Judgment : ARUNACHALAM, J.: 1. Balu, the appellant was charged under Sec.302, I.P.C. in S.C.No.26 of 1984, on the file of the Court of Sessions, West Thanjavur at Thanjavur, for having caused the death of his bosom friend Vadivelu, by stabbing him with a knife, all over his body, on the night of 18th August, 1983, at Melapallieri Vadakkikadu village. He was also charged under Sec.392 read with Sec.397, I.P.C. for having robbed a pair of gold earrings (M.O.1 series) from the body of deceased Vadivelu Ambalakarar, at or about the time of committing his murder. 2. The learned trial Judge, after an elaborate trial, found the appellant guilty of murder and sentenced him to undergo imprisonment for life. However, the learned trial Judge held, that the appellant was guilty only under Sec.379, I.P.C. under the second charge and sentenced him to undergo rigorous imprisonment for 2 years. The substantive sentences, were directed to run concurrently. 3. The prosecution case in brief is as follows: The appellant and the deceased, the former a Dobi and the latter an insecticides sprayer, were residents of Sankaranathan Kudikaru village. The friendship was so intimate, that they used to drink arrack Together and after intoxication, drink more liquor. When almost topsy-turvy due to consumption of arrack, they used to indulge in quarrels. Deceased Vadivelu was having illicit intimacy with one Muthukannu, wife of Mookia Vijayathevar. The appellant also as her dobi, developed contacts with Muthukannu. However, the amorous activity of the appellant was not seriously talked about in the village. In a panchayat relating to the intimacy of the deceased with Muthukannu, the former was fined. 4. It was in this background that the occurrence had taken place on the night of 18.8.1983, It appears from the evidence of P.W. 3, Chitravelu, that the deceased had left the village along with the appellant on the guise of buying cattle. P.W.4 Arumugfiam had seen the appellant and the deceased together at or about 7.30 p.m. on 18.8.1983, at Kalimedu Parisutha Nagar. Both wanted P.W.4 to supply arrack for them. P.W.4 took them to the arrack shop and purchased liquor for them. Deceased asked the appellant to pay for liquor. The appellant desired, that the deceased should pay for it. Both of them quarrelled and ultimately the appellant foot the bail. Both wanted P.W.4 to supply arrack for them. P.W.4 took them to the arrack shop and purchased liquor for them. Deceased asked the appellant to pay for liquor. The appellant desired, that the deceased should pay for it. Both of them quarrelled and ultimately the appellant foot the bail. The deceased was already known to P.W.4, since he had visite 1 Kalimedu Parisutha Nagar earlier. P.W.4 had seen the deceased wearing ear ornaments usually, and he had seen them, worn by the deceased, even on the evening of 18.8.1983. 5. P.W.1 a resident of North Street, Kalimedu went with drinking water to his younger brother, who was grazing sheep at Melapallieri Vadakkikadu. He had informatior, that in the land of one Soundararajan (not examined) of Melapallieri Vadakkikadu, a person was found with stab injuries. P.W.1 proceeded in that direction. At or about 1.30 p.m. on 19.8.1983 when he reached the spot, the victim asked him for water. The victim had injuries all over his bod The injuries were covered with a cloth. P.W.1 had offered water to the victim, which was gulped in. The victim told P.W.1, that he belonged to Sanaranathan Kudikadu village and that Dobi Balu, who had accompanied him, had stabbed him with a Bitchuva. He requested P.W.1 to save him. Even before P.W.1 could arrange for any help, the victim breathed his last. Along with P.W.1, Rajendran (not examined) and Kalaiselvan, P.W.2, were present. P.W.2, Kalaiselvan has supported, thes version of P.W.1. A little later P. W.6 Kandasami, village Administrative Officer of Pallieri Vilage arrived at the scene. P.W.1 narrated to P W.6 all that the deceased had stated to him. The narration of P.W.1 was reduced into writing by P. W.6. In Ex.P-1 so written, P.W.6 obtained the signature of P.W.1. P.W.1 claims to have seen the left ear of the deceased, torn. P.W.6 prepared his report Ex.P-3 and forwarded Exs.P-1 and P-3 to the police station through village Menial. Ex.P-2 a copy of Ex.P-1 was forwarded to the Judicial II Class Magistrate, Thanjavur. 6. P.W.13, Natarajan then Sub Inspector of Police, Kallaperambur, received Ex.P-1 and P-3 at 5.30 p.m. on 19.8.1983 and registered Crime No.III of 1983 under Sec.302, I.P.C. He prepared the express first information report Ex.P-17 and forwarded it along with Exs.P-1 and P-3 to the concerned Magistrate, Copies of Ex.P-17 were sent to his higher authorities. 6. P.W.13, Natarajan then Sub Inspector of Police, Kallaperambur, received Ex.P-1 and P-3 at 5.30 p.m. on 19.8.1983 and registered Crime No.III of 1983 under Sec.302, I.P.C. He prepared the express first information report Ex.P-17 and forwarded it along with Exs.P-1 and P-3 to the concerned Magistrate, Copies of Ex.P-17 were sent to his higher authorities. P.W.13 proceeded to the scene of occurrence at or about 6.30 p.m. and stayed overnight in the village. 7. P.W.14, Kadir Mohideen, then Inspector of Police, Thanjavur Taluk circle, received a copy of Ex.P-17 at or about 5 a.m. on 20.8.1983 and soon thereafter took up investigation and proceeded to the scene village. At, 6.30 a.m., he inspected the scene of occurrence and.prepared the observation Mahazar Ex.P-4, attested by P.W.6. He also prepared the scene sketch Ex.P-19 at 7 a.m. he recovered from the scene sketch, Ex.P-19. At 7 a.m. he recovered from the scene blood-stained earth M.O.2; blood-stained dhothi M.O.3; another dhothi M.O.4, Money purses M.Os.5 and 6; Plastic tube M.O.7 and a red cloth tape M.O.8 under Mahazar Ex.P-5 attested by P.W.6 and another. He conducted inquest over the corpse of Vadivelu between 7.30 a.m. and 10.30 am. during the course of which he examined P.Ws.1 to 3. Ex.P-18 is the inquest report. 8. After inquest. P.W.14 forwarded the dead body through Police Constable Kalimuthu (P.W.12) with a requisition Ex.P-12 to the Thanjavur Medical College Hospital for the conduct of post-mortem. At 4 p.m., P.W.14 examined P.W.5 Balaiyan, the son of the deceased, P.W.5 has identified M.O.1 series as the gold rings which his father always used to wear and which he was wearing, when he last left his house on 18th August, 1983. 9. P.W.8 Dr.Vadivelu commenced autopsy on the dead body at 2. p.m. on 20.8.1983 and found the following injuries: 1. A tear 1 cm. × ½ × ½ cm. seen over the lower tip of the left ear. 2. A Linear incised wound 4 cm. × ¼ × ¼ cm. seen on the front and outer aspect of left side upper neck; 3. A horizontal incised wound gaping 6 × 1 × ½ cm. seen over the front of left side neck at its centre; 4. An incised wound 6 × ½ × ¼ cm. over the front of neck just below the injury No.3; 5. A stab injury 4 cm. × 2 cm. × 5 cm. A horizontal incised wound gaping 6 × 1 × ½ cm. seen over the front of left side neck at its centre; 4. An incised wound 6 × ½ × ¼ cm. over the front of neck just below the injury No.3; 5. A stab injury 4 cm. × 2 cm. × 5 cm. seen over’ the front of right side neck just above the collar bone cutting the skin, muscle, blood vessels and entered into the right side thoracic cavity. 6. A stab wound 4 cm. × 1 cm. × 6 cm. seen over the front of left side upper abdomen On dissection showed that it has passed backwards and inwards cutting the skin, muscles, peritoneum and retraparitioneal tissues, with contusion surrounding the left side Kidney. 7. An incised wound 1 cm. × ¼ cm. ¼ cm., seen on the left side abdomen 1 cm.;above the injury No.6; 8. Abrasion 5×3 cm., seen over the front of left side elbow. 9. A cut injury 1 cm. × ½ cm. × ½ cm., seen over the front of left side of abdomen 1 cm., away from the umbilicus. 10. A cut injury 1½ cm. × 1½ cm. seen over the outer aspect of left forearm 5 cm below the left elbow. 11. Acut injury 6× ½× ½ cm., seen over the back of left hand. 12. Multiple abrasions seen over the front of left knee joint; 13. Multiple abrasions 2×1 cm., seen below the left knee joint; 14. Acut injury 4×2×1 cm., seen over the right knee joint. 15. Acut wound 2 × ½ × ½ cm., seen over the front of right side wrist. 16. Multiple abrasions noticed over the back of chest and abdomen; 17. An abrasion 2×1 cm., seen over the buttocks; 10. The medical officer noted that linger nails were pale. Peritoneal cavity contained 500 ml., of fluid blood with clots. All chambers of the heart were empty. Lungs were pale and the right lung had collapsed. Coronaries were patent Hyoid bone was intact. Stomach contained 10 ml., of tea coloured fluid. In the opinion of the doctor, the deceased would appear to have died of shock and haemorrhage, as a result of multiple injuries sustained by him. Except injury numbers 1, 8, 12, 13, 16 and 17, all the other injures could have been caused by a pen knife. Stomach contained 10 ml., of tea coloured fluid. In the opinion of the doctor, the deceased would appear to have died of shock and haemorrhage, as a result of multiple injuries sustained by him. Except injury numbers 1, 8, 12, 13, 16 and 17, all the other injures could have been caused by a pen knife. Those injuries which could not have been caused by a pen knife could be the result of falling on a rough surface. It was not possible for the deceased to have survived for a period of 16 hours after sustaining all the injuries noticed by him. The cumulative effect of all the injuries found on the victim would be sufficient to cause death. Injury Nos.5 and 6 were fatal. Death could have occurred 36 hours prior to postmortem. Ex.P-13 is the post-mortem certificate. 11. P.W.14 arrested the appellant at or about 3 p.m. on 23.8.1983, near Mariammankoil. When examined, the appellant volunteered a statement, the admissible portion of which is Ex.P-14. In pursuance of his statement, the appellant took P.W.14 and the attesting witness P.W.10 to Pokkulam and pointed out P.W.9 Govindaraj, who was then at his residence. From the house of P.W.9, the appellant took out a yellow cloth bag M.O.10 containing a foldable knife M.O.9 P. W. 14 seized them under a mahazar Ex.P-15 attested by P.W.10. 12. According to P.W.9, at or about 10.30 P.M. on 18.8.1983, the appellant came aver to his house at Pokkulam with a cloth bag M.O.10 and slept in his house for the night. On the next morning the appellant sought the help of P.W.9 to sell a pair of gold ear rings. P.W.9 took the appellant to Iyyenkadai street and pointed out the shop of P.W.11 Ramanathan, to whom the appellant sold M.O.1 series for Rs.332. On the evening of 19.8.1983, P.W.9 found the appellant, out of his usual mood. When P.W.9 questioned him, as to what the matter was, the appellant told him, that he had taken his friend from his village to Melapallieri and murdered him, while committing robbery of the ear rings, which he had sold earlier in the morning to P.W.11. P.W.14 in the company of the appellant, P.W.9 and P.W.10 went over to the shop of P.W.11 which was pointed out by the appellant. P.W.14 in the company of the appellant, P.W.9 and P.W.10 went over to the shop of P.W.11 which was pointed out by the appellant. P.W.11 produced M.O.1 series, which he had purchased to be seized under Mahazar Ex.P-16, attested again by P.W.10. Later at the police station, P.W.14 recovered M.Os.14 and 15, the dhothi and towel worn then by the appellant, under mahazar Ex.P-20, since they contained blood. 13. P.W.14 found the appellant in a mood to confess. Hence he sent a requisition Ex.P-6 to the then Judicial II Class Magistrate, Thiruvaiyaru, to have the judicial confession of the appellant recorded; P.W.7 Kalavathi, the then Judicial II Class Magistrate directed production of the appellant before her, on 6.9.1983. The usual warnings ordained by law, were administered and the appellant was given time for reflection till the next day. The appellant was produced again on 7.9.1983 before P.W.7. After satisfying herself that the appellant was desirous of offering a voluntary confession, she recorded his statement. Ex P-10 is the Judicial confession. Ex.P-11 is the certificate appended by P.W.7, the the appellant had voluntarily confessed. In Ex.P-10, the appellant has stated, as far as the occurrence proper is concerned, that the deceased, who had consumed arrack and made him pay for the same, was incessantly picking up quariels. The deceased wanted him to buy mixture (eatable) for him. When the appellant did not oblige, the deceased abused him in vulgar language and pushed him. down. The appellant who was unable to control himself, since he was being teased by the deceased for a very long time, took out a knife and stabbed him several times. After Vadivelu expired, he removed the gold ear-rings worn by him and ran away. Those were the gold ear rings which he had sold to P. W. 11. He has also stated that after removing the ear ornaments, he had hung the deceased upside down from a tree. 14. P.W.14 forwarded the material objects seized for chemical analysis, through court. Exs.P-22 and P-23 are the reports of the Chemical Analyst and Serologist respectively. Ex.P-23 disclosed that M.O.4; M.O.9 and M.O.13 obtained ‘B’ group human blood. After completing investigation, P.W.141aid the charge-sheet against the appellant before the Committal court on 16.12.1983. 15. 14. P.W.14 forwarded the material objects seized for chemical analysis, through court. Exs.P-22 and P-23 are the reports of the Chemical Analyst and Serologist respectively. Ex.P-23 disclosed that M.O.4; M.O.9 and M.O.13 obtained ‘B’ group human blood. After completing investigation, P.W.141aid the charge-sheet against the appellant before the Committal court on 16.12.1983. 15. When the appellant was examined under Sec.313, Crl.P.C to explain the incriminating circumstances appearing against him in evidence he chose to deny his complicity in the crime. He went on to add that he did not give any statement to the police leading to recovery of material objects. He further stated that the judicial confession was the outcome of tutoring by the police, who had kept him in custody for about 2 weeks. He did not choose to adduce any evidence in defence. 16. The learned trial Judge on meticulous appreciation of the oral and documentary evidence accepted the prosecution case, rejected the defence and dealt with the appellant in the manner stated earlier. 17. We have heard Mr.K.S.Ramachandran, learned counsel appearing for appellant and Mr.S.Shanmughavelayutham, the learned Additional Public Prosecutor appearing on behalf of the State. Both the Counsel took us through the recorded evidence in great and minute detail. 18. This is a case of circumstantial evidence, in which the following of rcumstances have been placed by the prosecution, while seeking conviction of the appellant. (1) Oral dying declaration alleged to have been made by the deceased to P.W.1 and P.W.2 on the afternoon of 19.8.1983; (2) Ex.P-10 retracted judicial confession of the appellant recorded on 7.9.1983 by P.W.7; (3) Extra judicial confession stated to have been made by the appellant to P.W.9 on the evening of 19.8.1983. (4) The evidence of P.W.4 of having seen the appellant and the deceased together at or about 7.30 p.m. on the night of 18.8.1983; (5) The arrest and confession of the appellant leading to recovery of M.Os.1, 9 and 10 and tracing of P.W.9 andP.W.11. 19. It is settled law that in a case, which is dependant on circumstantial evidence, the prosecution is bound to establish a complete chain of circumstances, so clinchingly connected together without any missing link. The evidence placed must indisputably point to the guilt and guilt alone of the appellant and should not be capable of being explained away by any other reasonable hypothesis. The evidence placed must indisputably point to the guilt and guilt alone of the appellant and should not be capable of being explained away by any other reasonable hypothesis. Keeping these principles in mind, we will now scrutinise the available evidence. 20. As far as the first circumstance is concerned, relating to the oral dying declaration allegedly made by the victim to P.Ws.1 and 2, the learned Sessions Judge was not inclined to believe it. We hold that the learned Sessions Judge was perfectly justified in rejecting the tall claim of the prosecution, that the victim had made an oral dying declaration to P.Ws.1 and 2. The learned Sessions Judge had chosen to distrust this part of the prosecution case, based on the medical evidence of P. W.8, that the victim could not have survived for more than an hour and could not have spoken after such a long period, on the next day (19.8.1983) at 1.30 P.M. Apart from the reason given by the learned Sessions Judge, we will like to add one more reason and that is obvious from Ex.P-10, Judicial confession of the appellant. The appellant has specifically stated, that the deceased was dead, even on the night of 18.8.1983 and it was there after that he took M.O.1 series from the victim and went away. That portion of the confession has been extracted by the learned Sessions Judge in paragraph 12 of his judgment. The first circumstance is therefore of no assistance to the prosecution. 21. The second circumstance is the judicial confession Ex.P-10 recorded on 7.9.1983 by P.W.7 prima facie we entertained an opinion, that Ex.P-10 would be entitled to acceptance, since the narration is detailed and contains wealth of information, which the appellant alone, could have known. When the appellant was questioned by P.W.7; before recording Ex.P-10, though he has stated, that he was detained at the Thanjavur Taluk Police Station for 4 days, he had not stated that he was tortured, coerced or cajoled to confess to the crime. However, on a careful scrutiny, coupled with several irreconcilable infirmities, we are of the firm impression, that the retracted judicial confession of the appellant, will not ensure in favour of the prosecution. The extra Judicial confession allegedly made to P.W.9, has not been stated in Ex.P. 10. However, on a careful scrutiny, coupled with several irreconcilable infirmities, we are of the firm impression, that the retracted judicial confession of the appellant, will not ensure in favour of the prosecution. The extra Judicial confession allegedly made to P.W.9, has not been stated in Ex.P. 10. The appellant claims to have gone over to Pokkulam village, to the house of his relation, after leaving the scene of occurrence. According to him without the knowledge of his relations, he slept outside the house and left at or about 5.30 a.m. on the next morning to a tea shop where he met P.W.9. He of course states that with the help of P.W.9 he had pledged the jewellery. Out of the pledged money, P.W.9 took away Rs.20 for himself and handed over another Rs.10 to a 3rd party. The appellant purchased some articles and a sum of Rs.100 was also found missing. Thereafter he returned to his village. It is not the case of the appellant in his judicial confession, that the jewel was sold. He has not specifically stated that the person who took the jewellery, be it on sale or pledge was P.W.11. From the cross-examination of P.W.7 we are able to see that he had directed production of the appellant before court on 3.9.1983, but the investigating agency chose to produce him only on 6.9.1983. Of course an explanation has been sought to be offered, that the appellant could not have been produced earlier, since there was only one Constable available in the jail and the delay was inevitable. Prima facie this explanation cannot be doubted, but when we are able to see the possibility of the appellant having been in the custody of the police as claimed by him, probably even from the date of occurrence, we are unable to dismiss as inconsequential, the plea of the learned counsel for theappellant, that the judicial confession could not have been the outcome of the voluntary desire of the appellant. While on this issue, we must specifically point out, that the son of the deceased in his substantive evidence, has deposed that on 20.8.1983, he was taken to the Thanjavur Taluk Police Station. He was shown at the police station, the ear ornament, which his father had worn on the date, when he left his residence, for the last time. While on this issue, we must specifically point out, that the son of the deceased in his substantive evidence, has deposed that on 20.8.1983, he was taken to the Thanjavur Taluk Police Station. He was shown at the police station, the ear ornament, which his father had worn on the date, when he left his residence, for the last time. We checked up the original deposition of P.W.5 and we are satisfied that the date 20.8.1983 has been correctly typewritten. If the prosecution case is that the appellant was arrested on 23.8.1983 and only thereafter on his information recovery of M.O.1 series was made from the shop of P.W.11, it will be amazing that P.W.5 was able to see the ear ornament of his father, even three days earlier, to the arrest of the appellant. It was pointed out by the learned Additional Public Prosecutor, that there should be some mistake in the statement of P.W.5 for, the case diary reveals, that P.W.5 was examined over again on 24.8.1983 to identify M.O.1 series. If that be so, the Public Prosecutor in charge of the trial, must have been vigilant and elicited from P.W.5 in re-examination, that the identification of the jewellery was subsequent to its seizure on 23.8.1983. We cannot prefer material in a case diary, which is not admissible in evidence, to that of the substantive evidence of P.W.5, in court. Even if it be a mistake, the mistake would certainly enure in favour of the appellant. 22. We are unable to dismiss it as a mistake for, the report of the investigating Officer, P.W.14 in Ex.P-21 is quite astonishing P.W.14 had signed Ex.P-21 on 24.8.1983, after the arrest of the appellant and the recovery. It is better to extract a part of the “history of the case”, described by P. W. 14 in Ex.P-21. It reads as hereunder: “On 17.8.1983 at about 08.00 hours one Vadivelu, aged 55, son of Veeran Ambalakaran of Sankaranathan Kudikadu was seen with one Balu Vannan of Sankaranathan Kudikadu at Sankaranathan Kudikadu while they boarded into the bus, by one Narayanan of Sankaranathan Kudikadu. On 18×1983 at 13.30 hours the deceased Vadivelu Ambalakaran confessed at Melapalligeri Vadikkukadu fields to one Mariyan Kandhiyar and others that he was stabbed with knife by one Balu Vannan, and died at once.” This shows that the deceased and the appellant had left Sankaranathan Kudikadu even on 17.8.1983. On 18×1983 at 13.30 hours the deceased Vadivelu Ambalakaran confessed at Melapalligeri Vadikkukadu fields to one Mariyan Kandhiyar and others that he was stabbed with knife by one Balu Vannan, and died at once.” This shows that the deceased and the appellant had left Sankaranathan Kudikadu even on 17.8.1983. Narayanan, who is stated to have seen them, has not been put in the witness-box. Mariyan Kandhiyar mentioned in Ex.P-21 P.W.1. According to the contents of Ex.P-21, the deceased had told P.W.1 at 1.30 p.m. on 18.8.198 8that he had been slabbed with a knife by one Balu Vannan. If the deceased had told so on 18.8.1933 to P.W.1 and expired soon thereafter he could not have been alive on 19.8.1983 to make an oral dying declaration to P.Ws.1, 2 and another. It is the specific case of P.Ws.1 and 2 as well from the contents of Ex.P-1, that the deceased was seen on 19.8.1983 at or about 1.30 p.m. by them. Ex.P-1 also shows that the oral dying declaration of the victim revealed, that not only the appellant, but two others had taken him, in the guise of ‘bride seeing’. Ofcourse P.W.1 refers only to the appellant as far as the stabbing is concerned. As already stated, if the deceased could not have been alive, on the medical evidence as well as on the basis of Ex.P-10 on 19.8.1983 at 1.30 P.M. the evidence of P. Ws. 1 and 2 is obviously fabricated On the other hand if as claimed by the investigiating Officer in Ex.P-21, the oral dying declaration was made on 18.8.1983 at 1.30 p.m., it cuts at the root of the prosecution case, because the judicial confession puts the time of commission of crime as the night of 18.8.1983. If Ex.P-21 has to be accepted, the deceased would be dead, long before the alleged attack on him. This variation, when pointed out, resulted in an answer from the Additional Public Prosecutor, that P. W. 14 does not know English well and therefore in all possibility are stake has been committed, in the date. We are unable to dismiss it as a mere mistake. If in fact the death had occurred on 17/18.8.1983 P.Ws.1 and 2 could not have heard the oral assertion of the victim whom they claim to have met only on the next day (19.8.1983). We are unable to dismiss it as a mere mistake. If in fact the death had occurred on 17/18.8.1983 P.Ws.1 and 2 could not have heard the oral assertion of the victim whom they claim to have met only on the next day (19.8.1983). Similarly viewed, in the perspective of the substantive evidence of P.W.5 in court, that he saw the jewellery of his father on 20.8.1983 long before the arrest of the appellant the prosecution case appears to be a galore of mistakes, it committed by witness or the investigating Officer. If it is possible to entertain a doubt, that the oral dying declaration had been sought to bentroduced, to strengthen the prosecution case, a scrutiny of this piece of circumstantial evidence, will have to be with greater care and stricter caution. If the main connecting link to the crime is the jewellery worn by the deceased, the prosecution has to be thrown out, since M.O.1 series had been identified by P.W.5, long before its seizure, at the instance of the appellant. 23. However, we decided, to delve in greater depth, into the whole record, in an attempt to find out, if the prosecution case, can even be remotely true. We are surprised, that the statements of P.Ws.9 and 10 who are material witnesses, to connect the appellant with the crime, in view of the recovery, had reached the concerned Magistrate only on 16.12.1983, along with the charge sheet. Investigating Officer, who was present in court, was questioned about the delay in forwarding of these material statements, to court. He stated that it was the habit of the investigating agency to send statements recorded under Sec.161, Crl.P.C. to court, along with the charge-sheet. We find that P.W.14 was then aged about 40 years, and naturally must have had experience in investigation of cases registered for the capital offence. For over 15 years and more, this Court has been laying down, law that statements of witnesses recorded during investigation will have to be forwarded forthwith to the Committal Magistrate. It may be that in certain cases, if the statements of the eye witnesses are forwarded promptly, we may not have any reason to suspect delayed forwarding of the other statements. It may be that in certain cases, if the statements of the eye witnesses are forwarded promptly, we may not have any reason to suspect delayed forwarding of the other statements. However, in a case of circumstantial evidence, when- the connecting link is recovery evidence, it will be odd if the investigating officers chose to think, that they were at liberty to lethargically forward statements of material witnesses to court along with the charge-sheet. This lethargy, either due to negligence or wilfulness, clearly creates a lacuna, which might sometimes lead to failure of justice. 24. In this strain, after looking into the observation Mahazar, which showed, the possibility of the deceased having been hung upside down from a tree, we checked up if the observation had been forwarded to the Magistrate, with promptitude. Ex.P-4 the observation Mahazar as well as Ex.P-5 the seizure mahazar, did reveal, that the Magistrate had initialled them on 26.8.-obviously 1983-and they also bear the court seal of the Judicial II Class Magistrate, Thanjavur, of the same date. However, the records received from the committal court, present a totally different picture. The Judicial 11 Class Magistrate, Thanjavur in the diary extract in P.R.C.No.18 of 1983 on 19.12.1983, has made an endorsement, which shows, that for furnishing of copies of the documents under Sec 173, Crl.P.C., steps had to be taken to obtain the statements recorded during investigation of witnesses 2, 16, 17, 22 and 23 as well as the observation mahazar and another mahazar dated 20.8.1983. After receipt of those documents, copies had to be prepared, to be furnished to the accused. We also find, from the preliminary order in paragraph 2, that the mahazars and statements requested, were forwarded to Court only after reminders were sent on 6.1.1984 and 25.1.1984. Therefore our doubts, about the possibility of the observation mahazar having reached the Magistrate on 26.8.1983, got further strengthened. We were naturally impelled to carefully examine the entire record forwarded to court by the investigating agency. We find that the first information report has been received by the Magistrate on 20.8.1983. As is usual a number has been allotted by the Magistrates court to the first information report and that number is 2662. We also find, that the post-mortem certificate, Ex.P-13, which had been received by the same Magistrate on 29.8.1983, has been allotted No.2751 by the Magistrate. As is usual a number has been allotted by the Magistrates court to the first information report and that number is 2662. We also find, that the post-mortem certificate, Ex.P-13, which had been received by the same Magistrate on 29.8.1983, has been allotted No.2751 by the Magistrate. Obviously Exs.P-4 and P-5 have been received by the Magistrate in between 20.8.1983 and 29.8.1983 we have also a communication (Ex.P-6 bearing the seal of the Magistrates court on 31.8.1983, having been assigned number 3153. The numbers allotted by the Court of the Magistrate to Ex.P-4 and P-5 does not correlate to any of the serial numbers between 2662 found on Ex.P-1 and 2751 found on 29.8.1983 in Ex.P-13. These two documents bear No.24244. Even if we take it, that it may not be 24244, but may be 2424A, even then it leads to a time anterior to the registration of the first information report. Therefore, in the light of the observations made, by the learned Committal Magistrate, it is clear that the observation Mahazar and the other mahazar had been forwarded to court by the investigating agency, after the committal proceedings had commenced and unfortunately the concerned Magistrates court had also been a party for manipulation of records. If the observation mahazar had reached the court with promptitude, we felt that it would be a clinching circumstance to corroborate in general, the Judicial confession of the appellant. Even here there is a very great lacuna. 25. It is also in evidence, that two more persons had jointed the appellant and the deceased, though the appellant alone is stated to have stabbed the deceased. The prosecution owed a duty, to trace those two persons and find out about the movements of the appellant and the deceased, on those two fateful days. Not having done so has resulted in one more serious infirmity. 26. We will now consider, the alleged extrajudicial confession made to P.W.9. If in terms of Ex.P-21, the deceased had died even on 17.8.1983, the appellant must have confessed to P.W.9 on 18.8.1983. This again is against the basic fabric of the prosecution case. In Ex.P-10 minute details have been given by the appellant, including the help sought by him to sell or pledge the jewellery. If true, he would not have omitted to mention about the extrajudicial confession made by him to P.W.9, when the latter questioned him. This again is against the basic fabric of the prosecution case. In Ex.P-10 minute details have been given by the appellant, including the help sought by him to sell or pledge the jewellery. If true, he would not have omitted to mention about the extrajudicial confession made by him to P.W.9, when the latter questioned him. If in fact the appellant had made an extra judicial confession to P.W.9 on 19.8.1983, P.W.9 should have taken steps to prefer a complaint for, he was clearly aware that the appellant had not only committed a murder but had also committed robbery of the jewels belonging to the deceased. It is also not known why P.W.9, who was not in the habit of recommending for sale or pledge of gold jewellery in the past, had chosen P.W.11s shop for disposing of jewellery taken from the victim, for some commission. The evidence of P.W.9 does not inspire confidence. As we have already stated, his statement had reached the Court only on 16.121983 along with the chargesheet. 27. There is one another infirmity in acceptingthe evidence of P.W.9. According to him the appellant reached his house even at 10.30 p.m. on the night of 18.8.1983, with a yellow bag and told him that the would take his bed for the night in his house and leave early next morning. This evidence of P.W.9 is totally opposed to the averments in judicial confession. According to the appellant, he spent the night in the house of his relation at Pokkulam and met P.W.9 at a tea shop only at 5.30 a.m. on the next morning. 28. The extra judicial confession stated to have been made by P.W.9 does not appear to be true. 29. The evidence of “last seen together alive” caiin have no relevant significance. It is not as though the appellant was known to P.W.4 earlier. He has also not chosen to identify M.O.1 as the jewellery worn by the victim, when he met him last. He has clearly stated, that he was; lot acquainted with the deceased. It is also his admission that he is not a seller of arrack. If that be so, we are unable to comprehend as to why both the appellant and deceased should have asked him to supply arrack to them. We reject the evidence of P.W.4. 30. The last circumstance is the arrest and recovery. It is also his admission that he is not a seller of arrack. If that be so, we are unable to comprehend as to why both the appellant and deceased should have asked him to supply arrack to them. We reject the evidence of P.W.4. 30. The last circumstance is the arrest and recovery. We have already held, while discussing other circumstances, that M.O.1 had been seen by P. W.5 even three days prior to its recovery. It naturally falsifies the arrest and the consequent recovery. P.W.11 is the purchaser of M.O.1 series. He is a silver-ware merchant. Obviously he had no licence, for selling or buying gold jewellery. That may not be a matter of serious significance, since buyers of stolen property deliberately commit offences, knowing fully well, that what they were doing was wrong and conrary to law. If there was any document in writing to vouch-safe the alleged sale or pledge by the appellant, to P.W.11, that would have probably enhanced the value to be attached to the evidence of P.W.11. He is a regular dealer in silver ware and therefore maintenance of record for such transactions cannot be easily denied. He has also admitted that for selling or buying silver ware, he used to prepare bills. He is also certain, that he cannot assert by documentary evidence, regarding the date on which he had purchased M.O.1 series. He has also affirmed that in the same street, there were several shops which were dealing in gold wares. It was specifically suggested to him, that he had been a witness for having purchased stolen jewellery, in 3 or 4 prior cases. Though he has denied the suggestion, in the background of several fabricated records, we are inclined to believe, that P. W. 11 could have been a witness for the prosecution in earlier cases also. 31. The appellant in his confession has stated, that he was kept at the police station for four days. It appears to be quite possible, though the appellant had not stated, that he was tortured; a long custody, evidently illegal, would go a long way to distrust the alleged voluntariness of Ex.P-10. It is only in this context, as an additional circumstance, we have referred to the late forwarding of he appellant, for recording his confession, inspite of a specific Court order. It is only in this context, as an additional circumstance, we have referred to the late forwarding of he appellant, for recording his confession, inspite of a specific Court order. Individually one or other of these circumstances may not be clinching, but when put together they dearly show, that in all probability after the dead body was found, evidence had been sought to be collected, to implicate the appellant, who was a quarrelling friend. The insight of this quarrel, appears to be a woman-affair. There is something more than what meets the eye and we are firmly of the view, that the truth regarding this occurrence had not been placed before court. It is only under those circumstances, that we have chosen to reject the judicial confession, though at the first-blush we were inclined to accept it. 32. Infirmities which we have pointed out are several, which affect the credibility, that can be attached to the prosecution case. It may be, that there is-an extremery strong and lurking suspicion that the appellant should be the offender. While saying so, we and unable to overlook that on the evidence on record, there appears to be no motive, why the appellant should have murdered his bosom friend. Some missing link is discernible, With all these defects, it will not be proper to sustain the conviction of the appellant, on both the charges, merely on suspicion, however strong it might be. The appellant is entitled to the benefit of doubt. We set aside the conviction and sentence imposed on the appellant on both charges and acquit him. This appeal is allowed.