JUDGEMENT N. C. TALUKDAR, J. :- This is a Reference under Section 374 of the Code of Criminal Procedure, dated the 7th March, 1967 from Sri D.C. Chakraborti, Additional Sessions Judge, 1st Court, Howrah for confirmation of the sentence of death passed by him on the accused-appellant Bhulakiram Koiri alias Bhulai, who has been convicted under Section 302 read with Section 34 of the Indian Penal Code, while the co-accused Probhuram Pashi alias Probhua was acquitted of the said charge, in Sessions Trial Case No. 1 of January, 1967. The accused-appellant also has preferred an appeal against the said order of conviction and sentence. 2. The prosecution case which brings to light the unfortunate case of a spited friend, can be put in a short compass. The accused-appellant Bhulakriam and the deceased Musafir Singh were friends and co-employees under Messrs. Guest, Keen, Williams Ltd. at Shibpur, Hawrah, Musafir was rather extravagant in nature and used to touch his friends for loans. Musafir had occasion to take loan from the accused-appellant Bhulakiram but did not repay the same in spite of repeated damands. Bhulakiram became sore and threatened to take action. He is said to have observed that though there was friendship, there would be a fight some day. On the 22nd November, 1965, after the night-shift was over at the factory of Messrs. Cuest, Keen, Williams Ltd., Bhulakiram took Musafir to the hotel of P.W. 9, Curmit Singh near the said factory and they had some snacks and also some wine, which they had brought along with themselves. Thereafter they left the hotel premises and on the way were joined by the co-accused Probhuram Pashi alias Probhua. Together they proceeded to the betel and cigarette shop of P.W. 11, Ganga Prosad Gupta. The said shop is opposite to the gate of Guest, Keen, Williams Ltd. After purchasing some betel and cigarettes they left. Near about the said shop lived one Mantu Sarkar, the brother of P.W. 17, Jatindra Chandra Sarkar and he also joined the party. Mantu Sarkar however, is still absconding. They all went near the Dhobi ghat where Bhulaki and Mantu gave the fatal blows and Probhua assisted them. When Musafir was considered to be dead, the body was thrown into the jhil and the party thereafter left the place. A natural commotion followed from the finding of the body in the jhil on the following morning. They all went near the Dhobi ghat where Bhulaki and Mantu gave the fatal blows and Probhua assisted them. When Musafir was considered to be dead, the body was thrown into the jhil and the party thereafter left the place. A natural commotion followed from the finding of the body in the jhil on the following morning. Ganga Prosad Gupta, P.W. 11, out of curiosity went to see the dead body and found the deceased to the companion of the above-mentioned Probhua and Bhulakiram whom he knew before and he reported about his knowledge to P.W. 2, Narayan Shaw, who is his father-in-law. P.W. 2, has a grocery shop near about the place and he also in his turn, when he met Probhua near his shop on the 24th November, 1965 at about noon time, questioned him as to whether the latter knew about the said murder. Probhua is alleged to have made a confessional statement, whereby he implicated himself as well as the co-accused Bhulakiram and Mantu, to the said Narayan Shaw and was taken to the place of a resident of the locality viz.' P.W. 22, Sudhangshu Ganguly, who is a Development Officer of the Life Insurance Corporation Calcutta and a Deputy Group-Commandant of the Howrah Home Guard. When taken to his place, Probhua repeated his confessional statement and thereafter the said Sudhangshu Ganguly tried to contact the O. C. of the Shibpur police station but failed and then contacted P.W. 30, Bidhu Shusan Bhowmick, the Circle Inspector of Police, Howrah and took Probhua and Naryan Shaw to his quarters. After reporting to him as to what he had learnt, Sudhangshu Ganguly placed Probhua and Narayan Shaw in his charge. The Circle Inspector thereafter contacted the O. C. of Shibpur police station and S.I. Nihar Ranjan Chatterjee, (P.W. 28), came to his residence for investigation. Probhua was arrested at the house of the Circle Inspector and it is said that he made certain statements which were recorded by the said S.I. Nihar Ranjan Chatterjee, whereafter Probhua took the said officer to the house of the accused Bhulakiram at about 5-45 p.m. on that day. Probhua was arrested at the house of the Circle Inspector and it is said that he made certain statements which were recorded by the said S.I. Nihar Ranjan Chatterjee, whereafter Probhua took the said officer to the house of the accused Bhulakiram at about 5-45 p.m. on that day. Neither Bhulakiram nor the members of his family were found in his house and on some information that the members of the family were contemplating departure by train from Howrah, the officer with the landlord P.W. 5, Joy Narayan Singh as also the police party, proceeded to the Howrah railway station and on searching the compartments in the UP Amritasar Express, Bhulai's parents P.W. 7 and P.W. 18 and also the other members of his family could be found. All of them were brought back by the officer to the police station and their statements were recorded. At about that time the police came to know that Bhulai had come back to his house and they proceeded to apprehend him there. P.W. 6 Akhil Chandra Dey, who is another tenant in the said premises, came and reported about Bhulai who was later on detained by the inmates of the house and brought to the police station. Bhulai made certain statements at the police station which P.W. 28, S.I. Nihar Ranjan Chatterjee, recorded. On making the said statements Bhulai led the officer to a pond in front of holding No. 384/1, Circular Road, Shibpur, Howrah. Reaching there Bhulai is said to have pointed out a place which was full of water-hyacinth and an underwear and a bundle containing Gamcha, handkerchief and Khaki half-pant, all slightly wet and containing blood-stains, were brought out from the said place by the accused Bhulai in the presence of witnesses. Bhulai thereafter led the police-party to the house of Mantu Sarkar, who was not found and is still absconding. Certain articles viz., two pieces of bandage-cloth, with stains at places, were seized therefrom. P.W. 17, Jitendra Chandra Sarkar, who is the brother of the said absconding accused, was present at the time of the said search. Bhulai was produced before the Magistrate on the following day viz., the 25th November, 1965 and taken over to police custody for verification of statements. P.W. 17, Jitendra Chandra Sarkar, who is the brother of the said absconding accused, was present at the time of the said search. Bhulai was produced before the Magistrate on the following day viz., the 25th November, 1965 and taken over to police custody for verification of statements. On the 26th November, 1965 Bhulai led the investigating officer and the police party to a pond in Gopal Chowdhury Lane and pointed out a place stating that he had thrown the dagger there and the dagger Ext. 5 with some blood-like stains thereon was found and seized by the police therefrom in presence of witnesses. Thereafter there was an enquiry under Section 307-A of the Code of Criminal Procedure before Sri. K.R. Banerjee, Magistrate, 1st Class, Howrah who ultimately committed the two accused viz., the accused-appellant Bhulakiram on a charge under Section 302 of the Indian Penal Code and the co-accused Probhuram, who has since been acquitted, on a charge under Section 302/114 of the Indian Penal Code. In the court of Session the said charges were cancelled and a single charge under Section 302 read with Section 34 of the Indian Penal Code was framed against both the accused. The charge is, inter alia, as follows :- That the said two accused persons along with one Phanindra Ch. Sarkar alias Montu Sarkar on or about the day of 22nd and 23rd November, 1965, at Shalimar B. F. Siding Jhil, Police Station, Shibpur, Howrah, some time between 11-30 p.m. of 22nd and 1 a.m. on 23rd, in furtherance of common intention of them all did commit murder by intentionally or knowingly causing the death of Musafir Singh and thereby committed an offence punishable under Section 302 read with Section 34 of the Indian Penal Code. 3. Both the accused pleaded not guilty to the charges framed and the defence case, inter alia, was that the accused persons are not connected with the crime and that they have been roped in falsely by interested persons. Accused Bhulakiram took the plea that he did not know Musafir Singh as alleged or at all and further stated, inter alia, in course of his statement under Section 342 of the Code of Criminal Procedure in the court of Sessions, that the Chappal Ext. Accused Bhulakiram took the plea that he did not know Musafir Singh as alleged or at all and further stated, inter alia, in course of his statement under Section 342 of the Code of Criminal Procedure in the court of Sessions, that the Chappal Ext. 1 that was found did not belong to him; that he did not know co-accused Probhua; that he never made any statement before P.W. 28, Nihar Babu; and that the recovery of the articles in the case was not due to any such statement made by him as alleged or at all. In the committing court he had stated in his examination under Section 342 Cr. P.C. that he was wholly innocent; that he received some Puja bonus on the 21st or 22nd day of November 1965 as an employee at the Guest, Keen, Williams Ltd. and with that money he was getting ready to proceed to his native village along with his parents and others; that he did not go in for work on that day; and that he could not go to his native village because when he came to his residence after getting leave for taking his luggages to the railway station, the police arrived after arresting his parents at the station. 4. The prosecution in this case has examined 32 witnesses, besides proving several exhibits, to prove the crime. They form a motley crowd and can be classified into six groups. The first group consists of the doctor viz., P.W. 1 Dr. Sudhir Narayan Bose (Medical Officer attached to Howrah General Hospital) who held the post-mortem. The next group consists of the photographer P.W. 29 Bejoy Kumar Mukherjee, who has a photographic shop at 220, G. T. Road, Shibpur, Howrah. The third group consists of the search and seizure-witnesses viz., P.W. 14 Sahabuddin Molla, P.W. 15 Atiar Rahaman, P.W. 17, Jitendra Chandra Sarkar, P.W. 19 Gouri Kanta Banerjee, Group-Commandant of Home Guard, Shibpur and P.W. 24 Manmatha Nath Dutta of 6/1, Ola Bibitala 1st Bye Lane, Shibpur. The fourth group consists of P.W. 22 Sudhangshu Ganguli, who is the Deputy Group-Commandant of the Howrah Home Guards, before whom the purported confession was made. The fourth group consists of P.W. 22 Sudhangshu Ganguli, who is the Deputy Group-Commandant of the Howrah Home Guards, before whom the purported confession was made. The fifth group is the circumstantial evidence group and consists of P.W. 2 Narayan Shaw, P.W. 3 Govind Ram P.W. 4 Lal Bhagaban Singh, P.W. 5 Jay Narayan Singh, P.W. 6 Akhil Chandra Dey P.W. 7 Sadal Koiri, P.W. 8 Bhola Goala, P.W. 9 Gurmit Singh, P.W. 10 Binda Singh, P.W. 11 Ganga Prosad Gupta, P.W. 12 Ram Bhajan Shaw, P.W. 13 Probhu Dhubi and P.W. 18 Bachi Koiri. The sixth and the last group is the police or investigating group and consists of P.W. 16 Benoy Bhusan Chakravarti, who is the foot-print expert, attached to the Forensic Science Laboratory, Medical College, Calcutta, P.W. 20, constable Satyendra Nath Dutta, P.W. 23 Sub-Inspector Khagendra Nath Banerjee, P.W. 25, Head Constable Narendra Chandra Dey, P.W. 26, constable Basdeo Sukul, P.W. 27 Sub-Inspector Sunil Chandra Guha and P.W. 28 Sub-Inspector Nihar Ranjan Chatterjee, the investigating officer who took up the investigation from P.W. 32 Sub-Inspector Hirendra Kumar Bose, P.W. 30 Bidhu Bhusan Bhowmik, the Circle Inspector (A) Howrah and P.W. 32, Sub-Inspector Hirendra Kumar Bose who was the first investigating officer in this case until he made over charge to P.W. 28 Nihar Ranjan Chatterjee. This completes the tally of the prosecution witnesses examined by the prosecution to prove the crime and we will consider the said evidence in its proper context, in the light of the submissions made on behalf of the accused-appellant as well as the State. 5. Mr. Prasun Chandra Ghosh, Advocate, engaged by the State to appear on behalf of the accused-appellant, made a six-fold submission. He argued in the first instance that the corpus delecti has not been proved in the present case and as it is a factor going to the very root of the case, the entire prosecution has been nullified thereby. His second contention is that there is no motive as to why this dastardly crime would be committed and in a case, resting entirely on circumstantial evidence, the absence of any motive would be material. The next submission of Mr. Ghosh is about the reception of inadmissible evidence which has vitiated the trial. Mr. His second contention is that there is no motive as to why this dastardly crime would be committed and in a case, resting entirely on circumstantial evidence, the absence of any motive would be material. The next submission of Mr. Ghosh is about the reception of inadmissible evidence which has vitiated the trial. Mr. Ghosh next contended about the relevancy and effect of the retracted extra-judicial confession, purported to have been made by the accused-appellant Bhulakiram and also by the co-accused Probhua. The fifth contention of Mr. Ghosh is that the evidence of the foot-print expert is clearly bad and cannot form the legal basis for a valid conviction. The sixth and last submission of Mr. Ghosh is that the present case depends entirely on circumstantial evidence and the chain of circumstance as established by the prosecution is not so far complete as not to leave any reasonable ground for a conclusion therefrom, consistent with the innocence of the accused. 6. Mr. Sambhu Nath Banerjee, Deputy Legal Remembrancer, with Sri. Harashit Chandra Ghosh, Advocate, appearing on behalf of the State, submitted in the first Instance that the corpus delecti has been well-established because the evidence on record is sufficient to identify the body of Musafir and in any event, in view of the facts and circumstances of the case, even if the corpus delecti be held to have not been proved, that would not necessarily imply that the offence charged falls through and that the prosecution has failed to connect the accused-appellant with the same. Mr. Banerjee next contended that sufficient motive has been ascribed and proved in this case by a body of cogent evidence and there is no reason as to why the same should not be considered sufficient. The next contention of Mr. Banerjee is that the evidence impugned by Mr. Ghosh as inadmissible is not really so and even if a part of it be deemed to be so, the order of conviction and sentence is not affected thereby because of the other body of evidence on record quite clear and cogent. As regards the evidence by P.W. 16, the Footprint expert, the learned Deputy Legal Remembrancer submitted that it is quite reliable and forms a material link in the chain of circumstances adduced by the prosecution against the accused-appellant. As regards the evidence by P.W. 16, the Footprint expert, the learned Deputy Legal Remembrancer submitted that it is quite reliable and forms a material link in the chain of circumstances adduced by the prosecution against the accused-appellant. He contended in this context that if the chappal of the left foot, marked 'Y', can be held to have been established as belonging to the accused-appellant, the opinion of the expert, based on a comparison of the same and the footprint-impressions marked 1 to 4, would be quite sufficient to connect the accused-appellant with the crime, Mr. Banerjee finally mentioned the chain of circumstances appearing from the evidence on record and submitted that it was such as to show that within all human probability the act must have been done by the accused and that the chain is so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. 7. We will now proceed to consider the respective submissions as catalogued above, so ably made by the learned counsel appearing on behalf of both the sides, in the light of the evidence on record. As regards the first point urged by Mr. Ghosh that the corpus delecti in this case has not been proved, he has referred to the evidence of P.Ws. 1 and 32 along with Ext. 1. The same according to him does not prove beyond reasonable doubt that the body was that of Musafir Singh, the deceased. The Chit which was supposed to have accompanied the cadaver was missing and the evidence of P.Ws. 4 and 10, who have identified the body as relations, is not dependable and not free from reasonable doubt because it is curious that the said witnesses never even went to the hospital and their conduct in this behalf is suspicious. In this connection Mr. Ghosh has referred to the evidence of P.W. 32 who said that at about the time when he wrote the Challan for sending the dead body to the morgue, one Lal Bhagwan Singh and another Binda Singh came and identified the dead body as that of Musafir Singh. In Ext. 3 the person killed has been referred to as an unknown person and the post-mortem report mentioned, "Unknown, later on reported to be identified as Musafir Singh, male, 35 years, Hindu". Mr. In Ext. 3 the person killed has been referred to as an unknown person and the post-mortem report mentioned, "Unknown, later on reported to be identified as Musafir Singh, male, 35 years, Hindu". Mr. Ghosh has contended that the Chit, referred to in the evidence of P.W. 32 that "what he learnt from Lal Bhagwan and Binda Singh he had noted on a piece of paper and asked the constable to deliver that to the doctor", is missing and, therefore, the evidence of identification before P.W. 32 is doubtful. As we have already mentioned the evidence of P.Ws. 4 and 10 on this point is also not free from reasonable doubt because of their strange conduct from the beginning and also from the factum of their not having gone to the hospital in connection with this dastardly outrage on a person supposed to be near and dear to them. Mr. Ghosh, while on this branch of his submission, has contended that the best evidence on this point has not been produced and, therefore, the necessary presumption adverse to the prosecution under Section 114 Illustration (g) of the Indian Evidence Act should have been drawn. He has, inter alia, urged that the dead body should have been identified by somebody from Messrs. Guest, Keen, Williams Ltd. by the chargeman or any co-worker - but the same has not been done.' Neither has the dead body been identified by any resident of the locality nor even by the wife of the deceased, who strangely enough has not been even examined in this case on this material point. It has appeared, as pointed out by Mr. Ghosh, in the evidence of P.W. 4 Lal Bhagwan Singh that Musafir, since deceased, had married 5 or 6 years before his murder and at the time of the said murder his wife was in the native village in the district of Chapra. Mr. Ghosh has contended that in view of the nature of the belated and suspicious nature of identification of the cadaver, it was expedient that the best and compelling evidence on this point should have been adduced by the prosecution and the failure to do so has resulted in a failure of justice. In reply. Mr. Banerjee has contended that there is no reason as to why the evidence of P.Ws. In reply. Mr. Banerjee has contended that there is no reason as to why the evidence of P.Ws. 4 and 10 on this point should be discarded merely because they, being relations, had not gone to the hospital or shown much interest in the beginning. This body of cogent and clear evidence should not be thrown overboard when nothing has appeared in their cross-examination to disbelieve their evidence. Mr. Banerjee has further urged that even if there was no body or trace of a body or any direct evidence as to the manner of death of a victim, the corpus delecti may be proved by other circumstances. He has referred in this connection to the case of Arun Kumar Banerjee v. State, AIR 1962 Cal 504 . Mr. Justice P.B. Mukharji and Mr. Justice N.K. Sen held in that case at pp. 507 and 508 that "we cannot accept the broad proposition urged for the appellants that there can be no conviction on a charge of murder on circumstantial evidence ........ In a recent decision of the English Courts in Reg v. Onufrejczyk, (1955) 1 QB 388, Lord Goddard, C.J. of England lays down the principle that in a trial for murder, the fact of death can be proved by circumstantial evidence ........ The learned Lord Chief Justice of England lays down the further principle that notwithstanding that there is no body, or trace of a body, or any direct evidence as to the manner of death of a victim, the corpus delecti may be proved by such circumstances as render the commission of the crime certain and leave the jury with no degrees of reasonable doubt. That, in our view, presents the correct proposition and we respectfully agree with that statement of the law". In a later decision of the Supreme Court in the case of Raghav Prapanna Tripathi v. State of Uttar Pradesh, AIR 1963 S.C. 74 . Their Lordships observed at page 88 as follows : In King v. Horry, (1952) NZ LR 111 the headnote states the law as follows :- "At the trial of a person charged with murder the fact of death is provable by circumstantial evidence, notwithstanding that neither the body nor any trace of the body has been found and that the accused has made no confession of any participation in the crime. Before he can be convicted, the fact of death should be proved by such circumstances as render the commission of the crime morally certain and leave no ground for reasonable doubt; the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for". This statement of the law was approved in (1955) 1 QB 388 at p. 394 except as to moral certainty and that statement of the law has received approval of the Supreme Court in AIR 1960 SC 500 . It was also said in (1952) NZ LR 111 : "That the jury, viewing the evidence as a whole, was entitled to regard the concurrence of so many separate facts and circumstances themselves established beyond all doubt, and all pointing to the fact of death on or about July 13, 1943 - as excluding any reasonable hypothesis other than the death of the person alleged to have been murdered and as having therefore sufficient probative force to establish her death." We agree with the contention of Mr. Banerjee as a whole that the circumstances as proved in the present case are such that the corpus delecti has been proved thereby and even if not so, the commission of the crime and the relative offence charged can be established, if the circumstances on record, lead on to establish the crime, beyond reasonable doubt. 8. As regards the second contention of Mr. Ghosh as to the purported absence of any motive in the present case leading on to the crime, we are afraid we are unable to agree with him. It is quite true as has been observed by Lord Porter in the case of Wali Mohammad v. King, 53 Cal. W.N. 318 at page 321 : (AIR 1949 PC 103 at p. 106). "Moreover though proof of motive is not essential, it is a material consideration". In this connection a reference may be made to the case of Atley v. State of Uttar Pradesh, AIR 1955 SC 807 . At p. 810 of the said report, Mr. Justice B.P. Sinha (as His Lordship then was) sitting with Mr. Justice Vivian Bose and Mr. "Moreover though proof of motive is not essential, it is a material consideration". In this connection a reference may be made to the case of Atley v. State of Uttar Pradesh, AIR 1955 SC 807 . At p. 810 of the said report, Mr. Justice B.P. Sinha (as His Lordship then was) sitting with Mr. Justice Vivian Bose and Mr. Justice Ayyar observed that "where there is clear proof of motive for the crime, that lends additional support to the finding of the court that the accused was guilty but the absence of clear proof of motive does not necessarily lead to the contrary conclusion. But the fact that the prosecution has failed to lead such evidence has this effect only, that the other evidence bearing on the guilt of the accused has to be very closely examined". In the case of Upendra Nath Ghosh v. Emperor, AIR 1940 Cal 561 Mr. Justice Bartley and Mr. Justice Sen have held at p. 563 that "in a case depending on circumstantial evidence the question of motive is more important and it was the duty of the learned Judge to emphasise this absence of motive, which was a circumstance in favour of the accused". In a more recent case viz., in the case of AIR 1962 Cal. 504 Mr. Justice P.B. Mukharji and Mr. Justice N.K. Sen have held at p. 509 that "motive certainly is of great importance where conclusion rests on circumstantial evidence. But where the circumstances can lead but to one conclusion of guilt, the non-establishment of motive is not crucial". We agree with the principles laid down in the above-mentioned cases. Moreover, in this case, it cannot be said that there is no motive. A clearcut motive has been ascribed by the prosecution. The motive ascribed is the tiff over the loan that was taken by the deceased Musafir Singh from the accused-appellant, Bhulakiram. The evidence on the record, however, establishes that the sum of Rs. 101.64 p. was found on the dead body when it was recovered. It is in this context that Mr. Ghosh has argued that it is strange that the said amount was not taken away by the assailants, if the purported motive for the offence as ascribed by the prosecution, was true. There is some force in the said argument. 101.64 p. was found on the dead body when it was recovered. It is in this context that Mr. Ghosh has argued that it is strange that the said amount was not taken away by the assailants, if the purported motive for the offence as ascribed by the prosecution, was true. There is some force in the said argument. But that by itself would not make the charge unsustainable and, therefore, we will proceed to consider the other points raised on behalf of the defence by Mr. Ghosh. 9. Mr. Ghosh has urged in the next place that the trial has been vitiated by the reception of inadmissible evidence and in that connection he has mentioned three different classes of evidence, which have been received and admitted and according to him, have formed the basis of the order of conviction and sentence ultimately passed. The first group according to him is the evidence let in under Section 27 of the Indian Evidence Act; the second group consists of the postmortem report which has been admitted into evidence and marked as Ext. 1; and the third one, pointed out by him, is the answer that was taken from the accused, by questions put to him by the Additional Sessions Judge, in his examination under Section 342 Cr. P.C. 10. In connection with the first group, Mr. Ghosh referred to the evidence of P.Ws. 5, 19 and 28 and also to the seizure-list, Ext. 4(c) dated 24th November, 1965; and the evidence of P.Ws. 14, 15, 25 and 28 and the search-list Ext. 4(d) dated the 26th November, 1965. Mr. Ghosh has urged that the reception of the said body of evidence and the reliance thereupon by the Additional Sessions Judge, have vitiated the order of conviction and sentence and prejudiced the accused-appellant materially in a case under Sec. 302/34 I.P.C. The statement made by P.W. 5, Joy Narayan Singh in his evidence that "Bhulai brought out a blood-stained cloth from the water. He brought a Genji, a Lungi and a Gamcha. So far as I remember, there was an underwear as well" is not admissible under Section 27 of the Indian Evidence Act. Ext. 4(c) however does not refer to the seizure of any Genji or Lungi as deposed to by P.W. 5. He brought a Genji, a Lungi and a Gamcha. So far as I remember, there was an underwear as well" is not admissible under Section 27 of the Indian Evidence Act. Ext. 4(c) however does not refer to the seizure of any Genji or Lungi as deposed to by P.W. 5. P.W. 19, Gouri Kanta Benerjee, stated that "the arrested person pointed out a place in the tank and said It was thrown away there, it is there". This is also not admissible under Sec. 27 of the Indian Evidence Act. P.W. 28, Nihar Ranjan Chatterjee's evidence that the accused "pointed out a place and stated that he had thrown a dagger at that place" is also inadmissible. His further evidence as recorded that "at a place with waist-deep water Bhulai stated to have put a dagger there. My Havildar began to search and he lifted a folded dagger with black handle", is also not admissible. Besides these, the remarks column of Ext. 4(c) runs as follows : "articles 1 to 5 are recovered according to the confession and direction of the accused Bhulakiram Koiri and in presence of the witnesses and the accused Bhulaki". This is also not admissible in law. P.W. 25, Head Constable Narendra Chandra Dey's statement also that "Bhulai pointed a place and stated to have thrown a dagger at that place. My feet touched some thing. I raised it and found a dagger ........ Bhulai said that that was the dagger" is similarly bad. The remarks column in Ext. 4(d) also refers to the recovery from the tank "as shown by the aforesaid two accused and also according to the confessional statements of the said arrested accused persons Probhuram Pashi and Bhulai alias Bhulakiram Koiri". This is also bad and not admissible. The second group, according to Mr. Ghosh, consists of the postmortem report (Ext. 1). Mr. Ghosh has urged that it is grossly inadmissible and has referred to some cases in support of his contention. Mr. Ghosh has referred to the case of Empress v. Jadav Das, (1900) 4 Cal. W.N. 129, wherein Mr. Justice Prinsep and Mr. Justice Hill observed at pp. 143 and 144 that a post mortem report "is not admissible as evidence, except to contradict the officer who made it. It may, however, be used by that officer when under examination for the purpose of refreshing his memory". Mr. W.N. 129, wherein Mr. Justice Prinsep and Mr. Justice Hill observed at pp. 143 and 144 that a post mortem report "is not admissible as evidence, except to contradict the officer who made it. It may, however, be used by that officer when under examination for the purpose of refreshing his memory". Mr. Ghosh referred also to the case of Ram Sarup Rai v. Emperor, (1902) 6 Cal. W. N. 98, wherein Mr. Justice Ghosh sitting with Mr. Justice Taylor have observed at p. 101 that "The post-mortem report could not be used as evidence at the Sessions trial, except by way of refreshing the memory of the person who made it, or to contradict him". The Division Bench of the Madras High Court held the same view in the case of In Re : Rangappa Goundan, ILR 59 Mad 349 : (AIR 1936 Mad 426) and relied on the decision of the Calcutta High Court in the case of (1900) ILR 27 Cal 295 : 4 Cal WN 129. Mr. Justice Cornish and Mr. Justice K.S. Menon held at page 351 that "But a postmortem report proves nothing. It is not even evidence, and can only be used by the witnesses who conducted the postmortem enquiry as an aid to memory. These propositions have already been stated in (1900) 4 Cal WN 129". A recent decision of the Bombay High Court, however, held the other view. In the case of Loku Basappa Pujari v. State, AIR 1960 Bom 461 Mr. Justice Shah and Mr. Justice Patel held at p. 462, that "The notes of post-mortem examination are but a contemporaneous record made by the medical officer who performed the post-mortem examination on a dead body for forming his opinion as to the cause of death. If instead of orally deposing before the court about the individual observations made by him, the medical officer states that the notes maintained correctly set out his observations and the notes are then tendered in evidence, no fault can be found with the admission of those notes on the record. We may hasten to observe that the notes of the post-mortem examination are of course not intended to be mechanically admitted on the record of the case". It may, however, be observed that for the purpose of determining the point at issue in this case, a decision on the said point is not necessary. We may hasten to observe that the notes of the post-mortem examination are of course not intended to be mechanically admitted on the record of the case". It may, however, be observed that for the purpose of determining the point at issue in this case, a decision on the said point is not necessary. There has, in fact, been no prejudice caused to the accused-appellant by the admission of the post-mortem report in evidence as Ext. 1. The third group, referred to by Mr. Ghosh in this connection, consists of questions Nos. 10 to 13 put to the accused-appellant by the Additional Sessions Judge, Howrah, in his examination under Section 342 of the Code of Criminal Procedure. Question No. 10 is as follows : "Witness No. 22, Sudhangshu Ganguli, said that on 24th November, 1965, the accused Prabhua told that Bhulai and another Bengali killed Musafir. Sudhangshu Babu said before the Magistrate that Prabhua had helped you". Question No. 11 is as follows : "Witness No. 28, Daroga Nihar Babu said that you gave a statement before him and afterwards you led him near a tank opposite to 344/1, Circular Road and there you showed him a place wherefrom these articles with bloodstains (Exts. XVI, XVII, XVIII, XX) were recovered. Do you want to say anything regarding this ?" Question No. 12 is as follows : "Witness No. 19 Gouri Kanta Banerjee said that on going near the tank, you said 'I have thrown there and those are the things'. Do you want to say anything about the evidence of Gouri Babu ?" and Question No. 13 is in these terms "Witness No. 28 Daroga Babu said that on 26th November, 1965 you led Daroga Babu and others near the pond at Gopal Chowdhury Lane, Shibpore, and told them that the dagger was thrown there. Do you want to say anything regarding this evidence ?" We hold, in any event, that question No. 10 as referred to above and put to the accused is clearly bad and prejudicial. It is not a question which is sustainable in law and is based upon the same misconception of admissibility of evidence as referred to above. We are satisfied that Mr. Ghosh's contention in this behalf is correct and that the deviations complained of are bad in law and have prejudiced the accused-appellant. 11. The next branch of Mr. It is not a question which is sustainable in law and is based upon the same misconception of admissibility of evidence as referred to above. We are satisfied that Mr. Ghosh's contention in this behalf is correct and that the deviations complained of are bad in law and have prejudiced the accused-appellant. 11. The next branch of Mr. Ghosh's submission is about the relevancy and admissibility of the extra-judicial confession by the accused-appellant as also by the co-accused Probhua. So far as the extra-judicial confession by the accused-appellant is concerned, Mr. Ghosh has referred to Ext. 2, the injury report of Bhulakiram, wherein the doctor has mentioned as follows : "He says that when he was stabbing Musafir with a dagger of about 13" length by his left hand (as he is a lefthander) on 22nd November, 1965 and about 11-30 p.m. the sharp end of the dagger accidentally cut his own skin of right arm just in front of the elbow joint." and contends that it is grossly inadmissible. The evidence of P.Ws. 1 and 28 discloses that it has been made in the presence of the police officers and that the accused was brought by the police officers. In this connection it further appears that the said statement as made on the 25th November, 1965 is not voluntary. The order-sheet of the committing Magistrate's court would show that neither on the 26th November, 1965 nor on the 27th November, 1965, there was any prayer made on behalf of the prosecution for recording such a confession. If in fact such a confession had seen the light of the day so far back as on the 25th November, 1965, it is passing strange that the police would keep silent and sit on the fence over the same. This curious silence and the absence of any such prayer on these two material dates, therefore, rule out the authenticity of the statement purported to be a confession and, in any event, it affects the voluntariness thereof. In this connection Mr. Ghosh has referred to the case of Aher Raja Khima v. State of Saurashtra, AIR 1956 S.C. 217 wherein Mr. Justice Vivian Bose (with Mr. In this connection Mr. Ghosh has referred to the case of Aher Raja Khima v. State of Saurashtra, AIR 1956 S.C. 217 wherein Mr. Justice Vivian Bose (with Mr. Justice Chandra Sekhar Aiyar) delivering the majority judgement observed at p. 221 that "Now the law is clear that a confession cannot be used against an accused person unless the court is satisfied that it was voluntary and at that stage whether it is true or false does not arise. It is abhorrent to our notions of justice and fair play and is also dangerous to allow a man to be convicted on the strength of a confession unless it is made voluntarily and unless he realises that anything he says may be used against him : and any attempt by a person in authority to bully a person into making a confession or any threat or coercion would at once invalidate it, if the fear was still operating on his mind at the time he makes the confession". In the facts of the present case we are not satisfied that such fear was not present and that, in any event, the said statement was voluntary, as alleged. About the evidentiary value of such a retracted confession their Lordships have observed that "although in law it is open to the court to convict an accused on his confession itself, though he has retracted it at a later stage, nevertheless the court would require some corroboration to the confessional statement before convicting an accused person on such a statement and what amount of corroboration would be necessary in such a case would always be a question of fact to be determined in the light of the circumstances of each case". We hold that in view of the evidence on record, such corroboration is conspicuous by its absence. 12. Mr. Ghosh has further contended that the retracted extra-judicial confession of the co-accused Prabhua, so far as it relates to the present accused-appellant, is clearly bad. He has referred in this connection to several cases. In the case of Kashmira Singh v. State of Madhya Pradesh, AIR 1952 S.C. 159 their Lordships have held at p. 160 of the said judgement that "it is evident that it is not evidence in the ordinary sense of the term because as the Privy Council say in Bhuboni Sahu v. King, 76 Ind. App. In the case of Kashmira Singh v. State of Madhya Pradesh, AIR 1952 S.C. 159 their Lordships have held at p. 160 of the said judgement that "it is evident that it is not evidence in the ordinary sense of the term because as the Privy Council say in Bhuboni Sahu v. King, 76 Ind. App. 147 at p. 155 : (AIR 1949 P.C. 257 at p. 260). "it does not indeed come within the definition of 'evidence' contained in S.3, Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination'. Their Lordships also pointed out that it is 'obviously evidence of a very weak type .............. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities". They stated in addition that such a confession cannot be made the foundation of a conviction and can only be used in 'support of other evidence' their Lordships ultimately held that 'In our opinion, the matter was put succinctly by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chukerburty, (1911) ILR 38 Cal. 559 at p. 589 : (12 Cri. L.J. 2) wherein he said that such a confession can only be used to 'lend assurance to other evidence against a co-accused'. The above-mentioned case was considered in a later decision by the Supreme Court in the case of 1. Haricharan Kurmi. 2. Jogia Hajam v. State of Bihar, AIR 1964 S.C. 1184 at p. 1188 Chief Justice Gajendragadkar observed that "This question was considered on several occasions by Judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person ................. As was observed by Sir Lawrence Jenkins in (1911) ILR 38 Cal 559 at p. 589 : (12 Cri. L. J. 2) a confession can only be used to 'lend assurance to other evidence against a co-accused'." Mr. Ghosh next cited the decision of the Judicial Committee in 76 Ind App 147 : (AIR 1949 PC 257). At p. 155 (of Ind App) : (at p 260 of AIR) their Lordships of the Judicial Committee observed that "a confession of a co-accused is obviously evidence of a very weak type. Ghosh next cited the decision of the Judicial Committee in 76 Ind App 147 : (AIR 1949 PC 257). At p. 155 (of Ind App) : (at p 260 of AIR) their Lordships of the Judicial Committee observed that "a confession of a co-accused is obviously evidence of a very weak type. It does not come within the definition of "evidence" contained in Section 3, Evidence Act ........... It is a much weaker type of evidence than the evidence of an approver". In a Calcutta case viz. State v. Manindra Nath Das, AIR 1960 Cal. 183 , Mr. Justice Guha Roy and Mr. Justice N.K. Sen have held that a self-exculpatory statement of the accused could not be treated as a confession and could be used only as an admission as against the accused himself and it could not be used as evidence at all against the other accused. After going through the retracted extra-judicial confession of the co-accused Probhua, we find that it is very much a self-exculpatory one and not really a confession and cannot, in any event, be used in the manner as made in the Court of Session. We may incidentally observe that such statements by the co-accused merely pinpoint the hazards faced by the other accused in a joint trial. As was rightly pointed out by Lord Porter in the case of 53 Cal. W. N. 318 : (AIR 1949 P.C. 163) "the difficulty in all cases where the two persons are accused of a crime and where the evidence against one is inadmissible against the other is that, however, carefully assessors or a jury are directed and however firmly a judge may steel his mind against being influenced against one by the evidence admissible only against the other, nevertheless the mind may inadvertently be affected by the disclosures made by one of the accused to the detriment of the other". 13. The next branch of Mr. Ghosh's submission relates to foot-prints and the nature and effect of the evidence of the expert thereupon. P.W. 16. Binay Bhusan Chakraborty, is the expert on foot-prints attached to the Forensic Science Laboratory, Medical College, Calcutta. On 16-8-1966 he received amongst others one leather slipper of the left foot marked 'Y' by him and 4 specimen foot-prints marked 1 to 4. P.W. 16. Binay Bhusan Chakraborty, is the expert on foot-prints attached to the Forensic Science Laboratory, Medical College, Calcutta. On 16-8-1966 he received amongst others one leather slipper of the left foot marked 'Y' by him and 4 specimen foot-prints marked 1 to 4. The slipper is exhibit 7 and the specimen footprints are exhibits VII to X. He stated that "some comparable features could be deciphered from the slipper marked 'Y'. On comparison similarity in features was noticed between the slipper marked 'Y' with left foot specimen footprint marked by him". He was ultimately of the opinion that 'in all probabilities marks 'Y' and 1' are production of the one and the same left foot'. Mr. Ghosh has contended that the evidence of the footprint expert is not sufficient to connect the accused-appellant with the crime. Upon an analysis of the said evidence we agree with Mr. Ghosh. It is passing strange that an expert in his ultimate opinion would depend on probabilities and not on firm conviction in the absence whereof the said evidence would become dangerously thin indeed and the court of law would not take that by itself into consideration for the purpose of fixing the guilt of the accused. The expert having reached the point of interrogation or of probability, cannot be relied upon for the purpose of a conviction in a case under Section 302 I.P.C. It is difficult for us to comprehend as to how the expert was satisfied by comparing the specimen footprint of the accused as taken, marked 1' with the slipper of left foot, marked 'Y'. It is also difficult to understand as to how marks 'Y' and 1', being photographed in superimposed manner in his presence and enlarged thereafter, could be of any material help in connecting the accused with the crime. 14. Apart from the nature of the evidence of the expert as discussed above, the science of identification by footprint impression is still an imperfect science and it is inexpedient to place reliance on the result of such identification. Several authorities on the subject have been referred to before us, apart from the case law cited on the point, both by Mr. Prasun Chandra Ghosh and Mr. S. Banerjee, the learned D. L. R. In support of his contention. Mr. Several authorities on the subject have been referred to before us, apart from the case law cited on the point, both by Mr. Prasun Chandra Ghosh and Mr. S. Banerjee, the learned D. L. R. In support of his contention. Mr. Ghosh has referred to the observations of Charles E. O'Hara and James W. Osterburg made in their book 'An Introduction to Criminalistics' In the 4th printing (1960) of the said book the authors have observed at page 107 that "it is not always a simple matter to identify the shoe of a suspect as being unquestionably the shoe that made the impression at the scene of the crime. The large-scale manufacture of a few predominant brands of shoes gives the defence counsel grounds for establishing a strong doubt concerning the unique correspondence between the cast of the impression and the defendant's shoe. In many cases, the sole of the cast is without characteristics except for the shape of the shoe. The era of cheap shoes has led many people to the habit of purchasing new shoes rather than repairing old ones". By referring to the principles laid down therein about the walking pattern. Mr. Ghosh has submitted that the method as adopted in the present case, upon the own admission of P.W. 16, has not conformed to the norms enjoined in this behalf. Mr. Banerjee has referred to the book on 'Footprints' by G.W. Gayer (1st. Edn., 1909). At page 6, the author has observed that "When two impressions are being compared with each other with the object of finding out if both have been made by the same foot, one thing must be clearly understood, if they are impressions of the same foot they will agree in all essential points and there will be, no points of disagreement." The difficulty in the present case is regarding the two impressions as sought to be compared by the expert and there even the expert has only found 'some comparable features' and not an agreement 'in all essential points' ". Mr. Mr. Gayer has further observed at page 12 of the said book that "It is useless to compare measurements of feet with measurements of impressions of feet left on the ground because the sole is very liable to spread when pressure is brought on it." We agree with the said observation and hold that the said difficulty obtains in the present case also. Mr. Banerjee referred in the next place to the treatise on 'Modern Criminal Investigation' (5th Edn.) by Dr. Harry Soderman and John J. O' Connell. The learned authors have observed that "from the view point of criminology, sole-prints are not as important as finger and palm-prints, but occasionally they may have some measure of importance". Thereafter the authors have discussed the classification for this purpose as devised by Wilder and Wentworth and by Dr. Emil Jerloy of the Maternity Hospital of Halsingborg, Sweden. As to the identification of foot-prints it has been further observed in the said book at page 166 that "In order to get a true picture of the formation of the foot in different positions, it is necessary to take four different footprints; namely, in normal standing position, in walking, in a standing position with pressure on the outer portion of the foot, and in a standing position with pressure exerted on the inner part of the foot". It would therefore appear that the comparison as made in this case is defective and no fool-proof opinion can be advanced on the basis of the same. We may refer in this connection to the well-known treatise on "Criminal Investigation", as adopted by J. Collyer Adam (1924 Edn.) from the "System der Kriminalistik" of Dr. Hans Gross. The same is an authority on the subject and has been referred to by G.W. Gayer and also both by Dr. Harry Soderman and John J. O' Connell and by Charles E. O' Hara and James W. Osterburg. As to the importance and use of footprints the learned author has observed at p. 325 of the said book that "As a rule, footprints are but seldom found where they are wanted. Moreover, when they exist, they are rarely entire and complete, and for that reason are considered of no value ........ As to the importance and use of footprints the learned author has observed at p. 325 of the said book that "As a rule, footprints are but seldom found where they are wanted. Moreover, when they exist, they are rarely entire and complete, and for that reason are considered of no value ........ On the other hand when well-pre-served traces do exist, the essential thing is to be able to interpret them and to know how to make good use of them. On this science is dumb and has hardly even approached the question". As to the reproduction of footprints, he has further observed at page 363 that "We trust it is unnecessary at this stage to repeat that all important impressions must be reproduced. One can hardly imagine an Investigating Officer so indifferent or so inexperienced as to experiment with the original footprint itself. It is however a fact that such persons exist, so that we cannot too strongly point out the danger of damaging an impression". Unfortunately, however, the examination in this case of the foot impression suffers from the said defect and the method as adopted has been quite unsatisfactory and has resulted in a serious prejudice to the accused-appellant. 15. In this connection reference has been made to several decisions on the point. Mr. Ghosh has referred to the decision in Bhikha Gober v. Emperor by Chief Justice Beaumont and Mr. Justice Sen, AIR 1943 Bom. 458. Chief Justice Beaumont delivering the judgement held at p. 460 that it is not sufficient "that the footmarks tallied with the accused's shoes. That may mean no more than that these marks were made by shoes of a size corresponding to the size of the accused's shoes. That is not enough. There may be a large number of shoes in the village of the size of the accused's shoes. The evidence must go further and show that the marks had some peculiarity which was found in the shoes of the accused, and would not be found in most other shoes". The next case cited is that of In re Paramban Mammadu, AIR 1951 Mad 737 . Mr. Justice Horwill and Mr. Justice Rajagopalan observed at p. 740 that "The opinion of a footprint expert is not admissible as evidence..... The value of evidence with regard to footprints is obviously very much less trustworthy than evidence with regard to fingerprints..... The next case cited is that of In re Paramban Mammadu, AIR 1951 Mad 737 . Mr. Justice Horwill and Mr. Justice Rajagopalan observed at p. 740 that "The opinion of a footprint expert is not admissible as evidence..... The value of evidence with regard to footprints is obviously very much less trustworthy than evidence with regard to fingerprints..... With regard to footprints, on the other hand, it would seem from the evidence and from what we have been able to read from Dr. Hans Gross's book on Criminal Investigation that one can only compare with the general shape of footprints found with the shape of impressions taken from the feet of the person suspected". The next case cited by Mr. Ghosh is that of Ganesh Gogoi v. State, AIR 1955 Assam 51 Chief Justice Sarjoo Prosad and Mr. Justice Ram Labhya delivering the judgement observed at page 54 that" Section 45, Evidence Act does not include footprints within its ambit as it does the finger impressions. Notwithstanding this omission, the evidence of footprints expert has been admitted with the qualification that there should be other evidence to bring home the charge to the accused. The rule on the point is that the opinion of the footprint expert would not by itself suffice to base conviction on and the rule has been applied to testimony of other experts including experts on fingerprints". A reference was also made to the decision by Mr. Justice S.C. Misra and Mr. Justice U.N. Sinha in the case of Basudeo Gir v. State, AIR 1959 Pat 534 . Mr. Justice Misra referred to the various authorities and decisions on the point and observed at p. 536 that "In my opinion, the word "science" which has been defined in the Universal Dictionary of English language, referred to by the learned Judge, as great proficiency, dexterity, skill based on long experience and practice, is sufficiently wide to include the evidence of an expert" Mr. Justice Sinha agreed with the said view and referred to the two previous decisions by the Patna High Court, namely, in the case of State v. Karu Gope, AIR 1954 Pat 131 and in the case of Ramkaran Mistri v. State of Bihar, 1958 Pat LR 246 wherein the opinion of the expert was considered "on merit without any reference to Section 45 of the Indian Evidence Act". It is quite true that in Section 45 of the Indian Evidence Act there is no mention of footprint impression in specific terms. As a matter of fact the words "finger impression" were added by Section 3 of the Indian Evidence Act 5 of 1899. In this context it would be pertinent to refer to the case of Queen Empress v. Fakir Md. Sheikh, (1897) 1 Cal WN 33 where Mr. Justice Banerji held at page 35 that "though the comparison of thumb-impression is allowable, such comparison must be made by the Court itself; and the opinion of the expert as to the similarity of such impression is not admissible under Section 45 of the Evidence Act". It is also pertinent to consider that in Ceylon Section 45 of the Indian Evidence Act has been amended to include the words "palm-impression or foot-impression" after "finger-impression" wherever they occur in this section. Therefore, the state is not in a flux so far as Ceylon is concerned. However, as has been held in AIR 1959 Pat 534 such evidence by an expert on footprint could come within the ambit of the word 'science' as used in Section 45 of the Evidence Act. The utmost bounds of human thoughts are however, ever expanding and the outer periphery of science are extending everyday. The expression "science" is accordingly acquiring a wider connotation in the world today. Identification of people by smell or even by their teeth are now in vogue and are considered to come within the ambit of "science". Forensic Odontology or the science of identifying people by their teeth was recently relied upon for the detection of crime in the High Court at Edinburgh. The cloud however, has been lifted and the point settled in the case of Pritam Singh v. State of Punjab, decided by Mr. Justice Bhagwati, Mr. Justice Venkatarama Ayyar and Mr. Justice Sinha reported in AIR 1956 SC 415 . Mr. Justice Bhagwati who delivered the judgement observed at page 423 that "The science of identification of footprints is no doubt a rudimentary science and not much reliance can be placed on the result of such identification. The track evidence, however, can be relied upon as a circumstance which, along with other circumstances, would point to the identity of the culprit though by itself it would not be enough to carry conviction in the minds of the Court". The track evidence, however, can be relied upon as a circumstance which, along with other circumstances, would point to the identity of the culprit though by itself it would not be enough to carry conviction in the minds of the Court". 16. We hold therefore, that it is unsafe to base a conviction on the basis of the expert's evidence alone regarding footprint or sole print. As considered in the light of the observations made by the various authorities on the subject and in view of the principles laid down in the different cases on the point, the science of footprint or sole print or of track evidence appears to be still in an embryonic stage. It may have travelled beyond the stage of crude empiricism but has not yet reached the stage of an exact science. 17. We shall now pass on the last submission of Mr. Ghosh with regard to circumstantial evidence. Mr. Ghosh has submitted emphatically that this is preeminently a case which consists entirely of circumstantial evidence and that the chain of circumstances as established by the prosecution is very thin and is not of such a character that it is wholly inconsistent with the innocence of the accused and is consistent with his guilt. This is a material submission, going to the very root of the case, and if it succeeds is sufficient by itself to warrant the acquittal of the accused. Therefore, it will be pertinent to consider what exactly circumstantial evidence is. Circumstantial evidence is the evidence of circumstances as opposed to what is called "direct evidence". Circumstantial evidence is the evidence of the surrounding circumstances or the accumulated circumstances and if put together it points to one direction, namely to the guilt of the person accused - that is circumstantial evidence. Wills in his Principles of Circumstantial Evidence 7th Edition at page 6 has observed that "Circumstantial Evidence means the evidence afforded not by the direct testimony of an eye-witness to the fact to be proved, but by the bearing upon that fact of other and subsidiary facts which are relied upon as inconsistent with any result other than the truth of the principal fact". It is quite true as was observed by Baron Parke in Towell's case (1854) 2 C and K, 309 that "Direct evidence of person who saw the fact, if that proof is offered upon the testimony of men whose veracity you have no reason to doubt is the best proof; but on the other hand, it is equally true with regard to circumstantial evidence that the circumstance may often be so clearly proved, so closely connected with it, or lead to one result in conclusion, that the mind may be as well convinced as if it were proved by eye-witnesses". It will be pertinent in this context to consider some of the decisions of the Supreme Court on the point as to what constitutes the proper test of circumstantial evidence. In the case of Hanumant Govind Nargudkar v. State of Madhya Pradesh, AIR 1952 SC 343 , Mr. Justice Mahajan (as His Lordship then was) delivering the judgement observed at pp. 345 and 346 that : "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of guilt of the accused. Again, tile circumstance should be of a conclusive nature and tendency and they should be such as to exclude other hypothesis, but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused". In a subsequent case viz., of Govinda Reddy v. State of Mysore, reported in AIR 1960 S.C. 29 the Supreme Court followed the previous decision in AIR 1952 S.C. 343 and approved of "the mode of evaluating circumstantial evidence" as stated therein. In the case of Anant Chaintaman Lagu, v. State of Bombay, AIR 1900 SC 500, Mr. In a subsequent case viz., of Govinda Reddy v. State of Mysore, reported in AIR 1960 S.C. 29 the Supreme Court followed the previous decision in AIR 1952 S.C. 343 and approved of "the mode of evaluating circumstantial evidence" as stated therein. In the case of Anant Chaintaman Lagu, v. State of Bombay, AIR 1900 SC 500, Mr. Justice Hidayatullah (as His Lordship then was) observed at page 523 that "Circumstantial evidence in this context means a combination of facts creating a net-work through which there is no escape for the accused, because the facts taken as a whole do not admit of any inference but of his guilt". In a later decision viz., of M.G. Agrawal v. State of Maharashtra, AIR 1963 S.C. 200 , Mr. Justice Gajendragadkar (as His Lordship then was) observed at page 206 that "It is a well-established rule in criminal jurisprudence that circumstantial evidence can be reasonably made the basis of an accused person's conviction if it is of such a character that it is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. If the circumstances proved in the case are consistent either with the innocence of the accused or with his guilt, then the accused is entitled to the benefit of doubt". Mr. Gosh has further referred to the case of AIR 1963 S.C. 74 , wherein Mr. Justice Kapur, holding the minority view with Mr. Justice Hidayatullah (as His Lordship then was) observed at page 81 that "any circumstance which destroys the presumption of innocence, if properly established, can be taken into account to find out if the circumstances lead to no other inference but of guilt. Thus, what we have to see is whether, taking the totality of circumstances which are held to have been proved against the appellants, it can be said that the case is established against the appellants, i.e. the facts established are inconsistent with the innocence of the appellants and incapable of explanation on any hypothesis other than that of guilt". We may in this connection also refer to the observation of Lord Coleridge, J. in Rex v. Dickman Newcastle Summer Assizes, 1910 that "circumstantial evidence varies infinitely in its strength in proportion to the character, the variety, the cogency, the independence, one or another, of the circumstances. We may in this connection also refer to the observation of Lord Coleridge, J. in Rex v. Dickman Newcastle Summer Assizes, 1910 that "circumstantial evidence varies infinitely in its strength in proportion to the character, the variety, the cogency, the independence, one or another, of the circumstances. I think one might describe it as a network of facts cast around the accused man. That network may be a mere gossamer thread as light and as unsubstantial as the air itself. It may vanish at a touch. It may be that, strong as it is in part, it leaves great gaps and rents through which the accused is entitled to pass in safety". 18. In the light of the abovementioned principles, we will now proceed to consider the respective chains. The chain of circumstances as claimed to have been established against the accused-appellant has been catalogued by Mr. Banerjee as follows :- (i) Bhulakiram and deceased Musafir Singh worked in the same factory and were friends. Musafir Singh took a loan of money from Bhulakiram and for nonpayment of the same there was a quarrel about 15/20 days before the murder when Bhulakiram threatened to take some action some day by saying" (There was a friendship, but, there will be fight). (ii) On the night of occurrence, i.e., 22nd November, 1965, accused Bhulakiram after the night-shift took meals and drank wine with a companion in the hotel of Gurmit Singh (P.W. 9) near the factory where he worked. This companion had at least some facial similarities with deceased Musafir Singh. (iii) On the night of murder Bhulakiram returned to his house after the usual hours of closing of the gate, wearing a gamcha and a 'genji' with a chaddar worn round the head and with a bundle in left hand. When it was proved that he had worked in the night-shift which continued up to 10-30 p.m., the things which he had on his person suggested that he had the necessity of changing the normal working dress for some reason in the meanwhile. Bhulakiram was not inclined to give any explanation of this unusual dress at the time of arrival in the house after the usual hours of closing of the gate of the house. Bhulakiram was not inclined to give any explanation of this unusual dress at the time of arrival in the house after the usual hours of closing of the gate of the house. (iv) The manner in which he entered the house with his right hand bent and raised upwards was suspicious and the medical evidence suggested that he had received an accidental injury from a sharp cutting weapon 3/4 days before the 25th November, 1965. (v) On the morning following the night of murder a chappal was found near the Dhobi ghat and that was satisfactorily established to be of the left foot of accused Bhulakiram. (vi) Shortly after the arrest of Probhua, the co-accused, who admitted his presence near the place of occurrence, the whole family of the accused Bhulakiram started for Howrah Railway Station for going home, apprehending some trouble. (vii) When the family had left for Howrah as per previous arrangement, there was no reasonable ground for Bhulaki's making a stealthy visit to the house at about 8/9 p.m. He also gave no satisfactory explanation of his conduct in attempting to escape. (viii) Probhua, who admitted his presence at the place of occurrence, led the police party to the house of the accused Bhulakiram. (ix) Bhulakiram in course of his statement to P.W. 28 referred to a tank and led the police party there shortly after his arrest and, from a place pointed out by him, certain blood-stained garments were found. Though the origin of the blood-stains in most of the articles could not be detected on account of disintegration, the origin of one was detected and that was human. Bhulakiram offered no explanation about his conduct for he denied to have made any statement or to have pointed out any place. (x) Bhulakiram led P.W. 28, S.I. Nihar Chatterjee to another tank in Gopal Chowdhury Lane on the 26th November, 1965 and pointing out a place, stated that he had thrown the dagger there. From the base of the portion of the tank pointed out, a dagger was recovered. It had blood-stains, though the origin could not be detected on account of disintegration and the accused Bhulakiram during examination under Section 342, Criminal P.C. offered a wild story by way of explanation. 19. Mr. From the base of the portion of the tank pointed out, a dagger was recovered. It had blood-stains, though the origin could not be detected on account of disintegration and the accused Bhulakiram during examination under Section 342, Criminal P.C. offered a wild story by way of explanation. 19. Mr. Ghosh on the other hand has submitted that the said circumstances have mostly not been proved by evidence which is admissible in law and the chain, in any event, far from being complete leaves dangerous gaps and many of the material links are missing. (After discussing the evidence his Lordship proceeded.) 20. In this case, if we jettison the body of evidence already discussed and found to be inadmissible, no conviction can be upheld upon the residue. What we are left with is but a lot of suspicion and only a scintilla of evidence, which in its turn is mildewed and moth-eaten we must remember that "of things that do not exist and things that do not appear, the reckoning in a court of law is the same". It is pertinent in this context, to refer to the case of Emperor v. Asraf Ali, 37 Cal WN 595 : (AIR 1933 Cal 426) wherein Chief Justice Rankin, sitting with Mr. Justice Pearson and Mr. Justice Guha, observed at p. 597 (of Cal WN) : (at p. 429 of AIR) that "I repudiate altogether the doctrine that capital offences are tried as res integra on the paper book. But if there is no sufficient evidence to warrant a conviction, we have, in my judgement, the obligation to say so". In this case also, we feel compelled to hold that far from any sufficient and legal evidence being on the record, there is such a paucity of the same that it must enure to the benefit of the accused. As has been observed by Dr. P.K. Sen in his Treatise : "Penology, Old and New" (Tagore Law Lectures; 1929) that "Human life is too sacred to be lightly sacrificed at the alter of law". We fully agree with the said observations and hold that the prosecution evidence in this case leaves such wide gaps and rents that ex-debito justitiae the accused-appellant must be allowed to pass through the same, with impunity. 21. We fully agree with the said observations and hold that the prosecution evidence in this case leaves such wide gaps and rents that ex-debito justitiae the accused-appellant must be allowed to pass through the same, with impunity. 21. Before we part with the case, we are constrained to observe that the investigation as made in the case has been perfunctory and the procedure adopted at the trial, has been in contravention of law. As has already been observed above, a body of evidence, wholly irrelevant and grossly inadmissible, has been let in to cloud the issue and burden the record. It is an ill-wind that blows no body any good and we find that, the accused has been seriously prejudiced thereby. 22. In the result, we refuse to accept the Reference and allow the appeal. The order of conviction and sentence is set aside and the accused-appellant is acquitted of the charge and we direct that he be set at liberty forthwith. 23. AMARESH ROY, J. :- I fully agree with the reasons and conclusions stated in the judgement just delivered by my Lord. 24. I would only like to add a few words about the procedure adopted in the court below. There appears to be a degree of laxity on the part of the prosecution and of the trial Judge, giving rise to the apprehension that requisite care to ensure fair trial was absent. The search and the seizure-list, marked exhibits in the case bear testimony to this lack of care, spelling out deliberate unfairness on the part of the prosecution in so far as those contained purported confessional statements of the accused person. These are clearly inadmissible. Neither the prosecution in the trial court nor the trial Judge had taken the care to weed out those inadmissible and prejudicial matters, offered with the evidence in the court, to ensure a fair trial. The same criticism holds good with regard to statements purported to have been admitted under Section 27 of the Indian Evidence Act. 25. I am constrained to observe that the necessary care to bring the legal materials on record has not been taken in the case. In contrast the great pains taken by the learned Advocate Mr. Prasun Chandra Ghosh for the accused-appellant for pointing out those illegalities and fairness of the learned Deputy Legal Remembrancer Mr. 25. I am constrained to observe that the necessary care to bring the legal materials on record has not been taken in the case. In contrast the great pains taken by the learned Advocate Mr. Prasun Chandra Ghosh for the accused-appellant for pointing out those illegalities and fairness of the learned Deputy Legal Remembrancer Mr. Sambhunath Banerjee in that respect to place all materials before this court have helped us to a great extent. We only hope that we may not have to come across the same laxity in future in other trials in this State. Order accordingly.