BASU, J. ( 1 ) APPELLANT Serajul Sk. from jail has preferred this appeal challenging his conviction under Section 302/34 and also the sentence thereunder which has been life imprisonment and also to pay a fine of rs. 5,000/-, in default to suffer rigorous imprisonment for two years. ( 2 ) THE learned Sessions Judge Birbhum, while disposing of Sessions trial No. 2 of June 2000 corresponding to Sessions Case Mo. 27 of 2000 convicted the appellant under Section 302 of the I. P. C. and passed the above sentence. ( 3 ) THE prosecution case was that on 9th December, 1998 the appellant disclosing his identity as one Gopal Dutta came to Nagen Baba's Ashram at Tarapith along with one Bandana Dutta, Jahanara Bibi and deceased ansar and booked room Nos. 9 and 10 at the first floor of the said ashram for three days from 9th December to 11th December, 1998. On 11th december, 1998 manager of the ashram enquired about boarders of room nos. 9 and 10 and at that point of time, the manager noticed both the rooms closed and pushing the door of the room No. 9, he found that a part of a body of a man under the bed of the cot and soon thereafter he informed the local police camp at Tarapith and in presence of police and other people, the lock of the room was broken and a dead body of a male person was noticed in the room. ( 4 ) THE police thereafter obtained a written complaint from the manager of the ashram wherefrom it was available that the present appellant along with two female and one male booked room Nos. 9 and 10 and thereafter appellant along with the female companions had left the ashram without informing anyone. The FIR maker suspected the appellant and his companions behind the murder of the deceased. ( 5 ) ON the receipt of the written complaint from the manager of the ashram police started a specific case under Section 302/34 of the I. P. C. Police took photograph of the dead body, held inquest over the dead body, sent the dead body for post mortem examination and also seized different articles found in the room including one razor. ( 6 ) AFTER collecting of the post mortem report and on examination of several witnesses including wife and mother of the deceased whose identity was known to be that of one Sk. Ansar, police finally submitted chargesheet against the present appellant and his two female companions under section 302/34 of the I. P. C. and also under Section 302/120b of the I. P. C. for their trial. ( 7 ) AFTER commitment of the case, the learned Sessions Judge, Birbhum framed charges both under Section 302/34 of the I. P. C. and under Section 302/120b of the I. P. C. against the appellant and against the two female companions namely Bandana Dutta and Jahanara Bibi. ( 8 ) DURING trial, the prosecution examined as many as thirteen witnesses including the FIR maker, one photographer, the doctor holding the post mortem examination, the learned Magistrate who recorded the statement of accused Bandana Dutta under Section 164 CRPC and also conducted T. I. parade in respect of appellant and other two accused persons and also the learned Magistrate who recorded the statement of one manowara Bibi stated to be wife of the deceased Ansar. ( 9 ) THE learned Sessions Judge after examination of the prosecution evidence and considering submissions of both the prosecution and the defence, found the present appellant guilty of the offence under Section 302 of the I. P. C. as from evidence the learned Sessions Judge was of the view that the appellant was solely responsible for murder of the deceased the learned Sessions Judge, however, did not find sufficient evidence either against Bandana Dutta or accused Jahanara Bibi and for this reason both of them were acquitted of the charges framed against them. ( 10 ) THE learned Sessions Judge after convicting the appellant under section 302 of the I. P. C. sentenced him to suffer rigorous imprisonment for life and also to pay a fine of Rs. 5,000/-, in default, to suffer rigorous imprisonment two years. The appellant has preferred this appeal challenging both the order of conviction and sentence. ( 11 ) MR. Chatterjee. 5,000/-, in default, to suffer rigorous imprisonment two years. The appellant has preferred this appeal challenging both the order of conviction and sentence. ( 11 ) MR. Chatterjee. appearing for the appellant submits before us that on examination of the FIR, the inquest report and also the post mortem examination report it would appear clearly that prosecution miserably failed to satisfy the Court about the exact time of alleged murder of victim inside room No. 9 of the ashram. The learned Advocate submits that on examination of the FIR it will appear that FIR maker disclosed a time regarding discovery of the dead body and also about the approximate time of murder which fully contradicts with the time of alleged murder noticed in the inquest report and also in the report of the doctor who conducted post mortem examination over the dead body. Mr. Chatterjee contends that from the statement of the doctor along with his report there is enough ground to hold that the death of the person on which the present case was started probably took placed some ten or twelve days before the actual date of occurrence as alleged by the prosecution in the FIR and that being the case, the entire prosecution story appears to be totally concocted and fabricated only to implicate the present appellant. ( 12 ) MR. Chatterjee contends that in this particular case it has not at all been proved beyond reasonable doubt that the dead body noticed in the room of the ashram and the post mortem examination held on that dead body was that of Ansar who has been stated to be the deceased and who has been stated to be the victim of this particular case, because, no evidence worth the name was produced by the prosecution to prove identity of the deceased during trial. Mr. Chatterjee contends that photograph of the deceased which was produced before the Court during trial cannot be dmitted in evidence simply, because, no negative of those photographs were produced before the Court and this has been clearly indicated in the evidence of the photographer. Mr. Mr. Chatterjee contends that photograph of the deceased which was produced before the Court during trial cannot be dmitted in evidence simply, because, no negative of those photographs were produced before the Court and this has been clearly indicated in the evidence of the photographer. Mr. Chatterjee contends that although investigating officer produced a lady disclosing her identity as that of wife of the deceased and that lady was examined by the learned Judicial magistrate, but, from the statement of that lady which was exhibited during trial it appears that no photograph of the deceased was shown to the lady while recording her statement that the photograph belonged to her husband ansar as claimed by the investigating officer and furthermore, that lady was not examined during trial before the learned Sessions Judge. Mr. Chatterjee submits that when photographs were not admissible in evidence and when no relative of the deceased came forward to identify the dead body of the deceased, the prosecution story that the dead body was that of ansar who was killed by the appellant as alleged cannot be accepted at all. ( 13 ) MR. Chatterjee next contends that admittedly in this case there was no eye-witness to implicate the appellant in the alleged murder of the deceased and, in fact, from the trend of evidence of the prosecution side it was the admittedly position that prosecution relied on circumstantial evidence alone to bring home the charge of murder against the appellant and in such situation prosecution was required to place a complete chain of circumstances before the Court from which prosecution can claim to have proved the guilt of the accused unerringly. ( 14 ) MR. Chatterjee contends that prosecution tried to prove that appellant disclosing his identity as Gopal Dutta booked two rooms in the ashram and to prove this point, prosecution has relied on the testimony of p. W. 2 and of one receipt and one hotel register. ( 15 ) MR. ( 14 ) MR. Chatterjee contends that prosecution tried to prove that appellant disclosing his identity as Gopal Dutta booked two rooms in the ashram and to prove this point, prosecution has relied on the testimony of p. W. 2 and of one receipt and one hotel register. ( 15 ) MR. Chatterjee submits that from the receipt which has been marked Exhibit 3 and also from the hotel register, it cannot be shown that appellant disclosed himself as Gopal Dutta, because the handwriting appearing on the receipt was not compared with that of the genuine handwriting of the appellant and in the hotel register no signature of the appellant was recorded and hence, the story of the prosecution that appellant disclosing his identity as Gopal Dutta booked two rooms has not been proved at all. ( 16 ) MR. Chatterjee submits that prosecution has examined P. W. 4 to prove the fact that appellant along with the deceased and two lady companions booked two rooms in the ashram, but, on examination of the statement of P. W. 4 it appears that he was a chance witness and his statement was totally false. Mr. Chatterjee submits that at the time of inquest this witness did not state before the officer preparing the inquest report that he knew the identity of the deceased. ( 17 ) MR. Chatterjee submits that since Manowara Bibi, the so-called wife of the deceased was not examined during trial, there is no evidentiary value of her statement recorded under Section 164 of the CRPC and naturally, prosecution cannot rely on such statement to prove the point that appellant and the deceased were seen for the last time together before murder of the deceased. ( 18 ) MR. Chatterjee submits that from the judgment of the learned Trial court it would appear that much reliance has been placed on the so-called confessional statement of Bandana Dutta to implicate the appellant, but on examination of the statement of Bandana Dutta it is found that Bandana dutta never confessed her guilt and as such, the statement of Bandana dutta cannot be considered to be a confessional statement and hence, no reliance can be placed on the statement of Bandana Dutta to implicate the present appellant under Section 30 of the Indian Evidence Act. ( 19 ) MR. ( 19 ) MR. Chatterjee thus, after analysing the entire evidence on record submits that prosecution miserably failed to prove beyond all shadow of doubt the identity of the dead body alleged to have been recovered from room No. 9, prosecution failed to show satisfactorily what was the exact time of murder, prosecution failed miserably to show that appellant impersonated himself and booked room Nos. 9 and 10 along with the deceased and two female companions, prosecution failed to prove that deceased actually came with the appellant to the ashram at Tarapith and that apart, prosecution are debarred in law from taking benefit of the statement of Bandana Dutta which was not a confessional statement. Mr. Chatterjee submits that prosecution miserably failed to build up the chain of circumstances against the appellant and hence, the learned Judge was not justified in recording his order of conviction against appellant relying on such evidence of the prosecution. Mr. Chatterjee in order to substantiate all his points stated above has relied on the decision in the case of Ravinder parkash and Anr. v. State of Haryana reported in 2003 C Cr LR (SC) page 4 and also in the case of Pawan Kumar v. State of Haryana reported in 2003 c Cr LR (SC) page 874. ( 20 ) MR. Safiullah, the learned P. P. representing the State/respondent, on the other hand, submits before us with reference to the evidence on record that prosecution produced sufficient evidence before the Trial Court to build up a chain of circumstances which taken together proved unerringly the guilt of the present appellant in commission of murder of Ansar. ( 21 ) THE learned P. P. contends that in the FIR it was specifically stated that the present appellant impersonating his name booked two rooms in the ashram and he came along with the deceased Ansar and two female namely Bandana Dutta and Jahanara Bibi. The FIR also disclosed the circumstances under which the dead body of Ansar was noticed in one of the rooms booked by the appellant in his own name. It is available from FIR that appellant along with his two female companions had left the ashram stealthily after commission of murder of Anwar and the conduct of the appellant as disclosed in the FIR itself at the earliest opportunity disclosed his involvement in the commission of the murder. It is available from FIR that appellant along with his two female companions had left the ashram stealthily after commission of murder of Anwar and the conduct of the appellant as disclosed in the FIR itself at the earliest opportunity disclosed his involvement in the commission of the murder. ( 22 ) THE learned P. P. submits that although no negative of the photograph was produced, but, under Section 294 of the CRPC the photographs are admissible in evidence and those photographs along with the statement of P. W. 4 were sufficient to prove that the dead body was that of Ansar who accompanied the appellant and his party. ( 23 ) THE learned P. P. contends that from the post mortem report along with the seizure of the weapon found in the room it is amply proved that the said weapon was used for commission of the murder of the victim and it is also proved that appellant was in physical control of both the rooms. ( 24 ) THE learned P. P. contends that Bandana Dutta in her statement given under Section 164 of the CRPC disclosed the involvement of the appellant in that commission of the murder and that statement of Bandana dutta can certainly be used in pointing out the involvement of the appellant behind the commission of the murder. ( 24 ) THE learned P. P. contends that Bandana Dutta in her statement given under Section 164 of the CRPC disclosed the involvement of the appellant in that commission of the murder and that statement of Bandana dutta can certainly be used in pointing out the involvement of the appellant behind the commission of the murder. ( 25 ) THE learned P. P. contends that both P. W. 2 and P. W. 4 during their test identification properly identified the appellant along with his female companions and both those witnesses also identified the appellant and two other accused persons during trial as those persons who came on 9th december, 1998 at the ashram along with the deceased and also stated that those persons were present at the ashram during that period, ( 26 ) THE learned P. P. contends that from the statement of Manowara, the wife of Ansar it is also available that victim had left his house along with appellant and that was the last occasion the victim was found in the company of the appellant and it is also found from the statement of Manowara that victim developed a love affair with Bandana Dutta with whom the appellant had also close affinity and from this statement of Manowara two points on behalf of the prosecution were clearly established, first, the victim left his house for the last time along with appellant and there was clear motive of the appellant for commission of murder of the victim on love affair. ( 27 ) THUS, the learned P. P. contends that it has been proved from the chain of circumstances through the evidence of prosecution that victim left his house with appellant, appellant came to the ashram on 9th December, along with victim and two female companions including Bandana Dutta and booked rooms in the ashram along with victim, appellant along with his two female companions had left the ashram in a most suspicions circumstances and only thereafter the dead body of victim was found in a room which was under physical control of the appellant and finally, there was clear motive on the part of the appellant to commit murder of the victim and hence, all the points taken together clearly indicated that it was the appellant who was responsible for the murder of the victim Ansar in the room of the ashram. ( 28 ) WE have perused the evidence on record carefully and we have also considered submissions of both the learned Advocate for the appellant as also the learned P. P. on behalf of the State-Respondent. ( 29 ) THERE is no denying of the fact that in this case prosecution side fully relied on the circumstantial evidence to bring home the charge of murder against the appellant. ( 30 ) FROM the evidence on record we find that it has been the persistent effort of the prosecution to show that appellant impersonated his name and he booked two rooms in the ashram in the name of Gopal Dutta and at that point of time he came along with victim and two female companions. The prosecution to prove this point relied on the evidence of P. W. 2 and one receipt marked Exhibit 3 and the hotel register. ( 31 ) FROM the receipt Exhibit 3 we find that name of Gopal Dutta has been signed, but, we have no evidence to show that the present appellant actually signed his name as Gopal Dutta, because, I. O. did not make any attempt to obtain specimen signature of appellant and to get it verified and compared with the signature appearing on the receipt through any expert and that being the position, we cannot accept the prosecution case that it was appellant who signed his name as Gopal Dutta. There is no signature of the said Gopal Dutta on the hotel register and as such the register has practically got no evidentiary value. ( 32 ) THUS, save and except the statement of P. W. 2, we do not have any other satisfactory evidence to support the prosecution case that on 9th december, 1998 appellant disclosing his identity as Gopal Dutta came to the ashram along with the victim and two female companions. ( 33 ) THE statement of P. W. 2 does not inspire much confidence when we examine the statement of P. W. 4 as produced by the prosecution. ( 33 ) THE statement of P. W. 2 does not inspire much confidence when we examine the statement of P. W. 4 as produced by the prosecution. ( 34 ) THE witness No. 4 disclosing himself as a cook of a nearby hotel without mentioning the name of the said hotel appears on the scene as a saviour for the prosecution in the sense that he identified the dead body as that of Ansar and he also deposed that he found appellant Ansar and two other female companions at the ashram on 9th December, 1998. ( 35 ) WE find from evidence that this witness although claiming himself to be an eye-witness during inquest, did not disclose before the officer holding the inquest that he knew the identity of the dead body and in that background in our considered view witness No. 4 was not at all a reliable witness, rather, he was tutored to help the prosecution and to fill up the lacuna in the prosecution case and in that background, we are not inclined to place any reliance either on the statement of P. W. 2 or P. W. 4 regarding the prosecution story that appellant actually came on 9th December, 1998 in the ashram and booked two rooms along with the deceased. ( 36 ) THE most important lacuna in the prosecution case appears to be that relating to identity of the dead body. Manowara Bibi who was stated to be the wife of the victim did not come forward to depose in Court during trial. A statement of Manowara Bibi was recorded by the learned Magistrate as produced by the I. O. , but, there is no evidence on record to show who identified that lady as Manowara Bibi and as wife of the victim Ansar. Manowara Bibi in her statement did not identify the photograph of the deceased as that of her own husband and during statement of Manowara bibi she was not shown the photograph taken from the place of occurrence. ( 37 ) AS Manowara Bibi was not produced before Court during trial, in our considered view her statement cannot be considered in support of the prosecution case. ( 37 ) AS Manowara Bibi was not produced before Court during trial, in our considered view her statement cannot be considered in support of the prosecution case. ( 38 ) IF we do not place any reliance on the statement of Manowara bibi who was not produced during trial, we are to hold that there was no identification of the photograph and there was no evidence to show that the dead body was that of Ansar as claimed and that Ansar for the last time was found in the company of the appellant. ( 39 ) WE have examined the statement of Bandana Dutta given under section 164 of the CRPC and which has been considered by the learned judge as that of a confessional statement. ( 40 ) FROM the relevant provisions of the Indian Evidence Act relating to confessional statement it is well established that a statement of an accused shall be considered to be a confession only when the maker of the statement shall confess in clear and unambiguous term about his or her role in the commission of the offence. ( 41 ) BANDANA Dutta in her statement did not utter a single word confessing her guilt, what she has stated is all about commission of the offence by the appellant alone and hence, the statement of Bandana Dutta cannot be considered as a confessional statement and such being the position of fact, under the provision of Section 30 of the Evidence Act, no part of the statement of Bandana Dutta can be used against the appellant and the learned Sessions Judge totally erred in law in placing his reliance on the statement of Bandana Dutta while sustaining his order of conviction against the appellant. ( 42 ) THUS, from the entire evidence on record we really find no satisfactory evidence about the actual time of murder and about the actual time when the dead body was recovered. From the evidence on record we do not get any satisfactory explanation as to the presence of the appellant at the ashram between 9th December and 11 th December, 1998 and even we do not get any evidence that appellant actually disclosing his name as gopal Dutta had been at the ashram between 9th December and 11th december, 1998. From the evidence on record we do not get any satisfactory explanation as to the presence of the appellant at the ashram between 9th December and 11 th December, 1998 and even we do not get any evidence that appellant actually disclosing his name as gopal Dutta had been at the ashram between 9th December and 11th december, 1998. ( 43 ) FROM the evidence on record we do not get any satisfactory evidence that the dead body was that of Ansar and that Ansar actually accompanied appellant while visiting the ashram between 9th December and 11th December, 1998. ( 44 ) THUS, from the above analysis of fact and evidence on record we are inclined to hold that prosecution miserably failed to build up a chain of circumstances which taken together would unerringly prove the guilt of the appellant and such being the position, we are inclined to hold that the learned trial Judge totally failed to appreciate the evidence on record and his entire approach while appreciating the evidence has been improper and hence, the order of conviction based on such improper appreciation of evidence cannot be supported either in law or for ends of justice. ( 45 ) ACCORDINGLY we find sufficient merit in the present appeal and we allow the appeal. ( 46 ) THE appeal preferred by Sk. Serajul @ Raju @ Gopal Dutta is hereby allowed. ( 47 ) THE order of conviction and sentence passed by the learned sessions Judge, Birbhum are hereby set aside. ( 48 ) SEND a copy of this judgment at once to the Superintendent of jail/correctional Home where the appellant is detained for his immediate release from this case if he is not wanted in connection with any other case. Send a copy of this judgment along with LCR to the learned Trial court forthwith.