating his statement recorded under Section 161 of the Cr.PC, the same could not have been relied upon by the learned court below. So far the statement of A1 under Section 164 of the Cr.PC is concerned, we have already discarded his such statement made vide Ext 7. The statement under Section 161 & 164 of the CrPC. are not substantive evidence and can be used for contradiction and corroboration only. So far the statement of A1 under Section 164 of the Cr.PC is concerned, we have already discarded his such statement made vide Ext 7. The statement under Section 161 & 164 of the CrPC. are not substantive evidence and can be used for contradiction and corroboration only. The purpose of recording statement under Section 313 of the Cr.PC is to bring to the notice of the accused the circumstances relied upon by the prosecution to prove his guilt, and therefore, incriminating circumstances are required to be put to the accused and his respond on those is solicited. Accordingly, the incriminating circumstances of the accused were brought to his notice while recording his statement under Section 313 of the Cr.PC to which he answered. But, is such examination has been considered by the learned court below in the judgment, of course, rightly. But there was no scope for the learned court below to take into account his statement under Sections 161 & 164 of the Cr.PC, as discussed above. 27. The learned trial court has indicated in the judgment itself that it is cardinal rule of criminal jurisprudence that the burden of proof of an offence always lies upon the prosecution to prove all the facts constituting the ingredients of the offence alleged beyond reasonable doubt. If there is any reasonable doubt then it makes the accused entitled to the benefit of doubt. At no stage of the prosecution case, the burden to disprove the case would rest on the accused. But, the learned trial court, while considering the evidence led by the prosecution, also connected some evidence of the defence witnesses to arrive at a particular view to hold the A2 guilty of the offence. While discussing about the law relating to the circumstantial evidence, we have already held that the prosecution has failed to prove that the chain of circumstances is complete leading to the irresistible conclusion that it was none but the A2 who committed the offence. However, as the burden of proving a case is always with the prosecution and if the prosecution fails, to do so, as in the instant case, the learned trial court could not have collected some evidence adduced by the defence witnesses to complete the chain of circumstances to hold the A2 guilty. The defence evidence is adduced with a view to disprove the prosecution case. The defence evidence is adduced with a view to disprove the prosecution case. Since the prosecution could not prove the case there is no question of disproving the same by the defence evidence, and therefore, defence evidence could not have been intermingled by the learned trial court with the prosecution evidence. 28. The autopsy doctor (PW 8) deposed that the deceased sustained sharp cut injuries, resulting in his death. The PW 9 is a witness to the seizure of the dao which is exhibited as M.Ext. 13 in the court. He deposed that the dao was recovered from the residence of A2 in his presence on 10.11.2015 and handed over to the Investigating Officer (PW 11). The investigating officer, in his evidence, as PW 11, deposed that there was no blood stain in the seized dao and he did not forward it for forensic examination. There was no blood stain in the seized dao is quite natural as it was seized on 10.11.2015 i.e. about one and a half month after the date of occurrence. There is no evidence at all to connect the seized dao with the offence. Therefore, the M.Ext. 13 dao is not of much significance. 29. In view of the discussions made above, this court is of the view that the prosecution has not been able to bring home the guilt of the accused-appellant (A2), beyond all reasonable doubt. Therefore, the accused-appellant is acquitted on benefit of doubt. 30. The appellant (A2) be released forthwith. 31. The Registry to issue release order.