JUDGMENT Suman Shyam,J. - By the impugned judgment and order dated 29.05.2017 passed by the learned Additional Sessions Judge, Sivasagar in connection with Sessions Case No.119(S-S)/2012, the sole appellant in this case has been convicted under section 302 of the Indian Penal Code (IPC) and sentenced to undergo imprisonment for life and also to pay fine of Rs.30,000/- in default whereof, he shall have to undergo rigorous imprisonment for another six months. 2. The prosecution case, in a nutshell, is that on 18.02.2012 at about 7:00 p.m. when the deceased Bijit Monky was going to a nearby shop to make a purchase, the accused Dambaru Koiri waylaid him on the road and thereafter, assaulted the victim on his head with a knife causing grievous injuries to him. The injured was then shifted to the Demow Hospital in an injured condition. After receiving treatment for about 12 days the victim had succumbed to his injuries on 29.02.2012. 3. On 19.02.2012, Smti. Anu Monky i.e. the wife of the victim had lodged an ejahar before the Officer-in-Charge, Demow Police Station, informing the Police about the incident with a request to take appropriate action in the matter. Upon receipt of the ejahar, Demow P.S. Case No.33/2012 was registered under section 326 IPC. After the death of the victim, section 302 of the IPC was added. The matter was then taken up for investigation by the police. The I.O. had drawn up a sketch map, recorded statement of the witnesses and had also recovered a ''machete'' which is believed to be the weapon used in the crime. After the death of the deceased Bijit Monky, the dead body was sent for autopsy. On completion of the investigation, the I.O. had submitted charge-sheet against the accused under section 302 of the IPC. Since the accused had pleaded innocence, the matter was sent up for trial. 4. The prosecution side had examined as many as 12 witnesses so as to establish the charge brought against the accused. Upon completion of recording of evidence of the prosecution witnesses the statement of the accused person was recorded under section 313 of the Cr.P.C. whereby, the accused had denied of having caused injury on the head of the victim. He had also denied of having committed the act alleged by the prosecution side. However, the accused had declined to adduce any evidence in his defence. 5. He had also denied of having committed the act alleged by the prosecution side. However, the accused had declined to adduce any evidence in his defence. 5. Upon analysing the evidence available on record, the learned trial court was of the view that the witness PW-2 in this case was the only eye-witness and from his testimony it is established that the accused has showered machete blows on the head of the victim. The learned trial court was also of the view that Ext-4 post-mortem report cannot be accepted on account of the fact that several witnesses have seen cut injuries in the head of the victim. Moreover, the Secretary of the VDP i.e. the PW 5, who had accompanied the accused to the Police Station along with the machete has also testified that the accused had surrendered before the police. On such findings the learned trial court has held that the prosecution side has succeeded in establishing the charge brought against the accused beyond all reasonable doubt. 6. We have heard Mr. I. A. Hazarika, learned Amicus Curiae appearing for the appellant. We have also heard Mr. R. J. Baruah, learned Additional Public Prosecutor, Assam, appearing for the State. None has appeared for the respondent No.2 despite service of notice. 7. From a careful analysis of the impugned judgment and order dated 29.05.2017 passed by the learned Additional Sessions Judge, Sivasagar, it transpires that the learned court below has treated the PW-2 as the eye-witness and has based the conviction primarily on the testimony of the aforesaid witness. The observation and conclusion recorded by the learned trial court in paragraph 32 of the judgment would be relevant and is, therefore, reproduced herein below for ready reference :- wxyz "32. From the above analysis of evidence at hand, it has crystalised that PW-2 was the only eye witness examined by the prosecution. The PW-2 has emphatically testified that no one was present at the PO when the incident occurred and he was the only person present at the PO when accused was showering machete blows on the head of Bijit Monky. It has again precipitated that Bijit Monky was first taken to a hospital at Demow and subsequently to AMCH for better treatment as he sustained grievous injuries on his head. It has again precipitated that Bijit Monky was first taken to a hospital at Demow and subsequently to AMCH for better treatment as he sustained grievous injuries on his head. This piece of evidence has been authenticated by all the PWs who have testified in unison that Bijit Monky was first taken to a hospital at Demow and then to AMCH, where he succumbed to his injurires on 29.02.2012. This fact has been corroborated by PW-12 i.e. the investigator who had specifically testified that as the accused succumbed to his injuries on 29.02.2012 he prayed before the court to add section 302 of the IPC to the existing sections of the code. Perhaps the last nail on the coffin of defence pleas is hammered when PW-12 has categorically testified that the accused had surrendered at the police station along with the offending machete which he had used while assaulting Bijit Monky on his head. Therefore, the crime committed by the accused has established beyond all reasonable doubts as the lone eye witness i.e. PW-2 has testified that he saw the accused assaulting Bijit on his head. Besides all the PWs have testified in a substantive manner when they saw bleeding injurires on the head of Bijit. Therefore, the hearsay evidence present by the PWs barring PW-2 added fuel to the circumstantial evidence when they rushed to the residence of Bijit immediately after the incident after hearing sound of hue and cry raised by the wife of Bijit. As such the plea of the defence that Bijit sustained injuries by falling on the ground does not seem to hold much water as all the PWs have seen cut injuries on the head of Bijit which was unlikely to be caused by falling on the ground as from Ext-4 it has protruded that Bijit sustained deep cut injuries on his head. Besides from medical documents as well as from evidence of PWs it seems obvious that Bijit sustained injuries due to assault on him by the accused and not by falling on the ground as those kinds of injuries can only be sustained from machete or dagger blows. It is apparent that the accused had assaulted Bijit with a kalam katari which is a smaller machete in size and larger than a knife or a dagger. It is apparent that the accused had assaulted Bijit with a kalam katari which is a smaller machete in size and larger than a knife or a dagger. As such, the blows coming from a kalam katari may prove fatal as it is a sharp edged weapon like a machete. Therefore, the defence plea does not seem to cut much ice as kalam katari is a dangerous weapon similar and identical as that of a machete. The prosecution case got a shot in the arm when PW-2 has specifically testified that he saw Bijit lying in front of the residence of the accused and plethora of blood was oozing out from his wound i.e. from his head. The prosecution case again got bolstered when PW-5 i.e. the secretary of the VDP has testified that he accompanied the accused to the police station along with the machete, when the accused surrendered before the police. So, he had handed over the machete to the police in presence of the accused, who had brought it to the PS." zyxw 8. Mr. Hazarika submits that PW-2 is not an eye-witness in this case and there is no evidence to establish the charge against the appellant. It is also the submission of the learned Amicus Curiae that not to speak of the post-mortem report and the doctor''s evidence, even the testimony of other witnesses describing the nature of injuries sustained by the victim is full of contradictions. As such, the present is a fit case where the appellant deserves to be acquitted. 9. In order to examine the aforesaid submission of Mr. Hazarika we have gone through the evidence available on record. We find that PW-1, Smti. Anu Monky, is the wife of the deceased and in her deposition she has stated that on the day of occurrence at about 7:00 p.m. when her husband was going to a shop from the house he had sustained injuries. Tinko Bhumij had brought her husband home in an injured state and she saw cut injuries on the head of her husband. According to the PW-1, her husband was in an unconscious state and later on, he was taken to the Demow Hospital in a vehicle and therefrom to the AMCH, Dibrugarh where the doctors had declared him dead. PW-1 has also confirmed that she had lodged the ejahar with Demow Police Station. According to the PW-1, her husband was in an unconscious state and later on, he was taken to the Demow Hospital in a vehicle and therefrom to the AMCH, Dibrugarh where the doctors had declared him dead. PW-1 has also confirmed that she had lodged the ejahar with Demow Police Station. However, during her cross-examination, PW-1 has clarified that she did not witness as to who had cut her husband and when Tinku Bhumij had brought her husband home, he was incapable of speaking. PW-1 has also stated that she suspects that her husband might have been cut by the accused since he had to pay Rs.100/- to him. 10. Pw-2, Tinku Bhumij, is the key witness in this case. Based on the testimony of PW-2, the learned trial court has convicted the appellant. In his deposition before the court , PW-2 has stated that he saw Dambaru Koiri i.e. the accused fleeing after dealing a cut blow on the head of Bijit (deceased) and he fell down there itself. However, during his cross-examination, this witness had clearly stated that "I did not see Bijit being cut by Dambaru Koiri. I found Bijit lying in front of Dambaru Koiri''s house." From the above statement, it is apparent that PW-2 was not an eye-witness to the incident but he had reached the place of occurrence after the victim had sustained injuries. 11. From an examination of the records, we also find that in his statement recorded by the police under section 161 Cr.P.C., the PW-2 had stated that he is a "day labourer" and on 18.02.2012, while he was returning after completing his labourer''s work, at about 6:30 p.m. he saw the victim Bijit Monky lying in the garden in front of his house and there was blood coming out from his head. PW-2 has stated that the victim was lying in an unconscious state. He then immediately took the victim inside the house and informed others about the incident. The PW-2, however, did not state before the police that he saw the accused fleeing after dealing a dao blow on the head of Bijit. From the above, it is crystal clear that there is improvement in the testimony of this witness during his deposition before the court and therefore, his evidence cannot be relied upon for convicting the accused without proper corroboration. 12. From the above, it is crystal clear that there is improvement in the testimony of this witness during his deposition before the court and therefore, his evidence cannot be relied upon for convicting the accused without proper corroboration. 12. Pw-3, Sri Bulu Monky, has deposed that on the day of occurrence at about 6/7:00 pm when he was inside the house he had heard hue and cry. He then came outside and saw Bijit was being brought by his family members holding him in support and that he saw cut injuries on his head. PW-3 has stated that Bijit''s wife Anu Monky had informed him that the accused Dambaru had cut him. Then after arranging a vehicle they took the injured to the AMCH, Dibrugarh. This witness was declared as a hostile witness by the prosecution side. During his cross-examination by the prosecution side, PW-3 has denied of having stated before the police that when he asked Bijit who had cut him, he gasped out that Dambaru Koiri had cut him. During his cross-examination by the defence side, the witness PW-3 had stated that Bijit was not in a position to speak. 13. Pw-4, Bikash Pandab, is another witness who had come to the house of Bijit after hearing the scream of the victim''s wife that her husband had been cut by Dambaru. This witness has stated that he did not have any personal knowledge as to who had cut Bijit Monky. 14. Pw-5, Sri Padmeswar Rajbonshi, was the secretary of the VDP at the relevant time and he has deposed that on the day of occurrence at about 6:30/7 p.m. Dambaru went to his house taking along a "kalam katari" (knife) and told him that he had assaulted Bijit with that kalam katari and that he should be handed over to the Police. PW-5 had stated that he then handed him (accused) over to the Police that very night and the police had seized the "kalam katari" from the possession of the accused in his presence. PW-5 has proved Ext-1 seizure-list wherein he had put his signature and has also stated that on being requested by the wife of the victim, he had written the ejahar (Ext-2). 15. PW-5 has proved Ext-1 seizure-list wherein he had put his signature and has also stated that on being requested by the wife of the victim, he had written the ejahar (Ext-2). 15. Pw-6 (wrongly mentioned as PW-5), Rupesh Majhi, has deposed before the court that on the day of the occurrence he had heard sounds of uproar in the house of Bijit and on being asked, the victim''s wife had replied that Dambaru had cut her husband. During his cross-examination, this witness has denied of having witnessed the incident and had also admitted to have come to know of the incident through other source. 16. Pw-7, Sri Motiram Koiri, is the uncle of the accused and he has deposed before the court that he had heard from the villagers that the accused had killed Bijit but he did not go to see the dead body. PW-7 has stated that he is not aware as to whether police had seized the "kalam katari" from the accused. In his cross-examination, PW-7 has stated that he had heard from the villagers that Dambaru had killed Bijit. 17. Sri Ajit Monky, who is a cousin of the victim, was examined as PW-8 and he has deposed before the court that on the day of the incident he saw Bijit when he was brought to the house and there was cut injury in the head. The witness has, however, denied the suggestion made by the defence side that he had told the police that his brother had fallen on the road and injured himself as there was bleeding from the nose and head. PW-8 has also stated that he did not have any personal knowledge about who killed Bijit. 18. Pw-9, Sri Anjit Monky, is another cousin of the deceased and he has deposed that he had heard from others that Dambaru had killed his cousin for not returning the money. 19. Pw-10 (wrongly recorded as PW-9), Sri Umersh Chandra Mech, was serving as ASI Amalapatty Outpost and he has deposed that on 29.02.2012 while he was serving in the said Outpost, an F.I.R. was received that Bijit Monky had expired. Based on the same, G.D.E. 652 dated 29.02.2012 was made and then he had gone to the Surgical Unit -4 of the AMCH where he saw the dead body of Bijit Monky. Based on the same, G.D.E. 652 dated 29.02.2012 was made and then he had gone to the Surgical Unit -4 of the AMCH where he saw the dead body of Bijit Monky. He then prepared the inquest, took the statement of elder brother of Bijit Monky and thereafter sent the dead body for post-mortem. PW-10 has proved Ext-3 inquest report. However, during his cross-examination, this witness has stated that he took the statement of Anjit Monky (PW-9) and he told him that Bijit Monky, while returning from the market, fell down on the road and had started to bleed from the mouth and nose and the local people took him to Demow Hospital for treatment. Thereafter, the family members took him to Dibrugarh where he died. 20. Ext-4 is the post-mortem report of the victim. The findings recorded in the post-mortem report would be significant in this case and therefore, the same are reproduced herein below for ready reference :- wxyz "2. Wounds position and character : zyxw wxyz Injury 1) Abrasion over left frontal of 6 cm x 1 cm brown in colour. zyxw wxyz 2) Bed sore of 10cm x 8cm over the sacrum,..........unhealthy granulation tissue, foul smelling. zyxw wxyz 3) Contusion over the left arm 10cm x 8cm back in colour. zyxw wxyz 3. Bruise Position size and nature : . zyxw wxyz 4. Mark of ligature on neck dissection, etc. :- Not detected zyxw wxyz II- CRANUM AND SPINAL CANAL zyxw wxyz 1. Scalp, skull, vertebrae : Scalp- Contusion over left front, parietal at right parietal region. zyxw wxyz Skull Left frontal depressed fracture of 7cm x 0.5 cm obliquely left frontal backward to parietal bone. Vertebrae Healthy. zyxw wxyz 2. Membrane : Congested with left front partial extradural haemorrhage of 15cm x zyxw wxyz 11cm x 2cm. zyxw wxyz 3. Brain and spinal cord : Brain congested. zyxw wxyz Spinal cord Not dissected." zyxw 21. Dr. Subhajyoti Deka (PW-11), who had conducted the post-mortem examination on the dead body on 29.02.2012, has opined that the death of the victim was due to "comma" as a result of head injuries sustained. According to the doctor, all the injuries are ante mortem and caused by a blunt force impact. 22. Dr. Subhajyoti Deka (PW-11), who had conducted the post-mortem examination on the dead body on 29.02.2012, has opined that the death of the victim was due to "comma" as a result of head injuries sustained. According to the doctor, all the injuries are ante mortem and caused by a blunt force impact. 22. Pw-12, Sri Girish Hazarika, is the Investigating Officer (I.O.) who had conducted the investigation in this case and he has deposed that on the day of occurrence, he had recorded the statements of the witnesses under section 161 of the Cr.P.C. PW-12 has also stated that the accused had surrendered before the court on that day itself and he was accompanied by a member of the VDP. PW12 has also deposed that the accused had handed over a machete to the police. He had conducted the investigation and seized the machete vide Ext-1 seizure-list and had also arrested the accused. During his cross-examination, PW-12 has admitted that the machete was handed over to the Police by the man who had accompanied the accused. He had also admitted that the statement of the accused was not recorded under section 164 of the Cr.P.C. 23. From the bulk of evidence brought on record, it transpires that the witnesses viz., PWs-1, 3 and 8 had seen cut injuries on the forehead of the victim with blood coming out therefrom. However, the post-mortem report Ext-4 does not mention about any incised wound in the forehead. Rather, as per the medical evidence, the injury found in the head of the deceased was caused by blunt force impact. Therefore, the medical evidence does not support the evidence adduced by PWs-1, 3 and 8. 24. As noted above, although PW-2 is not an eye-witness to the occurrence and there is also substantial improvement in his testimony. During his cross-examination, PW-2 has also clearly admitted that he is not an eye-witness to the occurrence. Notwithstanding the same, the learned trial court had treated him as eye-witness and entirely believed the testimony of this witness so as to come to a conclusion that he had seen the accused hack the deceased with a machete. 25. From the evidence adduced by PW-5, we find that the said witness has made an attempt to bring on record the "extrajudicial confession" of the accused to the effect that he had assaulted the victim with a "kalam katari". 25. From the evidence adduced by PW-5, we find that the said witness has made an attempt to bring on record the "extrajudicial confession" of the accused to the effect that he had assaulted the victim with a "kalam katari". However, there is no corroboration of the version of PW-5. It is settled law that extrajudicial confession is a weak piece of evidence and therefore, unless there is corroboration, it would not be safe for the Court to base conviction on such weak evidence. 26. In the present case, the I.O. has stated that the accused had reached the Police Station along with a member of the VDP and the machete was handed over to the Police by the man who had accompanied him. But according to PW-5, who had apparently accompanied the accused to the Police Station, the "kalam katari" was seized by the Police from the possession of the accused. Therefore, there is significant contradiction in the version of these witnesses (PWs-5 and 12) as regards the seizure of the weapon (dao) from the accused. 27. The weapon of offence (dao) stated to have been seized by the police vide seizure-list Ext-1 also does not fit into the medical evidence available on record. According to the medical evidence, the injury was caused by "blunt force impact". If that be so, we find that the dao seized by the police from the accused might not have at all been used to cause injury to the victim. In other words, we are of the view that the prosecution has failed to establish the circumstances under which the victim might have sustained injury in his head. As such, we are of the view that the prosecution has failed to prove the chain of circumstances so as to establish the murder charge brought against the accused/appellant beyond all reasonable doubt. Rather, we are of the view that there is considerable doubt as to the circumstances under which the victim had suffered injuries in his head leading to his death. Therefore, such benefit of doubt, in our opinion, must go in favour of the accused. 28. For the reasons stated herein before, we set aside the impugned judgment and order dated 29.05.2017 and direct that the appellant be at once set at liberty unless his detention in jail is required in connection with any other case. wxyz Appeal stands allowed. Therefore, such benefit of doubt, in our opinion, must go in favour of the accused. 28. For the reasons stated herein before, we set aside the impugned judgment and order dated 29.05.2017 and direct that the appellant be at once set at liberty unless his detention in jail is required in connection with any other case. wxyz Appeal stands allowed. zyxw wxyz Before parting with the record, we wish to put on record our appreciation for the services rendered by Mr. Hazarika, learned Amicus Curiae in this case and direct that he be paid just remuneration for the services rendered as per the notified rule. zyxw wxyz Send back the LCR. zyxw