1. Death reference and the appeal are directed against the impugned judgment of conviction dated May 2, 2023 and consequent order of sentence dated May 3, 2023 passed by Learned Additional Sessions Judge, 1st Court, Jhargram, in connection with Sessions Trial No. 11 (6) of 2018 arising out of Sessions Case No. 01(09) of 2017.

2. By the impugned judgment of conviction the appellant was convicted for the offence punishable under S.302 of the Indian Penal Code. Consequently the appellant was sentenced to death penalty for such offence. However, on the basis of evidence on record, the other accused persons namely Mihir Bera, Kabita Bera and Nandalal Bera were found not guilty of the charges and were acquitted by the impugned judgment.

3. Learned Advocate for the appellant submits that the material embellishments were made by the prosecution in course of evidence adduced on its behalf. It has been submitted that there are variations in the statements of the prosecution witnesses vis - a - vis the written complaint. It was also submitted on behalf of the learned Advocate for the appellant that the prosecution witnesses, particularly, P.W. 1 and P.W. 3, who claimed to be eye - witnesses to the incident, were highly doubtful. There are material contradictions in the statement of such witnesses.

4. Learned Advocate for the appellant also submitted that no independent witnesses have been examined on behalf of the prosecution to support its case. P.Ws. 1 and 3 are relatives of the victim and are highly interested witnesses. Their testimonies should not be trusted to secure conviction of the appellant. It was also submitted that nonappearance or non - examination of any of the person from the locality where it had been claimed that the incident occurred in an open space, makes the case of the prosecution highly doubtful.

5. Referring to the medical evidence learned Advocate for the appellant submitted that the date and time of the incident has not been established by the prosecution.

6. It was further submitted on behalf of the learned Advocate for the appellant that the alleged offending weapon was stated to be recovered on the basis of a statement of the appellant leading to recovery. Such fact has not been established at the trial. It was submitted that one of the witnesses to such seizure were not examined by the prosecution and the other witness to such seizure has not supported the case of the prosecution and was also not declared hostile. As such, according to learned Advocate for the appellant, recovery of the alleged offending weapon at the instance of the appellant in terms of the provision contained under S.27 of the Indian Evidence Act cannot be said to be proved at the trial. To such proposition, learned advocate for the appellant relied upon 2024 (3) SCC 481 : (AIR 2024 SC 695) (Raja Naykar v. State of Chhattisgarh).

7. Learned Advocate for the appellant also submitted that the recovery of the dead body of the victim at the leading statement of the appellant proved by P.W. 18 was belied by the testimony of P.W. 2. It was submitted that P.W. 2 could see the beheaded body of the victim lying outside a temple wherefrom it was removed by the police.

8. Learned Advocate for the appellant also submitted that although, P.Ws. 11 and 12 did not support the case of the prosecution, nevertheless, they were not declared a hostile witness by the prosecution. The defense was entitled to rely upon the evidence of such witnesses. In support of such contention, learned advocate for the appellant relied upon 2005 (5) SCC 272 (Raja Ram v. State of Rajasthan).

9. Learned Advocate for the appellant also submitted that the learned Trial Court did not assign any reason in the impugned judgment as to how he was left with no option but to award a capital punishment. It was submitted that the learned Trial Court did not come to a definite conclusion that the case fell within the category of 'rarest of rare cases' and proceeded to award the punishmen