JUDGMENT : JAY SENGUPTA, J. 1. This appeal is directed against a judgment and order of conviction dated 26.11.2008 and sentence dated 27.11.2008 passed by the Learned Sessions Judge, Birbhum in Sessions Trial No. 02 of September 2007: Sessions Case No. 198/07, thereby convicting the appellant under Section 302 of the Penal Code and directing him to suffer imprisonment for life and to pay a fine of Rs. 5000/-, in default to suffer imprisonment for a further period of one year. The charge under Section 201 of the Penal Code could not be proved. 2. On 10.04.2007 at about 10:05 hours, PW 1, the younger brother of the victim/deceased, lodged a First Information Report with the Officer-in-Charge of the Suri Police Station under Section 302 of the Penal Code against the present appellant. He alleged that on 09.04.2007 at about 20:00 hours, his elder brother Swapan Das went out of his house with the present appellant, an employee of an FCI godown, but did not come back. On the next day at about 6:00 hours, the dead-body of the said Swapan Das was found lying on the eastern bank of a tank. A handkerchief was found in the mouth of the deceased and some scratch marks were noticed on his neck and right ear. PW 1 came to learn that the victim went with the appellant to the bank of the pond in a drunken condition and there they had met PW 13. 3. An Investigation was started into the offence alleged. PW 20 held inquest over the dead-body of the victim on 10.04.2007 at about 8:15 hours in respect of a UD case in presence of witnesses PWs 1, 2, 12, 15 and 17. Although PW 1 named the appellant in the First Information Report, in spite of being to a witness to the inquest, he did not mention the appellant's name as the accused during inquest. PW 4 held a post-mortem examination of the dead-body on 11.04.2007 at about 13:50 hours. He mentioned about the injuries found and opined that it was a case of manual strangulation, ante mortem and homicidal in nature. On 19.09.2007, charges was framed against the appellant under Sections 302 and 201 of the Penal Code. The appellant pleaded not guilty and claimed to be tried. He mentioned about the injuries found and opined that it was a case of manual strangulation, ante mortem and homicidal in nature. On 19.09.2007, charges was framed against the appellant under Sections 302 and 201 of the Penal Code. The appellant pleaded not guilty and claimed to be tried. During trial, the prosecution examined as many as twenty witnesses to establish its case while the defence case was mainly a denial of the prosecution version. 4. From a careful perusal of the evidence on record, it appears that PW 1 was the de facto complainant of the case and the brother of the appellant. He deposed that the victim was a labour at an FCI godown and the appellant was the labour in-charge. PW 1 supported the First Information Report as regards his last seen together account. As a post-occurrence witness as well, PW 1 found nail scratch injuries on neck of the victim, injuries behind his neck and the victim's mouth gagged with a handkerchief. He deposed that PW 13 had told him that the appellant and the victim had visited his house in the night. He was also a witness to the inquest and a seizure list witness for a footwear. He identified the handkerchief and deposed that PW 12, the victim's wife told him that she had seen the said handkerchief with the appellant. PW 13 had told him that the appellant and the victim were drunk when they came last night. In his cross-examination, PW 1 admitted that he did not state about the appellant taking out his handkerchief to the police. PW 2 was an 'Upapradhan' of the village and the scribe of the FIR. He was also a post-occurrence witness and saw a handkerchief present in the victim's mouth. He deposed that PW 13 had intimated about the appellant's visit last night. He too found nail scratch marks on the victim's neck. He was an inquest report witness as well. In his cross-examination, he admitted that he was not examined by the police. PW 3 was tendered in evidence. PW 4, the post-mortem doctor, found eight injuries on the dead-body and opined that it was a case of manual strangulation (throttling), which was ante mortem and homicidal in nature. In his cross-examination, PW 4 stated that there was mud and sand all over the dead-body. He further opined that injury nos. PW 3 was tendered in evidence. PW 4, the post-mortem doctor, found eight injuries on the dead-body and opined that it was a case of manual strangulation (throttling), which was ante mortem and homicidal in nature. In his cross-examination, PW 4 stated that there was mud and sand all over the dead-body. He further opined that injury nos. 6 to 10 might be caused by more than one person. PW 5 was a doctor who had refused to hold post-mortem examination over the dead-body. PW 6 was a photographer working for the investigating agency. PW 7 was the Learned Judicial Magistrate who recorded a statement of PW 12 on 17.04.2007 under Section 164 of the Code. PW 8 was a constable who carried the dead-body for the post-mortem examination. PW 9 was the police officer who recorded a GD Entry over a telephonic message although the said GD Entry was not produced in Court. PW 10 was a post-occurrence witness who found the handkerchief in the victim's mouth. PW 11 was a witness who turned hostile. PW 12 was the wife of the victim. She had seen the appellant and the victim for the last time together. She deposed that the appellant used to visit their house. After the incident she had seen the said handkerchief in the victim's mouth and an injury on him. PW 12 deposed about the appellant taking out the said handkerchief earlier. She was a witness to the inquest. She identified the handkerchief and the sleepers. She also gave a statement before the Learned Magistrate under Section 164 of the Code. In her cross-examination, PW 12 said that she had never earlier stated that she saw the handkerchief in the hand of the appellant during Saraswati Puja. She further stated that some portion of the handkerchief visibly came out of the victim's mouth. She was examined by the police four or five days after the incident. PW 13 deposed that on the date of occurrence at about 20:00/20:15 hours, he saw the victim and the appellant in a drunken state gossiping away. He used to be a friend of the victim. On the next day the dead-body of the victim was found. PW 13 noticed a handkerchief in the victim's mouth. PW 13 deposed that on the date of occurrence at about 20:00/20:15 hours, he saw the victim and the appellant in a drunken state gossiping away. He used to be a friend of the victim. On the next day the dead-body of the victim was found. PW 13 noticed a handkerchief in the victim's mouth. He deposed that the distance between the places where the body was found and where he saw the two together was less than half a kilometre. PW 14 was a post-occurrence witness. He noticed a handkerchief in the victim's mouth. PW 15 was a post-occurrence witness and a witness to the inquest. Although declared hostile, he admitted his signature on the inquest report. PW 16 was a police officer and a seizure list witness for the viscera and the wearing apparels of the victim after the post-mortem examination. PW 17 was a neighbour and a post-occurrence witness. He saw a handkerchief in the victim's mouth. The victim's mother told him about the coming of an employee of the FCI last night. He was a witness to the inquest. In his cross, PW 17 stated that he did not tell the police that the victim's mother said about the FCI employee calling the victim out. PW 18 was tendered in evidence. PW 19 was the Sub Inspector of Police who recorded the formal First Information Report. PW 20 was the Investigating Officer of the case. He stated that PW 11 had told him that he had heard 'bachao, bachao', but ignored the same thinking those to be the cries of drunkards. During the examination of the accused under Section 313 of the Code, he claimed that he had never gone to the house of the appellant. 5. Mr. P.S. Bhattacharya, the Learned Advocate appearing on behalf of the appellant vehemently opposed the judgment and order of conviction and sentence imposed on the appellant. He submitted that the omission to state relevant facts during inquest materially affects the prosecution case where an inquest is done before the lodging of the First Information Report. He submitted that there was a significant improvement between the FIR lodged by the PW 1 and the evidence adduced by him during trial, especially as regards the story of the handkerchief. He submitted that there was a significant improvement between the FIR lodged by the PW 1 and the evidence adduced by him during trial, especially as regards the story of the handkerchief. The Learned Advocate contended that PW 12 told PW 1 after recovery of the handkerchief about seeing the said handkerchief in the appellant's hands and that is how PW 1 came to know about it. So it was PW 12 who was the concerned witness and not PW 1 as regards the recovery of the handkerchief. He submitted that there was no identifying mark in the handkerchief so as to identify it. He expressed his surprise about why PW 12 was not examined immediately. The Learned Advocate also hinted at serious defects in investigation. He submitted that the viscera was not examined. So it could not be ascertained whether the two were actually drunk or not. Moreover, according to the post-mortem doctor injuries 6 to 10 might have been caused by more than one individual. According to him, the alternative theory as suggested by the defence that the victim was a thief and someone else had murdered him becomes quite significant in this context. The Learned Advocate further submitted that no motive could be established for commission of the alleged murder. He submitted that even if the answer to question no. 6 put to the accused under Section 313 of the Code is held to be false, the same did not implicate the accused/appellant in this case. He further submitted that only on the basis of a last seen together evidence coupled with an absence of satisfactory explanation by the accused, no one should be convicted. On this, he relied on Anjan Kumar Sarma and Others vs. State of Assam, (2017) 14 SCC 359 . 6. Mr. Madhusudan Sur, the Learned Advocate appearing on behalf of the State strongly supported the conviction and sentence. According to him PWs 1, 12 and 13 were the vital witnesses who proved the prosecution case. He submitted that PWs 2, 10, 13, 14 and 17 corroborated the evidence of PW 1 and they were all independent witnesses. According to him, the recovery and identification of the handkerchief was the link that made the chain of circumstances pointing towards the guilt of the appellant, complete. 7. He submitted that PWs 2, 10, 13, 14 and 17 corroborated the evidence of PW 1 and they were all independent witnesses. According to him, the recovery and identification of the handkerchief was the link that made the chain of circumstances pointing towards the guilt of the appellant, complete. 7. We heard the submissions of the Learned Advocate on behalf of the parties and carefully perused the evidence and the materials on record. Motive: 8. In a case based purely on circumstantial evidence, the motive behind the crime assumes a greater degree of significance. In the instant case motive for murder is not clear, at least if the prosecution is against the appellant for the murder of the victim/deceased. Non-mentioning of the appellant's name in an inquest that preceded FIR: 9. In the present case although the de facto complainant as well as PW 12 were witnesses to the inquest that preceded the lodging of the First Information Report, they did not take the name of the appellant during inquest. One may argue that the said witnesses might have waited for the lodging of the First Information Report and might not have thought it necessary to take the appellant's name during inquest or PW 20, who held the inquest, might not have considered it necessary to enquire about the same. Although non-mentioning of the name of an appellant during inquest is not per se fatal to the prosecution case, in a case where the inquest precedes the lodging of a First Information Report, it may assume some importance. Last seen together: 10. Pw 1, the brother of the appellant and the de facto complainant of the case deposed that the appellant had come down to their house and he along with the victim went out at about 20:00 hours. PW 12, the wife of the victim also saw the appellant and the victim together going out of their house in the night. PW 13 was a local witness who said that he had seen the victim and the appellant gossiping away in a drunken state about half a kilometre away from where the dead-body of the victim was found on the next morning. Therefore, the last seen together evidence as adduced by PWs 1, 12 and 13 clearly evinced that the two were present together a little distance away from where the body was found. Therefore, the last seen together evidence as adduced by PWs 1, 12 and 13 clearly evinced that the two were present together a little distance away from where the body was found. But, there is a time gap between when these witnesses last saw the two together and the discovery of the dead-body in the next morning. Evidence of the post-mortem doctor: 11. Pw 4, the post-mortem doctor, mentioned about eight injuries on the dead-body. He opined that it was a case of manual strangulation, ante mortem and homicidal in nature. At the same time PW 4 also deposed that the injuries 6 to 10 might be caused by more than one person. This casts a shadow of doubt on the prosecution case that the appellant would alone be able to inflict such injuries while in a drunken state. Moreover, although there is no medical evidence that the victim was drunk at that point as the viscera was not examined, if one believes the prosecution evidence that both the appellant and the victim were drunk, then it would raise a question about how the appellant could deliver such blows to the victim in such a drunken condition. The issue of the handkerchief: 12. Quite like in the Othello, here too a handkerchief became an importance issue. That the post-occurrence witnesses like PWs 1, 2, 12, 13 and 14 saw a handkerchief present in the victim's mouth after the incident is by itself not an incriminating circumstance so far as the present appellant is concerned. But, PW 12, the victim's wife deposed that she had seen this handkerchief in the appellant's hands on the night before the incident and earlier during Saraswati Puja. However, in her cross-examination, PW 12 admitted that she had not stated before the police earlier that she had seen the handkerchief in the appellant's hands during the Saraswati Puja. In the circumstances, we are unable to appreciate the conviction with which PW 12 vouched that she was able to identify the handkerchief recovered to be the one that the appellant was carrying earlier. False plea taken in the examination under Section 313 of the Code: 13. In the circumstances, we are unable to appreciate the conviction with which PW 12 vouched that she was able to identify the handkerchief recovered to be the one that the appellant was carrying earlier. False plea taken in the examination under Section 313 of the Code: 13. In view of the evidence available in abundance that the appellant had visited the victim's house in the fateful night, we do find that the appellant took a false plea during his examination under Section 313 of the Code that he did not visit the place on that night. Although in certain circumstances, a false plea taken under Section 313 of the Code or a failure to prove an alibi may act as an additional link to the chain of circumstances, but it would all depend on whether other materials are also present to complete the chain. 14. The reliance of the Learned Advocate for the appellant on the decision in Anjan Kumar Sarma (supra) is quite apt. There, the Hon'ble Apex Court, inter alia, held that only the circumstance of last seen together and an absence of satisfactory explanation cannot be the basis for a conviction. 15. In view of the absence of any motive, medical evidence that some injuries could have been caused by more than one person, reasonable doubt in accepting that the handkerchief recovered from the dead-body actually belonged to the appellant and the absence of any other material except for a distant last seen together account and an absence of a satisfactory explanation by the accused, we believe that the appellant is entitled to a benefit of doubt and that the prosecution has not been able to prove the case beyond all reasonable doubts. 16. Accordingly, the appeal is allowed, the impugned judgment and order of conviction and sentence is set aside and the appellant is directed to be released from custody forthwith, if not required in connection with any other case. 17. A copy of the judgment along with the Lower Court records shall be sent down to the learned Trial Court forthwith by a Special Messenger for information and necessary action. 18. Urgent photostat certified copies of this judgment may be delivered to the learned Advocates for the parties, if applied for, upon compliance of all formalities. I agree