Judgment Kanwaljit Singh Ahluwalia, J. The present appeal has been preferred by Dinesh Saha and Swapan Sarkar. They were tried along with one Radha alias Radhanath Sarkar, in a case arising out of Case No. 189 of 2006 dated 19th June, 2006 registered at Kotwali Police Station, District Nadia, under sections 364/302/201/34 of the Indian Penal Code. Radha alias Radhanath Sarkar was acquitted by the trial court vide the impugned judgment dated 19th July, 2009. The appellant, Dinesh Saha, was convicted by the judgment rendered by the court of Additional Sessions Judge, 4th Court, Nadia, for an offence under section 364, 302 and 201/34 of the Indian Penal Code. However, the appellant, Swapan Sarkar, was acquitted for the offence under section 364 of the Indian Penal Code however was convicted for offence under section 302/201 of the Indian Penal Code and by the subsequent order dated 30th July, 2009 the appellants were sentenced as under : The appellant, Dinesh Saha, was sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs.5,000/-, in default, to suffer further rigorous imprisonment for one year for the offence under section 302/34 of the Indian Penal Code. He was also sentenced to suffer rigorous imprisonment for three years and also to pay a fine of Rs.2,000/-, in default, to suffer further rigorous imprisonment for one year for the offence under section 364 of the Indian Penal Code. He was also sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs.1,000/-, in default, to suffer further rigorous imprisonment for six months for the offence under section 201/34 of the Indian Penal Code. All the sentences were ordered to run concurrently. The appellant, Swapan Sarkar, was sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs.5,000/-, in default, to suffer further rigorous imprisonment for one year for the offence under section 302/34 of the Indian Penal Code. He was also sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs.1,000/-, in default, to suffer further rigorous imprisonment for six months for the offence under section 201/34 of the Indian Penal Code. Both the sentences were directed to run concurrently. 2. The present appellants have assailed the judgment of conviction and order of sentence. 3. Briefly stated the criminal proceedings were set into motion by lodging a written complaint, Ext. Both the sentences were directed to run concurrently. 2. The present appellants have assailed the judgment of conviction and order of sentence. 3. Briefly stated the criminal proceedings were set into motion by lodging a written complaint, Ext. 1/1 by P.W.1, Kallol Saha. In the First Information Report this witness stated that his father, Kanakendra Saha, since deceased, was running a grocery shop at Saktinagar Panchmatha Morh beside State Bank, Shaktinagar Branch. He was a seller of rice. On 15th June, 2006 at about 3-00 P.M. father of the complainant, i.e. the deceased, intended to purchase rice worth Rs.1 lakh. It is stated that after 15th June, 2006 at 3-00 P.M. he was not found till 19th June, 2006. A suspicion arose that neighbour Dinesh Saha, who was close to his father had told him that he could make rice available at cheaper price. It is further stated that on 15th June, 2006, Dinesh Saha came to meet the deceased father of the complainant, upon which the father of the complainant started cleaning the room where rice was to be kept. On the night of 15th June, 2006 the complainant had gone to the house of Dinesh Saha to enquire about his father upon which no satisfactory reply was given by Dinesh Saha. Since the father had not returned and his mobile phone was also disconnected, the complainant went to the house of the accused Dinesh Saha on 16th June, 2006 at 5-00 P.M. to enquire about the whereabouts of his father. No specific reply was given and when search was initiated along with some neighbours, Dinesh Saha stated to have fled from his house. It was stated in the First Information Report that Dinesh Saha was jobless and was prone to gambling. A further suspicion was expressed in the First Information Report that on the false pretext that rice will be available at cheaper price, father of the complainant was taken away by the accused, Dinesh Saha to usurp Rs.1 lakh which was available with him. 4. The above First Information Report was investigated after registration of the case. On 23rd June, 2006, the dead-body of the father of the complainant, Kanakendra Saha, was recovered. Inquest was prepared. After investigation was over, a report under section 173 of the Code of Criminal Procedure was submitted. 5. 4. The above First Information Report was investigated after registration of the case. On 23rd June, 2006, the dead-body of the father of the complainant, Kanakendra Saha, was recovered. Inquest was prepared. After investigation was over, a report under section 173 of the Code of Criminal Procedure was submitted. 5. The case was committed to the court of sessions and the trial was entrusted to the Additional Sessions Judge, 4th Court, Nadia. The trial Court formulated charges against the appellants. The first charge stated that Dinesh Saha along with other co-accused, i.e. Swapan Sarkar and Radha alias Radhanath Sarkar, had abducted Kanakendra Saha and hence committed offence under section 364/34 of the Indian Penal Code. The appellants were further charged for the offence under section 302/34 of the Indian Penal Code for having intentionally caused death of Kanakendra Saha. Third charge stated that they with common intention had hidden the dead body and thus committed offence under section 201/34 of the Indian Penal Code. The appellants pleaded not guilty and claimed to be tried. 6. The prosecution commenced its evidence. 7. Kallol Saha, P.W.1, the complainant, in his testimony broadly reiterated as to what was stated in the First Information Report. However, he further stated that once accused, Dinesh Saha, told that he knew nothing about the whereabouts of his father, he informed the fact to his uncle who had drafted a complaint. It was further stated by this witness that uncle had lodged a missing diary report on 16th June, 2006. It was the further evidence of the said witness that later they came to know that a dead body was lying in the Chaker Beel of Habibpur and the same was recovered and was identified by two maternal uncles, Pankaj Saha and Gopal Saha. At the side of the pond a bag and one pant of the deceased were recovered which were identified and exhibited as Ext. 2/1. Police also seized a khata of the business which was exhibited as Ext.3/1. In cross-examination this witness stated that the dead body was not shown to him due to its extreme putrefaction. 8. P.W.2, Shefali Saha, widow of the deceased stepped into the witness box and stated that about one and two months back her husband was murdered. In sum and substance she corroborated the testimony of her son, Kallol Saha. In cross-examination this witness stated that the dead body was not shown to him due to its extreme putrefaction. 8. P.W.2, Shefali Saha, widow of the deceased stepped into the witness box and stated that about one and two months back her husband was murdered. In sum and substance she corroborated the testimony of her son, Kallol Saha. P.W. 3, Kalyan Kumar Saha, stated that the deceased was his elder brother. He also corroborated the testimony of P.W.1 and identified Dinesh Saha who was present in court. 9. Madhab Khamaria, P.W.4, had not supported the prosecution case and was declared hostile. This witness was to be examined to prove recovery of the dead body and arrest of the accused on 23rd June, 2006. This witness proved factum of the arrest of the accused. P.W.5, another witness of recovery of the dead body has also not supported the prosecution case and was declared hostile. P.W.6, Nripen Das, has also not supported the prosecution case. He was examined to prove the recovery of the seized articles from the house of one Gouranga Mondal. P.W.7, Pallav Kumar Saha, has also not supported the case of the prosecution and declared hostile. He was to be examined to prove the role of Dinesh Saha, the appellant, in the crime. P.W.8, Sanjit Pal, has also not supported the prosecution case and was declared hostile by the prosecution. 10. P.W. 9, Tapan Kumar Shil, at the relevant time was posted as S.I. of Police. He stated that he received the complaint and after he had made an endorsement, First Information Report, Ext.P/1 was registered. This witness has proved the registration of the case. P.W.10, Pankaj Kumar Saha, stated that Kanakendra Saha was missing since 15th June, 2006. After about nine days before the recovery of dead body, police called him over phone to attend Ranaghat Police Station. He accompanied the police along with one young man who took them to the place from where the dead body was recovered. The said person had disclosed his name as Swapan Sarkar. He further stated that at the spot inquest proceeding was carried out. He proved his signature at the inquest report as Ext. 5/3. Swapan Sarkar was identified in court. This witness further stated that dead body was identified by him and the dead body by that time was in decomposed condition. He further stated that at the spot inquest proceeding was carried out. He proved his signature at the inquest report as Ext. 5/3. Swapan Sarkar was identified in court. This witness further stated that dead body was identified by him and the dead body by that time was in decomposed condition. P.W.11, Goutam Biswas, stated that accused, Swapan Sarkar is not known to him. He denied recovery of the dead body from Beel. He was declared hostile. P.W.12, Anup Kumar Samanta, stated that on 23rd June, 2006 he had conducted the inquest proceeding. He proved the inquest report as Ext.8. This witness stated that inquest proceeding was carried after the dead body was identified. P.W.13, Bijan Kumar Deb, stated Kanen alias Kanakendra Saha was a resident of his para. He knew Dinesh Saha and he heard from Kallol Saha, the complainant, that the accused Dinesh Saha had taken his father Kanen alias Kanakendra Saha with a promise to purchase rice and at that time Rs. 1 lakh was with the deceased. 11. P.W. 14, Dr. Abhijit Ghosal, had conducted autopsy on the dead body of the deceased. 12. P.W.15, S.I. Babin Mukherjee, proved various facet of the investigation. This witness stated that on the statement made by Swapan Sarkar he had recovered the dead body. It will be pertinent to mention that it is stated that in pursuance of the disclosure statement made by Swapan Sarkar the dead body was recovered, which was not got admitted by the prosecution from its witnesses. This witness in his cross-examination stated that he had examined witnesses in presence of some local villagers. He had not obtained the signature of the persons present there. This witness further stated that after Swapan Sarkar was arrested his police remand was obtained for effecting recovery of dead body. This witness further stated that he had not prayed for the Test Identification Parade in respect of the pant of the deceased which was seized during investigation of the case. 13. P.W. 16, S.I., Nihar Ranjan Ray, proved the arrest of accused Radha. 14. The prosecution closed its evidence and thereafter statements of the accused were recorded under section 313 of the Code of Criminal Procedure and all incriminating evidence were put to them. They denied the same and took the plea of false implication. 15. 13. P.W. 16, S.I., Nihar Ranjan Ray, proved the arrest of accused Radha. 14. The prosecution closed its evidence and thereafter statements of the accused were recorded under section 313 of the Code of Criminal Procedure and all incriminating evidence were put to them. They denied the same and took the plea of false implication. 15. From the prosecution evidence the following facts are discernable qua appellant Dinesh Saha (a) the appellant, Dinesh Saha, had promised to the deceased that he will facilitate purchase of rice at the lower price, (b) that the deceased was possessed of Rs.1 lakh, (c) that in the morning of 15th June, 2006 the deceased has cleaned the room for storage of rice to be purchased, (d) in the evening Dinesh Saha had not disclosed anything about the whereabouts of the deceased, (e) it was alleged that Dinesh Saha was addicted to gambling and was unemployed. From the above stated evidence led by the prosecution the prosecution has been only able to substantiate the motive qua the accused, Dinesh Saha. There is no evidence of last seen together so far the accused and the deceased are concerned. 16. The prosecution case qua Swapan Sarkar, appellant, is that after his police remand was obtained during the investigation he disclosed the place of dead body and got the dead body recovered. P.W. 10, Pankaj Kumar Saha, has stated that Swapan Sarkar was present with the police and had shown one dead body under the water-hyacinth of Beel. 17. Kallol Saha, P.W.1, Shefali Saha, P.W. 2 and Kalyan Kumar Saha, P.W.3 are relations of the deceased, Kanakendra Saha, being son, widow and brother respectively. These three witnesses have supported the prosecution case. They have deposed regarding the motive on the part of Dinesh Saha, appellant no.1, to commit the offence. However, a perusal of their evidence show these witnesses have not advanced the case of the prosecution regarding last seen evidence. On a perusal of the evidence of these witnesses it cannot be said that Dinesh Saha accompanied the deceased for purchase of the rice. Therefore, the only evidence which remains with the prosecution is the allegation regarding motive on the part of Dinesh Saha. On a perusal of the evidence of these witnesses it cannot be said that Dinesh Saha accompanied the deceased for purchase of the rice. Therefore, the only evidence which remains with the prosecution is the allegation regarding motive on the part of Dinesh Saha. The prosecution witnesses have stated that Dinesh Saha was addicted to gambling and therefore, a suspicion was raised that Dinesh Saha may be the author of the crime to take advantage of the money, which the deceased was allegedly possessed. It is stated that the deceased was carrying Rs.1 lakh. The prosecution has not relied on any corroborative evidence regarding availability of Rs.1 lakh with the deceased, Kanakendra Saha. Except the oral assertion of these witnesses there is no evidence on record wherefrom it can be presumed that the deceased carried this amount. No bank entry and no official of the bank have been examined as to when and how deceased was possessed of the amount alleged. Furthermore, no independent person has been examined to say that the deceased had withdrawn the amount or was entrusted with the amount by somebody. Even if we assume that the deceased was carrying Rs.1 lakh the prosecution has not examined any villager of respectable of the locality to say that Dinesh Saha was prone to Gambling. Antecedents of Dinesh Saha had not been brought on record. In view of the above, the question which will arise for consideration of this Court is even if we assume the motive on the part of Dinesh Saha whether the same is sufficient to complete the chain of circumstances to hold that nobody else except Dinesh Saha would have committed the crime. 18. So far as the appellant, Swapan Sarkar is concerned, there is evidence of P.W.10, Pankaj Saha that the appellant Swapan Sarkar led the police party to the place from where the dead body was recovered. P.W.1, Kallol Saha stated that Pankaj Saha was his maternal uncle who had identified the dead body. Thus P.W. 10, Pankaj Saha is not an independent witness. In the present case no disclosure statement under section 27 of the Indian Evidence Act of the accused, Swapan Sarkar was recorded. P.W.1, Kallol Saha stated that Pankaj Saha was his maternal uncle who had identified the dead body. Thus P.W. 10, Pankaj Saha is not an independent witness. In the present case no disclosure statement under section 27 of the Indian Evidence Act of the accused, Swapan Sarkar was recorded. Even if we give credence to the prosecution, from the evidence of P.W.10, Pankaj Saha and the Investigating Officer only incriminating circumstances which can be gathered against Swapan Sarkar is that he knew the place where the dead body was lying and got the same recovered. Can it be said that mere knowledge of the place where the dead body is lying is sufficient to infer that the accused is guilty of murder. 19. It was held in Kanbi Karsar Yadav –vs- State of Gujrat reported in A.I.R. 1966 S.C. page 821 that a mere fact that the accused had led to the discovery of dead body is not sufficient to hold that he is guilty of the murder. Another prominent feature of the case which cannot be ignored is that all materials witnesses have turned hostile to the prosecution. There is no evidence with the prosecution that Dinesh Saha and Swapan Sarkar shared a common intention or part of a criminal conspiracy. Nexus between Dinesh Saha and Swapan Sarkar why they intended to commit the offence is lacking. We also cannot become oblivious of the fact that no recovery of the amount which allegedly deceased was carrying has been effected by the prosecution. It was further held in the case of Bakshish Singh –vs- the State of Punjab reported in AIR 1971 SC 2016 that where the body was recovered from the river by the police on the information given by the accused, this fact is not sufficient to infer culpability of the accused. 20. In view of the above, since the prosecution has failed to connect Dinesh Saha with Swapan Sarkar accused, we have to take the circumstances in isolation qua both the accused/appellants. Except the recovery of the dead body there is no evidence against Swapan Sarkar. That being so, the chain of circumstances is not complete qua him and a vital link is missing. 21. Taking the totality of the circumstances, we extend the benefit of doubt to the present appellants. 22. Hence, the present appeal is accepted. Except the recovery of the dead body there is no evidence against Swapan Sarkar. That being so, the chain of circumstances is not complete qua him and a vital link is missing. 21. Taking the totality of the circumstances, we extend the benefit of doubt to the present appellants. 22. Hence, the present appeal is accepted. Conviction and sentence imposed upon the appellants are set aside. They are acquitted from the charges. Let the appellant no.1, Dinesh Saha, who is stated to be in jail custody be released forthwith if he is not wanted in any other case. Toufique Uddin, J.: I agree.