Vishnudeo Narayan, J.

1. Death Reference No. 3 of 2002 under Section 366 of the Code of Criminal Procedure referred by the 1 st Additional Sessions Judge, Jamtara and Cr. Appeal No. 874 of 2002 preferred by sole appellant named above arise from the impugned judgment and order dated 29-11-2002 and 30-11-2002 respectively passed in Sessions case No. 165 of 1997/215 of 2001 by Shri Surendra Nath Pandey, 1st Additional Sessions Judge, Jamtara, whereby and whereunder appellant, Sushil Murmu was found guilty for the offence under Sections 302 and 201 of the Indian Penal Code and he was convicted and sentenced to death for the offence under Section 302 of the Indian Penal Code and also to undergo R.I. for seven years for the offence undor Section 201 of the Indian Penal Code. However, co-accused Rijmani Manjhian and Bahmani Murmu ware found not guilty and they ware acqultted-

2. The prosecution case has arisen on the basis of the fardbeyan (Ext. 2) of PW-2, Somlal Besra, the father of Chirku Besra, aged about nine years, who is the deceased of this case, recorded by PW-11, N.N. Singh, A.S.I. Binda Pathar P.S. Dumka (now Jamtara) on 13-12-1996 at 13.30 hours at the said police station regarding the occurrence which is said to have taken place between 11-12-1996 and 12-12-1996, though the specific time of the occurrence has not been disclosed. On the basis of the fardbeyan aforesaid case was instituted on that very day at 23.00 hours as per formal FIR (Ext. 3) which was received in the Court empowered to take cognizanceon 15-12-1996.

3. The prosecution case, in brief, is that PW-2, Somlal Besra came to his house in the evening of 11 -12-1996 after harvesting paddy and he did not find his nine years old son, Chirku Besra (the deceased of this case) in the house and he started making hectic search of him and in course of search he enquired from Birad Murmu, the son of appellant, Sushil Murmu, who works as Janguru and Birad Murmu aforesaid told him that worship of Goddess Kali was performed in his house and Chirku Besra had taken Prasad in his house and he does not know as to where he has gone from there. It is alleged that the informant made hectic search of his son aforesaid in the village and at the places of relatives but all in vain. The prosecution case further is that in course of search on 13-12-1996 he learnt from PW-14. Ashok Choudhary, the younger son of Manilal Choudhary of village Dalbedia that he has seen a dead-body kept in a sack in the pond of Barki Dagol when he had gone to wash his buffalo and on this information he went to the said pond and found a sack in which there was a dead-body and thereafter he returned to his house and told about the same to his brother, Dhena Besra and thereafter informant in the company of his brother aforesaid went to the said pond at Barki Dagol where he saw the dead-body in a sack in the said pond and while they were returning from there PW-4, Ranjit Marandi, son of Balak Marandi of his village told him that he has seen appellant, Sushil Murmu carrying something in a sack on his cycle going towards the pond at 11 Oclock yesterday (12-12-1996) and he returned immediately to his house after throwing the said sack. The prosecution case further is that thereafter appellant was caught who confessed his guilt and stated that he has sacrificed Chirku Besra by severing his head before Goddess Kali in which his wife Bahmani Murmu and his mother Rajmani Manjhian have assisted him, It is also alleged that some hurt has been caused to the appellant in course of his apprehension. It is also alleged that appellant has been kept confined in the village when he was attempting to flee away.

4. In course of investigation the headless dead-body of Chirku Besra was recovered kept in a sack from the pond of Barki Dagol in village Murgabani. The said pond is situated on the boundary of village Murgabani and Torojoria and there was 3 deep water in the said pond. In pursuance of confessional statement of the