JUDGMENT : SHREE CHANDRASHEKHAR, J. 1. In Sessions Trial No. 131 of 2009, Munna Gope has been convicted and sentenced to R.I. for life with fine of Rs. 5,000 under Section 302 IPC for committing murder of his wife and minor child. 2. Gua P.S. Case No. 07 of 2009 was registered on the basis of fardbeyan of Rajendra Tiriya recorded at 12:45 PM in the village. The case of the prosecution is that on 10.02.2009 at about 3:30 PM the appellant came to the shop of Krishna Gope. At that time he was carrying a blood-stained Dawli with which he assaulted him. Krishna Gope and Vashishth Gope over-powered him and wok him to his house where they found his wife and child lying dead in a pool of blood. Raghunath Gope on hearing shouts of Krishna Gope had also gone to his shop and found that Krishna Gope and Vashishth Gope had over-powered the appellant. He gave information to Rajendra Tiriya, Munda of the village. The police came to the village next day and recorded his fardbeyan and the appellant who had confessed the crime before the villagers was handed-over to the police. 3. During the trial, the prosecution has examined ten witnesses out of whom Bhaskar Gope PW-1, Krishna Gope PW-3, Raghunath Gope PW-4 and Shrawan Gope PW-7 are related to the appellant. Motilal Gope PW-2, Vashishth Gope PW-5 and Premnath Gope PW-6 are the co-villagers. 4. PW-1 and PW-2 are hearsay witnesses, they are the inquest witnesses. PW-3 and PW-4 are the seizure witnesses. 5. PW-1 has stated that PW-4 gave information to him about the occurrence and he informed Munda and co-villagers about the occurrence. PW-2 has, however, stated that PW-10 has informed him that someone has been murdered in the village and accompanied him to the police station. PW-6 and PW-10 are the inquest Witnesses, PW-6 is a hearsay witness. He has stated that his thumb impression was taken by police on a plain paper and in his cross-examination he has admitted that he had no knowledge about the occurrence or what was written on the paper by police. PW-10 has also admitted in his cross-examination that he does not know what was written on the paper and he has put his on the paper at the instance of police. 6. PW-9, Dr. PW-10 has also admitted in his cross-examination that he does not know what was written on the paper and he has put his on the paper at the instance of police. 6. PW-9, Dr. Dhirendra Kumar who was posted as Medical Officer at Sadar Hospital, Chaibasa has conducted post-mortem examination at 14:30 PM on 11.02.2009. He has found one incised wound 3” x ½” bone deep below chin of Saraswati Gape. 7. On the same day, PW-9 has conducted post-mortem examination on the dead-body of Rajeev Gope at about 4:45 PM and found one sharp cut wound on right side and back of scalp, size 3” x ½” bone deep. 8. In the opinion of PW-9, cause of death of both was shock and hemorrhage due to injury caused by sharp cutting weapon and hard substance and in his estimation time elapsed since death was 6 to 36 hrs. 9. The prosecution has based its case against the appellant on seizure of blood-stained Dawli, extra-judicial confession of the appellant and dead-body of his wife and child found in his house. 10. In a case based on circumstantial evidence an inference of guilt can be justified if the incriminating circumstances are incompatible with innocence of the accused and the circumstances from which an inference of guilt of an accused should be drawn are proved beyond reasonable doubt. In Padala Veera Reddy vs. State of Andhra Pradesh, 1989 Supp. (2) SCC 706, the Hon'ble Supreme Court has held as under: “10.........when a case rests upon circumstantial evidence such evidence must satisfy the following tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused. (3) the circumstances, taken cumulatively, should from a chain so compete that there in no escape from the conclusion that within all human probability the crime was committed by the accused and none else. (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” 11. (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” 11. PW-1, PW-3 and PW-4 who have supported the prosecution case against the appellant are closely related to him and, therefore in normal circumstances it can be believed that they would not shield the real culprit and falsely implicated the appellant in the case for committing murder of his wife and minor son. However, from the trend of cross-examination of the prosecution witnesses which would indicate that the appellant has set up a defence that to grab his properties, he was the only male member in his family, he was falsely implicated in the case and the other attending circumstances in the case remind us to keep in mind the following test which was laid down by the Hon'ble Supreme Court in Masalti vs. State of U.P. (1964) 8 SCR 133 : “14........Whether or not there are discrepancies in the evidence, whether or not evidence strikes the court as genuine whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witness should be discarded only on the ground that it is evidence of partisan or interested witness. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal courts have to deal with evidence of a partisan type.........” 12. There is serious controversy on registration of the First Information Report. Mr. A.K. Kashyap the learned Senior Counsel assisted by Ms. Apoorva Singh, the learned Amicus, has contended that preparation of seizure list and inquest report before fardbeyan of the informant was recorded by police and admission of the prosecution witnesses that they had given information in the police station about the occurrence before fardbeyan of the informant was recorded in the village would show that after due deliberation a First Information Report was lodged to falsely implicate the appellant in this case. The learned Senior Counsel has relied on the judgments in Balaka Singh vs. State of Punjab, (1975) 4 SCC 511 and State of Andhra Pradesh vs. Punati Ramulu, 1994 Supp. (1) 590 to fortify his contentions. 13. In Balaka Singh (supra), a case in which the inquest report was prepared after recording of the First Information Report, the Hon'ble Supreme Court has held that there was sufficient time for the prosecution party to prepare a false case against the accused. PW-2, PW-3 and PW-10 had gone to Gua police station in the morning of 11.02.2009 and in his cross-examination PW-10 has stated that he reached the police station at 7:00 AM and gave an information that murder has been committed in the village. In his examination-in-chief PW-10 has further stated that before he went to the house of the appellant he had informed the police about the incident. PW-8, the investigating officer has stated that he received information about the incident in the police station at 9:45 AM and arrived in the village at about 12:10 PM, however, PW-3 says that he along with PW-10 had reached the police station at about 5:00 AM and accompanied the police to the village at about 4:00 PM. What was the statement given by PW-3 and PW-10 in the police station has not been brought on record and looking at the explanation for delay given by PW-3, that he was stuck in the traffic jam which is apparently a false statement, delay in sending an information to the police about the occurrence which has taken place at about 3:00 PM on 10.02.2009 would definitely assume significance. 14. In Ram Jag vs. State of U.P. (1974) 4 SCC 201 , the Hon'ble Supreme Court has observed that a witness cannot be called upon to explain every hour's delay and a common sense view has to be taken in ascertaining whether the First Information Report was lodged after an undue delay so as to afford enough scope for manipulating the evidence and whether the delay is so long as to throw a cloud of suspicion on the prosecution case must depend upon variety of factors. It is also true that delay of one or two days in sufficiently explained may not be material and even delay of few hours reason for which is not found acceptable by the Court may prove fatal for the prosecution. It is also true that delay of one or two days in sufficiently explained may not be material and even delay of few hours reason for which is not found acceptable by the Court may prove fatal for the prosecution. The narration of the happenings on 10.02.2009 as spoken by the prosecution witnesses, in our opinion, has shrouded the First Information Report with suspicion. 15. The preparation of seizure list is also not free from doubts. PW-4 has not supported the prosecution in as much as in paragraph no. 5 of his examination-in-chief he has stated that in his presence nothing was seized by the police. He has put his signature on the seizure list but says that contents of the document was not read over to him and his statement in his cross-examination that he was grazing sheep in the forest about one kilometer from the shop of Krishna Gope makes his testimony doubtful, he has stated in the Court that on hearing shouts of Krishna Gope he ran towards his shop. He says that he has seen blood-stained Dawli and PW-3 and PW-5 were holding the appellant. PW-3 has deposed in the Court that the appellant came to his shop with a Dawli and started assaulting him, however, he has admitted in his cross-examination that he has no knowledge on whose statement the case was lodged. According to the prosecution, the appellant was apprehended and tied with a jack-fruit tree and after police came he was handed over to the police. PW-3 in his cross-examination has, however, stated that he himself or PW-5, PW-10 and PW-1 were not amongst the persons who had caught hold of the appellant rather the appellant was confined by Tunnu Gope and others, those witnesses were not produced during the trial. Moreover, as rightly contended by Mr. A.K. Kashyap, the learned Senior Counsel for the appellant that as the seized articles were not produced and the investigating officer has admitted that the articles were not kept in Thana Malkhana, seizure of Dawli has not been proved by the prosecution. Non-production of the crime weapon in the Court may not be of much significance in a particular case but in view of the aforesaid circumstances non-production of the crime weapon in the Court would also be a relevant factor. 16. PW-1, PW-3 and PW-4 are related to the appellant. Non-production of the crime weapon in the Court may not be of much significance in a particular case but in view of the aforesaid circumstances non-production of the crime weapon in the Court would also be a relevant factor. 16. PW-1, PW-3 and PW-4 are related to the appellant. PW-3 has admitted during the cross-examination that the appellant was the only child of his parents and his children are minor. The defence set-up by the appellant is that to grab his properties the prosecution witnesses have implicated him falsely in this case. PW-4 has stated that the appellant has four daughters and one son. During the trial son of the appellant was examined as PW-7 but he has not supported the prosecution and his sisters were not produced during the trial. In paragraph-8 of the cross-examination, PW-4 has stated that around the house of the appellant Indro Gope, Harish Gope, Krishna Gope, Upendra Gope, Jai Gope and Ghasia Gope are residing and the Investigating Officer has also stated that Indro Gope and Ramesh Gope are neighbours of the appellant, however, during the trial none of these independent witnesses was examined by the prosecution. In a case of this nature, the prosecution is completely silent on motive for the crime. PW-3 has also not uttered a word why the appellant came to assault him and the prosecution story that PW-3 and PW-4 had overpowered the appellant and a blood-stained Dawli was seized from his possession has become doubtful also for the reason that no sign of attack by the appellant was found on PW-3. 17. In Ranjit Singh vs. State of Punjab, (2011) 15 SCC 285, the Hon'ble Supreme Court has observed that merely because death of a woman has taken place in her matrimonial home that by itself is not sufficient to raise a presumption under Section 106 of the Evidence Act to hold an accused guilty for murder. In the present case, the prosecution has failed to establish a prima-facie case so as to raise a presumption under Section 106 of the Evidence Act. 18. The extra-judical confession of the appellant is a strong circumstance relied upon by the prosecution to prove the charge against him. PW-4 and PW-5 have stated that the appellant had confessed before them that he has killed his wife and son. 19. 18. The extra-judical confession of the appellant is a strong circumstance relied upon by the prosecution to prove the charge against him. PW-4 and PW-5 have stated that the appellant had confessed before them that he has killed his wife and son. 19. In S. Arul Raja vs. State of Tamil Nadu, (2010) 8 SCC 233 , the Hon'ble Supreme Court has observed that an extra-judical confession must be used with restraint and only in limited circumstance and by way of abundant precaution it can be used when it is corroborated by other circumstance. In Sunil Rai vs. UT, Chandigarh, (2011) 12 SCC 258 , the Hon'ble Supreme Court has observed that the extra-judical confessional statement made orally before a person with whom the maker of the confession has no intimate relationship is not very strong piece of evidence and in any event it can only be used for corroboration. 20. The extra-judicial confession of the appellant made before PW-4 and PW-5 does not inspires confidence of the Court, particularly, because inconsistency and discrepancy in the testimony of these witnesses have seriously shaken their credibility. There is no other evidence produced by the prosecution which would lend support and give credence to the extra-judicial confession of the appellant so as to make it a reliable piece of evidence. 21. The above being the factual scenario, we find that the circumstances relied upon by the prosecution against the appellant are not proved and the chain of circumstances is not complete. 22. In Trimukh Maroti Kirkan vs. State of Maharashtra, (2006) 10 SCC 681 , the Hon'ble Supreme Court has held as under: “12.............The normal principal in a case based on circumstantial evidence is that the circumstance from which an inference of guilt is sought to be drawn must be cogently and firmly established, that those circumstance should be of a definite tendency unerringly pointing towards the guilt of the accused, that the circumstance taken cumulatively should from a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence.” 23. Therefore, we hold that the prosecution has failed to prove the charge under Section 302 IPC against the appellant and accordingly, his conviction in Sessions Trial No. 131 of 2009 for committing murder of his wife and the son is set-aside. 24. Mr. Ravi Prakash, the learned Spl. P.P. states that the appellant is in custody. 25. The appellant, namely, Munna Gope, therefore, shall be set free forthwith, if not wanted in connection to any other case. 26. Criminal Appeal (DB) No. 193 of 2016 is allowed. 27. We appreciate good gesture of Mr. A.K. Kashyap, the learned Senior Counsel who on request of the Court has rendered his valuable assistance. We also appreciate the assistance rendered by Ms. Apoorva Singh, the learned amicus who has prepared meticulously synopsis, list of dates and notes of arguments and Mr. Ravi Prakash, the learned Spl. P.P. 28. The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus as per Notification dated 23.11.2017. 29. Let the lower-Court records be sent to the Court concerned, forthwith. 30. Let a copy of the Judgment be transmitted to the Court concerned and concerned Jail Superintendent through FAX.