JUDGMENT : Suman Shyam, J 1. Heard Ms. Bijita Sarma, learned Amicus Curiae, appearing for the appellant. We have also heard Ms. B. Bhuyan, learned APP, Assam, appearing for the State/ respondent No.1. None has appeared for the informant/respondent no.2. 2. The instant appeal from jail is directed against the judgment dated 15/05/2018 passed by the Court of learned Additional District and Sessions Judge, Hojai in Sessions Case No. 15(N)/2017, convicting the sole appellant U/Ss 341/302 of the IPC and sentencing him to undergo rigorous imprisonment for life for committing the offence under Section 302 of the IPC and to suffer rigorous imprisonment for one month for the offence committed under Section 341 IPC and also to pay fine of Rs. 20,000/-. 3. The prosecution case, in a nutshell, is that on 09/11/2015 at around 3 P.M., Md. Mustafa Ahmed i.e. the deceased was returning home from Doboka after purchasing some goods when he was attacked by the appellant and 4 (four) other companions after intercepting him on the Doboka Pathar Jur Dighal road and killed him by cutting his neck with a sharp weapon. The father of the deceased, viz. Md. Ataur Rahman had lodged an ejahar on 10/11/2015 with the Officer-in-Charge of Doboka Police Station reporting the incident. Based on the aforesaid ejahar, Doboka Police Station case No. 495/2016 was registered under Sections 341/302/34 IPC, where-after, investigation was started. Upon completion of investigation, the Investigating Officer (IO) had submitted Charge sheet against the appellant Md. Mazid Ali on the basis of the materials collected against him. However, the other accused persons were not sent up for trial since no incriminating material could be found against them. 4. On the basis of the Charge Sheet submitted by the I.O., charges under Sections 341/302 IPC were framed against the accused/appellant and the contents of the charges were read over and explained to him. Since the accused had pleaded not guilty and claimed to be tried, hence, the matter went up for trial. 5. The prosecution case is based on circumstantial evidence. In order to bring home the charges framed against the accused/appellant, the prosecution had examined as many as 9(nine) witnesses including the Doctor (PW-4) who had conducted the post mortem examination on the dead body, the I.O.(PW-8) and the Circle Officer (PW-9), who had conducted inquest on the dead body. 6. 5. The prosecution case is based on circumstantial evidence. In order to bring home the charges framed against the accused/appellant, the prosecution had examined as many as 9(nine) witnesses including the Doctor (PW-4) who had conducted the post mortem examination on the dead body, the I.O.(PW-8) and the Circle Officer (PW-9), who had conducted inquest on the dead body. 6. After analyzing the evidence available on record, the learned trial Court has held that the charges brought against the appellant were proved beyond reasonable doubt. Accordingly, the appellant was convicted and sentenced as aforesaid. 7. Assailing the impugned judgment and order dated 15/05/2018, Ms. Sarma, learned Amicus Curiae has argued that there is no eye witness in this case and the evidence of PWs 1 & 2 were not trustworthy. Therefore, their testimonies could not have been relied upon by the learned Trial Court for convicting the appellant moreso, since both those witnesses were related to the victim. Ms. Sarma has further argued that there is no proper evidence connecting the appellant with the commission of the crime and since the IO had failed to get the finger prints on the seized “dao” examined through the Forensic Science Laboratory (FSL), the prosecution case could not have been held to have been proved beyond reasonable doubt. Ms. Sarma has also argued that there is no proper explanation as to why the IO did not get the alleged confessional statement of the accused recorded before a Magistrate under Section 164 Cr.P.C. and, therefore, the confession allegedly made by the appellant before the Police during the course of investigation would not have any relevant bearing in this case. That apart, she submits, there is material discrepancies as regard the time of seizure of the weapon, which raises serious doubt on the prosecution story. 8. Responding to the above, Ms. B. Bhuyan, learned APP, Assam, submits that the occurrence evidently took place in a remote area where the presence of independent witnesses was very unlikely. Contending that the testimony of PWs 1 & 2 corroborates each other’s version, Ms. Bhuyan submits that there was cogent evidence available on record to establish the charges brought against the appellant and to that extent, it cannot be said that the prosecution had failed to prove the charges beyond reasonable doubt. It is also the submission of Ms. Contending that the testimony of PWs 1 & 2 corroborates each other’s version, Ms. Bhuyan submits that there was cogent evidence available on record to establish the charges brought against the appellant and to that extent, it cannot be said that the prosecution had failed to prove the charges beyond reasonable doubt. It is also the submission of Ms. Bhuyan that the IO had seized the “dao” and had also sent the same for FSL examination. Moreover, there is no dispute about the fact that soon after the incident, the accused/appellant had surrendered in the Police Station. Ms. Bhuyan, therefore, submits that the IO had meticulously conducted the investigation in this case and thereafter submitted the charge sheet on the basis of materials collected by him. The testimony of th witnesses have been found to be reliable by the learned trial Court and there is no cogent reason to disturb such conclusion of the learned Court below. 9. We have given our anxious consideration to the arguments advanced by learned counsel for both the parties and have also carefully gone through the materials available on record. 10. As has been noticed above, the prosecution has relied upon circumstantial evidence to prove the charges brought against the accused /appellant. The appellant, however, did not adduce any evidence although his case is one of total denial. Therefore, the core issue arising in this appeal for consideration by this Court is as to whether, the learned trial Court was correct in holding that the charges brought against the appellant had been proved beyond reasonable doubt. In order to do so, it would be necessary to briefly refer to the evidence led by the prosecution. 11. PW-1 Md. Ataur Rahman is the informant in this case and he is also the father of the deceased. PW-1 had stated before the Court that the incident took place about 1 and ½ years ago around 3/3-20 p.m. when his son Mustafa was returning from Doboka market bringing some grocery items. At that time, the accused, accompanied by four other persons, had confronted him on the road at Doboka Pathar Jur Dhigali and killed him by dealing dao blows on the neck. The deceased had suffered grievous injuries on both his hands and the head due to the dao blows and his head was severed. At that time, the accused, accompanied by four other persons, had confronted him on the road at Doboka Pathar Jur Dhigali and killed him by dealing dao blows on the neck. The deceased had suffered grievous injuries on both his hands and the head due to the dao blows and his head was severed. PW-1 had also stated that just before the incident, his son Mustafa (deceased) had informed him over phone that accused Mazid and four other persons were trying to kill him so he should go there within five minutes. This witness has also deposed that his son Mustafa also rang up his son-in-law (PW-2) and told him the same thing. Having received the intimation, he immediately went there and saw the accused Mazid running toward Doboka Pathar with a “dao” in his hand and four other persons running towards the north. Amongst the four persons there were Sundar Ali, Ashab and Saiful. He did not, however, know the name of the other person. PW-1 has also stated that he found his son lying on the ground with his head severed. He then raised halla and public came there. Later on, he had lodged an ejahar with the Police Station. Police came and took away the dead body. PW-1 has also deposed that he saw the accused Mazid in the Police Station. In his cross examination, PW-1 had stated that there was a dispute between his son and the accused and about 2 & 2 ½ years ago, a “bichar” was held in the village over the matter. 12. PW-2 Md. Azizur Rahman is the son-in-law of the informant and brother-in-law of the victim Mustafa. This witness has deposed that the incident took place about 1 and ½ years ago around 3 p.m. On the date of the incident, Mustafa had informed him over phone that Abdul Mazid and his brothers had been confronting him at a place, viz. Dighalipar and that he should go there. After five minutes he had arrived at that place and saw Mazid running away taking a ‘dao’ in his hand and his brothers were running towards the brick klin. The dead body of Mustafa was lying with injuries on the head, neck, hands and back. Inquest on the dead body was conducted by the Circle Officer, Doboka. Ext. 1 is the inquest report and Ext. 1(1) is his signature. 13. PW-3 Md. The dead body of Mustafa was lying with injuries on the head, neck, hands and back. Inquest on the dead body was conducted by the Circle Officer, Doboka. Ext. 1 is the inquest report and Ext. 1(1) is his signature. 13. PW-3 Md. Kalimuddin did not see the incident but he went to the place of occurrence after the incident took place and put his signature in the inquest report Ext.-1. PW-3 has proved his signature in the inquest report as Ext. 1(2). 14. PW-4 Dr. Arup Jyoti Mahanta was the SDM & HO at the B.P. Civil Hospital at Nagaon and he had conducted the post mortem examination on the dead body on 11/11/2015. According to the doctor, the following injuries were found in the dead body:- “1. A deep cut on right side of neck cutting through carotid vessels pharynx, larynx and survical spine, attached by only a skin tag on the left side. Rigor mortis was present. 2. There was another injury on top of mid skull including the skull bone expressing brain matter size was 6” x 1” x 1”.” The doctor had opined that death was due to loss of vital as a result of the above injuries. The injuries were caused by sharp cutting weapons. 15. PW-5 Md. Ziabur Rahman also did not see the incident but he had gone to the place of occurrence after hearing from someone that a boy had been killed and a ‘dao’ had been left on the road near his house. PW-5 is the seizure witness of the ‘dao’ who had deposed that Ext. 3 is the seizure list and Ext. 3(1) was his signature. 16. PW-6 Md. Yakub Ali is another seizure witness of the ‘dao’. This witnesses was later declared as a hostile witness. During his cross examination by the prosecution, PW-6 had denied of having stated before the Police that after hacking Mustafa, while Mazid was throwing away the ‘dao’, he had seen him and that on being shown, the Police seized the ‘dao’. 17. PW-7 Ratul Ahmed Laskar is also a seizure witness of the “dao” but his testimony is not of much significance in this case. 18. Sri Sanjib Terang (PW-8) is the I.O. in this case. 17. PW-7 Ratul Ahmed Laskar is also a seizure witness of the “dao” but his testimony is not of much significance in this case. 18. Sri Sanjib Terang (PW-8) is the I.O. in this case. PW-8 has deposed before the Court that on 09/11/2015 at about 4-05 p.m. while he was working as the Officer-in-charge of Doboka Police Station, the accused Mazid Ali had appeared in the Police Station and informed that he had killed one Mustafa Ahmed @ Mastan of the same village with a “dao”. On receipt of the aforesaid information, he had prepared GD entry No. 196 dated 09/11/2015 and then immediately informed the matter to the Superintendent of Police (SP) and the Circle Officer of Doboka. He along with other staff then rushed to the place of occurrence where he found the dead body of Mustafa Ahmed lying in a pool of blood. PW-8 has stated that on arriving at the place of occurrence he had recorded the statement of the witnesses, prepared a sketch map and then seized the ‘dao’ in presence of seizure witnesses and then sent the dead body to the B.P. Civil Hospital, Nagaon for post mortem examination. On the same day, at about 09-30 p.m., Ataur Rahman i.e. the father of the deceased had lodged an FIR in the Police Station, based on which, a police case was registered and he had conducted the investigation in the matter. PW-8 had further stated that he had recorded the statement of the accused Mazid Ali, wherein he had confessed to have killed Mustafa with a ‘dao’ and that he had thrown away the ‘dao’. The I.O has also deposed that he had seized one Mobile Phone from one of the witnesses who is another son of the informant and had also forwarded the accused to Jail Hajot after taking him into the Police custody. He had sent the seized ‘dao’ for FSL examination and collected the post mortem report as well as the FSL report whereafter, he had submitted charge sheet against the accused under Sections 34/302 of the IPC. The I.O. (PW-8) had also stated that the witness PW-6 in his statement recorded under section 161 Cr.P.C. had stated before him that he saw the accused Abdul Mazid running away after assaulting the victim with a ‘dao’ and had also seen the accused throwing away the ‘dao’. Ext. The I.O. (PW-8) had also stated that the witness PW-6 in his statement recorded under section 161 Cr.P.C. had stated before him that he saw the accused Abdul Mazid running away after assaulting the victim with a ‘dao’ and had also seen the accused throwing away the ‘dao’. Ext. 8 is the statement of the witness Yakub Ali (PW-6) recorded by him and Ext. 8(1) is his signature. 19. PW-9 Sri Animesh Talukdar was the Circle Officer of Doboka Revenue Circle on duty on the date of the incident and had conducted inquest over the dead body. PW-9 had deposed that upon conducting inquest on the dead body of the victim Mustafa Ahmed, he found (a) cut mark on head, (b) right hand cut mark and (c) left hand cut mark on fingers and blood stain. PW-9 had also confirmed that the inquest was conducted in presence of witnesses. 20. As noticed above, the prosecution case is entirely based on circumstantial evidence. The learned trial Court has placed heavy reliance on the testimony of two witnesses, viz. PW1, who is the informant and the father of the victim and PW-2 i.e. the brother-in-law of the victim. According to these two witnesses, the victim had called up in their mobile phone intimating that the accused Mazid, accompanied by four of his associates, had confronted him on the Doboka Pathar Jur Dighal road and were trying to kill him. However, we find that the PW-1 had not stated so before the I.O. while recording his statement under Section 161 Cr.P.C. On the contrary, the PW-1 had only stated that Md. Abdul Mazid and four of his associates had killed his son in Doboka Pathar and thereafter, surrendered before the Police. The aforesaid contradiction in the testimony of PW-1 has been proved by the I.O. (PW-8), who has stated in his cross examination that the PW-1 did not state before him about receiving any information from his victim son over phone before the occurrence or that at the time of the occurrence, the informant (PW-1) and his son-in-law (PW-2) had appeared and seen the accused Abdul Mazid flee away with a ‘dao’ and four other accused persons. 21. 21. A reading of the ejahar lodged on 10/11/2015 by the PW-1 also goes to show that the informant has stated that somebody had informed him over phone that five persons including the FIR named accused had intercepted his son on the Doboka Pathar Jur Dighali road and killed him by cutting his neck. However, there is no mention in the FIR about any phone call having been received by the PW-1 from his son. The PW-1 had also deposed before the Court that just before the incident, his victim son had called up his mother in her mobile phone but there is no mention of the said fact also in the ejahar nor has he stated so before the Police. The aforesaid contractions/omissions in the testimony of PW-1, appear to be material contradictions, which in our view, would impeach the creditability of the witness. 22. Coming to the testimony of PW-2, we find from the LCR that even this witness did not state before the Police that the victim had called him over phone and told him that the accused Abdul Mazid and his brothers had confronted him at a place named Dighalipar and that he should go there immediately. This witness also did not state before the Police that after five minutes of the phone call, he had arrived there and saw accused Mazid running away taking a ‘dao’ in his hand. On the contrary, we find that in his statement recorded under Section 161 Cr.P.C., the PW-2 had stated before the Police that he had not seen as to who had killed the deceased and that he had only seen the victim lying with multiple injuries in various parts of his body. Although during his cross-examination, this witness was not confronted with his previous statement recorded under Section 161 Cr.P.C., yet, it is apparent on the face of the record that there was substantial improvement in his testimony, making his evidence wholly unreliable. Moreover, the evidence adduced by PWs 1 & 2 do not in any manner establish the fact that it was the accused who had attacked the victim along with four of his associates and killed him by hacking with a ‘dao’. Moreover, the evidence adduced by PWs 1 & 2 do not in any manner establish the fact that it was the accused who had attacked the victim along with four of his associates and killed him by hacking with a ‘dao’. Notwithstanding the same, we find that the learned trial Court had relied upon the evidence of PWs 1 & 2 to arrive at the conclusion that it is none other than the accused/appellant who had killed the deceased Mustafa. 23. As noticed above, the other witnesses, viz. PWs 3, 4 and 5 are merely seizure witnesses and their testimonies would not have much significance in establishing the charge brought against the accused /appellant. 24. PW-6 Yakub Ali was an important witness in this case. From the statement of PW-6 recorded under Section 161 Cr.P.C., it appears that this witness had stated before the Police that he had seen the accused throw away a ‘dao’ near his house. However, while adducing evidence before the Court, PW-6 did not say so. Rather, this witness had deposed that “some persons” had thrown a ‘dao’ near his house and the Police went there and took away the dao. This witness was later declared as a hostile witness. During his cross-examination by the prosecution nothing relevant could be elicited from this witness. 25. We have also noticed that the IO (Pw-8) had seized a ‘dao’ and sent it for FSL examination but the FSL report could not clearly established the presence of human blood in the “dao” far less the blood of the victim. Moreover, the IO did not make any attempt to get the finger prints in the seized dao examined through the FSL so as to connect it with the accused. If that be so, it is evident that the weapon i.e. the seized “dao” could not be connected by the prosecution with the accused person in this case. 26. We also find from the evidence of PW-8 that he had seized a mobile phone. However, the I.O. has not obtained the call record nor collected any evidence to show that the victim had called up in that mobile just before the occurrence. 27. It is no doubt correct that the materials on record indicated that the accused had surrendered before the Police Station and had reportedly confessed to have killed the victim. However, the I.O. has not obtained the call record nor collected any evidence to show that the victim had called up in that mobile just before the occurrence. 27. It is no doubt correct that the materials on record indicated that the accused had surrendered before the Police Station and had reportedly confessed to have killed the victim. However, it is the established position in law that a confession made by the accused in the Police Station would not have any evidential value. Moreover, the I.O. has not offered any explanation as to why he did not take any step for recording the confession of the accused under Section 164 Cr.P.C. before a Magistrate. Rather, the IO (PW-8) has mentioned that the accused had surrendered in the Police Station for his own safety. Therefore, the mere fact that the accused/appellant had surrendered before the Police Station, in our view, would not have any material bearing in the outcome of the case. Save and except the above, there is no other evidence brought on record by the prosecution side. 28. Ms. Bijita Sarma, learned Amicus Curiae has also invited our attention to certain other discrepancies regarding the time of seizure of the “dao” and submits that as per the evidence adduced by the I.O., the dao was seized at about 6 p.m. on the date of occurrence but the G.D. entries mentions the time as 4 p.m. Although, law is well settled that minor discrepancies in the evidence adduced by the prosecution would not have any material bearing unless the same goes into the root of the matter, yet, having regard to the facts and circumstances of the case and for the reasons discussed herein above, we are of the view that there are sufficient loopholes in the investigation of the case. The I.O. had failed to collect proper evidence against the accused. We are, therefore, of the opinion that the prosecution has failed to establish the chain of circumstances leading to the guilt of the appellant/accused, so as to establish the charges beyond reasonable doubt. The testimony of PWs 1 & 2 does not inspire the confidence of this Court. The I.O. had failed to collect proper evidence against the accused. We are, therefore, of the opinion that the prosecution has failed to establish the chain of circumstances leading to the guilt of the appellant/accused, so as to establish the charges beyond reasonable doubt. The testimony of PWs 1 & 2 does not inspire the confidence of this Court. On the face of such material contradictions/omissions and improvement in their testimony, as noted above, the evidence of PWs 1 & 2, who are related to the victim, could not form the basis of conviction of the appellant in this case. 29. Situated thus, we hold that the impugned judgment and order dated 15/05/2018 is unsustainable in the eye of law. The same is accordingly set aside. The accused/appellant is hereby acquitted. 30. We are informed that the appellant is presently in jail. We, therefore, direct that the appellant be forthwith released from Jail unless his custodial detention is found to be necessary in connection with any other case. 31. Before parting with the case record, we intend to put on record our appreciation for the valuable services rendered by Ms. Bijita Sarma, learned Amicus Curiae and direct the Registry to ensure that just remuneration, as per the notified fee, be paid to her. Send back the LCR.