JUDGMENT : Jay Sengupta, J. 1. This is an appeal directed against the judgment and order of conviction dated 09.02.2009 and sentence 10.02.2009 passed by the Learned Additional Sessions Judge, Malda, 2nd Court, in Sessions Case No. 6/2005, thereby convicting the appellant under Section 302 of the Penal Code and sentencing him to suffer imprisonment for life with a fine of Rs. 5000/-, in default to undergo a further simple imprisonment for three months. 2. On 09.09.2004 at about 12.15 hours PW 4 lodged a First Information Report with the Habibpur Police Station under Section 302 of the Penal Code against unknown miscreants. He alleged that he had gone for fishing in a ditch last night. On the next morning i.e., on 09.09.2004 at about 8.00 hours he got the information that his parents were murdered by someone by slitting their throats with a sharp weapon. After murdering them, the assailant left his deceased father in the room and the deceased mother in the courtyard. He was not in a position to say who killed his parents. On the fateful night four persons had assembled in his father's room and engaged themselves in smoking 'ganja'. 3. Investigation commenced. On 09.09.2004 at about 13.25 hours, PW 17, the Investigating Officer of the case, held an inquest over the deadbodies of the two victims in their house in the presence of witnesses PWs 1, 2, 3, and 4. No article was found to have gone missing from the room. The victim Gour Halder had marks of injuries on his shoulder and neck caused by a sharp weapon. Cut marks on the right elbow and the upper portion of the right arm were also found. Rigor mortis was present in the deadbody. On the deadbody of the victim Renubala Halder, there was a cut injury found around her neck and it was nearly detached from its front portion. On 10.09.2004 PW 7 held post-mortem examination over the deadbodies of the two victims. He found ante-mortem injuries on them. After completion of investigation, a charge-sheet was submitted. On 29.01.2005, a charge was framed under Section 302 of the Penal Code against the appellant. 4. During trial the prosecution examined as many as 17 witnesses to establish its case. The defence also examined a witness to improbablise the prosecution case. 5. He found ante-mortem injuries on them. After completion of investigation, a charge-sheet was submitted. On 29.01.2005, a charge was framed under Section 302 of the Penal Code against the appellant. 4. During trial the prosecution examined as many as 17 witnesses to establish its case. The defence also examined a witness to improbablise the prosecution case. 5. From a careful perusal of the evidence on record it appears that PW 1 was the scribe of the First Information Report and a witness to the inquest. Although a resident of another village, he was a post-occurrence witness. He found the deadbody of Gour Halder partly in the varandah in the cowshed and the deadbody of Renubala Halder in the courtyard. PW 2 was also a resident of another village. He too was a witness to the inquest and was also a post-occurrence witness. PW 3, a neighbour of the victim, was a witness to the inquest. As a post-occurrence witness, he saw Gour Halder's deadbody in the room and his wife's deadbody in the courtyard. PW 3 heard from PWs 9 and 10 that the appellant had murdered the victims. He heard from one Ansarul and one Mongal Oraon that they learnt from the appellant that since the Gour Halder knew the name of the murderer of his elder brother Babul, the appellant went there and when the couple raised a shout, he murdered them. In his cross-examination, PW 3 stated that he was interrogated by the police twice. He stated all these facts to the police during the first interrogation. PW 4 was the son of the murdered couple. He was the de facto complainant of the case as well as a witness to the inquest and to a seizure. He subsequently learnt that the appellant was the actual murderer. In his cross-examination, PW 4 admitted that the four others named in the First Information Report as the persons who were smoking 'ganja' in the victim's house were detained by the police initially. PW 5 was the grandson of the murdered couple. He was a witness to the inquest as well as a post-occurrence witness. PW 10 told him about an extra-judicial confession made by the appellant about killing the victims. PW 6 was a police constable who carried deadbodies for post-mortem examinations. He was also a seizure list witness for the wearing apparels of the victims. He was a witness to the inquest as well as a post-occurrence witness. PW 10 told him about an extra-judicial confession made by the appellant about killing the victims. PW 6 was a police constable who carried deadbodies for post-mortem examinations. He was also a seizure list witness for the wearing apparels of the victims. PW 7 was the post-mortem doctor who held examinations over the deadbodies on 10.09.2004. He found ante-mortem injuries on the deadbodies that caused the death. In his cross-examination, he stated that there would be profuse bleeding in the case of the injuries on Renubala. PW 8 was a neighbour of the accused and a witness to a seizure. On 14.09.2004 he found police coming with the appellant. He heard that the appellant had confessed about his guilt in front of the police. Upon asking, the appellant brought out a blood stained 'hensua' from his room. But, in his cross, he stated that he did not tell the police that the appellant brought out a 'hensua' from his room. There was no label pasted on the 'hensua'. PW 9 was another son of the victims. He was in Bangalore at the relevant time. On 13.09.2004 PW 10 told him that the appellant had murdered his parents on 08.09.2004. PW 10 was a local man. He deposed that on 13.09.2004 after having liquor, the appellant made an extra-judicial confession before him about his guilt. According to him, the appellant told him that as the victims knew about his involvement in the murder of the elder brother of the victim Gour Halder, he murdered the two. PW 10 narrated this to others like PWs 5, 9 and 11. In his cross-examination, PW 10 stated that he was drinking with the appellant alone. He did not go to the police station. PW 11 stayed in the adjacent village and was a post-occurrence witness. He deposed that on 14.09.2004 the appellant made an extra-judicial confession before the police. He signed as a seizure list witness. Then he said that it was the police who came out with the appellant and the 'hensua'. PW 12 was a neighbour of the victims. He deposed that he heard the victim Gour Halder shout twice addressing him and crying that the appellant was killing him. PW 12 did not come out due to fear. Then he said that it was the police who came out with the appellant and the 'hensua'. PW 12 was a neighbour of the victims. He deposed that he heard the victim Gour Halder shout twice addressing him and crying that the appellant was killing him. PW 12 did not come out due to fear. Prior to the arrival of the police, PW 12 went for fishing and returned only after about 1 1/2 months. PW 13 was another neighbour of the appellant. On 08.09.2004 at about 23.00 hours he found the appellant's parents searching for their son with a dim light. He saw the appellant going towards the house with something. On the next day, the appellant was not found in his house. In the cross, he admitted that he had been arrested in connection with a criminal case. PW 14 was the Learned Magistrate who recorded a statement of PW 16 under Section 164 of the Code. In his cross-examination, he said that there was no note about where PW 16 was kept between 12.00 hours and 14.00 hours on the date of recording of her statement. PW 15 was a Medical Officer. On 24.09.2004 he examined the appellant for a psychological check up. PW 16 was a relation of the appellant. She stated that on 09.09.2004, the appellant did not come to her house. Although she had made a statement before the Learned Magistrate, she turned hostile. In her cross, she complained that the police had forced her to give a false statement before the Learned Magistrate threatening her that otherwise her family members would be prosecuted. She stated that at first she was taken to the Learned Magistrate at 12.00 hours. She was again handed over to the police and stayed at the police office within the Court compound up to 14.00 hours. Here also the police threatened her. PW 17 was the Investigating Officer of the case. He held inquest, seized blood stained conch and earth. On 11.09.2004, he seized some wearing apparels. On 14.09.2004, he came to know about the involvement of the appellant and arrested him. The appellant brought out the offending weapon. He stated that after the incident he was in the house of his aunt PW 16. PW 17 sent PW 16 for having her statement recorded under Section 164 of the Code. On 14.09.2004, he came to know about the involvement of the appellant and arrested him. The appellant brought out the offending weapon. He stated that after the incident he was in the house of his aunt PW 16. PW 17 sent PW 16 for having her statement recorded under Section 164 of the Code. He submitted a charge-sheet as also a supplementary charge-sheet after receiving the FSL Report. After the examination of the accused under Section 313 of the Code the defence examined a witness being the law clerk who prepared a protest petition filed on behalf of PW 16. 6. Mr. P.S. Bhattacharyya, the Learned Advocate appearing on behalf of the appellant submitted as follows. The judgment and order of conviction and sentence cannot be sustained in law. In the First Information Report the names of four persons were specifically taken as the ones who had come to the house of the deceased Gour Halder and had been smoking 'ganja' there. During trial, this fact was supported by the de facto complainant PW 4 himself. He also admitted in his cross-examination that initially those four persons were detained by the police and were released only on the following morning. There was no evidence that after those four persons went out from the house, anyone saw the victims alive. Yet, the said four persons, far from being made accused in this case, were not even interrogated in connection with the same. PW 9, another son of the deceased, deposed that on 13.09.2004 in the evening PW 10 told him that the appellant had killed his parents on 08.09.2004. But, in his cross-examination he admitted that he had met PW 10 at first at about 10.00/11.00 hours. This shows that during the first meeting in the morning PW 10 did not tell anything to him. The behaviour of PW 12, the next door neighbour of the victims, in not disclosing to the police immediately about the helpless cries of the victim Gour Halder on the fateful night is absolutely incredulous and therefore, cannot be believed. One simply cannot imagine a situation where a witness would hear such cries in the night, go to sleep, leave for a fishing trip and come back to state the facts before police after about 1 1/2 months from the incident. One simply cannot imagine a situation where a witness would hear such cries in the night, go to sleep, leave for a fishing trip and come back to state the facts before police after about 1 1/2 months from the incident. It is also significant that the relation of the appellant, PW 16 to whom he allegedly went after the incident was declared hostile. A defence witness was subsequently produced to prove that PW 16 had to file a protest petition in respect of the police forcibly making her give a statement under Section 164 of the Code. The purported extra-judicial confession made before the PW 10 is bereft of sufficient details. In any event, an extra-judicial confession is a weak piece of evidence. As regards the seizure of post-mortem blood of both the deceased, PW 7 admitted that there was no seizure list or any document to show that PW 17 had seized the same. Moreover, there is no leading statement for the recovery of the 'hensua' allegedly at the instance of the appellant so as to make the same admissible under Section 27 of the Evidence Act. PW 7, the post-mortem doctor, did not opine whether it was a homicidal death or not. Even, the examination of the accused under Section 313 of the Code was not properly done in as much as the facts regarding the lodging of the written complaint, holding of inquest and the evidence of a seizure list witness were not put to the accused. 7. Mr. N.P. Agarwala, the Learned Advocate appearing on behalf of the State submitted as follows. First, the motive behind murder was clearly established. As per the extra-judicial confession made before PW 10, the appellant confessed that he murdered the victims as the victim Gour Halder knew about the appellant's involvement in the murder of his brother Babul. Although the first confession made before PW 16 may not be taken recourse to as PW 16 turned hostile, PW 10 gave out a detailed and a convincing account of the confession made by the appellant. PW 2, a neighbour of the victims, heard the cries of the victims. But, out of fear, he did not come out. He had to venture out for catching fish and took some time to tell everything before the police. Otherwise, there is no infirmity in his deposition. PW 2, a neighbour of the victims, heard the cries of the victims. But, out of fear, he did not come out. He had to venture out for catching fish and took some time to tell everything before the police. Otherwise, there is no infirmity in his deposition. PW 13's evidence is also quite significant to act as a link in the chain of events that he saw the appellant's parents looking for the appellant on that night and that the appellant came back with something in his hand. The recovery of the offending weapon was made at the instance of the appellant. PWs 8 and 11 were the witnesses to such seizure. Most significantly, human blood was found on the offending weapon seized. In this case the injuries were such that the death was obviously homicidal. The doctor might have missed to state it. Moreover, there was no column in the post-mortem report format used in this case to indicate where the death was homicidal or not. 8. We heard the submissions of the Learned Advocate appearing on behalf of the parties and carefully perused the evidence and the materials on record along with a copy of the judgment impugned in order to find out about the correctness and legality of the impugned judgment and order. Motive: 9. The motive behind commission of crime assumes greater importance in the case of a prosecution based on circumstantial evidence. The extra-judicial confession made by the appellant before PW 10 gives a clear inkling of the motive behind murder. The appellant told PW 10 that he murdered the victims because the victim Gour Halder knew about the appellant's involvement in the murder of his brother. Non-examination and/or non-arraignment of the four persons named in the First Information Report: 10. It is true that four persons were specifically named by the informant as having gone to the appellant's place on the fateful night for smoking 'ganja'. There is no iota of evidence to indicate that there was any attempt to shield the said four persons. In fact, according to PW 4 they were detained till the next morning. It often happens that the initial suspicion on some persons for the commission of a crime is found to be misplaced. Only a proper investigation reveals the real truth. In fact, according to PW 4 they were detained till the next morning. It often happens that the initial suspicion on some persons for the commission of a crime is found to be misplaced. Only a proper investigation reveals the real truth. Although the said four persons could have been produced as witnesses by the Investigating Agency, there is no harm if the Investigating Agency finds such an exercise to be irrelevant as they were not involved in the commission of the alleged offence. As such, the purported non-examination and/or non-arraignment of the said four persons in the instant case cannot be fatal to the prosecution case. Direct evidence of hearing: 11. On the fateful night at the relevant time, PW 12, the next door neighbour of the victims heard the cries of the victim Gour Halder. The victim Gour Halder specifically addressed his cry for help to PW 12 and shouted that the appellant was going to kill him. PW 12 was aware of the victim's voice. Therefore, this can fairly be treated as a direct evidence of hearing. It is quite possible for any such witness to become afraid after hearing such cries and not to go out to help. It may be uncommon, but not an improbable behaviour of any such witness to go out on a scheduled journey for fishing, come back after the stipulated period and thereafter relate the incidents to the police. PW 12's evidence could not be otherwise shaken in the cross-examination. The appellant returned late at night: 12. PW 13, a local witness, saw the appellant's parents looking for the appellant with a dim light at or after the alleged approximate time of occurrence. He also saw that the appellant thereafter came back in the dark with something in his hand. This evidence adduced by PW 13, an independent witness, acts as an additional link in the chain of circumstances appearing against the appellant. Extra-judicial confession: 13. The appellant made a credible extra-judicial confession before PW 10. After the incident, the appellant went to the house of PW 10, a local independent witness, to hear a Santhali song. After having a drink, the appellant confessed his guilt about murdering the two victims and even disclosed the motive behind such murder. The evidence of PW 10 is found to be firm and convincing. PW 10 could not be shaken in the cross-examination. After having a drink, the appellant confessed his guilt about murdering the two victims and even disclosed the motive behind such murder. The evidence of PW 10 is found to be firm and convincing. PW 10 could not be shaken in the cross-examination. Although an extra-judicial confession per se may not be sufficient to bring home a conviction, it may nevertheless lead to a conviction when corroborated by some other evidence. Turning hostile of PW 16: 14. PW 16 was a relation of the appellant to whom the appellant purportedly went after the commission of crime. PW 16 turned hostile. DW 1 was even adduced by the defence to show that after the recording of PW 16's statement under Section 164 of the Code, PW 16 filed a protest petition claiming that she was forced to do so by the Investigating Agency. That PW 16 was a close relation of the appellant could very well be a reason for her to turn hostile. Recovery of the offending weapon: 15. A 'hensua', the offending weapon, was recovered by the Investigating Agency at the instance of the appellant. PWs 8 and 11 were the witnesses to the seizure. There is no reason whatsoever to suspect such seizure. But, as no formal statement of the accused was exhibited that led to the recovery of the offending weapon, Section 27 of the Evidence Act cannot be invoked in this case. Such recovery would, however, be admissible under Section 8 of the Evidence Act. Human blood found on the weapon: 16. Exhibit 15, the FSL report, confirmed that there were traces of human blood present on the offending weapon that was recovered at the instance of accused/appellant. Such an expert's report can always be admitted in evidence in view of Section 293 of the Code. This piece of evidence is a very strong circumstance and acts as an important link in the chain of circumstances. Medical evidence: 17. The medical evidence as adduced in this case, especially by PW 7, the post-mortem doctor, clearly shows that death was caused due to antemortem injuries inflicted upon the victims. It is also clear from the nature of injuries inflicted that the assaults were indeed homicidal in nature. Medical evidence: 17. The medical evidence as adduced in this case, especially by PW 7, the post-mortem doctor, clearly shows that death was caused due to antemortem injuries inflicted upon the victims. It is also clear from the nature of injuries inflicted that the assaults were indeed homicidal in nature. Although there is a column in the format of the post-mortem report for writing whether the injuries were ante-mortem or not, there was no such column in the said format for indicating whether the death was homicidal or not. PW 7 in his examination in chief clearly indicated that the weapon used must have been hard and sharp cutting. There was no cross-examination done on this. Thus, it is axiomatic that PW 7 meant that the injuries inflicted were indeed homicidal in nature. Examination under Section 313 of the Code: 18. In the present case the framing of charge gave a clear picture to the accused about the case that he was facing. Evidence was taken in the presence of the appellant. Even from the trend of the cross-examination by the defence, the examination under Section 313 of the Code and the adducing of defence witness, it is absolutely clear that the petitioner had a cogent idea about the prosecution case that he was facing. Therefore, no prejudice could have been caused to the appellant by the purported omission to put questions under Section 313 of the Code in respect of some formal and relatively unimportant facts. 19. In view of the above, it appears that the motive behind the murder, the direct evidence of hearing the victim's cries at the time of occurrence, the appellant's extra-judicial confession before an independent witness, the recovery of the offending weapon containing traces of human blood at the instance of the appellant and the corroborative medical evidence clearly show that the prosecution has been able to prove its case beyond all reasonable doubts. 20. Accordingly, we dismiss the appeal and affirm the judgment and order of conviction and sentence imposed on the appellant. 21. A copy of the judgment along with the Lower Court records shall be sent down to the learned Trial Court forthwith by a Special Messenger for information and necessary action. 22. Urgent photostat certified copies of this judgment may be delivered to the learned Advocates for the parties, if applied for, upon compliance of all formalities. Md. 21. A copy of the judgment along with the Lower Court records shall be sent down to the learned Trial Court forthwith by a Special Messenger for information and necessary action. 22. Urgent photostat certified copies of this judgment may be delivered to the learned Advocates for the parties, if applied for, upon compliance of all formalities. Md. Mumtaz Khan, J. : I agree