Judgment : Samapti Chatterjee, J. 1. The instant appeal is directed against the Judgment and Order of conviction passed in Sessions Trial Being No.3 of 2003 and Sessions Case being No.2 of 2003 passed by the learned Additional Sessions Judge, Raiganj Uttar Dinajpur on 22ndFebruary, 2005 and 23rd February, 2005 holding the appellants/accused persons guilty of offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer Rigorous Imprisonment for life and to pay fine of Rs.10,000/- each in default of payment of fine to suffer imprisonment for further period of one year. 2. Put in a short frame, the prosecution case runs as under : 3. On 09.09.2002 one Amaresh Kundu of Schoolpara, Kaliaganj, as usual was proceeding towards his brick field in his motorcycle with his wife on the back seat when he started from home. On the way, he dropped his wife at the bus stand who proceeded towards her office. Thereafter, the deceased alone proceeded to his destination through Collegepara Road. On the way at the place of occurrence on the said Collegepara Road, the accused Poltu Pakrashi asked the deceased to stop there and the deceased accordingly stopped. It was about 11 a.m.. Accused Hiranmay @ Tubai was also with Poltu at that time. When Poltu and the deceased were talking in high pitch at that time accused Tubai attacked the deceased from behind and assaulted him on his back by his knife. Then the deceased tried to flee away therefrom and tried to take shelter in a nearby house but failed as door was closed from inside. He then started running towards north side and both the accused persons chased him and caught hold him and thereafter assaulted almost all over his body with sharp cutting weapons. The deceased could not escape himself from the clutch of the accused persons and fell down on the earth in front of the house of Chittaranjan Das and expired there. After receiving the news of murder of Amaresh, his brother Animesh Kundu along with his worker/employee rushed to scene of occurrence. He subsequently lodged F.I.R before O.C. Kaliaganj P.S. and accordingly Kaliagunj P.S. Case No.108/2002 dated 09.09.2002 was registered for the offence u/s 302/34 of the Indian Penal Code. O.C. Kaliaganj, S.I Amit Pal took up investigation of the case and after completion of investigation he submitted charge-sheet. He subsequently lodged F.I.R before O.C. Kaliaganj P.S. and accordingly Kaliagunj P.S. Case No.108/2002 dated 09.09.2002 was registered for the offence u/s 302/34 of the Indian Penal Code. O.C. Kaliaganj, S.I Amit Pal took up investigation of the case and after completion of investigation he submitted charge-sheet. Accordingly trial started and after completion of trial learned Additional Sessions Judge held the appellants guilty for the offence punishable under Section 302/34 Indian Penal Code and convicted them as aforesaid. 4. In order to prove its’ case the prosecution has examined as many as twenty one witnesses (21) in this regard out of which P.W.1 to P.W.10 and P.W.15, 16, 17 & P.W.18 were private individuals. P.W.12, 13, 14, 19, 20 & 21 were police personnel and were attached with the process of investigation. P.W.11 was the Medical Officer who held postmortem of the deceased. P.W.2 to P.W.5 and P.W.8, 9, 16, 17 were hostile witnesses. 5. The entire prosecution case is solely based on the recovery of alleged offending weapons. Three accused persons faced the trial. Out of three accused persons one was acquitted and two accused persons were convicted. P.W.1 did not say anything. P.W.2, brother of the deceased was subsequently declared hostile. P.W.3 was the cousin brother of the deceased was subsequently declared hostile. P.W.5 , villager, was declared hostile by the prosecution. P.W.6 was the seizure list witness in respect of the motorcycle. P.W.7 was also the signatory of the seizure list. P.W.8 was declared hostile by the prosecution. P.W.9, villager, was declared hostile. P.W.10, was tendered by the prosecution. P.W.11 was Autopsy Surgeon who held the post-mortem examination over the deadbody of the deceased. On his examination P.W.11 stated that death was due to shock as a result of wound and hemorrhage which was ante mortem and homicidal in nature. He further deposed that wounds described in the post-mortem report (Exbt.-5) may be caused by this type of sharp cutting weapon namely ‘Da’ and long knife. Those two sharp cutting weapons were shown to him and he admitted the same. Those two weapons were without handles. (6) P.W.12, Police personnel who on 9th September, 2002 was attached to Kaliagunj P.S. He accompanied Amit Pal, S.I of police who made inquest of the deadbody of Amaresh Kundu and the P.W.18 put his signature in the Inquest Report (marked as Exbt.2/B) . Those two weapons were without handles. (6) P.W.12, Police personnel who on 9th September, 2002 was attached to Kaliagunj P.S. He accompanied Amit Pal, S.I of police who made inquest of the deadbody of Amaresh Kundu and the P.W.18 put his signature in the Inquest Report (marked as Exbt.2/B) . He is also the signatory of the seizure list (marked as Exbt.7 and marked as Mat Exbt.I collectively). He stated in his cross examination that he had not marked any special identification in his hand on those articles i.e. Mat. Exbt.I and he further stated that all these articles were without label. Post mortem blood was kept in a small bottle but that was not produced. P.W.13 is the signatory of the seizure list (Exbt.7/A) in respect of seized articles namely one pant, shirt, genji and underware which were produced in the Court. But in cross examination he stated that small bottle containing blood and ring were not produced in Court. P.W.14 Constable attached to Kaliagunj P.S. In his evidence stated that according to the direction of O.C Kaliagunj P.S. he along with other police force and two accused persons proceeded towards Collegepara near a pond. Those accused persons told on spot that after committing murder to some Kundu they threw away the weapons namely one ‘Da’ and one ‘Bhojali’ in the said pond. The P.W.20 is a Homeguard got down in the said pond for searching those weapons. He further stated that apart from them other persons also entered the said pond. He stated that Homeguard Ashoke searched out those weapons from the pond. After searching out of those weapons those were shown to the accused person for identification and the accused persons identified those weapons. Thereafter officer seized those weapons and prepared seizure list. (7) P.W.15, owner of the pond stated in his deposition that two sharp cutting weapons were recovered from his pond in his presence and he put his signature in the seizure list. He further stated that accused persons told the police that those sharp cutting weapons were used to murder the deceased and thereafter they concealed those weapons in the said pond. The accused persons were present on the spot when the weapons were recovered from the pond (Mat. Exbt.II). He further stated that accused persons told the police that those sharp cutting weapons were used to murder the deceased and thereafter they concealed those weapons in the said pond. The accused persons were present on the spot when the weapons were recovered from the pond (Mat. Exbt.II). The P.W.15, owner of the pond, identified those weapons but the said P.W.15 in his cross examination stated that he did not know who were accused persons and who were not. He further stated that he did not know how many days after the occurrence the said recovery of weapon from the pond took place. He further stated that he did not know anything about the talk taken place between the accused persons and the police personnel. He further stated that other than accused persons and the police personnel about 150 private persons were also present there. The P.W.15 further deposed that this type of weapon is available in market. He did not notice any special mark in the said weapon. He further deposed that he did not see what was in the hand of the police, when police recovered the weapons then he saw the weapons. He further deposed that at about 2 p.m. on that date when his son came and informed him that some persons were catching fishes from their pond. Then only he rushed to the pond and thereafter police told him that these weapons are recovered from his pond and also asked him to put his signature in the seizure list. (8) P.W.16 was the villager was declared hostile. P.W.17 was the resident of said village was declared hostile by the prosecution. P.W.18 was tendered by the prosecution. P.W.19 was the police personnel and the signatory of the seizure list (marked as Exbt.7/b and Mat. Exbt.I). P.W.20 is police personnel. On 4th October, 2002 he was attached to Chopra P.S. as S.I. In his cross examination he stated that he could not identify the accused persons. He further deposed that about 10:30 p.m. accused persons were arrested. He further stated that after returning to Chapra P.S. Amit Pal recorded his statement under Section 161 Cr.P.C in that village at night. He further stated that he could not say as to whether he recorded the statement of other witnesses there or not. He recorded the statement of those accused persons under Section 161 Cr.P.C. at that village. He further stated that after returning to Chapra P.S. Amit Pal recorded his statement under Section 161 Cr.P.C in that village at night. He further stated that he could not say as to whether he recorded the statement of other witnesses there or not. He recorded the statement of those accused persons under Section 161 Cr.P.C. at that village. (9) P.W.21 was the Investigating Officer. In his evidence he stated that the weapons by which the offence was committed were recovered from the pond. The said weapons were sent for FSL examination. He further stated that he did not make any attempt to ascertain whether those sandals which were recovered were of deceased or of the accused persons. He made all the seizure lists and the Mat. Exbts also. In his cross examination he stated that accused Ashim was arrested on 12th September, 2002. Weapons were recovered on 6th October, 2002. He also admitted in his deposition that other than Constables there about 150 persons were present on 6th October, 2002 on the bank of the said Kestopukur pond and the accused Tubai @ Paltu also were on spot and he (Tubai) told him that they murdered Amaresh Kundu and concealed the weapons in the said pond. He further deposed that owner of the pond P.W.15 never said that the name of the said pond is Kestopukur. He further deposed that he did not make any arrangement for guarding the pond for precautionary measure as soon as he came to know about concealment of those weapons. He further deposed that accused persons were taken into police custody on 5th October, 2002 in afternoon at about 18:05 hours and thereafter in the morning of 6th October, 2002 they were taken to the said pond at the time of recovery of alleged weapons. No explanation mentioned in the C.D as to why the accused persons were taken to the police custody on 5th October, 2002 at about 18:06 hours and thereafter in the morning on 6th October, 2002 they were taken to the pond at the time of alleged recovery of those weapons. He further deposed that he did not record the statement of accused persons on the bank of the said pond when they (accused persons) stated that they concealed the weapons in the pond. (10) Mr. He further deposed that he did not record the statement of accused persons on the bank of the said pond when they (accused persons) stated that they concealed the weapons in the pond. (10) Mr. Ganguly, learned Counsel appearing for the accused contended that the entire case was based on circumstantial evidence and he pointed out that in case of circumstantial evidence if there is any missing of link then chain cannot be formed. (11) He further contended that on that date apart from accused persons and police personnel about 150 other private persons were present on the bank of the pond. He further submitted that incident occurred on 9thSeptember, 2002 but alleged offending weapon was recovered form the pond on 6th October, 2002. Furthermore, the accused was taken into police custody on 5th October, 2002 at 6 p.m. but on 6th October, 2010, the police personnel took those accused persons to the said pond for recovery of alleged offending weapons. Mr. Ganguly further contended that it is apparent from the evidence of Investigating Officer the P.W.21 that knowing about the concealment of those offending weapons inside the pond he did not take any step to guard the said pond for precautionary measure. Mr. Ganguly in support of his contention regarding point of recovery of weapons based on circumstantial evidence relied on the Apex Court decision reported in 1994 SCC (Cri) 1751 Para-3 (Thankayyan vs. State of Kerala) as follows: “………That apart, it is hazardous to convict an accused for offence under Section 302 on mere recovery under Section 27 of the Evidence Act. The circumstances are sufficient to hold that the prosecution has not proved its case beyond all reasonable doubt. The appeal is allowed and the coviction and sentences of the appellant are set aside. The appellant be set at liberty forthwith unless he is required in any other case." (12) Mr. Ganguly further relied on the Apex Court decision reported in 2003 C Cr LR (SC) 585 (Babudas vs State of M.P) where the Apex Court held that a presumption could be drawn only if the factum of recovery is proved beyond reasonable doubt which in this case was missing as in the present case the recoveries are highly doubtful. Therefore on such doubtful recovery presumption as to the guilt of the accused cannot be drawn. (13) Mr. Therefore on such doubtful recovery presumption as to the guilt of the accused cannot be drawn. (13) Mr. Ganguly on the point of suspicious and circumstantial evidence relied on an Apex Court decision reported in 2007 (2) C. Cr. LR (SC) 669 (Sujoy Sen @ Sujoy Kr. Sen vs State of West Bengal) Paras 7, 13 and 14 as follows: “Para-7- This is a case of circumstantial evidence, and it is well settled that in a case of circumstantial evidence the prosecution has to establish the chain of circumstances which inevitably connect the accused to the crime. Even if a single link breaks, the whole prosecution case collapses. Para-13- No doubt, a minor discrepancy in a FIR will not be fatal to the prosecution case. But the discrepancy in the FIR in the present case is not a minor discrepancy, but a major one. Had the first informant seen the accused entering into the house at the time of the incident he would have definitely mentioned the fact in the FIR. Para-14- Thus, we are of the opinion that the prosecution has not been able to prove the chain of circumstances linking the accused to the crime beyond reasonable doubt. This, the appellant is entitled to the benefit of doubt. We order accordingly.” Mr Ganguly at the conclusion of his argument submitted that the prosecution has miserably failed to prove its case beyond reasonable doubt therefore the impugned Judgment and Order should be set aside as the appellants are entitled to get the benefit of doubt. (14) On the other hand Mr. Anand Keshri appearing for the State submitted that most of the witnesses were declared hostile and denied their statements recorded before the learned Court. Mr. Keshri further contended that even solely on the point of recovery conviction could be imposed. In support of his submission he relied on the seizure list regarding recovery of weapons (Exbt.8/2) . We are not at all impressed by the argument advanced by Mr. Keshri the learned Advocate for the State. (15) There cannot be any dispute that the deceased Amaresh Kundu died a homicidal death. Now the question is whether the prosecution has been able to connect the present accused persons with the alleged crime. (16) After carefully scrutinizing the evidence both oral as well as documentary we find that the prosecution case is only based on the recovery of alleged weapons. Now the question is whether the prosecution has been able to connect the present accused persons with the alleged crime. (16) After carefully scrutinizing the evidence both oral as well as documentary we find that the prosecution case is only based on the recovery of alleged weapons. We find from the evidence of P.W.11 Autopsy Surgeon that it is not apparent that the injuries were caused by the alleged weapons (without handle) since recovered from the pond. We find from the evidence of Investigating Officer that he did not send recovered weapons for FSL Examination. We also find that no wearing apparels of the deceased were seized. (17) We further find that P.W.21, Investigating Officer, took the accused persons into the police custody on 5thOctober, 2002 in the afternoon at about 18:05 hours. But on that date they were not taken to the pond for recovery of weapons. The police personnel on 6th October, 2002 took the accused persons to the bank of the said pond wherefrom the alleged weapons were recovered. We also find the police personnel gathered the information on 5th October, 2002 at about 8:05 a.m. regarding concealment of the alleged offending weapons in the pond but they did not make any arrangement for guarding the pond. We also find that P.W.21 Investigating Officer did not take any step to send those weapons for FSL Examination. We find that the prosecution did not make out any case of motive against the appellants to murder the deceased. (18) We find that the presumption could be drawn only if the factum of recovery is proved beyond reasonable doubt which in this case, is essentially missing because the recoveries were not proved beyond reasonable doubt. Therefore, on such doubtful recoveries presumption as to the guilt of the accused could not be drawn. The recovery of alleged weapons is very much doubtful, therefore we hold that on the basis of such circumstantial evidence appellants cannot be convicted by the Trial Court. (19) It is well settled principle of law that in a case of circumstantial evidence the prosecution has to establish the chain of circumstances which inevitably connect the accused to the crime. Mere recovery of articles cannot link the appellants with crime. (19) It is well settled principle of law that in a case of circumstantial evidence the prosecution has to establish the chain of circumstances which inevitably connect the accused to the crime. Mere recovery of articles cannot link the appellants with crime. In the present case we find that the prosecution has not been able to prove the chain of circumstances linking the appellants to the said crime beyond reasonable doubt. Therefore, we have no hesitation to hold that the prosecution has failed to prove the case beyond reasonable doubt and the appellants are entitled to get the benefit of doubt. The learned Trial Court had therefore, wrongly convicted the appellants of the alleged offence. The Judgment and Order of conviction and sentence dated 22nd February, 2005 and 23rd February, 2005 in Sessions Trial No.3 of 2003 and Sessions Case No.2 of 2003 convicting the appellants of the offence punishable under Section 302 of the Indian Penal Code is, therefore, set aside. The appellants are found not guilty of the charge under Section 302 of the Indian Penal Code framed against them. (20) The appellants are acquitted. They be released from the custody if their detention is not required in any other case. (21) The appeal is accordingly allowed.