ARUN KUMAR BHATTACHARYA, J. ( 1 ) THE hearing stems from twin appeals preferred against the judgment and order of conviction and sentence passed by the ld. Sessions Judge, Howrah in Sessions Trial Case No. II (10)87 on 30. 01. 1999. ( 2 ) A thumbnail sketch of the prosecution case is that on 22. 06. 1997 in the evening the defacto complainant after witnessing a video show in the house of balaram Mal of the locality returned to house with her daughter Sumita Santra who works in a rope factory. At night while the said Sumita was taking meal, on being informed by her uncle Sukumar @ Habu that Raju Khamaru, with whom she had a love affair, was calling her, she on stopping of taking meal went away with Raju being accompanied by accused Simon, Chandi and Bablu which was noticed by the complainant's sister Sasthi Santra. She did not return house even after 10. 00 p. m. On 23. 06. 1997 the defacto complainant's near relatives searched for her from the morning. At about 9. 30 a. m. on being informed by a few local persons viz Sukumar Santra, Bhutta Santra, Prabir santra and Nemai Santra that the deadbody of her daughter was floating in the pond at Dangar Math, the defacto complainant went there, found the dead-body of Sumita floating in the water-hyacinth and after coming back she informed the matter to the police through a Panchayat member Sailen Mondal. Accused Raju threatened to marry Sumita without delay when the complainant told that she was too young, for which Raju's friends Simon, Bablu and Chandi threatened to kill Sumita if she was not given in marriage. So, Raju and his said friends killed her and threw her deadbody in the pond. Hence, all the four accused persons viz Raju Khamaru, Bablu Pramanick, Chandi Charan Das and srimanta Dhara were charged under sections 302/34, 201/34 and 376 IPC. ( 3 ) THE defence case, as suggested to P. Ws. and as contended by the accused persons during their examination under section 313 Cr. PC. , is that no such incident took place. The victim Sumita @ Buri had a love affair with Bhola and laltu. ( 3 ) THE defence case, as suggested to P. Ws. and as contended by the accused persons during their examination under section 313 Cr. PC. , is that no such incident took place. The victim Sumita @ Buri had a love affair with Bhola and laltu. Neither accused Raju had any talk with Buri nor he called her away on that night to Dongaghata Field nor other three accused persons accompanied them nor they committed murder of Sumita @ Buri and threw her deadbody in the pond. They have been falsely implicated in this case. ( 4 ) 27 witnesses were examined on behalf of the prosecution, while none was examined on behalf of the defence, and after considering the facts, circumstances and materials on record, the Id. Court below found all the four accused persons guilty under sections. 302/34, 201/34 and 376 IPC, convicted them thereunder and sentenced them to suffer imprisonment for life and to pay fine of Rs. 1. 000/- each i. d. to R. I. for two years each, R. I. for 7 years each and to pay fine of Rs. 500/ each i. d. to R. I. for one year each and R. I. for 10 years each and to pay fine of Rs. 10,000/- i. d. to R. I. for two years each respectively. ( 5 ) BEING aggrieved by, and dissatisfied, with the said order of conviction and sentence, Raju Khamaru and Bablu Pramanick, Chandi Charan Das and srimanta Dhara have preferred the above two appeals. ( 6 ) IT now requires to be considered is whether the Id. Court below was justified in passing the above order of conviction and sentence. ( 7 ) THE present case rests on circumstantial evidence, the circumstance being the victim last seen together with the accused persons. ( 8 ) BEFORE a person can be convicted on the strength of circumstantial evidence, the circumstances in question must be satisfactorily established and the proved circumstances must bring home the offence to the accused beyond all reasonable doubt. If these circumstances can be explained by any reasonable hypothesis, then the accused must have the benefit of the hypothesis, AIR 1980 sc 1168 , AIR 1981 SC 34 etc. If these circumstances can be explained by any reasonable hypothesis, then the accused must have the benefit of the hypothesis, AIR 1980 sc 1168 , AIR 1981 SC 34 etc. When a case rests entirely on circumstantial evidence, such evidence must satisfy the following tests: (1) the circumstances from which an inference of guilt is to be drawn must be cogently and firmly established and not 'may be established', (2) the circumstances should be of a conclusive nature and definite tendency unerringly pointing towards the guilt of the accused and the facts so established should be consistent not only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty but they should exclude every possible hypothesis except the one to be proved, and (3)there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused, AIR 1984 SC 1622 , AIR 1977 SC 1116 etc. Ordinarily the fact that accused and deceased were last found together and failure of accused to explain disappearance is a circumstance pointing to murder by accused, but this fact alone is not enough to find guilt, AIR 1979 SC 1620 ; 1982 0 Crlj 1010 . In other words, the fact that accused and the deceased were found together does not clinch the issue. Bearing in mind this aspect, the present appeals are to be considered. ( 9 ) OUT of the above witnesses, P. Ws. 1 to 8, P. W. 12, P. W. 25 (Autopsy surgeon) and P. W. 27 (I. O.) are vital, others being formal. ( 10 ) THE ld. Counsel for the appellants assailed the impugned order of conviction and sentence contending that though P. Ws. 2 and 3 claimed to be the witnesses in respect of the last seen together, their evidence is inconsistent and as such in the absence of any convincing material to show that accused raju called away the victim Sumita @ Buri being accompanied by other three accused persons, the prosecution cannot be said to have brought home the charge against them beyond all reasonable doubts and as such they are entitled to be acquitted. Mr. Mr. Safiullah, ld. Public Prosecutor, in his usual fairness submitted that the materials on record do not justify in holding the accused persons guilty beyond all reasonable doubts. ( 11 ) ACCORDING to the evidence of P. W. 1 (defacto complainant), on 7th Ashar, sunday, one year back after witnessing a video show in their locality in the evening her eldest -daughter Sumita @ Buri who works in a rope factory, came back to house at about 10. 00 p. m. and took meal at about 10. 30 p. m. After she finished her meal, on being informed by P. W. 2 Sukumar @ Habu (cousin brother of complainant's husband) that she was being called by one Raju, Buri went out and started talking with Raju, but she did not come back, for which she (P. W. 1) along with Sukumar had been to the house of Raju in search of her but raju was not available till 12. 00/00. 30 hrs. at night. They also unsuccessfully searched for her in the houses of accused Srimanta, Bablu and Chandi. In the next morning they started vigorous search for her with the help of neighbours and the local boys during the course of search informed her about recovery of buri inside the pond amidst water-hyacinth. She went to local Panchayat (P. W. 6) for giving information and while she was narrating the incident she became senseless, for which she was taken to her house. After regaining sense she came to learn that her daughter was dead. She reported the matter to police who recorded the same (Ext. 12/2 ). The above evidence appears to be quite inconsistent not only with the FIR but also with the evidence of other witnesses. As per FIR, on 22. 06. 1997 P. W. I along with her daughter came back after witnessing a video show in the evening and at night on being informed by P. W. 2 that Raju was calling her, Sumita on stopping her meal went away with Raju being accompanied by other three accused persons which was noticed by her sister Sasthi (P. W. 3) and she did not come back till 10. 00 p. m. and that in the next morning at about 9. 00 p. m. and that in the next morning at about 9. 30 a. m. on being informed by Sukumar (P. W. 2), Prabir (P. W. 5), Nemai (P. W. 7) and Bhutta (P. W. 8) that the deadbody of her daughter was floating in the pond of Donga Field, she went there and found the dead-body of her daughter floating in the midst of water-hyacinth followed by her coming back and informing the police through Panchayat member Sailen Mondal (P. W. 6 ). There is no whisper of her searching the houses of Raju and other three accused persons on that night or her becoming senseless at the house of p. W. 6. P. W. 2 after finishing his marketing while came back to house around 8. 00 p. m. , Buri asked for two rupees from him and as he had no change he took her to a shop where she took ghugni and muri and went towards video parlour. After cautioning her not to stay there till late at night he went towards bus road. After coming back to house and taking supper when he went outside for easing himself at about 10. 00 p. m. he found Raju standing in front of their house. He went towards Raju and chastised him as to why he was standing there while the latter requested him to inform Buri to see him as he has certain talks with her. He went inside the house and informed that Raju was standing on the road followed by her going away with Raju towards the field. Sasthi (P. W. 3) and Binu (not examined) also followed them. Other three accused persons were a few yards ahead of them. They did not suspect anything and as such he and Sasthi returned to their house. After taking supper he went to bed. How many times he took supper on that night is not clear since earlier he told, as discussed above, that after supper he went outside for easing himself at about 10. 00 p. m. when he found Raju and had a talk with him. Nevertheless, it is his further evidence that about 11/11. After taking supper he went to bed. How many times he took supper on that night is not clear since earlier he told, as discussed above, that after supper he went outside for easing himself at about 10. 00 p. m. when he found Raju and had a talk with him. Nevertheless, it is his further evidence that about 11/11. 30 p. m. he was awakened from sleep and he along with Panchi (P. W. 1), Sasthi (P. W. 3) and Mono (P. W. 4) went towards video parlour, field and the houses of accused persons and unsuccessfully searched for Buri and returned to house at about 2/2. 30 a. m. In the next morning, during the course of search near Dongapara they found the deadbody of Buri lying inside the jhil amidst water-hyacinth and on being informed by one of them P. W. 1 arrived there with some neighbours and fainted which is contradicted by P. W. 1 whose specific evidence is that on receipt of information regarding recovery of Buri she straightaway went to Panchayat member (P. W. 6) and at the time of narrating the incident she became senseless. This again is contradicted by P. W. 6 who deposed that in the morning of 23. 06. 1997 P. W. 1 went to her and reported about missing of her daughter since last night followed by her going there again after half an hour or 40 minutes to inform him on weeping regarding dropping of her daughter in the jhil by the four accused persons after killing her, and there is no whisper of her becoming senseless there. Though the above evidence of P. W. 2 regarding search for Buri in the morning and recovery of her deadbody of water-hyacinth in the jhil at Donga math is supported by P. W. 5, P. W. 7 and P. W. 8 who were in the team for searching, that when they had been to Dharma Mandir, they found accused Chandi, srimanta and Bablu sitting there and on query they reported that they had not seen Buri nor they had been to the video parlour and they had a feast at that place on the last night and when they started towards Math, i. e. video parlour, they noticed those three accused persons taking liquor sitting in a place near the field, as deposed by P. W. 2, does not find place in the testimony of any of them and so P. W. 2 appears to have embroidered a story to give a credible look to his evidence. There is no evidence on the part of P. W. 4 who got the information of death of Buri on the following morning at about 10/10. 30 a. m. when her deadbody was placed on a van, that he accompanied P. Ws. 1 to 3 on the night of alleged incident in search of Buri. The story of searching Buri by P. W. 2 on that night is belied by P. W. 3 (who resides in the same house with P. W. 1) whose specific evidence is that Habu was in the house on that night and he did not accompany them for searching Buri. It is her evidence that after witnessing the first video show and coming back to house Buri took her supper followed by washing her hands at about 9. 00 p. m. when P. W. 2 told that she was being called by Raju. Buri then and there went outside and started talking with Raju. She asked her to come back and Buri replied that she would come back after sometime but did not ultimately come back and without listening to her words she along with Raju and other three accused persons went towards Dongaghata more. Buri then and there went outside and started talking with Raju. She asked her to come back and Buri replied that she would come back after sometime but did not ultimately come back and without listening to her words she along with Raju and other three accused persons went towards Dongaghata more. As Buri did not come back she went outside but did not find her there for which she along with her Baudi Arati, elder sister Panchi (P. W. 1) and Mono (P. W. 4) went out in search of her which is inconsistent with the evidence of p. W. 1 as also P. W. 4 since P. W. 4, as discussed earlier, did not claim to accompany any person on that night in search of Buri and as per evidence of p. W. 1, she along with P. W. 2 went in search of her daughter. ( 12 ) A glance at the above will reveal that the evidence of P. Ws. 1 to 3 relating to seeing the victim with the accused persons are contradictory to each other inasmuch as if the evidence of P. W. 1 is taken into account, the victim after witnessing the first video show and coming back to house completed her supper at about 10. 30 p. m. when she was called by accused Raju, as reported by P. W. 2. There is no such evidence on her part that she herself found Buri to talk with either accused Raju or any other accused or to go away with them. The said evidence of coming back of the victim to house at about 10. 00 p. m. at least nullifies the uncorroborated testimony of P W. 2 regarding his seeing the victim on the road around 8. 00 p. m. and on her asking of Rs. 21- from him to offer her muri and ghugni from a shop followed by her going towards video parlour. On similar ground, the story of P. W. 2 to come out of his house after supper for easing himself at about 10. 00 p. m. , to see accused Raju standing in front of their house and Buri on being informed by him to come out and to go away with raju towards the field does not prima facie stand. 00 p. m. , to see accused Raju standing in front of their house and Buri on being informed by him to come out and to go away with raju towards the field does not prima facie stand. If the evidence of P. W. 3 is taken into consideration, Buri on being informed by P. W. 2 that Raju was calling her, she went out at about 9. 00 p. m. , started talking with him and went away with all the four accused persons towards Dongaghata More which is contrary to the above evidence of P. W. 1 whose specific evidence is that Buri came back after witnessing evening video show at about 10. 00 p. m. and that of P. W. 2 that other three accused persons were a few yards ahead of them. In other words, if Buri came back at about 10. 00 p. m. , there was no scope on the part of p. W. 3 to see her to go away with the accused persons at about 9. 00 p. m. Though p. W. 2 deposed that P. W. 3 and Binu followed them, there is no such evidence on the part of P. W. 3 who nowhere spoke even about the presence of P. W. 2 nearby and accordingly there was no occasion on the part of P. W. 2 to see the victim to go away with Raju and three other accused persons. It is the evidence of P. W. 3 that as Buri did not come back, she went outside but did not find her there. If she found Buri to go away with the accused persons towards the dongaghata More ignoring her words, the question of her coming back obviously did not arise. Therefore, the above very evidence leads to suggest that so long she was inside the house and as such she had no occasion to see the victim to go away with the accused persons and only when despite her asking Buri did not come back, she went outside but did not find her there. It is the evidence of p. W. 1 that a night show is run at the same video parlour after 10. 00 p. m. and her daughter left the house on that night after taking supper to witness the said night show which indicates her knowledge in this regard. It is the evidence of p. W. 1 that a night show is run at the same video parlour after 10. 00 p. m. and her daughter left the house on that night after taking supper to witness the said night show which indicates her knowledge in this regard. P. W. 12 woke up from sleep on being called by her mother-in-law who informed her about missing of Buri, went outside on the road near the house of Achinta Dhara and found with the help of torch-light four accused persons to come towards her in drunken condition followed by her going back to house on being afraid. The time of her witnessing the alleged incident has not been disclosed. Neither the said torchlight was seized nor produced before the Court. She claims to have disclosed the said incident to her husband Mono (P. W. 4), but there is no such evidence on the part of P. W. 4 who, as stated earlier, got the information of death of Buri on the following date at about 10/10. 30 a. m. when her deadbody was placed on a van. There is no indication in the evidence of P. W. 4 that he was out of his house on that night. So, if the mother-in-law informed her about missing of buri on that night, it would not be too much to expect that it would have been communicated by her to her husband P. W. 4 immediately and then, if necessary, to go out of the house being accompanied by P. W. 4 at the dead of night. That apart, there being no earlier statement on her behalf that on being awakened by her mother-in-law who informed her about missing of Buri she went out onthe road, as is evident from the evidence of I. O. (P. W. 27), the above evidence may be excluded from consideration due to contradiction on account of omission on vital point. So, no reliance can be placed upon the above uncorroborated testimony of P. W. 12. Therefore, considering the above contradictory evidence, it cannot be said that the prosecution has been able to prove beyond reasonable doubt that the victim was seen together with the accused persons. ( 13 ) P. W. 25 on holding P. M. examination over the deadbody of the victim on 24. 06. 1997 at about 2. Therefore, considering the above contradictory evidence, it cannot be said that the prosecution has been able to prove beyond reasonable doubt that the victim was seen together with the accused persons. ( 13 ) P. W. 25 on holding P. M. examination over the deadbody of the victim on 24. 06. 1997 at about 2. 30 p. m. found vaginal vault ruptured, hymen torn, sharp lacerated injury over the lower fourchette and sharp urethral haematoma, multiple nail marks all over the body, nail mark Nos. 5 to 7 in and around the mouth opening, finger marks one on left and 4 on the right of the neck, tracheal ring compressed, bleeding under the skin, thyroid bone intact but haematoma seen in the thyroid cartilage, asphyxia in both the lungs, tongue injury and lip injury. The death, in his opinion, was due to severe shock and respiratory arrest by rape and throttling simultaneously which is ante-mortem and homicidal in nature. Victim was throttled to death simultaneously after committing rape. Seeing the nature of injury and health and weight of the victim, it is his clear opinion that gang rape was committed upon her. The FSL Report (Ext. 5) reveals that items A (containing jangia with dirty gray stains), B (containing underwear with gray stains), C (containing jangia with gray stains) and D (containing lungia with gray stains) do not bear any semen and that neither spermatozoon nor gonococcus could be detected in items A1 (containing cotton wool with urethral smears of Srimanta Dhara), B1 (containing cotton wool with urethral swab of raju Khamaru), C1 (containing urethral swab of Chandi Charan Das) and D1 (containing urethral swab of Bablu Pramanick) and X (containing vaginal swab of Sumita Santra @ Buri) which thus belies the story of rape upon the victim. ( 14 ) IN a case where only circumstantial evidence is available, at the outset one normally starts looking for the motive and opportunity to commit the crime. ( 14 ) IN a case where only circumstantial evidence is available, at the outset one normally starts looking for the motive and opportunity to commit the crime. If the evidence shows the accused had a strong enough motive and had the opportunity of committing the crime and the established circumstances of the record considered along with the explanation, if any, of the accused exclude the reasonable possibility of anyone else being the real culprit then the chain of evidence can be considered to be so complete as to show that within all probability the crime must have been committed by the accused and he may safely be convicted on circumstantial evidence, AIR 1972 SC 54 . Here, according to the fir, the victim had a love affair with Raju who threatened to marry her without delay, but as the defacto complainant told that she is too young, other three accused persons threatened to kill her daughter if she was not given in marriage. The evidence of P. W. 1 in this regard is a bit different. She stated that on the night of previous Kalipuja when she noticed her daughter Buri to talk with raju she took her to her house by holding her hairs for which Raju disclosed that if her daughter is not given in marriage with him he would kill her daughter, but she never agreed to give her marriage with Raju considering her young age. Though the above evidence is buttressed by P. W. 4 who came to learn about it from P. W. 1, in the absence of any evidence on behalf of P. W. I that she informed as above, the said evidence of P. W. 4 being hearsay cannot be taken into consideration. P. W. 2 deposed that during the last Kalipuja P. W. 1 on seeing Buri talking with the four accused persons took her to house by holding the tuft of her hairs, for which they became annoyed with P. W. 1 and threatened to kill Buri if they get certain opportunity which is contradictory to the above testimony of P. W. 1. Moreover, there being no earlier statement on behalf of either P. W. 1 or P. W. 2 in this regard, as is evinced from the cross-examination of I. O. (P. W. 27), the said testimony of P. W. 1 and P. W. 2 can be excluded from consideration, due to contradiction on account of omission. Furthermore, if there was really a love affair between accused Raju and the victim and P. W. 1 opposed to give her marriage with Raju on account of her young age, it would be beyond the normal conduct of a person to allow his friends to enjoy her or to threaten to kill her for that reason. So, no motive for the crime having been made out, the prosecution story of involvement of the accused persons does not stand. ( 15 ) P. W. 27 (I. O.) arrested all the four accused persons on 25. 06. 1997, took them in police custody from the Court and pursuant to their statements and on being shown by them recovered the wearing apparel i. e. pant of the victim and a chain used by the victim from Dongaghata Math. For applicability of section 27 of the Evidence Act, two pre-requisite conditions are (1) the information must be such as has caused discovery of the fact and (2) the information must relate distinctly to the fact discovered. So much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved, AIR 1983 SC 446 . The statement made by accused to police officer which are or may be provable under section 27 of the Evidence Act should be clearly and carefully recorded in the first person that is to say, as far as possible in the actual words of the accused and they should not be paraphrased, 46 Calwn 180. It is only proper for prosecution if it wants to adduce evidence under section 27 of the Evidence Act to prove by production of written record only so much of the statement as led to the discovery of the articles. The oral statement of witnesses without corroboration by any written record of any such statement contemporaneously made, even if admissible, is unsafe to rely on because of the very nature of the evidence, AIR 1968 Cal 38 . The oral statement of witnesses without corroboration by any written record of any such statement contemporaneously made, even if admissible, is unsafe to rely on because of the very nature of the evidence, AIR 1968 Cal 38 . In the present case, there is no evidence on the part of P. W. 27 that the statement of the accused persons were recorded and so without such a statement when the pant and chain of the victim are said to have been recovered, factum of recovery being barred under section 27 of the Evidence Act cannot be relied upon as admissible, AIR 1979 SC 1262 . Moreover, in consequence of information when a fact is discovered, it may give rise to two inferences viz he must have concealed it or he knew that somebody had concealed it. What inference is to be drawn depends upon the facts and circumstances of the case. If the information only leads to the inference of the knowledge of the maker that the article was there without any involvement on his part in the crime, it may not by itself is sufficient to fix criminality and the remaining links shall have to be supplied by the prosecution. In considering the reasonableness in any of the hypothesis the Court must have regard to the situation of the place where the article is placed. So, even if there was any statement preceding the discovery, the evidentiary value could not be regarded as sufficient to fix the responsibility of the authorship of the crime upon the accused. ( 16 ) LAST but not the least, it is the evidence of P. W. 27 that on receipt of information over telephone from one Sailen Mondal (P. W. 6), a Panchayat member of that locality that since last night a girl by name Buri is missing and her deadbody could be found inside a jhil which was then partly covered with water-hyacinth, he recorded a GD, passed on the message to O. C. of the P. S. and being accompanied by O. C. and other available force rushed to the spot lifted the deadbody of the victim from a jhil and held inquest over the dead-body in presence of witnesses and thereafter O. C. (P. W. 26) recorded the statement (Ext. 12/2) of the mother of the victim (P. W. 1 ). 12/2) of the mother of the victim (P. W. 1 ). If that be so, the aforesaid FIR is hit by section 162 Cr. PC as it has followed after starting of investigation. In that case, the said GD should be treated as FIR. It is pertinent to mention in this connection that section 154 Cr. PC is not a mandatory but directory provision. FIR is not a condition to setting in motion of criminal investigation, AIR 1973 SC 1 , nor it is indispensable requisite in a crime and as such the lack of FIR would not vitiate trial, AIR 1962 Cal. 641 . ( 17 ) IN the premises, in the light of the above discussion, the prosecution cannot be held to have proved the charges against the accused persons beyond all reasonable doubts, and accordingly all the four accused persons are found not guilty. As such both the appeals be allowed on contest. The judgment and order of conviction and sentence passed against all the four accused persons by the ld. Court below be set aside. The accused persons be acquitted of the charges, and they be set at liberty at once. They be released forthwith from custody if not required in connection with any other case. Alamats, if any, be disposed of after the period of appeal is over. ( 18 ) LET a copy of this judgment along with the L. C. R. be sent down at once to the ld. Court below with a direction for communication of the order to the authorities of the Correctional Home concerned for release of the said accused persons at once. Appeals allowed on contest.