JUDGMENT Subhasis Talapatra, J. 1. This appeal under Section 374(2) of the Criminal Procedure Code, 1973 (Cr.P.C., in short) is directed against the Judgment of conviction and order of sentence dated 6.1.2000 as passed by the learned Additional Sessions Judge, West Tripura, Agartala in S.T (WT/A) 127 of 1998 whereunder the appellant namely, Sri Harilal Hrishi Das has been convicted and sentence to suffer R.I. for life and a fine of Rs. 5,000/- in default of payment to suffer further R.I. for three months under Section 302 of IPC. He has been further convicted and sentenced to suffer R.I. for seven years and to pay a fine of Rs. 3,000/- in default of payment of fine to suffer further R.I. for two months for the offence committed under Section 376 of IPC. It is required to be noted that by the order dated 06.06.2011, the appeal so far it relates to Sri Madhab Hrishi Das is concerned has been finally disposed of with the observation as follows: The appeal in respect of appellant No. 1, namely, Madhab Hrishi Das, is allowed to this extent only. The appeal in respect of appellant No. 2, namely, Harilal Hrishi Das be listed for hearing as per its own turn, in Part-II of the cause list for August, 2011. For purpose of appreciation of the challenge, the essential facts may briefly be noticed at the outset: One Smt. Arati Hrishi Das (the PW 1)filed a complaint to the Amtali Police Station and disclosed that in the morning of 26.03.1997, in her paternal house, she lodged the ejahar to the Officer-in-Charge of Amtali Police Station stating that her paternal house and her father-in-law's house situated in the same village, Madhuban Hrishi Colony. On 25.03.1997 at about half-past ten at night, her father went to her father-in-law's house and told them that on 25.03.1997 at about 9 O'clock at night, her younger sister, Sarathi while cutting and chopping firewoods sitting in the courtyard of their house, she became traceless. Her whereabout could not be located. Since it was late at night, the informant could not come to her paternal house. At the day break, her father again went to their house and said that Sarathi was lying dead near the banana plants of their house. She came to the father's house without any delay along with her husband and saw Sarathi's dead body. Since it was late at night, the informant could not come to her paternal house. At the day break, her father again went to their house and said that Sarathi was lying dead near the banana plants of their house. She came to the father's house without any delay along with her husband and saw Sarathi's dead body. They could gather that one or more than one persons had killed Sarathi by strangulating Sarathi with her 'Sari' that she was wearing. On the basis of that ejahar, the Amtali P.S. Case No. 18 of 1997 under Sections 302 /109 IPC was initially registered and on completion of the post mortem, Section 376 was added with due leave from the court. After completion of the investigation, the Investigating Officer on finding a prima facie case having been established filed the charge sheet under Section /302 and 404 of IPC. On taking cognizance, the case was committed to the court of Sessions as the offence under Section 376 and 302 IPC are exclusively triable by the Court of Sessions. The learned Sessions Court framed the following charge against this appellant and one Madhab Hrishi Das (who has been released by this Court on finding him juvenile undergone the maximum term of detention that can be imposed on a juvenile). The appellant pleaded not guilty and claimed to be tried. 2. To drive the charges home against the appellant, the prosecution examined as many as 16 witnesses and admitted on evidence 11 documents including post mortem examination report. The informant namely, Arati Hrishi Das deposed in the Court as the P.W. 1, who stated that Sarathi Hrishi Das (the deceased) was her younger sister and she was murdered one and half years back. Her parental house and matrimonial house were situated in the same village. The deceased used to reside in her father's house. She was married but her husband deserted her for which she used to reside in the parental house. On the day of death at about 8 p.m., her father went to her house and informed her that Sarathi was missing since the evening of that day. They searched for Sarathi but failed to trace her out. On the following morning, her father informed her that the dead body of Sarathi was found in the bush of banana plants near their latrine. They searched for Sarathi but failed to trace her out. On the following morning, her father informed her that the dead body of Sarathi was found in the bush of banana plants near their latrine. She rushed to the spot and found her sister half-naked, blood was oozing out from her vegina and her neck was noosed by a saree which was in her wearing. She also claimed that she had seen the mark of cut injury on her neck. Her hands were tied by a rope. The police came afterwards to their house and she lodged the ejahar to the Officer-in-Charge. The Officer-in-Charge reduced her oral complaint into writing and after having the content read over, she put her signature thereon. The Police Officer prepared the inquest report (Ext. P.2.) of the dead body in her presence. She identified her signature in the inquest report. On the date of her death, her sister was cutting fire woods by a dao. The Police Officer seized the said dao by preparing a seizure list (Ext. P.3.). The P.W. 1 also stood as a witness of the seizure. The police Officer showed her a necklace made of silver and a bracelet made of silver with stone and she identified those ornaments (Ext. MO-1). In the cross-examination, no material of consequence could be elicited from the P.W. 1. The father of the deceased namely, Basudev Hrishi Das was examined by the prosecution as the P.W. 2. He stated that her daughter Sarathi was murdered two years back. She used to reside in his house with her daughter. On the date of her murder about 7.00/7.30 p.m. Sarathi was cutting fire wood in the moonlit night. At that time, he was sleeping with his granddaughter. His wife went to the house of the neighbour to bring tobacco. After her return from the house of neighbour, his wife found that Sarathi was missing. They searched for Sarathi in the house of neighbour and relatives, but could not trace her out, in that night. He stated that he informed the matter to his daughter Arati on that night. On the following morning, his wife discovered the dead body of Sarathi in the bush of banana plants by the side of their latrine. He stated that he had seen the dead body of Sarathi and she was naked. Her neck was noosed by her wearing saree. On the following morning, his wife discovered the dead body of Sarathi in the bush of banana plants by the side of their latrine. He stated that he had seen the dead body of Sarathi and she was naked. Her neck was noosed by her wearing saree. Her hands were tied by a rope. He informed the matter to Arati. Villagers also came to the spot. The police came afterwards in his house. Arati also came to the spot. In the cross, no significant contradiction or revelation could be elicited from the P.W. 2. The mother of the deceased namely, Subarna Hrishi Das was examined as the P.W. 3, who stated that at about 7.30 p.m. on the date of murder of Sarathi, she was cutting fire woods in the courtyard. Her husband was sleeping with her granddaughter. She went to the house of neighbour to bring tobacco. After return to her house, she found Sarathi was missing. Her husband informed the matter to her daughter Arati. They searched for Sarathi in the night but in vain. On the following morning, she went to the latrine and found the dead body of Sarathi in the bush of banana plants. She had seen her naked and also saw blood oozing out from her vagina. She had seen hands of Sarathi tied and her neck was noosed by the saree which was her wearing apparels. Her necklace and bracelet were missing from her body. Sarathi had quarrel with Madhab relating to collection of water. That time, Madhab had threatened Sarathi of dire consequences. The P.W. 3 identified Madhab in the dock. In the cross-examination she stated that the dispute between Madhab and Sarathi was settled at the instance of parents of Madhab. She however, denied the suggestion that Madhab did not threaten her daughter at that time. One Sukumar Hrishi Das, a closed door neighbour of the P.W. 2 and 3 was examined by the prosecution as the P.W. 4. He stated that on the night Sarathi was missing, he also searched along with other villagers, but failed to trace her out. On the following morning, father of Sarathi informed him that his wife discovered the dead body of Sarathi in the bush of banana plants. He also corroborated that he saw the dead body of Sarathi wither hands tied by a rope and her neck noosed by a saree. On the following morning, father of Sarathi informed him that his wife discovered the dead body of Sarathi in the bush of banana plants. He also corroborated that he saw the dead body of Sarathi wither hands tied by a rope and her neck noosed by a saree. One Subodh Biswas, a member of Madhuban Gaon Panchayat was examined as the P.W. 5. He stated that on 26.03.1997 at about 9.00 a.m., he went to Rishicolony to attend the meeting. After reaching Rishicolony, he came to know that a dead body was recovered in the house of Basudev Hrishi Das. He rushed to the house of Basudev Hrishi Das and saw the dead body of Sarathi Hrishi Das. He stated that he saw her hands tied by a rope and also saw her neck noosed by a saree. One Police Officer prepared the inquest report of Sarathi in his presence and as a witness, he put his signature on the inquest report. He identified his signature. He further stated that he saw the nail marks on her neck and throat and also found her blouse in torn condition. She was naked and he saw the blood oozing out from her vagina. In the cross-examination he did not reveal any material fact. One Apurba Laskar, a tea stall owner was examined as P.W. 6. He stated that hearing the information of murder, he rushed to the house of Basudev Hrishi Das (P.W. 2) and saw the dead body of Sarathi in the bush of banana plants. He had seen her neck noosed by a saree. One Police Officer prepared the inquest report in his presence and he put his signature thereon as a witness. He identified his signature on the inquest report. He stated that breast of the dead body was bare. The police officer thereafter seized a dao and a piece of wood from the house of Basudev Hrishi Das in his presence by preparing the seizure list. He was the witness. He identified his signature and identified the Ext. MO-1 articles. He divulged in the cross-examination that maternal uncle of Swapan Hrishi Das and some other villagers were arrested in connection with this case. Swapan Hrishi Das, his mother and his maternal uncle were present at the time of preparation of the seizure list. He was the witness. He identified his signature and identified the Ext. MO-1 articles. He divulged in the cross-examination that maternal uncle of Swapan Hrishi Das and some other villagers were arrested in connection with this case. Swapan Hrishi Das, his mother and his maternal uncle were present at the time of preparation of the seizure list. One Swapan Hrishi Das, the P.W. 7, who has been projected as the eye-witness by the prosecution deposed in the Court that the persons namely, Dilip Sarkar, Madhav Hrishi Das and Harilal Hrishi Das were known to him. He identified the accused persons in the dock. On the date of incident at about 5.00/5.30 p.m., he stated in the Court that he was sitting in the tea stall-cum-grocery shop of Mangal and he was taking tea. When he went to the shop of Mangal Hrishi Das, he saw Dilip Sarkar in the stall. After a while Harilal Hrishi Das went to the shop and took tea. Madhab came there afterwards and called Harilal and Dilip and sought advice from them as to what he should do with Sarathi. Dilip advised him to finish Sarathi. The said persons called him and asked to accompany them. When he refused to accompany them, Dilip Sarkar slapped him twice and directed him to accompany Madhav and Harilal. Out of fear, he accompanied them. They went to a tilla near the house of Sarathi. On being called Sarathi went to the tilla. Sarathi was then sizing fire-wood in her courtyard. Harilal called Sarathi near from the latrine of their house. By the side of the latrine there were some banana plants. Madhav was with Harilal at that time. Madhav then fell Sarathi on the ground and committed rape on her. As Sarathi was scuffling with Madhav, Harilal tied her hands. Madhav after committing rape upon Sarathi fastened her neck by her wearing saree and killed her. Harilal removed a bracelet from the hand of Sarathi. He stated that he had seen the incident from a distance of 8-10 cubits. He had seen the incident by the light of moon. The incident occurred in a moon lit night. After committing the crime Madhav and Harilal threatened him to face dire consequences, if he disclosed the incident to anyone. Out of fear, he did not disclose the matter to anyone. He had seen the incident by the light of moon. The incident occurred in a moon lit night. After committing the crime Madhav and Harilal threatened him to face dire consequences, if he disclosed the incident to anyone. Out of fear, he did not disclose the matter to anyone. After 8 to 10 days he had disclosed the matter to his mother. As per advice of his mother, he had disclosed the matter to the Panchayat member Ramananda Hrishi Das. He had also disclosed the matter to their Pradhan. The Pradhan advised him to disclose the matter to the police. Then he went to the Amtali P.S. and narrated the incident to the police. Dilip did not go to the place of occurrence. He instructed Madhav and Harilal to finish Sarathi and also sent him with them and thereafter left for his house. In the cross-examination, the witness stated further that the name of Pradhan of that village was Jiban Acherjee. His maternal uncle Gouranga Hrishi Das was also arrested in connection with that case. After the incident, he went to the house of Narayan Hrishi Das, which was situated by the side of his house. He denied that with a view to save his maternal uncle he was deposing falsely against the accused person. He also denied the suggestion that he was deposing falsely as tutored by the investigating officer. He denied the suggestion that Harilal did not tie her hands when she was scuffling with Madhav. When he visited the shop of Mangal, Mangal was present in the shop. He also stated that there was another shop by the side of the shop of Mangal. At that time Sushil was purchasing some goods. Sushil was his co-villager. Madhav called Harilal and Dilip from the shop of Mangal to the road. He had heard the conversation from a distance of 8 cubits. The distance from the house of Sarathi from the shop of Mangal would be 2-3 kanies. He claimed to have stated the Police Officer that Harilal called Sarathi. When his attention was drawn to the previous statement as recorded under Section 161 Cr.P.C., no such statement was available. But it was found that he stated to the I.O. that Madav had called Sarathi. He stated that there were lot of banana plants and some other plants also in the house of Basudev. When his attention was drawn to the previous statement as recorded under Section 161 Cr.P.C., no such statement was available. But it was found that he stated to the I.O. that Madav had called Sarathi. He stated that there were lot of banana plants and some other plants also in the house of Basudev. He also asserted that he stated the I.O. that he witnessed the incident from a distance of 10 cubits. He stated that the accused persons took about an hour to kill Sarathi. After that he returned home at about 8-9 p.m. He stated the I.O. that Harilal and Madhav whispered in the road. At the time of recovery of the dead body, he went there. He confirmed that on the matter of arrest of some villagers, a meeting was held in their village, in connection with the case. But he did not disclose anything on that meeting also. The P.W. 7 volunteered that he did not disclose anything out of the fear of the accused persons. But he denied the suggestion that the accused persons did not threaten him for dire consequences. He also asserted that he stated to the I.O. that Dilip slapped him. When his attention was drawn to his previous statement as recorded under Section 161 Cr.P.C. no such statement was found there. He denied the suggestions that his brother was also arrested in connection with that case. He also revealed that the house of one Sukumar was situated South of the banana plants. The house of Rebati was situated to the North of the house of Basudev, who is his grandfather. Sarathi was his aunt. One Gita Hrishi Das, a neighbourhood resident who was examined in the Court as the P.W. 8 deposed that when Swapan told her that Madhav, Harilal and Dilip had killed Sarathi, she advised him to inform the matter to the member of the village. In the cross-examination, she has stated as under: Just after the occurrence I did not hear anything how Sarathi was killed. Some villagers were arrested in connection with this case. My brother was also arrested. It is not a fact that my son was arrested. It is not a fact that with a view to save my brother and son I sent Swapan to the house of Pradhan after tutoring him. Some villagers were arrested in connection with this case. My brother was also arrested. It is not a fact that my son was arrested. It is not a fact that with a view to save my brother and son I sent Swapan to the house of Pradhan after tutoring him. She further admitted that she did not disclose the fact that she had come to know the incident from her son (P.W. 7). One Subrata Roy, a jeweler having his shop at Battala was examined by the prosecution as the P.W. 9. He stated that on 31.03.1997 at about 10.30 a.m., Dulal Hrishi Das came to his shop and by producing a necklace and one bracelet asked him to polish the same. A stone was fixed on the bracelet. He stated that he accepted that order at a consideration of Rs. 85/-. After five days at about 10.30 a.m., Dulal came to his shop and started requesting him to hand over his articles after finishing the work. He told him that he could not complete the work. He then told him that the necklace should be melted on the same day. Accordingly, he had melted the necklace at about 1.00 p.m. One Police Officer came to his shop with Dulal and asked him whether Dulal had given any articles to him. In reply, he informed the police officer that he had handed over one necklace and one bracelet made of silver to him for renovation and that he had melted the necklace to prepare another necklace for the wife of Dulal. He stated that he had also converted the silver into pieces. The police officer then seized the bracelet and pieces of necklace from him by preparing a seizure list (Ext. 4) in presence of witnesses. He also put his signature on the seizure list which he identified in the Court and he also identified the bracelet as Ext. MO-1 and the pieces of necklace as Ext. MO-2. Dulal stated at the time of handing over the articles to him that he purchased those from someone. One Dulal Hrishi Das, who gave the necklace and bracelet to P.W. 9 was examined as P.W. 10, who stated that he had purchased a necklace and bracelet made of silver from one rickshaw-puller named Pradip. The consideration of the said articles was settled at Rs. 100/-, but he paid Rs. One Dulal Hrishi Das, who gave the necklace and bracelet to P.W. 9 was examined as P.W. 10, who stated that he had purchased a necklace and bracelet made of silver from one rickshaw-puller named Pradip. The consideration of the said articles was settled at Rs. 100/-, but he paid Rs. 50/- and assured him to pay the rest amount afterwards. Thereafter, he took those articles to the Jewellery shop at Battala. He admitted that he had handed over those articles to the P. W. 9 for renovation of the same. After 4/5 days, a police officer went to the hotel and enquired about the said necklace and bracelet. He told the police officer that he had placed the articles in a Jewellery shop for renovation. Then the police took him in the Jewellery shop as shown by him and seized the articles by preparing the seizure list in his presence as a witness. He had put his signature in the seizure list. He identified his signature (Ext. P.4/1). Dr. Bimalendu Choudhury, a Medical Officer at G.B. Hospital was examined as the P.W. 11. He had examined Madhab Hrishi Das and Harilal Hrishi Das, who were produced before him by the Amtali Police in connection with the Amtali P.S. Case No. 18/97. He was requested to examine those persons to ascertain whether they were capable to commit sexual intercourse. He had examined the said two persons and after examination, he came to the conclusion that both the persons were physically capable to commit sexual intercourse. Both the said persons were sexually potent. After examination of the said two persons he had submitted his report (Ext. P.5) and also had his signature thereon. One Mangal Hrishi Das, a tea stall owner in Madhuban Hrishi Colony was examined by the prosecution as the P.W. 12. He stated that he knew Sarathi Hrishi Das and the accused persons. He identified them in the dock. He stated that Sarathi was murdered three years back. On the date of murder at about 5 p.m. Swapan Hrishi Das came to the tea stall and took tea and fried rice. By the side of his tea stall, there is a cycle repairing shop of one Bimal Hrishi Das. Madhab and Dilip also took tea in his shop. Thereafter, Dilip and Swapan went to road and talked something, but he could not say what happened thereafter. By the side of his tea stall, there is a cycle repairing shop of one Bimal Hrishi Das. Madhab and Dilip also took tea in his shop. Thereafter, Dilip and Swapan went to road and talked something, but he could not say what happened thereafter. He learnt later on that Sarathi was murdered. This witness was declared hostile by the prosecution and was subjected to cross-examination by the prosecution. He was confronted with his previous statement as recorded by the I.O. under Section 161 Cr.P.C. where he stated that Harilal came to his shop and took tea and Madhab also came and called Harilal. While Madhab and Harilal were taking talking to Bimal Hrishi Das and Dilip Sarkar went there. But he could not say what was their conversation. He stated that he did not state to the I.O. that he came to learn from Swapan that on the said night Madhab and Harilal committed rape on Sarathi and thereafter, killed her, or that Harilal took away some ornaments made of silver from the body of Sarathi. Attention of the witness was drawn to his previous statement as recorded under Section 161 Cr.P.C. and such statements are found there. Those were marked as Exbt. P-6 subject to proof by the I.O. In the cross, he stated that When Swapan disclosed that the accused persons had killed Sarathi, there were some villagers, but at present, he cannot recollect their names. One A banga Hrishi Das was examined as P.W. 13 by the prosecution, who stated that after about a week of the murder of Sarathi, Harilal Hrishi Das went to his place of work and by producing a necklace and a bracelet made of silver requested him to arrange for selling the same or to purchase the same from him. He stated that the articles belonged to his sister. As he was running short of money, he could not purchase the same but arranged to mortgage the same to a rickshaw-puller named Pradip and took Rs. 50/- from him and handed over the amount to Harilal. The bracelet has been identified by the P.W. 13 as Ext. M.O. 1 articles. Witness Dulal Hrishidas is his younger brother. In the cross, he stated that Pradip mortgaged the articles to him. Then he says Harilal produced the articles to me. His brother afterwards purchased the articles from the rickshaw-puller. The bracelet has been identified by the P.W. 13 as Ext. M.O. 1 articles. Witness Dulal Hrishidas is his younger brother. In the cross, he stated that Pradip mortgaged the articles to him. Then he says Harilal produced the articles to me. His brother afterwards purchased the articles from the rickshaw-puller. All the villagers knew that the accused persons murdered Sarathi. After about 15 days of the murder of Sarathi, it was learnt by the villagers that the accused persons had murdered Sarathi. Prior to that he did not hear anything. He admitted that he was arrested in connection with this case. He was detained for two days. His brother was arrested and was detained for a night. He denied the suggestion that Police wanted to implicate him and his brother in this case and with a view to save themselves, he was deposing falsely. The P.W. 14 namely, Dr. Mridul Das was the Medical Officer, who conducted post mortem of the dead body of Sarathi Hrishi Das. He found the following injuries on the person of the deceased, Sarathi Hrishi Das: (1) four nail mark measuring 2" length in the right middle check extending up to middle of neck. (2) valva of the victim was found ruptured " length at the lower end clotted blood was found dribbling to both thigh. (3) 1" (breadth) ligature mark around the neck. On dissection, larynx, trachioa essophagous were found slightly congested. On dissection he also found foetus of two months in her uterus. Some foreign body was found on various size on her public area. After holding the post mortem, he came to the conclusion that the death of Sarathi Hrishi Das was caused due to the effect of strangulation. The injuries which were found on her body were anti-mortem in nature. In his opinion, he observed that before strangulation, the victim was raped. After completion of the post mortem examination, he had submitted the report in the prescribed form which is marked as Ext. P.7 and he identified the signature on that report. In the cross, he did not reveal any fact which can be used for defence of the appellant rather the P.W. 14 elaborated the position as per the medical science. He stated that in case of strangulation or ligature death, larynx and trachea became fully congested but the doctors never find the said organs fully congested. In the cross, he did not reveal any fact which can be used for defence of the appellant rather the P.W. 14 elaborated the position as per the medical science. He stated that in case of strangulation or ligature death, larynx and trachea became fully congested but the doctors never find the said organs fully congested. He denied the suggestion that the deceased was not raped prior to her death, and that she was not killed by strangulation. He denied that the wearing apparels were not examined chemically as there was no facility of the forensic examination was available at that time. But from internal examination of vagina, he could not find any spermatozoa therein. He did not examine the vaginal swab of the victim microscopically. He also admitted that he did not find any dried semen in the vagina of the victim. One Jiban Acherjee was examined as the P.W. 15. He was the Pradhan of Madhupur Gaon Sabha in the year 1997. On a certain morning, he was informed by the villagers that Sarathi Hrishi Das of Hrishi Colony under Madhupur Gaon Sabha had been killed. Hearing such information, he informed the matter in the Amtali Police Station over telephone. Swapan Hrishi Das of Hrishi Colony was known to him. After 10-12 days of death of Sarathi Hrishi Das, Swapan Hrishi Das met him in the market and told him that he would disclose something relating to murder of Sarathi Hrishi Das. He then took him to the Amtali P.S. and in his presence Swapan Hrishi Das disclosed to the I.O. of that case that he had seen Madhav Hrishi Das and two others murdered Sarathi Hrishi Das after committing rape on her. He had forgotten the name of two persons but they were present before the Court. He identified the accused Madhab Hrishi Das and two other persons in the dock. Swapan also told the I.O. that the accused persons removed all ornaments from the possession of the deceased Sarathi Hrishi Das. Swapan told the I.O. that he did not disclose the name of the accused persons out of fear, as the accused persons created pressure upon him. But in the cross-examination, he revealed that he was not examined by the I.O. One Debashish Choudhury was the Officer-in-Charge of Amtali P.S. on 26.03.1997. Swapan told the I.O. that he did not disclose the name of the accused persons out of fear, as the accused persons created pressure upon him. But in the cross-examination, he revealed that he was not examined by the I.O. One Debashish Choudhury was the Officer-in-Charge of Amtali P.S. on 26.03.1997. On that day at about 07:15 hours, he received one telephonic message from one Jiban Acherjee to the effect that dead body of Sarathi Hrishi Das found in her house premises. The informant could not give any details. He then entered the matter in the G.D. book of the P.S vide GDE No. 937 dt. 26.03.97. On the basis of that information, he rushed to the place of occurrence and obtained ejahar of Arati Hrishi Das. He had reduced her ejahar into writing and read over the same to Arati Hrishi Das, who on being satisfied that it was written as per version put her signature there on which has been identified and marked as Ext. P. 1/1 and the endorsement thereon has been marked as Ext. P. 1/2. He forwarded the same to the Amtali P.S. for registration and accordingly the Amtali P.S. Case No. 18/97 was registered under Section 302 of IPC. Bhibu Ranjan Barman, the Officer-in-charge filled up the FIR form. He identified the form as Ext. P.8. He also prepared the Hand sketch map of the P.O. with separate index which has been marked as Ext. P.9. He stated that after preparing the hand sketch map, he prepared the inquest report of the deceased (Ex. P.2/3) and arranged for taking photographs of the deceased. The photographs of the deceased with negatives were identified as Ext. M.O. 3 series. He also seized one dao and a piece of wood from the courtyard of the deceased by preparing a seizure list (Ext. P.3/2.). He identified his signature also (Ext. P.3/3). Thereafter, he forwarded the dead body to the IGM Hospital for conducting the post mortem. He had forwarded the dead body with a command through the Constable, Hiralal Debbarma. The dead body challan (Ext. P.11) and signature (Ext. P.11/1) have been identified by the P.W. 16. Thereafter, he recorded the statements of Sri Basu Dev Hrishi Das, Smt. Subama Hrishi Das, Sri Sukumar Hrishi Das, Sri Rebari Hrishi Das, Sri Apurba Laskar and Sri Subodh Biswas under Section 161 Cr.P.C. on the same day. The dead body challan (Ext. P.11) and signature (Ext. P.11/1) have been identified by the P.W. 16. Thereafter, he recorded the statements of Sri Basu Dev Hrishi Das, Smt. Subama Hrishi Das, Sri Sukumar Hrishi Das, Sri Rebari Hrishi Das, Sri Apurba Laskar and Sri Subodh Biswas under Section 161 Cr.P.C. on the same day. He had seized the wearing apparel of the deceased as produced to the police constable, Hiralal Debbarma. He had also seized those articles by preparing a seizure list (Ext. P./12). The said seized material was identified as the Ext MO-4. On 27.03.97 he had examined Subarna Hrishi Das and recorded her statement under Section 161 Cr.P.C. On 03.04.1997, he had arrested Bimal Hrishi Das and forwarded him before the Court of the C.J.M., West Tripura. On 04.04.1997 he had examined Swapan Hrishi Das and Jiban Acherjee and also recorded their statement under Section 161 Cr.P.C. On 05.04.1997 he had arrested Dilip Sarkar, Madhab Hrishi Das and Hrilal Hrishi Das and recorded their statement. On the same day, he had examined one Abanga Hrishi Das and recorded his statement under Section 161 Cr.P.C. On the same day, he had seized one ornaments made of silver from S.R. Jewelers, Battala. He had also seized some piece of silver from the said shop by preparing a seizure list (Ext. P.4/2) in presence of witnesses. He identified his signature thereon which has been marked as Ext. P.4/3 and the seized articles as the Ext. MO-2. He had examined two witnesses namely, Subrata Roy and Dulal Hrishi Das and recorded their statement under Section 161 Cr.P.C. On 06.04.1997 he had examined more three witnesses namely. Gita Hrishi Das. Ramananda Hrishi Das and Mangal Hrishi Das and recorded their statement under Section 161 Cr.P.C. On 09.04.1997, he had made a prayer to the CJM for adding Section 376 IPC in this case. His prayer was allowed. On 10.04.1997 he had examined one witness named Swapan Dey and recorded his statement under Section 161 Cr.P.C. on 21.04.1997. He had made a prayer to the CJM for a direction to the Superintendent of G.B. Hospital for arranging potentiality test of the accused persons namely, Madhab Hrishi Das and Harilal Hrishi Das. His prayer is allowed. Accordingly, their potentiality test had taken place in the G.B. Hospital and the medical officer opined that both the accused persons were capable to commit sexual intercourse. His prayer is allowed. Accordingly, their potentiality test had taken place in the G.B. Hospital and the medical officer opined that both the accused persons were capable to commit sexual intercourse. After completion of investigation, he filed charge sheet against the accused persons namely, Harilal Hrishi Das, Dilip Sarkar and Madhab Hrishi Das under Section 376 /302 /404 /109 of IPC. In the cross, he stated that on 03.04.1997 he arrested Bimal Hrishi Das on suspicion. Gita Rani Hrishi Das and Swapan Hrishi Das are mother and son. However, he could not say whether Bimal Hrishi Das is the maternal uncle of Swapan Hrishi Das. He however, denied the fact that he manufactured the statement of Swapan Hrishi Das and Gita Rani Hrishi Das. He did not reveal anything further of material consequences. The P.W. 16 was recalled by the defence and he was reexamined on 06.10.1999 when he stated that he had collected P.M. report on 07.10.1997. On reaching the place of occurrence, he started the investigation as the offence was cognizable. At the time of taking photographs of the dead body, it was shifted from the original place. He did not find any mat in the place of occurrence. The wearing apparel by which the deceased was strangulated was with the dead body even at the time of the postmortem examination. 3. The post mortem examination report is available in the record where in the column of external appearances, the injuries as noted hereunder were noticed: 1. 4 nail marks 2" length in the Rt. cheek extending up to middle of neck. 2. Vulva ruptured " length, at the lower end and clotted blood found dribbling to both thigh P/22 3. One 1" ligature mark around the neck (breadth). 4. The opinion of the Doctor as recorded in the post mortem examination report as to the cause of death may be reproduced: The death was due to the effect of strangulation around the neck and all injuries are ante-mortem in nature. The deceased was raped and then was killed by strangulation. 5. Mr. R. Datta, learned counsel appearing for the appellant submitted that there is no legal evidence against the appellant despite that the impugned judgment of conviction has been returned. Mr. Datta, learned counsel for the appellant further submitted that the oral testimony of the P.W. 7 cannot be weighed as the solitary eye witness. 5. Mr. R. Datta, learned counsel appearing for the appellant submitted that there is no legal evidence against the appellant despite that the impugned judgment of conviction has been returned. Mr. Datta, learned counsel for the appellant further submitted that the oral testimony of the P.W. 7 cannot be weighed as the solitary eye witness. The purported solitary eye witness namely, Swapan Hrishi Das (P.W. 7) cannot be trusted fundamentally on two counts: (a) that the explanation given for belated disclosure of his knowledge has severely affected his credit as he has not provided what occasioned him to disclose and (b) it would be evident further that the witness has embellished things to suit the design of the prosecution. Moreover, the statement that the deceased was his aunt has greater denting value in the context that when his maternal uncle namely Gauranga Hrishi Das was arrested in connection with the said case, he disclosed the knowledge to his mother, then to the Pradhan of the Gram Panchayat and the Police Officer. Mr. Datta, learned counsel emphatically stated that such witness can hardly be believed as this Court in Chagir Mia & Ors. Vs. State of Tripura as reported in 2006 (4) GLT 71 : (2008) 2 GLR 370 has stated the principle of appreciating the solitary eye witness: 7. While considering the present appeal, what may be noted, at the very outset, is that it is Dipu (P.W. 13) only, who has been examined by the prosecution as an eyewitness to the alleged occurrence of assault on, and killing of, Amal and Uttam, though it is not the prosecution's case that P.W. 13 was the sole eyewitness to the occurrence. Be that as it may, since the evidence of P.W. 13 is the evidence of a solitary eyewitness, it is his evidence around which revolves the entire case of the prosecution. At this stage, it is necessary to recall the principles of law governing appreciation of evidence of solitary witness. When the case of the prosecution rests on the evidence of a solitary eyewitness, his evidence must be found to be wholly reliable if his evidence were to be relied upon for forming basis for conviction of an accused. It is also important to bear in mind that the witnesses fall, in general, into three distinct categories, namely, wholly reliable, wholly un-reliable and neither wholly reliable nor wholly un-reliable. It is also important to bear in mind that the witnesses fall, in general, into three distinct categories, namely, wholly reliable, wholly un-reliable and neither wholly reliable nor wholly un-reliable. There is no difficulty in placing implicit reliance on the evidence of a wholly reliable witness. Similarly, the evidence of a wholly un-reliable witness can be easily discarded. It is, however, the evidence of witnesses, who fall in the middle category, that is, when they are neither wholly reliable nor wholly unreliable that the court must make an endeavour to find out if the evidence of such a witness stands corroborated in material particulars, by other evidence, direct or circumstantial. If on such corroboration, the evidence of such a witness inspires confidence, there is no impediment in law, in placing reliance on the evidence of such a witness. 8. Observed the Supreme Court, in the case of Lallu Manjhi and Anr. v. State of Jharkhand, (2003) 2 SCC 401 , thus: "The law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the Court may classify the oral testimony into three categories, namely, (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon the testimony of a single witness. 6. He further projected a hypothesis that if the said witness was not believed by the Court whether the circumstantial evidence has been established excluding all hypotheses of innocence. In this regard, he contended that except the P.W. 7, none has stated about the involvement of the appellant. The stolen articles as stated to have been sold to Subrata Roy (the P.W. 9) who stated that one Dulal Hrishi Das (the PW 10) came to his shop and produced a necklace made of silver and one bracelet made of silver asked to polish the same and a stone was fixed on the bracelet. He accepted the order, but after 5 days, he came back to take the articles. He accepted the order, but after 5 days, he came back to take the articles. Then he stated that the necklace should be returned on the same day and accordingly, he had melted the necklace at about 1 p.m. One police officer came to his shop with Dulal and asked him whether Dulal had given any articles to him and in reply, he informed the police officer that he handed over one necklace and one bracelet made of silver to him for renovation. Then it was seized from the P.W. 9. The P.W. 10 (Dulal Hrishi Das) stated that he purchased the said necklace and bracelet from one rickshaw-puller namely, Pradip and thereafter, went to the Jewellery shop, but said Pradip was not examined to establish whether the necklace and bracelet belonged to him or not. 7. Mr. Datta, learned counsel submitted that the non-examination of Pradip has disconcerted the appellant with the said stolen articles. However, the P.W. 13 (Abanga Hrishi Das) stated in the Court that after about a week of the murder of Sarathi, Harilal Hrishi Das (the appellant) went to his place of work and produced a necklace and a bracelet made of silver requested him to arrange for selling, but he could not purchase the same. He further stated that Harilal told him that he and Madhab killed Sarathi. But, in the cross-examination, the said witness stated that Pradip mortgaged the articles to him. His brother afterwards purchased the articles from the rickshaw-puller. But, the P.W. 1 (Arati Hrishi Das) in her examination-in-chief stated that in the police station, the police officer had shown her pieces of necklace made of silver and a bracelet made of silver with stone-setting and she identified those as ornaments of his sister, Sarathi. It is really astonishing that when a positive evidence has been laid that the necklace was melted by the P.W. 9 for crafting another necklace from silver of melted necklace. There can hardly be any identifiable pieces of the necklace, as seized. What the P.W. 9 had stated that after melting the silver, he had converted the silver into pieces and the said pieces of the silver were seized by the Investigating Officer. It appears from the testimony of the P.W. 9 that he handed over the bracelet and the pieces of her necklace. How a necklace can be identified, is not understandable by this Court. It appears from the testimony of the P.W. 9 that he handed over the bracelet and the pieces of her necklace. How a necklace can be identified, is not understandable by this Court. However, the evidence identifying the bracelet made of silver is a probable one. Most interestingly, the said witness (PW 13) did not identify the appellant in the dock. As the person who is accused of handing over the said necklace, the appellant was neither stated to be known to the P.W. 13 earlier nor was identified by him. Discrepancy of this nature has definitely snapped the chain of circumstantial evidence and in support of that contention, reliance has been placed on a judgment by the Apex Court in Megha Singh Vs. State of Haryana as reported in 1995 CRI. L.J. 3988 where the Apex Court held that: 4. After considering the facts and circumstances of the case, it appears to us that there is discrepancy in the depositions of the P.Ws. 2 and 3 and in the absence of any independent corroboration such discrepancy does not inspire confidence about the reliability of the prosecution case. We have also noted another disturbing feature in this case. PW-3, Shri Chand, head Constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal first information report was lodged and the case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that he was not only the complainant in the case but he carried on with the investigation and examined witnesses under Section 161, Cr.P.C. Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation. (emphasis added) 8. In State of U.P. Vs. Satish as reported in 2005 CRI. L.J. 1428 (SC), Apex Court held that: 10. 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. L.J. 1428 (SC), Apex Court held that: 10. 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 Hukam Singh v. State of Rajasthan ( AIR 1977 SC 1063 ), Eradu v. State of Hyderabad ( AIR 1956 SC 316 ), Earabhadrappa v. State of Karnataka (AIR 1983 SC 316, State of U.P. v. Sukhbasi ( AIR 1985 SC 1224 , Balwinder Singh v. State of Punjab ( AIR 1987 SC 350 ) and Ashok Kumar Chatterjee v. State of M.P. ( AIR 1989 SC 1890 ). 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 negative the innocence of the accused and bring home the offences beyond any reasonable doubt. 11. 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: 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. 12. 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. 12. In Padela Veera Reddy v. State of A.P. ( AIR 1990 SC 79 ) it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: 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 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. 13. In State of U.P. v. Ashok Kumar Srivastava (1992 Cri. LJ 1104) 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. 14. 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. 14. Sir Alfred Wills in his admirable book 'Wills' Circumstantial Evidence' (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt; and (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted. 15. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touchstone of law relating to circumstantial evidence laid down by this Court as far back as in 1952. 17. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra ( AIR 1984 SC 1622 ). Therein, while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in the prosecution cannot be cured by a false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused (emphasis added) 9. While responding to the submissions of Mr. Datta, learned counsel for the appellant, Mr. R.C. Debnath, learned Special Public Prosecutor submitted that the P.W. 13 cannot be disbelieved. The statement of the P.W. 13 completely involved the appellant of taking away the articles from the dead-body of the deceased. Thus his participation in commission of offence stands conclusively proved. He further submitted that the P.W. 7 cannot be disbelieved as he was put under fear. The I.O. cannot be made responsible for delayed recording of the statement of the P.W. 7. Finally, he submitted that recovery of the articles and the eye witness's account has been collated without leaving any space for suspicion. Thus, the judgment of conviction as returned by the trial court does not warrant any interference. 10. This Court has reassessed the evidence as led by the prosecution to appreciate the submissions of the learned counsel of the parties. 11. Most importantly, the Apex Court held in Satish (supra) that in the case of the delayed examination of certain witnesses, always the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the Court accepts the same as plausible, there is no reason to interfere with conclusion. 12. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the Court accepts the same as plausible, there is no reason to interfere with conclusion. 12. In this case, the delay in examination of the P.W. 7 cannot be attributed to the investigating officer or agency inasmuch as it is the case of the P.W. 7, who has claimed to be the solitary eye witness of the occurrence that as he was afraid of the consequences for his disclosure. He was reluctant to disclose the matter. However, he did not disclose why he later on, thought to disclose the matter to the other persons including the investigating agency. In absence of such explanation, his version becomes susceptible to doubt. Particularly, in the context (1) the P.W. 7 had witnessed the deceased immediately after discovery, he had occasions to track down seizure at various points from the villagers, (2) the P.W. 12 did not disclose that the P.W. 7 was slapped nor he saw something abnormal when he was going towards road with Dilip from his tea-stall, rather it appears he was voluntarily joining them, (3) He was an accomplice, even if his version is believed and he did nothing to prevent the heinous crime committed upon her aunt, even though the accused were not armed with deadly weapon. Moreover, in the vicinity of the place of occurrence some people were living in the huts and (4) probable planting of witnesses under threat of framing the P.W. 7 as the accused cannot be scaled. The P.W. 16 failed to give any explanation why the P.W. 7 was not made accused. Thus, his evidence even though he was declared 'approver' cannot be accepted in evidence without corroboration in material particular. 13. Further dilating the issue in hand, a decision of the Apex Court in the case of Jagjit Singh @ Jagga Vs. State of Punjab as reported in 2005 CRI. L. J. 955 may be referred to, where the Apex Court in Para 30 held that: 30. This has to be viewed in the light of the fact that her statement was recorded by the Investigating Officer for the first time three days after the occurrence, and her statement was recorded by the Judicial Magistrate six days after the occurrence. L. J. 955 may be referred to, where the Apex Court in Para 30 held that: 30. This has to be viewed in the light of the fact that her statement was recorded by the Investigating Officer for the first time three days after the occurrence, and her statement was recorded by the Judicial Magistrate six days after the occurrence. The courts below have taken the view that delay in examining her has caused no prejudice to the defence. Counsel for the appellant, submitted that this period was utilized by the prosecution for tutoring the witness, and therefore the delay of three days in her examination under Section 161 Cr.P.C. is significant. No explanation is forthcoming as to why she was not examined for three days when the Investigating Office knew that a statement of her's had been recorded by the doctor on 30th August, 1996. The Trial Court took the view that since she was under a shock she was not in a position to make a statement and, therefore, her statement was recorded later. This is clearly erroneous because the case of the prosecution is that she regained consciousness on 30th August, 1996 and, therefore, she was fully conscious. The evidence of Dr. Bhupinder Singh, PW-7 who gave a certificate of her fitness to make a statement is also to the same effect. The reasoning of the Trial Court that the victim, PW-6, was under a great shock and was not in a position to make the statement, cannot be sustained. Neither the Trial Court nor the High Court cared to closely examine the evidence on record to find out whether there was any evidence on record to prove that the appellant was known to PW-6 or that PW-6 had any reason to know his name so as to be able to identify him by name. The explanation furnished by PW-6 five years after the occurrence, that she knew the appellant because he happened to be the son of Amar Singh at whose tube well her grandparents resided, is unacceptable particularly, in view of the fact that there is no evidence to establish that she had ever earlier seen the appellant and in none of the three statements made by her earlier the name of Amar Singh is mentioned. The delay in examining her in the course of investigation also creates a serious doubt in the absence of any explanation for her late examination after three days, when admittedly she was the sole eve witness who was also injured in the course of the occurrence. We are, therefore, of the view that though she may have witnessed the occurrence, she did not know the appellant by name as she had no opportunity of knowing or seeing him earlier, and that she has involved the appellant at the instance of her father, who was the person who suggested the involvement of the appellant when her statement Ex. PW-6/A was being recorded. A close reading of those observations would show the delay in disclosing of the knowledge as regards to the occurrence is a very important aspect and cannot be weighed lightly. The trial Court, in this case has not given any consideration in this regard. 14. From the evidence of P.W. 8, it appears that after arrest of her brother, Swapan stated that Madhav, Harilal and Dilip have killed Sarathi. But nowhere, the P.W. 8 stated that Swapan stated her that he had seen the offence. Similarly, the P.W. 15, the Pradhan to whom the P.W. 8 sent the P.W. 7 for advice has stated that the P.W. 7 did not disclose anything to him, but the P.W. 7 stated that he would state something relating to the murder of Sarathi Hrishi Das. Before the police station, in his presence, Swapan Hrishi Das disclosed the investigating officer that he had seen Madhav Hrishi Das and two others murdered Sarathi Hrishi Das after committing rape on her. This witness also could not say that the P.W. 7 stated the name of the appellant before the police station. He stated in the Court that he had forgotten the name of the two persons. But, they were present before the Court. Those accused were not present in the police station on the relevant hour and there is no evidence that the P.W. 15 knew the accused persons from earlier time. Therefore, his identification has no evidentiary value. 15. The prosecution's initiative to incriminate the appellant by aid of the material objects, i.e. ornaments of the deceased has come to the halt, not to the hilt inasmuch as the circumstantial chain broke off for non-examination of the rickshaw-puller namely, Pradip by the prosecution. Therefore, his identification has no evidentiary value. 15. The prosecution's initiative to incriminate the appellant by aid of the material objects, i.e. ornaments of the deceased has come to the halt, not to the hilt inasmuch as the circumstantial chain broke off for non-examination of the rickshaw-puller namely, Pradip by the prosecution. Apart that, the Court could not find the source of information before disclosure by the P.W. 7. It is shrouded by deep suspicion how the police tracked 'the ornaments' at that stage. From the statement of the P.W. 7, on which the prosecution case rests, it appears that he had disclosed the matter as per advice of the P.W. 8 to the Panchayat member Ramananda Hrishi Das, who was also not examined by the prosecution and he stated that he then went to the police station and narrated the incident to the police. He did not corroborate that he disclosed anything or he even met the Pradhan of their village namely, Jiban Acherjee, the P.W. 15 and he nowhere stated in his deposition that he made the disclosure in presence of the said Pradhan. Further, he stated that after 8 to 10 days of the occurrence, he disclosed the matter to the P.W. 8. But, he did not say anything why he disclosed on certain point of time. It appears to the Court that the element of removal of threat or fear at that stage was nobody's concern. Hence, no explanation is available in the evidence. In absence of which, the evidence of this nature cannot be relied to return the judgment of conviction. Even the P.W. 8 did not state when the P.W. 7 returned at home, on the night of the occurrence to give some credence to his conduct. Rather the P.W. 7 has stated that after recovery of the dead body of the deceased, there was a village meeting where he was present, but did not disclose anything in that meeting. Even what he stated in the court was not stated to the investigating officer, at the time of recording his statement under Section 161 of the Cr.P.C. and such omission has been brought on record by the defence during the cross-examination. 16. Even what he stated in the court was not stated to the investigating officer, at the time of recording his statement under Section 161 of the Cr.P.C. and such omission has been brought on record by the defence during the cross-examination. 16. From the cumulus of unexplained ends as well as suspicions circumstances, it appears unsafe to rely on the evidence of the P.W. 7 for returning a finding of the conviction against the appellant as his conduct does not instill any confidence in the Court and the attempt of the prosecution to establish the guilt of the appellant in commission of the offences by the ornaments has failed as the chain was broken for non-examination of the rickshaw-puller namely, Pradip as this Court did not find evidence of the P.W. 13 trustworthy for embellishment to the extent that appellant has made an extra-judicial confession to him, but he did not disclose it to anyone. The Law is now fairly settled. In Padala Veera Reddy Vs. State of Andhra Pradesh & Ors. As reported in 1989 Supp (2) SCC 706 whereby the Apex Court held the following test unless satisfied no person can be convicted on the basis of circumstantial evidence: (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. 17. In this regard, the decisions of the Apex Court in the similar line are many. A few amongst them are: (1) Hanumant Govind Nargundkar Vs. State of M.P. as reported in AIR 1952 SC 343 (2) Sharad Birdhichand Sarda Vs. State of Maharashtra as reported in (1984) 4 SCC 116 (3) State of U.P. Vs. Ashok Kr. Srivastava as reported in (1992) 2 SCC 86 (4) Bodhraj Vs. A few amongst them are: (1) Hanumant Govind Nargundkar Vs. State of M.P. as reported in AIR 1952 SC 343 (2) Sharad Birdhichand Sarda Vs. State of Maharashtra as reported in (1984) 4 SCC 116 (3) State of U.P. Vs. Ashok Kr. Srivastava as reported in (1992) 2 SCC 86 (4) Bodhraj Vs. State of J & K as reported in (2002) 8 SCC 45 (5) Bharat Vs. State of M.P. as reported in (2003) 3 SCC 106 (6) Deepak Chandrakant Patil Vs. State of Maharashtra as reported in (2006) 10 SCC 151 (7) State of Goa Vs. Sanjay Thakran as reported in (2007) 3 SCC 755 . 18. The Apex Court sounded the caution that a great care must be taken in evaluating the circumstantial evidence and if the evidence relied on is reasonably capable of two inferences or found susceptible to improbabilities, the one in favour of the accused must be accepted. By the standard of the tests as referred, the piece of the circumstantial evidence has to be discarded. Moreover, the evidence of the P.W. 7 falls in the wholly unreliable category inasmuch as the shrouding context has not been removed by cogent evidence. The defence's silence and denial substantially corroded the prosecution's case. It could not be salvaged to succeed in a sustainable conviction. The Apex Court in Lakshmi Singh & Ors. Vs. State of Bihar as reported in (1976) 4 SCC 394 held: It is well settled that it is not necessary for the defence to prove its case, and it is sufficient if the defence succeeds in throwing a reasonable doubt on the prosecution case which is sufficient to enable the court to reject the prosecution version. 19. In view of this, the appellant is entitled to benefit of doubt. 20. Accordingly, the impugned judgment of conviction and order of sentence are interfered with and set aside. 21. For the reasons as discussed, the appeal stands allowed and the appellant is acquitted from the charge. The appellant be released forthwith. Send down the LCRs forthwith. Appeal allowed