JUDGMENT Prasanta Kumar Saikia, J. 1. This appeal is directed against the judgment dated 18.03.2014, passed by the learned Sessions Judge, Morigaon in Sessions Case No. 94 of 2009, convicting the accused/appellants of offence U/s. 302/201 IPC and sentencing them to suffer imprisonment for life and to pay a fine of Rs. 10,000/- each, in default, R.I. for another period of 1 (one) year for the offence U/s. 302 IPC and to suffer R.I. for 3 years and to pay a fine of Rs. 5000/- each, in default, R.I. for a further period of 6 months for the offence U/s. 201 IPC. It may be stated that by the aforesaid judgment, some other persons, namely, 1) Jagabandhu Sarkar, 2) Sri Nagen Ch. Sarkar, 3) Sri Brindaban Ch. Mandal and 4) Sri Puma Ch. Mandal, who were tried along with the convicted accused persons were acquitted of offence U/s. 302/201 IPC. 2. Being aggrieved by and dissatisfied with the judgment dated 18.03.2014, appellants, namely, 1) Sri Bhasan Ch. Sarkar, 2) Sri Nigam Ch. Sarkar and 3) Sri Amar Ch. Sarkar, (who would be referred hereinafter to as A-1, A-2 and A-3 respectively) had preferred this appeal citing several infirmities in the judgment under challenge. 3. We have heard Mr. A.L. Mandal, learned counsel for the appellants and Ms. S. Jahan, learned Addl. Public Prosecutor, Assam, appearing for the State respondents. 4. The facts projected by the prosecution in Sessions Case No. 94 of 2009, in brief, are that on the night of 01.04.2005 at about 11 P.M. accused Bhashan Sarkar (A-1), Jagbandhu Sarkar, Nigam Sarkar (A-2), Amar Sarkar (A-3), Brindaban Mandal, Nagen Sarkar, Punya Mandal and others came to the house of the victim girl, who was said to have an affair with A-1, kidnapped her from her own house. Though a vigorous search was made to trace her out, however, such effort yielded no result. 5. Therefore, an FIR to that effect was lodged on 13.04.2005 before the I/C Bhuragaon Petrol Post. (In short, P.P.). It has also been stated that in the FIR, the informant Sri Phatik Ch. Mandal, father of the victim, suspected that accused persons aforementioned having kidnapped his daughter might have subjected her to rape and thereafter they might have killed her too. 6. (In short, P.P.). It has also been stated that in the FIR, the informant Sri Phatik Ch. Mandal, father of the victim, suspected that accused persons aforementioned having kidnapped his daughter might have subjected her to rape and thereafter they might have killed her too. 6. On receipt of the FIR, I/C, Bhuragaon P.P., made a G.D. Entry vide G.D. Entry No. 274 dated 13.04.2005 and forwarded the same to the O/C. Laharighat Police Station for registering a case and for doing further needful. On receipt of the FIR, Officer-in- charge, Laharighat Police Station registered a case vide Laharighat P.S. Case No. 21/2005 U/s. 366/34 IPC and ordered investigation. 7. During investigation, the Police Officer who was entrusted with the investigation visited the place of occurrence, arrested the accused persons and examined the witnesses. As the investigation progressed, the I.O. seized the letters reportedly written by A-1 to the victim girl and sent the same to the Forensic Expert for examination and for his opinion thereon about the person who wrote such letters. 8. However, before he could complete the investigation, he was transferred and as such, he handed over the case diary to the O/C. Laharighat Police Station. According to him, one Sri Shidananda Bora (S/I), submitted charge sheet U/s. 364/302/34 IPC against as many as 7(seven) accused persons including the appellants herein and forwarded them to the court to face trial. 9. The learned Magistrate before whom the charge sheet was so laid, committed the case to the Court of sessions since the offences U/s. 302/364IPC are exclusively triable by the Court of sessions. On receipt of the case on commitment and on hearing the learned counsel for the parties, the learned Sessions Judge, Morigaon framed charges under Section 364/302/201/34 IPC against the accused persons and the charges, so framed, on being read over and explained to them, accused persons pleaded not guilty and claimed to be tried. 10. During trial, prosecution has examined as many as 20 witnesses including the I/O of the case. The statements of the accused persons U/s.313 CrPC were recorded. Their plea was of total denial. However, they declined to adduce any evidence of their own. 10. During trial, prosecution has examined as many as 20 witnesses including the I/O of the case. The statements of the accused persons U/s.313 CrPC were recorded. Their plea was of total denial. However, they declined to adduce any evidence of their own. On conclusion of trial and on hearing the arguments, advanced by the learned counsel for the parties, the learned Sessions Judge, Morigaon while acquitting as many as 4 accused persons, convicted the appellants of offence U/s. 302/201 IPC and sentenced them to punishment as aforesaid. 11. It is that judgment which has been assailed in this present appeal by the convicted accused persons stating that such a judgment cannot be sustained since it was rendered in violation of all established norms, rules and procedures. In that connection, it has been contended that several infirmities of extremely serious in nature make the prosecution case enormously untrustworthy. 12. In support of such contention, it has been pointed out that the testimonies of the most of the PWs are inconsistent, self-contradictory and defective on material points. More importantly, testimonies of some of the PWs are admixture of truth, half truth and falsehood where the truth cannot be separated from the falsehood and half truth. To provide life and blood to such contention, it has been stated that in her evidence, Smti Dulali Mandal (PW 6) alleged that on the night in question, on seeing her daughter being kidnapped by the accused persons, she raised hue and cry. 13. However, such a fundamental claim, made by PW-6, did not find support from Sri Phatik Ch Mandal (PW4), the informant and father of the victim girl since PW4 very categorically deposes that his wife came to know about her daughter being kidnapped after sometime of the incident and on coming to know, his wife raised hue and cry. Such drastically inconsistent testimonies of those two very vital witnesses make the prosecution case utterly unbelievable. 14. It has also been contended that there is indisputable evidence on record to show that the household of PW4 was surrounded by very many houses. Unfortunately, there is nothing on record to show that immediate neighbors of the PW4 were aware of such an incident of enormously serious in nature. 14. It has also been contended that there is indisputable evidence on record to show that the household of PW4 was surrounded by very many houses. Unfortunately, there is nothing on record to show that immediate neighbors of the PW4 were aware of such an incident of enormously serious in nature. In the facts and circumstances of the present case, such unawareness of the immediate neighbors about the incident in question throws the prosecution case to a maze of suspicion. 15. The learned counsel for the appellants again pointed out that though her daughter was allegedly kidnapped by the accused persons on the night of 1st April 2005, yet, such a serious incident was not reported by the mother of the victim girl to any person except to her husband. Non-disclosure of such vital information to the neighbors over a very long period of time does not auger well to advance the cause of prosecution case. 16. Equally important, though the incident aforesaid reportedly occurred on 01.04.2005, yet, such an incident was reported to police only on 13th, April, 2005. It is a settled law that the delay in lodging the case is fatal provided such delay remains unexplained. In the case in hand, according to the learned counsel for the appellants, delay remains unexplained and therefore, such unexplained delay makes the prosecution case more and more unreliable. 17. The learned counsel for appellants claims that there are more and more instances to show that the principal prosecution witnesses did not depict the true picture of the incident in question before the court. In that context, it has been stated that PW6, prime prosecution witness, deposes that she did not know if her daughter had any affair with A-1. 18. However, such claim stood wholly demolished in view of evidence rendered by other PWs including PW4, PW8 and PW20 since their evidence unmistakably demonstrates that the victim had a deep and prolonged affair with A-1. Such a state of affair instead of advancing the cause of the prosecution in the case under consideration makes it more and more doubtful. 19. Further case of the appellants is that Sri Prem Chand Mandal (PW8) claims that on the night of the incident, he heard hue and cry coming out from the house of victim girl for which he rushed to her house. 19. Further case of the appellants is that Sri Prem Chand Mandal (PW8) claims that on the night of the incident, he heard hue and cry coming out from the house of victim girl for which he rushed to her house. On his arrival at such place, father of the victim girl told him that his daughter, who was in some relationship with A-1, had gone missing from that night However, such evidence cannot be accepted without a large grain of salt since neither PW4 nor PW6 uttered a word about PW8's coming to their house on the night in question on hearing hue and cry from their house. 20. According to learned counsel for the appellants, learned court below places enormous reliance on the evidence of PW8 in coming to the conclusion that the appellants had killed the victim and threw her body into the river water since in his evidence, PW8 claims that PW18 told him that one night, he saw the appellants killing the victim girl on the bank of the river Brahmaputra and saw them throwing her body into river water. But such reliance is wholly uncalled for reasons more than one. 21. In that regard, it has been stated that though PW8 claims to have derived aforesaid information from PW18, PW18, not only refused to back such claim of PW8, but he also contends that family members of the victim girl (who are his co-villagers) profoundly tortured him sometime after the alleged incident presumably to support the case against the appellants and others although he was not in his village during the time relevant and returned home only after the occurrence in question. In spite of above, the learned court below chose to accept the testimony of PW 8 and PW18 in recording the verdict of guilt against the appellants herein. 22. The prosecution case suffers from yet another serious infirmity which was completely overlooked by the trial court. It has been submitted that though it is not a sine quo non to convict a person of offence U/s. 302 IPC yet there must be definite evidence to show that person concerned was killed. In other words, the factum of homicidal death needs to be proved before being found someone guilty of offence of murder. 23. It has been submitted that though it is not a sine quo non to convict a person of offence U/s. 302 IPC yet there must be definite evidence to show that person concerned was killed. In other words, the factum of homicidal death needs to be proved before being found someone guilty of offence of murder. 23. However in our instant case there is nothing on record to show that the victim girl who had reportedly gone missing on and from the night of 1st April, 2005 was dead in the meantime. These only shows that the verdict of guilt recorded U/s. 302 IPC against the appellants is without any foundation. 24. In support of such contention, the learned counsel for the appellants relies on the decision of this Court rendered in the case of Kamal Chakravorty v. State of Assam, reported in 2005 (Suppl.) GLT 162. The relevant part is reproduced below:-- "(5) In the present case as stated above, the dead body has not been recovered or found. The prosecution case is that after killing the deceased, the dead body was burled and although attempt was made to recover the same, it could not be found. The defence plea is that the deceased was suffering from mental illness and she has just disappeared and could not be traced out. The law regarding 'corpus Delicti' was laid down by the Apex court in the case of Rams Nand v. State of Himachal Pradesh, reported in AIR 1981 SC 738 wherein the Apex Court held as follows: "(1) Where the dead body of the victim in a murder case is not found, other cogent and satisfactory proof of the homicidal death of the victim must be adduced by the prosecution. Such proof may be by the direct ocular account of any eye witness or by circumstantial evidence, or by both. But where the fact of corpus delicit, i.e. 'homicidal death' is sought to be established by circumstantial evidence alone, the circumstances must be of a clinching and definite character unerringly leading to the inference that the victim concerned has met a homicidal death. The corpus delicit or the fact of homicidal death, therefore, can be proved by telling and inculpating circumstances which definitely lead to the conclusion that within all human probability, the victim has been murdered by the accused concerned. The corpus delicit or the fact of homicidal death, therefore, can be proved by telling and inculpating circumstances which definitely lead to the conclusion that within all human probability, the victim has been murdered by the accused concerned. In the instant case, circumstances in their cumulative effect, are not only inconsistent with the innocence of the appellant, but ineluctably and rationality compel the conclusion that the victim has died and it is the appellant who has intentionally caused her death". (6) In the later case of Sevaka Perumal v. State of Tamil Nadu, reported in AIR 1991 SC 1463 the Apex Court observed as follows:-- "In a trial for murder it is not absolute necessity or essential ingredient to establish corpus delicti. The fact of death of the deceased must be established like any other fact. Corpus Delicti in some cases may not be possible to be traced or recovered. Take for instance that a murder was committed and the dead body was thrown into flowing tide of river or stream or burnt out. It is unlikely the dead body must be recovered. If recovery of dead body is therefore is absolute necessity to convict an accused, in many a case the accused would manage to see that the dead body is destroyed etc and would afford complete immunity to the guilty being punished and would escape even when the offence of murder is proved. What, therefore, is required to base a conviction for offence of murder is that there should be reliable and acceptable evidence that offence of murder, like any other factum of death was committed and it must be proved by direct or circumstantial evidence, although dead body may not be traced." 25. According to the learned counsel for the appellants when the prosecution could not prove that the victim girl was killed, the appellants cannot be convicted of offence U/s. 201 IPC on the allegation that the appellants had disposed of the body of the deceased to wipe out the evidence against them. 26. According to the accused/appellants, it is a settled law that all the incriminating circumstances are to be notified to accused persons while being examined U/s. 313 CrPC. unless those incriminating circumstances are notified to the accused person during the examination of accused persons U/s. 313 CrPC, such incriminating circumstances cannot be utilized against those accused person. 26. According to the accused/appellants, it is a settled law that all the incriminating circumstances are to be notified to accused persons while being examined U/s. 313 CrPC. unless those incriminating circumstances are notified to the accused person during the examination of accused persons U/s. 313 CrPC, such incriminating circumstances cannot be utilized against those accused person. However, in the present case, many incriminating circumstances, which were not so notified to the accused persons, were relied on by the learned trial court in convicting the accused persons. On this count alone, the judgment under challenge requires to be interfered with. 27. On all those counts, learned counsel for the appellants urges this court to acquit the accused persons of the offence aforementioned on setting aside the judgment under challenge 28. On the other hand, Ms. S. Jahan, learned Addl. P.P. Assam, contends that there is indisputable evidence on record to show that on the night in question, the appellants along with other persons kidnapped the victim girl from her own house and kept her in confinement for some time and thereafter, they killed her one night on the bank of the river Brahmaputra and then threw her dead body into the river Brahmaputra in order to wipe out evidence against them. 29. According to Ms. S. Jahan, learned Addl. P.P. Assam, the testimonies of PW4, PW6 and PW8, coupled with the evidence of PW3, PW18, PW19 and PW20 make such a position abundantly clear and therefore, the learned trial court having convicted the appellants U/s. 302/201 IPC and sentencing them to punishment as aforesaid committed no error whatsoever. She, therefore, urges this court to dismiss the appeal affirming the judgment of the learned trial court. 30. We have considered the rival submissions of the parties having regard to the judgment under challenge and evidence on record. Before we proceed further, we find it necessary to have a look at the evidence of star prosecution witnesses who are none other than PW4, Sri Phatik Ch. Mandal, (father of the victim), PW6, Smti. Dulali Mandal (mother of the victim girl) and PW8, Sri Prem Chand Mandate, neighbor and relative of informant. 31. Before we proceed further, we find it necessary to have a look at the evidence of star prosecution witnesses who are none other than PW4, Sri Phatik Ch. Mandal, (father of the victim), PW6, Smti. Dulali Mandal (mother of the victim girl) and PW8, Sri Prem Chand Mandate, neighbor and relative of informant. 31. PW 6, Smti Dulali Mandal deposes that on the fateful night at about 10 PM when the victim went out of her house for answering the call of nature, A-1 caught hold of her and took her away from her house. Having seen such incident, PW6 raised hue and cry but none of their neighbors came forward to rescue the victim. According to her, Nigam, Amar, Nagen, Purna, Bindaban and Jagaban helped A-1 in catching and dragging the victim from her house. 32. According to PW 6, A-1 was also not found in his house next day. After about a week, though A-1 returned home but her daughter remained untraced. The suggestion that she did not state before the I/O during investigation that on the night in question, when her daughter came out of her house, the accused Bhasan (A-1) caught hold of her and took her away to some unknown place was denied by the PW6. 33. PW4, father of the victim (informant), however, deposes that on the fateful night, his daughter was kidnapped from his house by Bhasan, Amar, Nigam, Bindaban, Purna and Nagen. He did not see those accused persons kidnapping his daughter. Sometime after the kidnapping of his daughter, his wife heard their daughter yelling from the back yard of the house of the accused Bhasan. Since then, whereabouts of his daughter remained untraced. 34. During the course of investigation, police seized some letters reportedly written by accused Bhasan to his daughter on the strength of seizure list Ext. 2. In that connection, he lodged an FIR which he proved as Ext. 1. The suggestion that he did not state before the police that he came to know about the alleged incident from his wife was denied by the PW4. 35. In his evidence, PW 8 states that on 01.04.2005 while he was sleeping in his house, he heard hue and cry in the house of the informant. 1. The suggestion that he did not state before the police that he came to know about the alleged incident from his wife was denied by the PW4. 35. In his evidence, PW 8 states that on 01.04.2005 while he was sleeping in his house, he heard hue and cry in the house of the informant. He immediately rushed there and on his arrival at such place, father of the victim girl told him that his daughter had gone missing from his house on that night. Afterwards, he came to know that the victim was in relationship with A-1. 36. Some letters, addressed to victim girl, which were written by accused Bhasan were recovered from the house of the PW4. He read those letters and learnt that the victim had been in relationship with accused Bhasan. Thereafter, PW 4 lodged an FIR (Ext. 1). During the course of examination, police seized those letters on the strength of seizure list Ext. 2. 37. According to PW8, Sri Nitai Mandal, PW 18, told him that one night, he saw accused Nigam Ch Sarkar and Amar Ch. Sarkar killing the ill-fated girl and also saw them throwing her body into the river water. In his cross examination by the prosecution, the suggestion that he did not tell the 10 during investigation that PW18 told him that he (PW18) saw Bhasan, Nigam and Amar killing the victim girl and then he saw that throwing her dead body into the river Brahmaputra was denied by PW 8. 38. PW 20 Sri Mukul Ch. Kuli, is a Scientific Officer. According to him, on 02.05.06, he was working as Scientific Officer at FSL, Guwahati. On that day, he received one parcel from the Superintendent of Police, Morigaon and same was received by him through the Director, FSL, Guwahati. Such parcel contained two sets of letters. One set of letters said to be disputed handwriting which was marked as Q 1 to Q 12. Second set contained standard supplied handwriting which was marked as S-1 to S-21. 39. On examination of those documents, he found that the persons who wrote standard handwriting, marked as S 1 to S 21 also wrote the disputed handwriting, marked as Q 1 to Q 12. In that connection, he submitted a report to the Director, FSL, Guwahati, for onward transmission to the sender of the same. He proved his report as Ext. On examination of those documents, he found that the persons who wrote standard handwriting, marked as S 1 to S 21 also wrote the disputed handwriting, marked as Q 1 to Q 12. In that connection, he submitted a report to the Director, FSL, Guwahati, for onward transmission to the sender of the same. He proved his report as Ext. 3. 40. It is in those backdrops, let us consider the testimony of PW 18, Sri Nitai Mandal. According to him, during the time when the incident in question occurred, he was not at his residence. He went to Bijni and he went there for harvesting paddy. On his return, he came to know that the daughter of the informant (PW 4) had gone missing, He did not know how she had gone missing He was, however, declared hostile. 41. In his cross examination by the prosecution, he told the police that he could not remember if he told the police that one night about a month ago, when he was at his house, he had heard the cry of an woman coming from the side of Bhasan's house and on going there he saw Bhasan and his elder brother Amar strangling the daughter of Phatik Mandal (PW 4). 42. In his cross-examination, he also denied the suggestion that on the same day in the wee hours, he saw the accused Bhasan and his elder brother Nigam and Amar dragging the body of the victim towards the river Brahmaputra. In his cross-examination by defence, he however, claims that some family members of the victim girl had brutally beaten him and tried to throw him into the river. 43. PW 19 is Sri Hemanta Borah, S.I. of Police who investigated the case in hand. According to him on 5.4.2005, he was posted as I/C at Bhuragaon police outpost. On that day, he received an FIR from one Fatik Ch. Mandal who is the father of victim girl. Having received the FIR, he made a GD Entry in regard to such FIR and forwarded the same to the O/C concerned to register a case and do the needful in accordance with law. 44. During the course of investigation, he visited the P.O., examined the witnesses and came to know that victim girl was in relationship with accused Bhasan Sarkar. 44. During the course of investigation, he visited the P.O., examined the witnesses and came to know that victim girl was in relationship with accused Bhasan Sarkar. He also seized some letters reportedly written by Bhasan Sarkar which were addressed to the victim girl and such letters were seized on the strength of seizure list, Ext. 2. Those letters also reveal that the victim was pregnant during such time. 45. I have found that the prosecution has examined some other witnesses, such as, PW 1, PW2, PW3, PW5, PW9, PW10, PW11, PW12, PW13, PW14, PW15, PW16 & PW 17. Though their evidence show that the victim and the accused Bhasan were in relationship since before the alleged incident, they could not throw much light on the incident under consideration. 46. Above being the evidence on record, let us see how far such evidence makes out the charges brought against the appellants. Before we proceed further, one needs to know if on the night of 1st April, 2005, the appellants kidnapped the ill-fated girl from her house. We need to answer such a query since the entire prosecution case is founded on the allegation that on the night of 1st of April, 2005, the appellants along with others kidnapped the daughter of the informant from her own house, killed her subsequently and then they threw her body in to nearby river to wipe out evidence against them. 47. In this context, one needs to examine the evidence of PW 4, PW 6 and PW 8. Mother of the victim girl (PW. 6) deposes that on the fateful night at about 10 PM, the victim came out of her house to answer the call of nature. The moment, her daughter came out of her house, Bhasan (A-1) along with other miscreants caught hold of her and dragged her to some unknown place. Seeing such an incident, she raised hue and cry but none came to their house to rescue her daughter. 48. Unfortunately, such evidence of PW 6 did not draw any support from PW4 since the account, he rendered on such episode, differs drastically from the story so projected by PW 6. According to him, on the fateful night, the victim was taken away from his house by miscreants including appellant Bhasan. Neither he nor his wife was aware of the same. According to him, on the fateful night, the victim was taken away from his house by miscreants including appellant Bhasan. Neither he nor his wife was aware of the same. His wife first came to know about his daughter being kidnapped after about ten minutes of such incident when their daughter raised hue and cry from the back yard of the house of the accused Bhasan. 49. When one considers the above evidence of PW 6 in juxtaposition with the evidence, rendered by PW 4, he would invariably find that the claim of the PW6 that she saw her daughter being kidnapped by miscreants including appellant Bhasan cannot be accepted as truthful one. This is because of the fact that had PW6 seen the incident aforesaid, she would have raised hue and cry the moment she saw her daughter being kidnapped and in that event, there could not have been any occasion for the PW4 to say that his wife raised hue and cry only when she heard her daughter making hulla from the backyard of the house of accused Bhasan, and that too, only after about ten minutes of such incident. 50. The evidence of PW4, therefore, clearly demonstrates that the PW6 did not witness her daughter being kidnapped by the miscreants. Since the PW4 admittedly did not see his daughter being kidnapped by the miscreants including accused Bhasan despite he being in his house on the night in question and since the PW4 and PW6 rendered two drastically different versions on such a matter, in our opinion, claim of the prosecution that on the fateful night, the miscreants including Bhasan kidnapped the victim girl from her own house cannot be accepted without a large grain of salt. 51. One may note here that PW 8 too claims that on the night in question, he came to the house of PW 4 hearing hue and cry there-from. When he arrived at such place, father of the hapless girl told him that her daughter had gone missing from her house moments before. Unfortunately, such evidence of PW 8 also cannot be accepted as truthful account of incident in question since neither PW 4 nor PW 6 uttered any word about PW 8s' coming to their house on hearing hue and cry from such place. 52. Unfortunately, such evidence of PW 8 also cannot be accepted as truthful account of incident in question since neither PW 4 nor PW 6 uttered any word about PW 8s' coming to their house on hearing hue and cry from such place. 52. Quite contrary to it, the PW 6 quite categorically states that despite hue and cry, raised by her, none of her neighbors came to their house to help them to recover their kidnapped girl. Such evidence of PW 6 firmly shows that claim of PW 8 that he came to the place of occurrence on hearing hue and cry from such place and on his arrival, parents of the kidnapped girl told him that their daughter had gone missing moments before are nothing but pack of lies. 53. It is worth noting here that there is evidence on record to show that the household of the victim is surrounded by so many other households. According to PW 6, she raised hue and cry having seen his daughter being kidnapped but none of their neighbor came to their house to help them to rescue their daughter. However, the location of the house of the PW 6 and her reported reaction to the alleged acts of the accused person do not approve of such claim made by the PW 6. 54. The learned counsel for the appellants all along maintains that the prime prosecution witnesses are unworthy of reliance. In that connection, it has been pointed out that though PW 6 claims that her daughter did not have any affair with accused Bhasan, yet, PW6 and all other witnesses quite emphatically state that the victim was in a deep relationship with accused Bhasan since long before the alleged incident. This further shows that PW 6, one of the star campaigners from the prosecution side was not interested in telling the truth before the court. 55. Above revelations clearly evince that the claim, so forward by the counsel for the appellants that PW6 lied regarding the relationship of her daughter with accused Bhasan can be brushed aside. Rather, such a plea, we find, has firm basis for which it needs to be held that PW 6 was not at all interested in telling the whole truth before the court. Rather, such a plea, we find, has firm basis for which it needs to be held that PW 6 was not at all interested in telling the whole truth before the court. Such revelations are also testimonies to the facts that the prosecution case is not based on facts alone but on fabrications to. 56. The testimony of PW 6 suffers for another reason as well. In her evidence, PW 6 has stated that on the fateful night at about 10 P.M. the accused Bhasan caught hold of her daughter and forcibly took her away from her house for which she raised hue and cry. However, such important thing was not divulged to the I.O. during investigation. This omission is nothing but contradiction and such contradiction only serves to show that the claim of PW 6 that her daughter was kidnapped from her house on the night in question cannot be accepted as truthful claim. 57. It is in those backdrops, let us see whether prosecution could make out the charge of offence u/s. 302/201 IPC. The star campaigner in that regard was Shri Prem Chand Mandal (PW 8) and he is found saying that one day, PW 18 told him and some other persons that he (PW 18) saw accused Bhasan and his brother Amar strangulating the daughter of the PW 4. He also told them that he (PW 18) also saw those two persons throwing the dead body of the aforesaid girl into the Brahmaputra River. 58. It is found well apparent from the testimony of PW 8 that he did not see the accused persons killing the girl aforesaid or accused persons throwing her dead body into the river water. He claims to have derived such information from one Nitai Mandal who was examined as PW 18. Now, let us see if PW18 corroborates the claim made by PW 8 before the court below during trial. In his evidence, PW 18 emphatically states that when the incident aforesaid took place, he was not in his house. He was far away there from. PW 18 returned home long after such incident was over. PW 18 was, however, declared hostile 59. In his evidence, PW 18 emphatically states that when the incident aforesaid took place, he was not in his house. He was far away there from. PW 18 returned home long after such incident was over. PW 18 was, however, declared hostile 59. But then, fact remains that he did not at all support the claim of PW 8 that he (PW8) came to know about the killing of aforesaid hapless girl or her body being thrown into river Brahmaputra from PW18. That being the situation, the evidence of PW 8 could not at all establish the allegation that one night, accused Bhusan and Amar killed the daughter of PW 4 and thereafter, they threw her dead body into river water. 60. It may be stated here that it is a settled proposition of law that evidence of hostile witness cannot not be discarded in to. His evidence, which is found to be truthful, can still be relied on. However, in our instant case, as stated above, PW18 did not render any evidence which supports any of the claims of the prosecution in the case under consideration. Therefore, total reliance on the testimonies of PW8 and PW18 in coming to the conclusion that PW18 saw accused Bhusan and Amar strangulating the girl aforesaid and then saw them throwing her body into river Brahmaputra is found to be faulty. 61. The evidence of PW8 needs rejection on other count too. In his evidence, PW8 claims that PW18 told that he saw accused Bhasan and his brother Amar strangulating the daughter of the PW 4. He also saw those two persons throwing the dead body of the aforesaid girl into the Brahmaputra river. According to the PW8, PW18 made such claim in presence of PW8 and many others. 62. But prosecution makes no effort to find out those persons in whose presence the PW18 reportedly made such statements of enormous importance. The inability of the prosecution to locate such persons not only makes the evidence of the PW 8 that PW 18 made such statements in his presence and in the presence of other persons doubtful but it also makes the entire prosecution case enormously suspicious. 63. It is worth noting that prosecution relies heavily on the statements of the PW18 which he reportedly rendered before the police during investigation. 63. It is worth noting that prosecution relies heavily on the statements of the PW18 which he reportedly rendered before the police during investigation. In his evidence, the I/O deposes that PW18 told him during investigation that he (PW18) saw accused Bhusan strangulating the victim aforesaid and then he saw them throwing her body into the river Brahmaputra. However, in his cross examination by the prosecution, PW18 deposes that he could not remember if he (PW18) had stated before the 10 that he saw accused Bhusan strangulating the victim aforesaid and then saw them throwing her body into the river Brahmaputra. 64. In spite of above, the learned court below places huge reliance on the statements of the PW18 which he reportedly made before the 10 and which he subsequently refused to own up. It is a settled proposition of law that any statement before the I/O by a person during investigation can be used only for limited purposes which are notified in Section 162 CrPC itself. For ready reference, same is reproduced below:-- "162. Statements to police not to be signed: Use of statements in evidence-- (1) No statement made by any person to a police officer in the course of an investigation under Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the India Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the reexamination of such witness, by for the purpose only of explaining any matter referred to in his cross-examination. (2) Nothing in this section shall be deemed to apply to any statement failing within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of that Act." 65. In this connection, we may also rely on the decision of this court in the case of Sri Swapan Bardhan v. the State of Assam in Crl.A. No. 184/2013. "(27) In the present case, the prosecution has relied on the statements, made by the witnesses, before the I.O., under Section 161 Cr.P.C. and the learned Sessions Judge also based on the said statements to record the conviction. It is settled law that the statement recorded under Section 161 Cr.P.C. cant be used as substantive evidence. In the case of Tasildar Singh v. State of U.P. ( AIR 1959 SC 1012 ), the Supreme Court observed - "17. At the same time, it being the earliest record of the statement of a witness soon after the incident, any contradiction found therein would be of immense help to an accused to discredit the testimony of a witness making the statement. The section was, therefore, conceived in an attempt to find a happy via media, namely, while it enacts an absolute bar against the statement made before a police officer being used for any purpose whatsoever, it enables the accused to rely upon it for a limited purpose of contradicting a witness in the manner provided by Section 145 of the Evidence Act by drawing his attention to parts of the statement intended for contradiction. It cannot be used for corroboration of a prosecution or a defence witness or even a court witness. Nor can it be used for contradicting a defence or a court witness. Shortly, stated, there is a general bar against its use subject to a limited exception in the interest of the accused, and the exception cannot obviously be used to cross the bar. 19. Contradict" according to the Oxford Dictionary means to affirm to the contrary. Section 145 of the Evidence Act indicates the manner in which contradiction is brought out The cross- examining counsel shall put the part or parts of the statement which affirms the contrary to what is stated in evidence. This indicates that there is something in writing which can be set against another statement made in evidence. Section 145 of the Evidence Act indicates the manner in which contradiction is brought out The cross- examining counsel shall put the part or parts of the statement which affirms the contrary to what is stated in evidence. This indicates that there is something in writing which can be set against another statement made in evidence. If the statement before the police officer-in the sense we have indicated-and the statement in the evidence before the court are so inconsistent or irreconcilable with each other that both of them cannot coexist, it may be said that one contradicts the other." (28) The purpose of recording statement under Section 161 Cr.P.C. and the scope of its use has been prescribed by Section 162 Cr.P.C., which reads as follows: "162. Statements to police not to be signed : Use of statements in evidence.-- (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, it reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, he used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 if the Indian Evidence Act 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination. (2) Nothing in this section shall be deemed to apply statement felling within the provisions of clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of that Act." (29) In view of the above principle of law and the statutory provision, prescribed by Section 162 Cr.P.C, the statement made before the Police can't be used as substantive evidence to hold a person guilty. Said statements can be used only for the limited purpose of contradicting the maker of the statement in me manner provided by Section 145 of the Evidence Act. The object of such contradiction is to impeach the credibility of the witnesses by proving his former statement, which is inconsistent with any part of his evidence given before the Court Such statement cannot be used for the purpose of corroboration. If it is intended to contradict a witness with his previous statement in writing, his attention is required to be drawn to that part of the statement, which is to be used for the purpose of contradicting him. The procedure regarding confronting a witness with his previous statement has been laid down by a Division Bench of this Court in the case of Goutam Das & Anr. (supra). In the said case, the Court observed as under- "The proper procedure would, therefore, be- (i) to ask a witness first whether he made such a statement before the police officer; (ii) if the witness answers in the affirmative, the previous police statement, in writing, need not be proved; (iii) the cross examiner may, if he so chooses, leave it to the party, who called the witness to have the discrepancy, if any, explained in course of reexamination; (iv) if, on the other hand, the witness denies to have made such a previous statement attributed to him or states that he does not remember having made any such statement, and it is intended to contradict him with reference to his previous statement, the cross examiner must read out to the witness the relevant portion or portions of the record which are alleged to be contrary to his statement in Court and give him an opportunity to reconcile the same, if he can; (v) the best way of putting a statement is to put it in the actual words in which it stands recorded within quotation marks." 66. Similar view was rendered in Mukut Mohammad v. State of Assam, reported 2002 (3) G.L.J. 247. Our own Court in Mukut Mohammad (supra) has observed as follows:-- "Para. 45- It is. now well settled that the previous statement of a witness recorded under Section 161 Cr.P.C. can be used for the purpose of only contradicting his evidence given in the Court and that the previous statement of such witness is not substantive evidence and cannot be used for the purpose of corroboration by prosecution. In this case at hand, learned trial Court has, sadly enough, freely relied on me previous statement of P.W. 2 for the purpose of seeking corroboration for the case set up by the prosecution, which is wholly impermissible in law. Reference in this regard may be made to Baldev Singh v. State of Punjab ( AIR 1991 SC 31 ) wherein it has been laid down as under: Needless to stress that the statement recorded under Section 161 of the Code of Criminal Procedure shall not be used for any purpose except to contradict a witness in the manner prescribed in the proviso to Section 162(1) and that the first Information Report is not a substantial piece of evidence." 67. In the context, aforesaid, we may also peruse the decision, rendered Privy Council in R. v. Bhairab Chunder Chuckerbutty reported in 2 CWN 702. In R. v. Bhairab Chunder Chuckerbutt (supra), it has been held that the statements, rendered to the I/O during investigation, cannot be used for corroboration the prosecution case even with the aid of Section 157 of the Evidence Act This is because of the fact that the general law in section 157 of the Evidence Act is subservient to special legislation in section 164(2) CrPC which allows the statements before the I/O to be used only for the purpose of contradiction in the manner as provided U/s. 145 of the Evidence Act. 68. Equally importantly, such statements can be used as substantive evidence only when the conditions, specified in Section 162(2) CrPC are met The relevant part of the judgment in R. v. Bhairab Chunder Chuckerbutty (supra) is reproduced below:-- "21. In support of the fourth ground it is urged that by sec. 68. Equally importantly, such statements can be used as substantive evidence only when the conditions, specified in Section 162(2) CrPC are met The relevant part of the judgment in R. v. Bhairab Chunder Chuckerbutty (supra) is reproduced below:-- "21. In support of the fourth ground it is urged that by sec. 157 of the Evidence Act the testimony of a witness may be corroborated by any statement made by him relating to the same fact at or about the time when the fact took place or before any authority legally competent to investigate the fact, and that the previous statements made by the witnesses to the Police were therefore admissible in evidence. But sec. 157 of the Evidence Act, which lays down the general rule, must be taken subject to the exception contained in the special rule enacted by sec. 162 of the Code of Criminal Procedure which makes statements to the Police other than dying declarations inadmissible in evidence against the accused." 69. Coming back to our case, we have found that in his evidence, though I/O had confirmed that PW 18 had told him during investigation that he saw accused Bhasan and Amar killing the victim girl and also saw them throwing her body into the river water-yet-during the trial, PW18 refused to own up such statements. Unfortunately, the learned trial court chose to rely on such statements which PW18 reportedly rendered before the 10 during investigation and which PW18 refused to own up during trial. More importantly, the learned court below treated such statements before the police as substantive evidence and was pleased to convict the appellants of offence u/s. 302/201 IPC basically on the basis of such statements. 70. One may also note here that in order to find a person guilty of offence under Section 302 IPC, the recovery of the dead body may not always be a sine qua non. But then, there must be definite proof of the fact that person concerned is no more. The decision rendered in Kamal Chakravorty (supra) makes such position very clear. According to learned counsel for the appellants, there is nothing on record to show that the victim girl, who had reportedly gone missing on and from the night of 1st, April, 2005, is actually no more. 71. The decision rendered in Kamal Chakravorty (supra) makes such position very clear. According to learned counsel for the appellants, there is nothing on record to show that the victim girl, who had reportedly gone missing on and from the night of 1st, April, 2005, is actually no more. 71. We have very carefully considered the evidence on record and have found that there is no dispute over the fact that the body of the victim, alleged to be dead, was never recovered. But then, there is nothing on record to show that daughter of the PW4 is no more, much less her being killed by the accused/appellant Bhasan and Amar. Since it was not proved that the victim is no more, since the body of the victim, allegedly killed by the appellants, had never been recovered and since there is no proof of victim being killed by the appellants, it was too farfetched for the trial court to hold that appellants had killed the kidnapped girl. 72. Since it was not proved that the victim is no more, since the death of the daughter of PW4 was not proved, since her body was never recovered and since there is nothing on record to show that the appellants had ever thrown the body of the deceased to the river water, the trial court was also not right in holding that the appellants were guilty of offence u/S. 201 IPC as well. 73. In the instant case, we have already found that the prosecution could not at all prove that the appellants had kidnapped the victim girl on the night in question. Such fact coupled with the fact that prosecution could not prove that the appellants had killed the victim girl or having killed, they had thrown her dead body into the river Brahmaputra make it inescapable for the court to accept the claim of the appellants that the prosecution could not make out the charges leveled against the accused persons. 74. All these speaks loud and clear that the learned trial Court ought to have acquitted appellants of offence U/s. 302/201 IPC on giving them at least the benefit of doubt. Since that was not done, the judgment under challenge becomes unsustainable in law and is therefore, liable to be quashed and set aside. 75. 74. All these speaks loud and clear that the learned trial Court ought to have acquitted appellants of offence U/s. 302/201 IPC on giving them at least the benefit of doubt. Since that was not done, the judgment under challenge becomes unsustainable in law and is therefore, liable to be quashed and set aside. 75. We have found that the prosecution case or for that matter Judgment under challenge was attacked on some other grounds too. Since the prosecution case is already found unsustainable for the reasons aforesaid, we have found hardly any necessity to consider those alleged infirmities in the prosecution case. 76. Consequently, the appeal is allowed. 77. The judgment under challenge is set aside and the accused persons are acquitted of offence U/s. 302/201 IPC on benefit of doubt and set them at liberty forthwith if not required in connection with any other case(s). Return the LCR. Appeal allowed