Judgment D.P. Kundu, J. Criminal Appeal No. 337 of 1996, Criminal Appeal No. 354 of 1996 and Death Reference No. 12 of 1996 have been heard together. 2. The appellant Keshab preferred the appeals against judgment and order of conviction dated 10.10.1996 convicting Keshab for commission of offence punishable under sections 302 and 201 of the Indian Penal Code and sentence dated 11.10.1996 sentencing him to capital punishment i.e. death for being guilty for offence under section 302 of the Indian Penal Code and also to undergo rigorous imprisonment for five years and also to pay fine of Rs.1,000/- (Rupees one thousand) in default to undergo rigorous imprisonment for six months more under section 201 of the Indian Penal Code, passed by the learned Additional Sessions Judge, 2nd Court, Birbhum in Sessions Trial No. 7.8.1995 arising out of Sessions Case No. 66 of 1990. 3. The Death Reference is for confirmation of the death sentence of the convict Keshab by this High Court under section 366 of Criminal Procedure Code. 4. On 5.3.1991 charges were framed by the learned Additional Sessions Judge, 2nd Court, Birbhum, Suri, against Keshab and one Jiten Das and the charges against both of them that they – (a) In between 9th and 12th day of October, 1989 corresponding to 22nd and 25th day of Aswin, 1396 B.S. at Falgram within P.S. Labpur, in furtherence of the common intention of both of them, abducted Smt. Ambika Mondal wife of accused Keshab in order that the said Smt. Ambika Mondal might be murdered and thereby committed an offence punishable under section 364 read with section 34 of the Indian Penal Code. (b) In between the 9th day and 12th day of October, 1989 corresponding to 22nd and 25th day of Aswin, 1396 B.S. on the bed of Mayurakshi river near Gunutia Ghat within Police Station Labpur in furtherence of their common intention, of both of them did commit murder by intentionally causing the death of Smt. Ambika Mondal wife of Keshab and thereby committed an offence punishable under section 302 read with section 34 of the Indian Penal Code. (c) In between 9th and 12th day of October, 1989 on the bed of Mayurakshi river near Gunutia Ghat, in furtherence of the common intention of both of them, knowing that certain offence, to wit murder of Smt. Ambika Mondal did cause certain evidence of the said offence, to disappear, to wit burried the dead body of Ambika in bed of the river Mayurakshi with the intention of screening both of them from legal punishment and thereby committed an offence punishable under section 201 read with section 34 of the Indian Penal Code. 5. Both Keshab and Jiten pleaded not guilty of the charges framed against them and claimed to be tried. Total thirteen witnesses were examined on behalf of the prosecution to bring home of the charges framed against Keshab and Jiten. No defence witness was examined though both Keshab and Jiten, in their examination under section 313 Cr. P.C. stated that defence witnesses will be examined. 6. Prosecution case, as could be gathered from evidence, is that the deceased Ambika was, at the material time, wife of the appellant Keshab. Tufan Mondal, P.W.. 4, is the full-blood elder brother of Ambika. Keshab's full-blood sister Anima is the wife of Tufan. Moni Mohan Mondal, P.W.. 1, is the cousin brother of Ambika and Tufan. Father of Tufan and Ambika and father of Moni Mohan, at the material time, were residing separately. Santana is another sister of Keshab and Anima. On 6.10.1989, the day of Sasthi of Durga Puja, Santana in the morning brought Ambika to Tufan's house at mauza Falgram, P.S. Labpur from the house of Keshab and took Anima to Keshab's house at Village-Amra, P.S. Mayureshwar. On 9.10.1989, which was Nabami of Durga Puja, in the morning Keshab came to Tufan's house and stayed there for some time and after having food took Ambika with him. According to Moni Mohan (P.W.. 1), Keshab on 9.10.1989 visited Tufan's house in the morning and stayed there and took Ambika with him on the plea of marketing at Krinahar Bazar and "since that evening" Keshab and Ambika did not return to Tufan's residence. According to Tufan (P.W.. 4), on 9.10.1989 Keshab came to their house and "at about 10 A.M." Keshab took Ambika with him to Krinahar to purchase some clothes. According to Tufan (P.W.. 4), on 9.10.1989 Keshab came to their house and "at about 10 A.M." Keshab took Ambika with him to Krinahar to purchase some clothes. According to Tufan (P.W..4) "She did not return thereafter we thought that she went to Keshab's residence after marketing." According to Biswanath Dhibar (P.W..7) of village Falgram he knew Keshab and his wife Ambika. According to Biswanath (P.W..7) "Almost six years before in the Nabami day of Durga Puja I went to Labpur for purchasing some articles and returning back to our village at about 10-30 a.m. I met Ambika and Keshab on way to Falgram. They were proceeding to Labpur. Labpur had to be communicated if some body go to Krinahar. I enquired where they were going. They stated they will go to Krinahar." Madhabi Ghosh (P.W..8), cousin sister of Ambika and sister of Moni Mohan, a resident of Labpur stated- "Almost 6/6½ years ago I went to Fullara mandir in the month of Aswin during Nabami of Durga Puja to offer prayer. When I am coming about 11/11.30 a.m. I saw Ambika, Keshab and another man sitting under a temarind tree in the compound of Fullara mandir". According to Rabi Bagdi (P.W.. 10), a resident of village Sankhand, P.S. Labpur-"6/7 years before on the day of Nabami in the month of Aswin I went to Krinahar to see idol. At about 3 p.m. I reached Krinahar....., I met Ambika, her husband Keshab and another man in Krinahar Chowrasta". In course of trial both Madhabi (P.W..8) and Rabi (P.W.. 10) identified Jiten as the other man who was seen with Keshab and Ambika. Thus one of the circumstances the prosecution pressed during the trial was that Ambika was last seen alive in the company of Keshab and Jiten. Prosecution also pressed two other circumstances namely (a) extra judicial confession alleged to have been made by Keshab on 13.10.1989 before Moni Mohan (P.W.. 1), Sachidananda Mondal (P.W..-2). Lambodar Mondal (P.W..-3), Tufan (P.W.-4) and (b) discovery of dead body of Ambika and "sari" and "saya" of Ambika allegedly being led by Keshab. Thus during the trial prosecution pressed these three circumstances as stated above to bring home the charges levelled against Keshab and Jiten. Admittedly there is no eye witness of the commission of any of the offences. Prosecution case is entirely based upon circumstantial evidence. 7. Thus during the trial prosecution pressed these three circumstances as stated above to bring home the charges levelled against Keshab and Jiten. Admittedly there is no eye witness of the commission of any of the offences. Prosecution case is entirely based upon circumstantial evidence. 7. Law relating to appreciation of circumstantial evidence is well settled, by catena of Supreme Court's decisions. Suffice it to refer to a few of such decisions. In Ashok Kumar Chatterjee vs. State of M.P., AIR 1989 SC 1890 and Padala Veerma Reddy vs. State of A.P., AIR 1990 SC 79 , Supreme Court after considering a large number of earlier decisions held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests: (a) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (b) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (c) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (d) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 8. It has been argued by the prosecution that while appreciating evidence the Court must make an attempt to separate grain from the chaff. This principle of shifting the grain from the chaff had been succinctly discussed by Supreme Court in Balaka Singh vs. State of Punjab, AIR 1975 SC 1962 . Supreme Court in paragraph 8 of the reported decision in Balaka Singh case (supra) observed as follows : "It is true that, as laid down by this Court in Zwinglee Ariel vs. State of Madhya Pradesh, AIR 1954 SC 15 : 1954 Cri. LJ 230 and other cases which have followed that case, the Court must make an attempt to separate grain from the chaff, the truth from falsehood, yet this could only be possible when the truth is separable from the falsehood. LJ 230 and other cases which have followed that case, the Court must make an attempt to separate grain from the chaff, the truth from falsehood, yet this could only be possible when the truth is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation the Court would have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made then this principle will not apply." 9. Hereinafter, aforesaid three circumstances relied upon by the prosecution will be discussed separately and then the cumulative effect of those circumstances will also be discussed. In Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 SC 1622 , Fajal Ali, J. held that it is vital that any circumstance adverse to the accused must be put to him under section 313 of Cr. P.C., 1973; otherwise it must be completely excluded from consideration because the accused did not have any chance to explain them. In Sarda case (supra) Varadarajan, J. held that if circumstances against the accused is not put to the accused in his examination under section 313 Cr. P.C. then such circumstances have to be completely excluded from consideration even if there are evidence against the accused relating to such circumstances. Therefore, the appeal court also cannot take into consideration those circumstances which were against the accused but not put to the accused in course of his examination under section 313 Cr. P.C. 10. None of the witnesses for the prosecution in evidence before the Trial Court disclosed anything which may even faintly suggest that, in their married life, Ambika and Keshab were not happy. There is no evidence on record to show that there was any quarrel worth mentioning between Ambika and Keshab and that Ambika was ever ill treated by Keshab. There is no material to warrant a conclusion that Keshab had any motive to snatch away the life thread of Ambika. It is important to note here that in the Inquest Report (Ext. 2), Sailaja Singha, Sub-Inspector, Labpur, who was investigating officer recorded-"It appeared from preliminary investigation that deceased Ambika Bala Mondal married Keshab Mondal about 1 year 4 months ago. They had no issue. It is important to note here that in the Inquest Report (Ext. 2), Sailaja Singha, Sub-Inspector, Labpur, who was investigating officer recorded-"It appeared from preliminary investigation that deceased Ambika Bala Mondal married Keshab Mondal about 1 year 4 months ago. They had no issue. Since the date of marriage Keshab was not happy with Ambika and with a view to murdering this wife on 9.10.1989 he brought her from Falgram for purchasing clothes. When she did not come back to Falgram she was searched in the house of her father-in-law. At first they refused to say anything. Later on when pressure was created by various persons they pointed out the place where the dead body was buried." (emphasis supplied). Supreme Court in George vs. State of Kerala, (1998) 4 SCC 605 , held that statements contained in an inquest report, to the extent they relate to what the Investigating Officer saw and found are admissible but any statement made therein on the basis of what he heard from others, would be hit by section 162 of Cr. P.C. The relevant lines from paragraph 30 of the reported decision read as follows: "We are also surprised to find that the trial court disbelieved P.W.s.3 and 4 relying upon the statements contained in the inquest report (Ext. 8). Statements contained in the inquest report, to the extent they relate to what the Investigating Officer saw and found are admissible but any statement made therein on the basis of what he heard from others, would be hit by section 162 Cr. P.C." In paragraph 31 of the reported decision Supreme Court dealt with the purpose of preparing an inquest report under section 174(1) of Cr. P.C. in the following way: "The whole purpose of preparing an inquest report under section 174(1) of Cr. P.C. is to investigate into and draw up a report of the apparent cause of death, describing such wounds as may be found on the body of the deceased and stating in what manner, or by what weapon or instrument, if any, such wounds appear to have been inflicted. In other words, for the purpose of holding the inquest it is neither necessary nor obligatory on the part of the Investigating Officer to investigate into or ascertain who were the persons responsible for the death. In dealing with section 174 of Cr. In other words, for the purpose of holding the inquest it is neither necessary nor obligatory on the part of the Investigating Officer to investigate into or ascertain who were the persons responsible for the death. In dealing with section 174 of Cr. P.C. in Podda Narayana vs. State of A.P. this Court held that the object of the proceedings thereunder is merely to ascertain whether a person died under suspicious circumstances or met with an unnatural death and, if so, what was its apparent cause. According to this Court the question regarding the details how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of such proceedings. With the above observation this Court held that the High Court was right (in that case) that the omissions in the inquest report were not sufficient to put the prosecution out of court. In Eqbal vs. State of A.P. this court observed, while dealing with a similar question, that the inquest report was not the statement of any person wherein all the names of the persons accused were to be mentioned. On this ground also the finding of the trial Court based on the inquest report cannot be sustained." In this connection reference may also be made to another Supreme Court decision in Rameshwar Dayal vs. State of U.P., AIR 1978 SC 1558 . In paragraph 39 (at p. 1567) of the reported decision it was observed :- "In fact, document like the inquest reports, seizure lists or the site plans consist of two parts one of which is admissible and the other is inadmissible. That part of such documents which is based on the actual observation of the witness at the spot being direct evidence in the case is clearly admissible under section 60 of the Evidence Act whereas the other part which is based on information given to the Investigating Officer or on the statement recorded by him in the course of investigation is inadmissible under section 162 of Cr. P.C. except for the limited purpose mentioned in that section." In view of the aforesaid Supreme Court decisions the above quoted portion of the Inquest Report which is nothing but a record of what appeared to Investigating Officer from preliminary investigation i.e., what he heard from others, is inadmissible because it is hit by section 162 of Cr. P.C.. 11. That apart, the above quoted portion from inquest report has four parts. The first part states about alleged unhappiness of Keshab relating to his married life. The second part states about alleged activity leading to discovery of the dead body. The third part relates to absence of any mention of alleged extra judicial confession. The fourth part relates to absence of any mention of discovery of "sari" and "saya" of Ambika being led by Keshab. At present I am concerned with the first part. Second, third and fourth parts will be taken care of at the later stage of this judgment. I have already recorded earlier that there is no evidence on record even to suggest that Keshab was not happy with Ambika. Even Sailaja (P.W..-13) the investigating officer in his evidence did not state that during investigation it transpired that Keshab was not happy with Ambika. Tufan (P.W..-4) in his evidence before the trial court stated -"Ambika used to visit us time to time." Therefore, it was quite reasonable and likely that had Ambika been treated with rough or ill behaviour by Keshab then the same would have been disclosed or communicated by her to the near relatives while she used to visit Tufan's house. This is the normal human conduct. But no such evidence is available before the Court. It is not the case of prosecution that Keshab had any love affair or illicit relationship with any other woman. Therefore, I am of the opinion that there is no evidence on the basis of which it can even be suggested that Keshab was not happy with Ambika. Then why such a statement was recorded in the inquest report? The answer would be obviously to create a circumstance which would go to show that Keshab had motive to kill Ambika. Though ultimately prosecution abandoned the motive factor yet the attempt to create motive-factor in the inquest report is a matter not to be overlooked because it suggests that from the initial stage prosecution wanted to rope in Keshab. The answer would be obviously to create a circumstance which would go to show that Keshab had motive to kill Ambika. Though ultimately prosecution abandoned the motive factor yet the attempt to create motive-factor in the inquest report is a matter not to be overlooked because it suggests that from the initial stage prosecution wanted to rope in Keshab. Absence of motive plays a vital role in a case based entirely on circumstantial evidence specially when other proved circumstances fail to complete the chain. Supreme Court in Uday Kumar vs. State of Karnataka, reported at (1998) 7 SCC 478 , in paragraph 16 of the reported decision held that it is true that in a case of circumstantial evidence, motive is one of the circumstances which assumes importance but it cannot be said that in the absence thereof, other proved circumstances although complete the chain would be of no consequence. This view of Supreme Court clearly established that in case of circumstantial evidence, motive is one of the circumstances and plays a very vital role when other proved circumstances fail to complete the chain. 12. During the trial the original inquest report had not been exhibited. No reason had been disclosed by the investigating officer as to why the original inquest report had not been exhibited before the Trial Court. Ext.-2 is the carbon copy of the inquest report (Ext-2) reveals certain alterations, for example, it is apparent from Ext.2 that at first the inquest report was prepared recording "U/D" meaning thereby unnatural death case. Even the number of case had also been altered. Learned advocate for Keshab argued that these correction suggest that interpolations in the carbon copy was made subsequently and the paragraph quoted hereinabove from the inquest report was subsequently added. I am of the view that it is not necessary to go into that question because during trial the maker of the inquest report was not confronted with those questions. That apart in the preceding paragraphs I have already pointed out that above quoted paragraph from inquest report is hit by section 162 of Cr. P.C.. 13. It appears from the inquest report (Ext. That apart in the preceding paragraphs I have already pointed out that above quoted paragraph from inquest report is hit by section 162 of Cr. P.C.. 13. It appears from the inquest report (Ext. 2) that the dead body of Ambika was identified before Sailaja (P.W..-13) by her cousin on 13.10.1989 at 3 p.m. Sailaja (P.W..-13) in his evidence before the Trial Court stated-"We reached the P.O. at 14.55 hours we found a female dead body lying on the same and large number of people was surrounded by dead body. The dead body was identified by Tufan Mondal as the dead body of Ambika Mondal sister of Tufan." Sailaja (P.W.-13) performed the inquest and in the inquest report recorded "For ascertaining the real cause of death I sent the dead body to the Doctor of the hospital for post-mortem examination through constable No. 647. Bimal Saha".(emphasis supplied). Thus it is evident that the inquest report was prepared after despatch of dead body for post mortem. Bimal Saha, Constable No. 647 (P.W.. 12) in his evidence before the Trial Court stated-"We proceeded to Gunutia Ghat on Mayurakshi river bed on 13.10.1989 at about 3 p.m. S.L Sailaja Singha prepared an inquest over dead body of female and I was directed to carry to Suri Hospital for post-mortem examination. I took the dead body to Suri Sadar Hospital and identified the same to the Doctor." From the evidence of Bimal Saha (P.W.. 12) it is evident that the inquest report was prepared before Bimal was directed to carry the dead body to Suri Hospital for postmortem. Thus presence of the statement-"For ascertaining the real cause of death I sent the dead body to the Doctor of the hospital for post-mortem examination through constable No. 647, Bimal Saha". Shows that after dispatch of the dead body for post-mortem some addition, alteration was made. Because according to Bimal (P.W..-12) the inquest report was prepared and then he was directed to take the dead body for post-mortem. If that is so then how-"I sent the dead body... for post-mortem." could be recorded unless the said inquest report was changed or altered later on after dispatch of the dead body for postmortem? Because according to Bimal (P.W..-12) the inquest report was prepared and then he was directed to take the dead body for post-mortem. If that is so then how-"I sent the dead body... for post-mortem." could be recorded unless the said inquest report was changed or altered later on after dispatch of the dead body for postmortem? In view of the discussions made hereinabove I am of the opinion that the inquest report prepared at the time of inquest suffered addition or alteration subsequent to the dispatch of the dead body of Ambika for post-mortem. 14. In the inquest report (Ext. 2) there is no mention of (a) extra-judicial confession alleged to have been made by Keshab, (b) recovery of "saya" and "sari" of Ambika by unearthing being led by Keshab and (c) discovery of the dead body of Ambika being led by Keshab. What had been stated in the inquest report (Ext. 2) is-"They pointed out that place where the dead body was buried." (emphasis supplied). In view of the decision of Supreme Court in George vs. State of Karnataka (supra) these are not required to be noted in the inquest report. But it is incredible to believe that had these alleged incidents of extrajudicial confession and recovery of "saya" and "sari" really taken place before the time of inquest then attention of investigating officer would not have been drawn to these alleged incidents and it is furthermore incredible to believe that had those alleged incidents been brought to the notice of the investigating officer, then the investigating officer who had taken the pain of recording in the inquest report what transpired to him after preliminary investigation would not have recorded the same in the inquest report. All these circumstances lead clearly to the inference that through-out the preparation of the inquest report there was no allegation of extra-judicial confession or recovery of dead body and "saya" and "sari" being led by Keshab. These are very important circumstances affecting probabilities of the case and are relevant under section 11 of Evidence Act. These circumstances go to show that F.I.R. was not lodged prior to the preparation of inquest report but F.I.R. was lodged ofter preparation of inquest report because in F.I.R. there are allegations of extra-judicial confession and recovery of the dead body being led by Keshab himself and not by "they" as stated in the inquest report. These circumstances go to show that F.I.R. was not lodged prior to the preparation of inquest report but F.I.R. was lodged ofter preparation of inquest report because in F.I.R. there are allegations of extra-judicial confession and recovery of the dead body being led by Keshab himself and not by "they" as stated in the inquest report. This conclusion finds support from Balaka Singh case (supra). In Balaka Singh case (supra) names of four out of nine accused were missing in the body of the inquest report. Omission was not explained by prosecution. It was held that omission threw doubt on complicity of four accused and F.I.R. was found to have written after inquest report was prepared by 1.0.. It was held that F.I.R. had lost its authenticity. 15. Bimal (P.W..-12) in his evidence before the Trial Court stated that after direction made by Sailaja (P.W..13) he took the dead body of Ambika to Suri Sadar Hospital and identified the same to the doctor. Dr. Bhaskar Samanta (P.W..-11) held post-mortem examination of Ambika's dead body. The doctor in his evidence before the Trial Court stated-"On 13.10.89 I was attached to Suri Sadar Hospital as M.O. on that day I held post-mortem of Ambika Mondal being identified by Con. 647 in connection with Labpur P.S. Case No. 94/89 dated 13.10.89." (emphasis added). From post-mortem report (Ext. 5) it is evident that the body was sent to the morgue on 13.10.89 at about 16-45 hrs. but the dead body reached the morgue on 14.10.89 at about 9.30 a.m. and post-mortem examination was performed on 14.10.89 at 11.30 hrs.. Therefore, the evidence of the doctor (P.W.. 11) is not consistent with the entries made in the postmortem report (Ext. 5). Bimal (P.W..-12) in his evidence stated that from Gunutia Ghat on Mayurakshi river bed on 13.10.89 he took the dead body of Ambika to Suri Sadar Hospital and identified the same to the doctor. Bimal (P.W..-12) did not state in his evidence that on his way to Suri Sadar Hospital he went to any other place with the dead body. Madhabi (P.W.-8) cousin sister of Ambika and full blood sister of Moni Mohan (P.W.-1) in her evidence before the Trial Court stated-"I saw the dead body of my sister on the day Tradashi at thana. It was about 4/4.30 p.m.". Madhabi (P.W.-8) cousin sister of Ambika and full blood sister of Moni Mohan (P.W.-1) in her evidence before the Trial Court stated-"I saw the dead body of my sister on the day Tradashi at thana. It was about 4/4.30 p.m.". Therefore, it is evident that the dead body of Ambika was not taken to Suri Sadar Hospital straight from Gunutia Ghat on Mayurakshi river bed. Why the dead body was brought to the thana (Police Station) and not taken straight to Suri Sadar Hospital had not been explained by any witness for the prosecution. All these reasons seperately and cumulatively cast thick dark cloud on the veracity, authenticity and the time of preparation of the inquest report. For the reasons aforesaid the inquest report (Ext. 2) is a doubtful document, which cannot be appreciated to the prejudice of Keshab. Probability of inquest report (Ext. 2) being prepared at a latter time cannot be ruled out. This circumstance goes in favour of Keshab. 16. In the earlier part of this judgment I have indicated the prosecution case as could be gathered from the evidence from witnesses for the prosecution. Now it will be useful to refer to F.I.R. (Ext.-6). It appears from F.I.R. (Ext.-6) that the information was lodged on 13.10.89 at 13-55 hrs. and F.I.R. was dispatched from Police Station on 14.10.1989 at 8.00 a.m. Moni Mohan (P.W.. 1) lodged the first information. From the F.I.R. (Ext. 6) it transpires that Moni Mohan (P.W.-1) in his first information mentioned three dates namely 6.10.89, 9.10.89 and 12.10.89. No other date was mentioned in the first information. According to the first information (a) on 6.10.89 Santana, sister of Keshab, escorted Ambika to the house of Tufan (P.W.-4) and took Anima, wife of Tufan (P.W..-4) with her to Keshab's residence at village Amra (b) on 9.10.89 Keshab came to the house of Tufan (P.W..-4) and after taking meal took Ambika to Krinahar Market saying that he would purchase clothes on the occasion of Puja. After that Keshab and Ambika did not come back to Tufan's (P.W..-4) house, (c) on 12.10.89 at 4 p.m. Moni Mohan (P.W..-1) and Tufan (P.W.-4) went to the village Amra for bringing back Anima, wife of Tufan. After that Keshab and Ambika did not come back to Tufan's (P.W..-4) house, (c) on 12.10.89 at 4 p.m. Moni Mohan (P.W..-1) and Tufan (P.W.-4) went to the village Amra for bringing back Anima, wife of Tufan. For better understanding what had happened thereafter on 12.10.89, as reported in the first information lodged by Moni Mohan (P.W.-1), it is necessary to look at the exact words used in the first information. The relevant lines from the first information lodged by Moni Mohan (P.W.-1), as appear from the paper book, are quoted herein-below: "Then on 12.10.89 at 4 p.m. I went to the village Amra for bringing the wife of my brother (Anima Mondal) and my cousin Tufan Mondal (husband of Anima) went with me. Then I went home and saw but my sister was not in the house of her husband. Then we asked where our sister Ambika was. Then Keshab said 'your sister went to your house.' We said that our sister did not come to our house. Then being excited Keshab Mondal came to assault us. Then we had the idea that Keshab Mondal murdered our sister and kept the dead body hidden somewhere. Then being interrogated by villagers he confessed the guilt in presence of Sachidananda Mondal, Ajit Palang and many others and said that having murdered Ambica with the help of Jiten Das he buried the dead body in the sand of the river Mayurakshi and stated further but he would show the place if he was taken there. Then I, along with the villagers and Keshab went to the middle of the river. Then I saw some part of the dead body on the sand pointed out by Keshab. For removing the doubt with the help of the villagers, sand was removed and the dead body was lifted and the small dead body was of my sister Ambika. With the help of Jiten Das of village Amra Keshab murdered my sister and buried the dead body for abolishing evidence etc. Having lodged the complaint I am praying to you that steps may be taken so that the murders are properly." (emphasis added) 17. From the first information lodged by Moni Mohan (P.W.-1) on 13.10.89 the following important omissions are to be noted. 1) No mention that on 12.10.1989 Moni Mohan (P.W.-1) and Tufan (P.W.-4) stayed overnight at the house of Keshab. From the first information lodged by Moni Mohan (P.W.-1) on 13.10.89 the following important omissions are to be noted. 1) No mention that on 12.10.1989 Moni Mohan (P.W.-1) and Tufan (P.W.-4) stayed overnight at the house of Keshab. 2) No mention that Keshab made extra-judicial confession on 13.10.89. 3) No mention that Keshab had excavated sand and unearthed the dead body of Ambika. 4) No mention that dead body of Ambika was naked. 5) No mention that Keshab at the demand of the villagers excavated the earth and pulled out "sari" and "saya" of Ambika. 6) No mention of anything that had happened or took place on 13.10.89. Thus, it is evident that in the F.I.R. there is no mention of 13.10.89. The word "Then" cannot be treated as 13.10.89. While lodging F.I.R. the informant took care of mentioning all other dates, it is unbelievable that if alleged extra judicial confession, alleged discovery of the dead body of the victim and her dresses being led by Keshab had taken place on 13.10.89 then he would not have mentioned 13.10.89 in the F.I.R. It is not believable that instead of mentioning 13.10.89 the informant used the word "Then" to mean 13.10.89. If the F.I.R. is read as a whole it is clear that according to the informant alleged extra judicial confession and alleged discovery of the dead body and clothes of victim being led by Keshab took place on 12.10.89 and not on 13.10.89. In this back-ground it is quite probable and possible that Keshab was taken into custody by the police in the morning of 13.10.89 as suggested by the defence, without recording the same in the Case Diary. 18. It is true that first information does not require narration of graphic details but most important circumstances which, if proved, may clinch the issue and when the informant claiming to be the eye-witness of such circumstances omits to state such circumstances then such omissions cannot be equated with narration of graphic details. This view is supported by a decision of Supreme Court in K. Ashokan and Ors. vs. State of Kerala, (1998) 3 SCC 570 . This view is supported by a decision of Supreme Court in K. Ashokan and Ors. vs. State of Kerala, (1998) 3 SCC 570 . The relevant lines from paragraph 5 of the reported decision are quoted below: "We are, however, unable to share the view of the learned courts below that the prosecution succeeded in conclusively proving that the appellants were amongst the miscreants having regard to the fact that in the FIR the names of the appellants do not find place as the miscreants. Indeed, no one has been named as miscreants therein. From the judgment of the trial Court we find that it negatived the contention of the accused persons raised on this aspect of the matter with the following observation: "It is a fact that the names of the accused and their individual overt act has not been specifically stated in the FIR statement. To this aspect in the FIR statement, I may quote what His Lordship Justice Mr. Chettur Sankaran Nair stated in the judgment reported in Ali vs. State of Kerala at p. 18 in para 11: 'A first information report is not a catalogue nor does one expect a just informant, disoriented in mind and in distress to give such graphic details.' The circumstance from which P.W..-1 was brought to the police station in this case and his case and his own explanation that he was under perplexity and fear has to be considered in appreciating Ext. p-1 (FIR statement)." The above reasoning of the trial Court cannot be accepted: firstly because disclosure of the names or identities of the offenders, if known, (as in the instant case) by a person who figures as an eyewitness is one of the most material facts and such a fact cannot be equated with narration of graphic details and secondly, because, the plea of perplexity and fear raised by PW-1 is not untenable. The FIR was lodged by PW1 after about 3 hours of the incident at the police station and therein he has given all the details of the incident, except naming the miscreants. The FIR was lodged by PW1 after about 3 hours of the incident at the police station and therein he has given all the details of the incident, except naming the miscreants. Incidentally we may mention that the High Court has not at all adverted to this aspect." The omissions in F.I.R., as stated hereinabove, are very important because the informant claimed to be the eye-witness of the incidents which he omitted to mention in F.I.R. The alleged incidents which the informant omitted to mention in F.I.R. are most important and material fact and can not be equated with narration of graphic details. 19. After reading the FIR (Ext. 6), I am of the opinion that from the words used in the first information it is apparent on the face of it that none of the alleged incidents mentioned in the first information lodged by Moni Mohan (P.W.-1), took place or occurred on 13.10.89. It is also very important to mention here that the Trial Court, under section 313 of Cr. P.C., while questioning Keshab did not mention 13.10.89 even for once. 20. In Ram Kumar vs. State of M.P., AIR 1975 SC 1026 , Supreme Court held that no doubt, an F.I.R. is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. But omissions of important facts, affecting the probabilities of the case, are relevant under section 11 of Evidence Act judging the veracity of the prosecution case. I have already recorded earlier in this judgment six omissions of important and material facts which, in my opinion, affect the probabilities of the prosecution case and make the same non-acceptable. 21. It appears from F.I.R. (Ext. 6) that first information by Moni Mohan (P.W.-1) was reported to the police station on 13.10.89. It had been recorded in the F.I.R. that on 14.10.89 at 8.00 A.M. the F.I.R. was dispatched from the Police Station, but it appears from the record that the Magistrate received it on 15.10.89. It appears from the record that F.I.R. was sent to the Magistrate alongwith forwarding report of both the accused. Admittedly both the accused were produced before the Magistrate on 15.10.89 and none of witnesses for the prosecution explained this delay. It appears from the record that F.I.R. was sent to the Magistrate alongwith forwarding report of both the accused. Admittedly both the accused were produced before the Magistrate on 15.10.89 and none of witnesses for the prosecution explained this delay. Learned advocate for Keshab drew the attention of the Court to a decision of Supreme Court in Ishwar Singh vs. State of U.P., AIR 1976 SC 2423 . In Ishwar Singh's case (supra), FIR was stated to have been lodged at 9.05 A.M. on 14.2.1973 and was sent out from the police station the next day, 15.2.1973, but it appeared from the record that the Magistrate received it on the morning of February 16. Supreme Court observed in paragraph 5 (at page 2425) of the reported decision: "The court of the Magistrate was nearby, which makes it difficult to understand why the report was sent to him about two days after its stated hour of receipt at the police station. Section 157 of the Code of Criminal Procedure, 1898 as well as of 1973 both require the first information report to be sent 'forthwith' to the Magistrate competent to take cognizance of the offence. No explanation is-offered for this extraordinary delay in sending the report of the Magistrate. This is a circumstance which provides a legitimate basis for suspecting, as Mr. Antony suggested, that the first information report was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence." 22. Learned advocate for Keshab argued that in the instant case the F.I.R. (Ext. 6) was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version both in F.I.R. (Ext. 6) and inquest report (Ext-2). In the instant case, I am of opinion, that suspicion hardened into definite possibility for the following reasons. – (a) Prosecution case is that after 9.10.89, which was a Navami day of Durga Puja Ambika was not found alive. (b) Madhabi (P.W.-8), a cousin sister of Ambika mid Tufan (P.W.-4) and full blood sister of Moni Mohan (P.W.-1), in her evidence before the Trial Court stated-"On Ekadasi day every body of my parents house apprehending about missing of Ambika. I cannot exactly remember whether thana was informed on that day. (b) Madhabi (P.W.-8), a cousin sister of Ambika mid Tufan (P.W.-4) and full blood sister of Moni Mohan (P.W.-1), in her evidence before the Trial Court stated-"On Ekadasi day every body of my parents house apprehending about missing of Ambika. I cannot exactly remember whether thana was informed on that day. Tufan stated to me that thana people were already informed. Moni Mohan stated as such. I saw the dead body of sister on the day of Tradasi at thana. It is about 4/4.30 p.m. I cannot exactly say. I saw Keshab and another accused in thana. They were in P.S. along with the dead body." 9.10.89 was Navami day of Durga Puja and 13.10.89 was Tradasi day of Durga Puja. Therefore, 11.10.89 was Ekadasi day of Durga Puja. Therefore, according to the evidence of Madhabi (P.W.-8) on 11.10.89 itself Tufan (P.W.-4), Moni Mohan (P.W.-1) and other members of her parents family were apprehensive of missing of Ambika and even police was informed. Madhabi (P.W.-8) was not declared hostile by the prosecution. Prosecution accepted the evidence of Madhabi (P.W.8). But the information lodged with the Police Station on 11.10.89 was not at all produced before the Court. The evidence of Madhabi (P.W.-8) throws some light as to why “U/D” was recorded in the inquest report (Ext.-2) which was penned through and the number of the case was also altered in the inquest report (Ext.-2). It is quite probable and possible that the inquest report was prepared in respect of the information lodged with the police on 11.10.89 as stated by Madhabi (P.W.-8), case number was also accordingly recorded. But after introduction of F.I.R. (Ext-6), at a later point of time “U/D” recorded in the inquest report (Ext.-2) was struck out and the number was also altered to give the inquest report (Ext.-2) a get up that it was prepared after F.I.R. (Ext.-6) was lodged on 13.10.89. It was for prosecution to make clear the reasons for striking out “U/D” and alteration of case number. They chose not to do it. It is true that defence did not put any question to the witnesses for the prosecution but that did not make the prosecution free from discharging their own burden. Prosecution must prove its case beyond reasonable doubt and in process it is their duty to remove all cloud of doubt. They chose not to do it. It is true that defence did not put any question to the witnesses for the prosecution but that did not make the prosecution free from discharging their own burden. Prosecution must prove its case beyond reasonable doubt and in process it is their duty to remove all cloud of doubt. c) The Trial Court in the judgment under appeal held that evidence of Bimal (P.W.-12) to the effect that accused Keshab was all along with them is totally baseless and can be safely ignored. The relevant lines from the judgment under appeal in this regard are quoted herein-below: "Learned lawyer for defence took much pain to argue over the deposition of P.W.-12 constable Bimal Saha. His role in this case is to take the dead body of Ambika to Suri Sadar Hospital for post-mortem and identified the dead body to the doctor. He deposed as such in examination-in-chief, suddenly he deposed in cross-examination that he proceeded to P.O. from P.S. with Sailaja Sinha, S.I. along with 2/3 constables and accused Keshab. Thus being a simple formal witness he step into the investigation matter directly. I already got that accused Keshab was all along with P.W.s.1 to 4 and some other villager since 12.10.89 when P.W.s.-1 and 2 visited him in his residence at village Amra. Even on 13.10.89 in the morning he made confessional statement before number of co-villagers and P.W.s.-1 and 2 went to Mayurakshi char for discovery of dead body and her wearing apparels. It was negatively suggested by the defence lawyer that Sachibabu gave shelter to Keshab in his residence after the discovery of dead body for his safety. In the cross-examination of I.O., I.O. admitted that he arrested accused Keshab from the house of Sachidananda Mondal P.W.-2 at 21.35 hours on 13.10.89. The contradiction of deposition of Sachidananda was also deposed by I.O. in this fashion that Sachi Babu P.W.-2 stated to I.O. '....... written in Bengali.' Witness Lambodar P.W..-3 also stated that Keshab had to be kept in the residence of Sachimaster for his safety. Therefore the deposition of P.W.-12 constable in this regard is totally baseless and can be safely ignored." While arriving at the above quoted decision the Trial Court failed to take into consideration that exact time of arrest of Keshab could not be proved by the prosecution. Therefore the deposition of P.W.-12 constable in this regard is totally baseless and can be safely ignored." While arriving at the above quoted decision the Trial Court failed to take into consideration that exact time of arrest of Keshab could not be proved by the prosecution. It may be stated that Sailaja (P.W.-13) who was the investigating officer, in his examination-in-chief stated-"I apprehended the accused persons and send the dead body through constable 647, Bimal Kr. Saha for post-mortem examination I arrested accused Keshab from village Amra. I interrogated him, recorded 161 statement of the accused and forwarded to court." Whereas in his cross-examination he stated -"It was specifically mentioned in the C.D. that I arrested accused. Keshab at 21.35 hours on 13.10.89 from the house of one Sachidananda Mondal of village Amra." Thus it is evident that once Sailaja stated that he arrested Keshab and sent the dead body for post-mortem meaning thereby both the incidents occurred simultaneously. But in his cross-examination he stated that he arrested Keshab on 13.10.89 at 21.35 hours from the house of Sachidananda (P.W.-2) of village Amra. It further appears from the cross-examination of Sailaja (P.W.-13) that a suggestion was made from the defence that Sailaja (P.W.-13) detained Keshab in the morning on 13.10.89 without noteing in the C.D. It further appears that Sailaja (P.W.-13) answered-"not a fact that I detained Keshab on 13.10.89 morning without noting in the C.D." Sailaja (P.W.-13) in his cross-examination admitted (1) "I did not mention the G.D. number which I have to enter while proceeding to P.O. from P.S. I was second officer at that time." (2) "I did not note the name of the staff whom I took with me to the P.O." (3) "I did not note the name of the complainant whom I took with me. I only mention complainant." (4) "I did not mention number of command certificate or the command certificate itself in the C.O." (5) "I did not enquire about in which mouja the P.O. fall." (6) "I did not mention specific name of any person who show me the ditch." (7) "I produced and forward both the accused persons on 15.10.89 under my endorsement." (8) "It was specifically mentioned in the C.D. that I arrested accused Keshab at 21.35 hours on 13.10.89 from the house of one Sachidananda Mondal of village Amra." (9) "It took about 20 minutes to reach the Mayurakshi char from P.S. Labpur." (10) "There is no mentioning in the C.D. and any explanation in the C.D. for delated production of accused to Court." Thus it appears that Sailaja (P.W.-13) had done many things which he was required to mention in case diary but he did not record the same. Sailaja (P.W.-13) in his evidence stated "It took about 20 minutes to reach the Mayurakshi char from Labpur Police Station." Joydeb Mondal (P.W.-6) in his cross-examination stated-"I saw Keshab among the crowd. I saw that Keshab was taken away by police in my presence." d) Sachidananda (P.W.-2) in his evidence before the Trial Court stated- "I heard that Keshab was arrested on 13.10.89." Had Keshab been arrested on 13.10.89 at 21.35 hrs. from the house of Sachidananda (P.W.-2) as claimed by Sailaja (P.W.-13) then Sachidananda (P.W.-2) would not have said "I heard that Keshab was arrested on 13.10.89". Then again Madhabi (P.W.-3) in her evidence categorically stated that on Tradasi day which was 13.10.89 at about 4/4.30 p.m., she saw the dead body of Ambika and also saw Keshab and another accused in thana, they were alongwith the dead body. It is incredible to believe that Sailaja (P.W.-13), the investigation officer did not arrest Keshab and Jiten on 13.10.89 at least at about 4/4.30 p.m. if the F.I.R. (Ext. 6) at that point of time was actually inexistence and consequent upon such F.I.R. he proceeded for investigation to Gunutia Ghat on Myurakshi river. In this connection reference may be made to Kishore Chand vs. State or H.P., AIR 1990 SC 2140 . 6) at that point of time was actually inexistence and consequent upon such F.I.R. he proceeded for investigation to Gunutia Ghat on Myurakshi river. In this connection reference may be made to Kishore Chand vs. State or H.P., AIR 1990 SC 2140 . In Kishore Chand case (supra) Supreme Court observed – "It is incredible to believe that the police officer, after having got identified the accused as the one last seen in the company of the deceased would have left the appellant without taking him into custody." e) In the instant case, according to prosecution consequent upon F.I.R. (Ext.-6) police party led by Sailaja (P.W.-13) proceeded to Gunutia Ghat on Mayurakshi river for investigation. If the prosecution case is true the Sailaja (P.W.-13) had knowledge of the information that Keshab and Jiten murdered Ambika. When Keshab and Jiten were present in the police station on 13.10.89 at 4/4.30 p.m. along with the dead body then the investigating officer would have taken them in custody. Therefore, the story told by Sailaja (P.W..-13), investigating officer, that Keshab was arrested on 13.10.89 at 21.35 hrs. from the house of Sac hid an and a (P.W..-2) is not at all believable. The story of arresting Keshab at 21.35 hrs. from Sachidanada's (P.W.-2) house was deliberately told to circumvent sections 25 and 26 of the Evidence Act, and to make out a case that the dead body of Ambika was recovered on the basis of alleged extrajudicial confession. How much it took time to reach the Mayurakshi char from Labpur Police Station? Sailaja (P.W..-13) in his cross-examination stated-"It took about 20 minutes to reach the Mayurakshi char from P.S. Labour." (Type mistake, it should Labpur). The evidence of Bimal (P.W..-12), constable No. 647, completely demolished the basic case of the prosecution. Bimal (P.W..-12) was not declared hostile by the prosecution. Prosecution had accepted his evidence. Bimal (P.W.-12) in his examination-in-chief-stated-"We proceeded to Gunutia Ghat on Mayurakshi river bed on 13.10.89 at about 3 p.m. S.I., Sailaja Singha prepared an inquest of dead body of female and I was directed to carry to Suri hospital for post-mortem examination." I have already discussed earlier in this judgment that the dead body was not taken straight way to Suri Sadar Hospital, instead, the dead body was brought to the police station where it was seen by Madhabi (P.W..-8). Bimal (P.W..-12) in his cross-examination stated-"I myself alongwith Sailaja Singha, 2/3 constable and proceeded to Mayurakshi char. I cannot say who dug out the dead body but accused Keshab was all along with us." In the cross-examination Sailaja (P.W.-13) stated-"Not a fact that I detained Keshab on 13.10.89 morning without noting in the C.D." But it has already been seen that Sailaja (P.W.-13), the investigating officer did not care to record many important matters in case diary. Therefore, it is definitely possible and probable that Sailaja (P.W.-13) in fact detained Keshab in the morning of 13.10.89 without recording the same in the case diary. Otherwise how Keshab can on all along remain with the police party. Obviously detention of Keshab in the morning of 13.10.89 was not recorded to circumvent sections 25 and 26 of Evidence Act and also to introduce improvements and embellishments and set up a distorted version both in F.I.R. (Ext. 6) and inquest report (Ext.2). It is well settled that even after cross-examination prosecution, with permission of the court, can further examine the witness under section 137 read with section 154 of the Evidence Act. In this context reference may be made to Dahyabhai vs. State of Gujarat, AIR 1964 SC 1563 . In Dahyabhai case (supra) a bench of three Judges of Supreme Court, in paragraph 8 (at page 1569) of the reported decision observed : "Section 137 of the Evidence Act gives only the three stages, in the examination of a witness, namely examination-in-chief, cross-examination and re-examination. This is a routine sequence in the examination of a witness. This has no relevance to the question when a party calling a witness can be permitted to put to him questions under section 154 of Evidence Act that is governed by the provisions of section 154 of the said Act, which confers a discretionary power on the Court to permit a person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. Section 154 does not in terms, or by necessary implication confine the exercise of the power by the court before the examination-in-chief is concluded or to any particular stage of the examination of the witness. It is wide in scope and the discretion is entirely left to the court to exercise the power when the circumstances demand. Section 154 does not in terms, or by necessary implication confine the exercise of the power by the court before the examination-in-chief is concluded or to any particular stage of the examination of the witness. It is wide in scope and the discretion is entirely left to the court to exercise the power when the circumstances demand. To confine this power to the stage of examination-in-chief is to make it ineffective in practice. A clever witness in his examination-in-chief faithfully conforms to what he stated earlier to the police or in the committing court, but in the cross-examination introduces statements in a subtle way contradicting in effect what he stated in the examination-in-chief. If his design is obvious, we do not see why the court cannot, during the course of his cross-examination, (sic-re-examination) permit the person calling him as a witness to put questions to him which might be put in cross-examination by the adverse party. To confine the operation of section 154 of the Evidence Act to a particular stage in the examination of a witness is to read words in the section which are not there. We cannot also agree with the High Court that if a party calling a witness is permitted to put such questions to the witness after he has been cross-examined by the adverse party, the adverse party will not have any opportunity to further cross-examine the witness on the answers elicited by putting such questions. In such an event the Court certainly, in exercise of its discretion, will permit the adverse party to cross-examine the witness on the answers elicited by such questions. The Court, therefore, can permit a person, who calls a witness, to put questions to him which might be put in the cross-examination at any stage of the examination of the witness, provided it takes care to give an opportunity to the accused to cross-examine him on the answers elicited which do not find place in the examination-in-chief." Prosecution had a chance to examine further Bimal (P.W..-12) after his cross-examination. Prosecution chose not to examine Bimal (P.W..-12) after cross-examination and therefore, prosecution accepted the evidence of Bimal (P.W..-12) in cross-examination. Prosecution chose not to examine Bimal (P.W..-12) after cross-examination and therefore, prosecution accepted the evidence of Bimal (P.W..-12) in cross-examination. Lord Herschell in Browne vs. Dunn, (1893) 6R 67 (the case has not been reported elsewhere than in The Reports), laid down the following principle- "I cannot help saying, that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point to direct his attention to the fact by some questions put in cross-examination showing that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested, indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case but it is essential to fair play and fair dealing with the witness." This quotation is taken from a judgment of Division Bench of this High Court in Food Corporation of India vs. Williamson Megor, reported at CAL LT 1999(1) HC 331. I was one in the Division Bench which rendered the decision in Food Corporation of India (supra). There is no reason why the principle enunciated by Lord Herschell in Browne vs. Dunn (supra) should not be made applicable in respect of non-examination of Bimal (P.W.-12) after his cross-examination specially when under the provisions of Evidence Act prosecution had opportunity to examine him further. Evidence of Bimal (P.W..12) that Keshab was all along with the police party completely demolished the basic case of the prosecution that Keshab on 13.10.89 made extrajudicial confession before P.W.-1, P.W.-2, P.W.-3, P.W..-4 and led them to the spot where he allegedly buried the dead body of Ambika and also led to the discovery of clothes of Ambika. Evidence of Bimal (P.W..12) that Keshab was all along with the police party completely demolished the basic case of the prosecution that Keshab on 13.10.89 made extrajudicial confession before P.W.-1, P.W.-2, P.W.-3, P.W..-4 and led them to the spot where he allegedly buried the dead body of Ambika and also led to the discovery of clothes of Ambika. Supreme Court in State of U.P. vs. Bhagwan, (1997) 11 SCC 19 , in paragraph 4 of the reported decision observed that it is true that the testimony even of an eye witness having minor discrepancies has to be given weightage unless discrepancies are such which demolish the basic case of the prosecution. In the instant case evidence of Bimal (P.W.-12), in my opinion, has completely demolished the basic case of the prosecution as stated earlier. 23. To prove the circumstance last seen together prosecution relied upon the evidence of P.W.-1, P.W.-4, P.W.-7, P.W..-8 and P.W.-10. Moni Mohan (P.W.-1) in his examination-in-chief stated- "On 9.10.89 in the morning Keshab Mondal visited my uncle's residence and stayed there and took Ambika with him a plea to marketing at Krinahar Bazar. Since that evening he and Ambika did not return to my uncle's residence." (emphasis supplied). Moni Mohan (P.W.-1) in his cross-examination stated-"Not a fact that Keshab never came to our village with Ambika sometimes before the incident." Therefore, evidence of Moni Mohan (P.W.-1), who happened to be cousin brother of Ambika, is that since evening of 9.10.89 Keshab and Ambika did not return to his uncle's residence meaning thereby that Ambika was present and seen in the residence of Tufan (P.W..-4) on 9.10.89 before evening. That could be the only rational conclusion from the evidence of P.W..-1. Tufan (P.W..-4) full blood brother of Ambika in his examination-in-chief stated-"On 9.10.89 Keshab came to our house, it was Navami day of Puja. Thereafter at about 10 A.M. Keshab took Ambika with him to Krinahar to purchase some clothes. She did not return thereafter. We thought she went to Keshab's residence after marketing." Evidence of Moni Mohan (P.W.-1) and Tufan (P.W.-4), in this respect, on the face, are inconsistent and incompatible to each other. Thereafter at about 10 A.M. Keshab took Ambika with him to Krinahar to purchase some clothes. She did not return thereafter. We thought she went to Keshab's residence after marketing." Evidence of Moni Mohan (P.W.-1) and Tufan (P.W.-4), in this respect, on the face, are inconsistent and incompatible to each other. Moni Mohan (P.W.-1) categorically stated "Since that evening he and Ambika did not return to my uncle's residence." and in his cross-examination Moni Mohan (P.W.-1) categorically stated-"Not a fact that Keshab never came to our village with Ambika sometimes before the incident" meaning thereby that on 9.10.89 both Keshab and Ambika, before evening, had been to Tufan's house. Keshab could only come with Ambika when both of them went out together. Sum total of the evidence of P.W.-1, and P.W.-4 in this respect, shows that Keshab and Ambika went out of house of P.W.-4 but both of them came back to the village Falgram sometimes before the incident and since evening of 9.l0.89 Keshab and Ambika did not return to the house of P.W.-4. But there is no evidence that on 9.10.89 Keshab and Ambika went out of the house of P.W.-4 or of village-Falgram together in the evening or just before evening. On the other hand Tufan (P.W.-4) stated that on 9.10.89 at about 10 A.M. Keshab took Ambika to Krinahar to purchase some clothes and thereafter she did not return. Moni Mohan (P.W.-1) also stated that Keshab took Ambika with a plea of marketing at Krinahar bazar. Thus, according to evidence to Tufan (P.W.-4) Keshab took Ambika out of Tufan's (P.W.-4) residence for purchasing clothes at 10 a.m. on 9.10.89. Evidence of Moni Mohan (P.W.-1) without any ambiguity shows that both Keshab and Ambika thereafter, at some time before evening must had come back to the residence of Tufan (P.W.-4). This probability is further fortified by the statement of Moni Mohan-"Not a fact that Keshab never came to our village with Ambika sometimes before the incident." Otherwise how Moni Mohan (P.W.-1) could say-"Since that evening he and Ambika did not return to my uncle's residence?" Certainly Moni Mohan (P.W.-1) by the words "since that evening" did not mean "at about 10 A.M." on 9.10.89. Biswanath Dhibar (P.W.-7) in his examination-in-chief-stated-"Almost six years before in the Navami day of Durga Puja I went to Labpur for purchasing some articles and returning back to our village at about 1-30 a.m.. I met Ambika and Keshab on the way to Falgram. They are proceeding to Labpur. Labpur had to be communicated if some body go to Kirnahar. I enquired where they are going. They stated that they will go to Krinahar". In his cross-examination Biswanath (P.W.-7) stated-"I cannot exactly say the year of Navami day when I saw Ambika and Keshab on road." It is dangerous to rely on the evidence of P.W.-7 as one of the circumstances against Keshab. No evidence in which year's Navami day of Durga Puja Biswanath (P.W.-7) met Keshab and Ambika on road. Unless surmise and conjecture are taken recourse to it cannot be said that it was Navami day of Durga Puja in the year 1989. To say it was Navami day of Durga Puja in the year 1989 one has to add "in the year 1989" in the evidence of Biswanath (P.W.-7) which is impermissible in law. From another angle also the evidence can be appreciated; if one says that Biswanath wanted to convey that on Navami day of Durga Puja 1989 he saw Keshab and Ambika at about 10.30 a.m. then also this cannot be used as a circumstance against Keshab for this very simple reason that Moni Mohan (P.W.-1) clearly stated." On 9.10.89 in the morning Keshab Mondal visited my uncle's residence and stayed there and took Ambika with him with a plea of Marketing at Krinahar bazar. Since that evening he and Ambika did not return to my uncle's residence." As discussed by me earlier, this evidence of Moni Mohan (P.W.-1) shows that on 9.10.89 before evening Keshab and Ambika were present in the residence of Tufan (P.W.-4). Therefore, from Krinahar Keshab and Ambika must had come back to Tufan's (P.W.-4) residence before evening on 9.10.89 and that is why Moni Mohan (P.W.-1) stated-"Not a fact that Keshab never came to our village with Ambika sometimes before the incident." From this angle also evidence of Biswanath (P.W.-7) does not prove any circumstance. During examination of accused under section 313 of Cr. During examination of accused under section 313 of Cr. P.C. question-1 was put in the following words-"witnesses No.1 and 4 stated in the evidence that on 9.10.89 in the morning you took your wife Ambika from the house of her father, Falgram on the pretext of marketing. Then Ambika did not come back again." Sorry, that was not the evidence of P.W.-1. The trial Court misread the evidence of P.W.-1 in this respect and added something in the mouth of P.W.-1 what he had not stated. Similarly question-11 was put to Keshab in the following words-"On the day of Navami in that year when witness No.7 was coming from Labpur after marketing saw you and Ambika on the street of Falgram. In reply of his question you stated that you went to Kirnahar with Ambika for marketing." (emphasis supplied). Here also the trial court put some words "in that year" in the month of P.W.-7 what he did not say in his evidence. The trial Court completely misread the evidence of Biswanath (P.W.-7). Question 12 put to Keshab during examination under section 313 Cr. P.C. is simply astounding. The question was-"on the day of 'Navami' in the year at about 11.30 a.m. he saw you, Ambika and another unknown person laughing and cutting jokes at Fullara Mindirtala. He identified that unknown person as Jiten Das in the court." (emphasis supplied). If this question 12 is read after question-11 then it appears that the trial Court framed the question-12 on the basis of evidence of Biswanath (P.W.-7). Repeated use of the word "he" condensed such probability. But P.W.-7 never stated so in his evidence. Fullara Mandir episode was brought into existence by Madhabi (P.W.-8) cousin sister of Ambika. Assuming it is a pure mistake of the Trial Court then also in view of evidence of Moni Mohan (P.W.-1) the Fullara Mandir episode cannot be used as a circumstance against Keshab. Fullara Mandir episode took place at 11-30 a.m. on 9.10.89 and according to the evidence of P.W. 1 as discussed above both Keshab and Ambika were present in the residence of Tufan (P.W.-4) before evening on 9.10.89. Incidentally Madhabi (P.W.-8) is the full blood sister of Moni Mohan (P.W.-1). For the above reasons, circumstances mentioned in question Nos. 1, 11 and 12 had not been correctly stated and that apart they are not circumstances against Keshab for the reasons discussed above. Incidentally Madhabi (P.W.-8) is the full blood sister of Moni Mohan (P.W.-1). For the above reasons, circumstances mentioned in question Nos. 1, 11 and 12 had not been correctly stated and that apart they are not circumstances against Keshab for the reasons discussed above. Rabi Bagdi (P.W.-10) in his examination-in-chief stated-"6/7 years before on the day of Nabami in the month of Aswin I went to Kirnahar to see idol. At about 3 p.m. I reached Krinahar .... I met Ambika, her husband Keshab and another man in Kirnahar Chowrasta. Identified the accused person on dock as Ambika's husband and another man". (emphasis supplied). In the cross-examination Rabi (P.W.-10) stated-"I cannot say the name of the husband of Ambib". (emphasis supplied). When Rabi (P.W.-10) could not say the name of Ambika's husband then how could he say-"....her husband Keshab?" That apart Rabi also could not say the year but said "6/7 years ago." It is dangerous to rely on the evidence of this witness No. 10 Rabi. I am of the view that the evidence of P.W. 10 does not prove any circumstance against Keshab. Evidence of Moni Mohan (P.W. 1) proves that at the time of evening break on 9.10.89 both Keshab and Ambika were in the residence of Tufan (P.W.-4) and "since that evening he and Ambika did not return to my uncle's residence." There is no evidence on record that in the evening Keshab and Ambika left the residence together. None had seen Keshab and Ambika together in the evening of 9.10.89. No body had seen Keshab and Ambika together after evening on 9.10.89. Therefore, I am of the opinion prosecution failed to prove that Keshab and Ambika were last seen together alive. In view of the discussions made hereinabove I am of the opinion that 'last seen together' circumstance is not at all acceptable and cannot be used against Keshab. 24. Apart from the discussions made hereinabove it should kept in mind that the prosecution case is Ambika was last seen alive together with Keshab and Jiten. Both Keshab and Jiten were charged under section 364 read with section 34 of the Indian Penal Code and also under section 302 read with section 34 of the Indian Penal Code and section 201 read with section 34 of the Indian Penal Code. Both Keshab and Jiten were charged under section 364 read with section 34 of the Indian Penal Code and also under section 302 read with section 34 of the Indian Penal Code and section 201 read with section 34 of the Indian Penal Code. The Trial Court in respect of Jiten Das held as follows:- "The charge against accused Jiten Das under sections 364/302/201 read with section 34 of I.P.C. is not established. He is entitled to the benefit of doubt." State has not preferred any appeal against the order of acquittal of Jiten. Supreme Court in Pohalya vs. State of Maharashtra, AIR 1979 SC 1949 , in paragraph 9 of the reported decision held – "Ordinarily, when a person is accused of committing murder of another, the fact that the accused and the deceased were last seen alive in company of each other and the failure of the accused to satisfactorily account for the disappearance of the deceased is considered a circumstance of an incriminating character according to Bhikjya, P.W.-8, the appellant and deceased Parshi Motya came to his house around midnight time and asked for two bottles of liquor. But further according to Bhikjya at about that time accused No.2 Bhamta also joined them. According to Bhikjya all the three i.e. deceased appellant and Bhamta left his house together. Undoubtedly thereafter deceased was not seen alive by anyone but two persons were in company of the deceased viz. appellant and Bhamta when they left the house of Bhikjya. Now Bhamta was the co-accused. This very circumstance has not been found to be of some importance against Bhamta. To some extent the circumstance ceases to be of an incriminating character because not only the appellant should account for the disappearance of the deceased but simultaneously on evidence of Bhikjya original accused No.2. Bhamta would also be required to explain the same circumstance. Not only was Bhamta acquitted in respect of the offence the State even did not choose to question his acquittal though it did prefer appeal against the acquittal of the present appellant. In this background the fact that deceased was seen last alive in the company of accused would cease to be a circumstance of an incriminating character." (emphasis added) 25. In this background the fact that deceased was seen last alive in the company of accused would cease to be a circumstance of an incriminating character." (emphasis added) 25. From this angle also even if it is assumed that Ambika was last seen alive together with Keshab and Jiten then also in the background of acquittal of Jiten and State's choice not to prefer appeal against acquittal of Jiten, the fact that Ambika was last seen alive in the company of Keshab and Jiten ceased to be a circumstance of an incriminating character. 26. Now I shall deal with the alleged extra-judicial confession according to the prosecution story Keshab on 13.10.89 made extrajudicial confession before Moni Mohan (P.W.-1), Sachidananda (P.W.-2), Lambodar (P.W.-3) and Tufan (P.W.-4). Sachidananda in his examination-in-chief stated-"After much persuances that he stated that he along with one Jiten murdered Ambika and buried her in Mayurakshi char." (emphasis supplied). In his cross-examination Sachidananda stated-"I did not state to police that for that I myself with some local people went to Keshab and put pressure upon Keshab to disclose." Sailaja (P.W.-13), the investigating officer, in his cross-examination stated Sachidananda stated to me that some villagers including himself and Tufan to put pressure upon Keshab to know whereabouts of Ambika." Sailaja, in his cross-examination further stated-"Sachidananda did not stated to me Keshab admitted before him that he and Jiten killed Ambika and buried in the Mayurakshi char." It is difficult to believe that had Keshab made any extra judicial confession then the same would not have been told by Sachidananda to the investigating officer. Normal conduct is that if any extra judicial confession is made before arrival of police then such extra judicial confession is communicated to the police, after their arrival, by the persons before whom such extra judicial confession was alleged to have been made. In the instant case there is no mention of extra judicial confession alleged to have been made by Keshab on 13.10.89 either in (a) in F.I.R. or (b) in inquest report, or (c) even in the statement made before the investigating officer. Extra judicial confessions are those which are made by an accused before a person or group of persons other than a Magistrate or a Court. Extra judicial confessions are those which are made by an accused before a person or group of persons other than a Magistrate or a Court. The term 'confession' has not been defined in the Evidence Act, 1872 in C.B.I. vs. V.C. Shukla, reported in (1998) 3 SCC 410 , Supreme Court held that only voluntary and direct acknowledgement of guilt is confession. In V.C. Shukla (supra), in paragraph 45 of the reported decision it was observed, inter alia, as follows: "It is thus seen that only voluntary and direct acknowledgement of guilt is a confession....." In Aher Raja vs. State of Saurashtra, AIR 1956 SC 217 , Supreme Court held that the confession must be voluntary. In Davendra vs. State of U.P., AIR 1978 SC 1544 , Supreme Court held that before admitting the confessional statement in evidence, it must be shown to be voluntarily made. Confession must be free and voluntary. Voluntariness is a prime requisite condition for confession. The question, which a court has to decide is whether the confession is the product of an essentially free and unconstrained choice by its maker. If it is not, if its maker's will, at the time of making confession, had been overborne and his capacity for self determination critically impaired then such confession cannot be used against its maker. In deciding whether an alleged confession is free and voluntary and should be admitted in evidence, the Court's task is to consider the evidence before it, to assess its implication and to decide the case on Court's view of that evidence in the light of the basic established principles. In Wakil Nayak vs. State, reported in (1971) 1 SCC 178, Supreme Court held that before an extra-judicial confession is acted upon, the Court shall consider the circumstances under which the confession is made, the manner in which it is made, the person to whom it is made along with two rules of caution: Firstly, whether the evidence of confession is reliable; and secondly, whether it finds corroboration. In Heramba Brahma vs. State of Assam, AIR 1982 SC 1595 , Supreme Court held that extra-judicial confession to afford a piece of reliable evidence must pass the test of reproduction of exact words, the reason or motive for confession and person selected in whom confidence is reposed. In Heramba Brahma vs. State of Assam, AIR 1982 SC 1595 , Supreme Court held that extra-judicial confession to afford a piece of reliable evidence must pass the test of reproduction of exact words, the reason or motive for confession and person selected in whom confidence is reposed. In Mulk Raj vs. State of U.P., AIR 1959 SC 902 , Supreme Court held that it is true that in the case of extra-judicial confession the court requires the witness to give out the actual words used by the accused as nearly as possible, but it is not an invariable rule that the court will not accept the evidence when the substance of the alleged statement of accused, and not the actual words, are given. Supreme Court in Kavita vs. State of Tamil Nadu, AIR 1998 SC 2473 , reiterated that it may not be necessary that actual words used by the accused must be given by the witness but it is for the court to decide on the acceptability of the evidence having regard to the credibility of the witnesses. But there is no dispute that voluntariness is the prime pre-requisite condition of confession. Confession should be a product of essentially free and unconstrained choice by its maker. It should be unconstrained by interference un-impelled by another's influence. It should be spontaneous. If the maker of the confession did not will to confess and if he was overborne and his capacity for self determination critically impaired then alleged confession cannot be used against the maker because under such circumstance the alleged confession will not be admissible in evidence. Sachidananda (P.W.-2) in his examination-in-chief clearly stated-"I myself, Anath, Bipadtaran, Lambodhar Mondal and some others along with P.W.-1 went to the residence of Keshab. We enquired about Ambika. Initially he refused to divulge anything about Ambika. After much pursuances he stated that he along with one Jiten murdered Ambika and buried her in Mavurakshi char." (emphasis added). Sachidananda (P.W.-2) in his examination-in-chief clearly stated-"I myself, Anath, Bipadtaran, Lambodhar Mondal and some others along with P.W.-1 went to the residence of Keshab. We enquired about Ambika. Initially he refused to divulge anything about Ambika. After much pursuances he stated that he along with one Jiten murdered Ambika and buried her in Mavurakshi char." (emphasis added). P.W.-2 in his cross-examination stated-"I did not state to police that for that I myself with some local people went to Keshab and put pressure upon Keshab to disclose." But Sailaja (P.W.-13) in his evidence stated-"Sachidananda stated to me that some villagers including himself and Tufan to put pressure upon Keshab to know whereabout of Ambika." P.W.-13, the investigating officer, in his evidence further stated Sachidananda did not state to me Keshab admitted before him that he and Jiten killed Ambika and buried in the Mayurakshi char." It is incredible to believe that if actually Keshab had made any such statement that he (Keshab) and Jiten killed Ambika and buried in Mayurakshi char then Sachidananda would not have communicated the same to P.W.-13 who was the investigating officer of the case. This only suggests that it is very much probable and possible that Keshab did not make any such statement at all. Thus it is clear that Keshab did not want to say anything and only "after much pursuance" allegedly confessed. Lambodhar (P.W.-3) also in his evidence said-"Initially he refused to divulge anything but after much pursuance he admitted that he himself and Jiten murdered Ambika and buried her in the bed of Mayurakshi." The word 'pursuance' means (1) That which follows or is consequent upon a thing, a consequence. (2) The action of continuing something; (a) continuance of. (3) The action of pursuing in order to catch or harm; (4) The action of trying to attain or accomplish something. (5) The action of proceeding in accordance with something (foll. by of, to); the carrying out or observance of M. 17. (the New Shorter Oxford English Dictionary, 1993). Thus from the evidence of prosecution witnesses it is apparent that Keshab was not willing to make any statement but a crowd of some persons "after much pursuance" persuaded Keshab to make an alleged confession. by of, to); the carrying out or observance of M. 17. (the New Shorter Oxford English Dictionary, 1993). Thus from the evidence of prosecution witnesses it is apparent that Keshab was not willing to make any statement but a crowd of some persons "after much pursuance" persuaded Keshab to make an alleged confession. Even there is evidence on record that the P.W.-13, investigating officer, stated that Sachidananda (P.W.-2) said him (P.W.-13) that villagers including Sachidananda (P.W.-2) and Tufan (P.W.-4) "put pressure upon Keshab." It further appears from the evidence of Sailaja (P.W.-13) that Tufan (P.W.-4) stated to him (P.W.13) that local villagers questioned Keshab and intimidated him that ifhe refused to divulge then "extreme step" would be taken. Under these circumstances, in my opinion, alleged confession of Keshab cannot be accepted as a product of essentially free and unconstrained choice by him. I am of the opinion that the alleged extra-judicial confession of Keshab is not a "confession" as understood in criminal justice and is not admissible in evidence. Moreover it is important to note that Lambodhar Mondal (P.W.-3) in his examination-in-chief stated-"We enquired Ambika from Keshab. Initially he refused to divulge anything but after much persuance he admitted that he himself and Jiten murdered Ambika and buried her in the bed of Mayurakshi", but in his cross-examination P.W.-3 stated-"Not a fact that Keshab admitted his guilt in our presence." Thus the entire story of alleged extra-judicial confession becomes doubtful and not trust-worthy. 27. Regarding alleged discovery of 'sari' and 'saya' allegedly being led by Keshab, suffice it to say that those "sari" and "saya" were not exhibited during trial. No question was put to any witness regarding identification of "sari" and "saya". "Sari" and "saya" alleged to have been seized were not identified by any witness in course of trial. There is no evidence on record regarding colour and type of dresses worn by Ambika when she was last seen. There is no evidence on record that the "sari" and "saya" alleged to have been seized being allegedly led by Keshab belonged to Ambika and she was last seen wearing that "sari". There is no evidence on record regarding colour and type of dresses worn by Ambika when she was last seen. There is no evidence on record that the "sari" and "saya" alleged to have been seized being allegedly led by Keshab belonged to Ambika and she was last seen wearing that "sari". Under these circumstances there is no proof that "sari" and "saya" alleged to have been seized being allegedly led by Keshab belonged to Ambika, and Ambika was wearing that "sari" when she was allegedly last seen, therefore, their alleged discovery being allegedly led by Keshab cannot be treated as a circumstantial evidence. Why those "sari" and "saya" were not produced at the time of trial has not been explained by prosecution. There is no mention in F.I.R. that "sari" and "saya" of Ambika were recovered. 28. Regarding discovery of dead body of Ambika allegedly being led by Keshab the evidence produced by the prosecution contradicts one another and cannot be accepted. In the earlier part of this judgment I have thoroughly discussed the evidence of P.W.-12 (Bimal). No need of repeating the same here again. Suffice it to say that Bimal (P.W.-12) in his cross-examination stated-"I cannot say who dug out the dead body but the accused Keshab was all along with us." This evidence clearly shows that Keshab neither led to discovery of the dead body as alleged by the prosecution nor Keshab dug out the dead body of Ambika. Moni Mohan (P.W.-1) in his examination-in-chief stated-"The villagers arrived at the house of Keshab and questioned Keshab and Keshab told that he with the help of one Jiten murdered Ambika and engraved her in the river bed of Mayurakshi. He also admitted that he would show the place where Ambika was kept. Thereafter, I myself, Tufan, Lambodhar, Sachidananda and other villagers took Keshab to the river bed of Mayurakshi and after a long straight from Gunutia Ghat of Mayurakshi river Keshab showed a place from some distance where we found the finger of the body. We made Keshab to open the earth and dead body of my sister Ambika found there. Thereafter, I myself, Tufan, Lambodhar, Sachidananda and other villagers took Keshab to the river bed of Mayurakshi and after a long straight from Gunutia Ghat of Mayurakshi river Keshab showed a place from some distance where we found the finger of the body. We made Keshab to open the earth and dead body of my sister Ambika found there. I identified the dead body of Ambika." In his cross-examination P.W.-1 stated-"I stated the police that my sister was murdered and we found out the dead body and police had to take steps." In the F.I.R which was lodged by Moni Mohan (P.W.-I) there is no mention that Keshab had excavated the sand and unearthed the dead body of Ambika. Sachidananda Mondal (P.W.-2) in his examination-in-chief stated "Keshab also stated that he will show the dead body if we proceed with him. I myself alongwith those persons already named accompanied him. We followed Keshab to Mayurakshi char and show us his finger from a distance. We took Keshab to that place being led by him. Keshab himself pick out the dead body of Ambika from there." In his cross-examination P.W.-2 stated-"I stated to Daroga babu that Keshab unearthed the dead body of Ambika after seeking out sand of Mayurakshi." Sailaja (P.W.-13), the investigating officer, in his cross-examination, referring to Sachidananda (P.W.-2) stated-"He stated to me that they found part of toes out of sand perhaps being pulled out by animals and foul men also they removed the sand recovered the dead body of Ambika. Then says after removal of sand dead body was recovered. He did not state to me that Keshab himself removed the sand and unearthed the dead body." Lambodhar MandaI (P.W.-3) in his examination-in-chief stated.-"He agreed if we accompanied him he will show the place where Ambika was buried. After saying as such I myself along with Mani Mohan, Tufan, Sachi, Bipadtaran, Anath and some other followed Keshab in the sand bank of Mayurakshi being led by him. He showed us a place where Ambika was buried but some of her toe finger was patruding out of the sand. We directed Keshab to pick out the dead body. He opened the sand and picked out the dead body which was that of Ambika. We all found that the dead body is that of Ambika. He showed us a place where Ambika was buried but some of her toe finger was patruding out of the sand. We directed Keshab to pick out the dead body. He opened the sand and picked out the dead body which was that of Ambika. We all found that the dead body is that of Ambika. In his cross-examination P.W.-3 stated that-"I did not state to police that local villagers pick out the dead body from the grave." Sailaja (P.W.-13) when confronted in his cross-examination referring to Lambodhar (P.W.-3) stated-"He did not state to me that Keshab unearthed the dead body by removing sand. Neither he stated to me that Keshab unearthed the garments of the deceased. Lambodhar stated to me that local villagers unearthed the dead body by removing sand." Tufan Mondal (P.W.-4), elder brother of Ambika and husband of Anima sister of Keshab in his examination-in-chief stated-"He also stated that he will show the dead body if taken to that place. Accordingly, be led by Keshab, I myself along with Moni Mohan and the said local gentlemen along with several others proceeded to river-bed of Mayurakshi. He showed us a place from a distance of 5 cubits where he buried Ambika in the bed of Mayurakshi. We asked him to unearth. Accordingly, Keshab unearthed the dead body. We saw the dead body and identified as dead body of Ambika." Sailaja (P.W.-13) in his cross-examination stated-"Tufan did not state to me that Keshab himself unearthed the dead body by removing the sand and also garments of the deceased. Tufan stated to me that local villagers questioned to Keshab and it is refused to divulge that extreme step will be taken (written in Bengali) He did not state to me that villagers of Amra village unearthed the dead body. Then says that villagers of Amra recovered the dead body." 29. In the facts and circumstances stated above truth and falsehood are so inextricably mixed up that in the process of separation of truth from falsehood the court will have to reconstruct an absolutely new case for prosecution. 30. In view of the discussion made hereinabove I am of the view that prosecution failed to prove its case. I am also of the opinion that a careful reading of the evidence without any ambiguity suggests that the things happened not in the manner sought to be told by the prosecution. 30. In view of the discussion made hereinabove I am of the view that prosecution failed to prove its case. I am also of the opinion that a careful reading of the evidence without any ambiguity suggests that the things happened not in the manner sought to be told by the prosecution. Under these circumstances I have no hesitation to hold that the appellant, Keshab is not guilty of the charges levelled against him and he is entitled to be acquitted from the charges levelled against him. I acquit Keshab, the appellant, from the charges levelled against him. I allow the appeals preferred by Keshab, the appellant. In these terms I dispose of the death reference No. 12 of 1996. Basudeva Panigrahi, J. : I agree. Appeals allowed. Death reference disposed of accordingly.