JUDGMENT : Shivakant Prasad, J. The instant appeal is directed against the judgment passed by the learned Sessions Judge, Andaman and Nicobar Islands in Sessions Case No.21 of 2007, Sessions Trial Case No.23 of June 2010 dated 10th February, 2016 whereby the appellant was convicted and sentenced to suffer rigorous imprisonment for life and with fine of Rs.10,000/- for the offence punishable under section 302 of Indian Penal Code and was also punished with rigorous imprisonment for three years with fine of Rs.3000/- for the offence punishable under section 201 of Indian Penal Code. 2. Being aggrieved by the judgment impugned, the accused/appellant, preferred this appeal inter alia, on the ground that the learned judge has failed to appreciate that the case of the prosecution is solely based on circumstantial evidence and failed to prove the chain of circumstances in order to bring home charges under sections 302 and 201 Indian Penal Code. 3. The factual matrix of the prosecution case is that one Nirmal Ojha of village Madhupur-II, Diglipur lodged a written complaint at Diglipur Police Station on 28.04.2006 stating that his eldest daughter Rita Ojha was married to one Sanjeeb Halder son of Dhiren Halder in February 2007. After some days of marriage, the in-laws of the deceased came to know from medical report that Rita Ojha was six months pregnant at the time of marriage. Shanjit, brother-in-law of the deceased came to the house of the defacto complainant and informed that Rita Ojha was serious when the defacto complainant was not in the house. But, on getting information, his uncle Naren Ojha and his brother Parimal Ojha accompanied Shanjit Halder to the matrimonial house of the deceased. There his daughter’s father-in-law and his family members told them that they came to know from the medical report that the deceased is having six month pregnancy and they sent the deceased with her uncle Parimal Ojha to her house. Family members interrogated the deceased and she told that before marriage, she had an illicit relationship with Swapan Kumar Mazumdar of Shivpur who is the father of the child in her womb. Listening this, his uncle Naren Ojha contacted, over phone, Narhari Mazumdar, father of Swapan Kumar Mazumdar, who is the Extension Officer at Mayabunder Block and informed him to come to Diglipur. Listening this, his uncle Naren Ojha contacted, over phone, Narhari Mazumdar, father of Swapan Kumar Mazumdar, who is the Extension Officer at Mayabunder Block and informed him to come to Diglipur. Narhari Mazumdar told Naren that he had no leave and so he would reach his house on 24.04.2007 in the evening. 4. On 27.04.2007, the defacto complainant along with his brother-inlaw Rabi Roy, Nithya Gopal Talukdar father-in-law of his sister and his brother Amal Ojha, his uncle’s son Kamal Ojha reached Shivpur and told the matter to the Pradhan, Tarun Roy, Surpanch Sukanto Hazra of Shivpur Gram Panchayat and Ranjit Halder and all of them went to the house of Narhari Mazumdar who was present in his house. His son Swapan Kumar Mazumdar was also present at that time and they talked about his daughter Rita Ojha. Swapan Kumar Mazumdar accepted his mistake in presence of all. Then, Pradhan and Surpanch of Shivpur Gram Panchayat took the decision that on 28.04.2007 in the morning at about 11.30 am in presence of both the party, members would enter into a writing that marriage be done between Rita Ojha and Swapan Kumar Mazumdar. Accordingly, discussions took place upto 12.30 pm at night. PW-1’s brother-in-law, Robi Roy and his sister’s father-in-law Nithya Gopal Talukdar stayed at Narhari Mazumdar’s house and the defacto complainant stayed with Tarun Roy in his house. 5. It reflects from the written complaint lodged at the Police Station, Diglipur that on 28.04.2007 in the morning at about 5-5.30 am, defacto complainant went to Narhari Mazumdar’s house to know whereabout of his daughter Rita Ojha and enquired from Narhari Mazumdar. In reply, he pointed out that after defacto complainant’s departure from Narhari Mazumdar’s house, Rita Ojha and Swapan Kumar Mazumdar went somewhere near about 1.30 hours, without even informing Narhari Mazumdar, from the house of Narhari Mazumdar. As such, he doubted and asked whereabout of his daughter and Swapan Kumar Mazumdar. In reply, he pointed out that after defacto complainant’s departure from Narhari Mazumdar’s house, Rita Ojha and Swapan Kumar Mazumdar went somewhere near about 1.30 hours, without even informing Narhari Mazumdar, from the house of Narhari Mazumdar. As such, he doubted and asked whereabout of his daughter and Swapan Kumar Mazumdar. At Durgapur he came to know, on that night, at about 2.30 to 3.00 hours, Swapan Kumar Mazumdar alone went to house of Sukdev Mistry of Durgapur and told him that due to urgent work, he had to go to Port Blair by bus and took his cycle and went to Diglipur but the defacto complainant could not get any information about his daughter Rita Ojha, who soon came to Diglipur and asked about Swapan Kumar Mazumdar and he came to know that by taking Omni of Manna went somewhere alone in the morning at about 4.00 am. So, the defacto complainant had a doubt that Swapan Kumar Mazumdar might have killed his daughter and in order to escape at night itself ran from Diglipur by Omini of Manna. 6. On the basis of complaint, Diglipur Police Case No.103/07 dated 28.04.2007 under section 302 IPC was started against the accused Swapan Kumar Mazumdar son of Narhari Mazumdar resident of Shivpur (Diglipur). On the same day, it was reported to Diglipur Police Station by message that the accused Swapan Kumar Mazumdar had surrendered before the Tehsildar, Mayabunder and he was being forwarded to Diglipur Police Station by escort. On reaching at Police Station Diglipur, Swapan Kumar Mazumdar made a disclosure statement at Police Station in presence of witnesses that he had killed Rita Ojha by strangulation and her dead body has been left under the culvert. He disclosed that if he would be taken to that place, he would show the dead body. Accordingly, the police team along with the accused, the defacto complainant and an independent witness reached at the place of occurrence and the dead body of Rita Ojha was found under the culvert and recovered therefrom and sent for post mortem examination to the Community Health Centre, Diglipur. 7. Accordingly, the police team along with the accused, the defacto complainant and an independent witness reached at the place of occurrence and the dead body of Rita Ojha was found under the culvert and recovered therefrom and sent for post mortem examination to the Community Health Centre, Diglipur. 7. On usual investigation, the investigating officer submitted the charge sheet No.95/2007 dated 11.06.2007 in the Court of learned Judicial Magistrate First Class, Mayabunder on 19.06.2007 who after taking cognizance of the offence and on due formalities as required under section 209 of Cr.P.C committed the case to the Court of Sessions and the trial started by framing charge under section 302, and 301 of IPC to which the accused appellant herein pleaded not guilty and claimed to be tried. 8. Thereafter the Sessions Judge examined as many as twenty witnesses and in conclusion of the trial, the accused was examined under section 313 of Cr.P.C to which he declined to adduce any defence witness. Defence case is one of the denial of charges leveled against the accused/appellant which emerged from the trend of cross examination of prosecution witnesses and so also the statement of the accused recorded under section 313 of the Cr.P.C which are mainly based on denial by pleading innocence and that the accused has been falsely implicated in the case. 9. The Trial Judge found the accused/appellant to be guilty of the charges punishable under section 302/301 IPC and the impugned judgment dated 10.02.2016 was passed. The accused/appellant, was sentenced to imprisonment for life and imposed fine of Rs.10,000/- for the offence punishable under section 302 IPC and further to undergo rigorous imprisonment for three years with fine of Rs.3000/- for the offence punishable under section 301 of IPC with the direction that substantive sentence shall run concurrently. 10. The point for decision is as to whether the prosecution has been able to substantiate the charges leveled against the accused/appellant beyond the shadow of reasonable doubt and whether the judgment impugned is tenable in law and fact. 11. Mr. Krishna Rao, learned counsel for the appellant, at the outset, has argued raising the question against the prosecution as to how based on the statement of defacto complainant Nirmal Ojha (PW-1), an FIR under section 302 IPC was registered against the accused/appellant. At best it could have been a missing diary. 11. Mr. Krishna Rao, learned counsel for the appellant, at the outset, has argued raising the question against the prosecution as to how based on the statement of defacto complainant Nirmal Ojha (PW-1), an FIR under section 302 IPC was registered against the accused/appellant. At best it could have been a missing diary. It is submitted that there is no evidence to show that Narhari Mazumdar had informed about the accused/appellant leaving his home with the deceased. Adverting to the FIR, it is appointed that Investigating Officer received information at 10.50 hours through VHF that Swapan Kumar Mazumdar was sent at the Police Station on being escorted by police from Mayabunder Police Station. 12. According to prosecution deceased was pregnant and she was sent to the house of PW-1 from her matrimonial home. According to PW-1, Rita Ojha was interrogated , who had disclosed about her illicit relationship with Swapan Kumar Mazumdar prior to her marriage with Sanjeeb Halder. PW-1 has stated that his uncle contacted Narhari Mazumdar over phone asking him to come to Diglipur. PW-1, father of the deceased stated that he heard that the appellant and his daughter had left that place at 1-1.30 am but he is not the eye witness to the said incident. It is also argued that the appellant/accused had illicit relationship with the deceased before her marriage has not been proved inasmuch as, the FSL report does not support the case of the prosecution that it was the accused/appellant, who was responsible for the pregnancy of the deceased. As per the PW-1, Tarun Kumar Roy and Sukanto Hazra (PW-4) were present in the house of Narhari Mazumdar, but, Tarun Kumar Roy was not examined by the prosecution whereas Sukunto Hazra (PW-4) has been declared hostile by the prosecution. The said PW-4 has stated during his examination that in the night of 27.07.2007 when the conversation was over in the residence of Swapan Kumar Mazumdar, the lady along with her relative went away from the house of Swapan Kumar Mazumdar. So the appellant leaving with the victim at about 1-1.30 am altogether has not been proved and is under doubt. It is further submitted that Naren Ojha (PW-6), uncle of defacto Complainant (PW-1) has not corroborated the oral testimony of PW-1 because he has also been declared hostile by the prosecution. So the appellant leaving with the victim at about 1-1.30 am altogether has not been proved and is under doubt. It is further submitted that Naren Ojha (PW-6), uncle of defacto Complainant (PW-1) has not corroborated the oral testimony of PW-1 because he has also been declared hostile by the prosecution. It is also contended by Mr.Rao that PW-1 stayed over night with Tarun Kumar Roy in the latter house which does not find corroboration by the said Tarun Kumar Roy as he has not been produced by the prosecution for his evidence 13. Thus, Mr.Rao urged that from whom the PW-1came to know that Swapan Kumar Mazumdar and his daughter had left the place at 1-1.30 am from the house of Narhari Mazumdar. So, there is missing link in the prosecution evidence because the evidence of PW-1 does not find corroboration by the PW-4 and PW-6. 14. We find there is no ground taken by the appellant that the FIR has not been corroborated by its maker. It is well established principle that an FIR is not a substantive evidence. It can be used for the limited purpose of corroboration under section 157 of the Evidence Act or contradicting the evidence given by the informant in the Court on conforming or confronting the same as per section 145 of the Evidence Act. 15. As per the oral testimony of PW-1 Shri Nirmal Ojha, in the year 2007, Rita Ojha was married to Sanjeeb Halder, son of Dhiren Halder in the month of February,2007. After marriage, Rita Ojha came to his house on 2-3 occasions. About 5 days prior to making report to the police station, brother of his son-in-law namely Sanjeeb Halder came to his house and told his uncle that his daughter was in serious condition. At that time, she was in her matrimonial home. Then, his uncle and his brother-in-law rushed to the Rita’s matrimonial home. At that time, PW-1 was in Jaganathdera and was not in his house. So, he could not come to the matrimonial home of Rita. It is the version of PW-1 that they had come to know from the medical report that Rita was six months pregnant. Then, Rita was taken back to his house and enquired when she disclosed that she had illicit relationship with Swapan Kumar Mazumdar prior to her marriage. After one day, PW-1 returned home. It is the version of PW-1 that they had come to know from the medical report that Rita was six months pregnant. Then, Rita was taken back to his house and enquired when she disclosed that she had illicit relationship with Swapan Kumar Mazumdar prior to her marriage. After one day, PW-1 returned home. His uncle called Narhari Mazumdar over phone asked him to come to Diglipur. Then, on 27.04.2007, Narhari Mazumdar, father of the accused/appellant came to residence of his own at Shivpur, Diglipur. Thereafter, PW-1 along with Rabi Roy and his brother-in-law, father-inlaw of his sister Nithya Gopal Talukdar (PW-14) and his brother Amal Ojha (PW-19) went to the residence of Narhari Mazumdar. 16. Kamal Ojha, who is son of his uncle had also accompanied them. It was about 5.00 pm, they went to his residence. Pradhan, Tarun Kumar Roy and Surpanch, Sukanto Hazra (PW-8) of Shivpur Gram Panchayat were also present. Then, a meeting took place and it was agreed that Rita was carrying child of Swapan Kumar Mazumdar and it was resolved that on the next day, on 28.04.2007 at about 11.30 am, Swapan Kumar Mazumdar and Rita shall come to the Panchayat and would get marry there. Then about 12.00 pm at night, PW-1 went to the resident of Tarun Kumar Roy and stayed in his house. It was only in the morning of 28.04.2007 when he went to the residence of Narhari Mazumdar alone and going there, he came to know that Swapan Kumar Mazumdar and Rita Ojha had left the place at about 1.00-1.30 am. The defence raised a question from whom he came to know. 17. PW-1 then started searching both of them and reaching at Durgapur, he came to know that Swapan Kumar Mazumdar went away by cycle of Sukdev Mistry to Diglipur and heard that he went towards Mayabunder. Then, PW-1 went to Diglipur Police Station and reported the incident to the police. His statement was recorded by the police wherein he put his signature. 18. By perusal of the FIR with that of the oral testimony of PW-1, we find that the FIR which set the criminal proceeding in motion has been substantially corroborated by its maker. After recording of statement of PW-1, the police took him to Shivpur village where some local persons were interrogated. 18. By perusal of the FIR with that of the oral testimony of PW-1, we find that the FIR which set the criminal proceeding in motion has been substantially corroborated by its maker. After recording of statement of PW-1, the police took him to Shivpur village where some local persons were interrogated. At that time, the police person communicated that Swapan Kumar Mazumdar had surrendered himself before the Tehsildar, Mayabunder. On receiving the information, PW-1 alongwith the police persons came to the Diglipur, P.S. Swapan Kumar Mazumdar was brought to Diglipur from Mayabunder between 9-10 am and thereafter he was taken to Shivpur village along with PW-1 and others and police persons. The dead body of Rita was discovered from the underneath of culvert of Shipbur as per disclosure made by the appellant. Photocopy of the situs of dead body and the site were taken and then, the dead body was sent to Diglipur,CHC, Hospital for postmortem. Inquest over the dead body was held by the Investigating Officer to which PW-1 is a witness vide his signature on the inquest report Ext.2. Dead body was handed over to him after postmortem on the basis of superdigma Ext-3. As a token of receipt of the dead body, he has put his signature – Ext.3/1. On 13.05.2007, PW-1 made statement before the Judicial Magistrate at Mayabunder where he put his signatures Ext. 4/1, 4/2, 4/3, 4/4, 4/5 and 4/6 after the statement was read over and explained to him by the Judicial Magistrate. We find that oral testimony of the PW- 1 is well corroborated with that of the statement under section 164 Cr.P.C made before the Judicial Magistrate First Class, Mayabunder which are in general agreement with the statements made in the written information. 19. True it is that his daughter might not have disclosed to him at any point of time after the marriage that she had extra marital affairs and physical relationship with Swapan Kumar Mazumdar and so also his son-in-law might not have scope to disclose about her pregnancy and PW-1 may not have taken his daughter Rita to hospital after receiving information about her pregnancy. But that does not impeach the case of the prosecution. But that does not impeach the case of the prosecution. PW-1, in his cross-examination stated, he has not seen Rita running away with Swapan Kumar Mazumdar but it is admitted that he reached Narhari’s residence at about 5.00 pm when his parents and sister were present. It is also fact that he had not visited matrimonial home of his daughter to bring her back from her matrimonial home on receiving information of her pregnancy. It is for reason that on the day information was received, PW-1 was not present in his house and he returned home on that day itself on receipt of information about pregnancy of Rita at about 6 PM. 20. PW-1 during cross examination stated that there was no resolution of Panchayat to be entered into writing but such oral testimony during the cross examination of the PW-1 does not shake root of the prosecution case. There may be certain discrepancies in oral testimony of the witnesses and obscurity here and there in the prosecution case but that does not mean, the entire case of the prosecution is shaken. 21. Contradiction or improvement in minor details cannot be regarded as very material or as positive proof of the mendacity of witnesses and on that account the whole case of prosecution cannot be thrown out. Although, the Court is called upon to look to the broader outlines and main features of the case and to decide how far participation of the accused before it in the alleged offence or office is established. 22. We are now required to appraise the evidence on record whether they are sharply in conflict, then only we can take into consideration any missing link in favour of the accused by taking the reason of presumption of innocence as entire case is based on circumstantial evidence. 23. It is clenched position of law that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. 24. This is how the proposition was laid down by the Hon’ble Apex Court long back in the case of Bagat Ram vs. State of Punjab reported in AIR 1954 SC 621 . 25. Now we are called upon to search for the truth based on the principles as laid down in the case of circumstantial evidence as stated above. 26. It is true that the prosecution has not examined the Tehsildar, before whom the accused Swapan Kumar Mazumdar had surrendered. On this account, the learned counsel for the appellant claims that there is a delink in the evidence with regard to the surrender of the accused before the Tehsildar. Before we appraise the evidence of prosecution witnesses, we would like to categorize the classes of witnesses. Hostile Witnesses Tendered Witnesses Witnesses for the prosecution Official witnesses PW-4 (Sukanto Hazra) PW-7 (Kamal Ojha) PW-1 (Nirmal Ojha) PW-3 (P. Muniyadi) PW-6 (Naren Ojha) PW-11 (Parimal dey) PW-2 (Bikas Das) PW-15 (Praji Kumar) PW-8 (Sukdev Mistry) PW-13 (Sanjeeb Halder) PW-5 (Rabi Roy) PW-16 (SI Tamil Arasan) PW-9 (Hare Krishna Halder) PW-19 (Amal Ojha) PW-12 (Dhiren Halder) PW-17 (Dr. Rajini Tiwari) PW-10 (Ranjit Halder) PW-14(Nithya Gopal Talukdar) PW-18 (Uttam Kumar Pandey) PW-20 J.S. Yadav From the class of witnesses being P.W. 7, P.W. 11, P.W. 13 and P.W. 19 they have been simply tendered by the prosecution during the sessions trial. It will be pertinent to refer to section 138 of the Evidence Act which provides for order of examination. Witnesses shall be first examined in chief. Then if the adverse party so desires can cross-examine. Then if the party calling him so desires can re-examine. 27. The examination and cross-examination must relate to relevant fact but the cross-examination need not be confined to the facts to which the witness testifies on its examination-in-chief. Witnesses shall be first examined in chief. Then if the adverse party so desires can cross-examine. Then if the party calling him so desires can re-examine. 27. The examination and cross-examination must relate to relevant fact but the cross-examination need not be confined to the facts to which the witness testifies on its examination-in-chief. So the provisions of section 138 of the Evidence Act envisages that witness must be examined in chief and subject to cross-examination and seek any cross-examination, the witness may be re-examined by the prosecution. There is no meaning in tendering a witness for cross-examination only. Tendering a witness for cross-examination as a matter of fact implies to giving up of the witness by the prosecution as it does not choose to examine him in chief. However, a practice of tendering of witness for cross-examination in sessions trial have been frequently resorted since the enactment of the Code of Criminal Procedure 1898. The reason behind taking recourse to such a practice is undoubtedly inconsistent with section 138 of the Evidence Act. Under the Code as it stood prior to its amendment by Act of 26 of 1955, a full fledged magisterial enquiry is to be held in a case which is triable exclusively by the court of Sessions or the High Court in accordance with the procedure laid down in Chapter XVIII. Under section 288 of the Code, the evidence of the witness so recorded by the committing Magistrate could be treated at the discretion of the Sessions Judge as exclusive evidence at the sessions trial. Moreover, the prosecution taking advantage of the said provision used to ask for or obtain leave of the Sessions Court to treat the deposition of these witnesses whom they did not intend to examine afresh recorded in the committal enquiry as its evidence in the trial and then tendered them for cross-examination. In other words, the prosecution brought on record of the trial court and relied upon the testimony of some of the witnesses recorded at its intent before the committing Magistrate as its evidence during the tiral and then tendered them for cross-examination by the defence. 28. In the above background of the proposition of law which briefly describe earlier practice of tendering the witness continued before the sessions trial and other witnesses in whom confidence could not be reposed by the prosecution before tendering them for cross-examination. 28. In the above background of the proposition of law which briefly describe earlier practice of tendering the witness continued before the sessions trial and other witnesses in whom confidence could not be reposed by the prosecution before tendering them for cross-examination. The prosecution simply tendered the witnesses as the prosecution did not choose to rely upon on the testimony of the witnesses who were tendered but it is very much open for the defence to cross-examine the tendered witness. But, in this case the defence has also declined to cross-examine the witness namely P.W.7, P.W.11, P.W.13 and P.W.19. (See: Sukhdev Singh Vs. State of Punjab AIR 1995 SC 1380 ). 29. As regards the class of hostile witnesses P.W.4, P.W.6, P.W.8, P.W.9 and PW-10 who have been declared hostile by the prosecution and with the permission of the trial court, they were cross examined by the prosecution in respect of their statement while they stated to Investigating Officer at the earliest point of time during the stage of investigation. 30. Learned counsel for the accused/appellant submitted that as per the evidence of P.W.1 Tarun Kumar Roy and Sukanto Hazra were present in the house of the father of the accused/appellant but said Tarun Kumar Roy has not been examined by the prosecution and so also Sukanto Hazra, P.W.4 who has been declared hostile by the prosecution and has also not corroborated the version of P.W.1, the defacto complainant as he has categorically stated that the lady along with relative went away from the house of the appellant and as such question of leaving the appellant with the victim at about 1/1.30 a.m has not been proved and it does not find corroboration by the prosecution evidence to establish the theory of last seen together. 31. Now, the settled position of law relating to hostile witness is that it would not be correct to say that when a witness is cross-examined by the party calling him, his evidence cannot be believed in part and disbelieved in part but must be excluded from consideration of togetherness. 32. However, the inference of hostility of a witness can be drawn only from the answer given by him and to some extent from the demeanour which a trial court can only visualize. 33. 32. However, the inference of hostility of a witness can be drawn only from the answer given by him and to some extent from the demeanour which a trial court can only visualize. 33. The correct rule is that either side may rely upon his evidence and that the whole of the evidence so far as it affects both parties favourably or unfavourably must consider for what it’s worth. The true rule is that either party may rely upon the evidence of such a witness and the court can give to its own conclusion after a consideration of the whole of the evidence and not taking a solitary evidence as pointed out by the learned counsel of the appellant on the score that said Sukanto Hazra, P.W.4 as stated having deposed that the lady along with her relatives went away from the house of the appellant. In such situation, the court is called upon to consider all factors relevant to the question to form its own opinion that the witness relied bears a hostile animus to the party calling him. 34. The law has advisedly left the matter entirely to the discretion of the Trial Judge. Such discretions lie in other discretionary power vested in a court has to be exercised judiciously where a witness had supported the prosecution case but the fact that he had been declared hostile is no ground to disbelief his statement made during the examination in chief conducted by the prosecution. 35. The testimony of hostile witnesses Sukanto Hazra on material points of the cross-examination is not to be brushed aside though the prosecution is entitled to declare its witness to be treated as hostile only when the witness stated something which is destructive to the prosecution case. 36. Coming back to the deposition of P.W.1, it would appear that in the year 2007 he was Surpanch of Shivpur Gram Panchayat. On 27.4.2007 Pradhan of Shivpur Panchayat and peon visited his residence at about 9.00 p.m. and requested to visit the residence of Swapan Kumar Mazumdar in Shivpur. Tarun Kumar Roy was the Pradhan and he knew Swapan Kumar Mazumdar and as such identified him in court on dock. On 27.4.2007 Pradhan of Shivpur Panchayat and peon visited his residence at about 9.00 p.m. and requested to visit the residence of Swapan Kumar Mazumdar in Shivpur. Tarun Kumar Roy was the Pradhan and he knew Swapan Kumar Mazumdar and as such identified him in court on dock. According to P.W.4 he got information from Pradhan that one lady told him that her daughter married to one person two months’ ago and the lady was six months pregnant, so the lady was sent back to her parental home. The lady confessed to her father that she was made pregnant by Swapan Kumar Mazumdar. Then P.W.4 went to the residence of Swapan Kumar Mazumdar along with father, uncle of the lady. The Pradhan of Madhupur was also present. He further stated that Pradhan of Shivpur expressed his opinion that on the next day at 11.00 a.m. a meeting would be held at Shivpur Panchayat when the matter would be taken up. Swapan Kumar Mazumdar was also present. Thereafter he returned to his house. On the next day at about 10.00 a.m. police came to Panchayat office and told him that he and the Pradhan should go to Police Station. When he went to Swapan Kumar Mazumdar’s residence that lady was present but he could not tell whether the lady spent the night. So it is evident from his evidence that his version finds corroboration with that of P.W.1 in general term in as much as he stated in unequivocal term that when he went to Swapan Kumar Mazumdar’s residence the lady was present there. 37. So it is proved in corroboration with the P.W.1 by P.W.4 that the deceased stayed in the house of Swapan Kumar Mazumdar. P.W.4 has further stated on oath that on being told by the police for him to visit Police Station along with Pradhan, they so visited the Police Station where they saw Swapan Kumar Mazumdar in a lock-up and then the body of the lady was recovered underneath a culvert at Shivpur. 38. P.W.4 along with Pradhan and the police team came to Shivpur where the dead body of lady was lying under culvert which was taken on its recovery to Diglipur. He has admitted the fact of having put his signature on the Ekrarnama vide Ext.6/1 39. 38. P.W.4 along with Pradhan and the police team came to Shivpur where the dead body of lady was lying under culvert which was taken on its recovery to Diglipur. He has admitted the fact of having put his signature on the Ekrarnama vide Ext.6/1 39. Therefore, we are unable to agree with the learned counsel for the appellant that there is a de-link with the evidence of the prosecution. 40. Next hostile witness is P.W.6, Naren Ojha who happens to be the uncle of defacto complainant (P.W.1). According to him, one day brotherin-law of Rita came to him and told that Rita was vomiting and requested P.W.6 to see Rita at their residence. So, P.W.6 visited the matrimonial home of Rita and said brother-in-law told him to take Rita back to her parental home. 41. In examination in chief he suddenly stated that he was not interrogated by police and at this juncture the prosecution thought it fit to declare him hostile. 42. The prosecution has cross-examined him when he denied having made statement to the police but he has identified his signature on the seizure list as Ext. 7/1 and identified the accused present in court during trial. It signifies that he has been examined by the I.O. (Investigating Officer). 43. Adverting to the deposition of J.S. Yadav, then posted as SHO(Station House Officer), P.S. Diglipur as S.I. on 28.4.2007 who conducted investigation of the case being FIR No.103/2007 on the basis of the complaint of Nirmal Ojha registered under section 302 of the Indian Penal Code against the accused Swapan Kumar Mazumdar, son of Nar Hari Mazumdar of Shivpur, Diglipur. 44. I.O. P.W.20 himself took investigation and has proved the FIR (Ext.1/3) and the formal FIR has Ext.1/4 and during his examination he has clearly stated that P.W.6 Naren Ojha had made statement before him that Rita was married to Sanjeeb on 24.2.2007 and that he came to know from her in-law, that Rita was medically examined and found six months pregnant within three months of marriage and he had came to know that Rita made here statement to her in-laws that she was pregnant by Swapan Kumar Mazumdar and he also made such statement before the police that he along with Nirmal Ojha had visited the residence of Nar Hari Mazumdar. 45. 45. The fact so deposed by I.O. is well founded on the basis of the complaint Ext-1 and oral testimonies of P.W.1. This witness though made statement to the police but from his evidence prosecution cannot gain any support. Of course, from the case of the prosecution it transpires that the accused had left Diglipur with the Cycle by taking cycle from the said Sukhdev Mistry, P.W.8. But he does not appear to have supported the prosecution on that score. 46. Learned counsel for the appellant has further pointed out that the accused/appellant availed Maruti Omni to go to Mayabunder driven by Hare Krishna Halder (PW-9) who does not appear to have supported the prosecution case on that score. But, admittedly on 28.09.2007, P.W.9 was driving the Maruti Omni bearing No. AN 01 C 9457 for Manna Travels but this witness deposed having denied the fact that Swapan Kumar Mazumdar was driven by his vehicle. So this witness is of no help to the prosecution case. 47. Ranjit Halder P.W.10 was a peon of Shivpur Gram Panchayat. He has also been declared hostile by the prosecution during his examination in chief because he stated that he was not interrogated by the police. But the fact remains that during his cross-examination by the prosecution he admitted the fact that on 27.4.2007 he along with Pradhan and Surpanch had visited the residence of Nar Hari Mazumdar, the father of accused/appellant herein at about 7.00 p.m. So, this witness has corroborated the defacto complainant. During cross-examination also he has stated that when he came down from the residence of Nar Hari Mazumdar and other persons present, returned to their respective home. So, his presence in the house of Nar Hari Mazumdar is very much proved by the prosecution. He has stated during his examination in chief that at about 6 to 6.30 p.m. he got a phone call from Pradhan, Shivpur and asked him to be present in his house. Although the said Pradhan has not been examined by the prosecution but P.W.10 testified the fact that the Pradhan came to his residence and asked him to come to the residence of Sukanto Hazra, P.W.4. He also stated that Pradhan requested to visit the residence of Narhari Mazumdar whose residence is half kilometer from the residence of Surpanch in the same locality. He also stated that Pradhan requested to visit the residence of Narhari Mazumdar whose residence is half kilometer from the residence of Surpanch in the same locality. It was stated by the Pradhan that some persons from Madhupur had come to Narhari Mazumdar’s residence and the Pradhan and other were supposed to go to his house. Thereafter, P.W.10 along with Pradhan and Surpanch visited the house of Nar Hari Mazumdar at about 7.00 p.m. where they found some persons had come from Madhupur village. 48. Another person had come from Diglipur and informed that Pradhan of Madhupur village would not come. Then Shivpur village Pradhan asked all persons to come to Gram Panchayat office on the following morning at about 10.00 a.m. thereafter, they all returned to their respective home and on the next morning at 10.00 a.m. all went to Panchayat Office where Pradhan came but at about 1.00 p.m. they got the information that one lady was murdered. He was declared hostile during examination in chief. It is well understood from evidence in cross-examination by the prosecution that Swapan Kumar Mazumdar, the accused is his relative as the elder uncle of Swapan Kumar Mazumdar is the husband of his elder sister. So it is quite natural that he declined to make any statement against the accused appellant but admittedly he had been to the residence of Narhari Mazumdar on 27.4.2007. 49. In the classes of formal witnesses for the prosecution, PW-3 Shri Muniyadi, is a sweeper in CHC, Diglipur Hospital who deposed that on 28.04.2007, he was on duty in the said hospital and assisted Dr. Rajini Tiwari (PW-17) who held postmortem examination. He testified the fact that the dead body of that lady Rita Ojha was wearing apparels, i.e. saree, lehnga, blouse, and bra (all in red colour), and were removed and handed over to the police person, which were seized under a seizure list (Panchnama) to which he is a witness vide Ext.5/1. 50. Learned counsel appearing on behalf of the appellant invited our attention to the evidence of the Investigating Officer PW-20, who during investigation, had received a phone call from C.M. Varghese, Tehsildar, Mayabunder informing that the appellant surrendered before him, making extra judicial confession that he had murdered the deceased and concealed the dead body but to corroborate the said evidence, the Tehsildar was not examined. As such surrender of the accused before Tehsildar has not been proved on evidence. The Investigating Officer has also stated that the accused was brought by police escort from Mayabudner along with the report of the Tehsildar and one Head Constable U.K. Pandey (PW-18) handed over the report of the Tehsildar to the Investigating Officer but the report of Tehsildar was never produced before the Trial Court nor the evidence was corroborated by the said Head Constable, PW-18. Thus, it is argued that there is delink in the evidence regarding surrender. In this case the prosecution has not relied solely on the said extra judicial confession made to the Tehsildar. We will deal with implication of surrender of the accused later. 51. According to PW-18, on 28.04.2007, he was posted at Dilgipur, Police Station as Head Constable as a station writer. On that day, Nirmal Ojha of Madhupur lodged a verbal complaint to Station House Officer, Diglipur and as per the order of Station House Officer, he lodged FIR and it was read over and explained to the defacto complainant PW-1 who put his signature thereon. On the basis of which FIR No.103/07 dated 28.04.07 under section 302 of IPC was started against the accused Swapan Kumar Mazumdar. PW-18 has proved the FIR Ext.-1 based on which J.S. Yadav, PW-20 took up the investigation of the case by undertaking all formalities. During investigation, he had received telephone call from the Tehsildar, Mayabunder informing that one Swapan Kumar Mazumdar had surrendered stating that he had murdered Rita Ojha and concealed her dead body. Then PW-20, informed the Station House Officer, Mayabunder over phone that a specific case had already been started against S.K. Mazumdar at Dilgipur, Police Station and asked to send the said Swapan Kumar Mazumdar to Diglipur Police Station with police escort. At 0820 hours, the Investigating Officer with police party and the complainant went to Shivpur by police vehicle and there he examined Panchayat Pradhan, Samity about the matter involving Swapan Kumar Mazumdar and Rita Ojha. At 10.50 hours, the Investigating Officer received information from Diglipur Police Station through VHF that S.K. Mazumdar was brought at Police Station by police escort from Mayabunder Police Station along with the report of the Tehsildar, Mayabunder. Then, he instructed U.K. Pandey to observe the said Swapan Kumar Mazumdar. At 11.40 hrs. At 10.50 hours, the Investigating Officer received information from Diglipur Police Station through VHF that S.K. Mazumdar was brought at Police Station by police escort from Mayabunder Police Station along with the report of the Tehsildar, Mayabunder. Then, he instructed U.K. Pandey to observe the said Swapan Kumar Mazumdar. At 11.40 hrs. he returned to police station with police party by vehicle and said U.K. Pandey handed over the report of the Tehsildar, Mayabunder addressed to the Station House Officer, Mayabunder and then he arrested the accused at 12.05 hours and recorded his statement in presence of witness about the concealment of the dead body. The accused had made rather disclosure statement that he had concealed the dead body under the culvert of the Shivpur Agriculture water gate and he could identify the spot. Disclosure part of the statement of the accused Swapan Kumar Mazumdar relating to concealment of the dead body has been marked as Ext-6 wherein Investigating Officer himself has signed as Ext 6/2. At 1225 hours the Investigating Officer along with witness, police authority, photographer and the accused went to Shivpur and as per his identification, the dead body of Rita Ojha was recovered A panchanama of the dead body was prepared. It has been signed by him and proved as Ext-5. Photographs of the dead body were taken with the help of Photographer (PW-15). Thereafter, the Investigating Officer held inquest over the dead body in presence of the witnesses and prepared inquest report Ext-2. 52. In the course of investigation, the Investigating Officer prepared rough sketch map of place of occurrence with explanatory index as Ext.13. Photographs of the dead body and its surrounding areas were taken with the help of Photographer (PW-15). The Investigating Officer delivered the dead body to CHC Diglipur for postmortem. The accused was also sent to CHC Diglipur for his medical examination. At 1700 hours, the Investigating Officer seized the wearing apparels of the deceased under the seizure list and Ext-14. Then, at 1705 hours, the dead body was handed over to Nirmal Ojha, PW-1, being the father of the deceased under the superudigma Ext-3. The Investigating Officer also examined available witnesses by recording their statement under section 161 of Cr.P.C. The wearing apparels of accused were also seized by the Investigating Officer under the seizure list, which bears the signature of the accused proved as Ext-7. The Investigating Officer also examined available witnesses by recording their statement under section 161 of Cr.P.C. The wearing apparels of accused were also seized by the Investigating Officer under the seizure list, which bears the signature of the accused proved as Ext-7. Thereafter, the accused was forwarded to the Court of learned Chief Judicial Magistrate, Mayabunder. The Magistrate recorded the confessional statement of Swapan Kumar Mazumdar, a copy of which was collected by the Investigating Officer. It appears from the evidence of the Investigating Officer that on 05.05.2007 at 1630 hours, he had collected the blood samples of accused and foetus part extracted from the uterus of the deceased Rita, which was handed over to him by Dr.Rajini Tiwari (PW-17) and they were seized under seizure list as Ext-12. On 09.05.2007, the Investigating Officer received 13 nos of photographs and 10 numbers negative copies from the photographer and on 15.05.2007, he received postmortem report of the deceased. On 24.05.2007, at 1300 hours, the Investigating Officer seized the GD entry being Sl.No.010105 – 010519 dated 28.04.2007 of police station Diglipur and serial no. 118973-118974 dated 28.04.2007 and postmortem report and seized under seizure list and proved as Ext-9. 53. General Diary of Police Station Diglipur and Mayabunder were also seized and adduced in evidence as Ext-15 with objection by the defence. The original G.D No.118973- 118974 dated 28.04.2007 of Police Station Mayabunder were adduced as evidence as Ext-16 with objection raised on behalf of the defence. After completion of investigation, in consultation with his superior, the Investigating Officer submitted the charge sheet No.95-07 dated 11.06.2007 against the accused/appellant under section 302/201 of IPC keeping the pending CFSL report. During the trial, wearing apparels of the accused and that of the deceased as seized by him were marked as material Ext, I, II, III respectively. The Investigating Officer also seized tooth and foot bone of the deceased which were taken out by Dr.Rajini Tiwari (PW-17) in presence of Executive Magistrate and two witnesses and a seizure list was prepared in presence of Executive Magistrate and two witnesses proved as Ext-17. The same were sent to the CFSL, Kolkata by special messenger. 54. On being transferred, PW-20 handed over the case diary to S.N.Singh for further investigation on 09.04.2008. PW-20 He was again posted as Station House Officer, Diglipur and then he took up further investigation of the case. The same were sent to the CFSL, Kolkata by special messenger. 54. On being transferred, PW-20 handed over the case diary to S.N.Singh for further investigation on 09.04.2008. PW-20 He was again posted as Station House Officer, Diglipur and then he took up further investigation of the case. During the course of investigation, Investigating Officer received CFSL report from Kolkata and submitted supplementary charge sheet against the said accused in connection with CS No.95/07 (A) dated 09.05.2007 proved as Ext -18 on formal proof being dispensed with. 55. According to the Investigating Officer, he has examined the witnesses including the witnesses viz PW-4, PW-6, PW-8, PW-9, PW-10 who have been declared hostile by the prosecution in the midst of their examination before the Trial Court. During the examination, Investigating Officer testified the fact of surrender by the accused appellant before Tehsildar, Mayabunder but he did not examine him. In our view, non-examination of the Tehsildar, would not be fatal to the prosecution case. He has testified the fact that he received information regarding surrendering of the said accused at Mayabunder. Such statement has not been impeached by the defence rather it gets corroboration of his evidence during examination in chief. 56. We are aware of the proposition laid down by the Hon’ble Supreme Court to the effect that in defective investigation, the only requirement is of extra caution by courts while evaluating evidence. It would not be just to acquit the accused solely as a result of defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved. Similarly, in Muniappan, Hon’ble Apex Court held: “The law on this issue is well settled that the defect in the investigation itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omission lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. If primacy is given to such designed or negligent investigations or to the omission lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to what such lapses affected the object of finding out the truth.” Finally in Sheo Shankar Singh it was held as follows: “Deficiencies in investigation by way of omissions and lapses on the part of investigating agency cannot in themselves justify a total rejection of the prosecution case”. (see AIR 2013 (2) SCC 146 . 57. Therefore, we are of the considered view that there may be certain lapses on the part of the Investigating Officer, but the totality of the evidence cannot be thrown out. Undoubtedly, the present case rest on the circumstantial evidence on the theory of last seen together and so also the recovery of the dead body of Rita Ojha under the culvert at Agricultural water gate at Shivpur on the disclosure statement of the accused/appellant, Ext-6 which was so made in presence of Tarun Roy and Sukanto Hazra. The said Tarun Kumar Roy, Pradhan of the Village Panchayat has not been examined by the prosecution in the trial. However, the disclosure statement so made to the Investigating Officer by the accused while under police custody can be considered in the evidence under the provisions of Section 27 of the Evidence Act. Panchanama being the recovery report Ext-14 of the dead body, it is evident that the said witnesses were present. 58. It would appear from the order sheets of GR case No.403/07 in connection with FIR No.103/07 that on 29.04.2007, the said FIR dated 28.04.2007 under section 302 IPC of PS Digipur against the accused /appellant along with arrest report, custody memo, inspection memo, copy of panchama, Superthaginama, Ekkararnamm and copy of surrender were received by the Judicial Magistrate First Class, Mayabunder. The Magistrate recorded in his order sheet that the accused Swapan Kumar Mazumdar was brought under arrest by S.I. J.S.Yadav, S.H.O, Police Station Diglpur and the accused was remanded to judicial custody. 59. A judicial order is undoubtedly a public document and judicially noticeable. Nothing more is required to prove, whether the report of surrender by the accused before the Tehsildar is produced before the Sessions Court or not and it becomes immaterial, whereas the order sheet clearly goes to show that within a reasonable time gap, the accused was produced before the Judicial Magistrate at Mayabunder. Therefore, we are unable to agree with the arguments of Mr.Rao, appearing for the accused/appellant that there is a delink and/or missing link in the evidence of the prosecution as regards surrender of the accused before the Tehsildar of Mayabunder. 60. Mr. Rao, further points out that as per the evidence of Dr.Rajini Tiwari (PW-17), the foetus was extracted from the uterus of the deceased and handed over to the police in a sealed test tube for DNA analysis but no DNA analysis was conducted by the police during the investigation. We do not agree with such submission because it is not for the Investigating Officer to analyse the DNA as DNA profiling is conducted by a Scientific Expert. We find from the evidence on record that PW-17, Dr.Rajini Tiwari, a Autopsy Surgeon examined the said accused on 28.04.2007 and found two linear abrasions on the lateral side of lower leg. The Autopsy Surgeon held postmortem examination on the dead body of the deceased and proved postmortem report Ext.11, who, on examination, found the following injuries. (1) Semi circular bruises on the next two on the right side under lower jaw and multiple on the left side under the lower jaw. (2) Cresentic nail marks present on the right side of the neck. (3) Bruises brown parchment like. (4) There was clay presnt on the face, hand and foot. (5) Eyes ball were bulging and hemorrhage in conjunctive. (6) Tongue bitten. 61. According to Autopsy Surgeon, internal injury was observed i.e. there were bruises in the deep layer of skin subcutaneous tissue in the neck muscle. Pleura right and left were congested, petichical hemorrhage present. Thyroid cartilage intact but bruised. Carotid Arteries bruised and damaged on the right side of the neck. Cricoid cartilage persisted tear plus. (6) Tongue bitten. 61. According to Autopsy Surgeon, internal injury was observed i.e. there were bruises in the deep layer of skin subcutaneous tissue in the neck muscle. Pleura right and left were congested, petichical hemorrhage present. Thyroid cartilage intact but bruised. Carotid Arteries bruised and damaged on the right side of the neck. Cricoid cartilage persisted tear plus. Thorex wall was congested, stomach contained digested food particles +, large intestine contained gaseous matter. Uterus size was about 32 inches. About eight month old female foetus extracted from the uterus of the deceased. In the opinion of the Autopsy Surgeon,PW-17, the cause of the death of Rita Ojha was due to partial asphysixa leading to cardiac arrest following throttling (manual strangulation), homicidal in nature. 62. As per Mod’s Medical Jurisprudence, strangulation means the compression of the neck by a force other than hanging. Manual strangulation is compressing with hand. There is no denial as to the cause of the death of the deceased Rita Ojha, having died a homicidal death. It would be evident from the fact on the postmortem report that Dr.Rajini Tiwari PW-17 found digested food particles in the stomach of the deceased. 63. Thus, it appears from the totality of the evidence adduced by the prosecution witnesses taken together with the medical evidence of PW-17 and the postmortem examination report, the prosecution has conclusively proved unerringly that the deceased died homicidal death. Foetus part extracted from the womb of the deceased by the PW-17 was handed over to the police in a sealed box for DNA analysis. It is evident from the CFSL Forensic Examination Report that Ext-18, Foetus – Ext-1, blood sample – Ext.2 in one sealed wooden box were forwarded by the Superintendent of Police , Andaman District to CFSL for examination. But, on examination, Junior Scientific Officer, CFSL, concluded that due to degraded DNA, genetic profile could not be developed from Ext-1 and desired comparison with other exhibits was not possible because no amplification could be observed during DNA extracted from Ext.1 despite repeated experiments. Therefore, it cannot be said that the Investigating Officer did not send the foetus to the CFSL for DNA profile. 64. Therefore, it cannot be said that the Investigating Officer did not send the foetus to the CFSL for DNA profile. 64. PW-16, S.I. Tamilarasan was a Reader to Deputy Superintendent of Police, North and Middle Andaman on 28.04.2007 on which day he had handed over the G.D.bearing Nos 010587 to 010591 and 118973 and 118974 to the Investigating Officer of the case as per the direction of the Dy.S.P., North Andaman which was seized under the seizure list and the Investigating Officer to which he is witness vide his signature Ext.9/1. This witness is a formal witness to the prosecution. 65. Learned counsel for the prosecution has argued with force that chain of circumstances pointing to the guilt of the accused are well proved. We are called upon to consider the following:- (i) Firstly, whether Nirmal Ojha, PW-1, father of the deceased came to the house of Narhari Mazumdar, father of the Swapan Kumar Mazumdar, the accused/appellant herein. (ii) Secondly, whether Swapan Kumar Mazumdar was present at that material point of time in his house. (iii) Thirdly, whether father of the deceased had left his daughter in the house of the appellant/accused at that night. (iv) Fourthly, Swapan Kumar Mazumdar along with the deceased had left the house of his father Narhari Mazumder at about 1 – 1.30 am on the yester night of 28.04.2007. (v) Lastly, whether there was recovery of dead body of deceased Rita Ojha leading to the disclosure statement of the accused/appellant. 66. PW-1 has deposed that he along with Rabi Roy, his brother-in-law, father-in-law of his sister namely Nithya Gopal Talukdar (PW-14) and his brother Amal Ojha went to the residence of Narhari Mazumdar at Shivpur at about 5.00 pm. Pradhan, Tarun Kumar Roy and Surpanch, Sukanto Hazra, Shivpur Gram Pancahyat were also present. A meeting took place and it was agreed that Rita was carrying child of Swapan Kumar Mazumdar. It was also resolved that on the next day on 28.04.2007, said Swapan Kumar Mazumdar and Rita Ojha would come to panchayat and would get married there. Then at about 12.00 at night, PW-1 went to the house of Tarun Kumar Roy, Pradhan and stayed in his house and in the morning of 28.04.2007, he went to the Narhari Mazumdar alone. Then at about 12.00 at night, PW-1 went to the house of Tarun Kumar Roy, Pradhan and stayed in his house and in the morning of 28.04.2007, he went to the Narhari Mazumdar alone. Other persons stayed in the house of Narhari Mazumdar and he came to know there that Swapan Kumar Mazumdar and his daughter Rita Ojha left the place at about 1-1.30 am. In all reasonable probability, it was Narhari from whom PW-1 came to know about the said fact, as no explanation has been offered by the accused during his examination under section 313 Cr.P.C. In cross-examination PW-1 has stated that on 27.4.2007 when he reached the home of Narhari Mazumdar, besides Narhari, his wife and sister were present. Although Narhari had died during trial, his widow and daughter could have appeared as defence witnesses. 67. PW-12 Dhiren Halder is the father of Sanjeeb Halder and Sanjay Halder. According to him, Sanjeeb was married to daughter of Nirmal Ojha PW-1 of Madhupur village. The marriage took place on 3rd dayof Falgun seven years ago. One months 15 days, after marriage, it became evident that wife of Sanjeeb was carrying. She was taken to medical and medical report revealed that she was pregnant for six months. Her uncle and her brother came and medical report was handed over to them. They asked them to take Sanjeeb’s wife. She went with them and four days thereafter, PW-12 heard that dead body of wife of Sanjeeb was taken to hospital and subsequently heard that Sanjeeb’s wife had illicit connection with said Swapan Kumar Mazumdar. No doubt, it may be hear-say on his part about her illicit connection as in natural course, it is not possible for him to have seen illicit connection of his son’s wife with said Swapan. However, he corroborates PW-1 to this extent that the defacto complainant was informed about the pregnancy of his daughter asking him to visit the place and to take his daughter to his own house as she was expectant mother for about six months. Medical report, if any, seized by the Investigating Officer and not adduced in evidence is not that fatal or a missing link in the evidence of the prosecution case. 68. Medical report, if any, seized by the Investigating Officer and not adduced in evidence is not that fatal or a missing link in the evidence of the prosecution case. 68. PW-6, although was declared hostile by the prosecution in the examination in chief, nevertheless, he stated on oath that one day brother-in-law of Rita Ojha came to him and told that Rita Ojha was vomiting and requested him to see Rita Ojha at their residence. PW-6 visited the matrimonial home of Rita and the said brother-in-law told him to take Rita back to her parental home. So he corroborated version of PW-1 to conclude that Rita Ojha was taken back from her matrimonial home to the house of the defacto complainant. 69. Mr. Khan, learned counsel for the prosecution submitted that P.W.12, father-in-law of the deceased with the evidence of P.W.1, P.W.4 and P.W.6 taken together clearly establish the fact that Rita Ojha was detected by her in-laws to be an expectant mother for six months. She was found vomiting and was confirmed by the medical report although the said medical report has not been adduced in evidence by the prosecution. But it is well established fact that when the post-mortem examination was conducted a foetus of eight months was found in the womb of the dead body of the deceased. 70. Inmates of the family of the deceased’s in-law informed the defacto complainant, his uncle and his brother, about the fact that Rita was pregnant for six months. 71. It is established fact on evidence that prosecution witnesses visited the house of P.W.12 and with them Rita came back to the house of P.W.1.Then it is also established on evidence that P.W.1 along with P.W.5, Shri Rabi Roy, maternal uncle of deceased Rita Ojha and P.W.14 Shri Nithya Gopal Talukdar and Bimal Ojha (not examined) along with Rita went to the house of Narhari Mazumdar at Shivpur. 72. During cross-examination P.W.5 in clear crystal term stated “we directly reached the residence of Narhari Mazumdar”. 72. During cross-examination P.W.5 in clear crystal term stated “we directly reached the residence of Narhari Mazumdar”. So evidence of P.W.5 has not been impeached by the defence and assumes a probative value inasmuch as such material particular goes uncontroverted with the conclusion that the prosecution witness had been to the house of Narhari Mazumdar to take up the matter along with the deceased to settle with regard to the fact that deceased was having illicit relationship with the accused Swapan, the son of Narhari Mazumdar of Shivpur. 73. We have discussed in the foregoing paragraph with regard to the evidence of hostile witness. We find from the admitted evidence of PW-4 Sukanto Hazra, having deposed as under:- “so the lady was sent back to her paternal home. The lady confessed to her father that she was pregnant by Swapan Mazumdar. So, the father requested to settle the matter. Then, I went to the residence of Swapan Mazumdar. I found there the Pradhan (though not examined) of Shivpur along with father, uncle of the lady were present………… …... Swapan Mazumdar was also present. I went to Swapan Mazumdar’s residence that lady was present.” 74. Thus the evidence of PW-4, corroborates the evidence of PW-5 in proof of a fact that Rita disclosed that she was pregnant by Swapan Mazumdar which the latter had accepted. This is at that juncture the theory of last seen together comes to play when she was found alive in the house of nobody but the appellant/accused himself. 75. It is well established on evidence that the PW-1 had left the house at about 12/12.30 at night on 27.04.2007 as the discussion between the parties took such a time and he had left with the Pradhan Tarun Roy to stay with him in his house. 76. Mr.Rao has already submitted that said Tarun has not been examined to corroborate the link in the evidence. We are of the view that non-examination of such a witness will not be sufficient to put the prosecution out of the court. 77. PW-14’s evidence also finds corroboration with the prosecution evidence with that of the PW-1 and PW-5 when he said that he stayed in the house of Narhari Mazumdar that night. The Pradhan had asked them to come on the next date as it was late night. 77. PW-14’s evidence also finds corroboration with the prosecution evidence with that of the PW-1 and PW-5 when he said that he stayed in the house of Narhari Mazumdar that night. The Pradhan had asked them to come on the next date as it was late night. He has stated on oath “we were questioning Swapan Mazumdar, Narhari Mazumdar and also Rita. We asked them as to what relationship between them. They said they love each other. Surpanch and Pradhan asked them whether they are willing to get married and they agreed. The Pradhan asked them to come on the next day as it was late night. I stayed at the house of Narhari Mazumdar that time. Nirmal Ojha left the place with Pradhan of Shivpur. At 1-1.30 hours at night Rita and Swapan left the house saying that they had some discussion to be made. In the morning they did not come back. We searched for them at some place when I came back”. Such is the clinching evidence supporting the case of the prosecution, corroborating PW-1 and PW-5 in general agreement that the said PW-14 seen the accused appellant and the deceased leaving at 1-1.30 hrs. at night. 78. We do not find the oral testimony of PW-14 having been shaken, uncontroverted or impeached in anyway. Thus, totality of the evidence instils confidence in our judicial mind in conclusiveness of the fact that the deceased Rita Oja alive was seen by PW-14 as last seen together with accused/appellant. 79. Learned counsel for the appellant further argued that there is no proof of disclosure statement by the accused appellant on proof by any independent witness. 80. We understand that Section 27 of Evidence Act lays down that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. 81. In support of his contention, Mr. Rao has referred to decision in Manthuri Laxmi Narashiah vs. State of Andhra Pradesh reported in (2011) 14 SCC 117 . It is the case wherein two accused had made an extra judicial confession to P.W.10 who had advised him to surrender him to custody. 81. In support of his contention, Mr. Rao has referred to decision in Manthuri Laxmi Narashiah vs. State of Andhra Pradesh reported in (2011) 14 SCC 117 . It is the case wherein two accused had made an extra judicial confession to P.W.10 who had advised him to surrender him to custody. The accuseds were accordingly arrested soon after extra judicial confession had been made and on the statement made by both of them, the weapon of offence i.e. axe etc. were recovered from P.W.12. The trial court relying on the aforesaid evidence convicted the two accuseds under section 302/34 of Indian Penal Code on perusal of the extra judicial confession as made to P.W.10. 82. In that set of fact the Hon’ble Apex Court was of the opinion that the recovery of the axe and other incriminating articles did not constitute a material chain as circumstantial evidence against the appellants. 83. It is now well settled that in a case relating to circumstantial evidence the chain of circumstantial evidence has to be spelt out by the prosecution and if even one link chain is broken, the accused must get the benefit thereof. 84. Adverting to the said decision Mr. Rao submitted that Panchnama in respect of recovery of dead body pursuant to the disclosure statement of the accused has not been proved by the prosecution as the independent witness, PW-4 has been declared hostile. 85. We are of the considered opinion that even excluding said witness PW-4, conduct of the Investigating Officer who is also signatory to the Panchanama and being the panch thereto, and simply because the he is a government servant, it does not follow that he would be a party to a false panchanama being made to foist a false case against the accused. 86. 86. In that view of the matter, we find that it is the I.O. who has testified the fact on evidence that the accused appellant was in Police custody when he made a disclosure statement which has been proved as Ext.6 and leading to the said disclosure statement, he was taken to place of occurrence i.e. agricultural water gate at culvert at Shivpur where on his own showing the dead body of Rita Ojha was recovered which fact has been well proved by the photographer, PW- 15 who was engaged for photography of the situs of the dead body lying underneath the culvert and the site of place of occurrence. Identity of the dead body is also not in question. Prosecution witness has testified the fact of recovery of the dead body and handing over the same to the PW-1 after the Postmortem examination. Therefore, conduct of the investigating officer in the investigation of the case cannot be doubted. Over and above, PW-4, a witness to panchnama on his own put his signature, although subsequently he was declared hostile, ergo, the chain in the link of evidence is well established. 87. Mr. Rao, counsel for the appellant also refers to a case of Shyamal Saha and another Vs. State of West Bengal reported in AIR 2014 SC 3701 in which case a missing link was found as the three witnesses who had allegedly seen the deceased and the accused crossing river made considerable unexplained additions in their testimony before the court. So, the substratum of prosecution was found doubtful. 88. The decision in our opinion is distinguishable from the facts and circumstances of the instant case. 89. Yet, learned counsel for the appellant referred to a case of Sangili alias Sanganathan vs. State of Tamil Nadu reported in AIR 2014 SC 3756 wherein at paragraph 23 the Hon’ble Apex Court observed thus – “23. In Mani v. State of Tamil Nadu, (2009) 17 SCC 273 : AIR 2008 SC 1021 in para 21),, this Court made following pertinent observation on this very aspect: “26. The discovery is a weak kind of evidence and cannot be wholly relied upon and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case....” 24. The discovery is a weak kind of evidence and cannot be wholly relied upon and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case....” 24. There is a reiteration of the same sentiment in Manthuri Laxmi Narsaiah v. State of Andhra Pradesh, (2011) 14 SCC 117 (AIR 2011 SC (Supp) 73 in para 2 (c) in the following manner: “6. It is by now well settled that in a case relating to circumstantial evidence the chain of circumstances has to be spelt out by the prosecution and if even one link in the chain is broken the accused must get the benefit thereof. We are of the opinion that the present is in fact a case of no evidence.” We fully agree with the proposition but unable to find it apposite to the facts and circumstances of this case as the ratio of decision is not well nigh within the fact situation of this case as PW-14 in unequivocal term has stated that he had stayed overnight in the house of the appellant and had seen the appellant/ accused leaving his house with the deceased at about 1-1.30 am in yester night of 28.04.2007.” 90. Learned counsel for the appellant also relied on a decision of Mani vs. State of Tamil Nadu reported in (2009) 17 SCC 273 wherein it has been observed thus: “26. The discovery is a weak kind of evidence and cannot be wholly relied upon and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case. We have already held that the prosecution has failed to prove that the house where alleged bloodstains were found belonged exclusively or was possessed exclusively by the appellant, we have further pointed out that the discovery was absolutely farcical. There is one other very relevant factor ignored by both the courts that the prosecution never made any attempts to prove that the clothes belonged to the appellants. There is literally no evidence to suggest anything to that effect. Therefore, even if we accept the discovery, it does not take us anywhere near the crime. Both the courts below have ignored this very important aspects. There is literally no evidence to suggest anything to that effect. Therefore, even if we accept the discovery, it does not take us anywhere near the crime. Both the courts below have ignored this very important aspects. Once these two important circumstances are disbelieved, there is nothing which would remain to support the prosecution theory.” 91. Although the defence has tried to make out a theory that the accused was not seen together with the deceased Rita Ojha but he has not given any explanation to the cause of death and kept himself mum during his examination under section 313 of Cr. P.C. 92. In the case of a decision reported in (2014) C Cr LR (SC) the Apex Court held thus: “The accused has a duty to furnish an explanation in his statement under section 313, Cr.P.C regarding any incriminating material that has been produced against him. If the accused has been given the freedom to remain silent during the investigation as well as before the court, then the accused may choose to maintain silence or even remain in complete denial when his statement under section 313, Cr.P.C is being recorded. However, in such an event, the court would be entitled to draw an inference, including such adverse inference against the accused as may be permissible in accordance with law.” 93. Therefore, the accused did not offer any explanation when and how he parted the company of the deceased. As such he has failed to discharge his burden cast upon him under section 106 of the Evidence Act. 94. We have found on evidence of PW-14 himself that he has corroborated the fact of having seen the accused going with the deceased Rita Ojha at about 1-1.30 a.m. in the yester night of 28.4.2007. 95. As regards theory of last seen together, the Hon’ble Apex Court in Bodh Raj @ Bodha and Ors. Vs. State of Jammu and Kashmir reported in AIR 2002 SC 3164 has observed that time gap between the accused and deceased seen last alive and the deceased found dead if small gap, the last seen theory comes into play. It has been observed that it would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. It has been observed that it would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. 96. In the instant case, the case was registered instantly on 28.4.2007. On the basis of which investigation ensued resulting in submission of charge-sheet which is also a pointer to the fact and the disclosure statement leading to the recovery of dead body on 28.4.2007 itself are pointer to the fact that there was a narrow gap between the time when the accused was seen together with the accused alive and the time when the deceased was found lying underneath the culvert at agricultural water gate in Shivpur. 97. Appraising the evidence on record, in our considered opinion, this is not a case of tell-tale story giving rise to any amount of suspicion against the accused/appellant. 98. We are not oblivious of the position of law that suspicion howsoever strong is not enough to justify the conviction of the appellant for murder of the deceased. But, we find in this case, that all aspects and all attending circumstances having been taken into consideration, unerringly points to the guilt of the accused in the crime of murder of the deceased Rita Ojha. 99. We have bestowed anxious and careful thoughts over all aspects of the matter and applying all standards of strict proof beyond all reasonable doubt as insisted in all criminal cases, we find no ground to interfere into the findings of the learned Trial Judge and we affirm the judgment. Hence, the appeal is dismissed. 100. If the accused appellant is on bail, he is directed to surrender before the Trial Court within ten days from the date hereof and to undergo sentence as awarded by the learned Sessions Judge. 101. Let the lower courts records together with the copy of this judgment be sent down to the trial court below forthwith for information and doing the needful. 102. Urgent certified copy of this order, if applied for be supplied to the parties upon compliance of all usual formalities. Nadira Patherya, J. : I agree.