T. NK. Singh, J:- 1. The appellants accused namely, (1) Md. Sahjamal alias Sahjahan, (2) Md. Mazibur Rahman, (3) Md. Nausad AAli and (4) Md. Torap Ali are challenging, in the present appeal, the judgment and sentence dated 31.10.2006 passed by the learned Sessions Judge, Darrang at Mangaldai in Sessions Case No. 24(D-M) 2004 convicting them (appellant accused) under section 302/34, IPC as well as sections 201/34, IPC and sentenced them to undergo R.I for life and pay a fine of Rs. 10,000 (Rupees ten thousand) each for the offence under section 302/34, IPC and further sentenced to undergo R.I. for five years and pay a fine of Rs. 5,000 (Rupees five thousand) and in default to undergo further R.I. for six months each for the offence under section 201734, IPC and both the sentences are to run concurrently. 2. Heard Mr. J.M. Choudhury, learned senior counsel appearing for the accused appellants and Mr. K.A. Mazumdar, learned P.P., Assam appearing for the respondents. 3. The case of the prosecution is mentioned in detail in the impugned judgment and dated 31.10.2006 passed by the learned Sessions Judge, Darrang at Mangaldai. To be precised, prosecution story as unfolded during the trial, in nutshell, is recapitulated hereunder: 4. PW1, Sah Alam, lodged an ejahar on 11.7.1996 to the O.C., Mangaldai, P.S that on 2.7.1996, eight persons including the accused appellants assembled in a meeting and took away his son, Md. Jakir Hussain (deceased) through one Sana Jamal (appellant accused) and since then his son, Jakir Hussain is found untraced. On receipt of that ejahar, O.C., Mangaldai, P.S registered P.S. Case No. 149/96 under sections 302/201/34, IPC. Eight days after missing of Jakir Hussain (deceased), his dead body was found lying in a gunny bag in the water at a jute cultivation area at Village Apuria. 5. PW8, Dr. Khalekuz Zaman, conducted post mortem examination of the deceased, Jakir Hussain, and opined that the cause of death could not be ascertained as the dead body was with full formation of mature maggots all over the body with liquification of all the vital organs of the body; and, hence, a long bone was preserved for chemical analysis. FSL report of the bone gave negative test for common poisoning. FSL report of the bone gave negative test for common poisoning. In that view of the matter it was the case of prosecution that the deceased, Jakir Hussain died not due to poisoning, but he was killed by the accused appellants and four other persons whose names are mentioned in the ejahar. 6. PW12, Mafizuddin Ahmed, the Investigating Officer of the case, i.e., PS Case No. 149/96 under sections 302/201/34, IPC, after investigation of the case charge sheet was submitted to the concerned Magistrate, i.e., Judicial Magistrate, First Class, Mangaldai, Darrang. Since the offence is under section 302 which is exclusively tribal by the Court of Sessions, the concerned Magistrate, First Class, Mangaldai/Darrang under his committal order dated 4.3.2004 committed the case to the court of learned Sessions Judge, Darrang, Mangaldai. The learned Sessions Judge, Mangaldai, framed charge for the offence under sections 302/201/34, IPC against all the accused and read over to the accused appellants in a language known to them to which they pleaded not guilty and claimed for trial. 7. The prosecution, in order to bring home the charge against the accused appellants examined as many as twelve witnesses and exhibited five documents, i.e., Ext. 1-seizure memo for seizure of the gunny bag in which dead body was found, Ext.2-inquest report, Ext. S-seizure memo for seizure of the boat, Ext.4-post mortem report, and Ext-5-FSL report. 8. The trial court, after appreciation of the evidence, had come to a finding that the prosecution had proved the case of the prosecution beyond reasonable doubt that the accused appellants had murdered the deceased, Jakir Hussain vide impugned judgment dated 31.10.2006. 9. We have carefully analysed the impugned judgment and order dated 31.10.2006 passed by the learned Sessions Judge, Darrang at Mangaldai in Sessions Case No. 24 (D-M) 2004 and also the statement of PWs and exhibited documents in detail. Now the question is as to whether the learned Sessions Judge had rightly and legally come to the finding that the prosecution had proved the prosecution case beyond reasonable doubt. We are not oblivious that this court being the first appellate court has to discuss and re-appreciate the statement of PWs and the exhibited documents, more particularly, in case we cannot persuade ourselves to concur the finding of the trial. We are not oblivious that this court being the first appellate court has to discuss and re-appreciate the statement of PWs and the exhibited documents, more particularly, in case we cannot persuade ourselves to concur the finding of the trial. Regarding this point, reference may be made to the decision of the Apex Court in Ramakanta Rai v. Madan Rai and Ors., (2003) 12 SCC 395 wherein the Apex Court held that "when the appellate court concurs with the views of the trial court necessity for elaborately dealing with the various aspects may not always be necessary. But when a view contrary to that of the lower court is expressed, it is imperative that reasons there for should be clearly indicated. There is no scope for any departure from these basic requirements". 10. There is no eye witness in the present case and it appears that the prosecution tried to bring home the charge levelled against the accused appellants basing on the circumstantial evidence such as last seen together, recovery statement under section 27 of the Indian Evidence Act and also the extra-judicial Confession made by the accused appellant, Nausad Ali to PW3, Mistt. Jayeda Khatoon (mother of the deceased). 11. Before proceeding further, it would be profitable to know as per the prosecution, the part played by the different witnesses, basing on their statement, prosecution tried to prove the particular point in bringing home the charge against the accused appellants. For proving the fact that accused appellants and deceased, Jakir Hussain were last seen together when the deceased was alive, prosecution examined PW1, Md. Sah Alam (informant and father of the deceased), PW5, Md. Chand Mia (uncle of the deceased) and PW1 l, Md. Abdul Hussain, in whose tea stall at Aparia Bazar, the appellants accused and deceased alleged to have had tea. For proving extra-judicial confession alleged to have been made by the appellant accused, Nausad Ali, prosecution examined PW3, Mstt. Jayeda Khatoon (mother of the deceased) and for proving the statement alleged to have been made by appellant accused, Sahjamal leading to the discovery of the dead body of the deceased, prosecution examined PW2, Md. Abdul Rashid, PW6, Abdus Samad (who had been declared hostile) and PW9, Abdul Salam. Last Seen Together 12. PW1, Md. Jayeda Khatoon (mother of the deceased) and for proving the statement alleged to have been made by appellant accused, Sahjamal leading to the discovery of the dead body of the deceased, prosecution examined PW2, Md. Abdul Rashid, PW6, Abdus Samad (who had been declared hostile) and PW9, Abdul Salam. Last Seen Together 12. PW1, Md. Sah Alam (informant and father of the deceased) deposed that at about 2 p.m. appellant accused, Saha Jamal came to his house and called away his son (deceased) telling him that they would go to bazaar and deceased along with the appellant accused went to the bazaar. The day was Tuesday bazaar and he saw them together in the bazaar. His son did not come back after that and he became traceless. In his statement before the Police which was proved by the I.O., PW12 Mafizuddin Ahmed, PW1 stated that after purchasing fish from the market he had sent his son for keeping the fish at his home and deceased again came to the bazaar and also that at 6.30 p.m. only his son Jakir Hussain (deceased) and Sah Jamal, appellant accused had been taking tea in a tea stall. PW1 further deposed that eight days after the missing of his son they found his body cut into pieces in a gunny bag in the water at jute cultivation. From the statement of the PW1, it is not clear whether the deceased, Jakir Hussain was last, seen along with all the appellants accused or only the accused appellant Md. Sahjahan alias Md. Sahjamal and also the time gap between the point of time when the appellants accused and deceased were seen alive and when the dead body is discovered. But it appears that the time gap between the point of time when the appellants accused and deceased were alleged to have been seen last alive and when the deceased is found dead is so large. 13. PW5-Md. Chand Mia (uncle of the deceased) deposed that two days prior to the missing of the deceased, he (deceased) had a quarrel with the appellants accused because of his resistance to rowing their boat through the jute cultivation. Two days after that the appellant accused, Sah Jamal called away the deceased to the bazaar and saw them in the bazaar taking tea. The following morning his sister, PW3, Mistt. Two days after that the appellant accused, Sah Jamal called away the deceased to the bazaar and saw them in the bazaar taking tea. The following morning his sister, PW3, Mistt. Jayeda Khatoon (mother of the deceased) came to him and informed about the missing of his son. When he searched for the appellants accused he did not find them at home. 14. PW11, Md. Abdul Hussain, deposed that he had a tea stall at Aparia bazaar and in the evening of the day of occurrence, only the appellant accused, Sah Jamal and deceased had taken tea in his hotel and Sah Jamal had paid the bill for the tea and both of them gone out of his hotel. PW11, thus, only stated that only the deceased and Sah Jamal had tea in his hotel; he is not supporting the statement of PW5, Chand Mia that he saw the deceased and appellant accused were last seen together taking tea in the tea stall of PW11. PW1, Sah Alam, who is the star witness for supporting the theory of last seen together, did not state clearly that the place where or in whose tea stall at Aparia bazaar, all the appellants accused and deceased were last seen together and also whether only the Sah Jamal Ali and deceased were seen in the tea stall at Aparia bazaar and also had he sent his son (deceased) from the bazaar for keeping the fish purchased by him at their house and also whether really his son had again come to the bazaar. But what is clear is that the time gap between the alleged last seen of the deceased along with the appellant accused and when the deceased is found dead is so much that there is possibility of any person other than the appellant accused being the author of the crime. It would be difficult to positively establish that there is no possibility of other person coming in as the author of the crime in between the long gap of when the appellant accused and deceased were last seen alive and when the deceased was found dead. It would be difficult to positively establish that there is no possibility of other person coming in as the author of the crime in between the long gap of when the appellant accused and deceased were last seen alive and when the deceased was found dead. The last seen theory come into play where the time gap between the point of time when the accused and deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime became impossible. It would be difficult to positively establish that the deceased was last seen along with the accused when there is long gap and possibility of other persons coming in between exist. In the absence of any positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to the conclusion of guilt in those cases. Regarding this point, we may refer to the decisions of the Apex Court in (1) Bodhraj alias Bodha and Ors. v. State of Jammu & Kashmir, (2002) 8 SCC 45 ; (2) Sahadeban @ Sagadeban v. State represented by Inspector of Police, Chennai, (2003) 1 SCC 534 and (3) State of U.P. v. Satish, (2005) 3 SCC 114 . 15. The theory of last seen together of the prosecution in the present case should be tested in the touchstone of laws relating to the theory of last seen together laid down by the Apex Court. For convenience para 31 of the SCC in Bodhraj alias Bodha's case (supra) and para 22 of the SCC in Satish's case (supra) respectively are reproduced hereunder: "31. The last seen theory conies into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased, A1 and A2 were seen together by witnesses, i.e., PWs 14, 15 and 18, in addition to the evidence of PWs 1 and 2." "22. The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW2." On careful analysis of the statement of the PWs, more particularly, PW Nos. 1, 5 and 11 in detail, it is clear that the prosecution could not establish that the deceased was last seen with the appellants accused and also that even if the prosecution story regarding the last seen theory is accepted in the present case in toto, time gap, when the appellants accused and the deceased were last seen alive and when the dead body is recovered (i.e., eight days after missing of the deceased) is so large that there is every possibility of other person coming in as author of the crime in between. Extra-judicial Confession 16. For proving that the accused appellant, Nausad Ali made extra-judicial confession to PW3, Mistt. Extra-judicial Confession 16. For proving that the accused appellant, Nausad Ali made extra-judicial confession to PW3, Mistt. Jayeda Khatoon (mother of the deceased), PW3 herself had been examined as witness who stated that the dead body of her son was found under water near Aparia bazaar, nine days after his missing. The dead body was kept in a gunny bag fixing the same with pegs in the water and dead body was cut into pieces. She saw the bag and could recognise her son (deceased). When the Police apprehended, Nausad Ali, he admitted that he along with Majibar Rahman, appellant, Torab Ali, appellant accused and Sah Jamal, appellant accused had cut his son (deceased) into pieces and put in a gunny bag and kept the same in jute cultivation by fixing with peg. In her statement, PW3 did not state where Nausad Ali made the said extra-judicial confession and also when Nausad Ali, appellant accused was arrested by the Police and as to how, Nausad Ali made the said extra-judicial confession. The solitary statement of PW3 regarding extra-judicial confession made by Nausad Ali is not corroborated by any of the witnesses including the Investigating Officer, PW10 Abdul Jalil and PW12 Mafizuddin Ahmed. The said uncorroborated and vague statement of PW3 regarding the alleged extra-judicial confession made by appellant accused Nausad Ali is so hollow to accept that there was extra-judicial confession made by Nausad Ali. 17. No doubt, extra-judicial confession can form the basis of conviction but by way of abundant precaution, however, may look for some corroboration. Extra-judicial confession cannot, ipso facto, be termed to be tainted. Extra-judicial confession, if made voluntarily and proved, can be relied upon by the court. But the question in the present case is that whether there was really extra-judicial confession made by the appellant accused, Nausad Ali and was it voluntary and is it corroborated by any other witnesses. As discussed above, not to speak of corroboration, the alleged extra-judicial confession/statement made by the appellant accused, Nausad Ali, in the given case is really doubtful and prosecution had utterly failed to prove that the appellant accused Nausad Ali had really made the extra-judicial confession. The Apex Court in Gagan Kanojia and Anr. v. State of Punjab, (2006) 13 SCC 516 observed that "extra-judicial confession, as is well known, can form the basis of a conviction. The Apex Court in Gagan Kanojia and Anr. v. State of Punjab, (2006) 13 SCC 516 observed that "extra-judicial confession, as is well known, can form the basis of a conviction. By way of abundant caution, however, the court may look for some corroboration. Extra-judicial confession cannot ipso facto be termed to be tainted. An extra-judicial confession, if made voluntarily and proved can be relied upon by the courts. [See Sukhwant Singh v. State, (2003) 8 SCC 90 }." 18. No doubt, extra-judicial confession may or may not be weak evidence, each case should be examined on its own facts and circumstances. The Apex Court had considered and discussed the evidential value of the extra-judicial confession, its admissibility under the Indian Evidence Act in a catena of cases; and corollary of the decisions of the Apex Court are that each case is required to be examined on its own fact and extra-judicial confession made by the accused only when it was made not in inducement, threat or promise and is voluntary, is admissible under the Indian Evidence Act. The Apex Court in Sivakumar v. State by Inspector of Police, (2006) 1 SCC 714 had summed up its earlier decisions, thus: "43. In Mujeeb v. State of Kerala, (2000) 10 SCC 315 whereupon again Mr. Sampath relied, the prosecution failed to prove even the circumstances pointing out to the guilt of the appellant. 44. Extra-judicial confession may or may not be a weak evidence. Each case is required to be examined on its own fact. In Sidharth v. State of Bihar, (2005) 12 SCC 545 a Division Bench of this court held: (SCC p.560,para25) "He had also made extra-judicial confession to PW8 Arko Pratim Banerjee. The confession made by appellant Arnit Das was not under any inducement, threat or promise and is voluntary in nature. Therefore, it is perfectly admissible under the Evidence Act." 45. In Piara Singh v. State of Punjab, (1977)4 SCC 452 this court observed: (SCC p.459, para 10) "The learned Sessions Judge regarded the extra-judicial confession to be a very weak type of evidence and, therefore, refused to rely on the same. Here the learned Sessions Judge committed a clear error of law. Law does not require that the evidence of an extra-judicial confession should in all cases be corroborated. Here the learned Sessions Judge committed a clear error of law. Law does not require that the evidence of an extra-judicial confession should in all cases be corroborated. In the instant case, the extra-judicial confession was proved by an independent witness who was a responsible officer and who bore no animus against the appellants. There was hardly any justification for the Sessions Judge to disbelieve the evidence of Balbir Singh particularly when the extra-judicial confession was corroborated by the recovery of an empty from the place of occurrence." 46. Yet again in State of Rajasthan v. Raja Ram, (2003) 8 SCC180 it was stated: (SCC p. 192, para 19) "19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relief upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused; and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoke to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility." Discovery of statement under section 27 of the Indian Evidence Act. 19. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility." Discovery of statement under section 27 of the Indian Evidence Act. 19. For proving that the dead body of the deceased was recovered on the information or/on the statement made by the appellant accused, Sah Jamal, prosecution examined PW2 Md. Abdul Rashid, PW9 Abdul Salam, PW6 Abdus Samad and PW10 Abdul Jalil. PW2, Md. Abdul Rashid, simply deposed that after about eight days of missing of the deceased, his dead body was found in a gunny bag in water inside jute cultivation. Hearing about discovery of the dead body in a bag he went there with the public and found the same in a gunny bag. About twenty minutes after their arrival at the spot from where dead body was discovered, appellant accused, Md. Sahjamal came and recovered the dead body. He put his signature in the seizure memo for seizing the gunny bag and rope. He never stated that at the pointing of the appellant accused, Md. Sahjamal the dead body of the deceased was recovered and that, he (appellant accused Sahjamal) stated in his presence that he (appellant accused Sahjamal) could point out the place where the dead body of the deceased was kept concealed. 20. PW6, who had been declared hostile, simply deposed that Police seized an old boat in connection with the incident. He also denied that he had stated to the Police that appellant accused Sah Jamal had shown the place from where the dead body had been recovered. 21. PW9 simply stated that Police brought the appellant accused Sah Jamal to their village and led the Police to jute cultivation and dead body was recovered there. 22. PW7 Nuha Ali deposed that when he was cutting jute plant in the jute cultivation he smelt something foul. After a careful look he found a gunny bag and informed the matter to the men fishing nearby. Police after that took away the gunny bag which contained the dead body. 23. 22. PW7 Nuha Ali deposed that when he was cutting jute plant in the jute cultivation he smelt something foul. After a careful look he found a gunny bag and informed the matter to the men fishing nearby. Police after that took away the gunny bag which contained the dead body. 23. PW1 informant, father of the deceased also stated that eight days after missing of his son they found his dead body cut into pieces in a gunny bag in the water in jute cultivation and he could recognize the dead body to be his sons. 24. PW4 Md. Ibrahim Ali stated that on the day of recovery of the dead body, he went to Aparia, from where the dead body was recovered ahead of the Police. Dead body was found in water inside jute cultivation in the field. It was found in a gunny bag. The police held inquest over the dead body in his presence. None of the PWs stated that the appellant accused Sah Jamal made statement to the Police leading to the discovery of the dead body and also dead body was seized at his pointing. Rather from the statement of PW Nos. 1 and 7 it is clear that dead body was already discovered before the Police came to recover it. 25. The requirements to be fulfilled for utilizing the fact discovered under section 27 of the Indian Evidence Act had been discussed by the Apex Court in a catena of cases and held that the 1st condition necessary for bringing section 27 of the Indian Evidence Act into operation is the discovery of a fact, albeit, the relevant fact in consequence of the information recovered from a person accused of an offence; the 2nd condition is that discovery of such fact to be deposed to; and 3rd condition is that at the time of receipt of information the accused must be in the Police custody. The last but most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovery is admissible. The Apex Court had summed up its early decisions as to the requirement of the fact for bringing under section 27 of the Indian Evidence Act and the extent of the information under section 27 of the Indian Evidence Act in Anter Singh v. State of Rajasthan, (2004) 10 SCC 657 thus: "11. The Apex Court had summed up its early decisions as to the requirement of the fact for bringing under section 27 of the Indian Evidence Act and the extent of the information under section 27 of the Indian Evidence Act in Anter Singh v. State of Rajasthan, (2004) 10 SCC 657 thus: "11. The scope and ambit of section 27 of the Evidence Act were illuminatingly stated in Pulukuri Kottaya v. Emperor, AIR 1947 PC 67 in the following words, which have become locus classicus: (AIR p.70, para 10) "[I]t is fallacious to treat the 'fact discovered' with the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A' these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant." 12. The aforesaid position was again highlighted in Prabhoo v. State of U.P., AIR 1963 SCI 113. 13. Although the interpretation and scope of section 27 has been the subject of several authoritative pronouncements, its application to concrete cases in the background events proved therein is no always free from difficulty. It will, therefore, be worthwhile at the outset, to have a short and swift glance at section 27 and be reminded of its requirements. The section says: "27. It will, therefore, be worthwhile at the outset, to have a short and swift glance at section 27 and be reminded of its requirements. The section says: "27. Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved." 14. The expression "provided that" together with the phrase "whether it amounts to a confession or not" shows that the section is in the nature of an exception to the provisions particularly sections 25 and 26. It is not necessary in this case to consider if this section qualifies, to any extent. Section 24, also. It will be seen that the first condition necessary for bringing this section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word "distinctly" means "directly", "indubitably", "strictly", "unmistakably". The word has been advisedly used to limit and define the scope of the provable information. The phrase "distinctly" relates "to the fact thereby discovered" and is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered. [Mohd Inayatulah v. State of Maharashtra, (1976) 1 SCC 828 ]." 15. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered. [Mohd Inayatulah v. State of Maharashtra, (1976) 1 SCC 828 ]." 15. At one time it was held that the expression "fact discovered" in the section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact, now it is fairly settled that the expression "fact discovered" includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this, as noted in Pulukuri Kottaya case: AIR 1947 PC 67 and in Udai Bhan v. State of U.P., AIR 1962 SC 1116 . 16. The various requirements of the section can be summed up as follows: (1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting with the crime in order to make the fact discovered admissible. (2) The fact must have been discovered. (3) The discovery must have been in consequence of some information received from the accused and not by the accused's own act. (4) The person giving the information must be accused of any offence, (5) He must be in the custody of a police officer. (6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to. (7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible." 26. The Apex Court reiterated the above view in Amitsingh Bhikamsingh Thakur v. State of Maharashtra, (2007) 2 SCC 310 . (Para 19oftheSCCp.321) "19. The various requirements of the section can be summed up as follows: (1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. (Para 19oftheSCCp.321) "19. The various requirements of the section can be summed up as follows: (1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting with the crime in order to make the fact discovered admissible. (2) The fact must have been discovered. (3) The discovery must have been in consequence of some information received from the accused and not by the accused's own act. (4) The person giving the information must be accused of any offence. (5) He must be in the custody of a police officer. (6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to. (7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible." 27. The golden rule in the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, viz.,: (1) point to the guilt of the accused and (2) another is innocence. The view which is favourable to the accused should be adopted. The paramount duty of the court is to ensure that miscarriage of justice is prevented. Miscarriage of justice which may rise from the acquittal of the guilty is not less than from the conviction of the innocent. In a case based on circumstantial evidence, settled law is that circumstances from which conclusion of the guilt is drawn, should be fully proved. Such circumstances must be of conclusive in nature. Moreover, all the circumstance should be complete, there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused not total inconsistent with his innocence. Circumstantial evidence should be carefully analysed in the touchstone of law relating with the circumstantial evidence. A great care should be taken in evaluating the circumstantial evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused not total inconsistent with his innocence. Circumstantial evidence should be carefully analysed in the touchstone of law relating with the circumstantial evidence. A great care should be taken in evaluating the circumstantial evidence. The Apex Court, when all the circumstances are complete and there is no gap left to such an extent that there is only one possibility of the accused being the author of the crime, convict the accused basing on the circumstantial evidence such as last seen theory in State of U.P. (supra), relevant portion of the judgment of the Apex Court which spelt out the case of the prosecution and also the finding are reproduced hereunder: "3. In a nutshell the accused faced trial in the following backdrop: On 16.8.2001 the victim who was studying in Sarvodya Public School had gone to school and did not return at the usual time. On the next morning her dead body was found in the sugarcane field of one Moolchand around 6.00 a.m. She was lying in a dead condition and blood was oozing from her private parts and there were marks of pressing on her neck. Report was lodged at the nearby police station and the dead body was sent for post mortem examination. Dr. R.K. Gupta (PW7) conducted the post mortem around 2.00 p.m. on 17.8.2001 and opined that death was within the preceding 24 hours. 4. Three persons claimed to have seen the accused nearby the place of occurrence between 1.00 p.m. to 2.00 p.m. on the date of occurrence. Two of them, namely, Sanjeev Kumar Tyagi (PW3) and Kulbhushan (PW5) claimed to have seen the deceased being carried on a bicycle by the accused who was taking the bicycle with the deceased sitting on the handle-bar thereof. Anil (PW2) stated that he had seen the accused in perplexed state around 2.00 p.m. near the place from where the dead body of the deceased was found. Investigation was undertaken. During such investigation, there was recovery of the accused's underwear as also the undergarment the deceased was wearing. This recovery was treated to be under section 27 of the Evidence Act, 1872 ("the Evidence Act"). 6............................. 7............................. 8............................. 9. Investigation was undertaken. During such investigation, there was recovery of the accused's underwear as also the undergarment the deceased was wearing. This recovery was treated to be under section 27 of the Evidence Act, 1872 ("the Evidence Act"). 6............................. 7............................. 8............................. 9. It has been consistently laid down by this court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. [See Hukan Singh v. State of Rajasthan, (1977) 2 SCC 99 ; Eradu v. State of Hyderabad, AIR 1956 SC 316 ; Earabhadrappa v. State of Karnataka, (1983)2 SCC330; State of U.P. v. Sukhbasi, 1985 Supp SCC 79; Balwinder Singh v. State of Punjab, (1987) 1 SCC 1 and Ashok Kumar Chatterjee v. State of M.P., 1989 Supp (1) SCC 560. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab, AIR 1954 SC 621 it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negate the innocence of the accused and bring home the offences beyond any reasonable doubt. 10. We may also make a reference to a decision of this court in C. Chenga Reddy v. State of A.P., (1996) 10 SCC 193 wherein it has been observed, thus: (SCC p.207, para 21) "21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence." 11. In Padala Veera Reddy v. State of A.P., 1989 Supp (2)SCC 706 it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (SCC pp. 710-11, para 10) "10. In Padala Veera Reddy v. State of A.P., 1989 Supp (2)SCC 706 it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (SCC pp. 710-11, para 10) "10. (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." 12. In State of U.P. v. Ashok Kumar Srivastava, (1992) 2 SCC 86 it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt." 28. The Apex Court in Gilbert Pereira v. State of Karnataka, (2004) 12 SCC 281 held that circumstantial evidence proved against the appellant (accused) are conclusive in nature being consistent only with the hypothesis of its guilt. Paras 46 and 46 of the SCC in Gilbert Pereira's case (supra) are reproduced hereunder: "46. Though, in our opinion, the circumstances proved against the appellant are conclusive in nature, being consistent only with the hypothesis of his guilt, we may observe that once his defence that he was not capable of committing the offence on account of the physical handicap suffered by him is rejected, the presumption under section 114 of the Evidence Act can also be drawn. In the instant case, the evidence discloses that only a few hours after the occurrence, the appellant sold the gold chain to PW11, from whose custody the gold chain was recovered only 4 days later at the instance of the appellant, who had no explanation to offer as to how he came in possession of the gold chain belonging to the deceased. The presumption, therefore, arises that the appellant was the culprit who removed the gold chain from the person of the deceased. This presumption coupled with the other circumstances adverted to above, especially the unexplained injuries on the hand of the accused and the blood of same group being found on the clothes of deceased as well as the accused give rise to further presumption that the removal of gold ornament and the fatal attack on the deceased should have taken place as part of the same transaction. 47. We are, therefore, of the view that the incriminating circumstances proved against the appellant form a complete chain of circumstances which is consistent only with the hypothesis of guilt of the appellant. Each circumstance is incriminating in nature and the totality of circumstances conclusively establish the guilt of the appellant. We, therefore, find no merit in this appeal and the same is accordingly dismissed." 29. In the present case, we have carefully analysed the statement of PWs in detail and found that all the alleged circumstances against the appellants accused such as last seen together, (which has not been proved), recovery statement under section 27 of the Indian Evidence Act made by the appellant accused, Sah Jamal (which is not again proved) as well as the alleged extra-judicial confession made by the appellant accused, Nausad Ali (which is not again proved) are not complete; there is gap in the chain of evidence and, therefore, we are of the firm view that there is a great possibility of any person other than the appellant accused is or/are the author of the crime and murdered the deceased (Jakir Hussain). 30. As discussed above, if two views are possible on the evidence of the case, one pointing to the innocence of the appellant accused should be adopted. We, in the present given case, have no alternative except to adopt the view favourable to the appellants accused. 31. 30. As discussed above, if two views are possible on the evidence of the case, one pointing to the innocence of the appellant accused should be adopted. We, in the present given case, have no alternative except to adopt the view favourable to the appellants accused. 31. Under the criminal jurisprudence in our country, a person has a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. No doubt, this standard is a higher standard but there is no absolute standard. The Apex Court in Krishnan and Anr. v. State represented by Inspector of Police, (2003) 7 SCC 56 had observed that what degree of probability amounts to "proof is an exercise particular to each case. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. To constitute reasonable doubt, it must be free from over emotional response, zest for abstract speculation. Doubt must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence and/or from lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. The Apex Court is of similar view in Ramakant Rai v. Madan Rai and Ors., (.2003) 12 SCC 395 (Paras 24 and 25 of the SCC, p.405) "24. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than the truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. "25. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. "25. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimisation of trivialities would make a mockery of the administration of criminal justice. This position was illuminatingly stated by Venkatachaliah, J. (as His Lordship then was) in State of U.P. v. Krishna Gopal, (1988) 5 SCC 302." 32. For the foregoing discussions, it is clear that there is reasonable doubt that the accused appellants are the authors of the crime, accordingly, the accused appellants who have the profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt, are acquitted from the charge levelled against them in the present case, inasmuch as prosecution had utterly failed to prove the prosecution case beyond reasonable doubt. In consequence thereof the impugned judgment and sentence dated 31.10.2006 passed by the learned Sessions Judge, Darrang at Mangaldai in Sessions Case No. 24 (D-M) 2004 is hereby set aside and the present appeal is allowed. 33. The accused appellants are set at liberty and personal bonds and security bonds of the appellant accused Nos. 2, 3 and 4 who are, now on bail are discharged. Send a copy of this order to the concerned judicial magistrate and the Sessions Judge, Darrang at Mangaldai.