ALOK KUMAR BASU, J. ( 1 ) BEFORE the learned Additional Sessions Judge, 1st court, Suri in the district of Birbhum, Bani israil, Ekramul Haque, Suratunnessa Bibi and Zinatunnessa Bibi faced the. trial under sections 302/34 and 201/34 of the IPC and, that apart, Bani Israil alone faced the trial under Section 364 of the IPC in connection with Sessions Trial No. 1 (8) of 1982 corresponding to Sessions Case No. 72 of 1981. ( 2 ) AFTER conclusion of trial, Bani Israil was convicted under Sections 302/34, 364 and 201/34 of the IPC while Suratunnessa bibi and Zinnatunnessa Bibi were convicted under Sections 302/34 and 201/34 of IPC. Ekramul Haque was, however, acquitted of all the charges. ( 3 ) BANI Israil along with Suratunnessa bibi and Zinnatunnessa Bibi were sentenced to suffer rigorous imprisonment for life under Section 302/34 of the IPC and no separate sentence was recorded against Bani israil, Suratunnessa Bibi and Zinnatunnessa Bibi under Section 201 /34 or against bani Israil under Section 364 of the IPC, ( 4 ) AFTER passing of the conviction order and sentence in the year 1984, the present appeal was filed by Bani Israil, suratunnessa Bibi and Zinnatunnessa Bibi and during pendency of the appeal, suratunnessa Bibi has expired and now bani Israil and Zinnatunnessa Bibi are before us in connection with the present appeal, ( 5 ) THE prosecution ease in brief was that one Sok Elahi Sukhlal had a shop at Suri down for dealing In gamcha, cloth etc, and said Sukhlal used to visit different places like Jangipur. Samserpur. Dhulian etc, in connection with his business, ( 6 ) ON 13th May, 1973 said Sukhlal left suri for Jangipur along with cash of Rs. 10,000/- and a wrist watch along with one abdul Bani and appellant Bani Israil. Sukhlal, however, did not come back to his residence at Suri and for this reason his wife hossalnara Begum lodged a missing diary on 20th May, 1973 at Suri P. S. ( 7 ) ON 2nd June, 1973 Abdul Bari was found in Suri town, but, he fled away being chased by the relatives of Sukhlal and thereafter Samsergung P. S. In the district of murshidabad searched the house of appellant Bani Israil on 5th June, 1973 and cash of Rs. 2090/ -. some clothes and a wrist- watch allegedly belonging to Sukhlal were recovered. 2090/ -. some clothes and a wrist- watch allegedly belonging to Sukhlal were recovered. ( 8 ) ON 6th June, 1973 Hossainara begum, wife of Sukhlal lodged a formal FIR alleging kidnapping of her husband Sukhlal by Abdul Ban and Bani Israil and also apprehending murder of Sukhlal by those persons. ( 9 ) ON 6-8-1974 police arrested Abdul bari and on his showing, a spot near the house of appellant Bani Israil was excavated and therefrom some bones and a human skeleton were recovered along with a portion of terrylene gan. The bones and scalp of human skeleton thus recovered on 6th august. 1974 were subsequently sent for medico-legal report and thereafter for forensic report and on superimposition of a photo of Sukhlal it was ultimately concluded that the bones and skeleton were that of Sukhlal husband of Hossainara Begum who was found missing on and from 13th May, 1973. ( 10 ) THE CID officer of Suri took up investigation of this case and after collecting of evidence, a charge sheet was ultimately submitted against the present appellants along with others under Section 302/201 / 34 and also under Section 364 of the IPC. ( 11 ) THE learned Trial Judge, on perusal of the statement of 32 witnesses which included wife of deceased, some relatives of deceased, some witnesses to the seizure of bones and skeleton, Dr. J. B. Mukherjee, one amina Begum and the investigating officer and also after considering several documents produced by prosecution during trial and on hearing both prosecution and the accused persons, found Bani Israil guilty of the offences under Sections 364, 302/34 and also under Section 201 /34 of the IPC and the female appellant was found guilty under Sections 302/34 and 201/34 of the ipc. ( 12 ) THE learned Judge relying on the statement of P. W. 1. P. W. 6, P. W. 11 and P. W. 12 supported the prosecution case that appellant Bani Israil was found for the last time in the company of deceased and when from the deposition of P. W. 26, P. W. 30. ( 12 ) THE learned Judge relying on the statement of P. W. 1. P. W. 6, P. W. 11 and P. W. 12 supported the prosecution case that appellant Bani Israil was found for the last time in the company of deceased and when from the deposition of P. W. 26, P. W. 30. P. W. 31 and P. W. 32 it was established beyond all reasonable doubt that the skeleton of sukhlal was found from a place near the house of appellant Bani Israil and the female appellant and when from the evidence of P. W. 30 Amina Begum it was further established that Bani Israil and the female appellant had definite role behind the disappearance of Sukhlal, the learned Judge came to the conclusion that Bani Israil was guilty of the offence under 364 of the IPC as well as under Section 302/201/34 of the IPC and the female appellant was guilty of the offence under Section 302/201 /34 of the IPC. ( 13 ) APPEARING for both the appellants, mr. Joymala Bagchi after analyzing the prosecution evidence both oral and documentary submits that admittedly in this particular case the entire prosecution case depends on pure circumstantial evidences alone and the learned Trial Judge, accepting such circumstantial evidences, found no difficulty in recording the order of conviction against the present appellants. ( 14 ) MR. Bagchi contends that when we shall rely on and accept circumstantial evidence, we must be sure that the circumstances placed by prosecution in vindicating its stand must give a complete chain wherefrom only conclusion can be drawn pointing out the involvement of the accused persons and if there are lacunae in the chain of circumstances, the entire benefit must go to the accused persons. ( 15 ) MR. Bagchi contends that deceased sok Elahi @ Sukhlal was alive till 13th May, 1973 and according to prosecution allegation as focused through FIR of P. W. 11 hossainara Begum, on 13th May, 1973 deceased Sukhlal left his house in the company of Bani Israil along with other (Abdul bari) and even if we accept prosecution evidence in this regard on its face value, we do not get any ingredient to attract the provision of Section 364 against appellant Bani israil. ( 16 ) MR. ( 16 ) MR. Bagchi contends that in the first missing diary of P. W. 11 which was lodged on 28th May, 1973 after a fortnight from alleged disappearance of deceased, there was no whisper about Bani Israil and after lodging of the formal FIR although name of bani Israil came on the surface along with another person, prosecution evidence, during trial, was too weak to accept the allegation that Bani Israil was present with sukhlal on 13th May, 1973. ( 17 ) MR. Bagchi contends that in a charge under Section 364 of the IPC the basic requirement for prosecution would be to establish beyond all reasonable doubt the 'last seen together' episode and this episode would get recognition in the eye of law when the time gap between the 'last seen together' and the death of the victim would be minimum. Mr. Bagchi submits that in this particular case there is practically no evidence when Sukhlal was killed and for that reason even if it is accepted for the sake of argument that Sukhlal had left his residence in the company of Bani Israil. the 'last seen together' theory cannot help the prosecution case as sought to be built against Bani israil under Section 364 of the IPC and for all these reasons, the learned Judge, merely acting on conjecture and surmise, held Bani israil guilty under Section 364 of the IPC without finding any iota of legal evidence to substantiate this charge against Bani Israil. ( 18 ) MR. Bagchi contends that Bani Israil and the female appellant were found guilty both under Section 302/34 of the IPC and also under Section 201/34 of the IPC for the simple reason that deceased Sukhlal was allegedly murdered by Bani Israil and the female appellant along with others at the residence of Bani Israil and thereafter his body was kept concealed behind the pit of a privy. Mr. Bagchi contends that to look at the prosecution allegation in this regard the first requirement would be to establish the fact that the bones and skeleton allegedly recovered from the alleged pit of the privy were that of deceased Sukhlal. ( 19 ) MR. Bagchi contends that in this particular case the identification of the bones and skeleton raised serious doubt as it appears from the prosecution evidence itself. Mr. ( 19 ) MR. Bagchi contends that in this particular case the identification of the bones and skeleton raised serious doubt as it appears from the prosecution evidence itself. Mr. Bagchi contends that admittedly the bones and skeleton were recovered on 7th august, 1974 when Sukhlal was reportedly missing from 13 May, 1973 and according to prosecution from a piece of terrylene ganji allegedly attached to the lower side of the skeleton and from some hair of the skeleton p. W. 1 identified the dead body. Mr. Bagchi contends that regarding the terryline ganji, there is serious contradiction amongst the p. W. 26 the investigating officer. P. W. 11 wife of the deceased and P. W. 1 and naturally, after a gap of such a long period how far it is acceptable that from a disputed piece of ganji, relatives would identify the deceased from some bones and skeleton. Mr. Bagchi in this regard has seriously questioned the superimposition of a photo as done by the forensic expert to prove the identity of the deceased. ( 20 ) MR. Bagchi next contends that the entire story of recovery of bones and skeleton as put forward by the investigating officer P. W. 26 does not inspire any confidence at all since the entire recovery part was shrouded in mystery since no help of Executive Magistrate was sought by the investigating officer for holding inquest and for identification of the place wherefrom such recovery was made and Mr. Bagchi submits that under the provision of Section 174 of the IPC, in such a peculiar situation, service of an Executive Magistrate was mandatory. ( 21 ) MR. Bagchi contends that after alleged recovery and identity of skeleton of sukhlal, the next attempt of the prosecution was to show that the dead body was kept concealed in a pit of a privy belonging to Bani Israil and female appellant and in this regard, the attempt of prosecution was proved to be futile when we consider the statement of prosecution witnesses who were present at the time of alleged recovery of bones and skeleton. ( 22 ) MR. Bagchi contends that from the statement of prosecution witnesses it is very much clear that the recovery of bones were made not from the land belonging to Bani israil but from a nearby grave yard and the. O. . ( 22 ) MR. Bagchi contends that from the statement of prosecution witnesses it is very much clear that the recovery of bones were made not from the land belonging to Bani israil but from a nearby grave yard and the. O. . to keep the fact of recovery in cloud, even did not prepare any sketch map of the place wherefrom such recovery was made. ( 23 ) MR. Bagchi contends that to implicate Bani Israil, the further attempt of the prosecution was to show that some articles belonging to the deceased Sukhlal were recovered from the house of appellant Bani israil, but, when we consider the exhibits of the prosecution along with relevant prosecution witnesses we find to our utter surprise that no seizure list was produced in Court in connection with such recovery and this part of the prosecution case was not acceptable at all in the eye of law. ( 24 ) MR. Bagchi next contends that according to the prosecution and according to the learned Trial Court the most damaging evidence against the appellants is that of the statement of P. W. 30 Amina Begum which gets corroboration from her earlier statement recorded under Section 164 of the Cr. P. C. Mr. Bagchi submits that if we examine cross- examination of P. W. 30 we cannot have any doubt in our mind to come to the conclusion that P. W. 30 was a tutored witness and he was procured by the CID officer only to implicate the appellants and even from the statement of investigating officer P. W. 28 we find that Amina Begum was tutored to give the statement before the learned Magistrate under Section 164 of the Cr. P. C. and similarly before the Trial court and for the absence of any other cogent and convincing evidence produced by the prosecution, no man of ordinary prudence would accept the evidence of P. W. 30 to convict any person under Section 302 of the 1pc. ( 25 ) MR. P. C. and similarly before the Trial court and for the absence of any other cogent and convincing evidence produced by the prosecution, no man of ordinary prudence would accept the evidence of P. W. 30 to convict any person under Section 302 of the 1pc. ( 25 ) MR. Bagchi contends that from the above discussions one thing is very much clear that prosecution miserably failed to establish the main part of the prosecution story that Sukhlal was murdered at the house of Bani Israil and after murder, his body was allegedly kept concealed in the pit of the privy of the house and prosecution also miserably failed to prove that appellant bani Israil was last seen in the company of the deceased Sukhlal and in that background, neither Bani Israil can be convicted under Section 364 of the IPC nor under Section 302/201/34 of the IPC and the female appellant also cannot be held guilty under section 302/201/34 of the IPC. ( 26 ) MR. Mallick appearing for the State respondent has supported the order of conviction and sentence recorded against the present appellants. Mr. Mallick in his brief submission has drawn our attention to the evidence of P. W. 1, P. W. 5, P. W. 6. P. W. 11, p. W. 12, P. W. 26, P. W. 30, P. W. 31 and P. W. 32 to support the order of the learned Trial judge. Mr. Mallick contends that it was never disputed that deceased Sok Elahi @ sukhlal left his house on 13 May, 1973 and he took Rs. 10,000/- with him along with a wristwatch used both by himself and his wife p. W. 11. Mr. Mallick contends that P. W. 11 wife of deceased Sukhlal deposed that on 13 May, 1973 the present appellant was one of the person who was with her husband and this fact was also disclosed in the formal FIR of P. W. 11 which was Icdged on 6th june, 1973, Mr. Mallick contends that statement of P. W. 11 that appellant Bani Isiail was seen for the last time with deceased sukhlal during his lifetime has been corroborated by P. W. 1, P. W. 5 and P. W. 6. ( 27 ) MR. Mallick contends that statement of P. W. 11 that appellant Bani Isiail was seen for the last time with deceased sukhlal during his lifetime has been corroborated by P. W. 1, P. W. 5 and P. W. 6. ( 27 ) MR. Mallick contends that it is true that the value of 'last seen together' theory gels enhanced when we get the exact date of death of the deceased and when we get that the time gap between the 'last seen together and the date of death was marginal and in this case, unfortunately, there is no firm date regarding the death of the deceased, but, that itself cannot demolish the 'last seen together' theory since P. W. 11 being the wife of the deceased supported this part of the prosecution case. ( 28 ) MR. Mallick contends that certainly there are certain lacunas regarding identification of dead body of Sukhlal and. that apart, the. O. failed to discharge his duty by not requisitioning the service of an Executive Magistrate at. the time of recovery of the bones and skeleton. Mr. Mallick contends that when P. W. Dr. J. B. Mukherjee supported the prosecution case regarding identity of the dead body of Sukhlal and when that identification got further corroboration from forensic expert through superimposition of the photo of the deceased, prosecution case cannot be disbelieved. ( 29 ) MR. Mallick contends that although recovery of the articles belonging to the deceased from the house of appellant Bani israil was not satisfactorily proved for the lacuna on the part of the investigation, the statement of P. W. 30 Amina Begum is of much significance and if we accept the statement of Amina Begum, we have no doubt in mind to hold conclusively that Bani Israil along with the female appellant and others were responsible for the murder of Sukhlal and for concealing his dead body in a pit under their privy. ( 30 ) WE have carefully examined the entire prosecution evidence both oral and documentary and we have also considered oral submissions of both Mr. Bagchi and Mr. Mallick along with the written note of argument prepared by Mr. Bagch. ( 30 ) WE have carefully examined the entire prosecution evidence both oral and documentary and we have also considered oral submissions of both Mr. Bagchi and Mr. Mallick along with the written note of argument prepared by Mr. Bagch. ( 31 ) IN this particular case certain features of the prosecution case are worth mentioning and those features are :- deceased left his house on 13th May, 1973; the missing report was lodged on 28th may, 1973 and that report was never exhibited and for that reason, we do not get any idea whether name of appellant Bani Israil was mentioned in the said missing report; on 6th June, 1973 formal FIR was lodged by P. W. 11 Hossainara Begum, wife of the deceased and there, lor the first time, name of the appellant Bani Israil was mentioned; the bones and skeleton were recovered on 6th August, 1974 and after a gap of almost six months those bones and skeleton were forwarded for medico legal test. ( 32 ) FROM the trend of prosecution evidence and also from the judgment of the learned Trial Court we find that according to prosecution and as supported by the learned Trial Court the following are the incriminating evidence against appellant Bani israil :- bani Israil was found with deceased sukhlal on 13th May, 1973 during the lifetime of the deceased; certain articles namely cloth pieces, cash money and a wristwatch were recovered from the house of Bani Israil and at that time father of Bani Israil was also alive and he was also made an accused; bones and skeleton of a human being were recovered from a place near the house of Bani Israil and subsequently through medico legal test and forensic expert report it was established that the bones and skeleton were that of deceased Sukhlal; p. W. 30 Amina Begum deposed about arrival of deceased Sukhlal at the house of bani Israil and subsequently the deceased disappeared. ( 33 ) FROM the trend of prosecution evidence and also from the judgment of the learned Trial Court we find that the incriminating evidence against the female appellant was that of the statement of Amina begum and also evidence regarding presence of the female appellant at the house of Bani israil. ( 33 ) FROM the trend of prosecution evidence and also from the judgment of the learned Trial Court we find that the incriminating evidence against the female appellant was that of the statement of Amina begum and also evidence regarding presence of the female appellant at the house of Bani israil. ( 34 ) IN a case of murder, the first point that requires consideration is the recovery of the dead body and the report of the doctor who conducted post-mortem examination to ascertain the cause of death. In this particular case after disappearance of the deceased from his house in the month of may, 1973 the recovery of some bones and a skeleton were made on 6th August, 1974 and such recovery was made after digging earth as per indication given by one of the co-accused who did not face the trial as he expired before beginning of the trial. ( 35 ) IN our considered view, having regard to the peculiar feature involved with the fact of recovery of the bones and skeleton, it was the duty of the investigating officer to adhere strictly to the mandatory provision of law as contained in Section 174 of the Cr. P. C. to give the prosecution case sufficient credibility in view of its peculiar nature. ( 36 ) WE find from the evidence on record specially with reference to the evidence of the investigating officer P. W. 28 that he never requisitioned the. service of the Executive magistrate and. that apart, we find from evidence that the witnesses who were examined to support the fact of recovery did rot support the prosecution case during trial. We also find from record that no satisfactory contemporaneous document was prepared to show that the place of recovery was adjacent to the house of appellant Bani israil. ( 37 ) NOW, looking at the evidence of Dr. J. B. Mukherjee and the evidence of the investigating officer with special reference to the report of the forensic expert, we are in strong doubt whether the bones and skeleton were actually that of deceased Sukhlal and so far this part oi the prosecution case is concerned, we are of the considered view that investigating officer acted on conjecture and surmise and the learned Judge also unfortunately acted on conjecture and surmise. ( 38 ) EVEN if we accept the report of Dr. ( 38 ) EVEN if we accept the report of Dr. J. B. Mukherjee and the opinion of the forensic expert that the bones and skeleton of deceased Sukhlal were recovered, we must get satisfactory proof that Sukhlal was alive when he visited the house of Bani Israil for the last time during his lifetime and after scanning the entire prosecution evidence neither we get a confirm date when deceased sukhlal visited the house of Bani Israil nor we get any evidence save and except the testimony of P. W. 30 Amina Begum that Sukhlal ever visited the house of Bani Israil after 13th May, 1973. ( 39 ) FROM the judgment of the learned trial Court as also from the trend of prosecution evidence we find that much importance was attached to the testimony of P. W. 30 Amina Begum, but, on examination of the deposition of Arnina Begum as a whole particularly, with reference to her cross-examination, we are bound to conclude that. O. P. W. 28 procured and pressurized Amina begun to give false evidence and naturally, no Court of law can place reliance on the testimony of such a tutored witness to hold a man guilty under Section 302 of the IPC. ( 40 ) WE have earlier stated that one of the incriminating circumstances against bani Israil was that of recovery of certain articles belonging to the deceased and we find from record that no seizure in this regard was satisfactorily proved and at the same time. we find sufficient discrepancy in the testimony of the shop owner Mr. Jain and the recovery allegedly made and, that apart, the was no satisfactory identification of the recovered articles. ( 41 ) WE have stated earlier that Bani Israil was also charged under Section 364 of the 1pc and to substantiate this charge prosecution relied on the evidence of P. W. 11, p. W. 1, P. W. 5 and P. W. 6. We find that in the first missing diary which was the earliest information there was no mentioning of the name of Bani Israil and there are serious contradictions in the statement of prosecution witnesses regarding the 'last seen together' theory. We find that in the first missing diary which was the earliest information there was no mentioning of the name of Bani Israil and there are serious contradictions in the statement of prosecution witnesses regarding the 'last seen together' theory. ( 42 ) IT is settled position of law that a man can be asked to explain about the disappearance of another man with whom he was last seen before the disappearance of the man concerned and the time gap between 'last seen together' and disappearance of the man concerned is of much importance. In this particular case even if we accept the prosecution case that on 13th May, 1973 Bani Israil was found in the company of deceased Sukhlal, when we do not get any satisfactory evidence as to what was the actual date of murder of deceased Sukhlal, we cannot lend any legal support to the prosecution proposition of last seen together' as regards the appellant Bani Israil and naturally, we are in strong doubt as to whether prosecution succeeded in substantiating the charge under Section 364 of the IPC againstbani Israil. ( 43 ) MR. Bagchi was very much vocal regarding evidentiary value of the statement of P. W. 30 Amina Begum both through his oral submission and also through his written note and we have carefully considered this aspect and having regard to the deposition of P. W. 30, we have no doubt in mind that Mr. Bagchi was legally correct in this regard and having regard to the cross-examination of P. W. 30. we are sure that no importance and value can be given to the statement of this type of tutored witness while considering a case under Section 302 of the IPC. ( 44 ) THUS, after considering submissions of both Mr. Bagchi and Mr. Bagchi was legally correct in this regard and having regard to the cross-examination of P. W. 30. we are sure that no importance and value can be given to the statement of this type of tutored witness while considering a case under Section 302 of the IPC. ( 44 ) THUS, after considering submissions of both Mr. Bagchi and Mr. Mallick and after considering the entire prosecution evidence we find that there is no satisfactory evidence regarding the prosecution allegation that Bani Israil was last seen in the company of the deceased on 13th May, 1973, there is no evidence worth the name to support the prosecution proposition of last seen together' as regards appellant Bani Israil, there is no satisfactory evidence regarding recovery of the articles allegedly belonging to the deceased from the possession of Bani israil, there is no satisfactory evidence regarding recovery of the bones and human skeleton from the land over which Bani Israil and his family members had exclusive possession, there is no satisfactory evidence that the bones and skeleton were that of deceased and finally, evidence of P. W. 30 amina Begum cannot be accepted in the eye of law ( 45 ) WITH the above observations regarding prosecution evidence, we have no option but to hold that the learned Trial Judge totally misdirected himself in the matter of appreciation of prosecution evidence and on the basis of such misdirection, he reached a wrong conclusion regarding the part played by the appellants and having regard to the prosecution evidence, we are of the firm view that prosecution totally failed to establish the charges agatnst the present appellants and for this reason we find merit in the present appeal. ( 46 ) WE, therefore, allow the appeal of the present appellants and we set aside the order of conviction and sentence recorded against both of them by the learned Trial judge and hold that they are not guilty of the offences under Section 302/201/34 of the IPC and appellant Bani Israil is not guilty of the offence under Section 364 of the IPC and they are acquitted of all the charges. ( 47 ) WE find from record that both the appellants were released on bail and we now discharge them from their'respective bail bond with immediate effect. Appeal allowed.