JUDGMENT Samapti Chatterjee, J. 1. The instant appeal is directed against the Judgment and Order of conviction passed in Sessions Trial being no. 22 of 1989 passed by the Learned Additional Sessions Judge, 1st Court, Jalpaiguri on 30th January, 2008 and 31st January, 2008 holding the appellant guilty of offence punishable under Section 302/201 of the Indian Penal Code and as such the appellant was also convicted under Section 235(2) of the Code of Criminal Procedure to suffer rigorous imprisonment for life and to pay a fine of Rs.1,000/- only in default to suffer rigorous imprisonment for three months for the offence punishable under Section 302 of the Indian Penal Code. He was also convicted and sentenced to suffer rigorous imprisonment for three years and also to pay a fine of Rs.1000/-only in default to suffer further rigorous imprisonment for three months for the offence punishable under Section 201 of the Indian Penal Code. It was also ordered that both the sentences shall run concurrently. 2. Put in a short frame, the prosecution case runs as under:- On 1st October, 1987 at about 7 o’clock in the morning alleged accused Anil Roy came to Rasamay Sarkar, the elder brother of the defacto complainant . On that point of time Rasamay Sarkar (since deceased), was sitting in a jewellry shop situated at Kranti. In presence of the defacto complainant accused Anil Roy told his elder brother Rasamay Sarkar (since deceased) that he would purchase gold with lesser price. Gathering this knowledge the defacto complainant’s elder brother in presence of defacto complainant took Rs.4500/- and went away with accused Anil Roy. Since then the elder brother of the defacto complainant was not found/ traced out. The defacto complainant tried to take information or whereabout of his elder brother (since deceased) through different people of neighbouring area. Gathering this knowledge the defacto complainant’s elder brother in presence of defacto complainant took Rs.4500/- and went away with accused Anil Roy. Since then the elder brother of the defacto complainant was not found/ traced out. The defacto complainant tried to take information or whereabout of his elder brother (since deceased) through different people of neighbouring area. Thereafter on 3rd October, 1987 at about 12/1 noon the said accused Anil Roy came to Kranti Hat for purchasing clothes and that time the defacto complainant and his companions of that locality asked accused Anil Roy regarding missing of his elder brother Rasamay Sarkar (since deceased) and accused Anil Roy confessed that he himself and Kartick Roy of Bethguri together took Rasamay Sarkar (since deceased) to Metch Basty in Appal Chand Forest and there they i.e. to say accused Anil and Kartick injured the elder brother of the defacto complainant with sharp dagger on his neck and committed murder. Then they hide the dead body at Match Basty Forest and they also snatched away Rs.4500/- from the defacto complainant’s elder brother (since deceased). Thereafter, the defacto complainant , Dayal Sarkar, P.W.1 and his companion and other village people asked accused Anil Roy to let them know where the dead body of the elder brother of the complainant is hidden. Then the said accused Anil Roy took them with him to Metch Basty Forest check Block No.2 and showed the defacto complainant P.W.1 herein the dead body of his elder brother and the defacto complainant identified the dead body of his elder brother. Thereafter with the help of those villagers the complainant caught said accused Anil Roy and handed over him to Mal Police Station after disclosing the incident. He accordingly lodged a written complaint before the Officer-in-Charge, Mal Police Station and on the basis of which Mal Police Station Case No.1 dated 3rd October, 1987 under Section 302/201 of the Indian Penal Code was registered. That the case was investigated into and on completion of investigation charge-sheet was submitted under Section 302/201 of the Indian penal Code against the present appellant. 3. Regarding second accused namely Kartick Roy no charge-sheet was initiated and he was exempted. Thereafter the case was placed for trial before the Learned Additional Session Judge, 1st Court, Jalpaiguri who framed charges under Section 302 and under Section 201 of the Indian penal Code. 4. 3. Regarding second accused namely Kartick Roy no charge-sheet was initiated and he was exempted. Thereafter the case was placed for trial before the Learned Additional Session Judge, 1st Court, Jalpaiguri who framed charges under Section 302 and under Section 201 of the Indian penal Code. 4. After completion of the trial the Learned Additional Session Judge, 1st Court, Jalpaiguri held the appellant guilty and convicted him as aforesaid. 5. The prosecution examined as many as 14 witnesses in its support. Out of those witnesses P.W.1, Dayal Sarkar, is the defacto complainant and also the younger brother of the deceased, Rasamay Sarkar. (a) P.W.2 Dr. Asit Kumar Paul held post mortem examination of deceased Rasamay Sarkar as M.O., Sardar Hospital, Jalpaiguri. (b) P.W.3 Sailen Sarkar, a primary teacher of that locality is a resident of Krani Bazar under Mal P.S. (c) P.W.4 Sudhir Adhikary , a teacher of primary school is a resident of Kranti Bazar under Mal Police Station. (d) P.W.5 Jagadananda Pandey is a resident of Kranti Bazar under Mal Police Station. (e) P.W.6 Uttam Bhowmick is a resident of the same locality. (f) P.W.7 Amar Sarkar is also a resident of the same locality. (g) P.W.8 Purnalakshmi Sarkar is a resident of Kranti Hat under Mal Police Station and the wife of the deceased Rasamay Sarkar. (h) P.W.9 Ram Chandra Shil is a resident of Dakshin Baroghoria under Mal Police Station. (i) P.W.10 R.P. Singh, Constable No.300 , made the inquest of the dead body of deceased Rasamay Sarkar. (j) P.W.11 Padam Gurung , at the time of incident posted at Metch Basty of Applchand Range as Forest Guard guided the police team into the forest. (k) P.W.12 Bishambhar Mohanta is the resident of Kranti Bazar under Mal Police Station. (l) P.W.13 Subhas Chandra Roy is a resident of Rajadanga Baroghoria under Mal Police Station. (m) P.W.14 Mrinal Kanti Paul , Inspector of Police, is the Investigating Officer of the case who was endorsed with Malbazar P.S. Case No.1 dated 03.10.1987 for investigation and after completion of investigation he submitted charge-sheet against accused Anil Roy under Sections 302/201/471 of the Indian Penal Code. 6. We have heard Mr. Kallol Mondal, learned Counsel appearing on behalf of the appellant while the respondent/state has been represented by learned Public Prosecutor Mr. Manjit Singh with learned Advocate Pawan Gupta. 6. We have heard Mr. Kallol Mondal, learned Counsel appearing on behalf of the appellant while the respondent/state has been represented by learned Public Prosecutor Mr. Manjit Singh with learned Advocate Pawan Gupta. We have perused the records and proceedings, we also meticulously scrutinize the evidence, both oral and documentary brought on record by the prosecution and we find that there is no eye witness or direct evidence to the alleged incident of murder and the entire prosecution case based on circumstantial evidence and last seen together. 7. In a plethora of decisions the Supreme Court of India has laid down the guide lines for appreciation of evidence in a case of circumstantial evidence . In the case of Brajendra Singh Vs. State of Madhya Pradesh reported in 2012 Cr.L.J. 1883 the Supreme Court of India observed as follows:- “..It is a settled principle of law that the prosecution has to satisfy certain conditions before a conviction based on circumstantial evidence can be sustained. The circumstances from which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis, i.e. the guilt of the accused. The circumstances should be conclusive and proved by the prosecution. There must be a chain of events so complete so as not to leave any substantial doubt in the mind of the Court. Irresistibly, the evidence should lead to the conclusion inconsistent with the innocence of the accused and the only possibility that the accused has forming the chain of events should be proved and they should cumulative point towards the guilt of the accused alone. In such circumstances, 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. Furthermore, the rule which needs to be observed by the Court while dealing with the cases of circumstantial evidence is that the best evidence must be adduced which the nature of the case admits. The circumstances have to be examined cumulatively. The Court has to examine the complete chain of events and then see whether all the material facts sought to be established by the prosecution to bring home the guilt of the accused. Have been proved beyond reasonable doubt. The circumstances have to be examined cumulatively. The Court has to examine the complete chain of events and then see whether all the material facts sought to be established by the prosecution to bring home the guilt of the accused. Have been proved beyond reasonable doubt. It has to be kept in mind that all these principles are based upon one basic canon of our criminal jurisprudence that the accused is innocent till proven guilty and that the accused is entitled to a just and fair trial.” “It is a settled rule of law that in a case based on circumstantial evidence, the prosecution must establish the chain of events leading to the incident and the facts forming part of that chain should be proved beyond reasonable doubt. They have to be of definite character and cannot be a mere possibility”. 8. There can be no dispute that the deceased Rasamay Sarkar had died a homicidal death. Now the question is whether the prosecution has been able to connect the present appellant with the alleged crime? 9. Let us now examine/assess the evidence on record in the perspective of the aforesaid guidelines of the Supreme Court of India. 10. In a close and critical reading of the evidence both oral as well as documentary with meticulous care we see that the whole prosecution edifice is built of the alleged confessional statement of the appellant and also that deceased was last seen with the accused on 1st October 1987 at about 7 a.m. This being the position, we think it better and profitable to have a look into the relevant provisions of Law of Evidence. Section 25 of the Indian Evidence Act reads as follows:-“S.25. Confession to police officer not to be proved-No confession made to a police officer shall be proved as against a person accused of any offence”. Section 27 of the Indian Evidence Act reads as follows:- “S.27.How much of information received from accused may be proved.-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.” 11. We find P.W.1 says contrary to the P.W.7. We find P.W.1 says contrary to the P.W.7. P.W.1, Dayal Sarkar in his deposition stated that on being asked the accused Anil Roy fumbled for a few moments and confessed that he along with one Kartick Roy took his elder brother in Appalchand Forest and killed him by the dint of a bhojali near the Metch Basty The said accused Anil Roy stated this before Sailen Sarkar, Uttam Bhowmik, Sudhir Adhikary, Jagadananda Pandey and Bishambhar Mohanta. The P.W.1 further stated in his examination-in-chief that he saw accused Anil Roy and deceased Rasamay Sarkar were going on a bicycle in front of his shop on 1st October, 1987. But on 1st October, 1987 nobody informed the P.W.1 Dayal Sarkar that Rasamay did not return to his house on that date. But on the next morning his elder sister-in-law informed him that Rasamay was missing from last night. In his deposition P.W.1 further stated that from 1st October, 1987 to 3rd October, 1987 only he saw Anil Roy, the accused near the shop of Namichand Agarwal. He did not inform police regarding the incident of non-returning of his elder brother Rasamay. He further stated in his deposition that he first noticed that on 03.10.1987 accused Anil Roy was not with in bicycle and he was on foot. 12. We find P.W.8 being the wife of Rasamay says that after three days the dead body of her husband was brought. 13. We find P.W.9 says he did not see what is inside the seizure list and on the request of Daroga Babu he signed. P.W.9 and P.W.13 said that in the seizure list 27 articles were recovered beside the paddy field not at the place of occurrence. 14. We find no missing diary was ever lodged on the date of occurrence i.e. to say on 1st October, 1987, only on 3rd October, 1987 the complaint was lodged. This is not consistent with the ordinary human conduct as such the alleged extra judicial confession is unreliable and cannot be taken into account at all. 15. We find P.W.4 and P.W.13 became hostile and do not support the prosecution case. 16. That apart, we find no enquiry was done about Kartick Roy and no charge-sheet was brought against Kartick Roy. 17. We find P.W.12 said that one pair of shoes and bicycle was found but those were not produced before the Court. 15. We find P.W.4 and P.W.13 became hostile and do not support the prosecution case. 16. That apart, we find no enquiry was done about Kartick Roy and no charge-sheet was brought against Kartick Roy. 17. We find P.W.12 said that one pair of shoes and bicycle was found but those were not produced before the Court. Contradictory statements are made regarding place of recovery of dead body. Furthermore, no offending weapon was recovered at the time of investigation. P.W.12 further stated in his deposition that he along with P.W.1 Dayal Sarkar and others were taken to the said forest by accused Anil Roy and said Anil Roy showed them the place where Rasamay was murdered and also showed the deadbody of Rasamay. He further stated that they found injury on the neck of the said dead body, one toe of the foot was cut and there was cut on the nose also. The dead body was found in dense forest in front of a ‘Jala’ near a culvert. One cycle and a pair of shoes were also lying there. We find that P.W.12’s statement is confusing. 18. We find statement of P.W.1 and P.W.7 and P.W.10 are contradictory. P.W.7 stated in his deposition that accused Anil Babu disclosed that he required some money for which he wanted to pawn some ornaments whereas P.W.1 Dayal Sarkar stated in his examination-in-chief that accused Anil Roy and deceased Rasamay Sarkar were last found together on 1st October, 1987 but that does not prove that accused Anil Roy had any motive or intention to kill deceased Rasamay Sarkar. 19. On point of motive the Hon’ble Supreme Court clearly explained in case of Ramesh Baburao Devaskar and Others vs State of Maharashtra reported in (2009) 1 Supreme Court Cases (Cri) 212 where the Hon’ble Supreme Court of India observed as follows:- “Proof or motive by itself may not be a ground to hold the accused guilty. Enmity, as it well known, is a double-edged weapon. Whereas existence of a motive on the part of an accused may be held to be the reason for committing crime, the same may also lead to false implication. Suspicion against the accused on the basis of their motive to commit the crime cannot by itself lead to a judgment of conviction.” 20. We find that from the statement of P.W.2 Dr. Suspicion against the accused on the basis of their motive to commit the crime cannot by itself lead to a judgment of conviction.” 20. We find that from the statement of P.W.2 Dr. Asit Kumar Paul that except the abovementioned injuries other injuries may cause death. In his cross-examination he stated that rigor mortis disappears usually on an average after 24 hours of death and he himself stated that he held post mortem on 4th October, 1987 at 3:45 P.M. and the body was in decomposing state as rigor mortis passed off. He further stated in his cross-examination that an opinion as to cause of death of a decomposed deadbody is difficult but as this dead body was not in decomposed state and as such he could give his opinion. 21. We find that it is trite law that the discovery is a weak kind of evidence and it by itself is subsidiary and cannot sustain a conviction without independent corroboration. 22. Learned Advocate Pawan Gupta appearing for the State submitted that Kartick Roy was not placed in trial and he was discharged on the prayer of Investigating Officer. He further submitted that the deceased Rasamay Sarkar and accused Anil Roy were last seen together. He further submitted that tin suitcase was found in the jungle. He further contended that P.W.1, P.W.3, P.W.4 corroborated in respect of last seen together. But we find that the dead body of the victim was found after 3 days. The theory of last seen together is belied because there must be proximity in point of time between the time when the appellant and the victim were last seen together and the recovery of the latter’s body. 23. In the light of the totality the aforesaid discussions, we hold that the prosecution has utterly failed to prove the guilt of the appellant under Sections 302/201 of the Indian Penal Code. We. Therefore, allow this appeal and set aside the impugned judgment and order of conviction and sentence passed by the Learned Trial Court and acquit the appellant of the said charge. 24. The appellant Anil Roy is in jail and he shall be released and be set at liberty forthwith unless wanted in any other case. 25. Let the Lower Court Record be sent down to the Court below at once.