JUDGMENT : - Amit Talukdar, J. : To countenance her fate suffered in the Trial Court on account of her conviction rendered by a learned Additional Sessions Judge, of Islampur, Uttar Dinajpur in Sessions Trial No. 18 of 1997, the appellant has approached this Court from behind the prison walls by way of availing the provisions of section 383 of the Code of Criminal Procedure ( for short, the said Code). 2. It is a pity that although a Division Bench of his Court consisting of D.P. Kundu and D.P. Sarkar, JJ. on 18.6.98 directed:- "Let the Appeal be listed for hearing 4 weeks hence"; After Their Lordships had admitted the Appeal, the same could find its place in the Cause List in June, 2002 with the Office Note that the paper books were prepared but it could not be served upon the appellant as it being a Jail Appeal since none had appeared on behalf of the appellant. 3. We, by our order dated 12.6.2002 engaged a learned panel lawyer to act as State Defence and directed service of the Paper Book upon the said learned Counsel and thereafter, the mater was ultimately heard and is being presently dispose? of. 4. It is a matter of concern that the appellant, who forms a segment of the Faceless multitude behind the Stone Walls who have neither means nor the capability to seek justice by hiring legal talents from the Bar, has to suffer in silence notwithstanding an Order of the Division Bench of this Court passed way-back in the mid-summer of 1998 for a passage of valuable four more summers till her voice could be heard. 5. Isn't it a picture of a moriband state of affairs interlaced with a tapestry of systematic inertia, which has struck us even at the very inception before we started to plough the intrinsic merit of the Appeal. 6. We would request the Registry to marshall similar type of matters in which persons are languishing beyond the High-stone Walls with their Appeals kept in animated suspension; notwithstanding Orders of this Court for expeditious disposal. 7. We pray that we may not have to come across such instances in the future and hope for this purpose any of us need not keep their fingers crossed. 8. Lifting the time shrouded veil we proceed to decipher the efficacy of the Appeal on its merit. 9. 7. We pray that we may not have to come across such instances in the future and hope for this purpose any of us need not keep their fingers crossed. 8. Lifting the time shrouded veil we proceed to decipher the efficacy of the Appeal on its merit. 9. We have before us the very able assistance of the learned State Defence and equally able assistance of the learned Additional Public Prosecutor. 10. The learned State Defence who, we must say, argued the case with great care and diligence, submitted that the entire case was based on circumstantial evidence. The main circumstances which were relied upon by the prosecution to forge a link and to secure the conviction of the appellant under section 302 of the Indian Penal Code were narrated by him as follows: a. Recovery of the spade (Mat. Ext.1) pursuant to the statement of the appellant on 22.8.95 which was, however, seized on the next date; b. The evidence of P.W.4- a child witness which was not corroborated; c. The dead body found in the house of the appellant which was also owned by P.Ws.2 and 3. 11. He submitted that all the circumstances which have been relied upon by the learned Trial Court cannot form an unmistakable chain leaving aside all other doubts other than the guilt of the appellant. Pointing to the evidence of P.W.3 the learned State Defence submitted that it was P.W.3 who had produced the spade (Mat. Ext.1) which cannot furnish the element of guilt of the appellant. He submitted that the prosecution case with regard to the appellant calling the victim to her house was proved by P.W.4-a child witness. Her mental faculty was not tested and her version with regard to corroboration of P.W.1 does not subsist as she breaks in her cross-examination with regard to her knowledge of the incident which she had learnt from P.W.4. 12. According to the State Defence the best evidence was with held by the prosecution. He submitted, P.W.13 spoke of a statement recorded by him at the Police Station of the appellant; but, P.Ws.2, 5 and 6 not only stated that the said statement was made at the place of occurrence, but they were not present at the Police Station when such statement was made. He submitted, P.W.13 spoke of a statement recorded by him at the Police Station of the appellant; but, P.Ws.2, 5 and 6 not only stated that the said statement was made at the place of occurrence, but they were not present at the Police Station when such statement was made. The said statement recorded by P.W. 13 ought to have been produced by the prosecution which could have given a clear picture of the entire case. Further, it was submitted on behalf of the appellant that P.W. 1 does not corroborate the question of seizure or disclosure of the statement made by the appellant and that as Ext. 3, the purported statement, by virtue of which recovery was made, was not admissible in evidence; the entire recovery was not in order. 13. He has accordingly prayed for allowing the Appeal and setting aside the conviction recorded by the learned Trial Court. 14. Forceful resistance was offered on behalf of the State of West Bengal by its learned Additional Public Prosecutor to ward off the volley fired by the State Defence. The learned Additional Public Prosecutor submitted that the dead body was recovered from the house of the appellant and recovery was effected; and also the F.I.R. was lodged on the same day. This is a very clinching circumstance which could not be explained by the Defence. He further submitted that the question of last seen together was very much there as the appellant was found with the deceased and it was for the Appellant to explain when he parted company with the deceased and in view of section 106 of the Evidence Act (for brevity, the said Act) the onus lay on the Defence to rebut the same. The learned Additional Public Prosecutor supported the evidence of P.W.4 as although she was a child witness her evidence was quite probable and there was no law, according to him, for testing the said witness and that as there was no incongruity in her evidence and further that since she understood the relationship of husband and wife i.e. her mother and her uncle who had married each other subsequent to the death of her father, it cannot be said that the child was absolutely a green-horn in the witness-box. He referred to the timing of the F.I.R. and the incident and submitted as it was lodged immediately, there was' no question of fabrication. The learned Additional Public Prosecutor further referred to the cross-examination of the child witness (P.W.4) and showed that the evidence with regard to appellant calling the deceased was not discredited in her cross-examination and there was no inherent improbable in the version of the child witness and the dead body being recovered from her house, the prosecution case stood proved; more so, when vital part of the prosecution case went unchallenged. 15. As a part of his submission, the learned Additional Public Prosecutor referred to the Supreme Court decision of State of Himachal Pradesh vs. Jeet Singh, (1999) 4 SCC 370 , on the proposition that the recovery under section 27 of the said Act pursuant to the statement of the victim was entirely admissible in evidence and even the exculpatory statement of the accused is also admissible. He also referred to the another decision of the Supreme Court in Himachal Pradesh Administration vs. Om Prakash, AIR 1972 SC 975 , on the proposition that even though the statement may not go under section 27 of the said Act, it can be taken into consideration by way of conduct of the appellant under section 8 of the said Act. 16. Accordingly, he has prayed for dismissing the appeal. 17. We have to discern, and in the process distinguish and arrive at our conclusion by sifting the grain from the chaff on the basis of the evidence and the materials that have been recorded in the kaldeoscope of the light focused by the learned State Defence and the learned Additional Public Prosecutor. The entire confection of the prosecution case is based on circumstantial evidence. The sprouting features of the circumstances which surface on the lace of the said confection are, as has been rightly pointed out by the learned State Defence a. recovery of the spade (Mat. Ext. 1) pursuant to a statement made by the appellant, b. evidence of P.W.4 the child witness and c. the recovery of the dead body in the house of the appellant. 18. Let us see as to whether these circumstances unerringly veer the needle of suspicion towards the appellant and clinching the issue leaving aside any other hypothesis excepting the guilt of the appellant herself. 19. 18. Let us see as to whether these circumstances unerringly veer the needle of suspicion towards the appellant and clinching the issue leaving aside any other hypothesis excepting the guilt of the appellant herself. 19. Although as has been reiterated in a galaxy of the decisions of the Hon'ble Apex Court what is the guideline for basing a conviction on the basis of circumstantial evidence, yet it would be profitable to remind ourselves the hallowed guidelines of the Summit Court in this regard that:- 1. the circumstances should have definite tendency pointing towards the guilt of the accused and in its totality must unerringly lead to the conclusion that the offence was committed by the accused and none else; 2. all the links in the chain of events from which irresistable conclusion about the complicity of the accused for the offence alleged can be drawn must be established beyond a pale of reasonable doubt; 3. the entire chain furnished by those circumstances must be so complete so as not to leave any reasonable" ground for a conclusion consisted with the innocence of the accused; 4. that such evidence should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused; and 5. should not be capable of being explained by any other hypothesis barring the complicity of the accused and it is only when all such circumstances cumulatively taken together leads to the irresistable conclusion that the accused and the accused alone and none else but it is accused and the accused alone who has committed perpetrated the crime. 20. Such is the Rule of prudence spelt by the Hon'ble Apex Court in Laxman Naik vs. State of Orissa, AIR 1995 SC 1387 . Their Lordships of the Hon'ble Supreme Court in A. Jayaram vs. State of AP., AIR 1995 SC 2128 , had further cautioned that in a criminal trial while there is no absolute standard of proof the court should not nurture fanciful doubts or exaggerated devotion to the rule of benefit of doubt and the Court has to be vigilant enough to avoid the danger of replacing legal proof by allowing suspicion to take over. 21. 21. Even the other day, in Sub hash Chand vs. State of Rajasthan, (2002) 1 SCC 702 , Their Lordships had held: "Though the offence is gruesome and revolts and human conscience but an accused can be convicted only on legal evidence and if only a chain of circumstantial evidence has been so forged as to rule out the possibility of any other reasonable hypothesis excepting the guilt of the accused". 22. Their Lordships quoting from the decision of the Supreme Court in Shankarlal Gyarasilal Dixit case cautioned- "human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions". 23. The 3-Judge Bench of the Supreme Court in Sub has Chand vs. State of Rajasthan (supra) further held: "................ that between may be true and must be true there is a long distance to travel which must be covered by clear, cogent and unimpeachable evidence by the prosecution before an accused is condemned a convict." 24. These are the scriptures which have to be applied by us while deciding the Appeal. 25. Let us first take up the circumstance with regard to recovery of the spade (Mat. Ext. 1) at the behest of the appellant. We find from the evidence of P.W. 13, Haradhan Goswami, that after being entrusted with the investigation on 21.8.95 at 20-05 hours he started towards the place of occurrence and found the appellant arriving there and confessed her guilt for commission of murder at her house with this spade at 10-00/10-30/11-00 a.m. due to previous enmity while concealing the said weapon and that she would lead to the recovery of the same. As a result of which he recorded her statement under section 161 of the Code of Criminal Procedure in the Thana Premises. Mysteriously, as very rightly pointed out by the learned State Defence that it was perhaps the best evidence; but, Unfortunately the same was not placed by the prosecution before the Court. This is a great disenchanting factor which we have to remember. It is his further evidence that he took the appellant to the house of P.W.3 (her father) on 21.8.95 at about 21-05 hours and found the dead body of Rajen Kisku lying inside the bedroom of P.W.3 and Inquest Report was prepared (Ext.1). He effected certain seizure of blood-stained earth etc. under a Seizure List (Ext. 2A) and also a iron spade (Mat. He effected certain seizure of blood-stained earth etc. under a Seizure List (Ext. 2A) and also a iron spade (Mat. Ext.1) being produced by the appellant at about 01.15 a.m. on 22.5.95 in presence of the witnesses. It was seized under the Seizure List (Ext. 3A). 26. This is the evidence of the Investigating Officer. P.W.1 the author of the F.I.R. (Ext.4) who heard about the incident from the child witness (P.W.4) had been to the appellant's house and discovered the dead body of her husband and along with the Anchal Member-Mungalal (P.W.8) went to the Chopra Police Station and lodged the F.I.R. She does not speak anything with regard to the said recovery. P.W.2 -Moti, the step-mother of the appellant deposed that the appellant informed P.W.13 that she committed the murder of Rajen Kisku with a spade and she produced the same from the cowshed. In her cross-examination she stated that the appellant was not present at home on the very date of the murder of Rajen Kisku. P.W.3 also corroborated P.W.2 with regard to the confession of the appellant before P.W. 13. He, however, deposed that - "Myself produced the said spade before Daroga babu belonging to him". P.W.5 a signatory to the Seizure List (Ext. 3A) pertaining to the discovery of the spade (Mat. Ext.1) stated P.W.2 took her to the house and showed the dead body by opening the door and the F.I.R. was written by one Sunil Ch. Goswami, Moharar at the instance ofP.W.1. That the appellant came with P.W.13 was deposed by P.W.5. He also corroborated the evidence of P.Ws. 2 and 3 with regard to her confession before P.W.13. He further stated that the appellant "brought the spade from their cow-shed and produced the same before Daroga babu". He also deposed that he told P.W.13 that 'there was no enmity in between' the appellant and the deceased Rajen Kisku. P.W.6-Budhon Tudu corroborated P.Ws. 2, 3 and 5 with regard to the confession of the appellant and production of the spade (Mat. Ext.1). P.W.7-Anil Tudu signed on some % papers at the instance of P.W.13 but could not say the contents of the documents as P.W.13 did nothing in his presence. P.W.S -Sadhu Besra tendered for cross-examination stated that after he returned from the field P.W.4 called him to the house ofP.W.3 and found the dead body of Rajen Kisku. Ext.1). P.W.7-Anil Tudu signed on some % papers at the instance of P.W.13 but could not say the contents of the documents as P.W.13 did nothing in his presence. P.W.S -Sadhu Besra tendered for cross-examination stated that after he returned from the field P.W.4 called him to the house ofP.W.3 and found the dead body of Rajen Kisku. He had put his signature on a paper at the instance of P.W.13 but cannot say the contents of the same and he knew 'nothing more'. P.W.9 was the Moharar who was the scribe of the F.I.R. (Ext.4). P.W.10 a Home Guard after the inquest was over carried the body to the Raiganj Hospital. P.W.11 was the Autopsy Surgeon. P.W.12 had recorded the formal F.I.R. 27. Now, from the aforesaid discussion it shows that although according to P.Ws.2, 3 and 6, the spade was produced before the Investigating Officer yet, from the Seizure List (Ext.3A) it is clear that only P.W.5- Mungalal and P.W.5 Sadhu Besra signed on it. From the evidence of P.W.5 we find that he simply signed on some papers without knowing the contents thereof at the instance of P.W.13. From a close look we find that although P.W.5, Mungalal gave his signature with date; P.W.5 did not put any date on his signature. As noted earlier that it is P.W.5 who was witnessed to the Seizure List (Ext.3A) while P.Ws. 1,2 and 3, even for that matter P.W.4, although a child witness according to the prosecution version, were present at the time of recovery but none of them appears as witness to the Seizure List (Ext. 3A). It is only the evidence of P.W.5 Mungalal and P.W.8, Sadhu Besra, both of whose signatures appeared in the Seizure List (Ext.3A), P.W.8 in his evidence stated that he signed on % papers at the instance of P.W. 13 and did not know about the contents thereof. 28. The very genesis of the recovery falls short of belief in the time, manner and place as have been sought to be established by the prosecution case. It is curious to note that while the items-blood-stained earth etc., were seized under a Seizure List (Ext. 2A) almost contemporaneously; Ext. 3A was effected much afterwards. There is no explanation in this regard. Ext. 2A-Seizure List in respect of bloodstained earth etc. etc. It is curious to note that while the items-blood-stained earth etc., were seized under a Seizure List (Ext. 2A) almost contemporaneously; Ext. 3A was effected much afterwards. There is no explanation in this regard. Ext. 2A-Seizure List in respect of bloodstained earth etc. etc. shows a time of seizure as 00.05 hours of 22.8.95 whereas, the Seizure List of the spade (Ext. 3A) shows the time as 01.15 hours of 22.8.95. Although the delay may be of one hour 10 minutes but the evidence of P.W.5 shows that after confession the appellant brought out the spade from cow-shed and thereafter P.W.13 prepared the Inquest Report which was also signed by him and other seizure Vide Ext. 2A was made and on the following day P.W.13 seized the spade (Mat. Ext.1). The question of recovery of Mat. Ext. 1, surprisingly enough was not attested by P.Ws.1, 2 and 3 although they were very much proximate to the point of time thereof. It is also to be noted from the evidence of P.W.3 who brought the spade before the Daroga Babu that he himself brought the spade. There hangs a cloud over such recovery. 29. Before we embark further on an analysis of the first circumstance with which we are presently engrossed with, it is necessary to state the basic logistics of the said seizure which falls formally under section 27 of the said Act. Section 27 of the said Act is an exception to the Rule of Evidence cautioned in sections 25 and 26. In. other words, just as confession of a Police Officer and confession while in custody of Police the accused cannot be proved against him, the provisions of section 27 of the said Act stands apart in marked departure from the said proceeding provisions. For the purpose of attracting the Mischief Rule of section 27 of the said Act it has to be proved that the information must be such as has caused the discovery of the fact and such information must relate distinctly to the fact discovered and so much of such information whether it amounts to a confession or not as relates distinctly to the fact thereby discovered may be proved. In other words, to fall under the canopy of section 27 of the said Act there has to be a discovery. In other words, to fall under the canopy of section 27 of the said Act there has to be a discovery. The discovery must be of such fact which has been disposed to and that the accused must be in Police Custody when such information is given. While there cannot be any clam our that the appellant was in the company of P.W.13 and would be deemed to be in custody, the other aspect with regard to the statement and actual question of discovery detains us. The manner in which the contents of Ext. 3A have been prepared falls short of the said provision of the said Act drafted by Sir James Stephen more than a century ago which is considered to be as one of the finest pieces of legislative craftsmanship and has withstood the test of judicial scrutiny barring some amendments to suit the exigencies of time but the infrastructure of the Original Act of Sir Stephen having remained intact. So much of the statement of the appellant which leads to the discovery of the fact deposed to by her and related to the crime, notwithstanding whether it is, confessional or otherwise, it is admissible and has to be read as a rider of the preceding provisions of section 26 of the said Act. 30. That the confessional embargo on statements of the accused before the Police will not apply, stands partially suspended when the Court has to deal with the aspect of section 27 of the said Act where it has to be concerned with the information given by the accused which has led to the discovery being the direct outcome of such information and the portion of the said information given as is distinctly connected with the said recovery is admissible against the accused while such factual discovery should be inter-related to perpetration of some crime. 31. If we find that the above is the actual logiam then we find that the mechanics of Ext. 3A stands totally out of tune with the provisions of section 27 of the said Act. 32. There is no such statement which falls in line with the legislative intent of section 27 of the said Act. Law is well-settled that a statement which is sought to be made admissible under section 27 of the said Act, it must be construed very strictly and with utmost exactitude. 32. There is no such statement which falls in line with the legislative intent of section 27 of the said Act. Law is well-settled that a statement which is sought to be made admissible under section 27 of the said Act, it must be construed very strictly and with utmost exactitude. The slight variation in the language of the statement may substantially change its meaning and merit. Although a verbatim reproduction of the words used by the accused may not be possible in the recovery Memo or in the deposition of the witnesses of such recovery, however, it is the Golden Rule which Sir Stephen even in the peak of the Colonial Era envisaged was that precision was of utmost importance in the interpretation of the statement unless such words used by the accused seeking to convey the fact of discovery, we are afraid, such statement cannot form the requirements of section 27 of the said Act. 33. A plain reading of Ext. 3A hopelessly betrays the dream of Sir Stephen. The relevant portion of the purported statement in Ext. 3A recorded in vernacular shows that the said spade was brought out from the cow-shed by appellant Fulan Debi @ Pankhi @ Dulhan and the said article was taken into custody. The contents of Ext. 3A is an apology for the purpose of section 27 of the said Act. 34. By the said logic the decision of State of Himachal Pradesh vs. Jeet Singh (supra) in our humble view is quite distinguishable and has no manner of application in the fact-situation of the instant case. There is no doubt that the statement of the victim leading to the recovery which is inculpatory is admissible and can be taken into account. We most reverentially bow down to the ratio of the said decision; but here as pointed out the very basis of the statement was absent. As such, the question of inculpatory nature of the same cannot arise and the decision of State of Himachal Pradesh vs. Jeet Singh (supra), in our most humble view, does not have any manner of application, and in this respect, we cannot agree with the learned Additional Public Prosecutor. As such, the question of inculpatory nature of the same cannot arise and the decision of State of Himachal Pradesh vs. Jeet Singh (supra), in our most humble view, does not have any manner of application, and in this respect, we cannot agree with the learned Additional Public Prosecutor. We are also afraid that the decision relied upon by the learned Additional Public Prosecutor in Himachal Pradesh Administration vs. Om Prakash (supra) that even though the statement of the appellant may not go under section 27 of the said Act, it can be taken into consideration by way of a conduct under section 8 of the said Act, has to be distinguished in the light what we have discussed hereinabove. 35. Now, this brings us to the second question with regard to the testimony of the child witness. In this case it has been pointed out by the learned State Defence that when P.WA was examined he was not tested with regard to his intellectual capacity and the ability to understand. As such, the learned State Defence severely criticized the veracity of the statement of the child witness who, according to him, was unsafe to rely upon. To satisfy ourselves we have also peeped into the Order No. 10 dated: 27.8.97 of the learned Trial Court and find that P.Ws. 1,2,3 and 4 were examined on the same day while P.W.5 was discharged without examination. The learned State Defence is correct that there was no order passed by the learned Trial Court recording its satisfaction with regard to the capacity of the child to depose. We agree with the learned Additional Public Prosecutor that there is no law that the evidence of a child witness has to be tested by the Court. We do agree with him. Simply because the court fails to test the capacity of the child to depose and there is no record of the court that the child understands the question put to him before such court takes the evidence that the child evidence cannot be discarded simply on that ground. We do agree with him. Simply because the court fails to test the capacity of the child to depose and there is no record of the court that the child understands the question put to him before such court takes the evidence that the child evidence cannot be discarded simply on that ground. To our mind, the paramount test of the capacity of the child to testify is the evidence of the said child itself, even if it is prudent and is desirable that the opinion of the court should be recorded with regard to the competency of the said witness; from the tenor of the evidence of the said child if it transpires that he/ she understands what he/she speaks then it is sufficient. 36. Now the question remains whether the said child evidence can be taken into account by us. It is also at the same time true that a child witness is prone to tutoring and the court should look for corroboration particularly when the evidence betrays trace of tutoring as held by the Supreme Court in Arvind Singh vs. State of Bihar, AIR 1994 SC 1068 . The Court has to carefully consider the evidence of the child and to see as to whether he/she was under the influence of any tutoring. Here, we have the evidence of a child who walked on the Earth for four years only and at the time of her deposition two more years were added to her credit. Her evidence does not stand corroborated by the other witnesses. She deposed that the appellant murdered her father and on the same date she called her father to their house in their presence. In her cross-examination she did not speak so. She stated that she did not see the appellant to commit the murder. She further stated that Thapa Kisku is her uncle and now her mother (P.W.1) married to him after the death of her father and is living as husband and wife. She stated that she was examined by the Police and she was not assaulted by the appellant but was driven out from her (appellant's) residence. P.W.13 denied in his cross-examination that P.W.4 told him the appellant came outside the room where she was weeping and drove her after threatening her. She stated that she was examined by the Police and she was not assaulted by the appellant but was driven out from her (appellant's) residence. P.W.13 denied in his cross-examination that P.W.4 told him the appellant came outside the room where she was weeping and drove her after threatening her. P.W.13 further stated that P.W.4 did not tell him that she also went to the house of the appellant with her father. P.W.1 in the F.I.R. (Ext4) gave out that having found her husband absent, she asked her elder daughter (P.W.4) about him who told her that she had seen her father going towards the house of P.W.3 at about 11-00 a.m. during her cross-examination. We find from the deposition she heard from P.W.4 with regard to the murder of her husband. In cross-examination she stated that P.W.4 told her, her husband went to the house of the appellant then corrected herself and said, P.W.4 told her that the appellant visited their house and called her husband to their house and then kept him under lock and key and that the appellant assaulted P.W.4. 37. There is a ring of infirmity bordering the evidence of P.W.4 which cannot be taken as sacrosanct being con committal with the surrounding evidence and as such we are of the view that the evidence of the said child (P.W.4) cannot be taken as 'gospel truth' for reasons as discussed hereinabove. 38. Lastly, the submission of the learned Additional Public Prosecutor with regard to the appellant being last seen together with the deceased being a circumstance covered by section 106 of the said Act does not appeal to us simply because of the fact that we have to take into account the evidence of P.W.6 in the light of surfacing incongruity which we cannot brush aside and the submission of the learned Additional Public Prosecutor that the child evidence was quite probable as she could understand the relationship between the husband and wife while describing her relationship with her mother and her uncle, cannot prove that she had a normal capacity to comprehend her surrounding circumstance. It may be that after the death of her beloved father there might have been some remorse in her mind when she sees her mother in a matrimony with her uncle. It may be that after the death of her beloved father there might have been some remorse in her mind when she sees her mother in a matrimony with her uncle. Perhaps that may have caused an indelible effect in her juvenile mind which cannot by itself suggest her degree of maturity. 39. The last circumstance with regard to the dead body having been found in the house of the appellant as discussed hereinabove we find that the gravamen of the offence is that P.W.1 while coming back from work did not find her ailing husband at home and on query it was told by P.W.4 that he was taken by the appellant to her house following which she went to her (appellant's) house and discovered the body of her husband lying there with several injuries and she along with P.W.5 went to the Police Station and lodged an F.I.R. and pursuant thereto P.W.13 visited their house and the sequence of events as narrated hereinabove followed. 40. The appellant suffers the misfortune of a step-mother (P.W.2) who admitted in her cross-examination that she "never met the accused at Islampur sub-jail during her stay there nor myself and my husband tried to release her from the jail custody. We got sufficient landed properties including other properties of our own." P.W.3, her husband, also echoed- "Phollan was in the jail custody for more than 2 months but I have not tried to get releases of her on bail. Phollan is the daughter of my 1st wife. After the death of her mother I have married P.W.2, Smt. Moti Soren who got no good-relation with Phollan (accused)". 41. There is the circumstance : P.W.13 spoke of a disclosure statement made by the appellant at the Police Station which we have pointed out in the foregoing paragraphs that the same was not proved. According to P.W. 1 which is very rightly pointed out by the learned State Defence, that from the evidence of P.W.1 it appears that she was accompanied to the Police Station along with P.W. 5. But, P.Ws.2, 3 and 5 as well as P.W.6 stated that she made statement at the place of occurrence. According to P.W. 1 which is very rightly pointed out by the learned State Defence, that from the evidence of P.W.1 it appears that she was accompanied to the Police Station along with P.W. 5. But, P.Ws.2, 3 and 5 as well as P.W.6 stated that she made statement at the place of occurrence. It would be clear that not only there was dissimilarity with regard to the place of statement; also with regard to the fact that P.Ws.2, 3 and 6 were not present at the Police Station when the said statement was made. As such, although the said statement has not been proved, the very basis of the appellant going to the Police Station at her own volition making a statement and thereafter, the recovery made, stands diluted if read in the light of the evidence of P.W.1 who does not corroborate with regard to the seizure or the disclosure statement. It is the house of P.W.3 where the step-mother (P.W.2) also resides; so does the appellant and her uterine another. The conclusive occupation of the house was not vested on the appellant. We cannot lose sight of the fact that according to P.W.3 the step-mother (P.W.2) did not have any good relation with the appellant and we also find from the evidence of P.W.2 -stepmother and her father (P.W.3) they never went to see the appellant while she was detained in Jail. 42. This situation remains unexplained by the chain of events; on the contrary, it points to some dark aspects which have remained undissolved; although motive loses mush of its significance when the evidence is direct but, in a case based on circumstantial evidence certainly motive assumes greater importance. We painfully find that there is perhaps total absence of any motive which can be attributable to the appellant for going away with Rajen Kisku the father of P.W.4. The faint suggestion that we find from the cross-examination of P.W.13 is that deceased Rajen Kisku was a kabiraj and there was enmity between the appellant and the deceased before the incident with regard to supply of raw herbal medicine. This lies totally belied by the evidence of P.W.1, his wife who deposed - "There was no previous enmity between the accused and my said husband." P.W.1 also spoke about the fact there is no good relation between P.W.2 (the step-mother) and the appellant herself. 43. This lies totally belied by the evidence of P.W.1, his wife who deposed - "There was no previous enmity between the accused and my said husband." P.W.1 also spoke about the fact there is no good relation between P.W.2 (the step-mother) and the appellant herself. 43. Much have been said with regard to the conduct of the appellant in leading to the discovery of the dead body and also the Mat. Ext.1 (spade) as discussed hereinabove on behalf of the prosecution. The ,learned Additional Public Prosecutor submitted that the Court cannot overlook the conduct of the appellant in connection with the confession made by her; as also the attending discovery of the dead body from the house. The said conduct is submitted was very much admissible under section 8 of the said Act. 44. We, under ordinary circumstances would have been in total agreement with the learned Additional Public Prosecutor in this regard, as the recovery of the body would have well been consistent with the conduct of the appellant who had made statements immediately after the crime was unearthed. That is the legal position. We obviously accept the same. But a snag persists. If the said snag would not have been there we could have very well had no hesitation in accepting the submission of the learned Additional Public Prosecutor in this regard. However, as indicated earlier the very plank of the prosecution case centres around the appearance of the appellant before P.W.13 who was on his way to the place of occurrence being entrusted with the investigation where the appellant confessed with regard to the commission of the crime and concealment of the weapon of offence and further assurance that she will lead to the recovery of the same. First of all, this statement is inadmissible in evidence as the same was made to the Police Officer in course of an investigation, secondly, if we look beyond we find there was a recorded statement of the appellant which was mysteriously, as pointed out earlier, not placed before us and thirdly, both P.W.1 and P.W.5 who went to the Police Station to lodge the F.I.R (Ext. 4) did not speak about any such purported confession but, P.Ws.1, 2,3 and 4 stated that the appellant made confession at the place of occurrence before the said witnesses. 45. The basic structure of the prosecution casein this regard stands shaken. 4) did not speak about any such purported confession but, P.Ws.1, 2,3 and 4 stated that the appellant made confession at the place of occurrence before the said witnesses. 45. The basic structure of the prosecution casein this regard stands shaken. We cannot be oblivious of as rightly pointed out by the learned Additional Public Prosecutor, that in connection with the commission of a crime or concealment of a property and in producing the same, the entire piece of such evidence is admissible under section 8 of the said Act as evidence of conduct. As the conduct of the accused immediately after the death of the deceased is relevant under section 8 of the said Act and the said conduct is admissible, the statement which affects or influences the said conduct is admissible. Conduct to be relevant as to be for the purpose of proving guilt of the accused and that such piece of conduct which is relevant can be held to be incriminatory, having no reasonable explanation barring the hypothesis that covers the guilt of the accused. In other words, such conduct that demolishes the presumption of the innocence can alone be considered as material conduct to link the accused with the crime, in question. 46. Even at the cost of repetition, we are afraid, we will be failing in our duty if we fail to enumerate the surrounding circumstances which persuade us to dissuade ourselves from attributing the conduct in connection with such recovery in perceiving the conduct of the appellant pertaining to such recovery. The simmering discrepancies with regard to the time and place of confession, the evidence of the child witness not being corroborated and the presence of P.W.2-the step-mother, not having good relation with the appellant as we find from the evidence of P.Ws.1 and 4; as also the absence of motive which assumes some importance in a case of circumstantial nature. The circumstances on the converse direction cannot altogether be brushed aside and if we take a sum-total of the same we do not fall in line with the argument of the ld. Additional Public Prosecutor in this regard. We are unable to apply a healing balm to the recovery by virtue of section 8 of the said Act. We are sorry. 47. These are the entire gamut of circumstances on which the conviction has been based. Additional Public Prosecutor in this regard. We are unable to apply a healing balm to the recovery by virtue of section 8 of the said Act. We are sorry. 47. These are the entire gamut of circumstances on which the conviction has been based. We are afraid, the same is not fool-proof. 48. The cloud, which we noticed hanging above, is dark, no doubt, by virtue of the backdrop of the incident which is equally darker but, before it rains we in the thunder-bolt can see some discerning circumstances which tend to make an effect on the unimpeachable nature of the chain of circumstances. 49. Very recently in Sudama Pandey and Ors. vs. State of Bihar, (2002) 1 SCC 679 , quoting with approval the decision of Tanviben Pankaj Kumar Divetia vs. State of Gujarat, (1997) 7 SCC 156 , the Supreme Court held: "............ the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes, unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by this Court that there is a long mental distance between 'may be true' and 'must be true' and the same divides conjectures from sure conclusions." 50. As such, we are of the view that the prosecution case against the appellant is not fool-proof and there are gaping holes in the prosecution case through which an ill-wind blows which does not augur well for the prosecution and in the result we are of the view that the prosecution has not been able to bring home its case in a manner which is fully convincing and conclusive full proof in nature and the appellant has to be given a benefit of the doubt. 51. Accordingly, the conviction and sentence passed by the learned Additional Sessions Judge, Islampur, Uttar Dinajpur in Sessions Trial No. 18 of 1997 on 23.02.1998 against the appellant is set aside and Appeal is allowed. 52. She be released from custody forthwith. 51. Accordingly, the conviction and sentence passed by the learned Additional Sessions Judge, Islampur, Uttar Dinajpur in Sessions Trial No. 18 of 1997 on 23.02.1998 against the appellant is set aside and Appeal is allowed. 52. She be released from custody forthwith. Drawing a link between what we have said in the prologue by way of a epiloge we only with to say and appeal to the Registry that the appeals of such type should be put into the Cause List with utmost expedition so that henceforth we may not have to answer our conscience-can we restore the lost years behind the prison? 53. Appeal accordingly allowed. The appellant is directed to be released forthwith since this is a Jail Appeal. Let the Inspector General of Prisons be informed by the Regisry immediately for onward communication to the appellant through the Superintendent of the Jail where the appellant is currently lodged. Arunava Barua, J.: I agree Appeal allowed.