JUDGMENT : Soumen Sen, J. Both the appeals are directed against the order of conviction of the appellants with the offence committed under Sections 302/201/120 B of the Indian Penal Code. 2. Initially the trial commenced with three accused persons, namely Sajida Khan, Silash Singh and C. Abdul Majeed. However, Abdul Majeed was acquitted of the charge framed in terms of the section 235 (1) of Cr. P.C. 3. Sajida Khan is the wife of the victim Feroz Khan. Silash Singh is claimed to be the paramour of Sajida Khan. Abdul Majeed is claimed to be Nana of Ferdeen Khan who is the son of Sajida and the victim Feroz. Sajida in her extra judicial confession appears to have referred to this person as papa. 4. The discovery of the decomposed body of Feroz Khan in a gunny bag by Satya Pal of Mithakhari on 16th February, 2011 led to the filling of FIR at PS Ograbraj initially against unknown persons for the offence under section 302 of the Indian Penal Code. Subsequently during investigation it was alleged that the accused persons caused the murder of Feroz Khan and dumped the body in the sea. During investigation the Investigation Officer recorded the statements of the witnesses and arrested the accused persons and also examined the accused persons and recorded their statements, performed inquest examination in the presence of the witnesses and took steps for post-mortem examination of the dead body and collected post-mortem examination report. After completion of all formalities charge sheet was filed. The Court framed charges against the accused persons under sections 302/201/120B of the IPC on the ground that on 5/6 February, 2011 at 12.30 hours the accused persons did commit murder by intentionally and knowingly causing the death of Feroz Khan of Namunaghar who happened to be the husband of co-accused Smti. Sajida Khan. Sajida Khan was having extra-marital relationships with others including the accused Silash Singh and Feroz Khan having come to know of such illicit relationship raised objections for which Sajida Khan and all other accused persons committed murder of Feroz Khan and placed his dead body in a gunny bag along with a heavy stone and then threw it in the sea water with a view to cause disappearance of the dead body. The said accused persons gave false information about the disappearance of Feroz Khan with an intention of screening themselves, namely Sajida Khan, Silash Singh and C Abdul Majeed. The prosecution produced 23 witnesses. 5. The defence side however did not produce either oral or documentary evidence nor examined any witness to disprove the case of the prosecution. 6. After completion of recording evidence of the witnesses of prosecution side the accused persons were examined under section 313 Cr. P.C in which they adopted the plea of innocence and stated that they would not examine any defence witnesses. 7. The Sessions Court considering the materials on record framed the following issues for consideration: "1. Whether the accused persons did commit murder by intentionally and knowingly causing the death of Mr. Feroz Khan of Namunaghar happens to be the husband of co-accused Smti Sajida Khan or not? 2. Whether the accused person Smt Sajida Khan had been maintain extra marital relationship with others including accused person Silash Singh and seeing all these victim Feroz Khan raised objection against such activities of his wife i.e. accused Sajida Khan and she committed murder of victim Feroz Khan and placed the dead body of victim in a gunny bag along with a heavy stone and then threw it in the sea water to disappear in the way that she wanted to vanish the dead body by throwing it away in the sea water tiding stone with the dead body and accordingly give false information in the way the victim Feroz Khan had been missing for no reason with the intention of screening them or not? 3. Whether the accused persons namely Smti. Sajida Khan, Silash Singh and C. Abdul Majeed on 16.02.2011 committed the offence of murder of Feroz Khan which is punishable either for death sentence or life imprisonment and then the accused persons committed certain activities in the matter of disappearing the evidence (dead body of the victim/deceased Feroz Khan) with intention of screening themselves from legal punishment or not?" 8. The learned counsel for the appellants have taken us through the entire gamut of evidence led by the prosecution to show that the case was not proved against the accused persons. The learned counsel argued that the entire case of the prosecution is based on circumstantial evidence. The evidence of child witness Ferdeen Khan PW 4, Kurban Ali PW 8, Dr. The learned counsel argued that the entire case of the prosecution is based on circumstantial evidence. The evidence of child witness Ferdeen Khan PW 4, Kurban Ali PW 8, Dr. Desabrata Chakraborti PW 7, Devan PW 9, Ravi PW 10 and the Investigating Officer Sahil Shamsuddin PW 23 have been extensively placed to show that there are glaring inconsistencies in the evidence of all of them. It is submitted that in order to rely upon the testimony of the child witness, it is incumbent upon the court to find out his age and competence to give evidence in the Court of law. 9. Mr. D. Illango learned counsel representing Silash Singh and Mr. Krishna Rao learned Counsel representing Sajida Khan have submitted that the charges framed against accused person cannot be relied upon as prosecution has not been able to fix the exact date of commission of offence. It is submitted that on the basis of a verbal complaint alleged to have been made by one Shri Satya Pal (PW-1), the police of PS Ograbraj had registered an FIR being No. 31 of 2011 dated 16.02.2011 under section 302 of the IPC against unknown persons. 10. The learned counsel has referred to evidence of Satya Pal PW 1 and submits that as per the complaint made by Satya Pal (PW -1) it is alleged that on 16.02.2011 in the morning he along with his labourers were cutting bushes at the Andaman Plantation and at the point of time in the sea shore they got foul smell and they saw that one dead body of a human being was floating in the sea shore. On seeing the same the PW -1 had informed the owner Shri Ganeshan (PW-17) and thereafter police came to the spot and recorded the statement of PW-1. 11. It is submitted that the statement of Satya Pal PW-1 in his evidence cannot be relied upon as he has stated that he has not seen the dead body and he also admitted that he cannot say the contents of the complaint letter. It is submitted that as per the statement of PW-1 Satya Pal, he is the person who has first seen the dead body near the sea shore and thereafter he has informed the same to the owner of the plantation Mr. It is submitted that as per the statement of PW-1 Satya Pal, he is the person who has first seen the dead body near the sea shore and thereafter he has informed the same to the owner of the plantation Mr. Ganeshan PW-17 and thereafter the police came to the spot and recorded the statement of PW-1 on the basis of which the FIR has been lodged by the Police of PS Ograbraj. 12. During the cross examination he has stated that he cannot say about the contents of the exhibit-X and he has also stated that Police asked him to depose and he is deposing as police stated. He has further stated that he did not see any dead body on that day. 13. The police has initiated the case on the basis of the statement of PW-1 but the PW-1 has not supported the case of the prosecution and as such the FIR initiated by the police has not been proved by the prosecution and thus the learned Judge has wrongly convicted the appellants in the instant case. 14. The statement of PW 1 who is the complainant cannot be relied upon as he has stated that he has not seen the dead body on that day and he has also admitted that he cannot verify the contents of the complain letter. 15. After registration of the FIR the police has started investigation and after completion of the investigation the police of PS Ograbraj has submitted charge-sheet being charge-sheet No. 75 of 2011 dated 18.05.2011 under section 302/201/120 (B)/34 of the IPC against Sajida Khan, C Abdul Majeed and Silash Singh. 16. The prosecution in the charge form has mentioned the accused person has committed an offence under Section 354 of the Indian Penal Code which is absolutely false. Section 354 of the Indian Penal Code pertains to outraging the modesty of a woman. 17. The learned Court has framed the first charge against the appellant for the offence under Section 302/120 B IPC and also under Section 354 of the IPC but there is no allegation either in the FIR or in the charge-sheet for the alleged offence under section 354 of the IPC and as such the charge framed against the appellant is defective and thus the trial is liable to be vitiated. 18. 18. The learned Judge while framing the charge has specified the date of the alleged occurrence on or about 5/6 February, 2011 but the said date is neither mentioned in the FIR nor in the charge sheet and as such the charge framed by the learned Judge against the appellant is defective one and thus the trial is vitiated. It is further submitted that neither on 05.02.2011 nor on 06.02.2011 any incident of murder had taken place and as such the charge framed against the appellant is not sustained under the law. 19. The learned counsel have made an attempt to discredit the witnesses of the prosecution to show that the said witnesses are most unreliable and have been tutored. 20. The statement of PW 2 indicates that in the FIR, the GD entry number has not been mentioned. It reflects that the FIR has been an afterthought. FIR indicates that the FIR was chalked out on 16.02.2011 whereas the same has been dispatched on 18.02.2011 from the Police Station to the Court, there is no indication given by the Investigation Officer as to why there was as delay in dispatching the FIR though the said days were working days. 21. Both the counsel have submitted that the accused persons have been falsely implicated as the PW 9has stated that at about 9.00 a.m. Police brought Silash Singh and Sajida Khan at Police Station. PW 23 has stated that the accused person Silash Singh was detained after preparation of seizure memo marked as Exhibit 14. Exhibit 14 was prepared at 0450 hours on 17.02.2011. PW 9 has stated that he has already seen the accused person at 9.30 a.m. in the police station on 17.02.2011.This shows that the statements were recorded prior to 10.30 a.m. for both the accused whereas statement recorded under Section 27 indicates that the statement of Sajida Khan was recorded at 02.45 p.m. and statement of Silash Singh was recorded at 1845 hours on 17.02.2011. This shows that the statement under Section 27 of Indian Evidence Act is false and concocted. There was gap of seven hours in between recording the statement of two accused persons. 22. This shows that the statement under Section 27 of Indian Evidence Act is false and concocted. There was gap of seven hours in between recording the statement of two accused persons. 22. With regard to the recovery of the incriminating materials it is submitted that PW 9 has stated that the statement of both the witnesses were recorded in between 9.30 a.m. and 10.30 a.m. and thereafter he had left for his house whereas the statement recorded under Section 27 indicates that the statement of Sajida Khan was recorded at 1445 hours and statement of Silash Singh was recorded at 1845 hours and during this period PW 9 was not in Police Station. During the cross examination PW 9 stated that statement of both the accused persons were recorded between 9.30 a.m. and 10.30 a.m. and thereafter he left the police station at about 10.30 a.m. along with Ravi for their house and thereafter police called them again at about 3/3.30 p.m. at jetty and they stayed therefor about half an hour. Police seized concrete 150 mtrs. away from the dead body. In the house of the lady accused police entered the room and PW 9 and PW 10 were stayed just outside the room. 23. It is submitted that as per Exhibit 8 the alleged statement was recorded at about 14.45 hours on 17.02.2011 and alleged seizure was made at about 16.00 hours, and as such the evidence of PW -8 and PW -9 cannot be relied upon. 24. Similarly as per Exhibit 9 and 10 the alleged materials were seized from the spot in an open place and there is no signature from whom the same was seized and there is no signature of the appellant and thus it cannot be said that the same was seized in presence of the appellant. During the cross examination of the PW -10, the said witness has stated that police did not record his statement and the PW-10 further admitted that he put the signature on seizure list in the PS. 25. The child of the victim, Ferdeen Khan, was one of the prosecution witnesses. 26. The counsel for the accused persons have questioned the credibility and admissibility of the evidence of the child witness. Mr. 25. The child of the victim, Ferdeen Khan, was one of the prosecution witnesses. 26. The counsel for the accused persons have questioned the credibility and admissibility of the evidence of the child witness. Mr. Illango submitted that Section 3 of the Indian Evidence Act indicates that testimony of child witness can only be relied upon when there is an order passed by the Trial Court with regard to its satisfaction with regard to the capacity of the child witnesses to depose. The satisfaction order had not been reflected in the deposition. 27. Child witness PW 4 has not identified the accused Silash Singh and he has stated that he was not present in Court. Child witness PW 4 has stated that he know Kurid but he is not present in the Court. Child witnesses PW 4 has stated that he was tutored by his Phuphu to say that Kurid, Mummy and Nana killed my Papa. The learned Counsel has referred to the deposition of PW 4 and submitted that the prosecution alleged that PW 4 is minor and child witness and is alleged to be the eye witness. The learned Sessions Judge before recording the evidence of PW-4 is required to test the competency of the child witness by putting some questions to the said witness which the learned judge did but the witness failed to give proper answer to the questions put to the said witness. The observation of learned Judge before recording the evidence of PW-4 has been placed before us which reads: "After above examination it appears that the witness can say something and it may be recorded." It is submitted that the learned Judge has not satisfied himself about the competence of the child witness to give evidence which is a sine quo non. 28. The relevant evidence of PW 4 in chief as recorded by the Trial Court relied upon is reproduced below: "Mummy log mera papa ko mar diya, at this stage the witness identifies the lady accused and says this is my chachi, she also assaulted me at that time mummy, kurid and nana were present." 29. 28. The relevant evidence of PW 4 in chief as recorded by the Trial Court relied upon is reproduced below: "Mummy log mera papa ko mar diya, at this stage the witness identifies the lady accused and says this is my chachi, she also assaulted me at that time mummy, kurid and nana were present." 29. It is submitted that from the evidence of PW 4 it is clear that he had come to Court with his puppu and although he said that the lady present in Court is his mother but while identifying the lady accused he said 'this is my Chachi', she also assaulted him and at that time Mummy, Kurid and Nana were present. He however, could not say why he had come to Court on earlier occasion. He also said during cross-examination that he was tutored to say that Kurid, Mummy and Nana killed his father. 30. The PW-4 during his cross examination has stated that "I was tutored to say that Kurid, Mummy and Nana killed my papa." 31. Both Mr. Illango & Mr. Rao by relying to above evidence has submitted that from the evidence of PW-4 it is established that the PW-4 has made statement before the court after being tutored. 32. Mr. Rao has submitted that Silash Singh has never made any extra judicial confession. The statement of co-accused cannot be relied upon to convict Silash Singh. PW 8 has failed to give any report to the police officer immediately after receiving the information with regard to the murder though as per his statement he has received the information one day prior to the date of reporting before the officer. The statement of PW 8 under Section 164 was recorded on 29th March 2011 after a gap of more than 45 days. There is no reason given for such delay in recording the statement of this witness by the police officer. 33. Mr. The statement of PW 8 under Section 164 was recorded on 29th March 2011 after a gap of more than 45 days. There is no reason given for such delay in recording the statement of this witness by the police officer. 33. Mr. Rao submits that as per the statement of Kurban Ali PW- 8 he has stated that on his frequent asking Sajida disclosed before him that she alongwith Majeed and Silash Singh committed murder of Firoz Khan and had thrown the body in the water near Mithakhari jetty and on the next day at about 5.00 a.m. he went to police station Ograbraj by walking and narrated the matter to the SHO and thereafter at 09/10 a.m. police brought Silash Singh and Sajida at police station. But as per the evidence of the Investigation Officer PW-23, SHO, PS Ograbraj he has handed over the dead body to one Habib Khan, PW-12 at 8.00 a.m. at G.B.Pant Hospital in presence of PW-5 and 6 and thereafter they went to Namunaghar accused Silash Singh and thereafter they went to the house of the appellant and brought both the accused to the police station and thereafter one person Kurban Ali came to Police Station. 34. There are inconsistencies and contradictions in the evidence of PW-8 Kurban Ali and PW 23 the Investigating Officer regarding the arrival of the PW-8 at the Police Station and bringing the appellant and the accused Silash Singh at the PS. Thus the evidence of PW-8 cannot be relied upon. 35. The PW-8 has stated that on 16.02.2011 at 5.00 p.m. the appellant had informed about the alleged incident to the PW-8 but the PW-8 has not narrated the same to any of the relatives or the villages though the villagers had the knowledge about the recovery of the dead body at Mithakhari jetty at about 10.00 a.m. and as such the statement of PW-8 cannot be relied upon. 36. In respect to the Post Mortem examination report and CSFL report it was submitted that PW 7 has clearly admitted that the post mortem report what he has prepared was absolutely incorrect. If the report is incorrect then the conclusion cannot be relied upon as to the nature of the injury whether the injuries are homicidal or accidental. 36. In respect to the Post Mortem examination report and CSFL report it was submitted that PW 7 has clearly admitted that the post mortem report what he has prepared was absolutely incorrect. If the report is incorrect then the conclusion cannot be relied upon as to the nature of the injury whether the injuries are homicidal or accidental. The seizures cannot be accepted regarding sack as the sack was never produced before the Court or identified by any of the witnesses. 37. Mr. Rao has submitted that the statement of PW 11 indicates that he has not seen the accused person prior to 09.02.2011 and no test identification parade was conducted by the investigation officer. The identification of the decomposed body as that of Feroz has also been questioned by the learned counsel for the accused persons. It is submitted that PW 12 was never confronted with the photograph and tabiz to identify the same before the Court. Statement of PW 14 cannot be relied upon because as per him the incident has been taken place on 22.02.2011 whereas the FIR was chalked out on 17.02.2011. Exhibit 28 cannot be relied upon as Habib khan was never stated that photographs were seized from him. It is submitted that the last seen theory cannot be relied upon in the instant case as nobody has stated that they have seen the victim in the company of the accused persons at any point of time at Mithakhari jetty. 38. Mr. Rao has submitted that unless every link in the chain of circumstance necessary to establish guilt of accused is established by the prosecution beyond reasonable doubt and the prosecution is able to establish that the circumstances necessary to establish the guilt of the accused is consistent only with guilt of accused, conviction on the basis of circumstantial evidence cannot be made, however, strong may be the suspicion. Strong suspicion itself is not sufficient to lead to conclusion that guilt of accused is established beyond reasonable doubt. 39. Mr. Rao has relied upon the decision of Hon'ble Supreme Court in the case of Ganpat Singh v. The State of Madhya Pradesh reported at AIR 2017 SC 4839 paragraphs 10 to 13 where the Hon'ble Supreme Court has discussed the last seen theory. It is submitted that the case of the prosecution is full of unexplained contradictions. 39. Mr. Rao has relied upon the decision of Hon'ble Supreme Court in the case of Ganpat Singh v. The State of Madhya Pradesh reported at AIR 2017 SC 4839 paragraphs 10 to 13 where the Hon'ble Supreme Court has discussed the last seen theory. It is submitted that the case of the prosecution is full of unexplained contradictions. The prosecution is unable to say the exact time and place of occurrence of the death and there is no cogent evidence to show that the accused and deceased were seen together. The learned counsel submits that according to the prosecution the date of occurrence is 5/6 February, 2011 whereas the witnesses have said that dead body was found on 16th February, 2011. There is no evidence to show that the accused and the deceased were seen together on 5/6 February, 2011. Different witnesses have stated different things with regard to the accused being seen with the victim. In fact none of the witnesses have seen the victim with the accused. It is submitted that the law is well settled that in the absence of any positive evidence to conclude that the accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt. Mr. Rao has referred to a decision of Hon'ble Supreme Court in the case of Sahadevan and another v. State of Tamil Nadu reported in AIR 2012 SC 2435 for the proposition that in case of circumstantial evidence the onus lies upon prosecution to prove the complete chain of events which shall undoubtedly point towards the guilt of the accused. In case of circumstantial evidence where the prosecution relied upon extra judicial confession the Court is required to examine the same with a greater degree of care and caution as it is a certain principle of criminal jurisprudence that extra judicial confession is a weak piece of evidence. It is submitted that in the present case the recoveries were alleged to have been made upon the statement of the accused under Section 27 of the Evidence Act when admittedly the accused was in police custody. The presence of the independent witnesses during recovery is in doubt and such recoveries have not been made in accordance with law and accordingly they are not admissible in evidence. The presence of the independent witnesses during recovery is in doubt and such recoveries have not been made in accordance with law and accordingly they are not admissible in evidence. Moreover, the prosecution has not been able to establish even the time and date of death of the deceased. According to the prosecution the deceased was murdered on 5/6th February, 2011 at about 12.30 hours, but according to the post mortem report exhibit 4, the death was due to homicide (murder) which took place between 10th and 11th February, 2011. The decision in Mustakeem @ Sirtajudeen v. State of Rajasthan reported in AIR 2011 SC 2769 has been cited to impress upon this Court that in absence of any eye witness and in a case based on circumstantial evidence, recovery of weapon of offence on the basis of disclosure statement of accused would not automatically lead to the conclusion that the offence was also committed by the accused. If recovery memos are prepared at the Police Station itself the same would lose its sanctity. Mr. Rao has referred to Bhagwan Singh and other v. State of MP reported in AIR 2003 SC 1088 and submitted that in absence of a test identification parade the conviction solely based on the testimony of the child is unsustainable. Mere identification of the accused by the child in the court cannot be accepted in certainty as a reliable identification. The decision of the Hon'ble Supreme Court in Arbind Singh v. State of Bihar reported at AIR 1994 SC 1068 , Chhagan Dame v. State of Gujarat reported at AIR 1994 SC 454 and State of Bihar v. Kapil Singh reported at AIR 1969 SC 53 are relied upon for the proposition that when traces of tutoring a child witness is visible from the statements made by him, a conviction under Section 201 of the IPC for destruction and disappearance of evidence could not be based on such evidence. It is submitted that the aforesaid decisions would show that it is unsafe to base conviction solely on uncorroborated testimony of child witness and failure of accused to give reasonable explanation is not always fatal. The prosecution has to prove its case beyond reasonable doubt. 40. The learned counsel for the appellants have accordingly prayed for setting aside of the order of conviction. 41. Mr. The prosecution has to prove its case beyond reasonable doubt. 40. The learned counsel for the appellants have accordingly prayed for setting aside of the order of conviction. 41. Mr. Ananda Halder, learned Counsel appearing on behalf of the State submits that the prosecution was able to connect the accused with the commission of the offence. The witnesses of the prosecution have been able to establish that Firoz was murdered by Sajida and Silash. Mr. Halder submits that P.W.1 has deposed that on 16th February, 2011 the dead body of Feroz Khan was found in decomposed condition near Mithakhadi Jetty. P.W.2 M. Loknathan has recorded the statement of Satyapal, P.W.1 and as per the direction of Station House Officer chalked out FIR No. 31 of 2011 under Section 302 IPC. P.W. 2 was the Head Constable. P.W.3 Ms. A. Khadija was the Pradhan of Mithakhadi Gram Panchayat. She has deposed that on 16th February, 2011 at about 11.30 a.m./12 noon she received information from village people regarding discovery of a human dead body at Mithakhadi jetty. On arrival she found the dead body in floating condition. She has also deposed that the police took out the decomposed dead body from water and prepared the inquest report in presence of Mr. Devan and Mr. A Ganeshan who had also signed the inquest report in her presence. She also put her signature as a witness. The said witness identified all the signatures appearing on the said inquest report. Fardin P.W.4 is the minor son of the accused Sajida Khan. He is the sole eye witness of the incident of murder and he has categorically stated that "Mummy log papa ko mar diya". Mr. Halder submits that this part of the evidence is admissible in view of the judgment of the Hon'ble Supreme Court in Panchhi & Others v. State of U.P. reported at AIR 1998 Supreme Court 2726 as this statement is corroborated by the other witnesses. Mr. Halder had relied upon Para 11 of the aforesaid decision where the evidentiary value of a child witness was discussed. P.W.5 Jagat Singh has deposed that on 16.2.2011 he was at Namunaghar with Habib Khan who is one of the witnesses. Mr. Halder had relied upon Para 11 of the aforesaid decision where the evidentiary value of a child witness was discussed. P.W.5 Jagat Singh has deposed that on 16.2.2011 he was at Namunaghar with Habib Khan who is one of the witnesses. He heard from Habib Khan, brother of deceased Firoz Khan that his brother was missing and a human dead body was found at Mithakhadi Jetty, after which both of them went to the Police Station. The photograph of the body was seen by both and seeing wearing apparels of the deceased namely tabij and underwear Habib told him that it is the body of his missing brother Firoz. On the next day he arrived at G.B. Pant Hospital along with the Pradhan of Namunaghar. The body was identified by Habib Khan as of his missing brother Firoz. After that police prepared a Memo. and handed over the dead body to Habib Khan. Jagat identified the dead body and is a witness to the handing over memo of the dead body. Thereafter the dead body was buried. P.W.7 Dr. Desabrata Chakraborty, Medical Officer has in his deposition stated that he conducted the post mortem examination of the dead body on 16th February, 2011. He found sharp cut injury on front of the chest more than 3 inches in length on the abdomen and he opined that the death was caused due to homicidal murder taking place in the night of 10/11 February, 2011 by a chopper or dah. P.W.8 Mr. Kurban Ali in his deposition has stated that the dead body of Firoz Khan was recovered on 16- 02-2011 in the morning and on that day at about 5.00 PM Sajida Khan came to Kurban Ali alongwith her son Fardeen Khan and all of them went to the house of Kurban Ali and Sajida Khan requested him to take care of her son and started weeping and on being asked she disclosed before Kurban Ali that she alongwith Silas Singh and Majeed committed murder of Firoz Khan and thrown his body in the water near Mithakhadi jetty. He is resident of Namunaghar, which is about 5 kms from Police Station, Ograbranj and as he do not have any vehicle and also not having the phone number of the police station, he went to the police station on next day morning about 5.00 AM by walking and narrated the entire incident to the Station House Officer. Thereafter Sajida Khan and Silas Singh were brought to the police station. On 25th March, 2011 he went to the house of Silas Singh and seized two Airtel Sim Cards and record of right and sketch map of landed property recorded in the name of Firoz Khan. On March 29, 2011 he gave statement before the Ld. Magistrate and he proved his statement recorded under Section 164 of Cr.PC. The incident narrated by Sajida Khan before Kurban Ali is not extra judicial confession as because this is not a statement under Section 25 of the Indian Evidence Act given before Police Officer. 42. P.W.9 Shri Devan who is also one of the witnesses to the inquest report dated 16th February, 2011 has stated that the statement under Section 27 of the Indian Evidence Act of the accused Sajida Khan and Silas Singh were taken in his presence on 17-02-2011 and in view of the said statement he was called at Mithakhadi jetty alongwith the accused and in his presences police seized blood stained concrete, paper plate, one banyan and he put his signature on seizure memos and he also proved the seized articles and his signature on label pasted on the wrapper of the seized articles. 43. Shri Ravi, PW10 who is also one of the witnesses to the inquest report dated 16th February, 2011 has stated in his evidence that the statements under Section 27 Indian Evidence Act of the accused Sajida Khan and Silas Singh were taken in his presence on 17-02-2011 and in the statements they confessed that they killed Firoz Khan by inflicting blows of dao and drawn him into the sea near Mithakhadi jetty after tying a big stone on his neck. In view of the said statement he was called at Mithakhadi jetty alongwith the accused and in his presences police seized blood stained concrete, paper plate etc and he put his signature on seizure memos and thereafter he went to the house of the lady accused and police seized the wearing apparels and other articles including dao from the house of Silas Singh and Sajida Khan under a seizure Memo and he proved his signature on the seizure memos and his signature on label pasted on the wrapper of the seized articles. 44. Habib Khan, the brother of deceased Feroz Khan is the PW- 12. He has stated that on 16th February, 2011 his brother was missing and he got information that the dead body of his brother Firoz Khan was found at Mithakhadi jetty and police had taken the dead body to G.B. Pant Hospital and he went to Police station Ograbranj and after seeing the photograph of the dead body identified that the dead body was of his brother. He received the dead body of his brother for last ceremony and at the burial ground the son of Sajida Khan namely Fardeen Khan disclosed that the accused persons killed the deceased. 45. A, Ganeshan PW-17 in his deposition has stated that he received information of discovery of the dead-body from Satyapal on 16th February, 2011 and he informed the matter to police station Ograbranj and he is one of the witnesses to the inquest. 46. PW-18 Tekespher Kerketta in his deposition has stated that he found some foul smell coming from the sea and he went there and found the dead body floating on the sea. 47. PW-20 Smti. Sajna Begum, the sister of Firoz in her deposition has stated that the minor son of Sajida Khan informed her that his mother, Silas Singh and Nana killed his father Firoz Khan with the help of a dao and the body was thrown into the sea after tying a stone on the neck. 48. Nizam, PW-21 is one of the relatives of Sajida Khan. 48. Nizam, PW-21 is one of the relatives of Sajida Khan. In his deposition he has stated that on 10th February, 2011 he went to the house of Sajida Khan to invite her for the marriage of his sister fixed on 13-02-2011 and while he was waiting there Sajida Khan, Majeed and a person (identified on dock) were returning home at about 1.30 a.m. and they were busy at that time and they did not respond to his call. He also gave statement before the Ld. Magistrate. 49. PW-23 Sahil Samsuddin, the Investigating Officer in his deposition has stated that at the relevant time he was the SHO of the concerned Police Station. He recorded the statement of Satyapal and then FIR was chalked out under his direction, seized the articles, held inquest over the dead body, recorded the statements of the witnesses under section 161 of Cr.P.C. recorded the statement of the accused under section 27 of the Indian Evidence Act and after completion of Investigation submitted case diary for submitting charge-sheet. 50. Mr. Kandaiah PW-6 in his deposition has stated that he is one of the witnesses to the handing over memo of the dead body of deceased Firoz Khan. 51. Madan Mondal PW-11 in his deposition has stated that he found Sajida Khan and Silas Singh and another male person on 9th February, 2011 at Wandoor Sea beach alongwith one child aged about 3 to 5 years and he identified both Sajida and Silash in the court. The other male person fled seeing the police. 52. PW-13 Utpal Roy in his deposition has stated that on 22nd February, 2011 police came to New Light House Restaurant and seized the cash memo register under a seizure memo in his presence and he identified his signature. 53. PW-14 M. Kumaran in his deposition has stated that on 22nd February, 2011 the Police seized bill book of ANIIDCO wine shop at Haddo under a seizure memo from him. He identified the accused on dock by face as well as identified the same person in the photograph shown to him by the police. 54. PW-15 Shri Vardharajan in his deposition stated that on 22nd February, 2011 when the police came to ANIIDCO wine shop one photograph was shown to him and he was asked whether any liquor was given to the person shown in the photograph or not. 54. PW-15 Shri Vardharajan in his deposition stated that on 22nd February, 2011 when the police came to ANIIDCO wine shop one photograph was shown to him and he was asked whether any liquor was given to the person shown in the photograph or not. PW-15 identified that person after seeing that photograph and he has also stated during his chief that the said person is present in Court. He identified the accused in Court. He is also a witness to the seizure memo of bill book. 55. PW-16 Shri V.R. Alagappan in his deposition has stated that on 22nd February, 2011 police came to Hotel Karpagam at Bhatubasi and showed him one photograph and asked him to identify. He identified that photograph as it was the photograph of one of his customers who came to the hotel 10-12 days before. The said person purchased some snacks items, disposable glasses and paper plates. The police seized one sample paper plate and disposable glass and prepared one seizure list in his presence duly signed by him. PW-16 identified the accused in Court. 56. PW-19 Sajid Kumar was the Head Constable of Police. In his deposition he has stated that on 09th February, 2011 he was on duty at Wandoor sea beach when he found the deceased along with the accused Sajida Khan. He knew Feroz Khan. Feroz Khan disclosed to her the lady to be his wife. PW-22 Sub-Inspector Bhoominathan in his deposition has stated that on 15th April, 2011 he was posted at Ograbraz Police Station as SHO. On that date he received the case diary from Sahil Samsuddin, PW-23 of Crime Case No. 21/2011 dated 16th February, 2011 under Section 302 IPC for further investigation. During investigation he examined three witnesses and recorded their statements under Section 161 Cr.PC. He took steps for recording the statements of two witnesses before the learned Magistrate under Section 164 Cr.PC. He had sent the seized alamats to CFSL, Kolkata and Hyderabad for medical examination. He had also collected the printed photographs which are 19 in number containing call details. He thereafter submitted the charge sheet. 57. Mr. Halder submits that Exts.1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 14, 29, 37, 38 and 39 read with the evidence of the witnesses would establish the commission of the crime by the accused. He had also collected the printed photographs which are 19 in number containing call details. He thereafter submitted the charge sheet. 57. Mr. Halder submits that Exts.1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 14, 29, 37, 38 and 39 read with the evidence of the witnesses would establish the commission of the crime by the accused. The recovery of dao from the residence of Sajida on 17.02.2011 being Ext.14 in presence of the accused, PW 9 and PW 10 and the recovery of seized Airtel Sim Card and record of right of landed property of Firoz from the house of Sailash Singh on 25th March, 2011 being Ext.5 in presence of the father of Sailash Singh and Devan, PW-9 clearly establishes and connects the accused persons with the crime. Mr. Halder has accordingly submitted that the appeal is required to be dismissed. The accused was put on trial. 58. The prosecution has based its case on eye witness as well as circumstantial evidence. 59. Whether conviction based on circumstantial evidence can be upheld and whether there was sufficient evidence to support the conviction are the questions to be answered in this appeal. 60. We have scanned the evidence quite carefully and minutely lest we may commit any mistake in forming our opinion against the accused persons being swayed by natural human emotions that the child would not tell a lie and accuse his mother of committing murder. We have already noted the evidence adduced by the parties while recording submissions made on behalf of the respective parties. We are now examining the quality of evidence, its admissibility and the evidentiary value of such evidence. The conviction is based on last seen evidence, evidence of child who is the sole eye witness, extra judicial confession, recovery of incriminating materials and motive. 61. The facts that have emerged on scrutiny of the plethora of evidence both oral and documentary are summarised below: 62. On the date of incident Sajida was the wife of Feroz. Silash and Sajida were in extra marital relationship. Feroz was the owner of about 2000 Sq. Mtrs of land. Silash insisted that Sajida to severs all relationship with Feroz and marry him. Silash was unhappy that in spite of his request Sajida maintained physical relationship with Feroz. On the date of incident Sajida was the wife of Feroz. Silash and Sajida were in extra marital relationship. Feroz was the owner of about 2000 Sq. Mtrs of land. Silash insisted that Sajida to severs all relationship with Feroz and marry him. Silash was unhappy that in spite of his request Sajida maintained physical relationship with Feroz. Sajida was apprehensive that in the event she does not maintain relationship with Feroz there is possibility that Feroz would remarry and in that event Sajida would not inherit the property. Sajida was not staying together with Feroz for some time and she was residing at her own residence along with her son. Sajida used to live separately from Feroz for six, seven months prior to his death. Feroz used to visit her place to meet his son, Ferdeen. The apprehension of Sajida that Feroz might remarry brought her back to Feroz, which had irked Silash. Majeed alleged to have advised Sajida not to carry on with both the relationships and advised Sajida to get rid of Feroz in order to grab the property. Silash, Sajida and Majeedhached the conspiracy to kill Feroz. Sajida, Silash and a child aged about 3 to 5 years along with another unidentified male person who alleged to have fled seeing the police were found at Wandoor sea beach on 9th February, 2011 by Madan Mohan PW11 and Sajit Kumar PW 19. One of the relatives of Sajida namely Nizam PW 21 went to the house of Sajida on 10th February 2011 to invite her for the marriage of his sister fixed on 13th February 2011. While he was waiting he saw Sajida, Majeed and Silash were returning home at about 1.30 a.m. and they were busy at that time and they did not respond to his call. Feroz was missing since then. Sajana Begum PW 20 is the sister of Feroz. In her evidence she has stated that on 16th February, 2011 she came to learn from his cousin Amar Khan that a dead body was found at Mitha Khari Jetty. Feroz was missing for the last five days. In spite of extensive search he could not be traced. On 17th February 2011 Habib informed her over phone that the body found in the Mitha Khari Jetty was that of Feroz. Feroz was missing for the last five days. In spite of extensive search he could not be traced. On 17th February 2011 Habib informed her over phone that the body found in the Mitha Khari Jetty was that of Feroz. Sajana identified the tabiz in the photo showed to her by Sahil Samsudin PW 23 when she identified the tabiz in the photo to be of his brother. The post mortem shows that Feroz was murdered on 10th/11th February, 2011. Habib PW 12 said that he was informed by one Ummer Khan that Feroz did not come for the lunch and dinner for last three, four days as he used to take food in his house and thereafter Habib received information that the body of his brother was found near Mithakhari jetty in decomposed condition. Kurban Ali PW 8 who is a childhood friend of Feroz has stated that on 16th February, 2011 Sajida along with her son arrived at his place. Sajida started weeping and confessed her crime. She requested Kurban to take care of the child. Kurban reported the matter to police on the following day i.e. on 17th February, 2011 at around 5 a.m. Police found the decomposed body of Feroz on 16th February, 2011 on information received form one Satya Pal. Inquest report was prepared on that day itself in presence of witnesses. Sajida and Silash were called to police station on 17th February, 2011 in the morning for interrogation following the statement made by Kurban to the concerned Police Officer on 17th February, 2011 at around 5 a.m. Both the accused persons were ultimately taken to custody on the same date in the afternoon. Sajida went to the jetty accompanied by Police Officer on 17th February, 2011 at around 1600 hours. Sajida indicated the blood stained concrete and police seized the blood stained concrete and controlled concrete in presence of Devan and Ravi, the two independent witnesses. A seizure list was duly prepared in presence of the independent witnesses and both Devan and Ravi have put their signatures on the said seizure list. Sajida indicated the blood stained concrete and police seized the blood stained concrete and controlled concrete in presence of Devan and Ravi, the two independent witnesses. A seizure list was duly prepared in presence of the independent witnesses and both Devan and Ravi have put their signatures on the said seizure list. Sajida claims to have made an extra judicial confession before the police authorities on 17th February, 2011 at 1445 hours disclosing information of the weapon of offence namely a dao that was used for the murder and wearing apparels of the accused persons at the time of the incident except her maxi and the shirt of Silash. The police accompanied by Devan and Ravi went to the house of Sajida and recovered amongst other things the weapon (dao) and the wearing apparels duly identified by Sajida. The seizure list was prepared in presence of Sajida and two other independent witnesses. The independent witnesses namely Devan PW 9 and Ravi PW 10 have put their signatures on the seizure lists. Subsequently on the basis of an extra judicial confession made by Silash on 17th February, 2011 at 1845 hours raid was conducted at his house on 25th March, 2011 in presence of Kurban Ali, Devan, Rafique and Amla Pandit the father of Silash and the police recovered amongst others a record of right and sketch map of the landed property recorded in the name of Feroz Khan. The seizure list was prepared in presence of Kurban Ali and Devan. 63. "Confession" is one of the species of genus "admission". Admission is the best piece of evidence so as direct evidence. 64. A confession made before a magistrate or in court is a judicial confession. The confessions made before anyone except magistrate or court are extra-judicial confessions, Sarkar on Evidence states: 'An extra-judicial confession may properly be made to any person or collection or body of persons. It is not even necessary that the statement should have been addressed to any definite individual...'. Further, an extra judicial confession is a weak form of evidence. 65. The confessions made before anyone except magistrate or court are extra-judicial confessions, Sarkar on Evidence states: 'An extra-judicial confession may properly be made to any person or collection or body of persons. It is not even necessary that the statement should have been addressed to any definite individual...'. Further, an extra judicial confession is a weak form of evidence. 65. The broad ground for not admitting confessions made to a police officer under inducement, threat or promise is the danger of admitting false confessions, but the necessity for the exclusion disappears in a case provided for by this section when the truth of confession is guaranteed by the discovery of facts in consequence of the information given. (see Bulaqi v. The Crown, ILR (1928) Lah 671, 675). The law in regard to extra-judicial confession as appears from the judicial pronouncements appear to be that extra-judicial confession if made voluntarily, can be relied upon by court along with other evidence in convicting the accused. Though it cannot be laid down as inflexible rule of law that in no case will an extrajudicial confession be the sole basis for conviction, in cases of homicide and such other similar grave offences it would not be safe to convict a person on the confession alone unless corroborated by other evidence. This is a rule of prudence rather than law. 66. Extra-judicial confessions are not usually considered with favour but that does not mean that such a confession coming from a person who has no reason to state falsely and circumstances tend to support his statement, should not be believed. 67. In a murder case, the extra judicial confession made by the accused to Police was believed and the accused were convicted under section 302 read with section 34, IPC. (State of Maharashtra v. Arjun Dattaram Bhekare reported in 2005 Cr.L.J. 472) 68. Corroboration of the extra-judicial confession in all cases as sine quo non is neither a just nor a reasonable proposition. If extra-judicial confession is found to be unbiased, untainted coming from the evidence of trustworthy and reliable witness who has stood the test of cross-examination against whom there is no remote suggestion or allegation of inimical terms, the same can be the basis for holding the accused guilty. (Jayeshkumar Parshottamdas Valand v. State of Gujarat reported in (1998) Cr.L.J. 4260 (Guj.) (DB)). 69. (Jayeshkumar Parshottamdas Valand v. State of Gujarat reported in (1998) Cr.L.J. 4260 (Guj.) (DB)). 69. In fact, extra-judicial confession is like any other evidence if proved under section 3 of the Evidence Act. If it is successfully proved by the prosecution that version stated by the witnesses was truthful and voluntary version of the accused referable to incriminating circumstances and his complicity, the same would form basis for conviction. It is not the quantity but quality which matters in evaluating the evidence of prosecution. 70. There is neither any rule of law nor of prudence that evidence furnished by extra-judicial confession cannot be relied upon unless corroborated by some other credible evidence. The courts have considered the evidence of extra-judicial confession a weak piece of evidence. If the evidence about extra-judicial confession comes from the mouth of witness/witnesses who appear to be unbiased not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, if it passes the test, the extra-judicial confession can be accepted and can be the basis of a conviction. It has further been observed that in such a situation to go in search of corroboration itself tends to cast a shadow of doubt over the evidence. If the evidence of extrajudicial confession is reliable, trustworthy and beyond reproach, the same can be relied upon and a conviction can be founded thereon. (State of Uttar Pradesh v. M.K. Anthony reported in AIR 1985 SC 48 : (1985) Cr. LJ 493 (SC)). 71. In the instant case extrajudicial confession was proved by independent witnesses namely PW 9 and PW 10. The evidence of the extra judicial confession was corroborated by PW 8. All the witnesses are independent witnesses who bear no animus against the accused. LJ 493 (SC)). 71. In the instant case extrajudicial confession was proved by independent witnesses namely PW 9 and PW 10. The evidence of the extra judicial confession was corroborated by PW 8. All the witnesses are independent witnesses who bear no animus against the accused. The statements made before the police by both the accused on 17th February, 2011 after arrest wherein both the accused are stated to have confessed murder be treated as an extra judicial confession and is acceptable when read with other evidence. A statement made by Sajida to Kurban Ali PW 8 is a voluntary statement and not an extra judicial confession under coercion or before any police authority. Kurban Ali has categorically said that Sajida came along with her son and confessed her guilt. She confessed that she along with Majeed and Silash had committed murder of Feroz and thrown his body in the sea water near Mithakhari jetty. She started behaving abnormally. Kurban called Silash to come and take her back home. Silash came by auto and took her from his house. He maintained his statement throughout his cross examination. The evidence of Kurban supports the evidence given by PW 4 and of the other witnesses who have seen the accused persons with the victim on or immediately before the day of commission of the crime. The discovery of a material object is of no relevance to the question whether the accused is guilty of the offence charged against him, unless it is connected with the offence. It is therefore the connection of the thing discovered which renders its discovery a relevant fact. The connection between the offence and the thing discovered may be established by evidence other than the statement leading to the discovery but that does not exclude proof of the connection by the statement itself. (see Puran Singh v. King Emperor (1946) 25 Pat 279). This condition is fulfilled in the instant case. 72. The condition necessary to bring section 27 of the Evidence Act into operation is that the discovery of fact in consequence of the information received from a person accused of an offence who is in the custody of a police officer must be deposed to, and so much of the information as relates to the fact thereby discovered may be proved. (See Queen-Empress v. Babulal, ILR 6 Cal 509). (See Queen-Empress v. Babulal, ILR 6 Cal 509). The object of section 27, to be provided as a proviso to sections 25 and 26 is to provide for the admission of evidence which but for the existence of this section could not in consequence of preceding sections, be admitted in evidence. (See State of Karnataka v. David Razario, AIR 2002 SC 3272 ). The basic idea embedded in this section is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that, if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-culpatory in nature but, if it results in discovery of a fact, it becomes a reliable information. (See State of Karnataka v. Davkd Razario, AIR 2002 SC 3272 ). The "theory of confession by subsequent facts" means the statements made in custody are admissible to the extent they can be proved by the subsequent discovery of facts. It is quite possible that the content of the custodial statement could directly lead to the subsequent discovery of relevant facts rather than their discovery through independent means. Hence, such statements could also be described as those which "furnish a link in the chain of evidence" needed for successful prosecution. (see Selvi v. State of Karnataka, 2010 (7) SCC 263 ). 73. Section 27 is to be pressed into service only to make admissible a statement to police, which is otherwise inadmissible leading to certain discovery relating to the offence. (See Arab Ali v. State of Tripura, 2008 Crl.L.J. 1212). Sir John Beaumont, in Polukuri Kottiaya v. R, AIR 1947 SC PC 67, overruling In Re: Athappa Goundan, AIR 1937 Mad 618 observed: The section seems to be based on the view that, if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence but clearly the extent of the information admissible must be depend on the exact nature of the fact discovered, to which such information is required to relate. That ban (imposed by the two preceding sections) was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban on the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. (See Ramkishan v. State, AIR 1955 SC 104 ). 74. Section 27 of the Evidence Act is brought into operation when if an accused produced some object said to be connected with the crime of which the informant is the accused. The discovery of "dao" in the instant case is the direct consequence of the information. It is not necessary that the accused personally should lead the police to point out the place where the incriminating article is found. It is sufficient if on the voluntary statement of the accused, the incriminating articles are found which constitutes legal discovery. 75. The information furnished by Sajida and the evidence of PW.8, PW.9, PW.10 and PW.23 if read together would show apart from the fact that the statement made by the accused persons were voluntary, the information given by Sajida has resulted in the discovery of the weapon (dao) from the resident of Sajida and the record of rights in respect of the land of Feroz from the house of Silash. The independent witnesses namely, PW.9 and PW.10 have proved the contents of the ikrarnama being Ext.5 and Ext.8. Section 27 provides that only so much of the information as relates distinctly to the fact thereby discovered may be proved. The other statements as recorded in the ikrarnama by itself cannot be treated as confession on the basis of which the Court can pronounce conviction. The Court, however, can always consider the evidence of the witnesses of the prosecution along with the extra-judicial confession to find out whether the said evidence compared with the extra-judicial confession lead to the commission of crime. The Court, however, can always consider the evidence of the witnesses of the prosecution along with the extra-judicial confession to find out whether the said evidence compared with the extra-judicial confession lead to the commission of crime. There cannot be any doubt that only after the accused persons were taken to custody on the basis of the statements recorded by the concerned police officer in presence of two independent witnesses raid was conducted at the house of Sajida and the incriminating articles were recovered from her residence namely, weapon (dao) and wearing apparels, T-shirt of Silash and maxie in presence of Sajida and two independent witnesses. 76. The defence has questioned the evidentiary value of the extra-judicial confession statement on the ground that the two independent witnesses left the police station on February 17, 2011 at around 10.30 a.m. when they found that the accused persons were interrogated by the police and they were made to sign some documents whereas it is claimed by the prosecution that only after the arrest of Sajida on that date at 1430 hours, her statement was recorded and thereafter incriminating articles were recovered. 77. Irrespective of the fact as to when the extra-judicial confession was recorded by the police authority, it is clear from the evidence that it is only on the basis of information supplied by Sajida the incriminating articles were recovered from her residence and residence of Silash in presence of independent witnesses. 78. There is other evidence on record which completes the chain of events. The conduct of accused, which has come before the Court by evidence, recovery of clothes, which was worn by him at the time of occurrence recovery of the weapon (dao) from the house of Sajida completes the chain of events and unerringly point out that it was the accused who committed the crime. Motive for committing a crime is something which is hidden in the mind of the accused and it has been held by the Supreme Court that it is an impossible task for the prosecution to prove what precisely impelled the murderer to kill a particular person. If motive is proved, that would supply a link in the chain of circumstantial evidence, but the absence thereof cannot be a ground to reject the prosecution case. When participation of accused is established by evidence of eye witness, absence of motive pales into insignificance. If motive is proved, that would supply a link in the chain of circumstantial evidence, but the absence thereof cannot be a ground to reject the prosecution case. When participation of accused is established by evidence of eye witness, absence of motive pales into insignificance. The motive behind the murder is to grab the valuable property of the victim as on his death Sajida would become the owner of the property. The record of rights and sketch map of the landed property recorded in the name of Feroz were recovered from the house of the other accused Silash. Both the accused were in extra marital relation and conspired to kill Feroz to grab the property. 79. The present is not a case of solitary evidence of last seen together, but sufficient evidence was led to complete the chain of events and link the appellants to the crime. 80. The Hon'ble Supreme Court on several occasions has considered the law regarding basing of conviction by the Court on circumstantial evidence. It is settled law that circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established. Circumstantial evidence as the expression suggests would mean existence of circumstances surrounding the incident are such that any reasonable person on examination, analysis and appreciation of such circumstances would immediately come to the conclusion that the incident in fact has taken place. The existence of circumstance and events surrounding the vertex of offence which is presumed to have happened and of which the appellants are the perpetrators are so strong that it lead to an irresistible conclusion that those circumstances in fact exist and lead to the commission of the offence. 81. The focal point is the offence and all circumstances surrounding the focal point, which we may call vertex pulls towards it by centripetal force all such surrounding facts and incidents leading to an irresistible conclusion of commission of offence. 82. In K.V. Chacko v. State of Kerala reported in 2001 (9) SCC 277 the principles of circumstantial evidence are stated in the following words: "5. The law regarding basing a conviction by the courts on circumstantial evidence is well settled. 82. In K.V. Chacko v. State of Kerala reported in 2001 (9) SCC 277 the principles of circumstantial evidence are stated in the following words: "5. The law regarding basing a conviction by the courts on circumstantial evidence is well settled. When a case rests upon the circumstantial evidence, such evidence must satisfy three tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." "15. Again in Trimukh Maroti Kirkan v. State of Maharashtra, following was laid down in para 12: "12. In the case in hand there is no eyewitness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence." 16. In State of U.P. v. Satish, this Court reiterated that there is no doubt that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence. Following was laid down in paras 14, 15 and 16: "14. In State of U.P. v. Satish, this Court reiterated that there is no doubt that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence. Following was laid down in paras 14, 15 and 16: "14. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touchstone of law relating to circumstantial evidence laid down by this Court as far back in 1952. 15. In Hanumant Govind Nargundkar v. State of M.P., it was observed thus: '10. ... It is well to remember that in case where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be 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. 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.' 16. A reference may be made to a later decision in Sharad Birdhi chand Sarda v. State of Maharashtra. Therein, while dealing with circumstantial evidence, it has been held that the onus is on the prosecution to prove that the chain is complete and the infirmity of lacuna in the prosecution cannot be cured by a false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence must be fully established. They are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence must be fully established. They are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused." 17. The circumstantial evidence in the present case has to be examined in the light of the law as laid down above." 83. In a criminal trial every witness is competent to depose unless the Court considers that he is prevented from understanding the question put to him, or from giving rational answer by reason of tender age or extreme old age or disease or because of his mental or physical condition. Therefore a Court has to form an opinion from the circumstances as to whether the witness is able to understand the duty to speaking the truth. Evidence of child witness is required to be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others would like him to depose. It is the duty of the Court to ascertain as to whether a child is able to discern between the right or wrong and it may be ascertained only by putting questions to him. PW 4 is an eye witness to the case. He is a child witness. The Magistrate has recorded the statement of the child witness under section 164 of the Cr.P.C. on 29 March 2011. The said statement was recorded in accordance with the procedure prescribed under Section 164 Cr. P.C. The statement as recorded shows that the child witness during his deposition was 4 years old. The child gave the statement on 29th March, 2011. The said statement was recorded in accordance with the procedure prescribed under Section 164 Cr. P.C. The statement as recorded shows that the child witness during his deposition was 4 years old. The child gave the statement on 29th March, 2011. The child has categorically stated that Ammi (mother) has killed his father and he doesn't know the present whereabouts of his mother. Before recording his statement the learned Magistrate put few questions to him to find out if he is speaking voluntarily and able to give rational answers. The learned Magistrate as well the Trial Court by putting questions to him satisfied itself that the child is able to discern between right and wrong. The child was quite emphatic when he was put a question by learned Magistrate as to whether he was speaking the truth or has been tutored. It appears that the self respect of the child and his sentiment were hurt by the said question, as he answered that why he should tell a lie when he has witnessed the entire incident. On specific question being put to him by the learned Magistrate that whether any one told him as to how his father died, the child said that he had seen the incident with his own eyes and he is not telling lie. He was going to school earlier and since now his father has been murdered he is not going to the school. On repeated questions being asked to the child that whether he is telling something false (jhut), the child has consistently said that he is speaking the truth as he has seen the incident of murder with his own eyes. The learned Magistrate has recorded that he being satisfied that the witness is able to give rational answers to the questions put to him and that he is speaking voluntarily, has proceeded to record his statement under section 164 Cr. P.C. The child in his statement as recorded by the learned Magistrate has stated that he and his father went to jetty when mummy (Sajida), Kurid (Silash) and Nana (C. Abdul Majeed) murdered his father with dao. His father was crying for help. Kurid (Silash) hit his father with dao from the back seeing the incident he started crying, Sajida and Silash slapped him. His father was crying for help. Kurid (Silash) hit his father with dao from the back seeing the incident he started crying, Sajida and Silash slapped him. He told both the accused that he would narrate the incident to his Aunt (puppu) and he has told the police as well as his Aunt about the said incident. During his evidence in Court he has categorically stated that he has come to Court to depose that "mummy log papa to maar diya" i.e. Sajida, Kurid and Majeed killed his father. This deposition was recorded on 2nd March 2012. This statement is consistent with the recording of the statement made under section 164 Cr. P.C. The learned counsel for the appellants would rely upon some discrepancies during cross-examination when the child witness appears to have faltered in identifying his mother Sajida and at the end of the cross-examination has stated that he was tutored to say that Kurid, Mummy and Nana killed his papa and hence it is unreliable to base the conviction on the sole testimony of the child witness. This is not acceptable when the evidence of the said child witness is read with the evidence of other witnesses which corroborates the commission of crime by the accused. The child has mentioned that Silash has used dao as a weapon to kill his father. The dao was recovered from the residence of Sajida. Sajida in her extra judicial confession which ultimately lead to the recovery of the weapon (dao) has referred to dao as the weapon by which Feroz was killed. 84. The issue regarding admissibility of evidence of a child witness is no more res integra. In the case of Rajkumar v. State of M.P. reported in 2014 (5) SCC 353 the Hon'ble Supreme Court held: "18. It is a settled legal proposition of law that every witness is competent to depose unless the court considers that he is prevented from understanding the question put to him, or from giving rational answers by reason of tender age or extreme old age or disease or because of his mental or physical condition. Therefore, a court has to form an opinion from the circumstances as to whether the witness is able to understand the duty of speaking the truth, and further in case of a child witness, the court has to ascertain that the witness might have not been tutored. Therefore, a court has to form an opinion from the circumstances as to whether the witness is able to understand the duty of speaking the truth, and further in case of a child witness, the court has to ascertain that the witness might have not been tutored. Thus, the evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him. The trial court must ascertain as to whether a child is able to discern between right or wrong and it may be ascertained only by putting the questions to him. 19. This Court in State of M.P. v. Ramesh, after considering a large number of its judgments came to the conclusion as under: "14. In view of the above, the law on the issue can be summarised to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition." 20. In view of the above, as the courts below have found the child witness worth reliance, we do not see any cogent reason to take a view contrary to the same." 24. In Prithipal Singh v. State of Punjab, this Court relying on its earlier judgment in State of W.B. v. Mir Mohammad Omar, held as under: "53. ... if fact is especially in the knowledge of any person, then burden of proving that fact is upon him. It is impossible for the prosecution to prove certain facts particularly within the knowledge of the accused. Section 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. ... if fact is especially in the knowledge of any person, then burden of proving that fact is upon him. It is impossible for the prosecution to prove certain facts particularly within the knowledge of the accused. Section 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which, it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused." 85. The evidence of the child in this case was spontaneous and with confidence. The deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the Court and there is no embellishment or improvement thereon, the Court may rely upon his evidence. (See State of M.P. v. Ramesh and another reported at 2011 (4) SCC 786 ). There are unimpeachable and eloquent materials on record which lent an unfailing assurance that PW 4 Ferdeen is a witness of truth and not a witness of imagination as most children of that age generally are. 86. There are clinching circumstances against the appellants and there was no missing link in the chain of circumstances demonstrated before the trial court. The ultimate conclusion is that the circumstances were incapable of being explained on any other reasonable hypothesis. In the case of Gagan Kanojia v. State of Punjab reported in 2006 (13) SCC 516 the Hon'ble Supreme Court held as under: "9. The prosecution case is based on circumstantial evidence. Indisputably, charges can be proved on the basis of the circumstantial evidence, when direct evidence is not available. It is well settled that in a case based on a circumstantial evidence, the prosecution must prove that within all human probabilities, the act must have been done by the accused. It is, however, necessary for the courts to remember that there is a long gap between "may be true" and "must be true". It is well settled that in a case based on a circumstantial evidence, the prosecution must prove that within all human probabilities, the act must have been done by the accused. It is, however, necessary for the courts to remember that there is a long gap between "may be true" and "must be true". Prosecution case is required to be covered by leading cogent, believable and credible evidence. Whereas the court must raise a presumption that the accused is innocent and in the event two views are possible, one indicating to the guilt of the accused and the other to his innocence, the defence available to the accused should be accepted, but at the same time, the court must not reject the evidence of the prosecution, proceeding on the basis that they are false, not trustworthy, unreliable and made on flimsy grounds or only on the basis of surmises and conjectures. The prosecution case, thus, must be judged in its entirety having regard to the totality of the circumstances. The approach of the court should be an integrated one and not truncated or isolated. The court should use the yardstick of probability and appreciate the intrinsic value of the evidence brought on record and analyse and assess the same objectively. 10. We would proceed on the well-known principles in regard to appreciation of the circumstantial evidence which were noticed by the High Court in the following terms: "(1) 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. (2) Circumstantial evidence can be reasonably made the basis of an accused person's conviction if it is of such character that it is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. (3) There should be no missing links but it is not that every one of the links must appear on the surface of the evidence, since some of these links may only be inferred from the proven facts. (4) On the availability of two inferences, the one in favour of the accused must be accepted. (3) There should be no missing links but it is not that every one of the links must appear on the surface of the evidence, since some of these links may only be inferred from the proven facts. (4) On the availability of two inferences, the one in favour of the accused must be accepted. (5) It cannot be said that prosecution must meet any and every hypothesis put forward by the accused however far-fetched and fanciful it might be. Nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is reasonable and not otherwise." 23. Extra-judicial confession, as is well known, can form the basis of a conviction. By way of abundant caution, however, the court may look for some corroboration. Extra-judicial confession cannot ipso facto be termed to be tainted. An extrajudicial confession, if made voluntarily and proved can be relied upon by the courts. 30. Recoveries of the said articles were made pursuant to the information given by Appellant 1. The information given by Appellant 1 led to discovery of some facts. Discovery of some facts on the information furnished by Appellant 1 is a relevant fact within the meaning of Section 27 of the Penal Code. It is, therefore, admissible in evidence and the same could have been taken into consideration as a corroborative piece of evidence to establish general trend of corroboration to the extra-judicial confession made by the appellants."(emphasis supplied) 87. Corroboration also could be both by direct or circumstantial evidence. In the case of Dattu Ramrao Sakhare v. State of Maharashtra reported in 1997 (5) SCC 341 the Hon'ble Supreme Court held as under: "5. The entire prosecution case rested upon the evidence of Sarubai (PW 2) a child witness aged about 10 years. It is, therefore, necessary to find out as to whether her evidence is corroborated from other evidence on record. A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated before a conviction can be allowed to stand but, however as a rule of prudence the court always finds it desirable to have the corroboration to such evidence from other dependable evidence on record. In the light of this well settled principle we may proceed to consider the evidence of Sarubai (PW 2)." 88. The learned counsel for the appellants have submitted that last seen theory may not be applicable in this case as the prosecution has failed to establish with cogent evidence that Feroz was last seen with the accused on the date of the alleged incident. It is submitted that while the FIR records the date of murder as 5/6 February, 2011 the dead body presumed to be that of Feroz was recovered on 16th February, 2011. The identification of the dead body as of Feroz has also not been established. 89. Last seen theory is circumstances which can be relied on, but it is well settled that only on the basis of last seen together conviction cannot be recorded. Further if there is a long time gap between the last seen together and the date of incident the evidence of last seen together loses much of its importance. 90. In Arjun Marik and others v. State of Bihar reported at 1994 (Suppl. 2) SCC 372 the Hon'ble Supreme Court observed that mere absence of proof of motive for commission of a crime cannot be a ground to presume the innocence of an accused if the involvement of the accused is otherwise established. 90. In Arjun Marik and others v. State of Bihar reported at 1994 (Suppl. 2) SCC 372 the Hon'ble Supreme Court observed that mere absence of proof of motive for commission of a crime cannot be a ground to presume the innocence of an accused if the involvement of the accused is otherwise established. But it has to be remembered that in incidents in which the only evidence available is circumstantial evidence then in that event the motive does assume importance if it is established from the evidence on record that the accused had a strong motive and also an opportunity to commit the crime and the established circumstances alongwith the explanation of the accused, if any, exclude the reasonable possibility of anyone else being the perpetrator of the crime then the chain of evidence may be considered to show that within all human probability the crime must have been committed by the accused. 91. In Keshav v. State of Maharashtra reported at 2007 (13) SCC 284 the Hon'ble Supreme Court held that in the case of circumstantial evidence conviction cannot be recorded only on the basis of motive. Further, the circumstance of last seen together becomes relevant only when death takes place shortly after the accused and the deceased were last seen together. 92. However, in the instant case from the evidence of PW 8, PW 4, PW 11 and PW 19 read with the evidence of PW 13 and PW 16 it is clear that the accused persons were seen with the victim. The prosecution has established the vital circumstances of last seen together. The summation of the evidence of the said witnesses corroborate the extra judicial confession made by both the accused persons as recorded under Section 27 of the Indian Evidence Act, 1872 which led to the recovery of incriminating materials. The aforesaid witnesses have deposed of seeing the deceased in the company of the appellants before the incident. In cases where the accused was last seen with the deceased victim (last seen together theory) just before the incident, it becomes the duty of the accused to explain the circumstance under which the death of the victim occurred. An accused has the duty to furnish an explanation in his statement under Section 313 Cr.P.C regarding any incriminating material that has been produced against him. An accused has the 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 an accused has been given freedom to remain silent during investigation as well as before Court, then an 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 Court would be entitled to draw an inference including such adverse inference against the accused as may be permissible in accordance with law (See Rajkumar v. State of M.P. reported at 2014 (5) SCC 353 ). The appellant in the instant case did not take any defence or furnish any explanation as to any of the incriminating materials placed before the Trial Court and accordingly the Trial Court was justified in drawing an adverse inference against the accused. The accused were required to offer some explanation to disprove the fact that they were not last seen together with the victim when the evidence of PW 4, PW 11 and PW 19. PW 21 has seen that Sajida, Silash and Majeed on 10th February 2011 returned home at about 1.30 a.m. 93. Sajida has stated that Feroz told her that his elder brother allotted him 2000 Sq.mtrs of land and now that he would get enough money out of sale of said land, Sajida may live with him at his house. Sajida shared this information with Silash and Majeed. Silash pressurised her to marry him and get divorced from Feroz. Silash knew Feroz. Sajida was apprehensive that in the event she did not meet Feroz and have physical relationship with him, Feroz might marry another lady and in that event she would not inherit the property. Out of greed she resumed cohabitation with Feroz to the dislike of Silash. On 9th February, 2011 she along with Feroz, Ferdeen their son and Majeed went to Wandoor from Port Blair by private bus and while wandering at that place few police persons saw them and inquired from them as to why they were roaming in a lonely place. Majeed got frightened and ran away. While returning from near Bazaar, Feroz got down at Nanunaghar and went to his house and Majeed along with her went to her house. Majeed got frightened and ran away. While returning from near Bazaar, Feroz got down at Nanunaghar and went to his house and Majeed along with her went to her house. She told Majeed that she is extremely unhappy with Feroz but could not get rid of him but could not do so as Ferozis owning a very valuable property of 2000 sq.mtrs. of land. Both of them went to the house of Silash Singh when Majeed advised her and Silash to murder Feroz. The plan was hatched at the place of Silash. Majeed explained the plan that the accused persons should invite Feroz to a lonely place on the pretext of having a party and then kill and hide his body. Following such plan Sajida, Majeed and Silash went to the house of Feroz and invited him for a party on 10th February, 2011 in the evening at Mithakhari Jetty. Feroz agreed to come as he knew that Silash would bring liquor for the party. On 10th February 2011 in the morning Ferozcome her house and took some money. Sajida told Feroz to reach Mithakhari Jetty. Sajida and Majeed met in front of New Light House Restaurant, Marina Park and ordered mixed fried rice and chicken lollypop in the restaurant. Thereafter both of them reached Haddo and from ANIIDCO brought 750 ml bottle of rum. Thereafter both of them reached Bhathu basti and near Arvind Hotel, Majeed bought disposable plates and glasses and thereafter both of them went to Namunaghar. At about 8 hours Silash, Sajida and her son carried the food items which Majeed had brought along with a sharp dao and sack and went to Mithakhari jetty. After reaching jetty they found Feroz. Thereafter the accused persons along with Feroz and Ferdeen sat and had Chicken lollypop. Feroz, Silash and Majeed consumed liquor. Feroz was made to consume liquor until he become fully intoxicated and senseless. While Feroz was lying at the jetty in a state of intoxication Silash and Sajida reached the jetty with intention to kill Feroz, but suddenly they noticed that Ferdeen was following them. Silash took out a rounded dao which was brought hiding in the sack and started to hit Feroz on his chest vigorously. Feroz's chest and stomach were cut severely. The edge of the jetty was fully stained with blood. Silash took out a rounded dao which was brought hiding in the sack and started to hit Feroz on his chest vigorously. Feroz's chest and stomach were cut severely. The edge of the jetty was fully stained with blood. Both the accused removed Feroz's pants and T-shirt and tied one sleeve around the neck of Feroz. Soon Feroz stopped breathing and died. Sajida threw Feroz's pants and shoes in the sea so that nobody could see them. Then Silash went with the sack near the jetty where stone was kept and then filled the sack with stone and brought near the body of Feroz. Silash tied the sack properly with the other sleeve of T-shirt which was tied around Feroz and both the accused thereafter then rolled the body and threw the body of Feroz into the sea. Ferdeen was watching the entire episode. After the incident both the accused got down from the jetty after cleaning the place properly and cleaned their clothes and dao with the sea water and then went to the house of Sajida. Sajida on reaching home burnt the shirt of Silash and her maxi and kept other clothes for washing. She washed Silash's and her son's clothes as also the dao nicely using surf so that it does not carry any stain in the event the accused persons are apprehended in future. Sajida accompanied the police and two independent witnesses namely Devan and Ravi to her house on 17th February 2011 at 1650 hours where from one of the articles seized was one rounded dao of which the length of handle measures 10 inch and length of blade 10-1/2 inch. 94. Sajida was arrested on 17th February 2011 at 14.45 hours. The custody memo dated 16th February, 2011 shows that Sajida was arrested on 16th February, 2011 at 1430 hours. Only that portion of the evidence 'namely the weapon of offence, a dao which was used to murder and the wearing apparels at the time of incident except my maxi and Silash's shirt' was marked as exhibit 8 and the signature of Devan in whose presence such statement was made and recorded was marked as exhibit 8/1. The rest of the statements being extra judicial confession was not exhibited. The rest of the statements being extra judicial confession was not exhibited. Similarly in respect of the ikrarnama recorded under Section 27 of the Indian Evidence Act, 1872 of Silash only the signature of Devan and Ravi who were alleged to have been present at the time of recording of such evidence were marked as Exhibit 7/1 and Exhibit 7/2. 95. Even if it is found that a child witness has been tutored and there can be sever ability of tutored apart from untutored part it is well settled that remaining part of the evidence which is untutored if inspires confidence can be believed or at least taken into consideration for the purpose of corroboration. (See Gagan Kanojia v. State of Punjab reported at 2016 (13) SCC 516). The two accused persons in custody were interrogated on the same date. Both of them were arrested on 17th February, 2011. Sajida was arrested on 17th February, 2011 at 1430 hours. Silash was also arrested on 17th February, 2011 at 1800 hours. Sajida made extra judicial confessional statement on that date i.e. 17th February, 2011 at 1445 hours. Silash also made extra judicial confession on 17th February 2011, at 1845 hours. They were interrogated separately and both of them appears to have furnished similar information leading to the discovery of fact which was reduced to writing. Both the statements if read one after the other point out to the commission of the offence and speak of the motive of the crime. Both the accused persons have stated that Ferdeen was present on 10th February, 2011 when Silash killed Feroz. The child witness has also independently stated that his father was murdered by Silash in his presence. He used the expression 'mummy log' which means Sajida and Silash. Silash has also made a statement as recorded under section 27 of the Indian Evidence Act that he killed Feroz with a dao and after reaching the house of Sajida he cleaned the dao nicely with surf and kept it in her house. Prior to the said statement Sajida in her extra judicial confession had admitted that Feroz was killed with a dao and she could show the place where Feroz was murdered by them and the weapon of offence. The police went to the house of Sajida along with Sajida, Devan and Ravi and recovered the dao along with wearing apparels. Prior to the said statement Sajida in her extra judicial confession had admitted that Feroz was killed with a dao and she could show the place where Feroz was murdered by them and the weapon of offence. The police went to the house of Sajida along with Sajida, Devan and Ravi and recovered the dao along with wearing apparels. Both the accused appear to have given similar information leading to the discovery of facts which was reduced to writing and such disclosure comes within the purview of Section 27 of the Indian Evidence Act. Information furnished was followed by pointing out the place where the incriminating materials can be found by both of them. It cannot be doubted that such evidence can be looked into and considered under Section 27 of the Indian Evidence Act. The police authorities never knew that the incriminating materials were hidden at the house of Sajida and Silash. The Police officer concerned as well as witnesses to the memorandum of statement recorded under Section 27 of Indian Evidence Act have been examined by the prosecution and are found to be reliable and trustworthy. Sajida accompanied police to the Mithakhari jetty. Devan and Ravi were present. Both the independent witnesses have stated that Sajida indicated blood stained concrete and police seized that blood stained concrete and controlled concrete in their presence and prepared a seizure list on which they put their signature. Thereafter police went to the house of Sajida along with Devan and Ravi wherefrom the police seized the wearing apparels and dao amongst other things and prepared seizure list duly signed by both of them. 96. It is settled law that evidence of police officials cannot be discarded merely on the ground that they belong to police force and are either interested in investigation or in the prosecution. However, it is a rule of prudence that as far as possible corroboration of their evidence on material particulars should be sought. A witness is normally considered to be independent unless he springs from sources which are likely to be tainted and this usually means that said witness has cause to bear such enmity against the accused so as to implicate him falsely. There is no absolute proposition in law that a policeman cannot be a witness or that his deposition cannot be relied upon if it inspires confidence. There is no absolute proposition in law that a policeman cannot be a witness or that his deposition cannot be relied upon if it inspires confidence. Minor discrepancies on trivial matters which do not affect the core of the prosecution case, should not be a ground for the Court to reject such evidence in its entirety. Irrelevant details which do not in any way corrode the credibility of a witness should be ignored. The Court is required to examine whether the evidence read as a whole appears to have a ring of truth. Not giving undue importance to omission, contradiction and discrepancies which do not go to the heart of the matter and shake the basic version of prosecution witness is the guideline to be followed for appreciation of evidence in a criminal trial. Evidence collected even by improper or illegal means is admissible under Sections 5 and 3 of the Evidence Act, 1872 if it is relevant and its genuineness stands proved [See Madhu v. State of Karnataka (2014) 12 SCC 419 ]. 97. In Ganpath Singh (supra), the Additional Sessions Judge found the appellant guilty on the basis of circumstantial evidence. The circumstances which weighed with the trial court were that, (i) the deceased was last seen in the company of the appellant; (ii) the deceased had taken with her the jewellery of PW1 and PW.2 which was recovered from the appellant; and (iii) the appellant had no explanation of how the articles were found in his possession. There was no eye witness to the crime. The Apex Court found that the case of the prosecution was riddled with unexplained contradictions. PW.1 and PW.2 were crucial to the case of the prosecution for establishing that the deceased had visited them and that they had lent her silver ornaments ostensibly because she intended to arrange the engagement of her son Rakesh. Neither PW.1 nor PW.2 were called upon to identify the jewellery alleged to have been recovered from the house of the appellant. The Apex Court also noticed a manifest error in the order of the High Court in arriving at the conclusion that the body of the deceased was recovered at the behest of the appellant since the record would indicate that the body of the deceased was recovered several months before the arrest of the appellant. The Apex Court also noticed a manifest error in the order of the High Court in arriving at the conclusion that the body of the deceased was recovered at the behest of the appellant since the record would indicate that the body of the deceased was recovered several months before the arrest of the appellant. On such considerations it was held that mere circumstance that the appellant was last seen with the deceased is an unsafe hypothesis to found a conviction on a charge of murder. 98. In Sahadevan (supra), the Hon'ble Apex Court has summarized the last seen theory in the following words:- "(i) The only circumstance of last seen will not complete the chain of circumstances to record a finding that it is consistent only with the hypothesis of guilt of the accused and, therefore, no conviction, on that basis alone, can be founded. (relied). (ii) Merely being last seen together is not enough ... what has to be established in a case of this nature is definite evidence to indicate that the deceased had been done to death of which the respondent is or must to aware as also proximate to the time of being last seen together (2004(1) Apex Criminal 22 relied). (iii) Principle of last seen 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 other than the accused being the author of the crime becomes possible (2005(1) Apex Crl. 437 relied.) (iv) Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty ... but this theory should be applied while taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen." (emphasis supplied) 99. It is stated that where the prosecution case is based entirely on circumstantial evidence, the evidence of last seen together may raise suspicion but it is not independently sufficient to lead to a finding of guilt. 100. It is stated that where the prosecution case is based entirely on circumstantial evidence, the evidence of last seen together may raise suspicion but it is not independently sufficient to lead to a finding of guilt. 100. In the instant case the post mortem report shows that the death was due to "homicide (murder) which took place possible between the night of 10th/11th February, 2011" by using an instrument like chopper or dah (Billhook). PW 7 is the medical officer who conducted the examination and prepared the post mortem report and has proved its content and identified his signature. This document was marked as Exhibit A. The evidence of PW 7 has remained unshaken. This evidence if read with the evidence of PW 4, PW 11, PW 19 and PW 12 establish and satisfy the requirement of last seen theory. 101. In the aforesaid matter three persons were acquitted as prosecution fails to prove its case beyond reasonable doubt. The Hon'ble Supreme Court on examination of facts and materials found the prosecution as a whole has not been able to prove its case beyond reasonable doubt. Moreover, the conviction based on extra-judicial confession is not acceptable since the person in whose presence confession was made was not examined. In paragraphs 38 and 39 of the report the Hon'ble Supreme Court in relation to recoveries made under section 27 of the Evidence Act made the following observations:- "38. In the present case, the recoveries have been effected upon the statement of the accused under section 27 of the Evidence Act. These recoveries, in our view, were made in furtherance to the statement of the accused who were in police custody and in presence of independent witnesses. It may be that one of them had not been examined but that, by itself, shall not vitiate the recovery or make the articles inadmissible in evidence. The aspect which the court has to consider in the present case is whether these recoveries have been made in accordance with law and whether they are admissible in evidence or not and most importantly the link with and effect of the same vis-a-vis the commission of the crime. The aspect which the court has to consider in the present case is whether these recoveries have been made in accordance with law and whether they are admissible in evidence or not and most importantly the link with and effect of the same vis-a-vis the commission of the crime. According to the postmortem report Ext.P10 as well as the forensic report Ext.P-22, kerosene or its smell was neither found on the body nor the belongings of the deceased and, therefore, it creates a little doubt as to whether the recovered items were at all and actually used in the commission of crime. However, as far as TVS moped, MO-6 is concerned, there is sufficient evidence to show that it was used by the accused but the other contradictions and discrepancies noted above overshadow this evidence and give advantage to the accused. 39. Now, we would deal with the contention of the appellant that the prosecution has not been able to establish even the time of death of the deceased. According to the prosecution, the deceased had been murdered on 9th July, 2002 at about 11 p.m. but according to the post-mortem report Exhibit P10, the deceased was murdered on 10th July, 2002 i.e. between 10 and 11 a.m. The post-mortem report was recorded on 11th July, 2002 at 2.00 p.m. stating that the deceased was murdered before 27 to 28 hours. Absence of kerosene oil on the body of the deceased and articles taken into custody from the body of the deceased, the contradictions in the statement of the witnesses, the fact that PW.2 has not supported the case of the prosecution and PW5 not being able to even identify the accused, lend support to the arguments raised on behalf of accused and create a dent in the story of the prosecution. Not on any single ground, as discussed above, but in view of the cumulative effect of the above discussion on all the aspects, we are unable to sustain the judgment of the High Court. In our opinion, the prosecution has failed to prove its case beyond reasonable doubt 102. It would appear from the observations made in the said paragraphs that failure to examine any of the independent witnesses would not vitiate the recovery or make articles inadmissible in evidence. In our opinion, the prosecution has failed to prove its case beyond reasonable doubt 102. It would appear from the observations made in the said paragraphs that failure to examine any of the independent witnesses would not vitiate the recovery or make articles inadmissible in evidence. All that the Court is required to consider in such situation is whether these recoveries have been made in accordance with law and whether they are admissible in evidence or not and most importantly the link with and effect of the same vis-a-vis the commission of crime which in the instant case has been established by the prosecution. 103. In paragraph 41 of the said report the Hon'ble Supreme Court discussed the role of the Court in criminal trial, the relevant portion whereof is set out hereunder:- "41. It is very difficult to set any universal principle which could be applied to all cases irrespective of the facts, circumstances and the findings returned by the Court of competent jurisdiction. It will always depend upon the facts and circumstances of a given case. Where the Court finds that the prosecution evidence suffers from serious contradictions, is unreliable, is ex facie neither cogent nor true and the prosecution has failed to discharge the established onus of proving the guilt of the accused beyond reasonable doubt, the Court will be well within its jurisdiction to return the finding of acquittal and even suo moto extend the benefit to a non-appealing accused as well, more so, where the Court even disbelieves the very occurrence of the crime itself. Of course, the role attributed to each of the accused and other attendant circumstances would be relevant considerations for the Court to apply its discretion judiciously. There can be varied reasons for a non-appealing accused in not approaching the appellate Court. If, for compelling and inevitable reasons, like lack of finances, absence of any person to pursue his remedy and lack of proper assistance in the jail, an accused is unable to file appeal, then it would amount to denial of access to justice to such accused. 104. In Mustakeem @ Sirtajudeen (supra), the Hon'ble Supreme Court was considering a murder case where no eye witness was available. The Hon'ble Supreme Court summarized the principles that are required to be followed where the case is based on circumstantial evidence. 104. In Mustakeem @ Sirtajudeen (supra), the Hon'ble Supreme Court was considering a murder case where no eye witness was available. The Hon'ble Supreme Court summarized the principles that are required to be followed where the case is based on circumstantial evidence. The Apex Court reiterated the principles laid down in the case of Sharad Birdhichand Sarda v. State of Maharashtra, 1984 (4) SCC 116 and in paragraph 26 of the said report which are reproduced hereunder:- "(i) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established, (ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (iii) The circumstances should be of a conclusive nature and tendency, (iv) They should exclude every possible hypothesis except the one to be proved, and (v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused." 105. In explaining the scope of section 27 of the Evidence Act it was held that where no eye witness is available in a murder case and the case is based on circumstantial evidence, recovery of weapon and evidence on the basis of disclosure of the accused alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, the burden lies on the prosecution to establish close link between discovery of the material objects and its use in the commission of the offence and what is admissible under section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution. 106. The scope and ambit of section 27 of the Evidence Act was discussed in paragraphs 27, 28 and 29 of the said report which are reproduced below:- "27. With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material objects and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution. 28. If the recovery memos were prepared at the Police Station itself then the same would lose its sanctity as held by this Court in Varun Chaudhary v. State of Rajasthan reported in AIR 2011 SC 72 . 29. The scope and ambit of Section 27 were also illuminatingly stated in AIR 1947 PC 67 Pulukuri Kotayya and Ors. v. Emperor reproduced here in below: "...it is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A' these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant. The same were thereafter restated in another judgment of this Court reported in 2004 (10) SCC 657 , Anter Singh v. State of Rajasthan." 107. In the instant case on the basis of information furnished by Sajida it led to the discovery of the weapon. The same were thereafter restated in another judgment of this Court reported in 2004 (10) SCC 657 , Anter Singh v. State of Rajasthan." 107. In the instant case on the basis of information furnished by Sajida it led to the discovery of the weapon. This in itself is not sufficient to arrive at a conclusion that she has committed or participated in the murder. However, the conviction of Sajida is not solely based on the recovery of the weapon but on other direct and circumstantial evidence discussed earlier. 108. In Bhagwan Singh (supra) the evidence of a child witness aged 6 years that he saw his mother being assaulted, but he quietly went back to sleep and woke up in the morning was found to be unnatural and accordingly disbelieved upon reliance being placed on an earlier decision in the case State of Assam v. Mafizuddin Ahmed, reported at 1983 (2) SCC 14 . The dock identification of the accused by the child in the Court was not found to be acceptable with certainty as a reliable identification. The relevant observations are in paragraphs 19 and 20 of the said report. The said report reads:- "19. In our considered opinion, the evidence of the child witness suffers from serious infirmity due to omission of the prosecution in not holding test identification parade and not examining Agyaram to whom as alleged, the child first met after the incident. There are other circumstances discussed by the trial Judge, which also make the evidence of the child witness highly unreliable for basing a conviction. 20. The law recognises the child as a competent witness but a child particularly at such a tender age of six years, who is unable to form a proper opinion about the nature of the incident because of immaturity of understanding, is not considered by the court to be a witness whose sole testimony can be relied without other corroborative evidence. The evidence of child is required to be evaluated carefully because he is an easy prey to tutoring. Therefore, always the court looks for adequate corroboration from other evidence to his testimony. [See Panchhi and others v. State of U.P., (1998) 7 SCC 177 )." 109. In the said decision in paragraphs 14 and 15, the decision of State of Assam (supra) was quoted with approval. The said paragraphs are reproduced hereunder:- "14. Therefore, always the court looks for adequate corroboration from other evidence to his testimony. [See Panchhi and others v. State of U.P., (1998) 7 SCC 177 )." 109. In the said decision in paragraphs 14 and 15, the decision of State of Assam (supra) was quoted with approval. The said paragraphs are reproduced hereunder:- "14. The other direct evidence is the deposition of PW 7, the son of the deceased, a lad of 7 years. The High Court has observed in its judgment :- ..... the evidence of a child witness is always dangerous unless it is available immediately after the occurrence and before there were any possibility of coaching and tutoring. 15. A bare perusal of the deposition of PW-7 convinces us that he was vacillating throughout and has deposed as he was asked to depose either by his Nana or by his own uncle. It is true that we cannot expect much consistency in the deposition of his witness who was only a lad of 7 years. But from the tenor of his deposition it is evidence that he was not a free agent and has been tutored at all stages by someone or the other". 110. In the instant case the child in his statement has categorically stated that he has seen the accused persons to inflict blow on his father with dao which has caused the death of his father. This evidence has remained unshaken. There is no presumption that child will not speak the truth. However a tender mind is always vulnerable to influence and being taught. He is presumed to be immature and lack free will and mind. But this presumptions are rebuttable. The Court has to see the demeanour of the witnesses like any other witness only with the difference that the Court should exercise caution to find out if the testimony is voluntary and the child has the mental capacity to understand the questions. It is unbelievable that a child is likely to make a false statement against his mother and implicate her for the murder unless he has witnessed it. The innocent mind has spoken the truth. It is only natural for a child to cry if he has seen his father being assaulted. He had gone to the jetty with his father. He has said that Silash killed his father with dao. The innocent mind has spoken the truth. It is only natural for a child to cry if he has seen his father being assaulted. He had gone to the jetty with his father. He has said that Silash killed his father with dao. An innocent mind is expected to state faithfully and give a true version of what has happened. The statements are spontaneous. His deposition is to be read as a whole with a view to finding out if it substantially establishes the commission of offence by the accused. The child indisputably has understood the questions put to him and has given rational answers. He was not found to be suffering from any intellectual incapacity to understand the questions and give rational answers. (See Alagupandi v. The State of TN reported at 2012 (10) SCC 451 and Acharaparambath Pradeepan v. State of Kerala reported at 2006 (13) SCC 643). 111. In Arbind Singh (supra) evidence of the minor daughter was the basis for conviction. The accused was convicted for causing death of his wife by hanging her. It was observed by the Hon'ble Supreme Court that having taken careful look at the evidence of such witness implicit faith and reliance cannot be placed on her testimony since it is not corroborated by any independent and reliable evidence since it is well settled that a child witness is prone to tutoring and hence the Court should look for corroboration particularly when the evidence betrays traces of tutoring. 112. In Chhagan Dame (supra) the accused murdered his wife because of the illicit relationship between his wife and accused No. 2. It was found that the evidence of child was obtained by police by torturing and accordingly it is not safe to place implicit reliance on their evidence. Moreover evidence of another witness based on child witness was also found to be doubtful. 113. In Kapil Singh (supra) a question that came up for consideration was whether the evidence of child witness can be relied upon for the purpose of convicting the accused. The child witness was the only witness who according to the prosecution actual witnessed the murder and saw the assailant. The victim was murdered on the night between the 17th and 18th June, 1961 in the house by three thieves who entered the house by cutting a hole in the wall which was amply proved by the prosecution witnesses. The child witness was the only witness who according to the prosecution actual witnessed the murder and saw the assailant. The victim was murdered on the night between the 17th and 18th June, 1961 in the house by three thieves who entered the house by cutting a hole in the wall which was amply proved by the prosecution witnesses. A question that arose was whether or not the three accused persons were amongst the thieves who committed the murder. The young girl who was only 11 years of age at the time of incident was examined in the court of Sessions in July, 1962. It is observed in paragraph 6 of the said report that while a child witness can often be expected to give out a true version because of her innocence, there is always the danger in accepting the evidence of such witness that, under influence, she might have been coached to give out a version by persons who may have influence on her. On examination of evidence it would found that there are number of circumstances which indicated that it would not be quite safe to rely on her evidence. Moreover, the subsequent story put forward by the prosecution to explain the belated disclosure of the names was found to be highly suspicious. 114. We could have affirmed the order of conviction solely on the basis of the child testimony who is the sole eye witness. We are without any doubt and hesitation that he has spoken the truth. However, we have discussed other evidence which wholly corroborate the child testimony. 115. The accused persons in fact have killed two persons ... one physically and one metaphorically. The victim Feroz is the prey and sufferer of the brutality actuated and driven by greed and lust. The other victim is the innocent child Ferdeen - the innocent child of four years old who had to witness the brutal killing. He was helpless. He was crying seeing his father being killed in his presence. He would carry the memory of this aghast brutality which has permanently created a deep wound in his body, mind and soul which is likely to affect his future unless he is taken care of by the relatives of the deceased. He is virtually left orphan. He was helpless. He was crying seeing his father being killed in his presence. He would carry the memory of this aghast brutality which has permanently created a deep wound in his body, mind and soul which is likely to affect his future unless he is taken care of by the relatives of the deceased. He is virtually left orphan. We feel sad for the child who has suffered a fractured childhood and we hope that the relatives of Feroz ensure that the child does not suffer further trauma and nurture him with due care and affection. He should be given proper education. He is a child in need of care and protection. 116. The Trial Court on the examination of the evidence and materials on record has held that the circumstantial evidence surrounding the commission of the offence clearly connects the accused persons with the offence. The Trial Judge has laid much emphasis on the child testimony and analysis of the evidence of the other witnesses in trying to ascertain if the evidence of the child witness is corroborated or not and on examination of the entire evidence has found that the evidence of the child witness is corroborated on materials particulars and establishes a connection of the commission of the offence with the accused persons. The Trial Court has applied the last seen theory and discovery of the incriminating materials consequent upon the information supplied by the accused persons as other corroborating evidence leading to commission of offence by the accused persons. 117. The prosecution was able to establish last seen evidence, extra judicial confession, recovery of incriminating materials, blood stained concrete and motive. There was no missing link in chain of circumstances. The Trial Judge has discussed the evidence in minute details to hold that the recovery of the incriminating materials was only at the instance of the accused and there was no scope to doubt the same. The conclusion of the Court below was right that the circumstances were incapable of being explained on any other reasonable hypothesis, except the guilt of the appellants and were totally inconsistent to draw an inference of innocence of the appellants. The conduct of the accused unerringly point towards their guilt. 118. The conclusion of the Court below was right that the circumstances were incapable of being explained on any other reasonable hypothesis, except the guilt of the appellants and were totally inconsistent to draw an inference of innocence of the appellants. The conduct of the accused unerringly point towards their guilt. 118. In these circumstances we are of the opinion that the learned Trial Judge has arrived at a correct finding and the order of conviction and the sentence passed by the Trial Judge is up held. 119. The appeal is dismissed, however, there shall be no order as to costs. Let the Lower Court Record be send down forthwith.