JUDGMENT : S. Talapatra, J. This is an appeal by the convict, the appellant hereinafter, under Section 374(2) of the Cr.P.C. against the judgment dated 14.07.2014 delivered in Sessions Trial No.164 of 2013 by the Addl. Sessions Judge, No.4, West Tripura, Agartala. By the said judgment dated 14.07.2014, the appellant has been convicted under Section 302 read with Sections 120B and 109 of the I.P.C. The appellant has been further convicted by the same judgment under Sections 120B/109 read with Section 109 of the I.P.C, under Section 302 read with Sections 111 and 113 of the I.P.C and under Section 201 of the I.P.C. As consequence of the said judgment, by the order dated 17.07.2014, the appellant has been sentenced to suffer imprisonment for life, meaning the whole natural life i.e. till his death, for committing the offence punishable under Section 302 read with Sections 120B and 109 of the I.P.C. with fine of Rs.50,000/(Rupees Fifty thousand). The appellant has been further sentenced to suffer rigorous imprisonment for a period of 3(three) years for commission of the offence punishable under Sections 120B, 109 read with Section 34 of the I.P.C. and to pay fine of Rs.5,000/(Rupees Five thousand). He has been further sentenced to suffer imprisonment for life for committing the offence punishable under Section 302 read with Sections 111 and 113 of the I.P.C. with fine of Rs.10,000/(Rupees ten thousand). The appellant has been sentenced to suffer rigorous imprisonment for 2(two) years for committing the offence punishable under Section 201 of the I.P.C. with fine of Rs.5,000/(Rupees five thousand). It has been directed that the sentences shall run concurrently and the fine if not realized that shall be leviable in terms of Section 70 of the I.P.C. 2. Genesis of the prosecution against the appellant is rooted in the ejahar filed by Smt. Niyati Deb (Ghosh), PW40 on 19.05.2013 disclosing that on 19.05.2013 when her daughter Papiya Ghosh (PW1) was inside their room, she heard some sounds fromthe upstairs of their room. Her daughter also told her that some sounds were coming fromthe upstairs of their room where the office of Ranjit Choudhury was situated. Her daughter also told her that some sounds were coming fromthe upstairs of their room where the office of Ranjit Choudhury was situated. Reacting to that, she came out fromher roomand went to the ground floor of Ganadoot Office and found that ‘one youth (aged around 2526 years wearing jeans and green coloured ganjee had been stabbing Sujit Bhattacharjee, Proof Reader with the help of a dagger by way of felling him down on the floor inside the office, seeing this I had called my husband, Balaram Ghosh raising alarm then at first daughter, namely, Papiya came out from our room and seeing the incident she started crying. In the meantime the accused have been stabbing Sujit with the help of a dagger. My husband came out from the room and seeing this incident cried out and proceeded to resist. Then the said miscreants had stabbed my husband and my husband fell down on the floor. Just at that time (I) found another miscreant was coming to the ground floor through the stair cases from the office room of Ranjit Choudhury on the upstairs. I found a wire in his hand. His age was also around 2526 years. They i.e. 2 (two) miscreants had fled away after killing two persons on the ground floor with the help of the dagger and killing another named Ranjit Choudhury, Manager in the upstairs which I found after going over there. On getting an information of the said incident, the police personnel came to the place of the occurrence and sent these 3(three) severely injured persons to the hospital and a few minutes later (I) came to learn that my husband and other 2(two) injured persons had succumbed to the stab injuries caused by this miscreants.’ (As translated by the translation department of this Court fromher statement as recorded by the police officer at the place of occurrence, Exbt.19) 3. Based on the said ejahar, which was received at 17.15 hours of 19.05.2013, West Agartala Police Station Case No.148 of 2013 was registered and taken up for investigation. Fromthe records as produced, it appears that on 19.05.2013 which was a Sunday, the ghastly murder of 3(three) persons, namely Ranjit Choudhury, Sujit Bhattacharjee and BalaramGhosh had taken place. BalaramGhosh was the husband of the informant (PW40). It can be estimated fromthe records that the time of occurrence was between 1.15 pm. to 3.00 pm. Fromthe records as produced, it appears that on 19.05.2013 which was a Sunday, the ghastly murder of 3(three) persons, namely Ranjit Choudhury, Sujit Bhattacharjee and BalaramGhosh had taken place. BalaramGhosh was the husband of the informant (PW40). It can be estimated fromthe records that the time of occurrence was between 1.15 pm. to 3.00 pm. On 19.05.2013 at about 3.25 pm, Sri Sanjoy Biswas (PW39), OfficerinCharge of West Agartala Police Station received a cryptic telephonic information fromthe appellant that ‘an havoc incident’ had taken place in the Ganadoot Patrika Complex. Since PW39 received the information fromoutside the police station, he immediately instructed the duty officer, namely Sri Arun Chandra Das (PW21) of his police station to record the said information, which was reduced in writing the General Diary, the G.D. in short, against the G.D. entry No.1088, Exbt.D. PW21 relayed the said information to Sri Manash Paul, a SubInspector of Police (PW41) and PW41 rushed to the place of occurrence to verify the matter. PW41 reached the place of occurrence at about 3.30 pmand found one person sustained serious injuries and he arranged to shift himto IGM hospital, escorted by his wife and daughter. He found one person likely to be dead in the ground floor and another person likely to be dead in the first floor. He made quick arrangement for shifting themto the GBP Hospital accompanied by the police personnel. At about 3.40 pm the entire area of the office complex was cordoned by the police. In the close proximity of time, PW40 returned fromthe hospital and about 4 pmher oral ejahar was recorded by PW39. At 4.15 pmto 4.30 pmthe sniffer dogs were engaged for finding out the trail. Simultaneously, FSL expert and the fingerprint expert came to the place of occurrence. PW41, at the instruction of PW39, started the investigation immediately thereafter. He prepared the hand sketch map, Exbt.21 and took photographs of the scene of occurrence. The formal registration of the FIR had taken place at about 5.15 pm. At the direction of the investigating officer, the FSL expert and the fingerprint expert seized physical exhibits fromthe place of occurrence. At 6.20 pm PW41 received a requisition fromthe hospital for sending the dead bodies for postmortemexamination. PW41 himself took photographs of the dead bodies before post mortemexamination. At about 8.55 pm. the investigating officer recorded the statement of Papiya Ghosh (PW1). At 6.20 pm PW41 received a requisition fromthe hospital for sending the dead bodies for postmortemexamination. PW41 himself took photographs of the dead bodies before post mortemexamination. At about 8.55 pm. the investigating officer recorded the statement of Papiya Ghosh (PW1). On 20.05.2013, on completion of the postmortemexamination, dead bodies were handed over to their close relatives. The wearing apparels of the dead persons were seized in the hospital in presence of the witnesses. At about 1.35 pm. on 20.05.2013, PW41 recorded the statement of Smt. Niyati Deb (Ghosh), PW40 and her daughter Papiya Ghosh (PW1) again. Fromthe statement of Papiya Ghosh (PW1), name of one Satyajit Das (PW6) revealed as the assailant. In the afternoon, the investigating officer came in the same complex and recorded the statement of Maya Choudhury, the wife of the appellant and one Purnima Banik (PW5). On 21.05.2013, PW41 examined two persons in the office of another newspaper, namely Ajker Fariad. Those persons were Tapan Chakraborty (PW26) and Sri Sumit Choudhury (PW27) to verify about Satyajit Das (PW5). He found PW5 was working at his own office on the fateful day. On that day, the appellant by convening a press conference declared financial assistance of Rs.1,00,000/(Rupees one lac) for each of the bereaved families. He had also declared reward of Rs.10,00,000/(Rupees one lac) if any person could assist to trace out the assailants. On 23.05.2013, PW41 received the postmortemexamination report. On 27.05.2013, the seized materials being duly packed by PW41 were sent to the State Forensic Science Laboratory, Narsingarh through the SubDivisional Police Officer, Sadar. On that day, PW41 examined Smt. Jayashree Ghosh (DW3) and Smt. Purnima Banik (PW5) again. On 30.05.2013, PW41 examined Sri Biswajit Bhattacharjee (PW7), brother of the deceased Sujit Bhattacharjee. On 31.05.2013, PW41 examined one Prantosh Acharjee (DW2) and Ramu Banik. On that day Niyati Deb (Ghosh), PW40 was detained for interrogation and later on, she was arrested in connection with that case. On 01.06.2013, PW40 was forwarded to the court of the C.J.M and on that day, some wearing apparels of Sujit Bhattacharjee were recovered fromthe roomof PW40. On 03.06.2013, PW41 again examined Satyajit Das (PW6) and one Namita Singha Roy (Ghosh), PW19. On 04.06.2013, PW41 examined Smt. Laxmi Rani Das (PW18) and on 05.06.2013, PW41 examined one Bikash Banik (PW8), Sumit Barua and Kalpana Choudhury (PW9). On 03.06.2013, PW41 again examined Satyajit Das (PW6) and one Namita Singha Roy (Ghosh), PW19. On 04.06.2013, PW41 examined Smt. Laxmi Rani Das (PW18) and on 05.06.2013, PW41 examined one Bikash Banik (PW8), Sumit Barua and Kalpana Choudhury (PW9). On that day, PW41 founds some more clues and with the leave granted by the C.J.M, West Tripura, Agartala, he interrogated PW40 in the jail custody. On 07.06.2013, the appellant was arrested and he was forwarded to the court of the C.J.M., West Tripura on 08.06.2013. The investigating officer again conducted search in the roomof the appellant and seized one half shirt (of maroon colour, one black colour half pant which were the wearing apparels of the appellant on the fateful day). He also seized one clutch wear and one CPU fromthe office roomof the appellant. PW41 examined on the same day one Kamal Barua (PW28). On 12.06.2013, PW41 again went to Ganadoot Patrika Bhawan and seized two cheques, one in the name of PW40 of Rs.20,000/and the other in the name of PW1 of Rs.80,000/. Those cheques were sent to the SFSL for examination on 13.06.2013. On 14.06.2013, PW41 seized two mobile sets belonging to the appellant fromhis residence at Ganadoot complex. On 25.06.2013, PW41 collected the SFSL report where it has been opined that no other genetic profile was found at the place of occurrence other than 3 (three) deceased persons. On that day i.e. 25.06.2013, PW40 submitted a petition before the C.J.M., West Tripura(DW4) through the Superintendent, Central Jail, Agartala expressing her willingness to make a full and true disclosure of the case. The C.J.M directed the jail authority to produce PW40 on 26.06.2013 at about 3.00 pm. On 26.06.2013 PW40 was produced before DW4 on the appointed time and she was orally examined. The CJM called for report fromPW41 against the petition filed by PW40. On 27.06.2013, I.O submitted his response. In terms thereof and on his assessment, DW4 granted pardon to the accused, PW40 as per provisions of Section 306(1) of the Cr.P.C. on condition of her making a full and true disclosure of the whole of the circumstances of the case within her knowledge relative to the offence. The statement of PW40 was recorded under Section 306(4) (a) of the Cr.P.C. after giving due caution to her. The said statement as recorded by the C.J.M is Exbt.20. The statement of PW40 was recorded under Section 306(4) (a) of the Cr.P.C. after giving due caution to her. The said statement as recorded by the C.J.M is Exbt.20. On 28.06.2013, the I.O. received a copy of the statement, Exbt.20, of PW40. PW41 then made a prayer to the C.J.M for adding Sections 120B/194 and 195 of the I.P.C. The C.J.M allowed that prayer. On 02.07.2013, PW41 examined one Dr. Pradip Kr. Roy (PW17). On 04.07.2013, PW41 examined one Ali Ahmed (PW12), Kapil Ahmed (PW13) and MuslimMiah (PW11). On 07.07.2013, PW41 examined one Sentu Ranjan Chakraborty, Pijush Chakraborty, BalaramDey (PW15) and Sri Sailen Paul (PW16). PW41 examined 18(eighteen) witnesses on 08.07.2013 and 6(six) witnesses on 19.07.2013. On 23.07.2013, PW41 submitted the SR (summary report) to the Superintendent of Police for approval for submitting the charge sheet. On 24.07.2013, the approval was received fromthe Superintendent of Police and PW41 submitted the charge sheet bearing CS No.110/2013 dated 24.07.2013 against the appellant under Sections 120B/302/201/194/195A of the I.P.C., against the accused No.2 BalaramGhosh, since deceased under Sections 302/120B and the accused No.3, Smt. Niyati Deb(Ghosh), PW40 under Sections 302/201/194 of the I.P.C. On 23.08.2013 at the instance of the appellant, PW40, the approver was crossexamined in the precommittal stage over her statement Exbt.20. On 27.11.2013, PW41 examined some more witnesses and filed a supplementary chargesheet bearing No.242/2013. Since the offences were exclusively triable by the court of Sessions, the C.J.M. West Tripura committed the police papers to the court of the Sessions Judge, West Tripura, Agartala. The Sessions Judge, West Tripura, Agartala transferred the case, renumbered as ST 164 of 2013, to the court of the Addl. Sessions Judge, No.4, West Tripura, Agartala for disposal in accordance with law. The said Addl. Sessions Judge, hereinafter referred to as the trial court, framed the charge against the appellant as under: “Firstly, that you Sushil Chowdhury, on or about 18.05.2013, or immediately prior thereto, at Dainik Ganadoot office, Palace Compound, Agartala and other places within the area of Agartala, had entered into a criminal conspiracy with Balaram Ghosh, (subsequently deceased) and had agreed to do an/ or caused to be done illegal acts further to the common intention of the same, to wit murder of one Ranjit Chowdhury on 19.05.2013 between 2.30 and 3.30 pm. and those acts were subsequently committed by Balaram Ghosh in pursuance of the said agreement, and you thereby committed an offence punishable under Sections 120B/34 of the Indian Penal Code, 1860, and within my cognizance; Alternatively That you Sushil Chowdhury, on or about 18.05.2013 or immediately prior thereto, had, at Dainik Ganadoot office, Palace Compound, Agartala and other places within the area of Agartala, had instigated and intentionally aided and thereby facilitated to be done, illegal acts further to the common intention of the same, to wit murder of one Ranjit Chowdhury on 19.05.2013 between 2.30 and 3.30 pm. by Balaram Ghosh, and that act was committed with your abetment by ensuring that the murder could be committed by Balaram Ghosh without any witnesses or obstruction thereto, creating the situation for the offence to be committed, and attempting to ensure that the same did not subsequently come to the light and you thereby committed an offence punishable under Section 109/34 of the Indian Penal Code, 1860 and within my cognizance; Secondly, that you Sushil Chowdhury, on 19.05.2013, between 2.30 and 3.30 pm. acting jointly and severally in pursuance of criminal conspiracy with one Balaram Ghosh(subsequently deceased), had facilitated and caused the death of one Ranjit Chowdhury at Dainik Ganadoot office, Palace compound, Agartala and thereby committed an offence punishable under Section 302 read with Section 120B of the Indian Penal Code, 1860 and within my cognizance; Alternatively That, you Sushil Chowdhury, on 19.05.2013, between 2.30 and 3.30 pm. acting jointly and severally in pursuance of a criminal conspiracy with one Balaram Ghosh (subsequently deceased), had facilitated, caused and abetted the death of one Ranjit Chowdhury at Dainik Ganadoot office, Palace Compound, Agartala and thereby committed offences punishable under Section 302 read with Section 109 of the Indian Penal Code, 1860 and within my cognizance; Thirdly, that you Sushil Chowdhury, on 19.05.2013, between 2.30 and 3.30 pm. acting jointly and severally in pursuance of a criminal conspiracy with one Balaram Ghosh (subsequently deceased), had abetted the said Balaram Ghosh, in causing the death of one Sujit Bhattacharjee at Dainik Ganadoot office, Palace Compound, Agartala which act was abetted by you by ensuring that the murder could be committed by Balaram Ghosh without any witnesses or obstruction thereto, creating the situation for the offence to be committed, and attempting to ensure that the same did not subsequently come to light and thereby committed offence of abetment of murder, punishable under Section 302 read with Sections 110/111/112/113 of the Indian Penal Code, 1860, and within my cognizance; Fourthly, that you Sushil Chowdhury on 19.05.2013 and thereafter, had given and fabricated false evidence, to wit a fabricated and false description of the unfolding of events surrounding the murders as charged herein above, and to name a specific individual namely, one Satyajit, intending thereby to cause the investigation agency to be misdirected away from yourself or the true circumstances of the offence specifically relating to the murder of Sujit Bhattacharjee and knowing it to be likely that another person, including but not restricted to one Satyajit would be convicted of a capital offence with the mala fide motive of deflection of suspicion and screening the true offenders including yourself and had thereby committed offences punishable under Section 194 read with Section 201 of the Indian Penal Code, 1860 and within my cognizance; Fifthly, that you Sushil Chowdhury on 19.05.2013 and thereafter, at Dainik Ganadoot office and your residence therein at Palace Compound, Agartala had instigated one Niyoti (Deb) Ghosh and her minor daughter, being one Papiya Ghosh to give fabricated and false evidence with a false description of the unfolding of events surrounding the murders as charged herein above, and to name a specific individual, namely, one Satyajit intending thereby to cause the investigation agency to be misdirected away from yourself or the true circumstances of the offence specifically relating to the murder of Sujit Bhattacharjee and knowing it to be likely that on the basis thereof, another person, including but not restricted to one Satyajit would be convicted of a capital offence with the mala fide motive of deflection of suspicion from the true offenders including yourself and had thereby committed offences punishable under Section 109 read with Section194 of the Indian Penal Code, 1860 and within my cognizance; Sixthly, that your Sushil Chowdhury, on 19.05.2013 and thereafter, at Dainik Ganadoot office and your residence therein at Palace Compound, Agartala, had threatened one Niyoti (Deb) Ghosh and her minor daughter, being one Papiya Ghosh, with injury to their person, reputation or property or to the person or reputation of any one in whom that person is interested, namely, Papiya Ghosh and Niyoti (Deb) Ghosh in relation to one another, with intent to cause them to give false evidence with the intention to deflect suspicion away from yourself and also to cause misdirection to the investigating agency as to the true state of affairs relating to the actual incident regarding the murders as charged hereinabove, and thereby committed an offence punishable under Section 195A of the Indian Penal Code, 1860, and within my cognizance.” The appellant pleaded total innocence and claimed to face the trial. 4. In order to substantiate the charge, the prosecution adduced as many as 41(forty one) witnesses, PWs1 to 41 and introduced 26 documentary evidence (Exbts.1 to 26) and several material objects (Exbts.M.O.1 to 11). From the defence in order to rebut the prosecution evidence, 6(six) witnesses DWs1 to 6 including the C.J.M, West Tripura, Agartala were examined and 10 (ten) material objects (Exbts.D/1 to D/10) were placed in the evidence. The documents which are also available in the records are the dead body challans of the deceased, copy of the chargesheet dated 24.07.2013 and copy of the supplementary chargesheet dated 27.11.2013. After the prosecution evidence was recorded, the appellant was examined under Section 313 of the Cr.P.C. and the appellant made an attempt to explain or deny the incriminating circumstances. On appreciation of the evidence, the trial court returned the finding of conviction by the impugned judgment dated 14.07.2014 observing inter alia that the evidence of PW1 is well corroborated by PW40, the approver to whomBalaram Ghosh, the coaccused and killed in the transaction disclosed that at the behest of the appellant, he committed the murder of Ranjit Choudhury. Not only that fromthe evidence of PW40, it further reveals that the appellant directed Balaramto commit murder of Sujit for causing disappearance of evidence. It has been further observed that PW1 witnessed the murder of Ranjit by Balaram. The trial court discarded the omission and contradiction as laid bare by the defence observing that: “in the evidence of PW40, Niyati, I hope that PW40 made a true disclosure of the facts and circumstances of the case leading to the murder of three persons and her evidence is also corroborated by other prosecution witnesses in material particulars. If there are any marginal variations in the statements of witnesses, it cannot be dubbed as improvements, as the same may be elaboration of a statement made by the witness at an earlier stage. But in the present case, whatever, stated by Niyati to Police, that was tutored version and she made true disclosure of the fact before the court as the approver. So, I find there is no improvement in the statement of Niyati. As far as the statement of Papia given to the police is concerned, there may be some omissions since that witness is a minor and seeing the incident of murder of three persons who sustained stabbed injuries. So, I find there is no improvement in the statement of Niyati. As far as the statement of Papia given to the police is concerned, there may be some omissions since that witness is a minor and seeing the incident of murder of three persons who sustained stabbed injuries. She was under shock and was not in a good state of mind as revealed from the evidence of PW5, Dr. Bikash Roy and those errors might occur owing to mental disposition and feelings of shock and horror that existed at the time of occurrence” The trial court has further observed that : “(i) in the instant case, the prosecution does not rely solely on the eyewitness evidence. Even leaving aside the eyewitness evidence, the circumstantial evidence will prove the guilt of the accused, and corroborate the eyewitness evidence; and (ii) the fact that the witnesses did not mention the truth out of fear is not just part of the evidence, but is one of the basic findings that need to be seen in this case, as a part of the basic circumstances and a relevant fact in itself, rather than merely part of the evidence and for this in fact, a separate charge has been framed against the accused Sushil Choudhury. Therefore, the present case stands on a different footings.” To question these findings in general, this appeal has been filed by the appellant. 5. Mr. P.K. Biswas, learned senior counsel has criticized the impugned judgment calling it as the testament of passion taking over the legal evidence and for waiving the fundamental principles of criminal jurisprudence. He was absolutely acerbic when he pointed out to the lines undernoted by which the judgment begins: “This is a case whereby a person having the mask of reputed person in the society alleged to have been involved in a heinous crime causing the diabolical murder of three persons in a broad day light.” Without dwelling upon much on that aspect of the matter, Mr. Biswas, learned senior counsel has submitted that it is the undisputed position of fact, revealed fromthe records that the appellant informed the OfficerinCharge of West Agartala Police Station first about the incident and on his information, the police officers arrived at the place of occurrence without much delay but for reasons entirely unexplained, they did not register the FIR at the first instance suomotu and they waited for the oral ejahar of PW40. When they had direct knowledge of a cognizable offence, they were under duty to register a case or to record the statements of witnesses available in the place of occurrence. For such conduct, adverse inference must be drawn against the prosecution. The apex court by way of numerous decisions has enunciated the law that the delay of few hours in recording the ejahar or the statement under Section 161 of the Cr.P.C., it creates doubt in the entire warp and woof on the entire prosecution case. He placed reliance on a decision of the apex court in Ganesh Bhavan Patel and another vs. State of Maharashtra, reported in AIR 1979 SC 135 , where it has been held that: “15. As noted by the Trial Court, one unusual feature which projects its shadow on the evidence of P.Ws., Welji, Pramila and Kuvarbai and casts a serious doubt about their being eyewitnesses of the occurrence, is the undue delay on the part of the investigating officer in recording their statements. Although these witnesses were or could be available for examination when the investigating officer visited the scene of occurrence or soon thereafter, their statements under Section 161 Cr.P.C. were recorded on the following day. Welji (P.W. 3) was examined at 8 a.m., Pramila at 9.15 or 9.30 a.m., and Kuvarbai at 1 p.m. delay of a few hours, simpliciter, in recording the statements of eyewitnesses may not, by itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eyewitnesses to be introduced. A catena of circumstances which lend such significance to this delay, exists in the instant case. 18. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eyewitnesses to be introduced. A catena of circumstances which lend such significance to this delay, exists in the instant case. 18. In this connection, the second circumstance, which enhances the potentiality of this delay as a factor undermining the prosecution case, is the order of priority or sequence in which the investigating officer recorded the statements of witnesses. Normally, in a case where the commission of the crime is alleged to have been seen by witnesses who are easily available, a prudent investigator would give to the examination of such witnesses precedence over the evidence of other witnesses. Here, the natural order of priorities seems to have been reversed. The investigating officer first recorded the statement of Ravji, in all probability, between 12.45 and 3 a.m. on the 30th of Constable Shinde at 4 a.m., and thereafter of Walji, Kanjibhai (P.W.7), Santukbai (P.W. 6), Pramila, and Kuvarbai, between 8 a.m. and 1 p.m. 27. The most important of these circumstances is the conduct of S.I. Patil in not recording that ‘first information’ allegedly given by Shinde and Ravji on that occasion. S.I. Patil admitted that he did not record the information given to him by Shinde and Ravji about the occurrence on that occasion. The information, which he then received, was about the commission of a cognizable offence. It was, therefore, the duty of S.I. Patil (who was incharge of the Police Station) to record it in accordance with the provisions of Section 154 Cr.P.C., but he did not do so. The explanation given by him was that it was the practice of his Police Station not to record such information until a message was received from the Hospital with regard to the condition of the injured person. This explanation of Patil's failure to do what was his statutory duty, was mere moonshine and was rightly repelled by the learned trial Judge.” 6. He has further relied to buttress the same point on the apex court’s decision in Kailash Gour and Ors. vs. State of Assam, reported in 2012 CRI.L.J. 1050, where it has been held as under: “27. There can be only two explanations for this kind of a situation. He has further relied to buttress the same point on the apex court’s decision in Kailash Gour and Ors. vs. State of Assam, reported in 2012 CRI.L.J. 1050, where it has been held as under: “27. There can be only two explanations for this kind of a situation. One could be, that the Investigating Officer was so stupid, illtrained, ignorant of the law and procedure that he did not realise the importance of getting a crime registered in the police station concerned before undertaking any investigation including conduct of an inquest, post mortem etc. The other explanation could be that since neither the Investigating Officer had any clue as to who the perpetrators of the crime were nor did the witnesses now shown as witnesses of the occurrence had any idea, the investigations started without any First Information Report being recorded till late at night on 15th December, 1992. We are inclined to believe that the second explanation is more probable of the two. We say so for reasons that may be summarized as under: (i) The Investigating Officer was a Sub Inspector of Police and the Station House Officer of Police Station Doboka. It follows that he had sufficient experience in conducting investigations especially in cases involving heinous crimes like murder. We also assume that the incident having taken place in an area which was apparently susceptible to communal violence and widespread disturbances as a result of the dispute over the demolition of the mosque, the same would have been reported to the higher officers in the police administration who would in turn ensure appropriate action being taken with suitable care in the matter. (ii) The least which the Investigating Officer would do was to record the statement of the eye witnesses or send the eye witnesses to the police station for getting the First Information Report recorded. Interestingly, while the alleged witnesses to the occurrence were first sent to the police station, no one ever questioned them about the incident nor did the witnesses volunteer to make a statement. It defies one's imagination how Md. Hanif who was on the spot and who is alleged to have seen the occurrence was not questioned by the Investigating Officer especially when he did not have any injury much less a serious one requiring immediate medical care and attention. It defies one's imagination how Md. Hanif who was on the spot and who is alleged to have seen the occurrence was not questioned by the Investigating Officer especially when he did not have any injury much less a serious one requiring immediate medical care and attention. Even if the eye witness was injured, there is no reason why his statement could not be recorded in the hospital to ensure that an FIR is registered without undue delay and those responsible for committing the crime brought to book. Failure of the prosecution to provide any explanation much less a plausible one shows that the investigating agency had no clue about the perpetrators of the crime at the time when it reached the spot or soon thereafter nor did anyone claim to have seen the assailants, for otherwise there was no reason why they could not be named and an FIR registered immediately. This Court in State of H.P. v. Gian Chand : (2001) 6 SCC 71 dealt with the effect of failure of prosecution to satisfactorily explain the delay in the lodging of the FIR and declared that if the delay is not satisfactorily explained the same is fatal to the prosecution. This Court observed: ‘If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case.’ To the said effect is the decision of this Court in Dilawar Singh v. State of Delhi : (2007) 12 SCC 641 , where this Court observed: ‘In criminal trial one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the court at the earliest instance. That is why if there is delay in either coming before the police or before the court, the courts always view the allegations with suspicion and look for satisfactory explanation. Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the court at the earliest instance. That is why if there is delay in either coming before the police or before the court, the courts always view the allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case.’ Reference may also be made to the decisions of this Court in State of Punjab v. Daljit Singh : (2004) 10 SCC 141 and State of Punjab v. Ramdev Singh : (2004) 1 SCC 421 which also reiterated the legal position stated in the earlier mentioned decisions. (iii) From the deposition of Mohd. Taheruddin (PW2), it is clear that the FIR was drawn only after the Investigating Officer had through this witness got the people from the locality gathered. The officer then interrogated them and after deliberations with the elders of the community got a report scribed by Abdul Jabbar (PW5) naming as many as 13 persons as accused. PW5 has in his deposition clearly admitted that Mohd. Taheruddin had discussed in the gathering of the prominent people of the area the facts to be mentioned in the ejahar. There was nearly 100/200 people who had assembled when the ejahar was written by him. It is difficult to appreciate how a report prepared after such wide consultation and deliberations could carry a semblance of spontaneity to be credible in a criminal trial of such a serious nature. Even the Investigating Officer was contributing to the creation of a report after confabulations with elders of the area. Mohd. Taheruddin has in this regard deposed: ‘While ejahar was being written at his house, he called the village President Abdul Jabbar and other prominent persons of the village and upon being advised by the I.O. Gaji Sahab also came. xxxxx The Daroga had interrogated prominent persons before the writing of ejahar.’ (iv) According to Mohd. Taheruddin (PW2) he had recognised only four of the accused who had come looking for him. There is no explanation as to how were the remaining accused named when he had not identified them at the time of the occurrence and at whose instance especially when according to the witness his sons were in the hospital when the ejahar was scribed. There is no explanation as to how were the remaining accused named when he had not identified them at the time of the occurrence and at whose instance especially when according to the witness his sons were in the hospital when the ejahar was scribed. (v) The Investigating Officer having prepared a site plan of the place of occurrence before the registration of the case and even before the statements of the witnesses were recorded under Section 161 Code of Criminal Procedure., did not make any mention about the banana trees behind which Md. Hanif (PW4) is said to have hidden himself. If the story regarding PW4 having had observed the occurrence from behind the banana trees was correct, the trees ought to appear in the site plan which is not the case. Absence of any banana trees in the area around the house is an indication of the fact that no implicit reliance can be placed upon the version of Md. Hanif (PW4). (vi)According to PW3 and PW4, after they emerged from their hideouts and after their father returned to the spot they started looking for the dead bodies with the help of a torch. If PW4 was right in his version, then the victims were hacked in front of the door of the house, there was no question of searching for the dead bodies with the help of torch light. (vii)The use of torch light to look for bodies shows that there was no source of light. The night was a foggy, cold December night. The presence of fog is admitted by PW4 in his deposition. Assuming that there was moonlight, the presence of fog was a disabling factor that made visibility poor for anyone to observe the occurrence from a distance when a huge mob of 3040 people was on the rampage. (viii) According to Shri B.N. Kalita (PW7) the Investigating Officer in the case a written ejahar was presented to him by Taheruddin when the former reached the spot on 14th December, 1992. If that were so, the least which the officer would have done was to take that ejahar as the first information report regarding the occurrence and register a case of murder against those named in it. This admittedly was not done. If that were so, the least which the officer would have done was to take that ejahar as the first information report regarding the occurrence and register a case of murder against those named in it. This admittedly was not done. In crossexamination the witness said that a written ejahar was presented to him by Taheruddin on 15th December, 1992 at 12.10 p.m. Now, even if that were true, there is no explanation why the officer delayed registration of the FIR till 11.00 p.m. on that day. The delay in the lodging of the FIR and the circumstances in which the ejahar was written, cast a serious doubt about the whole prosecution case especially when there is no explanation whatsoever for the failure of the Investigating Officer to record the report based on the alleged eye witness account immediately after he reached the spot. (ix) The non examination of Zakir, injured witness at the trial is also inexplicable. Zakir was allegedly taken out of the house by the accused persons and assaulted. The best person to say who the persons responsible were for the assault was this witness himself. The failure of the prosecution to put him in the witness box, in support of its version is also an important circumstance that cannot be legally brushed aside. The prosecution has failed to examine other inmates who were inside the house and who had escaped unhurt in the occurrence. (x) The medical evidence adduced in the case also does not support the prosecution version. According to Dr. Madhusudhan Dev Goswami (PW1), who conducted the postmortem examination on the dead bodies of the victims had deposed that the death had occurred 48 to 72 hours prior to the examination. If the prosecution version as given by alleged eye witnesses is accepted the victims had died within 12 hours of the postmortem examination. This inconsistency in the medical evidence and the ocular evidence assumes importance rendering the version given by the prosecution witnesses suspicious. (xi) According to Mohd. Taheruddin (PW2) the appellant had shot an arrow towards him which missed the target but hurt the witness in his hand. There is no corroborative medical evidence to suggest that Taheruddin has sustained any injury on the hand or any other part of his body. (xi) According to Mohd. Taheruddin (PW2) the appellant had shot an arrow towards him which missed the target but hurt the witness in his hand. There is no corroborative medical evidence to suggest that Taheruddin has sustained any injury on the hand or any other part of his body. (xii) Even regarding the motive for commission of the crime the prosecution case is that the incident had its genesis in the demolition of the mosque and the large scale disturbances that followed. While it is evident that large scale disturbances had indeed taken place in the area including an incident of a house being set on fire in the neighbourhood of the place of occurrence, the previous enmity between some of the appellants and Taheruddin on account of a land dispute between them could be a possible reason for Taheruddin naming appellants and Ors. close to him as assailants. Enmity between complainant party and the accused being a doubleedged weapon there could be motive on either side for the commission of offence as also for false implication. * * * * * 31. We are conscious of the fact that three innocent persons including two young children have been done to death in the incident in question which needs to be deprecated in the strongest terms but unless proved to be the perpetrators of the crime beyond a reasonable doubt, the appellants cannot be convicted and sentenced for the same. We accordingly allow this appeal and acquit the appellants giving them the benefit of doubt. They shall be set free forthwith unless required in connection with any other case.” [Emphasis supplied] 7. Mr. Biswas, learned senior counsel has also drawn notice of this Court to the law as enunciated by the apex court in Lalita Kumari vs. State of Uttar Pradesh and others, reported in (2014) 2 SCC 1 , where the Constitutional Bench has decided as under: “87. Mr. Biswas, learned senior counsel has also drawn notice of this Court to the law as enunciated by the apex court in Lalita Kumari vs. State of Uttar Pradesh and others, reported in (2014) 2 SCC 1 , where the Constitutional Bench has decided as under: “87. The term ‘inquiry’ as per Section 2(g) of the Code reads as under: ‘2(g) - ‘inquiry’ means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court.’ Hence, it is clear that inquiry under the Code is relatable to a judicial act and not to the steps taken by the Police which are either investigation after the stage of Section 154 of the Code or termed as 'Preliminary Inquiry' and which are prior to the registration of FIR, even though, no entry in the General Diary/Station Diary/Daily Diary has been made. 88. Though there is reference to the term 'preliminary inquiry' and 'inquiry' under Sections 159 and Sections 202 and 340 of the Code, that is a judicial exercise undertaken by the Court and not by the Police and is not relevant for the purpose of the present reference. 89. Besides, learned senior counsel relied on the special procedures prescribed under the CBI manual to be read into Section 154. It is true that the concept of ‘preliminary inquiry’ is contained in Chapter IX of the Crime Manual of the CBI. However, this Crime Manual is not a statute and has not been enacted by the legislature. It is a set of administrative orders issued for internal guidance of the CBI officers. It cannot supersede the Code. Moreover, in the absence of any indication to the contrary in the Code itself, the provisions of the CBI Crime Manual cannot be relied upon to import the concept of holding of preliminary inquiry in the scheme of the Code of Criminal Procedure. At this juncture, it is also pertinent to submit that the CBI is constituted under a Special Act, namely, the Delhi Special Police Establishment Act, 1946 and it derive its power to investigate from this Act.” 8. Mr. Biswas, learned senior counsel has taken serious objection to the finding returned by the impugned judgment that having persuaded by the police officer, the appellant did not make any statement about the gruesome murder taken place in his premises. Mr. Biswas, learned senior counsel has taken serious objection to the finding returned by the impugned judgment that having persuaded by the police officer, the appellant did not make any statement about the gruesome murder taken place in his premises. The appellant reported the incident immediately after the occurrence to PW39 over phone. That position of fact has been admitted by PW39, the OfficerinCharge of the West Agartala P.S and PW41, the investigating officer arrived at the place of occurrence without much delay. Mr. Biswas, learned senior counsel has further emphasized that admittedly there is no record or entry in the case diary that the appellant refused to make any statement or to allow his statement recorded. Mr. Biswas, learned senior counsel thereafter, while dealing with the development that PW40, Smt. Niyati Deb (Ghosh) and PW1, Miss. Papiya Ghosh did not make the true disclosure in the ejahar or in the statement recorded under Section 161 of the Cr.P.C. being threatened by the appellant has submitted that plea has fallen apart for the reason that just after the occurrence she had disclosed to the persons including the witnesses. On being asked by themshe stated that her husband and others were killed by the miscreants. She did not say that her husband and the appellant committed the murder of Ranjit Choudhury. The oral ejahar was recorded immediately after her arriving to the place of occurrence fromthe hospital at 4 pmin the afternoon. The same has also been admitted by PW40 in her statement recorded under Section 306 of the Cr.P.C. that before making the oral ejahar on the day of occurrence, PW40 had met with the appellant twice but the appellant did not say anything about the incident to her. In view of such evidence on record, it cannot be accepted that the FIR and the statement made under Section 161 of the Cr.P.C. were made being threatened or tutored by the appellant. That apart, in view of the statement made by PWs5,18,19 and 1, it evinces that before making the oral ejahar to PW41, there was no conversation between PW40 and PW1. 9. Mr. That apart, in view of the statement made by PWs5,18,19 and 1, it evinces that before making the oral ejahar to PW41, there was no conversation between PW40 and PW1. 9. Mr. Biswas, learned senior counsel has submitted with sufficient vehemence that PW40 Niyati Deb (Ghosh) cannot be an approver within the meaning of Section 306 of the Cr.P.C. which provides that with a view obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first Class inquiring into or trying the offence, at any condition any stage of the inquiry or trial may tender a pardon to such person on condition of his making full an true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every persons concerns, whether principal or abettor in the commission thereof. 10. Mr. Biswas, learned senior counsel has submitted that PW40 never admitted that she did participate in the alleged offence or she had a conspiratorial role or she was in league with the killers. On the contrary, she has clearly admitted in her crossexamination that she did not participate in the offence and tried to resist the assailants. Even the Chief Judicial Magistrate, West Tripura (DW4) has admitted on being questioned that PW40 declined to make any confessional statement and she said that she did not commit any offence and as such, according to Mr. Biswas, learned senior counsel her statement is of no use and liable to be discarded for being exculpatory. He has further submitted that there should be reasonable amount of corroboration in this regard. To buttress his contention, Mr. Biswas, learned senior counsel has placed his reliance on a decision of the apex court in State of Rajasthan vs. Balveer alias Balli and another, reported in 2014 CRI.L.J. 314 where it has been held as under: “15. He has further submitted that there should be reasonable amount of corroboration in this regard. To buttress his contention, Mr. Biswas, learned senior counsel has placed his reliance on a decision of the apex court in State of Rajasthan vs. Balveer alias Balli and another, reported in 2014 CRI.L.J. 314 where it has been held as under: “15. The first question that we have to decide is whether the High Court is right in coming to the conclusion that for being an approver within the meaning of Section 306 Cr.P.C, a person has to inculpate himself in the offence and has to be privy to the crime, otherwise he removes himself from the category of an accomplice and places himself as an eyewitness. Section 306 Cr.P.C provides that with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence, the Magistrate may tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. This Court in the case of Suresh Chandra Bahri v. State of Bihar : 1995 Supp. (1) SCC 80 explained the object of Section 306 Cr.P.C in the following words: ‘The object of Section 306 therefore is to allow pardon in cases where heinous offence is alleged to have been committed by several persons so that with the aid of the evidence of the person granted pardon the offence may be brought home to the rest. The basis of the tender of pardon is not the extent of the culpability of the person to whom pardon is granted, but the principle is to prevent the escape of the offenders from punishment in heinous offences for lack of evidence. The basis of the tender of pardon is not the extent of the culpability of the person to whom pardon is granted, but the principle is to prevent the escape of the offenders from punishment in heinous offences for lack of evidence. There can therefore be no objection against tender of pardon to an accomplice simply because in his confession, he does not implicate himself to the same extent as the other accused because all that Section 306 requires is that pardon may be tendered to any person believed to be involved directly or indirectly in or privy to an offence.’ Thus, the High Court failed to appreciate that the extent of culpability of the accomplice in an offence is not material so long as the magistrate tendering pardon believes that the accomplice was involved directly or indirectly in or was privy to the offence. The High Court also failed to appreciate that Section 133 of the Indian Evidence Act provides that an accomplice shall be a competent witness against an accused person and when the pardon is tendered to an accomplice under Section 306 Cr.P.C the accomplice is removed from the category of coaccused and put into the category of witness and the evidence of such a witness as an accomplice can be the basis of conviction as provided in Section 133 of the Indian Evidence Act. 16. As a rule of prudence, however, as provided in Illustration (b) to Section 114 of the Indian Evidence Act, the Court will presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. In Rameshwar s/o Kalyan Singh v. The State of Rajasthan : AIR 1952 SC 54 , this Court laid down the kind of evidence which should, or would, be regarded as corroboration of the testimony of an accomplice and held that it is not necessary that there should be independent confirmation of every material circumstance but independent evidence must not only make it safe to believe that the crime was committed and must in some way reasonably connect the accused with the crime. In the language of this Court in the aforesaid case: ‘All that is necessary is that there should be independent evidence which will make it reasonably safe to believe the witness' story that the accused was the one, or among those, who committed the offence.’ In this case, the Court also clarified that corroboration need not be by direct evidence that the accused committed the crime and it is sufficient if it is merely circumstantial evidence of the connection of the accused with the crime. In the aforesaid case, this Court also explained that unless the testimony of an accomplice is treated as evidence, many crimes which are usually committed between accomplices in secret, particularly offences with females, could otherwise never be brought to justice. With these principles with regard to the testimony of an accomplice in mind, we may now examine the testimony of PW1 and the corroboration of such testimony by material particulars, if any, so as to connect Ram Niwas and Balveer in the offences.” [Emphasis supplied] 11. He has also relied on the decision of the apex court in .C. M. Sharma v. State of A.P. TH. I.P., reported in AIR 2011 SC 608 , where the apex court has restated the law on the necessity of corroboration thus: “11. Yet another decision on which reliance is placed is the decision of this Court in the case of Meena (Smt) W/O Balwant Hemke v. State of Maharashtra, (2000) 5 SCC 21 : ( AIR 2000 SC 3377 ) in which it held as follows: ‘The corroboration essential in a case like this for what actually transpired at the time of the alleged occurrence and acceptance of bribe is very much wanting in this case. Even the other panch witness, PW 5 categorically admitted that even as the Inspector of Police, PW 6 arrived, the appellant gave the same version that PW 1 tried to force into her hands the currency note which she turned down by pushing it away, and his evidence also does not lend credibility to the case of the prosecution. The contradictory version of PW 1 of the very incident when earlier examined in departmental proceedings renders his testimony in this case untrustworthy. The contradictory version of PW 1 of the very incident when earlier examined in departmental proceedings renders his testimony in this case untrustworthy. PW 3, the Head Copyist, seems to be the brain behind all this and that PW 1 as well as Jagdish Bokade appear to be working as a group in this affair and despite the blunt denial by PW 3, his closeness to PW 1 and Jagdish Bokade stands well substantiated. All these relevant aspects of the case seem to have been completely overlooked by the courts below.’ We do not find any substance in the submission of Mr. Rai. The word accomplice has not been defined under the Evidence Act and therefore presumed to have been used in the ordinary sense. A person concerned in the commission of crime, a partner in crime and associate in guilt is an accomplice. He takes part in the crime and is privy to the criminal intent. In our opinion a witness forced to pay on promise of doing or forbearing to do any official act by a public servant, is not a partner in crime and associate in guilt and therefore cannot be said to be accomplice. It has long been rule of practice, which has become equivalent to rule of law, that the evidence of an accomplice is admissible but to be acted upon, ordinarily requires corroboration. Contractor who gave bribe, therefore, cannot be said to an accomplice as the same was extorted from him. Reference in this connection can be made to a decision of this Court in the case of Dalpat Singh and another v. State of Rajasthan, ( AIR 1969 SC 17 ), in which it has been held as follows: ‘We are unable to accept the contention of the learned counsel for the appellants that PWs 1, 2, 3, 4 and 17 and other prosecution witnesses to whose evidence we shall presently refer, should be considered as accomplices and therefore their evidence is required to be corroborated in material particulars before being accepted. On the proved facts, even those who gave illegal gratification to the appellants cannot be considered as accomplices as the same was extorted from them. On the proved facts, even those who gave illegal gratification to the appellants cannot be considered as accomplices as the same was extorted from them. Though PWs 1, 2, 4 and 17 can be considered as interested witnesses as regards their evidence relating to trap, as a matter of law, it is not correct to say that their evidence cannot be accepted without corroboration, see State of Bihar v. Basawan Singh 1959 SCR 195 : ( AIR 1958 SC 500 ) (underlining ours).’ ” 12. The reliance has also been placed for the same purpose on an apex court decision in Rampal Pithwa Rahidass and others vs. State of Maharashtra, reported in 1994 CRI.L.J. 2320, where it has been enunciated that: “9. Section 133 of the Evidence Act expressly provides that an accomplice is a competent witness against his coaccused and it renders admissible the testimony of an accomplice against his coaccused. It has, however, been a long settled practice of law that Section 133 of the Evidence Act must be read along with the provisions of illustration (b) to Section 114 of the Evidence Act. Section 114 of the Evidence Act empowers the court to presume the existence of certain facts and illustration (b) in express terms says that an accomplice is unworthy of credit unless be is corroborated in material particulars. Thus, it follows, that whereas law permits the conviction of an accused person on the basis of the uncorroborated testimony of an accomplice by virtue of the provisions of Section 133 who is treated as a competent witness, the rule of prudence which has rightly been always accepted by the courts, embodied in illustration (b) of Section 114 of the Evidence Act, strikes a note of warning caution to the courts that an accomplice does not generally deserve to be relied upon, unless his testimony is corroborated in material particulars. Thus, as a matter of practice and prudence the courts have held that the testimony of an approver may be accepted in evidence for recording conviction of an accused person provided it receives corroboration from direct or circumstantial evidence in material particulars. Thus, as a matter of practice and prudence the courts have held that the testimony of an approver may be accepted in evidence for recording conviction of an accused person provided it receives corroboration from direct or circumstantial evidence in material particulars. The courts have generally looked upon with suspicion the statement of an approver because he is considered to be a person of low morals and not a wholly trust worthy person who for the sake of earning pardon for himself is willing to let down his erstwhile accomplices and therefore before recording conviction Courts insist upon independent corroboration of his testimony. In Ram Narain v. State of Rajasthan: (1973) 3 SCC 805 at 811 :( AIR 1973 SC 1188 at p. 1192), Dua, J. while speaking for the Court dealt with the subject and observed : ‘An approver who is admittedly guilty of the crime is an accomplice who has betrayed his associates and has apparently sought pardon for saving his own skin. In other words he has purchased complete immunity for his prosecution at the expense of his associates by agreeing to give evidence against them for the prosecution. He is, therefore, presumed not to be a man of high character or a fair witness. His pardon being conditional to please the prosecution he may well weave some false detail into the true details of the prosecution story and may also falsely involve some innocent person. There is thus a real danger of his telling a story true in general outline but containing some untruth which he can easily work into the story. It is for this reason that the courts as a matter of prudence and caution anxiously look for some corroboration to satisfy their conscience that the approver's testimony which is clearly admissible is also worthy of belief credit. One can of course visualise an accomplice who is genuinely repentant for the commission of his crime and truly desires to make a clean breast of the whole affair by way of penitence. But even in such cases the court has to judicially determine the extent to which his uncorroborated testimony can be considered as trustworthy by looking to the other relevant material and the attending circumstances on the basis of which the accused can be safely convicted. But even in such cases the court has to judicially determine the extent to which his uncorroborated testimony can be considered as trustworthy by looking to the other relevant material and the attending circumstances on the basis of which the accused can be safely convicted. The rule which seems to emerge from the foregoing discussion and judicial decisions in that the necessity of corroboration as a matter of prudence except when it is safe to dispense with such corroboration must be clearly present to the mind of the Judge.’ ARREST OF RAMCHARAN AND GRANT OF PARDON TO HIM: The above principle has stood the test of time and it is with this background present in our minds that we shall examine the testimony of Ramcharan approver PW 49. How he came to be arrested? How did he became a participant in the crime? What role did he play in the crime? When and how he decided to be an approver? These are some of the questions which we shall have to consider determining the creditworthiness of his testimony and the nature and the extent of corroboration which is required before his testimony can be relied upon in support of the prosecution case. 10. The approver appeared as PW49 at the trial. He was arrested on 7784 in some other connection and till his arrest as already noticed, the investigation had drawn a blank in this case and was being criticized both by the media and the public alike for not solving the crime and appears to have been under tremendous pressure. How did the approver come to be arrested? * * * * * 23. Bail was, however, declined and he continued to remain in custody. According to the prosecution case, on 1.4.1987, Ramcharan accused suddenly and of his own decided to become an approver and to make a disclosure of all facts, about which he had said in his application dated 17.01.1987 that he knew nothing! His application dated 01.04.1987 reads: ‘To The District and Session Judge, Chandrapur. Sub : Case Under Sections 3 and 397 of IPC. Through: The Superintendent, District Prison , Chandrapur. Sir, I, Ramcharan, S/O Ramashraya, prisoner No. 1803 state as under: That on 19.7.84, the police imprisoned me in this jail under Sections 396 and 397 of IPC. The statement given by me in the lower court in respect of my case, is true. Through: The Superintendent, District Prison , Chandrapur. Sir, I, Ramcharan, S/O Ramashraya, prisoner No. 1803 state as under: That on 19.7.84, the police imprisoned me in this jail under Sections 396 and 397 of IPC. The statement given by me in the lower court in respect of my case, is true. The persons against whom the case for dacoity and murder is filed, are all responsible for the murder, I was only looking after their clothes. I had seen the accused persons committing the murder of the person. I may be given pardon in this case. I want to be an approver. My statement, as given above is true. It has been read over to me. Before me, Yours faithfully, Sd/Illegible (T.I.) Jailor Left hand thumb District prison, impression of Chandrapur Ramchanran s/o Ramashaya No. Jud/433/87 Chandrapur District Prison Chandrapur Dt. 1.4.87 Submitted to the Sessions Judge, Sessions Court, Chandrapur for necessary further disposal. Sd/Illegible Jailor District Prison Chandrapur.’ 24. The District Judge forwarded the application to the Addl. Sessions Judge, Chandrapur and the Public Prosecutor was directed on 23.04.87 to file reply to the application of Ramcharan. The Public Prosecutor in the reply stated: ‘The application can be allowed after some preliminary question provided he gives evidence on oath sticking upto the previous statements Under Section 162 and 164. Cr. P.C.’ Thereafter, an order granting pardon, which reads as follows, was made on 24.04.1987: ‘Accused No. 1 Ramcharan son of Ramashray Rahidas is one the accused persons in a dacoitycummurder case which to place on Chandrapur Ballarshah road on 03.07.84. He has made a confession statement before the learned Judicial Magistrate, 1st Class, Chandrapur admitting that he and the other accused are involved in the said offence. He has now asked to pardon him. The incident has taken place in the jungle at night. Proof of guilt of all accused persons is not forthcoming satisfactorily. It is necessary to bring the rest of the offenders to justice. There is prima facie evidence that the present accused was present on the spot. He is not a principal offender. He has agreed to make a true and complete disclosure of all the facts within his knowledge I, therefore, feel that the said accused should be granted pardon on condition that he will make true and complete disclosure of all the facts within his knowledge which he has agreed. He is not a principal offender. He has agreed to make a true and complete disclosure of all the facts within his knowledge I, therefore, feel that the said accused should be granted pardon on condition that he will make true and complete disclosure of all the facts within his knowledge which he has agreed. I, therefore, pass the following order: ORDER Accused No. 1, Ramcharan son of Ramashray Rahidas is tendered pardon under Section 307 of Cr.P.C. on condition of him making a true and complete disclosure of the whole of the circumstances within his knowledge relating to the offence and to every other person concerned whether as principal or abettor in the commission thereof. Dt. 24.04.87. Sd/F.N. Velati Addl. Sessions Judge Chandrapur’ * * * * * 26. Indeed Ramcharan was not confronted at the trial with the statement contained in his bail application but nonetheless the fact remains that while considering the credibility of the approver and the weight to be attached to his statement, the statement made in the bail application (which is part of the judicial record) can be looked into by the Courts. The High Court, in our opinion, did not consider the significance of this variation in the statement when it observed that: ‘We do not, therefore, think that the statement in the bail application, in anyway, detracts from the credibility of the evidence which he gave in the Court.’ We cannot subscribe to the view of the High Court. What made the approver all of a sudden on 1.4.1987 decide to address a letter to the Sessions Judge that he be granted pardon and be made an approver? The prosecution as well as Ramcharan are totally silent on this aspect. Was the approver being harassed or lured? In this connection it may be relevant to note that soon after Ramcharan approver had been shifted to Chandrapur police station on 8.7.84 within 2/3 days the police had got his photograph taken. This has been admitted by Ramcharan approver in his crossexamination while appearing as PW49. It is also borne out from the record that while Ramcharan approver was in police custody at Chandrapur Police Station, Murari accused who had also been arrested and lodged to Chandrapur police station, as an accused in this case, died while in police custody on th July, 1984. It is also borne out from the record that while Ramcharan approver was in police custody at Chandrapur Police Station, Murari accused who had also been arrested and lodged to Chandrapur police station, as an accused in this case, died while in police custody on th July, 1984. It was within a few days after the death of Murari, that Ramcharan appears to have made his confessional statement under Section 164 before the learned Judicial magistrate but through his application dated 17.1.87, he reported to the Sessions Judge that he was being asked to become an eye witness in the dacoity case, when he knew nothing about that crime. This should have put the Court as its guard, when it was considering his application for tender of pardon dated 1.4.1987, but it seems that the Sessions Court did not apply its mind to that aspect at all. Having already made the so called voluntary statement under Section 164, Cr.P.C. on 21.7.1984, why did he complain in his application dated 17.1.1987, that he was being forced to become an eye witness though he did not know anything about the crime? The prosecution offered no explanation. That the statement under Section 164, Cr.P.C. was made in 1984 and, therefore, the approver may have forgotten what he wrote earlier is too feeble an explanation to be accepted. It appears to us that Ramcharan approver was throughout under pressure to become an approver in the case because the investigation had drawn a blank and admittedly the District Police of Chandrapur was under constant attack from the media and the public. The police, with a view to escape public wrath appears to have planted Ramcharan as an approver, may be on the promise, that he would escape punishment and to us even the first confessional statement does not appear to be voluntary one. * * * * * 28. We have already made a reference to the statement of Ramcharan approver recorded under Section 164 Cr.P.C. before he made an application for being tendered pardon. * * * * * 28. We have already made a reference to the statement of Ramcharan approver recorded under Section 164 Cr.P.C. before he made an application for being tendered pardon. After the tender of pardon, Ramcharan was examined at the trial not as a first witness on behalf of the prosecution, which he ordinarily should have been, but as PW49, almost at the fag end of the trial after he had the occasion to know the other evidence led in the case, so that he could depose accordingly in support of the prosecution. The statement of Ramcharan as PW49 is a detailed one and gives in graphic details not only the manner in which he was arrested; the circumstances under which he came into contact with the appellants and others before his arrest but also the manner in which murders and dacoities were committed by his coaccused and the part played by him during the commission of the crime. He also deposed about the recoveries made pursuant to disclosure statements made by different appellants from different places of different articles on different dates. The minute details given by Ramcharan approver at the trial, 3 years after the occurrence, are too good to be believed and exhibit a remarkable feat of memory. His statement at the trial as PW49 is much more detailed than the one contained in his confessional statement recorded under Section 164 Cr.P.C. within a few days of his arrest. Some of the statements made as PW49 find no mention in his earlier confessional statement as for example, that Babulal told him to accompany them and offered to pay him Rs. 200 which he declined and that at that point of time accused Fulchand slapped him and thereupon he agreed to accompany them and do whatever they would tell him to do. That apart, he ascribed no part to himself at all during the entire occurrence except to take care of an empty bag and clothes of some of the coaccused. Ramcharan also deposed at the trial that after dacoity had been committed, accused persons advised him to run towards Ballarshah side but he declined to do so and told them that he will not go anywhere alone and will only accompany them or sit by the side of the road. Ramcharan also deposed at the trial that after dacoity had been committed, accused persons advised him to run towards Ballarshah side but he declined to do so and told them that he will not go anywhere alone and will only accompany them or sit by the side of the road. The accused persons then caught hold of him by his hands and took him towards Ballarshah side by the side of the road through jungle. The approver then stated: ‘from the spot of incident we went at a distance of about one mile and sat. Accused Babulal lighted a match stick and I saw accused Fulchand counting the money. I had seen Rs. 100 denomination note in his hand at that time. Six accused persons thereafter went towards Ballarshah Power House side. Myself, accused Rampal, accused Ramkishor and deceased accused Murari went from paper Mill side to Ballarshah city. We went to the house of accused Babulal. We reached the house of accused Babulal at midnight 12 O'clock or 1.00 a.m. At about 2.00 to 2.30 a.m. the rest of six accused persons also came to the house of accused Babulal.’ According to the approver, on the next day in the morning accused Babulal advised him to go to his home town and told him that ‘they had committed dacoity and murder, Police were enquiring in the matter. I am a new person, they would therefore suspect and interrogate me. I told accused Babulal that I had no money to go to my home town. The accused Babulal told me that he had no money and he cannot give me any money. At about 10 a.m. I started going. Accused Babulal told me not to tell anybody about the incidence. I told accused Babulal that if anybody asks me I will narrate the incident...I came to Chandarpur on foot. I went to B.N.R. railway station and went to the platform.’ They gave him no money. * * * * * 31. The sequence of events at Ballarshah Road as detailed by the approver in his statement in the Court is quite different than the sequence of events as deposed to by the three injured eye witnesses. I went to B.N.R. railway station and went to the platform.’ They gave him no money. * * * * * 31. The sequence of events at Ballarshah Road as detailed by the approver in his statement in the Court is quite different than the sequence of events as deposed to by the three injured eye witnesses. The High Court noticed that there was variation in the version given by Ramcharan approver and the three eye witnesses as regards the sequence of events and the manner of assault but chose to ignore this by observing: ‘But having regard to the nature of the incident, the fact that the life of the eye witnesses was in peril and the horrendous conditions under which they had to make their escape, we do not think that the discrepancies regarding the order in which the vehicles came and the directions in which they went can be reflecting upon the credibility of the eye witnesses. All this eventually had been occurring in darkness, and even Ram Charan's recollection in this respect cannot but be too hazy because of the gruesome nature of the incidence. We, therefore, attach no value to the discrepancies.’ This approach of the High Court does not appeal to us. The importance of the discrepancies had to be considered to test the credibility and trustworthiness of the approver and the High Court failed to do so. 32. A careful analysis of the statement of the approver given at the trial coupled with the circumstances under which he came to be arrested, the averments in his application for grant of bail and other circumstances has created an impression on our minds that the approver was a planted witness and his testimony is not at all worthy of reliance and credence. The investigating agency appears to have created false evidence and fabricated false clues in so far as the testimony of the approver is concerned. From all the attendant circumstances, we are satisfied that the approver Ramcharan is not a reliable witness; his arrest was intrinsically unnatural and his selfconfessed participation in the crime without taking any active part in it not acceptable. From all the attendant circumstances, we are satisfied that the approver Ramcharan is not a reliable witness; his arrest was intrinsically unnatural and his selfconfessed participation in the crime without taking any active part in it not acceptable. The approver has claimed to be a spectator of every fact and of every moment but asserted that he did not participate in the assault at any stage and remained standing at a distance taking care of the clothes of some of the coaccused. His statement is almost of an exculpatory nature. His statement as a whole does not inspire confidence. His story is not worthy of credence. We find ourselves unable to place any reliance on his untrustworthy and unreliable evidence and in that view of the matter, we refrain even from expressing any opinion about the effect of the alleged noncompliance with the provisions of Section 306(4) IPC read with Section 307 IPC, as admittedly after the grant of pardon by the order dated 24.4.1987, no statement of Ramcharan approver was recorded till he appeared at the trial as PW 49. It is only after the grant of pardon that the status of an accused is changed into that of a witness and the law enjoins upon the Courts to record the statement of the approver immediately after pardon is granted to him so that he may consider himself bound by that statement and failure to do so at the trial would render him liable for prosecution. That exercise was not performed in this case. * * * * * 35. We are conscious that five persons have died unnatural deaths on the Highway and the crime is going unpunished. But the Courts have to decide the cases on the evidence led and not on what ought to have been led. The manner in which the approver has been introduced in the case coupled with the alleged faked recoveries has created an impression on our minds that the investigating agency failed to apprehend the real criminals and created false evidence and fabricated false clues in the present case to somehow or the other secure the conviction of the appellants and save its image in the face of the severe attack about its incapacity to apprehend the real culprits by the public and the media. It is unfortunate that the investigating agency should have resorted to fabricating of evidence and act in the manner in which it did in this case. 36. ‘The quality of a nation's civilization’, it is said, ‘can be largely measured by the methods it uses in the enforcement of criminal law’ and going by the manner in which the investigating agency acted in this case causes concern to us. In every civilised society the police force is invested with the powers of investigation of the crime to secure punishment for the criminal and it is in the interest of the society that the investigating agency must act honestly and fairly and not resort to fabricating false evidence or creating false clues only with a view to secure conviction because such acts shake the confidence of the common man not only in the investigating agency but in the ultimate analysis in the system of dispensation of criminal justice. Let no guilty man go unpunished but let the end not justify the means! The Courts must remain ever alive to this truism. Proper results must be obtained by recourse to proper means otherwise it would be an invitation to anarchy.” [Emphasis supplied] On the same point, Mr. Biswas, learned senior counsel has placed his reliance on a Gauhati High Court decision in Rakesh Kr. Singh vs. State of Assam, reported in 2003 CRI.L.J. 3206, where it has been held as under: “9. In Black's Law Dictionary (5th Edition) the word 'accomplice' has been defined as : ‘One who knowingly, voluntarily and with common intent unites with the principal offender in the commission of a crime/One who is in some way concerned or associated in commission of crime/partaker of guilt/one who aids or assists, or is an accessory/Equally concerned in the commission of crime/An 'accomplice' is one who is guilty of complicity in crime charged, either by being present and aiding or abetting in it, or having advised and encouraged it though absent from place when it was committed, though mere presence acquiescence, or silence in the absence of a duty to act, is not enough, no matter how responsible it may be, to constitute one an accomplice. One is liable as an accomplice to the crime of another if he gave assistance or encouragement or failed to perform a legal duty to prevent it with the intent thereby to promote or facilitate commission of the crime.’ 10. A bare perusal of the statement of Sikha Barthakur will show that this witness has nowhere stated about her involvement in the above crime, directly or even indirectly. She seems to be another victim of crime or merely a spectator. Her entire statement is exculpatory and she has not incriminated herself in any manner. Learned Public Prosecutor, however, submitted that at the relevant time and at the relevant place there were only three persons, namely the accused appellant, PW 6 and the deceased. The deceased is no more in this world to depose as to what had happened and the accused has a right under the law to remain mum. Hence, PW 6 was the only eye witness left after witnessing the incident and it was her duty to give information. He had referred to the provision of Section 39 of the Cr.PC. In this case, we find that the police immediately after reaching the place of occurrence found two persons, namely, the accused appellant and PW 6 and arrested both of them. Hence the Constitutional safeguards to remain silent were available to both the PW 6 and the accused appellant. Moreover, it cannot be said that as PW 6 had failed to discharge her responsibility under Section 39 Cr.P.C as she was an accomplice to the crime of murder. In the case of A.S.N. Reddy v. State of Hyderabad: AIR 1956 SC 379 , the Apex Court had held that a witness merely accompanying the accused does not satisfy the requirement of an accomplice. In the case of State v. Boberts 13 P 896 Col. 15 OR 187 it was stated that the term 'accomplice' in the case of who are ‘particeps criminis’, whether consider in a direct legal sense of the term as principal or accessories and particular includes any associate in the crime and or assisting, cooperating or aiding in its commission. In another case of State v. Western 219 P 180 Col. 109 OR 19 it was held ‘the mere presence of a terrified onlooker or his failure to report a crime, does not constitute him an accomplice’. 11. In another case of State v. Western 219 P 180 Col. 109 OR 19 it was held ‘the mere presence of a terrified onlooker or his failure to report a crime, does not constitute him an accomplice’. 11. In the present case, we find that PW 6 was a 18 years old young girl staying with her elder sister who was married to the accused appellant. There is no other evidence on record except, her own statement, which shows that not to speak of participation in the crime, she had no inkling even that the incident may end in the death of her dear sister. We, therefore, hold that she was not an accomplice and there is no question other becoming an approver or giving her pardon. Pardon is granted or sought when somebody claims that he has committed a mistake. Learned counsel for the appellant has submitted that the law is well settled that the evidence of an accomplice or approver cannot be accepted unless it corroborated with the material facts and in the instant case there is no corroboration whatsoever. In view of what has been stated above, we, therefore, hold that the PW 6 cannot be termed as an accomplice or approver in view of exculpatory evidence/materials on record. 12. In this case as stated above, police has submitted chargesheet against PW 6 also. Thus, she is a coaccused. Section 30 of the Evidence Act reads as follows : ‘Consideration of proved confession affecting person making it and other jointly under trial for same offence. When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.’ * * * * * 14. There is another aspect of the matter also. On perusal of the record we find that although PW 6 was arrested on 26.09.1996 and when she was sent to the Magistrate for recording her confession under Section 164 Cr.P.C, she declined to confess. Thereafter, she filed an application seeking pardon and pardon was granted after recording her statement on 27.11.1996. Ext. On perusal of the record we find that although PW 6 was arrested on 26.09.1996 and when she was sent to the Magistrate for recording her confession under Section 164 Cr.P.C, she declined to confess. Thereafter, she filed an application seeking pardon and pardon was granted after recording her statement on 27.11.1996. Ext. 5 is the said statement and this seems to be the only statement of PW 6, besides the evidence given by her before the Court. Learned Public Prosecutor could not show any statement of PW 6 recorded by I.O. prior to this date although police was required to record her statement soon after her arrest. Thus, we find that after two months of the incident the witness PW 6 disclosed for the first time and made a statement implicating the accused appellant in the above incident. In ASN Reddy (supra) the Apex Court observed that the evidence of a person witnessing the occurrence but not divulging the same to anybody for 2/3 days should be scanned with much caution. Considering the facts and circumstances of the case and in absence of any corroboration whatsoever we hold that the statement of PW 6 does not inspire much confidence and cannot be relied on for basing conviction. As we feel that she has not stated the whole truth after two months of the incident and there is something against, her evidence no doubt cast a strong suspicion regarding the involvement of the appellant. But in a criminal trial the conviction cannot be based on the basis of suspicion only.” 13. Mr. Biswas, learned senior counsel has succinctly submitted that if the approver ascribed no part of himself/herself during the entire transaction of offence except to take care, he or she cannot be said to be an accomplice approver. Reliance has been placed for this contention on the decision of the apex court in Suresh Chandra Bahri vs. State of Bihar, reported in AIR 1994 SC 2420 , where it has been held that: “43. The evidence of an approver does not differ from the evidence of any other witness except that his evidence is looked upon with great suspici on. Consequently in the event the suspicion which is attached to the evidence of an accomplice is not removed his evidence could not be acted upon unless corroborated in material particulars. The evidence of an approver does not differ from the evidence of any other witness except that his evidence is looked upon with great suspici on. Consequently in the event the suspicion which is attached to the evidence of an accomplice is not removed his evidence could not be acted upon unless corroborated in material particulars. But where the suspicion is removed and the evidence of an approver is found to be trustworthy and acceptable then that evidence may be acted upon even without corroboration and the conviction may be founded on such a witness. Here in this connection it would be appropriate to make reference to the provisions of S. 133 of the Evidence Act which deal with the testimony of an accomplice. It contemplates that an accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. The first part envisages that an accomplice, in other words, a guilty companion in crimes, shall be a competent witness while the second part states that conviction is not illegal merely because it is based on the uncorroborated testimony of an accomplice. But if we read S. 133 of the Evidence Act with illustration (b) of S. 114 of the Evidence Act it may lead to certain amount of confusion and misunderstanding as to the real and true intention of the Legislature because quite contrary to what is contained in S. 133 illustration (b) to S. 114 of the Evidence Act lays down ‘that an accomplice is unworthy of credit, unless he is corroborated in material particulars’. A combine reading of the two provisions that is S. 133 and illustration (b) of S. 114 of Evidence Act go to show that it was considered necessary to place the law of accomplice evidence on a better footing by stating in unambiguous terms that according to S. 133 a conviction is ‘not illegal or in other words not unlawful’ merely because it is founded on the uncorroborated testimony of an accomplice while accepting that an accomplice is a competent witness. But at the same time the Legislature intended to invite attention to the illustration (b) of S. 114 of the Evidence Act with a view to emphasis that the rule contained therein as well as in S. 133 are parts of one and the same subject and neither can be ignored in the exercise of judicial discretion except in cases of very exceptional nature. However, the difficulty in understanding the combined effect of the aforementioned two provisions arises largely due to their placement at two different places of the same Act. It may be noticed that illustration (b) attached to S. 114 is placed in Chapter VII of Evidence Act while S. 133 is inserted in Chapter IX of the Act. The better course was to insert the illustration (b),to S. 114 as an explanation or in any case a s a proviso to S. 133 of the Act instead of their insertion at two different places and that too in different Chapters of Evidence Act. In any case since an approver is guilty companion in crime and, therefore, illustration (b) to S. 114 provides a rule of caution to which the Courts, should have regard. It is nowwell Settled, by a long series of decisions that except in circumstances of special nature it is the duty of the Court to raise the presumption in Sec. 114, illustration (b) and the Legislature requires that the Courts should make the natural presumption in that section as would be clear from the decisions which we shall discuss hereinafter. * * * * * 45. Further in Ravinder Singh v. State of Haryana, AIR 1975 SC 856 , this Court while considering the approver's testimony within the meaning of S. 133 of the Evidence Act made the following observations (para 12): ‘An approver is a most unworthy friend, if at all, and he, having bargained for his immunity, must prove his worthiness for credibility in Court. This test is fulfilled, firstly, if the story he relates involves him in the crime and appears intrinsically to be a natural and probable catalogue of events that had taken place. The story if given of minute details according with reality is likely to save it from being rejected brevi manu. This test is fulfilled, firstly, if the story he relates involves him in the crime and appears intrinsically to be a natural and probable catalogue of events that had taken place. The story if given of minute details according with reality is likely to save it from being rejected brevi manu. Secondly, once that hurdle is crossed, the story given by an approver so far as the accused on trial is concerned must implicate him in such a manner as to give rise to a conclusion of guilt beyond reasonable doubt. In a rare case, taking into consideration all the factors, circumstances and situations governing a particular case, conviction based on the uncorroborated evidence of an approver confidently held to be true and reliable by the Court may be permissible. Ordinarily, however, an, approver's statement has to be corroborated in material particulars bridging closely the distance between the crime and the criminal. Certain clinching features, of involvement disclosed by an approver appertaining directly to an accused, if reliable, by the touchstone of other independent credible evidence, would give the heeded assurance for acceptance his testimony on which a conviction may be based.’ Thus it is clear that a definite rule has been crystallized to the effect that though a conviction can be based on uncorroborated evidence of an accomplice but as a rule of prudence it is unsafe to place reliance on the uncorroborated testimony of an approver as required by illustration (b) of S. 114 of the Evidence Act.” [Emphasis supplied] 14. In Sarwan Singh Rattan Singh vs. State of Punjab, reported in AIR 1957 SC 637 , the apex court has held that: “7. It is hardly necessary to deal at length with the true legal position in this matter. An accomplice is undoubtedly a competent witness under the Indian Evidence Act. There can be, however, no doubt that the very fact that he has participated in the commission of the offence introduces a serious stain in his evidence and courts are naturally reluctant to act on such tainted evidence unless it is corroborated in material particulars by other independent evidence. It would not be right to expect that such independent corroboration should cover the whole of the prosecution story or even all the material particulars. If such a view is adopted it would render the evidence of the accomplice wholly superfluous. It would not be right to expect that such independent corroboration should cover the whole of the prosecution story or even all the material particulars. If such a view is adopted it would render the evidence of the accomplice wholly superfluous. On the other hand, it would not be safe to act upon such evidence merely because it is corroborated in minor particulars or incidental details because, in such a case, corroboration does not afford the necessary assurance that the main story disclosed by the approver can be reasonably and safely accepted as true. But it must never be forgotten that before the court reaches the stage of considering the question of corroboration and its adequacy or otherwise, the first initial and essential question to consider is whether even as an accomplice the approver is a reliable witness. If the answer to this question is against the approver then there is an end of the matter, and no question as to whether his evidence is corroborated or not falls to be considered. In other words, the appreciation of an approver's evidence has to satisfy a double test. His evidence must show that he is a reliable witness and that is a test which is common to all witnesses. If this test is satisfied the second test which still remains to be applied is that the approver's evidence must receive sufficient corroboration. This test is special to the cases of weak or tainted evidence like that of the approver” It has been further held there that: “8. The argument that the character of the approver's evidence has not been considered by the High Court cannot be characterised as merely academic or theoretical in the present case because, as we will presently point out, the evidence of the approver is so thoroughly discrepant that it would be difficult to resist the conclusion that the approver in the present case is a wholly unreliable witness. Indeed it may be legitimate to point out that the learned Judges of the High Court have themselves criticised the evidence of the approver in dealing with the prosecution case against Gurdial Singh and have ultimately found that the account given by the approver is unreliable and, though there was circumstantial evidence which raised an amount of suspicion against Gurdial Singh, that would not be enough to sustain his conviction. It seems to us that if it was found that the approver's account against one of the accused persons was wholly discrepant, this finding itself should inevitably have led the court to scrutinise his evidence in respect of the other accused persons with greater caution. Besides, it is somewhat unfortunate that the attention of the learned Judges of the High Court was presumably not drawn to the still more serious discrepancies in the evidence of the approver in regard to the part assigned to Harbans Singh in the commission of the offence. In the evidence given by the approver before the trial court, he has definitely and unequivocally implicated Harbans Singh in the commission of the offence. It has been brought out in the cross examination that in the very first statement made by the approver before the investigating officer on 25th November he had made statements about Harbans Singh which are wholly inconsistent with the subsequent story. In this statement, the approver had definitely stated that only the three of them were concerned with the commission of the offence, himself, Sarwan Singh and Gurdial Singh. He had also stated clearly in the said statement that Harbans Singh did not join in murdering Gurdev Singh. It is remarkable that in regard to almost every material particular about the part played by Harbans Singh in the commission of the offence the story disclosed by the approver at the trial is inconsistent with his first statement before the police. In his statement at the trial, the approver assigns Gurdial Singh the possession of lathi and according to him Gurdial Singh subsequently took up the kirpan from Sarwan Singh and murdered Gurdev Singh after which Harbans Singh himself gave a blow with it at the neck of the victim. In his statement before the police, the approver had said that Gurdial Singh had carried a kirpan. We are deliberately not referring to the several other minor discrepancies which have been brought out in the evidence of the approver in his crossexamination. In our opinion, the discrepancies brought out in the evidence of the approver qua the prosecution case against Gurdial Singh coupled with the more serious discrepancies in his evidence in the prosecution case against Harbans Singh lead to only one conclusion and that is that the approver has no regard for truth. In our opinion, the discrepancies brought out in the evidence of the approver qua the prosecution case against Gurdial Singh coupled with the more serious discrepancies in his evidence in the prosecution case against Harbans Singh lead to only one conclusion and that is that the approver has no regard for truth. It is true that in his second statement recorded on th November, the approver substantially changed his first story and involved Harbans Singh in the commission of the offence, and in that sense, his second statement can be said to be consistent with his evidence at the trial. But we cannot lose sight of the fact that, within three days after the recording of his second statement, he was granted pardon and his statement was recorded under s. 164 of the Code of Criminal Procedure on the same day. Therefore it would be legitimate for the accused to contend that the additions made by the approver in his subsequent statement may be the result of promise held out to him that he would be granted pardon. Apart from this consideration, in view of the positive statements made by the approver in his first recorded statement, there can be no doubt that the subsequent allegations against Harbans Singh are improvements and are the result of his decision to involve Harbans Singh in the commission of the offence. If this was a case where the statements made by the approver on subsequent occasions merely added details which were not included in the first statement, it may perhaps have been a different matter. It is true that omissions have not always the same significance as contradictions; but in the present case it is patent that the two sets of statements are wholly inconsistent and irreconcilable and that obviously leads to a very serious infirmity in the character of the witness. It is indeed to be regretted that the attention of the learned Judges of the High Court was not drawn to this aspect of the matter and they were not invited to consider the initial question as to whether the approver, Banta Singh, was a reliable witness at all. Every person who is a competent witness is not a reliable witness and the test of reliability has to be satisfied by an approver all the more before the question of corroboration of his evidence is considered by criminal courts.” 15. Every person who is a competent witness is not a reliable witness and the test of reliability has to be satisfied by an approver all the more before the question of corroboration of his evidence is considered by criminal courts.” 15. The principle has been developed since long in Bhuboni Sahu vs. The King, reported in AIR 1949 Privy Council 257, it has been held that: “10. In the present case their Lordships are in complete agreement with the Judges of the High Court in declining to act upon the evidence of the approver supported only by the confession of Trinath. These two persons appear to have been nothing but hired assassins. They had ample opportunity of preparing their statements in concert, and in addition, the approver has sworn to two contradictory stories, and Trinath has denied that his confession was true. It is true that no motive is shown for their falsely implicating the appellant, but motive is often a matter of conjecture. It may be that these two men thought it advisable to say falsely that they were acting on the instigation of another rather than on their own initiative, or they may have had reasons of their own for wishing to conceal the name of the real instigator.” 16. Mr. Biswas, learned senior counsel thereafter making a comparative analysis of the statement of the approver (PW40) made in different stages and different times has submitted that she is not only incoherent or inconsistent to her statements but also deliberately improved those statements only to implicate the appellant. Such statement is liable to be discarded as those are not reliable for returning the conviction. He further relied on a decision of the apex court in this regard in Baldev Singh vs. State of Punjab, reported in AIR 1979 SC 1280 . The relevant passages of that report are gainfully reproduced hereunder: “3. 14 witnesses were examined in support of the prosecution case. Gurmit Kaur (P. W. 6) testified to having seen her father being taken away by the accused and Gurmel Singh (P. W. 8) in a tractor and a trolly on the morning of the 21st July 1969. The relevant passages of that report are gainfully reproduced hereunder: “3. 14 witnesses were examined in support of the prosecution case. Gurmit Kaur (P. W. 6) testified to having seen her father being taken away by the accused and Gurmel Singh (P. W. 8) in a tractor and a trolly on the morning of the 21st July 1969. Fauja Singh (P. W. 10) also stated that at the bus stand at village Sadhugarh, Gurbachan Singh accused has got down from the trolly in which the other travellers were Baldev Singh, Gurmel Singh (P. W. 8) and the deceased and which was being towed by a tractor driven by Hardev Singh accused. The main evidence against the accused, however, consisted of the testimony of the approver, namely, Gurmel Singh (P. W. 8), and of the circumstances of the recovery of the dead body at the instance of Baldev Singh accused. * * * * * 7. The very participation of the approver in the alleged conspiracy and the commission of the offences of abduction and murder is ex facie improbable. He is not shown to be connected with the family of the appellant by ties of blood or marriage. Besides, he belongs to a different village and it is not his case that he and the accused were so thick with each other that he would die for them and they for him. The only assertion about his relations with them is that he was on visiting terms with them, which is a state of affairs such as would not normally prompt the accused to take him into confidence about such a serious matter as murder. Nor was he promised any remuneration. Why then would he put his neck into the noose? The natural conduct on his part when he was asked to be a party to the murder at the time of the alleged conspiracy would be to disclaim all interest therein or in any case to keep quiet, go back home and not react favourably to any further attempt to rope him in. His stand that he was a willing party to the conspiracy as also to the abduction and murder appears highly unnatural to us. And then what part did he actually take in the abduction and the murder? His stand that he was a willing party to the conspiracy as also to the abduction and murder appears highly unnatural to us. And then what part did he actually take in the abduction and the murder? He says that he was called by the accused and travelled along with them in the trolly and all that he did was that he caught hold of the legs of the deceased after the latter had received fatal injuries at the hands of the appellant. Why the legs were so caught is not stated and appears to be something really funny and incredible. The third improbability in the approver's evidence consists of his visit to the police station at Sirhind. He says that he got frightened by the rumour that he had been named as one of the culprits who had abducted and murdered Inder Singh and that, therefore, he contacted the police in order to find out whether there was any truth in the rumour. This conduct on his part is wholly unnatural. The rumour would have persuaded him to make himself scarce rather than to go to the police which was the very thing he was afraid of. And then it is hard to believe that the deceased would, for the mere asking, accompany the accused in their trolly when he had expressed his abhorrence of their misconduct towards his daughter not only by declaring his intention to cancel the will but also by shifting his residence back to his own house. All these improbabilities relate to important aspects of the prosecution case and cannot be ignored on the plea that they do not touch the main fabric of the story given by the approver. 8. Ex. D. A. is the statement which the approver made to Assistant SubInspector Dalip Singh (P. W. 11) on the 4th August 1969. In that statement there is no mention of the motive part of the prosecution case, the conspiracy, any part having been taken by the approver in the occurrence or of any one of the accused having jumped on the chest of the deceased. Even in Ex. In that statement there is no mention of the motive part of the prosecution case, the conspiracy, any part having been taken by the approver in the occurrence or of any one of the accused having jumped on the chest of the deceased. Even in Ex. P. B. which is the statement of the approver recorded by Shri Amjad Ali Khan (P. W. 3), the incident in which Gurmit Kaur (P. W. 6) was abused does not find any place, nor does a reference appear therein to Baldev Singh accused jumping on the chest of the deceased. The story in Ex. P. B. is given in a neat chronological order which appears to be the handiwork of some brain more clever than that of the approver himself. It was in his deposition before the court that the approver for the first time mentioned that on the day of the liquor party the three accused and the approver himself had hurled abuses at the girl. It may be noted that a reference to the liquor party and the fact that the approver was present thereat do find a mention of Ex. P. B. Had the story of the abuses been correct, there is no reason why he should not have mentioned it in that document which is a detailed one. The averment that the appellant had jumped on the chest of the deceased is also disclosed by him for the first time in his deposition in court. The fact is of such vital importance that the approver could not have failed to disclose it in either of the two documents Exhibits D. A. and P. B. As it is, we have a strong feeling that the approver had been improving his story from time to time in order to give support to the prosecution case and not because it was the truth. In its main features, therefore, we cannot accept the story as trustworthy even in regard to Baldev Singh who must also be treated at par with his two coaccused except in relation to the offence covered by Section 201 of the Indian Penal Code which is established against him by reason of the approver's deposition coupled with the very reliable material in proof of the recovery of the dead body at the instance of the appellant which is testified to by Pyara Singh (P. W. 9) and Assistant SubInspector Dalip Singh (P. W. 11) both of whom have been believed on the point by the two courts below and for good reasons which we need not repeat.” 17. Thereafter, Mr. Biswas, learned senior counsel has submitted that the approver’s testimony has not been corroborated in the material particulars by the reliable witnesses. He has also submitted that unless the approver implicates himself or herself, his or her statement does not give rise to a conclusion of guilt beyond reasonable doubt. He has referred to the decision of the apex court in Ram Narain vs. State of Rajasthan, reported in AIR 1973 SC 1188 , where it has been held that: “8. Turning to the second point we may first state the legal position relating to the testimony of an approver. Section 133, Indian Evidence Act, which falls in Ch. IX dealing generally with witnesses, expressly provides that an accomplice is a competent witness and the conviction is not illegal merely because it proceeds on uncorroborated testimony of an accomplice. In other words, this section renders admissible such uncorroborated testimony. But this section has to be read along with illustration (b) to Section 114 which falls in Ch. VII, dealing with burden of proof. Section 114 empowers the court to presume the existence of certain facts and the illustrations elucidate what the court may presume and make clear by means of examples as to what facts the court shall have regard in considering whether or not the maxims illustrated apply to a given case before it. Illustration (b) in express terms says that an accomplice is unworthy of credit unless, he is corroborated in material particulars : two examples are also given to further explain this subject. Illustration (b) in express terms says that an accomplice is unworthy of credit unless, he is corroborated in material particulars : two examples are also given to further explain this subject. The statute thus permits the conviction of an accused person on the basis of uncorroborated testimony of an accomplice but the rule of prudence embodied in illustration (b) of Section 114 strikes a note of warning cautioning the court that an accomplice does not generally deserve to be believed unless corroborated in material particulars. This rule of caution is traceable to the fact that an accomplice witness from the very nature of his position is a suspect. This rule is guided by long human experience and has become a rule of prudence of general application. The courts, therefore, consider it prudent to look for corroboration in material particulars for sustaining the conviction of an accused person. An approver who is admittedly guilty of the crime is an accomplice who has betrayed his associates and has apparently sought pardon for saving his own skin. In other words he has purchased complete immunity for his prosecution at the expense of his associated by agreeing to give evidence against them for the prosecution. He is, therefore, presumed not to be a man of high character or a fair witness. His pardon being conditional, to pleased the prosecution he may well weave some false detail into the true details of the prosecution story and may also falsely involve some innocent person. There is thus a real danger of his telling a story true in general outline but containing some untruth which he can easily work into the story. It is for this reason that the courts as a matter of prudence and caution anxiously look for some corroboration to satisfy their conscience that the approver's testimony which is clearly admissible is also worthy of belief. One can of course visualize an accomplice who is genuinely repentant for the commission of his crime and truly desires to make a clean breast of the whole affair by way of penitence. But even in such cases the court has to judicially determine the extent to which his uncorroborated testimony can be considered as trustworthy by looking to the other relevant material and the attending circumstances on the basis of which the accused can be safely convicted. But even in such cases the court has to judicially determine the extent to which his uncorroborated testimony can be considered as trustworthy by looking to the other relevant material and the attending circumstances on the basis of which the accused can be safely convicted. The rule which seems to emerge from the foregoing discussion and judicial decisions is that the necessity of corroboration as a matter of prudence except when it is safe to dispense with such corroboration must be clearly present to the mind of the judge. * * * * * 19. We now turn to the charge of criminal conspiracy under Section 120B, I.P.C. as a separate and distinct offence independent of the offence under Section 467, I.P.C. No doubt in almost every case of conspiracy it is generally a matter of inference, direct independent evidence being seldom, if ever, forthcoming. But inferences are normally deduced from acts of parties in pursuance of apparent criminal purpose in common between them. Of such criminal acts the evidence in the case under appeal has not been accepted by us. The evidence of the approver (P.W. 1) who would of course be competent to prove the substantive charge of conspiracy, which has not been believed by us with respect to forgery is not easy to accept with respect to the charge of conspiracy. His version with regard to it is far from convincing. Though he claims to have prepared 200 pattas and order sheets, evidence regarding only four was led and that too not trustworthy. For the first time he disclosed the story to the police after arrest in expectation of help from them. On his evidence uncorroborated as it is, the charge of conspiracy as framed cannot be sustained. We have, therefore, no option but to allow this appeal, quash the appellant's conviction and acquit him.” For the same principle he has also relied on a decision of the apex court in Ravinder Singh vs. State of Haryana, reported in AIR 1975 SC 856 , where it has been held that: “12. An approver is a most unworthy friend, if at all, and he, having bargained for his immunity, must prove his worthiness for credibility in court. This test is fulfilled, firstly, if the story he relates involves him in the crime and appears intrinsically to be a natural and probable catalogue of events that had taken place. An approver is a most unworthy friend, if at all, and he, having bargained for his immunity, must prove his worthiness for credibility in court. This test is fulfilled, firstly, if the story he relates involves him in the crime and appears intrinsically to be a natural and probable catalogue of events that had taken place. The story if given, of minute details according with reality is likely to save it from being rejected brevi manu. Secondly, once that hurdle is crossed, the story given by an approver so far as the accused on trial is concerned, must implicate him in such a manner as to give rise to a conclusion of guilt beyond reasonable doubt. In a rare case taking into consideration all the factors, circumstances and situations governing a particular case, conviction based on the uncorroborated evidence of an approver confidently held to be true and reliable by the court may be permissible. Ordinarily, however, an approver's statement has to be corroborated in material particulars bridging closely the distance between the crime and the criminal. Certain clinching features of involvement disclosed by an approver appertaining directly to an accused, if reliable, by the touchstone of other independent credible evidence, would give the needed assurance for acceptance of his testimony on which a conviction may be based.” 18. Mr. Biswas, learned senior counsel while dealing with the various episodes as narrated by the witnesses whether forming the circumstances so closely knit to exclude hypothesis of innocence against the appellant has submitted that it has been proved that PWs1 and 40 have stated in their statements recorded under Section 161 of the Cr.P.C. and in the ejahar recorded on 19.05.2013 that at the time of alleged occurrence, BalaramGhosh was in the bathroomand on being called by PW 40, he came out to resist the assailants when only he was attacked by the assailants and in that scuffling one pair of sandal was left on the place of occurrence. Moreover, in the inquest report of the deceased, BalaramGhosh it has been clearly observed that he was only wearing a short pant and a jangia at the time of alleged occurrence which according to Mr. Biswas, learned senior counsel points out Balaram’s being in the bathroom and that has corroborated the statement made by the approver in the oral ejahar. Moreover, in the inquest report of the deceased, BalaramGhosh it has been clearly observed that he was only wearing a short pant and a jangia at the time of alleged occurrence which according to Mr. Biswas, learned senior counsel points out Balaram’s being in the bathroom and that has corroborated the statement made by the approver in the oral ejahar. As such, the improved version of PW40 that Balaramkilled Ranjit Choudhury and also in the scuffling with Sujit Bhattacharjee, both Sujit and Balaramfell victimhaving received the fatal injuries cannot be believed by this Court. Mr. Biswas, learned senior counsel has further submitted that PW40 has categorically stated that there was profuse bleeding fromthe injuries sustained by BalaramGhosh and Sujit Bhattacharjee. PW37, Dr. Ranjit Kr. Das, who conducted the postmortemexamination of the injured deceased has specifically stated that there was profuse blood or gush of blood fromthe injury sustained by the deceased. Both PWs40 and 41 have admitted that the distance between the dead body of Balaram and Sujit is about 3/4 meters and PW41 specifically admitted in the crossexamination that he did not find any chain of blood around the place. According to Mr. Biswas, learned senior counsel, it is a definite pointer to show that PW40 did not see the occurrence or she has suppressed the real fact fromthe court. Thus, her evidence cannot be relied for purpose of returning the finding of conviction. Mr. Biswas, learned senior counsel has relied on a few decisions of the apex court to nourish his submission in this regard. 19. In Karunakaran vs. State of Tamilnadu, reported in AIR 1976 SC 383 , the apex court held that: “12. Another very serious departure from his earlier version is that while PW 4 had stated in the first information report that ‘my elder brother’ (meaning the deceased) was ‘chasing him from behind’ in Court he has completely given a goby to this statement and stated that Karunakaran was being chased by PWs 1, 2 and 3. He did not at all refer to the deceased chasing him. If his statement in court that he saw PWs 1, 2 and 3 chasing Karunakaran while running away after the assault is true, it is difficult to appreciate that he would not mention about this fact in the first information report. He did not at all refer to the deceased chasing him. If his statement in court that he saw PWs 1, 2 and 3 chasing Karunakaran while running away after the assault is true, it is difficult to appreciate that he would not mention about this fact in the first information report. He admitted in the course of crossexamination that the SubInspector asked him whether he had any witnesses and that he ‘did not tell them due to excitement.’ It is difficult to accept this explanation of this witness. Assuming that his earlier version in the first information report is true that the deceased chased the accused as the latter was running away after the assault we would have expected some evidence of a trial of blood stains from the place where he was sleeping to the place where he fell dead. On the other hand we find that there is a mention about a pool of blood only where the dead body was found at No. 1 in the site plan. There were also no blood stains on the bench where he was said to be sleeping. We further find from the evidence of PW 4 in crossexamination that when he went near his deceased elder brother about hundred persons were there and ‘none of them asked him as to how it had happened.’ We do not find in this case a single witness out of that crowd produced in court for the purpose of corroborating PW 4. If the statement of PW 4 is to be believed, the crowd had gathered at the place of occurrence already when he arrived. It is also conceivable that those persons who arrived at the place of occurrence a little earlier than PW 4, did not see the assailants who might have already escaped. It also stands to reason that those persons who gathered would not ask PW 4, who arrived at the place a little later, for information with regard to the assailants. There is considerable doubt as to his testimony with regard to seeing the accused running away from the place of occurrence. When the accused is going to lose his life in such a serious charge it is only necessary that the court should be circumspect and closely scrutinize the evidence to come to an unhesitating conclusion that he is absolutely reliable. When the accused is going to lose his life in such a serious charge it is only necessary that the court should be circumspect and closely scrutinize the evidence to come to an unhesitating conclusion that he is absolutely reliable. We are unable to say that the High Court in this case has made a correct approach in assessing the quality of the testimony of this solitary eyewitness. The High Court is not even right that PW 4 stands wholly corroborate by the contents of the FIR. On the other hand we have shown that his version in the FIR stands contradicted by the testimony in court on a very material point.” [Emphasis supplied] If it is assumed that her earlier version in the ejahar was true as Balaramwas running away after the assault, there would have been some trail of blood fromthe place where he was initially suffered the injury to the place where he fell on the ground. Some blood was only found where his body was found. 20. In this regard Mr. Biswas, learned senior counsel has relied on a decision in Hem Raj and others vs. State of Haryana, reported in (2005) 10 SCC 614 , where it has been observed as under: “10. One more aspect which deserves notice is that at the alleged scene of offence, no bloodstains were found by the I.O., though he made a search. The surmise of the High Court that the blood stains at the public place would have disappeared in view of the time gap between the incident and the I.O.'s inspection may not be correct, especially, in view of the fact that it is a metal road, as shown by PW8 in the site plan and it was night time. It is difficult to believe that traces of blood would fade out by the time of the visit of I.O. This is one of the circumstances that has to be kept in mind while appreciating the prosecution case.” 21. It is difficult to believe according to Mr. Biswas, learned senior counsel, that trace of blood would disappear by the time when the investigating officer rushed in the place of occurrence. It is one of the important circumstances which were not considered at all by the trial court. In this regard, Mr. It is difficult to believe according to Mr. Biswas, learned senior counsel, that trace of blood would disappear by the time when the investigating officer rushed in the place of occurrence. It is one of the important circumstances which were not considered at all by the trial court. In this regard, Mr. Biswas, learned senior counsel has again placed reliance on a decision of the apex court in D.V. Shanmugham and another vs. State of Andhra Pradesh, reported in (1997) 5 SCC 349 , where it has been held that: “11. It would also appear from the materials on record that though accordingly to the eyewitnesses the incident occurred in front of the house of accused No. 3 where both deceased Mohan and Sekhar were stabbed by accused No. 2 and while taking the injured persons Mohan fell down in front of the house of Prabhakar as a result of which blood fell down in front of the house of Prabhakar, yet it is difficult to imagine as to how blood stains were found from the house of Prabhakar upto the house of Venkat Reddy and even on the Veranda of the house of Venkat Reddy as has been stated by PW2 and PW22 one of the investigating officers and according to the said PW22 the distance between Prabhakar's house and Venkat Reddy's house is more than 120 feet. Though Mohan and Sekhar were stabbed in front of the house of accused No. 3 as stated by the prosecution witnesses but blood stains being available upto the house of Prabhakar is explained from the fact that the injured persons were carried upto that place but beyond that it is no body's case that the injured persons were carried any further and as such no explanation is forthcoming as to how blood stains could be found upto the Veranda of the house of Venkat Reddy and then blood stained stones were also recovered from the Veranda of said Venkat Reddy. This feature also indicates that the prosecution witnesses are not sure as to where the occurrence took place. It also appeared from the evidence of PW2 and PW8 that there were several other people who witnessed the occurrence and they are not the residents of that locality. This feature also indicates that the prosecution witnesses are not sure as to where the occurrence took place. It also appeared from the evidence of PW2 and PW8 that there were several other people who witnessed the occurrence and they are not the residents of that locality. If such independent witnesses were available and yet were not examined by the prosecution and only those persons who are related to the deceased were examined then in such a situation the prosecution case to be scrutinized with more care and caution. Further Mr. Parasaran is right in his submission that the witnesses ascribed the role of catching hold of Mohan by accused No. 1 and role of catching hold of Sekhar by accused No. 3 and the High Court gave the benefit to accused No. 3 since the witnesses had not narrated the same to the police when examination under Section 161 Cr. PC. took place and therefore the self same infirmities having crept in when the prosecution witness stated about catching hold of Mohan by accused No. 1, the said accused No. 1 is entitled to the benefit of doubt. In fact as stated earlier Mrs. Amreshwari, the learned senior counsel appearing for the State also fairly stated that possibly it would be difficult to sustain the conviction of accused No. 1 when the accused No. 3 has got benefit and has been acquitted and no appeal against the said order of acquittal has been filed by the State. On account of such infirmities in the prosecution case as indicated above and more particularly when the prosecution has failed to offer any explanation for the grievous injuries sustained by accused No. 1 on his head and the High Court has already found that the said injury was caused in course of the incident, we have no hesitation to hold that the accused appellant No. 1 D.V. Shanmugam is entitled to the benefit of doubt and we accordingly set aside the conviction and sentence of the said accused appellant No. 1 both under Section 302/34 IPC as well as under Section 324 IPC and direct that he shall be set at liberty forthwith if his detention is not required in any other case.” 22. On the result of the forensic examination, Mr. On the result of the forensic examination, Mr. Biswas, learned senior counsel has expressed his serious doubt that whether such report can at all be relied on inasmuch as that the date of sealing, date of packing and place of packing were not mentioned. PW36, Dr. S. Nath, the forensic expert has specifically stated in the trial court that the date of sealing, date of packing and place of packing were not mentioned when he received the materials for examination. He found on the packet the specimen signature of SDPO and except the signature of SDPO, he did not find any other signature on the said parcel or inside the parcel. He found 19(nineteen) numbers of packets but there was no mention in those packets where those were packed or whether those were collected in presence of the witnesses. In forwarding the report, he did not find any signature except the signature of the SDPO. Hence, the report of the forensic experts is of no utility as those articles were not packed or sealed by the investigating officer at the place of occurrence. Having referred to the testimony of PW41, the investigating officer, Mr. Biswas, learned senior counsel has submitted that the said witnesses candidly admitted that there is no record to show that the seized articles were sealed and packed in presence of any witness at the place of occurrence. Even the photographs as produced by him also did not show that those were seized in presence of the witnesses. He placed reliance on the apex court decision in Salim Akhtar alias Mota vs. State of Uttar Pradesh, reported in AIR 2003 SC 4076, where the apex court held that since the seized arms alleged to have been recovered at the pointing out of the appellant was not sealed on the spot coupled with the fact that neither its number or its make etc. fix its identity to mention in the recovery memo or in the FIR raises considerable doubt regarding factumof recovery. Another decision of the apex court in Ashok @ Dangra Jaiswal vs. State of Madhya Pradesh, reported in (2011) 5 SCC 123 has been relied by Mr. Biswas, learned senior counsel, where it has been enunciated as under: “10. The seizure of the alleged narcotic substance is shown to have been made on 08.03.2005, at 11:45 in the evening. Another decision of the apex court in Ashok @ Dangra Jaiswal vs. State of Madhya Pradesh, reported in (2011) 5 SCC 123 has been relied by Mr. Biswas, learned senior counsel, where it has been enunciated as under: “10. The seizure of the alleged narcotic substance is shown to have been made on 08.03.2005, at 11:45 in the evening. The samples taken from the seized substance were sent to FSL on 10.03.2005, along with the draft, Exhibit P.31. The samples sent for forensic examination were, however, not deposited at the FSL on that date but those came back to the police station on 12.03.2205 due to some mistake in the draft or with some query in respect of the draft. The samples were sent back to the FSL on 14.03. 2005, after necessary corrections in the draft and/or giving reply to the query and on that date the samples were accepted at the FSL. From the time of the seizure in the late evening of 08.03.2005, till their deposit in the FSL on 14.03.2005, it is not clear where the samples were laid or were handled by how many people and in what ways. 11. The FSL report came on 21.03.2005, and on that basis the police submitted chargesheet against the accused on 31.03.2005, but the alleged narcotic substance that was seized from the accused, including the appellant was deposited in the Malkhana about two months later on 28.05.2005. There is no explanation where the seized substance was kept in the meanwhile.” 23. Mr. Biswas, learned senior counsel has further submitted that PW36, the forensic expert has mentioned in the report that he had collected the swab fromthe entire knife (Exbt.M.O.2) and fromexamination of that swab it appeared to himthat the blood found on the knife was a mix of blood of Sujit Bhattacharjee, BalaramGhosh and Ranjit Choudhury. According to the defence, it shows that by the said knife three persons were killed but the prosecution did not collect the fingerprints of the assailants fromthe handle of the knife. The same has been omitted to suppress the real fact deliberately. PW36 has admitted that the handle of the knife was not examined by the fingerprint expert. According to the defence, it shows that by the said knife three persons were killed but the prosecution did not collect the fingerprints of the assailants fromthe handle of the knife. The same has been omitted to suppress the real fact deliberately. PW36 has admitted that the handle of the knife was not examined by the fingerprint expert. Moreover, PW41 has admitted that even though he had instructed the expert to collect the fingerprint and footprint from the dagger and the chappal, he has admitted that nowhere in the report it has been observed that the fingerprint and footprint which are collected were invisible. He has admitted that the result of the fingerprint examination nor any certificate thereof has been produced in the trial and as such, for holding back of the result of the examination by the expert should invoke adverse inference by the court. Thereafter, Mr. Biswas, learned senior counsel has submitted that PW37, Dr. Ranjit Kr. Das has opined that if the assailants were physically very close to the deceased and in that event blood fromthe injuries in all probability would sprinkle on the body of the assailants. Moreover, fromthe statement made by PW40, it is apparent that the deceased Sujit Bhattacharjee was lying on the ground and BalaramGhosh was sitting on his chest. If that is believed, Balaram’s blood is bound to be found in the wearing apparels of Sujit Bhattacharjee or the vice versa but the forensic expert has clearly stated that he did not find any such blood on the wearing apparels of the deceased. This circumstance itself indicates that the prosecution’s story as weaved by PW40 is untrustworthy. For purpose of establishing motive, the prosecution has attempted to make out a case against the appellant is that he was involved with illegal business including the business of chit fund. PW40 in her crossexamination has made a clear statement that she had no knowledge of such illegal business of the appellant. Even PW41 has admitted that he failed to collect any evidence regarding involvement of the appellant with any illegal business. PW40 has stated that Balaram Ghosh disclosed to her that he had committed the murder of Ranjit Choudhury having directed by Sushil Choudhury. Such statement has been made by the approver (PW40) for the first time in the trial. Even PW41 has admitted that he failed to collect any evidence regarding involvement of the appellant with any illegal business. PW40 has stated that Balaram Ghosh disclosed to her that he had committed the murder of Ranjit Choudhury having directed by Sushil Choudhury. Such statement has been made by the approver (PW40) for the first time in the trial. No such statement is available in the oral ejahar or in her statement recorded under Section 161 of the Cr.P.C., or in the statement as recorded under Section 306 (4) of the Cr.P.C. Another such statement has been made by PW40 that her daughter PW1 disclosed to her that she saw the appellant catching hold of the hair of Ranjit Choudhury and Balaramcommitting the murder by inflicting the dagger injuries having been directed by Sushil Choudhury, is made for the first time in the trial. Even no indication in this regard is available in the statement of the approver as recorded under Section 306(4) of the Cr.P.C. Clearly these two statements are improved and those cannot be relied on for purpose of returning the finding of conviction. 24. Reliance has been placed on a decision of the apex court in Tahsildar Singh and Anr. vs. The State of Uttar Pradesh, reported in AIR 1959 SC 1012 , where it has been held that: “16. The object of the main section as the history of its legislation shows and the decided cases indicate is to impose a general bar against the use of statement made before the police and the enacting clause in clear terms says that no statement made by any person to a police officer or any record thereof, or any part of such statement or record, be used for any purpose. The words are clear and unambiguous. The proviso engrafts an exception on the general prohibition and that is, the said statement in writing may be used to contradict a witness in the manner provided by S.145 of the Evidence Act. We have already noticed from the history of the section that the enacting clause was mainly intended to protect the interests of accused. At the state of investigation, statements of witnesses are taken in a haphazard manner. The policeofficer in the course of his investigation finds himself more often in the midst of an excited crowd and babel of voices raised all round. At the state of investigation, statements of witnesses are taken in a haphazard manner. The policeofficer in the course of his investigation finds himself more often in the midst of an excited crowd and babel of voices raised all round. In such an atmosphere, unlike that in a Court of Law, he is expected to hear the statements of witnesses and record separately the statement of each one of them. Generally he records only a summary of the statements which appear to him to be relevant. These statements are, therefore, only a summary of what a witness says and very often perfunctory. Indeed, in view of the aforesaid facts, there is a statutory prohibition against police officers taking the signature of the person making the statement, indicating thereby that the statement is not intended to be binding on the witness or an assurance by him that it is a correct statement. 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 policeofficer 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 S. 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. 18. If the provisions of the section are construed in the aforesaid background, much of the difficulty raised disappears. Looking at the express words used in the section, two sets of words stand out prominently which afford the key to the intention of the legislature. They are : ‘statement in writing’, and ‘to contradict’. ‘Statement’ in its dictionary meaning is the act of stating or reciting. Looking at the express words used in the section, two sets of words stand out prominently which afford the key to the intention of the legislature. They are : ‘statement in writing’, and ‘to contradict’. ‘Statement’ in its dictionary meaning is the act of stating or reciting. ‘Prima facie’ a statement cannot take in an omission. A statement cannot include that which is not stated. But very often to make a statement sensible or selfconsistent, it becomes necessary to imply words which are not actually in the statement. Though something is not expressly stated, it is necessarily implied from what is directly or expressly stated. To illustrate : 'A' made a statement previously that he saw 'B' stabbing 'C' to death; but before the Court he deposed that he saw 'B' and 'D' stabbing 'C' to death : the Court can imply the word ‘only’ after 'B' in the statement before the police. Sometimes a positive statement may have a negative aspect and a negative one a positive aspect. Take an extreme example: if a witness states that a man is dark, it also means that he is not fair. Though the statement made describes positively the colour of a skin, it is implicit in that statement itself that it is not of any other colour. Further, there are occasions when we come across two statements made by the same person at different times and both of them cannot stand or coexist. There is an inherent repugnancy between the two and, therefore, if one is true, the other must be false. On one occasion a person says that when he entered the room, he saw 'A' shooting 'B' dead with a gun; on another occasion the same person says that when he entered the room he saw 'C' stabbing 'B' dead; both the statements obviously cannot stand together, for, if the first statement is true, the second is false and vice versa. The doctrine of recital by necessary implication, the concept of the negative or the positive aspect of the same recital, and the principle of inherent repugnancy, may in one sense rest on omissions, but, by construction, the said omissions must be deemed to be part of the statement in writing. Such omissions are not really omissions strictly so called and the statement must be deemed to contain them by implication. Such omissions are not really omissions strictly so called and the statement must be deemed to contain them by implication. A statement, therefore, in our view, not only includes what is expressly stated therein, but also what is necessarily implied therefrom. 19.‘Contradict’ according to the Oxford Dictionary means to affirm to the contrary. Section 145 of the Evidence At indicates the manner in which contradiction is brought out. The crossexamining 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 policeofficer 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. * * * * * 29. Would those two omissions satisfy the test laid down by us? The witness stated in the Court that there was a gaslamp and that some of the miscreants scrutinized the faces of the dead bodies. In their statements before the police they did not mention the said two facts and some of the witnesses stated that there were lanterns. Taking the gaslamp first: the scene of occurrence was not a small room but one spreadover from the well to Bankey's house. From that omission in the statement it cannot necessarily be implied that there was no gaslamp in any part of the locality wherein the incident took place; nor can it be said that, as the witnesses stated that there were lanterns, they must be deemed to have stated that there was no gaslamp, for the word ‘lantern’ is comprehensive enough to take in a gaslantern. It is also not possible to state that the statements made before the police and those made before the Court cannot coexist, for there is no repugnancy between the two, as even on the assumption that lantern excludes a gaslantern, both can exist in the scene of occurrence. The same can be said also about the scrutiny of the faces of the dead bodies. In the statements before the police, the movements of the appellants were given. It was stated that they shot at the people and decamped with the gun of Bharat Singh. The same can be said also about the scrutiny of the faces of the dead bodies. In the statements before the police, the movements of the appellants were given. It was stated that they shot at the people and decamped with the gun of Bharat Singh. The present evidence that in the course of their pursuit, they looked at the faces of two of the dead bodies does not in any way contradict the previous versions, for the said incident would fit in with the facts contained in the earlier statements. The appellants could have shot at the audience, pursued them, taken the gun of Bharat Singh and on their way scrutinized the dead bodies. The alleged omission does not satisfy any of the principles stated by us. * * * * * 50. It must not be overlooked that the cross examination must be directed to bringing out a contradiction between the statements and must not subserve any other purpose. If the crossexamination does anything else, it will be barred under S. 162, which permits the use of the earlier statement for contradicting a witness and nothing else. Taking the example given above, we do not see why crossexamination may not be like this: Q. I put it to you that when you arrived on the scene X was already running away and you did not actually see him stab D as you have deposed today? A. No. I saw both the events. Q. If that is so, why is your statement to the police silent as to stabbing? A. I stated both the facts to the police. The witness can then be contradicted with his previous statement. We need hardly point out that in the illustration given by us, the evidence of the witness in Court is direct evidence as opposed to testimony to a fact suggesting guilt. The statement before the police can only be called circumstantial evidence of complicity and not direct evidence in the strict sense. * * * * * 59. This brings us to the consideration of the questions, which were asked and disallowed. These were put during the crossexamination of Bankey, P.W. 30. The statement before the police can only be called circumstantial evidence of complicity and not direct evidence in the strict sense. * * * * * 59. This brings us to the consideration of the questions, which were asked and disallowed. These were put during the crossexamination of Bankey, P.W. 30. They are: Q. Did you state to the investigating officer that the gang rolled the dead bodies of Nathi, Saktu and Bharat Singh and scrutinized them, and did you tell him that the face of Asa Ram resembled that of the deceased Bharat Singh? Q. Did you state to the investigating officer about the presence of the gas lantern? These questions were defective, to start with. They did not set up a contradiction but attempted to obtain from the witness a version of what he stated to the police, which is then contradicted. What is needed is to take the statement of the police as it is, and establish a contradiction between that statement and the evidence in Court. To do otherwise is to transgress the bounds set by S.162 which, by its absolute prohibition, limits even crossexamination to contradictions and no more. The crossexamination cannot even indirectly subserve any other purpose. In the questions with which we illustrated our meaning, the witness was not asked what he stated to the police, but was told what he had stated to the police and asked to explain the omission. It is to be borne in mind that the statement made to the police is 'duly proved' either earlier or even later to establish what the witness had then stated.” [Emphasis supplied] In Radha Kumar vs. State of Bihar, reported in (2005) 10 SCC 216 , it has been held by the apex court as under: “3. As this appeal is bound to succeed on a short question, there is no necessity to narrate the facts. Suffice it to say that the allegation against the appellant was that he fired two shots which hit one Salo Devi who succumbed to injuries. The first information report was lodged by PW 7 who having not supported the prosecution case in court was declared hostile. Other witnesses who claimed to be eyewitnesses are PWs 2, 3, 4 and 6 out of whom PW 3 has been disbelieved by the trial court itself. As such there remains evidence of PWs 2, 4 and 6. The first information report was lodged by PW 7 who having not supported the prosecution case in court was declared hostile. Other witnesses who claimed to be eyewitnesses are PWs 2, 3, 4 and 6 out of whom PW 3 has been disbelieved by the trial court itself. As such there remains evidence of PWs 2, 4 and 6. The occurrence is said to have taken place on 1931993 and these witnesses were examined in the Sessions Court between 1281994 and 1111995 i.e. after several months of the date of the alleged occurrence. Undisputedly, these witnesses have not disclosed complicity of the appellant in the crime in their statement made before the police inasmuch as they have not even disclosed the name of the appellant as the accused in their statement made before the police and for the first time in the Sessions Court after several months they have disclosed complicity of the appellant in the crime. No reason has been assigned by the prosecution for nondisclosure of the name of the appellant before the police by these witnesses. This being the position, we are of the view that it would not be safe to place reliance upon the statement of these witnesses made for the first time in the Sessions Court after several months of the alleged occurrence without there being any reasonable excuse for not naming the accused before the police especially when the prosecution case has not been supported by the informant who also claimed to be an eyewitness.” [Emphasis supplied] 25. In response to the prosecution’s assertion that since the occurrence has taken place in the house of the appellant the burden shifted on himto prove as to how the death has taken place. In this regard, Mr. Biswas, learned senior counsel has submitted that the burden to prove the guilt is always on the prosecution and when such burden is discharged the accused may prove or place any particular fact within his special knowledge under Section 106 of the Evidence Act to establish that he was not guilty. The basic burden is always with the prosecution. Such burden is heavier when the crime is more serious. In this regard, reliance has been placed on a decision of the apex court in Joydeb Patra and Ors. vs. State of West Bengal, reported in 2013 CRI.L.J. 2729, where it has been held as under: “7. The basic burden is always with the prosecution. Such burden is heavier when the crime is more serious. In this regard, reliance has been placed on a decision of the apex court in Joydeb Patra and Ors. vs. State of West Bengal, reported in 2013 CRI.L.J. 2729, where it has been held as under: “7. Learned Counsel for the State, Mr. Bijan Ghosh, vehemently submitted that since the death took place in the house of the appellants, burden was on the appellants to prove as to how the death of the deceased actually took place. He submitted that the death of the deceased obviously took place under very mysterious circumstances and when the medical facilities were very near to the place of occurrence, the appellants should have availed the medical facilities but have not done so and this conduct of the appellants has given scope to the prosecution to believe that they were guilty of the offence under Section 302/34, I.P.C. 8. We are afraid, we cannot accept this submission of Mr. Ghosh. This Court has repeatedly held that the burden to prove the guilt of the accused beyond reasonable doubt is on the prosecution and it is only when this burden is discharged that the accused could prove any fact within his special knowledge under Section 106 of the Indian Evidence Act to establish that he was not guilty. In Sucha Singh v. State of Punjab : (2001) 4 SCC 375 , this Court held: ‘We pointed out that Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases where prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference.’ Similarly, in Vikramjit Singh v. State of Punjab : (2006) 12 SCC 306 , this Court reiterated: ‘Section 106 of the Indian Evidence Act does not relieve the prosecution to prove its case beyond all reasonable doubt. Only when the prosecution case has been proved the burden in regard to such facts which was within the special knowledge of the accused may be shifted to the accused for explaining the same. Of course, there are certain exceptions to the said rule, e.g., where burden of proof may be imposed upon the accused by reason of a statute.’ 9. As the prosecution has not been able to discharge its burden of establishing beyond reasonable doubt that the deceased died due to poisoning, in our view, the trial court and the High Court could not have held the appellants guilty just because the appellants have not been able to explain under what circumstances the deceased died.” [Emphasis supplied] 26. In Paramjeet Singh @ Pamma vs. State of Uttarakhand, in 2011 CRI.L.J. 663, it has been held by the apex court as under: “13. Thus, the law on the point may be summarised to the effect that in a criminal trial involving a serious offence of a brutal nature, the court should be wary of the fact that it is human instinct to react adversely to the commission of the offence and make an effort to see that such an instinctive reaction does not prejudice the accused in any way. In a case where the offence alleged to have been committed is a serious one, the prosecution must provide greater assurance to the court that its case has been proved beyond reasonable doubt. Circumstantial Evidence: 14. Though a conviction may be based solely on circumstantial evidence, this is something that the court must bear in mind while deciding a case involving the commission of a serious offence in a gruesome manner. In Sharad Birdhichand Sarda v. State of Maharashtra : AIR 1984 SC 1622 , this Court observed that it is well settled that the prosecution's case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence put up by the accused. However, a false defence may be called into aid only to lend assurance to the court where various links in the chain of circumstantial evidence are in themselves complete. However, a false defence may be called into aid only to lend assurance to the court where various links in the chain of circumstantial evidence are in themselves complete. This Court also discussed the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone and held as under: (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established; (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) The circumstances should be of a conclusive nature and tendency; (4) They should exclude every possible hypothesis except the one to be proved; and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” [Emphasis supplied] 27. Mr. Biswas, learned senior counsel has submitted that the trial court is under obligation not be swayed by the public opinion or his passion. It is the fundamental duty of the court that its inference must be based on the legal evidence. In this respect, reliance has been placed on the apex court’s decision in State through C. B. I. vs. Mahender Singh Dahiya, reported in 2011 AIR SCW 1916, where the apex court has observed as under: “19.Undoubtedly, this case demonstrates the actions of a depraved soul. The manner in which the crime has been committed in this case, demonstrates the depths to which the human spirit/soul can sink. But no matter how diabolical the crime, the burden remains on the prosecution to prove the guilt of the accused. Given the tendency of human beings to become emotional and subjective when faced with crimes of depravity, the Courts have to be extra cautious not to be swayed by strong sentiments of repulsion and disgust. It is in such cases that the Court has to be on its guard and to ensure that the conclusion reached by it are not influenced by emotion, but are based on the evidence produced in the Court. Suspicion no matter how strong cannot, and should not be permitted to, take the place of proof. It is in such cases that the Court has to be on its guard and to ensure that the conclusion reached by it are not influenced by emotion, but are based on the evidence produced in the Court. Suspicion no matter how strong cannot, and should not be permitted to, take the place of proof. Therefore, in such cases, the Courts are to ensure a cautious and balanced appraisal of the intrinsic value of the evidence produced in Court.” [Emphasis supplied] 28. Mr. Biswas, learned senior counsel has submitted further that the statement made by the accused during his examination under Section 313 of the Cr.P.C., which is not recorded under oath, cannot be treated as evidence under Section 3 of the Evidence Act. He has to that end, placed reliance on the apex court decision in Raj Kumar Singh alias Raju alias Batya vs. State of Rajasthan, reported in 2013 CRI.L.J. 3276, where the apex court has held that: “36. In view of the above, the law on the issue can be summarised to the effect that statement under Section 313 Cr.P.C is recorded to meet the requirement of the principles of natural justice as it requires that an accused may be given an opportunity to furnish explanation of the incriminating material which had come against him in the trial. However, his statement cannot be made a basis for his conviction. His answers to the questions put to him under Section 313 Cr.P.C cannot be used to fill up the gaps left by the prosecution witnesses in their depositions. Thus, the statement of the accused is not a substantive piece of evidence and therefore, it can be used only for appreciating the evidence led by the prosecution, though it cannot be a substitute for the evidence of the prosecution. In case the prosecution's evidence is not found sufficient to sustain conviction of the accused, the inculpatory part of his statement cannot be made the sole basis of his conviction. The statement under Section 313 Cr.P.C is not recorded after administering oath to the accused. In case the prosecution's evidence is not found sufficient to sustain conviction of the accused, the inculpatory part of his statement cannot be made the sole basis of his conviction. The statement under Section 313 Cr.P.C is not recorded after administering oath to the accused. Therefore, it cannot be treated as an evidence within the meaning of Section 3 of the Evidence Act, though the accused has a right if he chooses to be a witness, and once he makes that option, he can be administered oath and examined as a witness in defence as required under Section 315 Cr.P.C. An adverse inference can be taken against the accused only and only if the incriminating material stood fully established and the accused is not able to furnish any explanation for the same. However, the accused has a right to remain silent as he cannot be forced to become witness against himself.” [Emphasis supplied] 29. Similarly, in Nagraj vs. State, represented by Inspector of Police, Salem Town, Tamil Nadu, reported in 2015 CRI.L.J. 2377, it has been observed by the apex court as under: “15. In the context of this aspect of the law it has been held by this Court in Parsuram Pandey v. State of Bihar : (2004) 13 SCC 189 that Section 313, Cr.P.C is imperative to enable an accused to explain away any incriminating circumstances proved by the prosecution. It is intended to benefit the accused, its corollary being to benefit the Court in reaching its final conclusion; its intention is not to nail the accused, but to comply with the most salutary and fundamental principle of natural justice i.e. audi alteram partem, as explained in Arsaf Ali v. State of Assam : (2008) 16 SCC 328 . In Sher Singh v. State of Haryana : (2015) 1 SCR 29 this Court has recently clarified that because of the language employed in Section 304B of the IPC, which deals with dowry death, the burden of proving innocence shifts to the accused which is in stark contrast and dissonance to a person's right not to incriminate himself. It is only in the backdrop of Section 304B that an accused must furnish credible evidence which is indicative of his innocence, either Under Section 313, Cr.P.C or by examining himself in the witness box or through defence witnesses, as he may be best advised. It is only in the backdrop of Section 304B that an accused must furnish credible evidence which is indicative of his innocence, either Under Section 313, Cr.P.C or by examining himself in the witness box or through defence witnesses, as he may be best advised. Having made this clarification, refusal to answer any question put to the accused by the Court in relation to any evidence that may have been presented against him by the prosecution or the accused giving an evasive or unsatisfactory answer, would not justify the Court to return a finding of guilt on this score. Even if it is assumed that his statements do not inspire acceptance, it must not be lost sight of that the burden is cast on the prosecution to prove its case beyond reasonable doubt. Once this burden is met, the Statements under Section 313 assume significance to the extent that the accused may cast some incredulity on the prosecution version. It is not the other way around; in our legal system the accused is not required to establish his innocence. We say this because we are unable to subscribe to the conclusion of the High Court that the substance of his examination Under Section 313 was indicative of his guilt. If no explanation is forthcoming, or is unsatisfactory in quality, the effect will be that the conclusion that may reasonably be arrived at would not be dislodged, and would, therefore, subject to the quality of the defence evidence, seal his guilt. Article 20(3) of the Constitution declares that no person accused of any offence shall be compelled to be a witness against himself. In the case in hand, the High Court was not correct in drawing an adverse inference against the Accused because of what he has stated or what he has failed to state in his examination under Section 313, Cr.P.C.” [Emphasis supplied] 30. Mr. Biswas, learned senior counsel has further submitted that for silence of the accused no adverse inference can be drawn against himin view of the decision of the apex court in State of M.P. vs. Ramesh & Anr., reported in 2011 AIR SCW 1956 to highlight the observation of the apex court which reads as under: “27. Mr. Biswas, learned senior counsel has further submitted that for silence of the accused no adverse inference can be drawn against himin view of the decision of the apex court in State of M.P. vs. Ramesh & Anr., reported in 2011 AIR SCW 1956 to highlight the observation of the apex court which reads as under: “27. The cumulative effect of reading the provisions of Article 20(3) of the Constitution with Sections 161 (2); 313(3); and proviso (b) to Section 315 Code of Criminal Procedure remains that in India, law provides for the rule against adverse inference from silence of the accused. Statement of the accused made under Section 313, Cr.P.C can be taken into consideration to appreciate the truthfulness or otherwise of the prosecution case. However, as such a statement is not recorded after administration of oath and the accused cannot be cross examined, his statement so recorded under Section 313, Cr.P.C cannot be treated to be evidence within the meaning of Section 3 of the Evidence Act, 1872. Section 315, Cr.P.C enables an accused to give evidence on his own behalf to disprove the charges made against him. However, for such a course, the accused has to offer in writing to give his evidence in defence. Thus, the accused becomes ready to enter into the witness box, to take oath and to be crossexamined on behalf of the prosecution and/or of the accomplice, if it is so required. (Vide: Tukaram G. Gaokar v. R.N. Shukla and Ors. : AIR 1968 SC 1050 ; and Dehal Singh v. State of Himachal Pradesh : (2010) 9 SCC 85 . In such a factsituation, the accused being a competent witness, can depose in his defence and his evidence can be considered and relied upon while deciding the case.” 31. The prosecution has to prove their case irrespective of the case which the defence propounds in the trial. In Daulat Ram vs. State of Punjab, reported in (1997) 10 SCC 236 , the apex court has reiterated this principle which can be had fromthe following passage: “8. The learned Sessions Judge devoted more than half of his judgment in critically examining the defence version as if it required the standard of proof as that of a prosecution case. The High Court however avoided pursuing that course and confined itself to the prosecution case. The learned Sessions Judge devoted more than half of his judgment in critically examining the defence version as if it required the standard of proof as that of a prosecution case. The High Court however avoided pursuing that course and confined itself to the prosecution case. If holes can be picked in the defence that doesn't lead to the prosecution story being automatically proved. The prosecution has to stand on its own legs and can derive no advantage from the weakness of the defence. Keeping that in view, we proceed further.” [Emphasis supplied] 32. Mr. Biswas, learned senior counsel has submitted that despite having the opportunity and despite meeting the police officials on several times, PWs8 and 9 at their first encounter did not disclose the purported ‘materials’ to the investigating officer or anyone else. For such delayed disclosure those witnesses did provide any explanation why they failed to disclose such material facts to the police at the earliest opportunity. The delayed disclosure carries element of suspicion as held by the apex court in State of Orissa v. Brahmananda Nanda, reported in AIR 1976 SC 2488 , where it has been held that: “2. We have carefully gone through the evidence of this witness, but we do not think we can place any reliance on it for the purpose of founding the conviction of the respondent. The evidence suffers from serious infirmities which have been discussed in detail by the High Court. It is not necessary to reiterate them, but it will be sufficient if we refer only to one infirmity which, in our opinion, is of the most serious character. Though according to this witness, she saw the murderous assault on Hrudananda by the respondent and she also saw the respondent coming out of the adjoining house of Nityananda where the rest of the murders were committed, she did not mention the name of the respondent as the assailant for a day and a half. The murders were committed in the night of 13th June, 1969, and yet she did not come out with the name of the respondent until the morning of 15th June, 1969. It is not possible to accept the explanation sought to be given on behalf of the prosecution that she did not disclose the name of the respondent as the assailant earlier than 15th June, 1969, on account of fear of the respondent. It is not possible to accept the explanation sought to be given on behalf of the prosecution that she did not disclose the name of the respondent as the assailant earlier than 15th June, 1969, on account of fear of the respondent. There could be no question of any fear from the respondent because in the first place, the respondent was not known to be a gangster or a confirmed criminal about whom people would be afraid, secondly, the police had already arrived at the scene and they were stationed in the Club House which was just opposite to the house of the witness and thirdly, A. S. I. Madan Das was her nephew and he had come to the village in connection with the case and had also visited her house on 14th June, 1969. It is indeed difficult to believe that this witness should not have disclosed the name of the respondent to the police or even to A. S. I. Madan Das and should have waited till the morning of 15th June, 1969, for giving out the name of the respondent. This is a very serious infirmity which destroys the credibility of the evidence of this witness. The High Court has also given various other reasons for rejecting her testimony and most of these reasons are, in our opinion, valid and cogent. If the evidence of this witness is rejected as untrustworthy, nothing survives of the prosecution case.” [Emphasis supplied] 33. Similar observation of the apex court is available in State of Karnataka vs. Venkatesh and others, reported in 1992 Supp.(1) SCC 539. It has been observed there that in absence of long silence by any witness and when no explanation, much less a satisfactory one, is provided it would not be safe to place any reliance on the testimony of that witness. 34. In Vijaybhai Bhanabhai Patel vs. Navnitbhai Nathubhai Patel and Ors,,reported in (2004) 10 SCC 583 , the law has been restated by the apex court in the following passage: “4. The learned Counsel for the respondents submitted that PW 7 and PW 4 who claimed to be eyewitnesses cannot be believed for various reasons. It was submitted that the incident happened on 13.11.1985 but these two witnesses were questioned by the Investigation Officer only on 15.11.1985. No proper explanation was given by the Investigation Officer. The learned Counsel for the respondents submitted that PW 7 and PW 4 who claimed to be eyewitnesses cannot be believed for various reasons. It was submitted that the incident happened on 13.11.1985 but these two witnesses were questioned by the Investigation Officer only on 15.11.1985. No proper explanation was given by the Investigation Officer. There is evidence to show that the Investigation Officer had visited the house of the deceased on the very next day. It seems that there was an attempt by the prosecution to show that PW 7 the widow of the deceased was unconscious during this period and therefore, she could not be questioned by the Police. But they could have questioned PW 4, the son of the deceased at least on the very next day. The delay in questioning these witnesses by the Investigation Officer is a serious mistake on the part of the prosecution. We do not think that the High Court erred in disbelieving these witnesses.” [Emphasis supplied] 35. That apart, Mr. Biswas, learned senior counsel has contended that fromthe testimony of PW5, Purnima Banik it is apparent that BalaramGhosh was a lean and thin person. Even PW37, the postmortemdoctor has also confirmed that feature of BalaramGhosh. Thus, it is highly improbable that Balaramwould be able to overpower Ranjit Choudhury. While closing his submissions, Mr. Biswas, learned senior counsel has submitted that the defects in the investigation would affect the prosecution case as held by the apex court in Surajit Sarkar vs. West Bengal, reported in 2013 CRI.L.J. 1137 in the following words: “54. We are not prepared to accept as a broad proposition of law that in no case can defective or shoddy investigations lead to an acquittal. It would eventually depend on the defects pointed out. If the investigation results in the real culprit of an offence not being identified, then acquittal of the accused must follow. It would not be permissible to ignore the defects in an investigation and hold an innocent person guilty of an offence which he has not committed. The investigation must be precise and focused and must lead to the inevitable conclusion that the accused has committed the crime. If the investigating officer leaves glaring loopholes in the investigation, the defence would be fully entitled to exploit the lacunae. The investigation must be precise and focused and must lead to the inevitable conclusion that the accused has committed the crime. If the investigating officer leaves glaring loopholes in the investigation, the defence would be fully entitled to exploit the lacunae. In such a situation, it would not be correct for the prosecution to argue that the Court should gloss over the gaps and find the accused person guilty. If this were permitted in law, the prosecution could have an innocent person put behind bars on trumped up charges. Clearly, this is impermissible and this is not what this Court has said.” [Emphasis supplied] 36. Mr. Biswas, learned senior counsel adding to that contention has also emphatically asserted that the prosecution case is blurred and it gives rise to two different versions, one being Balaram killed Ranjit Choudhury and thereafter, fromthe scuffling with knife he and Sujit fell victimof the injuries and the other being that the two unidentified assailants fromoutside have committed the murders and as such, the benefit must go to the appellant. In Harchand Singh and Anr. vs. State of Haryana, reported in AIR 1974 SC 344 , the apex court has enunciated the law in no uncertain terms as under: “9. It cannot be disputed that a murderous assault was made on Ajaib Singh on the day of occurrence as a result of which he died. The evidence of Dr. Shamsher Singh, who examined Ajaib Singh when he was taken to Khanna hospital as well as the evidence of Dr. Gurcharan Singh Randhawa who performed post mortem examination on the dead body, shows that as many as eighteen injuries were inflicted upon Ajaib Singh deceased. Out of them, seven had been caused by sharpedged weapons. Death, in the opinion of Dr. Randhawa, was due to shock and haemorrhage as a result of the cumulative effect of the injuries. According to the case of the prosecution, the two appellants joined in the assault on the deceased as a result of which the latter died. The prosecution in support of its case examined two sets of eye witnesses. The evidence of one set consists of the testimony of Amarjit Singh, Mal Singh and Teja Singh. So far as these witnesses are concerned, the trial court came to the conclusion that they were not present near the scene of occurrence and had not witnessed the occurrence. The prosecution in support of its case examined two sets of eye witnesses. The evidence of one set consists of the testimony of Amarjit Singh, Mal Singh and Teja Singh. So far as these witnesses are concerned, the trial court came to the conclusion that they were not present near the scene of occurrence and had not witnessed the occurrence. The trial court in support of this conclusion gave reasons which appear to be cogent and weighty and we find no particular ground to take a different view. The evidence of Ram Asra, who according to the prosecution case was with Ajaib Singh deceased at the time of the occurrence, shows that Amarjit Singh, Mal Singh and Teja Singh were not present at the time of occurrence. If Amarjit Singh, Mal Singh and Teja Singh had been present at or about the place of occurrence and had actually seen the occurrence, it is difficult to believe that Ram Asra would have remained unaware of their presence. According to Amarjit Singh, Mal Singh and Teja Singh, they saw the occurrence while they were coming from their house. They were at a distance of about 60 karams from the place of occurrence when they heard alarm being raised and on coming nearer they saw the six accused inflicting injuries upon Ajaib Singh deceased. As against, that, the version of Ajaib Singh deceased in the dying declaration was that the above mentioned three witnesses were working in the field nearby when he was assaulted by the accused. Amarjit Singh, Mal Singh and Teja Singh claimed that they were proceeding from their house to the well with Tokras and Kahis for the purpose of consolidating the new channel with earth filling. If that was the purpose for which they were going to the well, they would have gone there before and in any case not after Ajaib Singh deceased so that they might prepare the channel before Ajaib Singh started operation of the Persian wheel at the well. We thus find that not only the explanation given by Amarjit Singh, Mal Singh and Teja Singh regarding their arrival at that time is not convincing, there is material discrepancy in the version of Ajaib Singh deceased in his dying declaration and the testimony of Amarjit Singh, Mal Singh and Teja Singh PWs regarding the presence of these witnesses at or about the place of occurrence. On the top of all this we find that the evidence of Ram Asra, upon which reliance has been placed by the prosecution shows that Amarjit Singh, Mal Singh and Teja Singh were not there and had not witnessed the occurrence. 10. The other eye witness, upon whose testimony reliance has been placed by the prosecution is Ram Asra (PW 14). So far as this witness is concerned, we find that his presence at the scene of occurrence was not mentioned by Ajaib Singh deceased in the dying declaration which was recorded by ASI Harbhajan Singh at Khanna hospital. According to Ram Asra, he was working with the deceased at the well when the three accused came there and assaulted the deceased. If Ram Asra was, in fact, present and working with Ajaib Singh deceased at the time of the occurrence, it is not clear as to why the deceased should fail to mention that fact in the dying declaration the evidence of Amarjit Singh, Mal Singh and Teja Singh upon which also the prosecution placed reliance goes to show that Ram Asra had not witnessed the occurrence. The name of Ram Asra was in the very nature of things not mentioned in the first information report, because the said report was based upon the dying declaration of Ajaib Singh. It would thus appear that the eye witness upon whose testimony the prosecution wants to sustain the conviction of the appellants is shown to be an unreliable witness by the other evidence produced by the prosecution. The present is a case wherein one set of prosecution evidence condemns the other set of evidence produced by the prosecution. In the above state of affairs, we find it difficult to secure a firm ground upon which to base the conviction of the accused appellants.” [Emphasis supplied] 37. Fromthe other side, Mr. Z. Kamar, learned Special P.P. appearing for the sole respondent, the State of Tripura in the outset has submitted that the case in hand is very exceptional one. There are both direct and circumstantial evidence which are established by the scientific and medical evidence to show the complicity and involvement of the appellant. The murders were well planned and designed meticulously. Their execution was accurately devised and three persons have lost their lives for the homicidal murder. There are both direct and circumstantial evidence which are established by the scientific and medical evidence to show the complicity and involvement of the appellant. The murders were well planned and designed meticulously. Their execution was accurately devised and three persons have lost their lives for the homicidal murder. The trial court after examining all the evidences on record oral and documentary, intricately and properly has rightly convicted the appellant. 38. Mr. Kamar, learned Special P.P. has continued to submit that the place of occurrence is the office cum residential place of the appellant and that occurrence took place on 19.05.2013. The day was a Sunday and the time of the occurrence is somewhere after when both the coil mechanics i.e. PWs15 and 16 left the place of occurrence at about 1.15 pmafter taking their labour charges and before arrival of PW5, Purnima Banik at about 3 pm in the complex of Ganadoot Patrika office after having her lunch in the house of her colleague Smt. Jayashree Ghosh (DW3). As the day was a Sunday most of the employees were on weekly holiday, as stated by DW3. All the deceased persons viz. Ranjit Choudhury, Manager of Ganadoot Patrika, Sujit Bhattacharjee, the proof reader, BalaramGhosh, the driver, the appellant, Sushil Choudhury, PW40, Smt. Niyati Deb (Ghosh), the approver of the case, PW1 Miss. Papiya Ghosh, daughter of PW40, Sri Prantosh Acharjee (DW2) and Maya Choudhury, the wife of the appellant were present in the place of occurrence. The appellant was very much present at his complex and was working in his office chamber. It is on record, through the deposition of Purnima Banik (PW5) that on the day of incident, the appellant left his chamber in between 2 pmto 2.15 pmthough usually the appellant leaves his chamber at about 3 pmto 3.30 pmfrom his room. Neither any evidence is led by the defence to show that there was any intrusion or forceful entry by any outsider and the same has been corroborated by the experts who came to the place of occurrence immediately after the occurrence. Thus, it is amply established that the homicidal killing was the handiwork of the insiders who were present at the time of occurrence at the office complex of Ganadoot Patrika. Thus, it is amply established that the homicidal killing was the handiwork of the insiders who were present at the time of occurrence at the office complex of Ganadoot Patrika. The said fact is also corroborated by the DNA genetic profiling found in Exbt.M.O.2, the dagger/knife which contained male human blood of all three deceased persons and also the Exbt. M.O.1, the hawai chappal belonging to the deceased BalaramGhosh which was in his wearing at the time of occurrence and has been identified by PW1, Papiya Ghosh that the chappal belonged to her father. Mr. Kamar, learned Special P.P. has further submitted that the DNA profile is a record created on the basis of DNA samples made available to the forensic expert. The matching of the DNA samples has emerged as a vital tool for linking suspects to specific criminal acts. Till the arrest of the approver (PW40) and the appellant the police was being misled and misdirected to investigate the case in a different angle by the appellant. Even one innocent person Sri Satyajit Das (PW6) who was an employee of Ajker Fariad was implicated but on investigation, it was found that at the relevant point of time and the place of occurrence, PW6 was very much present and was working at his office. That fact has been amply proved and corroborated by PWs6,26,27 and 41. According to Mr. Kamar, learned Special P.P. PWs1 and 40 are the most natural witnesses of the case and they were present at the place of occurrence and also at the time of occurrence. The said two witnesses were all along staying at the mercy of the appellant at his complex. There is no evidence on record to show that PWs1 and 40 are the planted witnesses or that they had any enmity with the appellant or they bore any grudge against the appellant to falsely implicate the appellant in the case. There is also no evidence or allegation on record to show that PW1, the child witness or PW40, the approver has been tutored and influenced by the outsider to depose falsely in the case to implicate the appellant. On the contrary, there are clinching evidence on record to establish that the fact that the appellant tutored and influenced both the witnesses for making false statements and he was exerting all forms of pressure and threats till his arrest. On the contrary, there are clinching evidence on record to establish that the fact that the appellant tutored and influenced both the witnesses for making false statements and he was exerting all forms of pressure and threats till his arrest. PW40 was arrested by the police on 31.05.2013 and on 25.06.2013 she voluntarily filed an application before the C.J.M., West Tripura, Agartala through the Superintendent, Central Jail, Agartala expressing her willingness to make full and true disclosure of the whole of the circumstances of the case and accordingly, the C.J.M, West Tripura on 26.06.2013 after examining PW40 orally and being satisfied with her statement, called for a report fromthe I.O of the case by his order dated 26.06.2013. I.O. submitted the report on 27.06.2013 and on the same date, the approver’s statement was recorded. After granting pardon to the accused, who turned approver (PW40) all the procedures for recording such statement were followed. On 23.08.2013, the approver was crossexamined. The said approver has made categorical statement on oath that she and her daughter (PW1) had made false statement to the police about the incident that occurred in the Ganadoot Patrika complex on 19.05.2013 due to fear of the appellant. Initially the appellant threatened PW40 to kill her and her daughter. Out of fear, she did not disclose the true incident to the police rather she misdirected the police in all possible manners. In this regard, it has been submitted that it is on record that PW40, the approver could muster the courage to speak the truth only after the arrest of the accused. Thereafter, she volunteered to make a true statement before the court and for that she on her free will and volition filed the application dated 25.06.2013. Mr. Kamar, learned Special P.P. has submitted that there is clinching evidence on record to prove that the appellant had fabricated evidence through PWs1 and 40 to clear and absolve himself fromthe offence. In response to the argument advanced fromthe defence that since PW40 has not inculpated herself in the commission of the offence and as she has not participated in the offence in any manner and, she cannot be termed as an approver and her statement (Exbt.20) given before the C.J.M has got no evidentiary value and that cannot be used in respect of the offence under Section 302 read with Section 120B of the I.P.C. Mr. Kamar, learned Special P.P. has submitted that this is wholly a misreading of the fact on the records as well as the misconstruction of the provisions of Section 306 of the Cr.P.C. A decision of the apex court in State of Rajasthan vs. Balveer alias Balli and another, reported in 2014 CRI.L.J. 314 has been referred to illustrate the requisite for tendering pardon to an accused and how and to what extent the approver’s testimony can be used. It has been held in State of Rajasthan vs. Balveer alias Balli and another that: “15. The first question that we have to decide is whether the High Court is right in coming to the conclusion that for being an approver within the meaning of Section 306, Cr.P.C., a person has to inculpate himself in the offence and has to be privy to the crime, otherwise he removes himself from the category of an accomplice and places himself as an eyewitness. Section 306, Cr.P.C. provides that with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence, the Magistrate may tender pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. This Court in the case of Suresh Chandra Bahri vs. State of Bihar [1995 Supp. (1) SCC 80] explained the object of Section 306, Cr.P.C. in the following words: ‘The object of Section 306 therefore is to allow pardon in cases where heinous offence is alleged to have been committed by several persons so that with the aid of the evidence of the person granted pardon the offence may be brought home to the rest. The basis of the tender of pardon is not the extent of the culpability of the person to whom pardon is granted, but the principle is to prevent the escape of the offenders from punishment in heinous offences for lack of evidence. The basis of the tender of pardon is not the extent of the culpability of the person to whom pardon is granted, but the principle is to prevent the escape of the offenders from punishment in heinous offences for lack of evidence. There can therefore be no objection against the tender of pardon to an accomplice simply because in his confession, he does not implicate himself to the same extent as the other accused because all that Section 306 requires is that pardon may be tendered to any person believed to be involved directly or indirectly in or privy to an offence.’ Thus, the High Court failed to appreciate that the extent of culpability of the accomplice in an offence is not material so long as the Magistrate tendering pardon believes that he accomplice was involved directly or indirectly in or was privy to the offence. The High Court also failed to appreciate that Section 133 of the Indian Evidence Act provides that an accomplice shall be a competent witness against an accused person and when the pardon is tendered to an accomplice under Section 306, Cr.P.C, the accomplice is removed from the category of coaccused and put into the category of witness and the evidence of such a witness as an accomplice can be the basis of conviction as provided in Section 133 of the India Evidence Act. 16. As a rule of prudence, however, as provided in Illustration (b) to Section 114 of the Indian Evidence Act, the Court will presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. In Rameshwar, s/o Kalyan Singh vs. The State of Rajasthan (AIR 1959 SC 54) (supra), this Court laid down the kind of evidence which should, or would, be regarded as corroboration of the testimony of an accomplice and held that it is not necessary that there should be independent confirmation of every material circumstance but independent evidence must not only make it safe to believe that the crime was committed and must in some way reasonably connect the accused with the crime. In the language of this Court in the aforesaid case: ‘All that is necessary is that there should be independent evidence which will make it reasonably safe to believe the witness’ story that the accused was the one, or among those, who committed the offence.’ In this case, the Court also clarified that corroboration need not be by direct evidence that the accused committed the crime and it is sufficient if it is merely circumstantial evidence of the connection of the accused with the crime.” The apex court has laid the law unambiguously that the extent of culpability of accomplice in an offence is not material for grant of pardon so long as Magistrate tendering pardon believes that the accomplice was involved directly or indirectly in or was privy to the offence. When pardon is tendered to an accomplice under Section 306 Cr.P.C. an accomplice is removed fromthe category of coaccused but put into the category of witness and evidence of such a witness as accomplice can be the basis of conviction as provided in under Section 133 of the Evidence Act. It has been further held that as a rule of prudence as provided in Illustration(b) to Section 114 of the Evidence Act, the court will presume that accomplice is unworthy of credit, unless his testimony as corroborated in material particulars. Mr. Kamar, learned Special P.P. made particular reference to the following passages of State of Rajasthan vs. Balveer alias Balli and another, reported in (2013) 16 SCC 321 : “22.The first question that we have to decide is whether the High Court is right in coming to the conclusion that for being an approver within the meaning of Section 306 Cr.P.C. a person has to inculpate himself in the offence and has to be privy to the crime, otherwise he removes himself from the category of an accomplice and places himself as an eye witness. Section 306 Cr.P.C. provides that with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned or privy to an offence, the Magistrate may tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relative to the offence and that to every other person concerned, whether as principal or abettor in the commission thereof.” * * * * * 24. Thus, the High Court failed to appreciate that the extent of culpability of the accomplice in an offence is not material so long as the magistrate tendering pardon believes that the accomplice was involved directly or indirectly in or was privy to the offence. The High Court also failed to appreciate that Section 133 of the Evidence Act provides that an accomplice shall be a competent witness against an accused person and when the pardon is tendered to an accomplice under Section 306, Cr.P.C, the accomplice is removed from the category of coaccused and put into the category of witness and the evidence of such a witness as an accomplice can be the basis of conviction as provided in Section 133 of the Evidence Act. * * * * * 27. In this case, the Court also clarified that corroboration need not be by direct evidence that the accused committed the crime and it is sufficient if it is merely circumstantial evidence of the connection of the accused with the crime. In the aforesaid case, this Court also explained that unless the testimony of an accomplice is treated as evidence, many crimes which are usually committed between accomplices in secret, particularly offences with females, could otherwise never be brought to justice. With these principles with regard to the testimony of an accomplice in mind, we may now examine the testimony of PW1 and the corroboration of such testimony by material particulars, if any, so as to connect Ram Niwas and Balveer in the offences. * * * * * 32. Mr. Upadhyay, learned Counsel appearing for the Respondent 2, Ram Niwas, was right that there were some inconsistencies between the evidence of PW1 and PW5, between the evidence of PW1 and PW6 and between the evidence of PW1 and PW32 as well as contradictions in the statement of PW1 recorded before the trial by the Magistrate and the evidence of PW1 before the Court but these inconsistencies and contradictions were not material enough to doubt the story given out by PW1 that Ram Niwas and Balveer committed rape on the deceased and then killed her. Mr. Mr. Upadhyay is also right in his submission that there was intimate relationship between Ram Niwas and the deceased but if evidence of PW1 corroborated in material particulars established that Ram Niwas did commit rape and murder of the deceased, we cannot discard the evidence only on the ground that there was no necessity for Ram Niwas to commit rape and murder of the deceased.” 39. The trial court while relying the testimony of the approver (PW40) has held that the basis of tendering pardon is not confined to the culpability of the person to whomthe pardon is granted but the object to prevent the escape of the offenders frompunishment. On such basis, the process was ratified by the impugned judgment. According to Mr. Kamar, learned Special P.P. that the approver had the knowledge that her husband was involved in the commission of murder of Ranjit Choudhury and the same was disclosed to her by him. That aspect has been concealed by the approver misleading the investigation. The approver’s statement or her testimony has been adequately corroborated by PW1. As such, Mr. Kamar, learned Special P.P. has submitted that analysis made by the trial court is incomplete harmony and conformity with the decision of State of Rajasthan vs. Balveer alias Balli and another. Thereafter, Mr. Kamar, learned Special P.P. has submitted that the conduct of the appellant after murder is quite astonishing and mischievous. The appellant was all along present at the spot on the date and time of the occurrence but he did not categorically informthe police about it. Even he did not lodge the FIR. Surprisingly, the appellant informed PW39 over his mobile at about 3.25 pmby giving very cryptic information and that did not disclose anything of any cognizable offence. It was his legal duty to do so and Section 39 of the Cr.P.C. mandates that every person aware of the commission of any offence is to give information of it. Section 39(v) Cr.P.C. includes Sections 302, 303 and 304 I.P.C. The purpose of the said section is very obvious that the justice machinery starts functioning without delay. It was his legal duty to do so and Section 39 of the Cr.P.C. mandates that every person aware of the commission of any offence is to give information of it. Section 39(v) Cr.P.C. includes Sections 302, 303 and 304 I.P.C. The purpose of the said section is very obvious that the justice machinery starts functioning without delay. Having referred to the depositions of DW2, Prantosh Acharjee and DW1, Kamal Chakraborty when the appellant was asked to respond during his examination under Section 313 of the Cr.P.C., fromthe reply against question Nos.40,199,203 and 221 it would be clearly established that the appellant after consuming half an hour time informed the police, PW39. Mr. Kamar, learned Special P.P. has elaborated a little bit on that aspect of the matter. The appellant had stated that he informed the police at about 2.58 pmbut actually he informed the police at 3.25 pm. The exact time is established fromthe deposition of DW1, Sri Kamal Chakraborty, the Divisional Engineer of BSNL when that witness has made a categorical statement on oath that fromthe Mobile No.9436120346 (of the appellant) to the Mobile No.9436130255 (of PW39), the first call was made at 3.25 pmIt is the duty of the accused while making statement under Section 313 of the Cr.P.C. to explain the incriminating circumstances against him. If the explanation for such circumstances is not made or silence is maintained it may be treated as additional link in the chain of circumstances to sustain the charges against the accused. In this regard, reliance has been placed on Neel Kumar alias Anil Kumar vs. State of Harayana, reported in (2012) 5 SCC 766 where it has been held that: “30. It is the duty of the accused to explain the incriminating circumstance proved against him while making a statement under Section 313 , Cr.P.C. Keeping silent and not furnishing any explanation for such circumstance is an additional link in the chain of circumstances to sustain the charges against him. Recovery of incriminating material at his disclosure statement duly proved is a very positive circumstance against him. (See also: Aftab Ahmad Anasari v. State of Uttaranchal : AIR 2010 SC 773 ).” [Emphasis supplied] 40. Mr. Recovery of incriminating material at his disclosure statement duly proved is a very positive circumstance against him. (See also: Aftab Ahmad Anasari v. State of Uttaranchal : AIR 2010 SC 773 ).” [Emphasis supplied] 40. Mr. Kamar, learned Special P.P. has further submitted that all the incriminating circumstances appearing against the appellant pointing to the guilt were put to himduring his examination under Section 313 of the Cr.P.C. but he could not give any satisfactory explanation, except denial. The circumstances which were not responded by way of explanation may provide the missing link for completing the chain of circumstances. Reliance has been placed on an apex court decision in Jagroop Singh vs. State of Punjab, reported in (2012) 11 SCC 768 which has observed thus: “36. Another aspect is to be taken note of. Though the incriminating circumstances which point to the guilt of the accused had been put to the accused, yet he could not give any explanation Under Section 313 of the Code of Criminal Procedure except choosing the mode of denial. In State of Maharashtra v. Suresh : (2000) 1 SCC 471 , it has been held that when the attention of the accused is drawn to such circumstances that inculpated him in the crime and he fails to offer appropriate explanation or gives a false answer, the same can be counted as providing a missing link for completing the chain of circumstances. We may hasten to add that we have referred to the said decision only to highlight that the accused has not given any explanation whatsoever as regards the circumstances put to him Under Section 313 of the Code of Criminal Procedure.” 41. PW41, the investigating officer of the case has categorically stated in the trial that: “In course of my investigation I tried my level best to examine the accused Sushil Choudhury. But he was not willing to give statement about the incident which took place in his complex.” On the other hand, the appellant held a press conference for declaring some exgratia payment to the bereaved family and reward for the person who would trace out the assailants. The purpose was to dispel the cloud of suspicion around him. Such post conduct of the appellant is relevant and admissible under Section 8 of the Evidence Act. The purpose was to dispel the cloud of suspicion around him. Such post conduct of the appellant is relevant and admissible under Section 8 of the Evidence Act. The appellant also insisted PW40 to tell the name of Satyajit Das (PW6) but PW40 did not tell that name as he was not present at the place of occurrence. Being infuriated the appellant shouted at her as she did not tell the police according his instruction. He also threatened of dire consequences. PW1, Smt. Papiya Ghosh has stated in the trial that: ‘On 20.05.2013 I made statement to the police that accused Sushil Choudhury told me to tell the name of Satyajit who was the friend of deceased Sujit uncle and accordingly I told the police that the persons who appeared at the spot at the relevant time of the incident as assailant wearing green coloured ganjee and blue trouser was like that of Satyajit Das. I was dictated by the accused Sushil Choudhury to say the said version on the following day of incident i.e. 20.05.2013.” This fact has been corroborated by PW41, the investigating officer of the case. Thus, it is clearly established that the appellant was exerting pressure upon PWs1 and 40 to implicate an innocent person (PW6) in the case as a cover up. 42. While dealing with the objection as to the improvement Mr. Kamar, learned Special P.P. has contended that right fromlodging of the FIR to giving the statement under Section 161 of the Cr.P.C. PWs1 and 40 were under threat and pressure and under the clutches of the appellant and as such, the contradiction that is sought to be brought by the defence under Section 145 of the Evidence Act cannot be allowed on the face of the statement made by those witnesses that whatever they have stated to the police during the investigation of the case were all false. PW1 has categorically deposed in the trial that: ‘Ultimately, we did not disclose to the police as our life’s were not saved (sic. safe) due to the action of the accused Sushil Choudhury. PW1 has categorically deposed in the trial that: ‘Ultimately, we did not disclose to the police as our life’s were not saved (sic. safe) due to the action of the accused Sushil Choudhury. I made two times statements to the police and out of fear as shown by the accused Sushil Choudhury, myself could not disclose the real fact to the police.’ Similarly PW40 has deposed in the trial that: ‘since I made false statement to the police in connection with the incident occurred in the Ganadoot Patrika office Bhawan on 19.05.2013 I have been accused in this case. Out of fear of accused Sushil Choudhury myself and my daughter made false statements to the police about the case. Initially, the accused Sushil Choudhury threatened me to commit murder of myself and my daughter and as such, out of fear I did not disclose the true incident.” PW40 has stated truthfully that after the arrest of the appellant, she made the true disclosure of the incident on 27.06.2013. 43. Mr. Kamar, learned Special P.P. has further submitted that if the answers furnished by the appellant to question Nos.191, 203 and 222 are reconciled and read as a whole, it would clearly transpire that the appellant has not only given false answer but also contradicting himself inasmuch as in the answer to the question No.191, the appellant has stated that he has informed’ PW39 at about 2.58 pmover phone that a ‘murder incident has happened in his office and requested himto send police to his office complex, but while giving answer to the question No.203, the appellant has stated that on 19.05.2013 after informing the police (PW39) over telephone at 2.55 pmhe came down fromfirst floor residence to the ground floor and asked PW40 Niyati Ghosh in presence of PWs1 and 5 and his wife Maya Choudhury as to how it happened. On the other hand, the appellant while giving answer to the question No.221 he has stated that the moment Prantosh (DW2) called himand knocked his room, at once he came down and made the first telephone call to the police (PW39) at 2.58 pm, if the sequences events reconciled it would be crystal clear that it could not be possible on the part of the accused appellant to know about the happening that had taken place in the office complex situated in the ground floor before coming down to the ground floor i.e. the place of occurrence. Furthermore, the depositions of PWs1,5,40 and DW2 on this point if is viewed and scanned it would clearly emerge that the appellant is stating falsely right fromthe inception of the case. PW1 has categorically stated in the trial that: ‘my mother asked me to call the accused Sushil Choudhury and his wife and when I proceeded to call them through the staircase from the chamber of the accused Sushil Choudhury of Ganadoot Patrika office room from their room, I found that the wife of the accused Sushil Choudhury was standing near the staircase. I told the wife of accused Sushil Choudhury that my father was murdered by somebody else and after saying this I hurriedly rushed to my mother. When I reached near my father, I found that Purnima aunty (PW5) was standing near my mother and also found that the accused Sushil Choudhury came to the courtyard through the press room and called me and I met with accused Sushil Choudhury and at that time accused Sushil Choudhury told me that the police personnel would come very soon and you and your mother should tell them that two persons came.” PW5, Purnima Banik has deposed that: ‘I heard crying of Smt. Niyati Ghosh from office complex of Ganadoot Patrkia after 3 pm. and just reaching in the complex of Ganadoot Patrika office….. and….. I came back to Smt. Niyati Ghosh again from the upstairs and at that time Smt. Niyati Ghosh asked me to call the accused Sushil Choudhury and his wife and I reached to the room of the accused Sushil Choudhury and his wife through the cabin of Patrika Office and after arrival in their room I did not find them. Thereafter, I hurriedly came back to the lawn of the Patrika Office. Thereafter, I hurriedly came back to the lawn of the Patrika Office. I found the accused Sushil Choudhury was talking with the daughter of Smt. Niyati Ghosh and deceased Balaram Ghosh in the lawn of Patrika office.” PW40 was deposed that ‘at that time Smt. Maya Choudhury asked Prantosh to call accused Sushil Choudhury. Prantosh returned fromthe roomof accused Sushil Choudhury but at that time accused Sushil Choudhury did not come out and appear before us. After some time accused Sushil Choudhury called my daughter to go outside to the place near the garage room. At that time, I followed that accused Sushil Choudhury was talking over phone and after some time police came to the spot.’ DW2, Prantosh Acharjee as pointed out by Mr. Kamar, Special P.P. has deposed in the trial that ‘ I was asked by the wife of the accused Sushil Choudhury to call the accused Sushil Choudhury, I went to the bedroom of the accused Sushil Choudhury and found himsleeping. I loudly called him and he woke up and came to the courtyard with his mobile phone accompanying me. 44. Mr. Kamar, learned Special P.P. then submitted that if all these depositions are taken into account and read as a whole it will be crystal clear that the appellant came to the ground floor to the office complex for the first time after 3 pmwhen PW40 was wailing and PW5 returned after having her lunch in her colleague’s place clearly goes to establish that the appellant had prior information about the murders that had taken place in his Patrika office complex. Else how could he know about the occurrence at 2.55 pmwhile he was staying in the upstairs. These version of PWs1,5 and 40 have been fortified the version of DW2 when he deposed in his examinationinchief that: ‘At that time I also found that hearing the outcry of Papiya, wife of accused Sushil Choudhury was coming down from her room and at that time I was asked by the wife of the accused Sushil Choudhury to call the accused Sushil Choudhury. I went to the bed room of accused Sushil Choudhury and found him sleeping. I loudly called him and he woke up and he came down to the courtyard with his mobile phone accompanying me.’ Mr. I went to the bed room of accused Sushil Choudhury and found him sleeping. I loudly called him and he woke up and he came down to the courtyard with his mobile phone accompanying me.’ Mr. Kamar, learned Special P.P. thereafter persuaded this court to juxtaposed the said statement of DW2 with the answer given by the appellant to the question No.221. According to him, if those statements and the answers are believed, there is no scope on the part of the appellant to make any telephonic call to PW39 on 19.05.2013 at 2.55 pm or 2.58 pm. PW21, Sri Arun Chandra Das, the duty officer of West Agartala P.S. and PW41, the investigating officer have corroborated regarding the exact time of receiving the call. That fact has been further corroborated by the documentary evidence, Exbt. 24 introduced by DW1, Sri Kamal Chakraborty, Divisional Engineer, BSNL, Tripura 45. Mr. Kamar, learned Special P.P. thereafter has emphatically submitted that the circumstances which emerged as relevant to connect the appellant with the complicity of the offence and to prove the fact that it is only the appellant and none else who is responsible and perpetrator of the crime are encapsulated hereunder for purpose of appreciation: (1) Mysterious murder of three (3) persons took place in the premises of the Ganadoot Patrika Complex wherein the accused/appellant was all along present in the complex at the time of the alleged occurrence. (2) The accused/appellant was last seen present in the Ganadoot Patrika Complex wherein all the 3 deceased persons were also seen alive and were present in the said complex, where the occurrence took place. (3) Nonreporting of the incident to the Police immediately after coming to know about the occurrence that occurred on the fateful day. (4) Nonfiling of any FIR of the case by the accused/appellant, in spite of the fact that such a havoc occurrence has taken place in the complex of the accused/appellant. (5) Unusual PreConduct & Post Conduct behaviour of the accused/appellant. (6) Postconduct attitude & behavior of the accused/appellant. (7) The accused/appellant on 18/05/13, just one day prior to the occurrence of the case threatened the deceased Ranjit Choudhury with dire consequences. (8) Disliking towards the deceased Ranjit Chowdhury and motive to eliminate Ranjit Chowdhury. (9) The accused/appellant threatened PW1 and PW40 and compelled themto conceal the actual happenings that took place on the fateful day. (7) The accused/appellant on 18/05/13, just one day prior to the occurrence of the case threatened the deceased Ranjit Choudhury with dire consequences. (8) Disliking towards the deceased Ranjit Chowdhury and motive to eliminate Ranjit Chowdhury. (9) The accused/appellant threatened PW1 and PW40 and compelled themto conceal the actual happenings that took place on the fateful day. (10) The accused/appellant by exerting threat and pressure to P.W.1 and P.W.40 misdirected the course of investigation as a result of which, the IO was clueless at the initial stage of the investigation of the case. (11) The accused/appellant in order to divert the course of investigation and as a cover up through PW1 falsely implicated an innocent person i.e. PW6 Satyajit Das and the accused/appellant further threatened PW40 to implicate Satyajit Das PW6, which ultimately she refused to do so. (12) P.W1 & P.W.40 were influenced by the accused/appellant not to disclose the actual facts of the incident in order to screen his involvement into the crime. (13) Soon after the occurrence, the accused/appellant though he was present at the complex did not visit the place of occurrence to take stock of the actual happenings as the actual plan of murder was within the knowledge of the accused/appellant. (14) On the day of occurrence, the accused/appellant left his office chamber at about 2 to 2.15 pm. breaking his normal routine of 3 to 3.30 p.m. (15) The accused/appellant insisted PW5 to leave office before the occurrence to facilitate commission of the murder. (16) The accused/appellant had administered sleeping pills to the eye witness PW1 on 19.05.13 and thereafter regularly, as a result of which P.W.1, Papiya Ghosh became mentally ill and subsequently she has to be treated upon. (17) The statement of PW40 recorded by the learned CJM (DW4) under Section 306(4) (a) Cr.P.C about the full and true disclosure of the incident has clearly proved the involvement of the accused/appellant with the offences. (18) Scientific evidence also established that no outsider assailant was present at the time of the occurrence. (19) Falsity in defence by the accused/appellant. 46. Mr. Kamar, learned Special P.P. has further submitted that how to appreciate the circumstantial evidence has been laid down in the landmark case of Sharad Birdhi Chand Sarda vs State Of Maharashtra, AIR 1984 SC 1622 and following the test of Sharad Birdhi Chand Sarda vs State Of Maharashtra. (19) Falsity in defence by the accused/appellant. 46. Mr. Kamar, learned Special P.P. has further submitted that how to appreciate the circumstantial evidence has been laid down in the landmark case of Sharad Birdhi Chand Sarda vs State Of Maharashtra, AIR 1984 SC 1622 and following the test of Sharad Birdhi Chand Sarda vs State Of Maharashtra. The prosecution has proved the charge against the appellant by excluding any hypothesis of his innocence. He has further submitted that in this case, the witnesses have proved the substrumand the core of the prosecution case. Evidence of PW40 is also corroborated by the other witnesses in the material particulars. On the cumulative assessment, Mr. Kamar, learned Special P.P. has contended that of all relevant aspects, both factual and legal, the prosecution has been proved the culpability of the appellant visàvis the charge beyond any reasonable doubt. This appeal is, therefore, without any merit. 47. It is apparent fromthe submission of the learned counsel appearing for the parties that not all, but the testimonies of witnesses being PWs1,5,6,11,12,36,39,40 and 41 and DWs1,2 and 4 have been relied for advancing the argument against the impugned judgment and in defence of it. For purpose of appreciating the rival contentions a brief survey of those witnesses appears essential. So far PW1, Smt. Papiya Ghosh, a child witness is concerned, in her examinationinchief, she has categorically stated that whatever she had stated to the police was at the dictate of the appellant. As such, her examinationinchief is entirely a new version visàvis the previous statement as recorded by the police. The testimony of PW1 has been introduced for the first time in the trial after her mother PW40 turned approver. She has stated in the examinationinchief that after hearing a sound, she went to the first floor of the Ganadoot Patrika office and found that the appellant caught hold of Ranjit Choudhury by pressing his mouth with his hand and the appellant also caught hold of the hair of Ranjit Choudhury. Then the appellant asked her father, BalaramGhosh to stab Ranjit Choudhury with a knife. Being afraid, she left that place, came down and told her mother, PW40. Initially, she was not believing her. Her mother asked her not to come out of their room but she went out. Then the appellant asked her father, BalaramGhosh to stab Ranjit Choudhury with a knife. Being afraid, she left that place, came down and told her mother, PW40. Initially, she was not believing her. Her mother asked her not to come out of their room but she went out. When she heard her mother crying she came out and found the chappals of her father lying near the door of another roomwhich is situated adjacent to their room. She had also found Sujit Bhattacharjee lying near the staircase with bleeding injuries. She found one knife in the guardroomof Gandaoot Patrika office. She saw her father lying on the lap of her mother having bleeding injuries. Her mother was pressing the abdomen of her father with a local gamcha. Then her mother asked her to call the appellant. When she was proceeding to call him, she found his wife was standing in the staircase. When she came back, she found Purnima Banik (PW5) standing near her mother. She also found the appellant came to the courtyard through the press room. The appellant called her and advised them to tell that two persons came fromoutside wearing a green coloured ganjee and jeans trouser with a wire and another man came to the spot with a knife. Both of themmurdered Ranjit Choudhury, Sujit Bhattacharjee and her father. Almost on the same breath, Sushil Choudhury threatened themif they did not carry out his instructions the consequence would be like that of her father. After some hours when her maternal aunt, Laxmi came to that complex, the appellant took her to his roomalone. Her mother was not allowed to accompany her. Both her mother and aunt returned to the courtyard. Again she repeated the said instruction to tell the police that two persons fromthe outside killed those persons. That time the appellant was told that Satyajit Das (PW6) be named as one of the killers. She has stated that for 12/14 days the appellant fed her sleeping pills with milk. The appellant had shown two numbers of cheque written in the name of her mother and herself. She has clearly stated that if they would like to get that amount, they must obey his instruction. She has stated that for 12/14 days the appellant fed her sleeping pills with milk. The appellant had shown two numbers of cheque written in the name of her mother and herself. She has clearly stated that if they would like to get that amount, they must obey his instruction. In the cross examination, in the previous statement recorded under Section 161 of the Cr.P.C. all these statements were found omitting and she has admitted that the version she has stated was never told to the police officer earlier. 48. PW40, Niyati Deb (Ghosh) has also brought a new version, diametrically opposite to the previous version, she introduced in the oral ejahar, Exbt.19 and her statement recorded under Section 161 of the Cr.P.C. The version she initially changed at the time of making statement under Section 306(4) of the Cr.P.C., Exbt.20 series. Exbt.20 series does also include cros examination of the approver, PW40 in the precommittal phase. In that statement, she stated about the relation of the deceasedhusband with the appellant as the driver and also with her as the casual worker in Ganadoot Patrika office. She has stated that her daughter PW1 told her that Ranjit Choudhury was killed. She did not take it seriously. When she went outside she saw her husband and Sujit Bhattacharjee had been scuffling between them. Sujit was found lying under her husband as her husband overpowered Sujit. When she asked why he was assaulting Sujit then her husband dashed her and she fell over the ground. Then she tried to call Prantosh Acharjee (DW2), but Prantosh did not respond. In the meanwhile, Balaramfell on the ground with bleeding injuries. She took his head over her lap and started crying. The blood was gushing out fromthe right side of her husband’s abdomen. She asked PW1 to informthe appellant and his wife. At that time PW5 came back when she stated to her that Balaram had been killed. She asked Purnima find out what happened to Sujit Bhattacharjee and Ranjit Choudhury. Within 45 minutes her daughter came back. But she noticed at that time that the appellant was talking to someone. Within few minutes police came. Sujit Bhattacharjee and Ranjit Choudhury were taken by the police vehicle. Her husband was also taken to the hospital. She followed by another vehicle. She also stated that her mother and sister came at the place of occurrence. But she noticed at that time that the appellant was talking to someone. Within few minutes police came. Sujit Bhattacharjee and Ranjit Choudhury were taken by the police vehicle. Her husband was also taken to the hospital. She followed by another vehicle. She also stated that her mother and sister came at the place of occurrence. At that time her daughter was taken to the upstairs of the appellant. Her daughter whispered that the appellant had instructed her to tell everyone that two persons coming fromoutside killed her father and other two persons. She was also accordingly instructed. She was also communicated by her daughter that if that instruction was not complied they would face serious consequence. Thereafter, she narrated how she was duped by the sleeping pills. Whatever she had stated to the police on that night was at the dictate of the appellant. She had also stated that Ranjit was having serious problemwith the appellant over certain deals of the appellant. Once her husband told her that the appellant stated to himthat Ranjit Choudhury was trying to take a job in another newspaper and the same was stated to himby the appellant. The appellant was apprehending that he would divulge all the secrets of that organization. She has given some illustration of some activities which were not in accordance with law. She was crossexamined but she denied all those suggestions and gave her own version on admitting that ‘on coming back to the house I found many police personnel there. Later on, I along with my mother as well as sister had gone to the room of Sushil Choudhury. Subsequently, after coming to the ground floor from the upstairs, I have lodged the complaint to the police.’ She met the appellant twice before making such statement. She has also admitted that after her arrest, the police had gone to the jail on several times and she was interrogated. Her statements were recorded on the khata, the police note book. She has further admitted that in respect of the illegal activities as stated no complaint against the appellant was filed. In the examinationinchief, she has further improved the version and admitted that she applied for being approver through the Superintendent of Central Jail and pardon was tendered to her. Her statement, Exbt.26 in series was recorded. She was cross examined. She reiterated her statements as noted. In the examinationinchief, she has further improved the version and admitted that she applied for being approver through the Superintendent of Central Jail and pardon was tendered to her. Her statement, Exbt.26 in series was recorded. She was cross examined. She reiterated her statements as noted. But she stated further in the trial that she came out fromroomkeeping her said daughter inside the room. She saw in the ground floor near stair case her husband and Sujit was scuffling. When she tried to resist her husband, she was dashed back. As a result, she fell down on the ground. She tried to call Prantosh Acharjee (PW2), but there was no response. When she came to that spot she found, her husband bleeding. She took his head on her lap and started crying. She has categorically stated that ‘while I was nursing my husband he told me that with the help of accused Sushil Choudhury he murdered Ranjit and in quick succession accused Sushil Choudhury directed my husband to commit murder of Sujit for disappearance of evidence.’ She sent her daughter for calling Sushil Choudhury and his wife. At that point of time, Purnima Banik came back to the Patrika office premises and she told her that Balaramwas murdered. She asked her to find out the condition of Ranjit Choudhury. She has also stated that when Sushil Choudhury appeared, she stated that her husband had been killed but the appellant, Sushil Choudhury assured that he would look after themsince her husband was like his son. She has also stated in the trial that: “(i) in the evening time my daughter Papiya came down from the grip of accused Sushil Choudhury and in our room my daughter told that if we do not narrate the incident as directed by the accused Sushil Choudhury, myself and my daughter will be murdered and accused Sushil Choudhury also directed us to tell that there was two unknown assailants who committed murder of my husband, Ranjit and Sujit and initially, we narrated the incident to the police as directed by accused Sushil Choudhury. ** * * (ii) While I was coming down from the upstairs accused Sushil Choudhury again called me and accordingly, I returned to upstairs and met him in his dining room and at that time, accused Sushil Choudhury told me that as per version of Papiya whether I have stated to the police or other person. In reply, I told him that I have stated to the police and other persons accordingly. accused Sushil Choudhury also asked me whether I have stated the name of Satyajit as assailant of this case and in reply I told him that I did not tell the name of Satyajit since Satyajit was not present at the scene of occurrence and at that time accused Sushil Choudhury told me that I was shouting much and also pressurized me to say the name of Satyajit as assailant of this case failing which myself and my daughter will be murdered.” She has also stated how accused Sushil Choudhury duped her and her daughter by sleeping pills. In the cross examination, she has admitted that her earlier version in the FIR and in the previous statement recorded under Section 161 of the Cr.P.C. were dictated by the appellant. She has admitted that no part of the new version was stated to the police officer but she had stated so in her statement recorded under Section 306 (4) of the Cr.P.C. However, she has admitted in the course of cross examination that: “I made no statement to the Scribe of my Ejahar or in my 161 Cr.P.C. statement or my statement recorded under Section 306 of Cr.P.C. that while was nursing my husband, he told me that with the help of the accused Sushil Choudhury, he murdered Ranjit Choudhury and in quick succession accused Sushil Choudhury directed my husband to commit murder of Sujit Bhattacharjee for disappearance of evidence and while I enquired further about the incident from my husband, my husband was not in a position to say anything more.” [Emphasis supplied] She has also admitted that the appellant did not directly ask her to make statement in the manner he directed to make through PW1. She has made another strange statement that on 19.05.2013 during night hours at about 9/9.30 pmthe police personnel recorded her statement but according to the recording officer, the oral ejahar as reduced in the writing was received on 5.15 pm. She has made another strange statement that on 19.05.2013 during night hours at about 9/9.30 pmthe police personnel recorded her statement but according to the recording officer, the oral ejahar as reduced in the writing was received on 5.15 pm. Such recording is part of Exbt.6. Beyond such admission, the approver has placed her version quite elaborately. 49. Apart other statements about what she saw or what she said to the police or what had been the interaction with the appellant, PW40 has stated that ‘I made no statement to Darogababu that accused Sushil Choudhury took my daughter Papiya upstairs and she came down at night about 03.00 hours. Attention of the witness is drawn to her 161 Cr.P.C. statement by the defence. On perusal of the same it was found, though the witness has flatly denied to have made such statement. Let the portion of the statement marked as Exbt.D/8 subject to proof by the investigating officer.” 50. PW41, Sri Manash Paul, the investigating officer of the case has admitted that Exbt.D/8 is the statement of PW40 recorded by him. PW41 has introduced some material objects and documents. He has briefly stated how he had conducted the investigation including sending the physical exhibits to the SFSL. 51. PW5, Purnima Banik has consistently stated that she was invited by DW3 for lunch. She left the patrika premises for lunch and came back at about 3 pmwhen she found seriously injured Balaram’s head lying in the lap of PW40. She has stated that ‘I also found that Niyati Ghosh did not allow Balaram Ghosh to talk with anybody and after that I feel that the incident was happened by the complex inmates but not by the outsiders.’ When she came back to the place of occurrence, Sujit Bhattacharjee was mumbling but he was not in a position to speak out. She also found the appellant was talking to PW1. She also told to the media persons that two outsiders were found while leaving fromthe Ganadoot Patrika office at the relevant point of time. Satyajit Das (PW6) did not make any statement of material importance. 52. PW7, Biswajit Bhattacharjee has stated in the trial that when he reached the place of occurrence on getting the information he found there thronged a huge crowd. 53. PW36, Dr. Satyajit Das (PW6) did not make any statement of material importance. 52. PW7, Biswajit Bhattacharjee has stated in the trial that when he reached the place of occurrence on getting the information he found there thronged a huge crowd. 53. PW36, Dr. Subhankar Nath, the forensic scientist, has stated that the DNA test is the conclusive opinion and 100% accurate based on scientific examination and technology. He has stated that he collected the genetic profiles fromvarious sources at the place of occurrence. After examination of all those exhibits including hawai chappal and knife he did not find any extra DNA profile of any other person. But at the same time he has stated that the sealing resin on the packets sent for examination did not bear any signature other than of the SubDivisional Police Officer. He has also admitted that no fingerprint examination of the handle of the knife was carried out for matching the finger prints of the suspects. 54. PWs11 and 12 are the driver of one Scorpio vehicle owned by Sharda but the appellant tried to take control of that vehicle unlawfully. The other witnesses are the seizure witnesses, recording police officers, the formal witnesses or the coil mechanic who visited just before the occurrence took place or the employee of another newspaper, namely Ajker Fariad or the relatives of the deceased or the staff of the appellant’s newspaper or the bank’s manager. None of themwitnessed any part of the transaction. They were cited for laying evidence on conduct etc. 55. PW39, Sanjoy Biswas, who received the first information fromthe appellant has admitted by aid of his phone that the phone call was received fromthe appellant’s end at about 3.25 pm. In the interest of the brevity, their testimonies are not visited inasmuch as even the arguing counsel did not make any reference to those testimonies considering those peripheral to the central issue. 56. Now the pertinent questions which arise for response are that whether PW40, the approver can be trusted or whether her statement in the trial has been corroborated by other witnesses on the material particulars? Or whether PW1 can be trusted considering her total departure fromher previous statement? Whether PW40 has been tendered pardon lawfully in terms of section 306 of the Cr.P.C as she denied to have participated in the commission of offence. 57. Or whether PW1 can be trusted considering her total departure fromher previous statement? Whether PW40 has been tendered pardon lawfully in terms of section 306 of the Cr.P.C as she denied to have participated in the commission of offence. 57. The law is well settled that in view of Section 133 of the Evidence Act read with Section 114 with Illustration (b) of the Evidence Act that the approver’s testimony has to be presumed suspect unless it is substantially corroborated in the material particulars. In Bhubon Sahu vs. The King, reported in AIR 1949 PC 257 , it has been observed by the privy council that: “Reading these two enactments, together the Courts in India have held that whilst it is not illegal to act upon the uncorroborated evidence of an accomplice it is a rule of prudence so universally followed as to amount almost to a rule of law that it is unsafe to act upon the evidence of an accomplice unless it is corroborated in material respects so as to implicate the accused and further that the evidence of one accomplice cannot be used to corroborate the evidence of another accomplice. The law in India, therefore, is substantially the same on the subject as the law in England, though the rule of prudence may be said to be based upon the interpretation placed by the Courts on the phrase ‘corroborated in material particulars’. The word ‘corroboration’ means not mere evidence tending to confirm other evidence. In DPP vs. Hester, reported in (1972) 2 ALL ER 1056, Lord Moriss said: “The purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible but only to confirm and support that which as evidence is sufficient and satisfactory and credible; and corroborative evidence will only fill its role if it itself is completely credible.” 58. The test, therefore, is of the credibility and confirmation by the independent witnesses to the material particulars as the independent witness makes it safe to believe the testimony of the usual suspect. The independent witnesses for purpose of confirmation are PWs1,5 and 36. The test, therefore, is of the credibility and confirmation by the independent witnesses to the material particulars as the independent witness makes it safe to believe the testimony of the usual suspect. The independent witnesses for purpose of confirmation are PWs1,5 and 36. On the face of the improved version, inasmuch as when PW40 was tendered pardon, PW1 was not further examined by the police in the perspective of new disclosure but she was straightway produced in the trial and bare reading of her testimony would show that she did ‘a fine tuning’ with the testimony of PW40, cannot be treated as trustworthy in view of the further test that the child witness is always prone to tutoring. Even waiving the objection as to the integrity of the seizure, the finding of the SFSL would be lost in the lurch unless those are jointed by other evidence for identifying the real offender. PW-5 was the first witness who confronted PW-40. It is not the version of PW40 that when she talked to PW-5 she was under threat from the appellant. But PW40 did not state anything about the incident. However, PW-5 has stated that she felt Balaram Ghosh was not being allowed to speak out and she assumed that someone frominside was involved in the crime. On the touchstone of presumption on the natural action, after PW1’s statement to PW40 that she saw the appellant and Balaram Ghosh killing Ranjit Choudhury, sending PW1 to the appellant by PW40 is unnatural and cannot be believed by a prudent person. It may be so that the police for giving a credible version for protecting their image in the estimation of the general public has managed to introduce the new version. How can it be stated with certainty? But it is not unusual. As such, even though fromthe analysis of the conduct of the appellant in the premurder and postmurder circumstances, a thick suspicion chased himbut suspicion no matter how strong it is, cannot and must not be permitted to take place of proof. It is very difficult to place trust on PWs1 and 40. Hence, we have been persuaded to interfere with the finding of conviction and set aside the impugned judgment and order as the prosecution according to us has failed to prove the charge beyond reasonable doubt, not only by direct evidence but also by the circumstantial evidence. It is very difficult to place trust on PWs1 and 40. Hence, we have been persuaded to interfere with the finding of conviction and set aside the impugned judgment and order as the prosecution according to us has failed to prove the charge beyond reasonable doubt, not only by direct evidence but also by the circumstantial evidence. The circumstances as placed before us for consideration with all humility cannot complete the chain. These are the circumstances which may rouse strong suspicion but does not exclude the hypothesis of innocence totally. 59. Before parting with the records, we reiterate our annoyance in respect of recording of the first information report. In this case, even after disclosure of a cognizable offence to the police they waited for oral ejahar to be filed by PW40. In Lalita Kumari vs. State of Uttar Pradesh and others, the Constitution Bench of the apex court has observed that when a cognizable offence is disclosed no inquiry or no other action is contemplated in the Cr.P.C. but to record the first information report for taking up investigation forthwith. If in future, such lapse is noticed by us, we would not hesitate to take action against the erring police officer. The other objection as raised in respect of tendering pardon to PW4, we are of the view that the procedure as adopted by the Chief Judicial Magistrate, West Tripura, Agartala (DW4) suffers fromno infirmity as in Suresh Chandra Bahri v. State of Bihar, the apex court has culled out the law that pardon may be tendered to any person believed to be involved directly or indirectly in or privy to an offence. Therefore, it is a question of belief at the relevant phase whether the person who is to be tendered pardon is involved directly or indirectly in or privy to an offence. 60. The interpretation from the sole respondent as made in respect of response of the accused person during his examination under Section 313 of the Cr.P.C. cannot be sustained. When the guilt is established by direct evidence or by circumstantial evidence in terms of the principles as laid down in Sharad Birdhi Chand Sarda vs State Of Maharashtra then the accused has right or under obligation to explain or expose the special knowledge for purpose of proving his innocence. When the guilt is established by direct evidence or by circumstantial evidence in terms of the principles as laid down in Sharad Birdhi Chand Sarda vs State Of Maharashtra then the accused has right or under obligation to explain or expose the special knowledge for purpose of proving his innocence. In that event, if silence is maintained or cogent explanation is not given, that can be used as the missing link in the chain of circumstances. Otherwise, any statement or part thereof, made during examination under Section 313 of the Cr.P.C. cannot be used against the accused, as such statement is not recorded on oath and thus, those cannot be evidence within the meaning of Section 3 of the Evidence Act. What has surfaced is that the approver has no regard for truth and her conduct has not persuaded us to place trust in her testimony. We have given our reasons which have dissuaded us fromrelying the testimony of PW1, used for corroborating the approver’s statement to sustain the finding of conviction. It is well settled that appreciation of an approver’s evidence has to satisfy a double test. His or her evidence must show that he is a reliable witness. If this test is satisfied, the second test which still remains to be applied is that the approver’s evidence must receive sufficient corroboration [Saravanabhavan vs. State of Madras: AIR 1966 SC 1273 , Lachhi Ram vs. State of Punjab: AIR 1967 SC 792 , Piara Singh vs. State of Punjab: AIR 1969 SC 961 ]. Both the tests in this case have failed. In the result, the appeal stands allowed. The appellant be released forthwith, if not required in any other case. Send down the LCRs.