JUDGMENT : Siddhartha Chattopadhyay, J. 1. This instant Criminal Appeal emanates from the judgment and order of conviction dated 28.04.2008 and 29.04.2008 passed by the Additional Sessions Judge fast track Court II Howrah in sessions Trial No. 602 of 2005 convicting the appellants under Section 302/34 read with Section 201 of IPC. 2. Back ground facts in a capsulated form are as follows: The accusations which laid foundation of the prosecution case reveals that on 11.07.2005 during wee hours (02.00 hrs.), one Jhantu Dolui who happens to be a member of Bataitala RG party was informed by a night guard of Nepali origin that near Kali Temple a dead body wrapped in a blanket and tied with rope was left on the road. The head of the dead body was wrapped with a white sack of cement and some portions of the deceased’s leg was found visible from outside. There were stabbing injuries in his person. On the basis of such information police has started investigation. 3. Feeling aggrieved and dissatisfied with the said finding and order of conviction of the learned Trial Court, the appellant preferred this appeal on the ground that the learned Trial Court failed to appreciate the evidence and documents adduced by the prosecution in its proper perspective. According to the appellant, it is a case of ‘last seen together’ but there is no iota of evidence as to when the victim was murdered. They further added that the prosecution hopelessly failed to show the proximity and the circumstances of its commission. 4. It is also submitted from the defence side that the dead body was not identified and the learned Trial Court only relied on the statements recorded under Section 164 Cr.P.C. of the accused persons. There is no corroboration of such statements recorded under the style of ‘confessional statement’. This apart, the appellant had also taken a plea that there is no substantial compliance of Section 27 of Evidence Act regarding seizure of the offending weapon. Ventilating their such grievances they have prayed for acquittal. 5. In course of investigation, the IO has prepared rough sketch map of the place of occurrence, collected inquest report, post mortem report, recorded statement of the witnesses under Section 161 Cr.P.C. and sent the accused persons for recording their confessional statement under Section 164 Cr.P.C. along with a statement recorded under Section 164 Cr.P.C. of a child witness. 5. In course of investigation, the IO has prepared rough sketch map of the place of occurrence, collected inquest report, post mortem report, recorded statement of the witnesses under Section 161 Cr.P.C. and sent the accused persons for recording their confessional statement under Section 164 Cr.P.C. along with a statement recorded under Section 164 Cr.P.C. of a child witness. On completion of investigation, the IO has submitted charge-sheet. 6. Pursuant to the charge-sheet submitted by the Investigating Officer (PW-24) learned Trial Court has framed the charges under Section 302/201 IPC. The said charges were read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried. This gave rise the occasion to adjudicate the case by the learned trial Court. 7. It is perhaps needless to say that in a criminal trial witnesses are the eyes and ears of justice. Let us listen to the witnesses. 8. PW-1 is the informant. In his evidence he has narrated the story of his information and where the dead body was wrapped in a blanket, he also stated that he found the stab injuries in the body of the person. He has proved his signature in the FIR which is marked 1/1. He has also proved his signature on the seizure list which is marked Exhibit 2/1. In course of cross-examination he has categorically admitted that the Kali Temple is about two meters away from Bataitala Bazar. He came to know about the dead body from the RG party members. 9. PW-2 claimed to have seen the dead body which was under wrapped condition. He remained a little bit distance from the dead body so he could not see marks of injuries on the dead body. From his evidence it transpires that a dead body was lying on the road in a wrapped condition. 10. Evidence of PW-3, 4, 5, 6 and 7 are immaterial on the ground that they did not disclose above any offence committed by anybody. 11. PW-8 failed to recollect the accused person. He was declared hostile by the prosecution. In course of cross-examination, after being declared hostile, some suggestions were given to him by the defence counsel which he out rightly rejected. 12. 11. PW-8 failed to recollect the accused person. He was declared hostile by the prosecution. In course of cross-examination, after being declared hostile, some suggestions were given to him by the defence counsel which he out rightly rejected. 12. PW-9 in his evidence has stated that he has a betal stall and while he was sitting in his stall, he found the accused persons were proceeding through Kazi Saibal Alam Lane. After that incident he never saw them. However, in open Court he had identified four accused persons who were proceeding through Kazi Saibal Alam Lane. In his cross-examination he categorically stated that he did not state before the police officer that his house is situated at 56/1 Kazi Danga Lane. It was suggested to him that he had not seen the accused persons moving in front of his shop, which he turned down. He failed to say the colour of the dress, which the victim wore. 13. PW-10 is also declared hostile. On being cross-examined by the learned PP in-charge he stated that he did not know Guddu. He categorically ruled out the suggestion that he had told the IO that he found five persons came to the house of Sima Ghosh at or about 4 p.m. In course of cross examination the prosecution failed to earn any dividend from his mouth. 14. PW-11 in his evidence has stated that he had seen the accused and the victim at or about 2.45/3 p.m. After two days he came to learn that Guddu was murdered. He also stated that after the occurrence, the accused persons were not traceable. In course of cross-examination he has stated that Guddu used to reside at 7 Kazi Danga Lane. He is very categorical in saying that he was not interrogated by the IO. Other parts of his cross-examination was in the form of denial, which he had duly answered. 15. PW-12 is also declared hostile by the prosecution. From his evidence the prosecution could not gain anything. He is a ‘here say’ witness. 16. PW-13 did not say anything regarding the alleged offence. 17. PW-14 claimed to have seen the accused and the victim last at or about 1 p.m. and on that very day the victim was murdered. He did not implicate any body regarding the alleged offence. 18. He is a ‘here say’ witness. 16. PW-13 did not say anything regarding the alleged offence. 17. PW-14 claimed to have seen the accused and the victim last at or about 1 p.m. and on that very day the victim was murdered. He did not implicate any body regarding the alleged offence. 18. PW-15 has identified the accused persons but for what reason he has not disclosed it. 19. PW-16, in his evidence has stated that he was not interrogated by the IO. It was suggested to him that he made a false statement only to save the accused but he turned down the said suggestion. 20. PW-17 is a Doctor who had examined the accused Mohhamed Azad whom she had examined in her hospital. She found certain injuries at right knee of the accused Azad. From her evidence, it does not transpire that this Azad was in any way connected with the offence as alleged. 21. PW-18 disclosed his ignorance about the incident. He knew the house of the accused Jaydeep Ghosh which is situated beside their school. In his examination in chief he has stated that the accused Chota Raju told Guddu (victim) for taking liquor and Guddu told them for bringing liquor to that place. He stated further that Guddu told him that he was going to change his dress and thereafter the victim Guddu went away. He also categorically stated that after a few while all the accused persons went to the main road and thereafter the victim came to him and asked him about the accused persons. But he could not find the accused persons. According to him, after three days Guddu’s body was seen in the morgue. In course of cross examination he clearly stated that he did not tell the police that these accused persons killed Guddu. He also categorically stated that he did not see as to whether the victim really met the accused persons or not. 22. PW-19 in his evidence has stated that the victim was his friend. On 10.07.2005 the four accused persons and Guddu (six deceased) were in their locality. On that day the accused Chota Raju wanted to take liquor and for which Guddu asked him to bring liquor to that place. Thereafter Guddu told him that he would be going to his house for changing his dress and by saying so he left the place. On that day the accused Chota Raju wanted to take liquor and for which Guddu asked him to bring liquor to that place. Thereafter Guddu told him that he would be going to his house for changing his dress and by saying so he left the place. After a few while the accused Motka Raju and Azad went to the house of Chotka Raju and they proceeded further through the same road. Thereafter, the deceased came to him and asked about the whereabouts of the accused persons. Since then this witness had not seen the accused persons as well as the victim in his locality. In course of cross examination he admitted that he was interrogated by the IO. He admitted that he did not tell the police that these four accused persons killed the victim. He also did not tell the police that the deceased told him that he was going to meet the accused persons. He candidly admitted that on 10.07.2005 these accused persons did not call him to accompany them. He also admitted that he did not tell the IO that the accused persons told Guddu for taking liquor. He has given a further clarification by saying that within ten minutes of departure of the accused persons from the main road, the victim came to him and they were in the main road near a Betal stall. His such part of evidence can be compared with the evidence of PW-9, PW-11 and PW-14. PW-9 stated before the Trial Court that he had seen the accused and the victim at 4 p.m. PW-11 stated that the accused persons and the victim started from his house at 2.45/3 p.m. and thereafter he never saw them again. According to PW-14 he found the accused and the victim at 1 p.m. But evidence of PW-19 is something else which speaks that the accused persons left the place and after ten minutes the victim came there and he had a talk with him. Therefore, the accused persons and the victim were going towards the main road at or about 4 p.m. or 2.45 p.m. and at 1 p.m. are contradictory with each other. In his cross-examination, this PW-19 also admitted that he did not tell the IO regarding the pros and cons of the prosecution case, which he told before the learned Court for the first time. 23. In his cross-examination, this PW-19 also admitted that he did not tell the IO regarding the pros and cons of the prosecution case, which he told before the learned Court for the first time. 23. Evidence of PW-20 has practically given a death blow to the prosecution case. He is a child witness. His capability to depose was ascertained by the learned Trial Court. He was declared hostile by the prosecution. In course of cross-examination (after being declared hostile) he stated that he has given the statement before the Magistrate as per dictation of the police. He has clarified the position by saying that the police officer assaulted his parents and compelled him to say in terms of their dictation. In course of cross-examination by the defence he stated that he was at the PS for ten days and during that period police had assaulted his parents with lathi. He also stated that police also tortured his parents by electric shock. In such circumstances, the evidence of child witness has become a double aged weapon which also cuts the prosecution’s story. 24. PW-21 is declared hostile by the prosecution. His evidence does not support the prosecution in any way. 25. PW-22 has only put his signature which is marked Exhibit 4/2. 26. PW-23 has received FIR and he has put his endorsement in the said FIR. 27. PW-24 is the I.O. this case. In his evidence he has categorically stated as to how he had conducted the investigation. On perusal of his evidence it appears that this IO seized one 14 inches long knife from a pond known as Padma Pukur (beside Vivekananda School) under a seizure list. The said seizure was done as per statement of accused Azad alias Garai leading to discovery of the weapon. But the said seizure list which is marked Exhibit 4 does not bear the words that the discovery was done as per statement given by the accused to the police during police custody. There is no statement recorded by the IO that before such recovery the accused Azad had made such a statement that he would be able to show the weapon. There is no evidence that after the seizure is done the accused himself identified the weapon, which had been used for the commission of offence. Therefore, in our view, there is no substantial compliance of Section 27 of Indian Evidence Act. There is no evidence that after the seizure is done the accused himself identified the weapon, which had been used for the commission of offence. Therefore, in our view, there is no substantial compliance of Section 27 of Indian Evidence Act. 28. Therefore, the prosecution wanted to establish their case only: (i) On the basis of statement of the co-accused recorded under Section 164 Cr.P.C. (ii) Recovery of weapon. (iii) Last seen together. (iv) Post mortem report. (i) With regard to the first contention of the appellants, learned Counsel Mr. Sekhar Basu had criticised the judgment of the learned Curt below contending inter-alia that it is unsafe to rely on the statement of co-accused to implicate the other co-accused persons. He has referred to a decision reported in Param Hamsa Jadav and Sadananda Tripathi vs. State of Bihar and Others, reported in 1987 SCC (CRI) 322. According to him, law is laid down in that judgment that confession of a co-accused can never be treated as a substantive evidence against other co-accused persons in the same trial. The said confession of the co-accused must be in line with the evidence adduced by the prosecution and after considering the quality of that evidence and the statement of the accused under Section 164 Cr.P.C., if the Court finds any impress of truth in it only then the Court can rely on such statement recorded under Section 164 Cr.P.C. By referring the relevant part of the evidence he wanted to establish that there is no other clinching evidence against the accused persons from the prosecution side and therefore, and sothe said statement cannot be relied on. He has also relied on a decision in the case of State vs. S. Nalini and Others, reported in 1999 SCC (CRI) 691 paragraph 96. In the said judgment evidentiary value of a confession made by one accused as against another was considered by the Hon’ble Apex Court. Hon’ble Apex Court held that such confession has certain inherent weakness. It is the statement of a person, who claims to be an offender, that is to say the version of an accomplice. It is perhaps needless to say that such statement is not made on oath. This apart, such statement was made in the absence of other co-accused persons against whom it is sought to be used. It is the statement of a person, who claims to be an offender, that is to say the version of an accomplice. It is perhaps needless to say that such statement is not made on oath. This apart, such statement was made in the absence of other co-accused persons against whom it is sought to be used. Practically, the finding of the Hon’ble Apex Court, in those cases gets support from a celebrated judgment reported in AIR (86) 1949 PC 257. In that case, Hon’ble Apex Court held, that the statement made under Section 164 Cr.P.C. can never be used as a substantive evidence of the facts stated, but it can be used to support or challenge evidence given in Court by the person who made the statement. The Court shall regard all the circumstances appearing against the accused persons and thereafter such evidence has to be tested in the light of evidence made under Section 164 Cr.P.C. Section 114 of Evidence Act (illustration B) provides that “The Court may presume that an accomplice is unworthy of credit unless is corroborated in material particulars”. Therefore, the litmus test is to see corroboration in material particulars. On perusal of the evidence we find that there is no corroboration in material particulars in this instant case. This apart, the child witness has been examined in this case and according to him under coercion from the police authority he had to make such a statement before the Magistrate. He has also clarified the position stating that his parents were assaulted by the police personnel at the police station and even they were given electric shock. Police has tutored him to say regarding the offence and he had to make such statement only to save his parents from being assaulted by the police. In such circumstances, we are of the view, that the statement of the co-accused under Section 164 Cr.P.C. cannot be considered as a sacrosanct. (ii) Regarding recovery of weapon, a seizure list was produced before the Trial Court which is marked Exhibit. The said offending weapon was recovered after a long period. In the said seizure list there is no statement of the accused Azad that he had given a statement under Section 161 Cr.P.C. that he had kept the offending weapon concealed under a pond. Therefore, how it was recovered is a mystery. The said offending weapon was recovered after a long period. In the said seizure list there is no statement of the accused Azad that he had given a statement under Section 161 Cr.P.C. that he had kept the offending weapon concealed under a pond. Therefore, how it was recovered is a mystery. This apart, when the recovery of 14 inches knife was made there is no statement of the accused Azad that the same was used in the commission of offence. Therefore, on the basis of whose statement the IO had gone to recover the said weapon is another mystery. There is no suggestion to the doctor concerned that with the help of such weapon those types of injuries were possible. Therefore, Section 27 of Evidence Act was not complied with. (iii) Prosecution also tried to establish ‘last seen together’. In a case of circumstantial evidence entire chain of circumstances has to be proved beyond all reasonable doubt and dispute. The ‘last seen theory’ comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person than the accused being the author of the crime becomes impossible. This view was held by the Hon’ble Apex Court in case of Mohammad Azad vs. State of West Bengal, reported in 2008 15 SCC 449 and in case of State vs. Mahender Singh Dahiya, reported in 2011 3 SCC 109 . These judgments were taken into consideration by the Hon’ble Apex Court in Seth Yusuf vs. State of West Bengal, reported in 2011 3 SCC (CRI) 620. In this instant case one witness says that he had seen the accused and the victim at 2.45-3 p.m. Other witness says that he had seen the victim and accused at 4 p.m. From the post mortem report it does not transpire the probable time of death of the victim. It appears from the post mortem report that the autopsy surgeon had done the post mortem at 3 p.m. In his report he has mentioned RM+ this means rigor mortis started before examination by the autopsy surgeon. ‘Rigor mortis plus’ indicates that the victim died in between six hours to twelve hours. It appears from the post mortem report that the autopsy surgeon had done the post mortem at 3 p.m. In his report he has mentioned RM+ this means rigor mortis started before examination by the autopsy surgeon. ‘Rigor mortis plus’ indicates that the victim died in between six hours to twelve hours. Even if we hold that the victim died twelve hours before the examination by the autopsy surgeon, then the victims probable time of death is at 3 a.m. The victim and the accused persons were last seen together at or about 4 p.m. There is no explanation from the prosecution side regarding the time gap of eleven hours. The proof of circumstances of last seen together does not ipso facto leads to the conclusion that he was the accused who committed the crime. There must be something more establishing above the connectivity between the accused and the crime. In this instant case, the prosecution failed to establish that connectivity between the accused and the crime. (iv) Post mortem report is marked Exhibit. At the top portion of the post mortem report the autopsy surgeon opined that there was piercing injury in the abdomen and intestine. But at the later part when he mentioned the condition of intestine, he did not opine that intestine was having a piercing injury. The prosecution could not give any explanation on this point. Learned Counsel appearing on behalf of the prosecution in his usual fairness has submitted that the missing links are there and for which accused persons deserve benefit of doubt. Learned Counsel appearing on behalf of appellant no. 2 in CRA No. 363 of 2008 and the learned Advocate appearing for the appellant in CRA No. 382 of 2008 has adopted the argument advanced by the learned Counsel Mr. Sekhar Basu who appeared on behalf of the Mohammed Azad alias Goraiya and Others in CRA No. 363 of 2008. He had not pressed the CRAN applications bearing No. CRAN No. 3564 of 2014, CRAN No. 4329 of 2014 and CRAN No. 3744 of 2015 and accordingly, we do not feel it necessary to go into the merit of those applications. 29. Accordingly, all these CRAN applications are disposed of being not pressed. He had not pressed the CRAN applications bearing No. CRAN No. 3564 of 2014, CRAN No. 4329 of 2014 and CRAN No. 3744 of 2015 and accordingly, we do not feel it necessary to go into the merit of those applications. 29. Accordingly, all these CRAN applications are disposed of being not pressed. Having regard to the facts and circumstances of the case and after re-appreciation of evidence and also considering the examination of the accused appellant under Section 313 Cr.P.C. we are of the view that the prosecution failed to establish the case beyond all reasonable doubt and disputes. Accordingly, we have no option left with except to allow the appeal. Judgment passed by the Additional Sessions Judge fast track Court II Howrah in Sessions Trial No. 602 of 2005 is here by set aside. The appellants are set at liberty at once unless detention of any one of them is required in connection with any other case. 30. Let a copy of this order be sent to the learned Court below for his information and taking necessary action in accordance with law. I agree – Debasish Kar Gupta and Siddhartha Chattopadhyay, JJ.