JUDGMENT : Rumi Kumari Phukan, J. We have heard Mr. A. Dasgupta, learned counsel appearing on behalf of the applicants and also Ms. S. Jahan, learned Additional Public Prosecutor, Assam, for the respondent State of Assam. 2. This appeal under Section 374(2) of the Code of Criminal Procedure, 1973 is directed against the judgment dated 18.10.2012 passed by the learned Sessions Judge, Lakhimpur in Sessions Case No. 69(NL)/2009 thereby convicting the accused appellants under Section 302/32 I.P.C. and sentencing them to suffer rigorous imprisonment for life with fine of Rs. 5,000/- each, in default, to undergo rigorous imprisonment for a period of 6 (six) months. 3. The prosecution case in a nutshell is that-on 28.12.2004, the informant Md. Fazar Ali lodged an FIR before the Laluk Police Station to the effect that on 27.12.2004 at about 6:00 p.m., his son, Nazir Hussain was taken by Md. Azgar Ali and Md. Khajanur Rahman for attending a feast and on 28.12.2004 at about 7:00 a.m. he came to know that somebody had killed his son Nazir Hussain and had left the dead body in the field near river “Maneha” and the informant suspects the accused appellants to have been involved with the said offence. On the basis of the said FIR, the Officer-in-Charge of Laluk Police Station registered Laluk P.S. Case No. 163/2004 under Section 303/34 I.P.C. On completion of the investigation, the police submitted charge-sheet against the accused appellants. 4. The learned Judicial Magistrate, 1st Class, North Lakhimpur committed the case to the Court of Sessions at North Lakhimpur since the offence was exclusively triable by the Court of Sessions. The matter on being committed, the learned Sessions Judge framed charge under Sections 302/34 I.P.C. against the accused persons to which he pleaded not guilty and claimed to be tried. The prosecution examined as many as 14 (fourteen) witnesses and the defence examined 2 (two) witnesses during the course of trial. The plea of defence is of complete denial. The statement of the accused appellants were recorded under Section 3131 Cr.P.C. wherein also they denied all the allegations. On completion of the trial, the accused/appellants were held guilty for the offence under Section 302/34 I.P.C. and sentenced them to suffer rigorous imprisonment for life with fine of Rs. 5,000/- each, in default, to undergo rigorous imprisonment for a period of 6 (six) months. 5. On completion of the trial, the accused/appellants were held guilty for the offence under Section 302/34 I.P.C. and sentenced them to suffer rigorous imprisonment for life with fine of Rs. 5,000/- each, in default, to undergo rigorous imprisonment for a period of 6 (six) months. 5. Being aggrieved and dissatisfied, the accused appellants have preferred the present appeal against the order of conviction as aforesaid assailing that there are serious infirmities in the aforesaid judgment and the learned Trial Court committed error while appreciating the different aspects of evidence that the prosecution side measurably failed to prove the guilt the accused beyond all reasonable doubt. It has been seriously contended that the learned Court had based upon on the last seen theory as well as circumstantial evidence, whereas the chain of circumstances is not complete and only one aspect of last seen cannot be relied on by the prosecution in absence of other missing links in the prosecution story. It has also been contended that there is a long gap between the time when the deceased was seen with the accused and the dead body of deceased recovered. Further, the seizure of article at the instance of accused/appellants is not at all proved and the statement of witnesses suffers from severe infirmities and material contradiction which has been proved by the Investigating Officer, as such no credibility can be attached to such witnesses. 6. On the other hand, learned Additional Public Prosecutor has contended that there is no ground to interfere with the order of Judgment and conviction in view of the sufficient evidence against the appellants and other circumstantial evidence available therein. 7. We have heard rival contentions of both the parties as well as gone through the evidence on record. Admittedly, this is a case of no eye witness to the occurrence and prosecution basically relied upon the circumstantial evidence including last seen theory. On careful examination of evidence, it is to be noted that the PW-1 Marfat Ali, PW-3 Md. Altabuddin and PW-5 Md. Sulaman Ali have given statement only about the recovery of dead body of the deceased near the bank of river and their signatures in the seizure list, Exhibits. 1, 2 and 3 without knowing anything what has been written in the same. Altabuddin and PW-5 Md. Sulaman Ali have given statement only about the recovery of dead body of the deceased near the bank of river and their signatures in the seizure list, Exhibits. 1, 2 and 3 without knowing anything what has been written in the same. It has been specifically stated by PW-1 that he has no knowledge as why police took his signature in the said Exhibits. On the other hand, PW-3 has also stated that police took his signature on Exhibits-1 and 2 after police went to the house of Azgar and he do not know what was seized by such Exhibits-1 and 2 though police shown him a shirt and in cross-examination he stated that the shirt did not contain any stain of blood. Similar is the version of PW-5 who has stated that though police went to the house of accused Azgar but police did not seized anything in his presence and police obtained his signature in Exhibit-1, which was a blank sheet. The PW-1 was declared hostile by prosecution and he has not admitted about any statement before the police. 8. There is another set of evidence regarding seizure, they are PW-8 Altab Hussain and PW-9 Abdul Matlab and their testimonies relates to the factum of recovery of the dead body of deceased and also to the factum of preparation of Inquest Report. They have categorically stated about the signatures in the Exhibit-8, Inquest Report and Exhibit-3, Seizure List but the evidence is totally silent about the recovery by such seized article. They also replied that police did not disclose as to why their signatures were obtained in the Exhibit-3 Seizure List. Thus it is found that all these witnesses virtually has not supported the search and seizure made by the Investigating Officer and they signed the Seizure List as directed by the Investigating Officer, without knowing the contents thereof. 9. The evidence of PW-2 Smti. Halima Begum relates to a fact that while studying in school, both the accused Khazanur and deceased Nazir used to propose to marry for falling love with her but she rejected their proposals. She has no idea if they had any dispute on the issue. So her evidence is no help to prosecution. 10. Another important set of evidence comprised of PW-7 Ibrahim Khalilullah, PW-10 Rahimuddin and PW-11 Muslimuddin, which needs to be scrutinized. 11. She has no idea if they had any dispute on the issue. So her evidence is no help to prosecution. 10. Another important set of evidence comprised of PW-7 Ibrahim Khalilullah, PW-10 Rahimuddin and PW-11 Muslimuddin, which needs to be scrutinized. 11. According to PW-7, on the day of occurrence i.e. on 27.12.2004 when he was taking cattle from the paddy field on the way to home he crossed the accused Khajanur Rahman and Azgar Ali at about 4:30 p.m. and upon asking, as to where they are going, deceased replied that they were proceeding to attend a “milad”. On the next day morning he come to know Nazir Hussain has been killed and dead body was lying near river ‘Maneha’. Accordingly, he alongwith his father, uncle Muslimuddin (PW-11) and father of deceased Fajar Ali (PW-12) went to the place of occurrence and found the dead body of Nazir Hussain with a cut injury under neck and then, police arrived and brought the accused Azgar to the place of occurrence and then accused Azgar confessed before police in their presence that he alongwith two accused Khajanur and Momin has killed the deceased and later on police recovered the blood stain cloth from the house of Azgar Ali. He has denied the suggestion that he never made such statement before Investigating Officer. This material statement of PW-7 that the accused confessed about the occurrence before the police, in their presence, has been categorically denied by the Investigation Officer/PW-6, Hemanta Tamuli who has contradicted the statement of PW-7 that he never gave such statement before him. Obviously, this portion of evidence which is newly introduced in course of trial, not being disclosed before the Investigating Officer during investigation, cannot be acted upon. 12. On the next, the PW-10 Rahimuddin went to the place of occurrence while the dead body was recovered and according to him, police bought accused Azgar and Momin Ali to the place of occurrence and the accused Azgar Ali stated that Khajanur has killed the deceased. Police has also recovered a namaji cap and a button which is lying near the dead body and seized the same through Exhibit-7. He also put his signature in Exhibit-8, Inquest Report. Now if we compare the evidences of both the PW-7 and PW-10, it will be found that their statements itself contradictory on vital aspect of the matter. Police has also recovered a namaji cap and a button which is lying near the dead body and seized the same through Exhibit-7. He also put his signature in Exhibit-8, Inquest Report. Now if we compare the evidences of both the PW-7 and PW-10, it will be found that their statements itself contradictory on vital aspect of the matter. According to PW-7, the accused Azgar Ali confessed that he alongwith other two accused killed deceased, but according to PW-10, Azgar Ali stated before the police that he had not killed the deceased but Nazir Hussain was killed by Khajanur and he stated nothing more than that (which he stated in cross-examination). 13. Due to such contradictory statement of PW-7 and PW-10 as regards the implication of the accused persons, no explicit reliance can be placed upon either of the testimony. The version of the prosecution should be consistent all through the trial in all material aspects so as to avoid any sort of doubt about the complicity of the accused persons. Apart from corroboration of facts, the consistency and authenticity of the evidence is the hall mark of truth which is required to prove a charge to claim that a charge has been proved beyond a reasonable doubt. Here, if the accused made confession before police in presence of PW-7 and PW-10, then the statement of the witnesses should be supportive of each other but as we found it is contradictory on very vital aspect as to which accused actually confessed about the offence. That apart, confession before the Investigating Officer is not admissible as per Section 25 of the Evidence Act and this is not a case of extra judicial confession to act upon the evidence of these witnesses. 14. Now we will discussed the evidence of PW-11 Muslimuddin. He has stated about the fact that he saw the deceased Nazir Hussain went out from his house in the afternoon alongwith the accused Khajanur and Azgar Ali and upon asking, Nazir Hussain (since deceased) replied they were going to attend an invitation in the house of Khajanur. On the next day morning they came to know that Nazir has been killed by someone and his dead body was lying in the river bank of ‘Maneha’. They arrived at the place of occurrence and found the dead body with injury on his neck. On the next day morning they came to know that Nazir has been killed by someone and his dead body was lying in the river bank of ‘Maneha’. They arrived at the place of occurrence and found the dead body with injury on his neck. In the meantime, police arrived and recovered the cap lying nearby the dead body. Police followed the blood stain dragging marks on the ground from the place where the dead body was lying and reached near the residence of accused Azgar and found pool of blood in the low land. He also accompanied the police and police entered into the house of Azgar Ali and made search in his house and recovered one blood stain lungi and one shirt and seized the same. He put his signature, in the Exhibit-7 whereby the cap was seized. He stated in cross-examination that on the day when the deceased went out alongwith the accused persons, they were found in friendly atmosphere and there was a milad in the house of Khajanur and the place of occurrence was about 90 nalls away from the house of accused Azgar. He denied the suggestion that he never made such a statement before Investigating Officer that the police followed the blood stain marks towards the house of Azgar and police recovered some blood stain cloths, etc. in course of investigation. 15. It is to be noted that Investigating Officer/PW-6 has contracted the whole testimony of PW-11 that he did not make any such statement in course of investigation that police followed the blood stain marks towards the house of accused Azgar and recovered blood stain cloth, etc. During the course of the evidence, the PW-6 in the cross-examination has clearly stated that no such statement has been made by these witnesses in course of investigation, so his evidence has materially contradicted the testimony of PW-11, as such the piece of testimony is not acceptable. The omission of material facts during the course of investigation and making of statement in course of trial amounts to contradiction which is suggestive of afterthought and development of story, which is fatal to prosecution, which has happened in this case. 16. The omission of material facts during the course of investigation and making of statement in course of trial amounts to contradiction which is suggestive of afterthought and development of story, which is fatal to prosecution, which has happened in this case. 16. The another important witness is the Informant Fajar Ali, who as PW-12 has stated about the fact as averred in the FIR that on 27.12.2004, two accused Khajanur and Azgar came to their house and who were friends of his son Nazir Hussain and they took away Nazir to the house of Khajanur where there was a feast on the occasion of milad. Nazir Hussain did not return on the night and on the next day morning about 7:00 a.m. he was informed by his one grandson that dead body of Nazir Hussain have been found lying near the bank of river ‘Maneha’. Accordingly, he went to the place of occurrence and found the dead body with mark of injury on his neck. After some time police has arrived and he filed a FIR immediately thereafter vide Exhibit-9 and he also signed the Inquest Report vide Exhibit-8. His evidence would be appreciated in the later part. 17. Now let us discuss the evidence of Investigating Officer/PW-6, Hemanta Tamuli, PW-13 K. Rajkhowa and PW-14 Dhaneswar Das. The PW-6 is the Investigating Office who conducted the major portion of investigation who has stated that he visited the place of occurrence where the dead body found lying and he prepared the sketch map of place of occurrence vide Exhibit-6 and seized the cap owned by the deceased through Exhibit-7 Seizure List. Also caused the Inquest Report vide Exhibit-8. Further it is stated that he searched the house of accused Azgar and seized one blood stain half-shirt and one lungi and one pair chappal from his house through Exhibit-1. He also made search in the house of accused Momin and seized one blood stain shirt through Exhibit-2 and one button of shirt lying at the place of occurrence, through Exhibit-3 Seizure List. He also received the FIR Exhibit-9 from the informant, though he sent the accused Khajanur for recording confessional statement but it was refused. It has been stated that the button which was recovered from the place of occurrence resembled with the other button of the shirt seized from the house of accused Azgar. He also received the FIR Exhibit-9 from the informant, though he sent the accused Khajanur for recording confessional statement but it was refused. It has been stated that the button which was recovered from the place of occurrence resembled with the other button of the shirt seized from the house of accused Azgar. The Investigating Officer has also took the statement of PW-1 and PW-9 that they had made statement before him under Section 161 of the Cr.P.C. (but the said witnesses had denied to give any statement before Investigating Officer). In his cross-examination, the Investigating Officer has stated that PW-7 did not stated before him to the effect that “accused Azgar Ali was brought to the place of occurrence and he confessed before me in their presence that he alongwith accused Momin Ali and Khajanur Rahman has killed the deceased and blood stain cloths were recovered by police”. It is also stated by PW-6 further that PW-11 Muslim Uddin did not stated before him that police followed blood stain dragging marks found on the ground near the place of occurrence where the dead body was found lying and police near the residence of accused of Azgar Ali and found of pool of blood and police entered into the house Azgar and recovered one blood stain lungi and one shirt and seized the same. 18. PW-13 Mr. K. Rajkhowa has stated that during further course of investigation he arrested Khajanur Rahman and on interrogation as lead and shown by said Khajanur, he recovered a khukri from the cow shed from his house which was kept concealed. The said khukri was seized through Exhibit-11 in presence of witnesses. 19. The another Investigating Officer PW-14, Mr. D. Das has completed the investigation by collecting postmortem report and filed a charge-sheet, Exhibit-10. He has however admitted that seized articles were not sent for FSL examination for confirmation as to whether the blood strain found in the shirt was human blood or not. 20. Lastly, let us discussed the evidence of Medical Officer, Dr. Gahin Saikia, who conducted the Postmortem of the dead body of Najir Hussain in connection of the case and found the following injuries:- (1) On right lower eye lid 5 cm x 1 cm x upto bone. (2) On left forehead 3 cm x 1 cm x upto bone. (3) Posterior surface of left ear (2 cm). Gahin Saikia, who conducted the Postmortem of the dead body of Najir Hussain in connection of the case and found the following injuries:- (1) On right lower eye lid 5 cm x 1 cm x upto bone. (2) On left forehead 3 cm x 1 cm x upto bone. (3) Posterior surface of left ear (2 cm). (4) Posterior chest wall, middle region 2 in No. 1.5 cm x 1.5 cm upto bone of each wounds. (5) On left elbow joint 4 cm x 2 cm x upto bone. (6) Middle phalanx of left middle finger size-2/3 rd circumference of the phalanx. (7) Right arm anterior surface 2 cm x 1 cm z 1 cm (8) Right waist joint upto 3/4th circumference of the joint. (9) On neck of the level of upper end of the trachea. Structure involved-anterior and lateral muscles of the neck. Whole circumference of the trachea of vascular structure of both lateral side. Scalp, Skull and Vertebra: On parietal region, 3 cm in number-another to posterior placed. (a) 6 cm x 1 cm x outer table of skull. (b) 8 cm x 1 cm x inner table of skull. (c) 7 cm x 1 cm x inner table of skull. On occipital region, 3 in number, (a) 5 cm x 1 cm x outer table of skull of each wounds. The Medical Officer opined that the deceased died due to hemorrhage and shock as a result of injuries sustained and the injuries were homicidal. He also deposed that all the injuries cumulatively and the injury No. 9 found on the neck of the deceased alone can cause the death of the deceased. In his cross-examination, the Medical Officer deposed that he had not ascertained the time of death at the time of postmortem examination. 21. The defence side has also examined two witnesses namely Saiful Islam/ DW-1 and Md. Abdul Gafur/DW-2 and they have testified on the fact that on the day prior to the recovery of dead body of Nazir, there was a milad in the house of Usman Ali i.e. the father of accused Khajanur and feast has organized in their house. On the occasion, they alongwith deceased and accused were gathered in the feast alongwith 40/50 persons and the deceased left the house of Usman Ali at about 10:00 pm. On the occasion, they alongwith deceased and accused were gathered in the feast alongwith 40/50 persons and the deceased left the house of Usman Ali at about 10:00 pm. And thereafter they took their dinner alongwith accused Khajanur and Azgar and thereafter at the mid-night they left the house of Khajanur alongwith Azgar Ali and in the morning, on the next day they came to know about the death of Najir. So according to the defence evidence, the deceased left the house of accused Khajanur Ali alone and at that time none of the accused persons accompanied him as the feast was going on. 22. On overall appreciation of the matter in hand, we will found that the each set of evidence has given different description on the occurrence and some important features of the case deserved serious consideration. The prosecution in the instant case failed to prove certain links in the story as mentioned below. (i) None of the seizure witness has supported the evidence of Investigating Officer that the seized article was recovered from the house of the accused persons (which has been discussed above), (ii) There is nothing to show that the seized shirt, button and cap were belong to the deceased person. Simple assertion by the Investigating Officer that button recovered resembled with the shirt so recovered is of no consequence in absence of lack of evidence that those articles belongs to the deceased person, (iii) The evidence of material witnesses PW-7, PW-10 and PW-11, upon which prosecution relied to implicate the accused persons with the offence alleged being materially contradicted by the Investigating Officer and inconsistent itself (as discussed above) cannot be relied on, (iv) Save and except one circumstance that the deceased was taken by two accused persons in the afternoon from the house of the informant till recovery of the dead body on the next day morning, there was no other connecting evidence that the deceased remained alongwith the accused persons all throughout, (v) The evidence on record not enough to prove the chain of circumstances that it was none other than the accused, who might have committed the offence. There is also no evidence as regard any sort of enimity between the accused and the deceased, for which they may have motive to kill the deceased, rather as per evidence on record, deceased have friendly relationship with accused, (vi) None of the Seizure List, Exhibit-1, 2 and 3 which has been relied by the prosecution to show the complicity of the accused like recovery of blood stain cloth, etc. is not at all supported by independent witness and proves such seizure list which is a serious lacuna on the part of prosecution. Obviously, search and seizure if any made by the Investigation Officer alone cannot be accepted which is not substantiated by any of the witnesses. Mere exhibit in a document/seizure list is not at all enough, unless its execution is duly proved. (vii) Certain other aspects which can be noted that the informant PW-12 was also present at the time when police arrived alongwith PW-7 & PW-11 after the dead body was recovered but he has not utter a single word about such search and recovery of articles as has been stated by other witnesses PW-7, PW-10 and PW-11 although PW-12 was stated to be present along with them. The informant being the actual aggrieved person might have keen interest in the investigation so carried out by the Investigating Officer but his silence about such recovery, confession, etc. the whole episode as stated by other witnesses, indicated otherwise. (viii) The findings of the Investigating Officer/PW-13 regarding recovery of khukri through Exhibit-11 as shown by accused Khajanur cannot at all be accepted in view of the fact that none of the witnesses has disclosed about such fact and none of the signatory/witnesses to the said Seizure List has been examined by prosecution. The solitary evidence of Investigation Officer about such recovery without supported by any sort of evidence cannot be legally permissible, (ix) The time to death of the deceased could not be ascertained even by the Medical Officer and other witnesses as well, which is very crucial in such cases which is based on circumstantial evidence. 23. The abovementioned infirmities in the instant case have rendered the prosecution story not wholly reliable. 23. The abovementioned infirmities in the instant case have rendered the prosecution story not wholly reliable. The mere fact that two accused persons have taken away the deceased in the afternoon and on the next following day, dead body was recovered is not enough to prove the charge unless other aspects is proved. The learned Trial Court has given much credence upon the testimony of the witnesses without considering material contradiction, omission of the above referred witnesses. The evidence of Investigating Officer as regards search and seizure has also been relied, even though such search and seizure is not supported by the witnesses. Though the evidence of the Investigating Officer is not inherently to be doubted it but the mandate of law is the said search and seizure where the case is solely related to circumstantial evidence has to be proved in due manner where purportedly such seizure were made in presence of witnesses. 24. The learned counsel for the appellants has relied upon the decision of the Hon’ble Supreme Court in the case of Tanviban Pankaj Kumar Divetia Vs. State of Gujarat, reported in (1997) 7 SCC 156 , it has been held that in case of conviction basing upon the circumstantial evidence, each and every incriminating circumstances must be clearly established by the reliable and clinching evidence and the circumstances so proved must form a chain of event from which, the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. In a case depending largely upon circumstantial evidence, there is always a danger that conjecture and suspicion may take place of legal proof. The Court must satisfy itself that various circumstances, the chain of events have been established clearly and completed chain of events must be such as to rule out a reasonable likelihood of innocence of the accused. When the important link goes, the chain of circumstances gets snapped and other circumstances cannot in any manner establish the guilt of accused beyond all reasonable doubt. The Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof. There is a long mental distance between “may be true” and “must be true” and the same divides conjectures from sure conclusions. 25. The Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof. There is a long mental distance between “may be true” and “must be true” and the same divides conjectures from sure conclusions. 25. It has also been further held that falsity of defence cannot take the place proof of facts which the prosecution has to be established in order to succeed. A false plea may be considered as an additional circumstance, if other circumstanced proved ad established point out guilt of accused. 26. It has been held by Hon’ble Supreme Court on the theory of last seen together that it is highly artificial evidence and it has been pronounced in catena of cases that to base conviction on circumstantial evidence, the prosecution must establish on the basis of incrementing evidence by reliable and clinching evidence and the circumstance so prove and suspicion, however strong, Court cannot be substitute the same for proof and the Court shall take utmost precaution in finding an accused guilty only on the basis of circumstantial evidence. The last seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and deceased found death is so small that possibility of any other person other than the accused being the author of the crime becomes impossible. Even in such a case, the Court should look for some corroboration. It has also been held that in absence of definite evidence that the appellants and deceased were last seen together and when the time gap is long, no reason to conclude that the appellants are guilty of committing murder of deceased. Whether the time gap is long, it would be unsafe to face the conviction on the “last seen theory”, it is safer to look for corroboration from other circumstances. The last seen together itself is not conclusive proof but along other circumstances and surroundings incidents might lead to the presumption of guilt. Following cases can be referred into on the subject:- (i) Mousam Singha Roy & Ors. Vs. State of W.B., reported in (2003) 12 SCC 377 . (ii) Ramreddy Rajeshkhanna Reddy and Anr. Vs. State of Andhra Pradesh, reported in (2006) 10 SCC 172 . (iii) Niranjan Panja Vs. State of West Bengal, reported in (2010) 6 525. Following cases can be referred into on the subject:- (i) Mousam Singha Roy & Ors. Vs. State of W.B., reported in (2003) 12 SCC 377 . (ii) Ramreddy Rajeshkhanna Reddy and Anr. Vs. State of Andhra Pradesh, reported in (2006) 10 SCC 172 . (iii) Niranjan Panja Vs. State of West Bengal, reported in (2010) 6 525. (iv) Ajitsingh Harnamsingh Gujral Vs. State of Maharashtra, reported in (2011) 14 SCC 401 . (v) SAhadevan & Anr. Vs. State of Tamil Nadu, reported in (2012) 6 SCC 403 . (vi) Ashok Vs. State of Maharashtra, reported in (2015) 4 SCC 393 . (vii) Nizam & Os. Vs. State of Rajasthan, reported in 2015 (9) SCALE 513. 27. On the point of recovery of incriminating article at the instance of the accused the Hon’ble Supreme Court in the case of Mousam Singha Roy (Supra) it has been held that recovery of incriminating article at the instance of accused itself cannot form the basis of conviction unless it is proved properly. The recovery of incriminating article and its evidentiary value has to be considered in the light of other relevant circumstances as well as chain of events suggesting the involvement of the accused. In Mousam Singha Roy (Supra), the Hon’ble Apex Court has discussed the matter as below:- “……………These witnesses have not seen the actual recovery of the letter. They had only seen the IO who told them that a letter was recovered from the house of A-5 and signed the seizure memo. In our opinion this evidence is insufficient to prove the recovery. The very purpose of requiring a panch to witness the recovery is to see that independent witnesses vouchsafe for the fact that a particular thing was recovered from a place where the prosecution alleges it was found. It is absolutely necessary for these panch witnesses to see and observe from where exactly these articles were recovered. It is not sufficient if the IO produced certain articles and informed the panch witnesses that he has recovered them from a particular place, unless the actual place of recovery from where the article was recovered is seen by the panch witnesses. In the absence of same, their signatures on the recovery panchanama become useless in proving the recoveries. ………” 28. In the absence of same, their signatures on the recovery panchanama become useless in proving the recoveries. ………” 28. In the given case as has been discussed above, not a single witness has proved the recovery of incriminating article at the instance of the accused persons, Exhibits-1, 2 and 3 were the three Seizure Lists, prepared by the Investigating Officer but none of the witnesses has supported the contents of the seizure and failed to disclose as to wherefrom the Investigating Officer recovered those articles. The another Seizure List, Exhibit-11 is also an uncorroborated piece of Seizure List which has been categorically mentioned by one of the Investigating Officer, without being disclosed by any of the witnesses. Although a serious doubt is cast about the complicity of the accused but in absence of legal evidence on record holding of guilt of accused on the basis of doubt, however, strong it may be, the conviction cannot be maintained. There may be an element of truth in the prosecution story against the accused but there is distinction between “may be true” and “must be true”. There is a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before the accused can be convicted. It is a principle of criminal jurisprudence that more serious offence, the stricter the degree of proof, since a higher degree of assurance is required to convict an accused. 29. In view of the discussions and findings above, we are of considered view that the learned Court below is departed from the rule of prudence and other legal aspects while appreciating the evidence led by prosecution. In our opinion, circumstances relied by the prosecution in this case neither fully established nor consistent with the hypothesis of the guilt of accused. The circumstances so depicted do not exclude the hypothesis of the innocence of the accused. The appellants by adducing defence evidence has discharged the liability that the deceased left their house alone after taking dinner in their house at around 9:30/10:00 p.m. and they were very much busy in the feast which was going on. The circumstances so depicted do not exclude the hypothesis of the innocence of the accused. The appellants by adducing defence evidence has discharged the liability that the deceased left their house alone after taking dinner in their house at around 9:30/10:00 p.m. and they were very much busy in the feast which was going on. Though the appellants has denied that Nazir Hussain went to their house on the fateful day while giving statement under Section 313 Cr.P.C., but falsity of the plea of defence will not exonerate the prosecution from proving their case which they have measurably failed. 30. The evidence on record itself inconsistent with each other not to speak of corroboration and as such not wholly be liable to arrive at guilt of accused. The appellants are entitled to benefit of reasonable doubt. Accordingly, we allow the appeal and set aside the judgment of the learned Court below and acquit the appellants from the charge so framed against them. 31. The Appeal stands allowed. Return the L.C.R.