JUDGMENT : Joymalya Bagchi, J. Appeal is directed against the judgment and order dated 19th July, 2016 passed by the learned Sessions Judge, Birbhum at Suri, in Sessions Case No. 130 of 2015 (sessions Trial No. 1(10)15) convicting the appellant for commission of offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and to pay fine of Rs.20,000/-, in default, to suffer simple imprisonment for further one year has been assailed. 2. The prosecution case as alleged against the appellant and one Kuheli Hembram (acquitted co-accused) is to the effect that there was an illicit relationship between the appellant and the said Kuheli who was married to the victim Mungla Hembram. In the night of 12th July, 2015 around 12-12.30 hours Sukuddi Hembram (P.W. 1), mother of the victim, heard cries "save me" "save me" from the room of her son Mungla Hembram. Raben Hembram (P.W. 2) and Munni Hembram (P.W. 3), brother and sister respectively of the victim had also woken up hearing cries of help. When they came to the room of the victim they saw the appellant running away from the spot and found the body of Mungla Hembram lying in an injured condition in the courtyard. Mungla asked for some water and on being queried stated that the appellant and his wife Kuheli had struck him with a sword. Upon questioning, Kuheli made a statement admitting her guilt. Mungla was transferred to Dubrajpur B.P.H.C. and thereafter referred to Suri Sadar Hospital where he expired. On the complaint of her mother (P.W. 1) Dubrajpur Police Station Case No. 124 of 2015 dated 12.07.2015 under Sections 302/34 of the Indian Penal Code was registered for investigation. 3. In conclusion of investigation charge-sheet was filed and the case was committed to the Court of Sessions for trial and disposal. 4. Charge was framed under Section 302 of the Indian Penal Code against the appellant and the co-accused, Kuheli. 5. In the course of trial, prosecution examined 10 witnesses and exhibited a number of documents. 6. In conclusion of trial, the learned Trial Judge by judgment and order dated 19th July, 2016 convicted and sentenced the appellant, as aforesaid. Co-accused Kuheli was, however, acquitted from the charge levelled against her. 7. 5. In the course of trial, prosecution examined 10 witnesses and exhibited a number of documents. 6. In conclusion of trial, the learned Trial Judge by judgment and order dated 19th July, 2016 convicted and sentenced the appellant, as aforesaid. Co-accused Kuheli was, however, acquitted from the charge levelled against her. 7. Learned Counsel appearing for the appellant argued that the complainant had substantially deviated from her F.I.R. vis-a-vis the nature of dying declaration made by the victim as well as the presence of the appellant at the place of occurrence. In cross-examination, P.W. 1 admitted upon seeing her son in bleeding condition she fainted. Therefore, it is highly improbable that she heard the so-called dying declaration made by the victim. P.W. 2 prevaricated with regard to the nature of dying declaration made by the victim and the trial court had not believed the extra-judicial confession of Kuheli Hembram and had acquitted the co-accused. In the light of the aforesaid inconsistencies and/or contradictions in the prosecution case, the appellant is entitled to an order of acquittal. 8. Learned Counsel for the State submitted that the victim made dying declaration implicating the appellant in presence of P.W.s 1 and 2. P.W. 2 saw him running away from the spot with a sword. On the leading statement of the appellant, sword was seized by the I.O. (P.W. 9). Hence, the appeal is liable to be dismissed. 9. I have gone through the evidence on record. 10. Mother of the victim (P.W. 1) is the de facto complainant. She deposed on the fateful night Kuheli and her husband Mungla were sleeping in one room while she was sleeping with her younger son in another room. She suddenly heard the cries "Ma" "Ma" from the room of Mungla. When she went to his room, Mungla stated Iswar Tudu had assaulted him. Kuheli was sitting in the verandah. Mungla was taken to Dubrajpur B.P.H.C. and thereafter transferred to Suri Sadar Hospital where he died on the next day. There was a love affair between the appellant and Kuheli. She lodged F.I.R. which was scribed by P.W. 5. 11. In cross-examination she admitted that after hearing the cries of Mungla she went to the spot and seeing her injured son she fainted. When she regained her sense she found Mungla was being shifted to the hospital by people who had gathered at the spot. She lodged F.I.R. which was scribed by P.W. 5. 11. In cross-examination she admitted that after hearing the cries of Mungla she went to the spot and seeing her injured son she fainted. When she regained her sense she found Mungla was being shifted to the hospital by people who had gathered at the spot. Upon question being put to the said witness by the Court she reiterated seeing blood coming out from the injuries of her son she had fainted. 12. Raben Hembram (P.W. 2) is the younger brother of the victim who was also rushed to the room of the victim hearing his cries. He deposed he had seen Iswar fleeing away with a sword. He further deposed that the victim had stated that the appellant had assaulted him. Victim was taken to the Dubrajpur B.P.H.C. and thereafter to Suri Sadar Hospital where he expired. Kuheli had a love affair with Iswar. Hence, they murdered Mungla. He made statement before the learned Magistrate (P.W. 10). 13. In cross-examination, he stated prior to his reaching the courtyard, her mother had reached the courtyard. On seeing the situation she fainted. He further deposed that Mungla had stated "Kele Mereche" (Kele had assaulted him). 14. Munni Hembram (P.W. 3) is the sister and Lakshmi Hembram (P.W 4) is the sister-in-law (wife of P.W. 2) of the victim. They are post-occurrence witnesses and had not deposed either with regard to the dying declaration made by the victim or the presence of the appellant at the place of occurrence. 15. Dr. Malay Kumar Burman (P.W. 8) is the post-mortem doctor who found following injuries on the victim:- "1) One incised and bevelled wound on left side of scalp; (2) One incised wound over dorsal aspect of left arm; (3) One incised wound over left flank of abdomen; (4) One small incised wound on tip of right middle finger placed horizontally." 16. He deposed that death of the victim was due to aforesaid injuries which might have been caused by a sharp cutting weapon like sword. He proved the post-mortem report as exhibit 3. 17. Si Syamapada Sen (P.W 9) is the investigating officer in the instant case. He drew up formal F.I.R. He reached the place of occurrence and prepared a rough sketch map with index marked as exhibit 5. He arrested Kuheli Hembram. He also arrested the appellant on 18.07.2015. He proved the post-mortem report as exhibit 3. 17. Si Syamapada Sen (P.W 9) is the investigating officer in the instant case. He drew up formal F.I.R. He reached the place of occurrence and prepared a rough sketch map with index marked as exhibit 5. He arrested Kuheli Hembram. He also arrested the appellant on 18.07.2015. He recorded the statement of the appellant and pursuant to the statement recovered one iron made sword from a ditch within Ghasberia jungle on 22.07.2015 under a seizure list marked as exhibit 2/2. He submitted charge-sheet. 18. Prosecution has strongly relied on the deposition of P.W.s 1 and 2 with regard to the oral dying declaration of the victim as well as the version of P.W. 2 that he had seen the appellant running away from the spot with a sword immediately after the incident. Coming to the oral dying declaration of the victim, I note that the evidence of P.W.1 with regard thereto suffers from gross contradictions. In cross-examination, P.W.1 admitted upon seeing the bleeding injuries on the head and waist of her son she had fainted. If it were so, it was impossible for P.W.1 to have heard the oral dying declaration from the mouth of the deceased. P.W.2 has claimed that he heard the oral dying declaration made by his brother Mungala. The contents of the dying declaration as narrated by him before the Magistrate under Section 164 of the Code of Criminal Procedure is at variance to his deposition in court. While before the Magistrate he stated that the victim had disclosed the names of the appellant and his wife Kuheli as the assailants, in Court he altered his stance and claimed that the victim had lebelled the appellant as the sole assailant. That apart, in cross-examination he stated that the victim had stated that one 'Kele' had assaulted him. There is no evidence on record that the appellant is also known as 'Kele'. Finding of the trial court in that regard is wholly unfounded and not borne by the materials on record. 19. In view of such contradictions and/or inconsistencies in the contents of the so called dying declaration as narrated by P.W. 2, I do not consider it safe to rely on his version and come to a conclusion that the victim had made a dying declaration to him implicating the appellant as his assailant. 20. 19. In view of such contradictions and/or inconsistencies in the contents of the so called dying declaration as narrated by P.W. 2, I do not consider it safe to rely on his version and come to a conclusion that the victim had made a dying declaration to him implicating the appellant as his assailant. 20. With regard to the circumstance that the appellant was seen running away from the spot with a sword as claimed by P.W.2, I find that his version is not corroborated by any witness including his mother P.W.1 who admittedly came to the spot prior to P.W.2. Such fact is also significantly absent in the first information report or in his statement made to the Magistrate under Section 164 of the Code of Criminal Procedure. 21. Hence, I chose to give no credence to the embellished version of P.W.2 that he saw the appellant running away from the spot with a sword immediately after the incident which is not corroborated by any other witness. 22. In the absence of the aforesaid circumstances, the prosecution is left with the alleged recovery of a sword pursuant to the leading statement of the appellant as per P.W.9, Investigating Officer. P.W.9 stated that he had recorded the statement of the appellant and pursuant to such statement the alleged recovery was made from a ditch in a jungle. No such statement has been exhibited in the instant case. Furthermore, recovery was effected in the presence of police witnesses only and is not supported by any independent witness. I am also not unmindful of the fact that the place of recovery is an open place and accessible to all. In the absence of the statement made by the appellant which P.W.9 claimed to have recorded in writing, it is difficult for me to come to a firm conclusion that the place of recovery was divulged pursuant to the said statement and not from other sources. Hence, requirements of Section 27 of the Evidence Act has not been fulfilled and it cannot be said that the sword allegedly recovered in the instant case was pursuant to the statement made by the appellant before P.W.9. 23. In the light of the aforesaid discussion, I am of the opinion that the prosecution case has not been able to prove its case beyond reasonable doubt and the appellant is entitled to an order of acquittal. 24. 23. In the light of the aforesaid discussion, I am of the opinion that the prosecution case has not been able to prove its case beyond reasonable doubt and the appellant is entitled to an order of acquittal. 24. The appeal is accordingly allowed. 25. Conviction and sentence of the appellant are accordingly set aside. 26. The appellant shall be released from custody, if not wanted in any other case, upon executing a bond to the satisfaction of the trial court after six months from date in terms of Section 437A of the Code of Criminal Procedure. 27. The lower court records along with a copy of this judgment be sent down at once to the learned trial court for necessary action. 28. Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities. I agree.