NIRANJAN PANJAversusSTATE OF WEST BENGAL

                  [2010] 7 S.C.R. 113


                   NIRANJAN PANJA                         A
                           v.
               STATE OF WEST BENGAL
           (Criminal Appeal No. 564 of 2005)
                     MAY 14, 2010
                                                          B
[V. S. SIRPURKAR AND DR. MUKUNDAKAM SHARMA,
                      JJ.]

     Penal Code, 1860 - s. 302 - Murder - Circumstantial
evidence - Motive alleged - Conviction by courts below C
relying on circumstances of the case including discovery of
the weapon of offence and applying the theory of 'last seen
together' - On appeal, held: Conviction not justified - The
circumstances relied on for passing conviction order are
inconsequential - Discovery of weapon of offence cannot be D
relied upon as the same was not produced before the court -
Motive which is an important circumstance, not proved -
Conviction cannot be based on theory of 'last seen together'
as the prosecution failed to establish the time of death.
    Appellant-accused, alongwith co-accused was           E
prosecuted uls. 302 rlw. s. 201 IPC for having caused
death of one person. The prosecution case was based
on circumstantial evidence. Trial court convicted the
appellant-accused uls. 302 IPC while acquitting the co-
accused. High Court confirmed the conviction.             F
     In appeal to this court appellant-accused contended
that majority of the circumstances, on the basis of which
conviction order was passed, could not be viewed as
incriminating circumstances; that despite the discovery
of the weapon of offence, the same was never produced G
before the court, nor was it identified by the witnesses.
0
   The State contended that there was motive for
commission of the offence in asmuch as there was
                          113                             H
    114      SUPREME COURT REPORTS           [2010] 7 S.C.R.


A   enemity between the accused and the deceased; and
    that it was the accused who was last seen together with
    the deceased.
          Allowing the appeal, the Court

8      HELD: 1. There is hardly any evidence in this case
  much less a clinching one to believe the theory that the
  accused had committed the murder. Both, the judgment
  of the trial court as well as the appellate court are
  incorrect judgments. In this case, the prosecution has
C utterly failed to prove that the accused has committed the
  murder of the deceased. The circumstances relied on by
  the High Court for convicting the accused are
  inconsequential. The circumstances were totally
  innocuous and suspicious. [Paras 9, 16 and 17] [123-G;
D 127-D-E]
      2. The High Court has c1ccepted the evidence on the
  recovery of the so-called wea·pon. The said discovery
  cannot at all be relied upon in the absence of the weapon
  being produced before the court. Again, the High Court
E has also commented upon the medical evidence of the
  Medical Officer (PW-11) when he spoke about the injuries
  upon the dead body being possible by Siuli Katari. In the
  absence of Siuli Katari being seen by the doctor in the
  court, this evidence should have been discarded. It
F seems that the so-called weapon of the offence was lost.
  The High Court had also expressed its displeasure and
  directed that the circumstances under which the said
  weapon was lost should be informed to the court and
  also as to who was responsible for the loss of the material
  weapon. There are no traces about the same. [Para t1]
G [123-8-Ej
       3. The question of motive has not been considered
  by the High Court at all. The so-called motive as deposed
  by PW-1 was that the accused used to speak against the
H deceased after the deceased stopped looking after his
  NIRANJAN PANJA v. STATE OF WEST BENGAL                115


litigation. It appears that the deceased used to look after    A
the litigation of number of persons and that was probably
his profession. It cannot be said that merely because the
deceased had stopped looking after the litigation of the
accused, the ace-used had any strong motive much less
to commit murder of the deceased. Motive is an important       B
circumstance in the prosecution which is based on
circumstantial evidence. However, there is no such
strong motive on the part of the appellant. [Para 10] [123-
G-H; 124-A-B]
    4. PW-1 had suggested in his evidence that on the C
fateful day in the evening he saw his father (the
deceased) at a tea-stall along with the accused and the
three other persons. Most of these witnesses, barring PW-
3 have not been examined in this case. Again, it will be
very inconsequential even if the accused was in the D
company of the deceased as there were number of other
persons also who were having tea. PW-1 then said that
he learnt from PW-3   that,thereafter, all of them went to
the liquor shop and took liquor. This evidence could not
have been allowed to be recorded because it is clearly E
inadmissible. The claim of PW-1 that the accused had
come to his house, and advised him to lodge a complaint
against two persons, was also extremely suspicious as
there was hardly any corroboration to this claim. The
witness also identified the blood-stained clothes. [Para F
11] [124~C-G]
    5. There is hardly anything in the evidence of PW-2
which is incriminating except that he had seized clothes
from the dead-body. PW-3 spoke about the deceased,
himself and the accused being there and their consuming        G
liquor at liquor shop. His evidence shows that he was
also in the company of the deceased till 9 p.m. He had
not stated about their taking liquor in his police statement
which he had accepted. The evidence of this witness
would be of no consequence, particularly, because the          H
    116      SUPREME COURT REPORTS                   [2010] 7 S.C.R.


A prosecution in this case has not fixed the time of death
  and no evidence is led to that effect. Where the
  prosecution depends upon the theory of 'last seen
  together', it is always necessary that the prosecution
  should establish the time of death, which the prosecution
B has failed to do in the present case. The evidence of PW-
  4 also is of no consequence. [Para 12) [124-G-H; 125-A-
  E]
       6. For effecting a discovery, a statement has to be
  recorded on the part of the accused showing his
C readiness to produce the material object and it is only
  that part of the statement which is not incriminating and
  leads to discovery which becomes admissible. The
  evidence of PW-5, a witness of discovery, does not
  inspire confidence and it is of no use, more particularly,           --
D because the so-called weapon of offence allegedly
  produced by the accused never saw the light of the day
  nor had the witness identified the same and the
  prosecution had also not given any explanation
  whatsoever about the disappearance of this weapon. The
E evidence of PWs 6, 8, 9, 11 and 12 also does not inspire
  any confidence. [Paras 13 and 14) [126-C-G]
        CRIMINAL APP ELLATE JURISDICTION : Criminal Appeal
    No. 564 of 2005.
F       From the Judgment and order dated 21.11.2003 of the
    High Court of Calcutta in CRA No. 229 of 1995.
          Ranjana Narayan for the Appellant.
          Avijit Bhattacharjee for the Respondent.
G         The Judgment of the Court was delivered by
         V.S. SIRPURKAR, J. 1. The appellant by this appeal
    challenges his conviction ordered by the Trial Court and
    confirmed by the High Court. He was tried for offence under
    Section 302, Indian Penal Code on the allegation that he had
H
  NIRANJAN PANJA v. STATE OF WEST BENGAL                   117
             [V.S. SIRPURKAR, J.]
committed the murder of one Haripada Samanta on the night          A
between 12-13th December, 1988 at Village Ghagra, Police
Station Mahisadal at Sarberia. Charges were framed under
Section 302 read with Section 201, IPC against Niranjan Panja
and one Narayani Parua. Eventually, the second accused was
acquitted of the offence under Section 302 read with Section       B
201, Indian Penal Code. However, accused Niranjan Panja
alone came to be convicted by the Trial Court under Section
302, Indian Penal Code and his appeal having failed, he is
before us.

     2. A report came to be filed before the concerned Police
                                                                   c
Station by one Tapan Kumar Samanta, who was the son of the
victim, Haripada Samanta, that his father was killed and his
body was lying in the narrow Khal. He reported that he found
number of injuries caused by a heavy sharp cutting instrument
on various parts of his body including head and neck. It was       D
stated that in the morning of 13.12.1988 at about 7 a.m. he got
the information about his father's dead body lying in a narrow
Khal. He stated that on the previous day in the morning his
father had gone to Midnapore to look after the case of one
Narayan Adhikari of their village and in the evening on that day   E
he himself had talked to his father at Mahisadal. At that time,
Niranjan Panja, Narayan Adhikari, Sudhir Maity and Nirode
Kanta Bera were with him. It was claimed that he came to know
that on the previous night at about 9 p.m. his father consumed
liquor with accused Niranjan Panja and Narayan Adhikari in the     F
liquor shop of one Bholanath Pal and, thereafter, the said three
persons came through the village pathway and while Narayan
Adhikari went towards his house, his father and Niranjan Panja
went back to their homes. However, Haripad Samanta did not
return home. On the basis of this complaint, investigation was     G
taken up by the In-charge of the said Police Station, Shri T.K.
Tas, Sub-Inspector of Police.

     3. The police also came to know during the investigation
that there was some rivalry between the deceased and the           H
    118      SUPREME COURT REPORTS                  [2010] 7 S.C.R.


A accused Niranjan Panja as the deceased had stopped looking
  after the cases of Niranjan Panja for the last 5-6 months on
  which Niranjan Panja used to speak against the deceased. The
  prosecution case is that it was on account of this that the
  accused had committed the murder. The prosecution examined
B number of witnesses including the complainant son. They were
  Ram Chand Bar (PW-2), Narayan Das Adhikari (PW-3), Ranjit
  Samanta (PW-4), Sunil Kumar Samanta (PW-5), Kanai Lal Das
  (PW-6), Paresh Das Adhikari (PW-7), Smt. Sita Samanta (PW-
  8), Rabindra Rana (PW-9), Amarendra Seth (PW-10), Dr.
c Ardhendu Bikas (PW-11) the medical officer, Hare Krishna
  Pramanik (PW-12) and Shri Tarun Kumar Das (PW-13). The
  case proceeded only on the circumstantial evidence as there
  was no eye witness. The defence was that of denial. The
  defence pointed out that there were major discrepancies in the
D prosecution evidence like the so-called weapon Siuli Katari
  was never produced before the Court and the necessary
  witnesses were also not examined.

          4. Ms. Ranjana Narayan, the Amicus Curiae pointed out
    that the evidence in this case was extremely brittle. She invited
E   our attention to the findings of the High Court where the High
    Court had culled out ten circumstances. She pointed out that
    out of these ten so-called circumstances, majority of them could
    not be viewed as incriminating circumstances. By reference to
    the evidence of the witnesses, she pointed out that the most
F   substantial circumstance was that the deceased was last seen
    in the company of the accused. She pointed out that, that
    circumstance was also not established and could not be
    viewed as an incriminating circumstance inspite of the so-
    called discovery of the weapon of murder which was neither
G   produced before the Court nor was identified by any of the
    witnesses. She also pointed out that the so-called blood stained
    Siuli Katari was not discovered by the accused. Learned
    Counsel urged that non-existing circumstances were taken into
    consideration, for example, the report of the Serologist showed
H   that the Katari was blood stained but the origin of that blood
  NIRANJAN PANJA v. STATE OF WEST BENGAL                        119
             [V.S. SIRPURKAR, J.]
could not be detected nor was that weapon ever produced                A
before the Court.

      5. As against this, Shri Avijit Bhattacharjee supported the
judgment by saying that there was motive inasmuch as there
was enmity between the accused and the deceased and it was             B
the accused who was in the company of the deceased on the
last day of his life i.e. on 12.12.1988 and that there was clinching
evidence to suggest that it was the accused alone who
accompanied the deceased back to his home and, therefore,
the accused was bound to explain on the basis of 'last seen            C
together' theory.

     6. We shall consider each of the circumstance relied upon
by the High Court. The High Court has quoted the following ten
circumstances:-
                                                                       D
     "A. PW-1 the son of deceased Haripada Babu came to
     know that his father has been murdered on the previous
     night (12.12.88) and his body was lying on a small canal
     in Sarberia. He informed his mother (PW-8), who in turn
     informed PW-4, Ranjit Samanta his uncle and some                  E
     neighbours and was also called by the village Chaukidar
     (PW-2) and on reaching the spot he identified the dead
     body of his father and PW-3 the Officer-in-Charge of the
     local Police Station. He signed on the Inquest Report
     (Ext.1) and was also witness to the Seizure List (Ext.2) in
                                                                       F
     respect of the wearing apparels and penned down the
     complaint (Ext.3).

     B. PW-1 learned from PW-3 Sudhir Maity (notexamined)
     and others that the Appellant used to speak against his
     father since he has stopped tadbirs of his cases.                 G

     C. On 12.12.88 morning the father of PW-1 along withPW-
     3 had gone to Midnapore in connection with a case
     instituted by the latter and in the evening he found in the
     tea stall of one Gautam Manna (not examined) near Sahid
                                                                       H
    120         SUPREME COURT REPORTS               [2010] 7 S.C.R.


A         Minar at Mahisadal bazaar that his father along with PW-
          3 and the appellant. Sudhir Maity (not examined), Nirode
          Kanta Bera (not examined) were taking tea. There he met
          his father and on his advice he returned home after
          marketing.
B
          D. After the murder of his father he (PW-1) heard from PW-
          3 that after they were taking tea, PW-3, the appellant and
          the deceased went to the liquor shop of Bholanath Pal (not
          examined) at Garkamalpur and took liquor and afterwards
          left that shop leaving beside Haripada Babu and the
c         appellant together.

          E. PW-7 who was returning home in the night at about 9.30
          in evening found that f-:aripada Babu, father of PW-1 was
          standing and on his query told him that he was waiting
D         since the appellant had gone to the house of his uncle (PW-
          6).

          F. The appellant came to the house of PW-1 after he
          returned home witnessing the dead body of his father lying
          by the side of the canal and advised him to lodge a
E
          complaint against one Haripada Panja and Abinash Panja,
          which we find corroborated from the evidence of PW-10
          also.

          G. The discovery of the dead body of deceased Haripada
F         Babu by the side of the canal and the Ext.6 the post-
          mortem report, prepared by PW-11 show that death was
          due to shock and haemorrhage which was homicidal and
          ante-mortem in nature.

G         H. The arrest of the appellant on the very next date of the
          incident followed by the statement made by him before
          PW-13 which led to the recovery of the blood stained Siuli
          Katari under a Seizure List (Ext.4) and a green coloured
          chadar and a white coloured dhoti under a Seizure List
          (Ext.5) in presence of PW-5.
H
  NIRANJAN PANJA v. STATE OF WEST BENGAL                    121
             [V.S. SIRPURKAR, J.)
    I. The evidence of PW-9 the village blacksmith, who            A
    deposed that the appellant came to his shop and got a
    Hansua sharpened by him and the day after he had
    sharpened the said weapon he heard that a man was
    murdered and his body was lying on the side of the small
    canal of Sarberia. In answer to the Court PW-9 the village     B
    blacksmith said-

          "Siuli Katari and Hansua are same thing."

    J. The Report of the Serologist (Ext.8) shows blood was
    detected in the Katari. However, since it w_as disintegrated   C
    the origin could not be determined."

     7. The first circumstance 'A' that Tapan Kumar Samanta
(PW-1) came to know about the death of his father and that his
dead body was lying near the small canal in Sarberia can hardly    o
be said to be an incriminating circumstance vis-'-vis the
accused. The second circumstance 'B' too cannot be
considered as an incriminating circumstance as Tapan Kumar
Samanta (PW-1) had never heard the appellant speaking
against his father and he claimed that he came to know about       E
that from Narayan Adhikari (PW-3) and Sudhir Maity (who was
not even examined). Therefore, that circumstance too would go
out of consideration. Insofar as the third circumstance to the
effect that the accused was seen in the company of the
deceased at Midnapore can hardly be said to be a
circumstance worth the name. It is alleged that the accused was
                                                                   F
seen taking tea with the deceased at Mahisadal bazar in the
company of Sudhir Maity and Nirode Kanta Bera and these
persons have not been examined at all. Therefore, even if it is
presumed that the deceased was taking tea with them in the
evening, that would be of no consequence. Insofar as the fourth    G
circumstance 'D' is concerned, again, it is based on the
hearsay evidence of Tapan Kumar Samanta (PW-1) that he
heard it from Narayan Das Adhikari (PW-3) that afterwards the
appellant and the deceased went to the liquor shop of Bholanath
                                                                   H
    122      SUPREME COURT REPORTS                    [2010] 7 S.C.R.


A   Pal at Garkamalpur and took liquor and afterwards left the shop
    leaving Haripada Samanta and the appellant together. This
    circumstance, in our opinion, could be somewhat relevant as it
    established the presence of the accused along with the
    deceased in the evening and the fact that he was in the
B   company of the deceased. However, we must point out here
    that the said liquor shop owner Bholanath Pal was never
    examined. The circumstance 'E' is also of no consequence as
    Paresh Das Adhikari (PW-7) merely saw the deceased
    standing alone by the side of courtyard in front of his house at
c   about 9.30 p.m. in the evening. On his inquiry as to why he was
    standing there, the deceased is supposed to have answered
    him that he was waiting for Niranjan Panja since he had gone
    to the house of his uncle, Kanai Lal Das (PW-6). In fc~ct, Kanai
    Lal Das (PW-6) denied this fact that the accused had come to
D   his place. Therefore, even that circumstance is extremely
    suspicious. As regards the sixth circumstance 'F', that the
    accused had gone to the house of Tapan Kumar Samant (PW-
    1) on 13.12.1988 and told him about his father lying by the side
    of canal and advising him to lodge a complaint against one
E   against Haripada Panja and Abinash Panja, we willconsider
    this circumstance later on when we examine the evidence in
    detail. The circumstance at 'G' is the discovery of the dead
    body by the side of the canal. That cannot be viewed against
    the accused unless the accused is connected with the death.
    The next circumstance 'H' is that the accused was arrested on
F   the next day and his arrest led to the recovery and blood stained
    Siuli Katari under a Seizure List (Ext.4) along with two other
    clothes, namely, a green coloured chadar and a white coloured
    dhoti. Unfortunately, for the prosecution this Siuli Katari was
    never brought before the Court. It is said to have been lost and
G   has never seen the light of the day before the Court. This is
    apart from the fact that the proof of discoveries itself is doubtful.
    The circumstance at 'I' is extremely strange. Under that
    Rabindra Rana (PW-9), the village blacksmith is said to have
    seen the accused sharpening a Hansua on the earlier day of
H   the incident. Neither that Hansua nor the said Siuli Katari had
  NIRANJAN PANJA v. STATE OF WEST BENGAL                    123
             [V.S. SIRPURKAR, J.]

been presented before the Court. This witness also did not          A
even see or identify the same. The last circumstance 'J' is about
the report of the Serologist showing that the Siuli Katari was
having blood. However, it is clear that the report does not say
that i1 was human blood. On the other hand, it was reported that
the blood was disintegrated and the origin of the same could        B
not be determined. Therefore, even this circumstance has to
go out of consideration.

     8. The High Court has accepted the evidence on the
recovery of the so-called weapon. We fail to follow as to how       C
the said discovery could at all be relied upon in the absence
of the weapon being produced before the Court. Again, the
High Court has also commented upon the medical evidence
of Dr. Ardhendu Bikash Das, the Medical Officer (PW-11)
when he/ spoke about the injuries upon the dead body being
possible by Siu Ii Katari. In the absence of Siuli Katari being     D
seen by the doctor in the Court, this evidence should have been
discarded. It seems that the so-called weapon of the offence
was lost. The High Court had also expressed its displeasure
and directed that the circumstance under which the said
weapon was lost should be informed to the Court and also as         E
to who was responsible for the loss of the material weapon. We
do not see any traces about the same. Therefore, the High
Court has merely relied upon the said discovery made in the
absence of Siuli Katari and recorded under Section 27, Indian
Evidence Act and the theory of 'last seen together'. From this,     F
the High Court has proceeded to hold that the chain of
circumstances was complete against the accused and the only
unmistakable inference of the same was in favour of the
culpability of the accused.
                                                                    G
     9. We have already pointed out as to how the so-called
circumstances were totally innocuous or suspicious.

    10. On this backdrop, we will first go to the question of
motive which has not been considered by the High Court at all.
The so-called motive as deposed by, PW-1, Tapan Kumar was           H
    124     SUPREME COURT REPORTS                    [2010] 7 S.C.R.


A that the accused Niranjan Panja used to speak against his
  father after his father stopped looking after his litigation. It
  appears that the deceased used to look after the litigation of
  number of persons and that was probably his profession. We
  do not think that merely because the deceased had stopped
B looking after the litigation of the accused, the accused had any
  strong motive much less to commit murder of the deceased.
  Motive is an important circumstance in the prosecution which
  is based on circumstantial evidenc3. However, we do not see
  any such strong motive on the part of the appellant. We,
c therefore, reject the theory that there was any motive much less
  any strong motive on the part of the accused so as to commit
  the murder of the deceased.

         11. In his evidence, PW-1, Tapan Kumar had suggested
    that on the fateful day in the evening he saw his father at the
D   tea stall of one Gautam Manna a!ong with Niranjan Panja
    (accused), Narayan Adhikari, Sudhir Maity and Nirode Kanta
    Bera etc. Most of these witnesses, barring Narayan Adhikari,
    have not been examined in this case. Again, it will be very
    inconsequential even if the accused was in the company of the
E   deceased as there were number of other persons also who
    were having tea. Ta pan Kumar Samanta (PW-1) then said that
    he learnt from Narayan Adhikari that, thereafter, all of them went
    to the liquor shop and took liquor. We do not know as to how
    this evidence was allowed to be recorded because it is clearly
F   inadmissible. The claim of Tapan Kumar Samanta that accused
    Niranjan Panja had come to his house, and advised him to
    lodge a complaint against Haripada Panja and Abinash Panja
    was also extremely suspicious as there was hardly any
    corroboration to this claim. This witness also identified the blood
G   stained dhoti and gangi baniyan.

      12. The second witness was Ram Chand Bar (PW-2) who
  was a gate keeper in the Gram Panchayat. There is hardly
  anything in his evidence which is incriminating except that he
H had seized clothes from the dead body. PW-3, Naryan Das
  NIRANJAN PANJA v. STATE OF WEST BENGAL                      125
             [V.S. SIRPURKAR, J.]

Adhikari spoke about the deceased, himself and the accused A
being there and their consuming liquor at Bholanath Pal's liquor
shop. He, however, claimed that at about 9 p.m. he parted way
and proceeded towards left and Haripada and Niranjan
proceeded towards right i.e. towards Sarberia. It means that
he was also in the company of the deceased till 9 p.m. He had B
not stated about their taking liquor in his police statement which
he had accepted. He admitted that he and Haripada got down
from the bus at Mahisadal on return from Midnapore. He also
admitted that nobody had witnessed that he had parted
company from Haripada and Niranjan at 9 p.m. on 12.12.1988.           c
He could not even tell as to how far Haripada and Niranjan went
together. He admitted that he parted way at a spot in Ghagra
Mouza. He further stated that the house of the deceased was
barely five minutes walk away from that spot while the
accused's house was about half a mile. It was also in the vicinity 0
of the village itself. The evidence of this witness would be of
no consequence, particularly, because the prosecution in this
case has not fixed the time of death and there is no evidence
 led to that effect. Where the prosecution depends upon the
theory of 'last seen together', it is always necessary that the
                                                                   E
 prosecution should establish the time of death, which the
 prosecution has failed to do in this case. The evidence of Ranjit
 Samanta (PW-4) also is of no consequence.

     13. Sunil Kumar Samanta (PW-5), however, was a witness
of discovery. He claimed that he went to the house of Niranjan        F
Panja along with the Panchayat member, Harekrishna
Pramanick, where the seizure of a chadar, a cloth and a side
bag made of cotton was made. Accused Niranjan Panja had
himself brought out those clothes and then accused led them
to the stack of loose earth under the Banana tree by the side         G
of canal and a Hansua was recovered where it was kept
concealed. He had then claimed that a lady had brought out
the weapon and the villagers informed them that she was the
second daughter of Niranjan Panja. He did not even identify that
lady. In his cross-examination, it was suggested that two articles,   H
    126      SUPREME COURT REPORTS                  [2010] 7 S.C.R


A namely, the clothes were seized from the house of accused
  Niranjan Panja. He admitted that he had gone to Thana for his
  personal business at about 8-9 p.m. and, there he met the
  Investigating Officer. The accused Niranjan Panja was also
  there. Then he along with the Investigating Officer and accused
B Niranjan went to the house of Niranjan. He admitted that there
  was no other member of the public in the jeep. He had to admit
  in his cross-examination that he had not said to the Investigating
  Officer that as per the showing of the Niranjan, Hansua was
  recovered from beneath loose earth under the Banana tree.
c Therefore, this can hardly be an evidence of discovery. For
  effecting a discovery, a statement has to be recorded on the
  part of the accused showing his readiness to produce the
  material object and it is only the part of the statement which is
  not incriminating and leads to discovery which becomes
D admissible. The evidence of this witness does not inspire
  confidence and it is of no use, more particularly, because the
  so-called Hansua allegedly produced by the accused never saw
  the light of the day nor had the witness identified the same and
  the prosecution had also not given any explanation whatsoever
E about the disappearance of this weapon.

        14. PW-6, Kanai Lal Das was declared hostile. Paresh
  Das Adhikari (PW-7) stated that he saw the deceased standing
  under a tree just by the side of the courtyard in front of his house
  and on being asked as to why he was standing there, the
F deceased said that the accused Niranjan had gone to Kanai
  Lal Das's house and since he was not on talking terms with
  Kanai Lal, he did not go along with the accused. He claimed
  that, thereafter, he went for answering the nature's call and when
  he returned, he did not find Haripada there. The evidence of
G this witness does not inspire any confidence. Kanai Lal Das
  himself said that the accused did not go to meet him and
  nothing of this sort had ever happened. This witness was
  declared hostile.

      15. The evidence of Smt. Sita Samanta (PW-8) is of no
H consequence because she did not know anything. However, the
  NIRANJAN PANJA v. STATE OF WEST BENGAL                     127
             [V.S. SIRPURKAR, J.]

evidence of Rabindra Rana (PW-9) is very interesting. He had         A
seen the accused sharpening the Hansua on the previous day.
This could hardly be a circumstance to be viewed against the
accused as the said Hansua has not seen the light of the day.
Dr. Ardhendu Bikas Das (PW-11) was the doctor who had
neither seen the Siuli Katari nor had fixed the time of death in     B
the post-mortem report. Hare Krishna Pramanik (PW-12)
refused that anything was seized by police from the house of
Niranjan Panja in his presence. He was not even declared
hostile. The Investigating Officer's evidence too is of no
consequence, particularly, because the so-called theory of           C
discovery has been disbelieved by us. He had not even
executed the spot Panchnama from where the so called Siuli
Katari was allegedly procured by the accused.

     16. In short, there is hardly any evidence in this case much
less a clinching one to believe the theory that the accused had      D
committed the murder.

      17. We are convinced that both the judgments of the Trial
Court as well as the Appellate Court are incorrect judgments.
In this case, the prosecution has utterly failed to prove that the   E
accused had committed the murder of the deceased, Haripada
Samanta. We, therefore, allow this appeal and set aside the
conviction of the accused. The accused shall be released
forthwith unless required in any other offence.
                                                                     F
K.K.T.                                          Appeal allowed.