JUDGEMENT : Per, Shree Chandrashekhar, J. The appellants in these criminal appeals – Nirmal Ravidas, Sadhan Chandra Dey and Srikant Das – have challenged the judgment of conviction under section 302/120-B IPC and section 201 IPC dated 27.01.2016 and the order of sentence dated 29.01.2016 passed against them for the aforesaid offences in Sessions Trial No. 535 of 2010. 2. Paresh Ravidas is the informant of this case. On 24.07.2010, his son Ajay Ravidas left home in the afternoon on a phone call of Srikant Das. He had gone to Sahid Mela Maidan with Srikant Das, Sadhan Chandra Dey and Nirmal Ravidas and thereafter he did not come back home. The informant and his wife enquired from Srikant Das, Nirmal Ravidas and Sadhan Chandra Dey, the appellants, but they did not give any satisfactory response. Next day, the informant gave his fardbeyan to the police and on that basis Nirsa P.S. Case No. 183 of 2010 was lodged against the appellants under section 364/120-B IPC. Srikant Das was arrested on the same day and on his disclosure dead body of Ajay Ravidas was recovered from Hathbari forest. Accordingly, the offences under section 302 and 201 IPC and section 27 of the Arms Act were added in the Report. After the investigation a charge-sheet was filed against the appellants and they have faced the trial on the charge of committing murder of Ajay Ravidas in furtherance of criminal conspiracy and causing disappearance of his dead body. 3. During the trial the prosecution has examined eight witnesses; the informant was examined as PW-7. Budhni Devi, the mother of the deceased has been examined as PW-6 and along with her, Bahadur Ravidas PW-1, Doman Ravidas PW-3, Elaychi Devi PW-4 and Sunil Kumar Ravidas PW-5 were examined by the prosecution on the point of last-seen-together. The prosecution has laid documentary evidence, such as, fardbeyan, postmortem report, formal FIR, inquest report, confessional statement of the appellants and certified copies of the seizure list, sanction order and deposition of the witnesses in G.R. Case No. 2595 of 2010 which was separately lodged against the appellants under the Arms Act. On behalf of the appellants copies of the arrest memo and charge-sheet were filed primarily to show that confessional statement of the appellants were recorded before the informant gave his fardbeyan to the police and a First Information Report was lodged. 4. On behalf of the appellants copies of the arrest memo and charge-sheet were filed primarily to show that confessional statement of the appellants were recorded before the informant gave his fardbeyan to the police and a First Information Report was lodged. 4. The parents of Ajay Ravidas were at home in the afternoon of 24.7.2010. It was one summer’s day and their presence in their house is quite natural. PW-6, the mother of the deceased has stated that about 4:00 – 4:30 p.m. her son received a phone call and went outside. When he was leaving home on her inquiry he told her that Srikant Das has called him to Sahid Mela Maidan. She has deposed in the Court that when her son was going out she also came out of the house and followed him to some distance. She has said that she has seen Srikant Das, Sadhan Chandra Dey and Nirmal Ravidas going with her son towards Sahid Mela Maidan. She has told these things to PW-7, her husband, and both of them have stated that in the evening when their son did not come back home they went to the house of Srikant Das and made inquiries from him. They have asked other two accused also about their son but they did not disclose anything rather they started quarrelling with them. Both PW-6 and PW-7 have stated that Srikant Das was arrested by the police and he confessed that he has killed their son. There is another set of witnesses who have seen the appellants on 24.07.2010 at different places. PW-1 has stated that on 24.07.2010 while returning home from Gopalgunj he has seen the appellants talking near Hathbari jungle at around 5.00 p.m. PW-3 has stated that on 24.7.2010 at about 5:00 p.m. he was passing through Sahid Mela Maidan and at that time the appellants were discussing something amongst themselves. In the evening when he came back home he did not find Ajay Ravidas at home and on inquiry his brother, the informant, told him that Srikant Das had called Ajay and his wife has seen Ajay going with the appellants. PW-3 has also stated about PW-6 and PW-7 making inquiries in the night from the appellants. In the evening when he came back home he did not find Ajay Ravidas at home and on inquiry his brother, the informant, told him that Srikant Das had called Ajay and his wife has seen Ajay going with the appellants. PW-3 has also stated about PW-6 and PW-7 making inquiries in the night from the appellants. PW-4 has stated that in the evening of 24.07.2010 she was coming home from her parents' place and when the vehicle stopped near Hathbari she has seen the appellants talking to each other. She has also stated that PW-6 told her that she has seen her son going towards Sahid Mela Maidan with the appellants. PW-5 has stated that at about 5:00 p.m. when he was returning home from the market he has seen the deceased in the company of the appellants and in the evening when he came back home Budhni Devi told him that her son was traceless and his mobile phone was switched off. He has further stated that Budhni Devi told him that her son had left home with the appellants. 5. The prosecution has laid circumstantial evidence to prove the charge of murder and no doubt it can do so as it is not necessary that in every trial the prosecution must prove a fact by direct evidence and the principal fact can always be proved through inferences drawn from factum probans which refers to a fact or statement of facts, but, in a case which primarily rests on circumstantial evidence an inference of guilt can be justified only when all the circumstances are found incompatible with innocence of the accused. 6. The Roman-canon law of evidence which held sway until the Eighteenth century drew heavily from Ciceronian school and Aristotelian epistemology but finally crumbled under the Enlightenment and at the end of the Eighteenth century the common law of evidence started crystallizing. 6. The Roman-canon law of evidence which held sway until the Eighteenth century drew heavily from Ciceronian school and Aristotelian epistemology but finally crumbled under the Enlightenment and at the end of the Eighteenth century the common law of evidence started crystallizing. In the first half of the Nineteenth century, one of the guiding principles in law on the circumstantial evidence took birth in “re Hodge” reported in (1838)2 Lewin 227: 168 ER 1136 and since then what is popularly called the Hodge's rule that before convicting a person on the basis of circumstantial evidence the jury must be satisfied not only that the evidence is consistent with the guilt of the person but is also inconsistent with any other rational inference is firmly ingrained in the criminal justice system in India. 7. In “Bhagat Ram versus State of Punjab” reported in AIR 1954 SC 621 , the Hon’ble Supreme Court has observed that when a case depends upon the conclusion drawn from the circumstances the cumulative effect of the circumstances must be such as to negative innocence of the accused and bring home the offences beyond reasonable doubt. After more than two decades thereafter in “Gambhir Vs. State of Maharashtra” reported in (1982) 2 SCC 351 , the law on circumstantial evidence was discussed by the Hon’ble Supreme Court on the similar lines and even today the opinion expressed in “re Hodge” is applied in the cases based on circumstantial evidence. In “Gambhir” (supra), the Hon’ble Supreme Court has laid down the following ‘triple test’ for examining the circumstantial evidences relied upon against an accused : “9. ..................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.” 8. To prove the charge against the appellants the prosecution has relied on the confessional statement of the appellants, recovery of the dead body, recovery of the crime weapon, last-seen-together and motive. To prove the charge against the appellants the prosecution has relied on the confessional statement of the appellants, recovery of the dead body, recovery of the crime weapon, last-seen-together and motive. With the help of inquest report, postmortem report and the doctor’s evidence, the prosecution has proved that Ajay Ravidas has suffered homicidal death. 9. Dr. Swapan Kumar Sarak, PW-2, who has conducted the postmortem examination at about 10:00 a.m. on 26.07.2010 has found the following injuries on Ajay Ravidas: Incised wound : I. 5” x 1/2” up to bone deep over larynx transversely on front of neck. Soft tissues, muscles, vessels, larynx and upper part of oesophagus found cleanly cut. Margin of wound found irregular but clean and inverted. Blood clots found over the wound. II. 1 ¼ ” x 1/4” muscle deep over left side of chin. III. 1” x 1/6” bone deep over middle of chin 1/6” above injury No. II. IV. 1 ¼ ” x 1/4” bone deep, 1/6” above injury no. III. V. 1” x 1/8” muscle deep over middle of chin 1/6” above injury no. IV. VI. 1/2” x 1/10” Muscle to gum deep on middle of lower jaw with fracture of 1” incisor tooth on right. VII. 1/2” x 1/4” bone deep over lower part of nose. VIII. 3/4” x 1/4” Bone Deep over left eyebrow Margins of all the above wounds found irregular but cleanly cut but inverted. IX. Full thickness incised wound at the root of penis to lower part of root of scrotum. The separated part found absent. Wound of entry of firearms:- I. 1/2” x 1/2” stellate shape, lacerated with round hole on bone under neath, over middle of forehead below hairy region with evidence of burning and blackening only. II. 1/4” x 1/4” round shape on left perito of occipital region of Head with evidence of blackening, tattooing and abrasion color. Wound of exit of firearms:- I. 1/2” x ½ “ on perito occipital region 1” lateral to mid line on left. II. 1/4” x 1/4” round shape above lateral third of right eyebrow. 10. No evidence of burning, blackening or tattooing was found on the wound but postmortem longitudinal grazing abrasion was found over lower part of waist sacrum and gluteal region. II. 1/4” x 1/4” round shape above lateral third of right eyebrow. 10. No evidence of burning, blackening or tattooing was found on the wound but postmortem longitudinal grazing abrasion was found over lower part of waist sacrum and gluteal region. The injuries found on Ajay Ravidas were ante-mortem in nature and the incised wounds were caused by slightly heavy and sharp-cutting weapon – the death was almost instantaneous. 11. The doctor was cross-examined by the defence in the context of his opinion, that no evidence of burning, blackening or tattooing was found by him and he has not observed that the fire-arm entry wound no.(i) was caused by contact shot, to challenge the prosecution story that Ajay Ravidas was taken to the forest and shot from a close range. However, in our opinion, an stray statement of the doctor in his cross-examination would not haze the prosecution’s case with cloud of doubts. 12. There is one proposition which is now quite settled in law, that on the basis of the materials produced on record and after giving due regard to the medical evidence the Court may form its own judgment and once the medical evidence is accepted it is considered not the opinion of the medical officer but of the Court. Under section 45 of the Evidence Act which talks of opinion of the experts evidence of the doctor is only a relevant fact. In “Queen Vs. Ahmed Ally” reported in (1869) 11 Sutherland W R Cr. 25, Nariman, J has observed that evidence of a medical man or other skilled witnesses, however, imminent, is ordinarily a matter of mere opinion. In “State of H.P. Vs. Jai Lal and Others” reported in (1999) 7 SCC 280 , the Hon'ble Supreme Court has held as under : “18. An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions.” 13. PW-2 has found that both the bullets had pierced the frontal bone of the deceased. His observations are that : (I) The bullet piercing the frontal bones lacerated the meninges and brain making a track came out through the wound of exit no. (i). On exploration of entry no. (ii) the bullet piercing the skull bone lacerated the brain and meninges making a track and fracturing the anterior cranil Fossa came out through the wound of exit no. (ii). Bevelling of inner table of skull was found in the wound of entry and outer table of skull was found on wound of exit and the skull bone had comminuted fracture. 14. The learned trial Judge has accepted the medical evidence and held that Ajay Ravidas has died homicidal death. We also do not nurture any doubt that Ajay Ravidas has died due to injuries caused to him by fire-arm and sharp-cutting weapon. According to PW-2 the time elapsed since death was 36 hours and this observation of the doctor corroborates the prosecution's case that in the afternoon of 24.7.2010 Ajay Ravidas who had left home in the company of the appellants was killed sometime the same evening. 15. The next issue is whether the prosecution has been able to establish complicity of the appellants in the murder of Ajay Rabidas. The Investigating Officer hit the first breakthrough in the case immediately after recording the fardbeyan of the father of Ajay Ravidas. Srikant Das was arrested on 25.07.2010 and he made a disclosure which led to recovery of the dead body. The other two accused persons were arrested on 27.07.2010 and they also made confessional statements. However, considerable controversy was sought to be raised on the arrest and confessional statement of the appellants recorded by the Investigating Officer. It was contended on behalf of the appellants that they were arrested before a First Information Report was lodged and their confessional statement has been extracted under pressure, coercion and duress. However, considerable controversy was sought to be raised on the arrest and confessional statement of the appellants recorded by the Investigating Officer. It was contended on behalf of the appellants that they were arrested before a First Information Report was lodged and their confessional statement has been extracted under pressure, coercion and duress. A close scrutiny of the records would however reveal that Srikant Das was arrested on 25.07.2010 at about 11:30 a.m. and his confessional statement was recorded at 11:45 a.m. the same day. Nirmal Ravidas was arrested at about 10:15 a.m. on 27.07.2010 and his confessional statement was recorded at about 11:00 a.m. Similarly, Sadhan Chandra Dey was arrested at 12:30 p.m. on 27.07.2010 and his confessional statement was recorded at 13:00 p.m. the same day. The fardbeyan of Paresh Ravidas was recorded at about 11:00 a.m. on 25.07.2010 and Srikant Das was arrested soon thereafter. No doubt, Nirsa P.S. Case No. 183 of 2010 was formally lodged at 13:45 p.m. but for that reason the confessional statement of Srikant Das would not be rendered illegal. 16. The main issue in this case however is admissibility of the confessional statement of the appellants. In “Rex v. Warickshall” reported in (1783) 1 Leach 263, Lord Sumner has ruled that; “a confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape, that it is to be considered as the evidence of guilt, that no credit ought to be given to it”. In Chapter-II of the Indian Evidence Act, section 24 to section 30 deal with confession of the persons accused of an offence. Section 25 makes confession before a police officer inadmissible in evidence and section 26 provides that confession of a person in custody of a police officer shall not be proved unless it is made in the immediate presence of a Magistrate. Section 27 however lifts the ban imposed by section 24, 25 and 26 in respect of the information which relates distinctly to the fact discovered in consequence of such information. Section 27 however lifts the ban imposed by section 24, 25 and 26 in respect of the information which relates distinctly to the fact discovered in consequence of such information. In “Pulkuri Kottaya V. Emperor” reported in AIR 1947 PC 67 , the Privy Council has observed that discovery of a fact in consequence of the information received from a person accused of any offence in the custody of a police officer must be deposed to, and thereupon so much of the information leading to discovery of fact may be proved. 17. Section 27 of the Evidence Act has been interpreted and applied by the Hon'ble Supreme Court in a number of cases and what has been observed in “State of Maharashtra V. Damu” reported in (2000) 6 SCC 269 is very near to the issue involved in this case, particularly, in the context of the facts of this case. The dead body of a child was carried to a particular spot from where broken glass pieces were recovered. The accused made a disclosure that the dead body of the child was taken on a motorcycle and the broken glass pieces were of the tail lamp of the motorcycle. The Hon'ble Supreme Court has dealt with the evidence in the following manner : “35. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information. Hence the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum. It is now well settled that recovery of an object is not discovery of a fact as envisaged in the section. The decision of the Privy Council in Pulukuri Kottaya v. Emperor AIR 1947 PC 67 is the most quoted authority for supporting the interpretation that the “fact discovered” envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. 36. The decision of the Privy Council in Pulukuri Kottaya v. Emperor AIR 1947 PC 67 is the most quoted authority for supporting the interpretation that the “fact discovered” envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. 36. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which “distinctly relates to the fact thereby discovered”. But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. In this case, the fact discovered by PW 44 is that A-3 Mukinda Thorat had carried the dead body of Dipak to the spot on the motorcycle. 37. How did the particular information led to the discovery of the fact? No doubt, recovery of dead body of Dipak from the same canal was antecedent to the information which PW 44 obtained. If nothing more was recovered pursuant to and subsequent to obtaining the information from the accused, there would not have been any discovery of any fact at all. But when the broken glass piece was recovered from that spot and that piece was found to be part of the tail lamp of the motorcycle of A-2 Guruji, it can safely be held that the Investigating Officer discovered the fact that A-2 Guruji had carried the dead body on that particular motorcycle up to the spot. 18. In his confessional statement Nirmal Ravidas has stated that Ajay Ravidas was shot dead by Sadhan Chandra Dey and he has severed private parts (guptang) of Ajay Ravidas and his dead body was left behind the bushes in Hathbari forest. Sadhan Chandra Dey has admitted that he shot Ajay Ravidas with his pistol and his dead body was thrown behind the bushes. These facts were also spoken by Srikant Das in his confessional statement. From their statements before the police, it can be seen that the appellants have spoken several similar facts in their statement, however, the story which unfolds thereafter would show that their disclosure statements were not voluntary. These facts were also spoken by Srikant Das in his confessional statement. From their statements before the police, it can be seen that the appellants have spoken several similar facts in their statement, however, the story which unfolds thereafter would show that their disclosure statements were not voluntary. According to the prosecution, the dead body of Ajay Ravidas was recovered pursuant to the disclosure made by Srikant Das in his confessional statement recorded on 25.07.2010 and an inquest report was prepared at 12:30 p.m. and it bears description of the First Information Report, though Nirsa P.S. Case No. 183 of 2010 was lodged at 13:45 p.m. on 25.07.2010. The inquest report does not record that the dead body was found at the instance of Srikant Das. No pointing out memo at the instance of Srikant Das was prepared nor was a separate memorandum on recovery of the dead body prepared by the Investigating Officer. The inquest witnesses are chance witnesses and they have not satisfactorily explained their presence in Hathbari forest at the time of inquest. PW-1 has stated that he has signed the papers but does not say that the dead body was recovered in his presence. In his cross-examination he says that he does not remember whether the inquest report was prepared in his presence and to make it worse for the prosecution in paragraph no. 30 of his cross-examination he says that he did not meet the police on 25.07.2010. PW-3 has also signed the papers at the instance of the police. He has stated that when he arrived in the forest around 11:30 a.m. – 12:00 noon the police was already there. He has admitted in his cross-examination that he was not present there when the dead body was recovered, does not know what was written in the papers prepared by the police and cannot say name of the police officer who had prepared the papers. PW-5 says that the inquest was prepared in his presence but from paragraph no. 11 of his cross-examination in which he has admitted that it was the Investigating Officer who told him that the dead body of Ajay Ravidas was recovered at the instance of Srikant Das, it becomes clear that at the time of recovery of the dead body he was not present there. 11 of his cross-examination in which he has admitted that it was the Investigating Officer who told him that the dead body of Ajay Ravidas was recovered at the instance of Srikant Das, it becomes clear that at the time of recovery of the dead body he was not present there. He has admitted that it is not written in the inquest report that on the pointing out of Srikant Das the dead body was recovered. In these facts, this can be easily held that the prosecution has failed to establish that the dead body of Ajay Ravidas was found on disclosure of Srikant Das and while so recovery of the dead body from Hathbari forest can not be used as an incriminating circumstance against the appellants. 19. The recovery of pistol which was allegedly used in the occurrence is also shrouded in mystery. The records would reveal that the dead body of Ajay Ravidas was found near nursery of the Forest Department in Hathbari forest and a pistol was also found in the bushes near the nursery. Both places are adjacent to each other and accessible to general public. The confessional statement of Srikant Das was recorded on 25.07.2010 and the confessional statements of Sadhan Chandra Dey and Nirmal Ravidas were recorded on 27.07.2010 and in their statement the appellants have disclosed the place where the dead body and the pistol were thrown. The prosecution story is that Srikant Das has made disclosure on 25.07.2010 and the dead body was recovered on the same day, but there is no explanation why the pistol could not be recovered on 25.07.2010; it was recovered on 27.07.2010. 20. In the aforesaid state of affairs, we would now turn to the confessional statement of the appellants to find out if any part of their statement is saved under section 27 of the Evidence Act. Nirmal Ravidas and Sadhan Chandra Dey both have stated in their confessional statement that the pistol which was used in the crime was thrown to the bushes in Hathbari forest and it can be recovered from there. Srikant Das has also made a similar statement. But they have not claimed that they can get the pistol recovered. Nirmal Ravidas and Sadhan Chandra Dey both have stated in their confessional statement that the pistol which was used in the crime was thrown to the bushes in Hathbari forest and it can be recovered from there. Srikant Das has also made a similar statement. But they have not claimed that they can get the pistol recovered. They have merely stated that they have thrown the pistol but did not say that they have concealed the pistol and no such inference also can be drawn on the basis of the proved facts. Now it is finally settled that the expression “fact discovered” includes physical object produced as well as the place from where it is produced, and the knowledge of the accused as to the place where the physical object was concealed. In “Damu” (supra), recovery of the broken glass pieces of the tail lamp of the motorcycle at the instance of the accused led to discovery of a new fact to the Investigating Officer that the dead body was carried to that place on a motorcycle. The logic behind section 27 is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part of the disclosure statement and therefore that part can be proved in evidence. But, as can be seen from the confessional statements of the appellants that such knowledge about the place from where the pistol was found as would have been covered by section 27 of the Evidence Act is missing in their statements. As a matter of fact they have not produced the pistol before the police and as noticed above the place was accessible to the general public. Therefore, the disclosure made by the appellants pursuant to which a pistol was allegedly recovered does not distinctly relate to a “fact discovered”. 21. In the above circumstances, no part of the disclosure made by the appellants in their confessional statements is admissible in evidence under section 27 and their statements cannot be used against them. 22. Two other important aspects on recovery of the pistol are also relevant to record. 21. In the above circumstances, no part of the disclosure made by the appellants in their confessional statements is admissible in evidence under section 27 and their statements cannot be used against them. 22. Two other important aspects on recovery of the pistol are also relevant to record. A separate case vide Nirsa P.S. Case No. 184 of 2010 under section 25(1-b) a/26/35 of the Arms Act was lodged against the accused persons and the report of Sergeant Major is that the empty cartridges recovered from the place of occurrence were fired from the said pistol. However, in the present case seizure memo of the pistol, sanction order, ballistic report and the pistol were not produced during the trial of Sessions Trial No. 535 of 2010. Secondly, the certified copies of Nirsa P.S 184 of 2010 dated 27.07.2010 corresponding to G.R. No. 2595 of 2010 and judgment of conviction of the appellants under section 25(1-b) of the Arms Act along with deposition of the witnesses, seizure list etc. were filed by the prosecution in this case, however, the learned Additional Sessions Judge-II Dhanbad has acquitted the appellants on the charge under section 27 of the Arms Act. No doubt the judgment of conviction of the appellants in G.R. No. 2595 of 2010 could have been read in evidence at the instance of the prosecution – for a very limited purpose, but then, the Investigating Officer has not stated anything about these materials and those were not formally proved during the trial. Consequently, the appellants had no opportunity to cross–examine him on this aspect and, therefore, the judgment in G.R. No. 2595 of 2010 is of no avail to the prosecution. 23. The prosecution has strongly relied on the circumstances connected to motive for the crime. Generally, motive does not play an important role in a case based on direct evidence except where the prosecution evidence is not such that the trial Judge can form a definite opinion and, therefore, he turns to the motive part of the case, but in a case based on circumstantial evidence motive plays an important role. In “Surinder Pal Jain Vs. Delhi Administration” reported in 1993 Supp (3) SCC 681, the Hon'ble Supreme Court has observed as under: “11.... ….. In “Surinder Pal Jain Vs. Delhi Administration” reported in 1993 Supp (3) SCC 681, the Hon'ble Supreme Court has observed as under: “11.... ….. In a case based on circumstantial evidence, motive assumes pertinent significance as existence of the motive is an enlightening factor in a process of presumptive reasoning in such a case. The absence of motive, however, puts the court on its guard to scrutinise the circumstances more carefully to ensure that that suspicion and conjecture do not take place of legal proof.” 24. However, the prosecution evidence on motive for committing murder of Ajay Ravidas is too slender and fickle to be considered an incriminating circumstance so as to provide an additional link in the chain of circumstances. The prosecution witnesses have stated that Ajay Ravidas and Srikant Das had given Rs. 7000/-each to Nirmal Ravidas for a favourable result in the examination. Ajay Ravidas has on his own passed the examination and Nirmal Ravidas had returned Rs. 7000/-to Srikant Das but he did not return the entire amount to Ajay Ravidas. PW-6, the mother of Ajay Ravidas has deposed in the Court that she sold her ornaments for arranging Rs. 7000/-and she had gone to the house of Nirmal Ravidas demanding return of money. But at the same time she has also stated that Nirmal Ravidas had returned some money in small amounts of Rs. 50/-or Rs. 100/-. All the prosecution witnesses except PW-6 have admitted that they have not seen Ajay Ravidas giving money to Nirmal Ravidas and it appears that they have just repeated what has been stated by Budhni Devi. Even more importantly, the Investigating Officer has stated in the Court that he did not find any evidence of money given to Nirmal Ravidas, as claimed by the family of the deceased. 25. The main plank of the prosecution to prove the charges against the appellants is that in the evening of 24.07.2010 Ajay Ravidas was seen in the company of the appellants and the next day his dead body was recovered from Hathbari forest. The circumstance of last-seen-together is generally considered a clinching evidence if supported by other independent circumstances. 25. The main plank of the prosecution to prove the charges against the appellants is that in the evening of 24.07.2010 Ajay Ravidas was seen in the company of the appellants and the next day his dead body was recovered from Hathbari forest. The circumstance of last-seen-together is generally considered a clinching evidence if supported by other independent circumstances. When a person is found lastly in the company of the accused and soon thereafter his dead body is recovered, a strong suspicion would arise that the accused would have killed the person, but then, only on the basis of the evidence on last-seen-together an accused cannot be convicted and, that too, on the charge of murder. 26. In “Navneethakrishnan Vs. The State By Inspector of Police” reported in (2018) 16 SCC 161 , the Hon'ble Supreme Court has held that: “it is a settled legal position that the law presumes that it is the person, who was last seen with the deceased, would have killed the deceased and the burden to rebut the same lies on the accused to prove that they had departed”, and recently in “Rajender v. State (NCT of Delhi)” reported in (2019) 10 SCC 623 , the Hon'ble Supreme Court has reiterated the same principle; thus: “12.2.4. ….... Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company with the deceased. In other words, he must furnish an explanation that appears to the court to be probable and satisfactory, and if he fails to offer such an explanation on the basis of facts within his special knowledge, the burden cast upon him under Section 106 is not discharged. Particularly in cases resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, such failure by itself can provide an additional link in the chain of circumstances proved against him. This, however, does not mean that Section 106 shifts the burden of proof of a criminal trial on the accused. Such burden always rests on the prosecution. This, however, does not mean that Section 106 shifts the burden of proof of a criminal trial on the accused. Such burden always rests on the prosecution. Section 106 only lays down the rule that when the accused does not throw any light upon facts which are specially within his/her knowledge and which cannot support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce an explanation as an additional link which completes the chain of incriminating circumstances.” 27. But, to prove the charge under section 302 read with section 120-B of the Indian Penal Code like in every criminal trial the prosecution must lead cogent and consistent evidence establishing complicity of the appellants in the occurrence and what has been observed by the Hon’ble Supreme Court in “Shambu Nath Mehra Vs. State of Ajmer” reported in AIR 1956 SC 404 ; that section 106 of the Evidence Act cannot be used to undermine the well established rule of law that, save in a very exceptional class of cases, the burden is on the prosecution and never shifts, must be kept in mind. In a criminal trial, importance of the last-seen-together evidence cannot be over emphasized and before the onus shifts on the accused by operation of section 106 of the Evidence Act it must be found that the prosecution has established a prima-facie case against the accused. However, on this issue what is happening in a criminal trial is quite disturbing. In several cases the last-seen-together evidence is put forward by the prosecution sans facts and any supporting evidence and the trial Judges giving unmerited importance to the last-seen-together story invoke section 106 of the Evidence Act to draw adverse inference against the accused. A person who is facing a charge of murder may be a close relative, friend, co-worker or co-villager of the deceased and there may be circumstances, purely casual or accidental, in which both have been seen together. For example, a person is seen with a friend/ co-worker/co-villager in a market place, fair, movie show, or at the Airport or Railway Station and this may be just a coincidence and chance meeting, but, that by itself would not become an incriminating circumstance so as to fuel the last-seen-together theory. For example, a person is seen with a friend/ co-worker/co-villager in a market place, fair, movie show, or at the Airport or Railway Station and this may be just a coincidence and chance meeting, but, that by itself would not become an incriminating circumstance so as to fuel the last-seen-together theory. Therefore, as a general rule in every case an inference on complicity of the accused cannot be raised by invoking section 106 of the Evidence Act. The provisions of section 106 of the Evidence Act are very clear and do not admit any ambiguity. It clearly lays down that when any fact is especially within the knowledge of the person, the burden of proving that fact is upon him. Therefore, it must be first shown that the facts are pre-dominantly and without exception within the knowledge of the accused still he has failed to furnish an explanation which is probable and satisfactory. The homicidal death of a woman in her house would be of such kind provided it is proved by cogent evidence that her husband was the only person residing with her at the time of the death and every possibility of intrusion by a third person in the house is completely ruled out. The homicidal death of a woman in her house would be of such kind provided it is proved by cogent evidence that her husband was the only person residing with her at the time of the death and every possibility of intrusion by a third person in the house is completely ruled out. Except in the cases of that nature it would be equally hazardous to indicate any time-gap period so as to satisfy the “proximity test” for raising a presumption under section 106 of the Evidence Act and, therefore, we feel that even though the accused has remained silent and did not offer any explanation in his examination under section 313 Cr.P.C to the proved circumstance that the deceased was lastly seen in his company, besides the ‘triple test’ applied to weigh the circumstances relied upon by the prosecution the evidence on last-seen-together must pass another ‘triple test’, namely; (i) whether the time-gap between the accused lastly seen in the company of the deceased and the approximate time of the death was so little as to eliminate the probability of introduction of a third person and possibility of the deceased being killed in a manner different from what has been projected by the prosecution and the accused was so closely and intimately related to the deceased that an inference about his special knowledge regarding what had happened next after he was seen in the company of the deceased can be imputed to him, (ii) whether intention of the accused to do harm to the deceased can be gathered from the surrounding circumstances or any overt act of the accused, and (iii) still, the accused did not throw any light on the facts which are especially within his knowledge or disclose a reason which could have supported any theory or hypothesis compatible with his innocence. In “Babu Vs. State of Kerala” reported in (2010) 9 SCC 189 , the Hon'ble Supreme Court has held that a Court must be on guard to see that the application of presumption in a case does not result in any injustice or mistaken conviction. 28. All the prosecution witnesses are related to Ajay Ravidas, the deceased. PW-1 and PW-3 are brothers of the informant and PW-4 is the wife of PW-3. Sunil Ravidas PW-5 is also distantly related to the informant (Mausera Bhai). But on that count their testimony cannot be doubted. 28. All the prosecution witnesses are related to Ajay Ravidas, the deceased. PW-1 and PW-3 are brothers of the informant and PW-4 is the wife of PW-3. Sunil Ravidas PW-5 is also distantly related to the informant (Mausera Bhai). But on that count their testimony cannot be doubted. All that is required is to scrutinize their testimony with such care and caution as has been indicated by the Supreme Court in “Raju V. State of T.N.” reported in (2012) 12 SCC 701 . In Sucha Singh v. State of Punjab, (2003)7 SCC 643 , the Hon’ble Supreme Court has held as under: “13. ……Relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible”. 29. The mother of Ajay Ravidas has stated that she has seen her son going towards Sahid Mela Maidan with Nirmal Ravidas, Sadhan Chandra Dey and Srikant Das and the father of the deceased has stated that his wife has informed him that she has seen their son going towards Sahid Mela Maidan with the appellants. PW-3 has stated that he has seen the appellants near Sahid Mela Maidan and PW-5 has seen the appellants going with Ajay Ravidas but beyond this they have not stated anything. PW-1 and PW-4 who have deposed in the Court that they have seen the appellants near Hathbari forest have also not seen them in the company of Ajay Ravidas. None of the prosecution witnesses has stated anything which can reflect intention of the appellants. The appellants have not been found quarrelling with the deceased; there is no allegation of use of force by the appellants and; above all, no one has claimed that he has seen the appellants carrying any weapon. PW-1 and PW-4 have seen the appellants near Hathbari forest, however, they have not claimed that they have seen Ajay Ravidas in the company of the appellants. The place of occurrence is adjacent to nursery of the Forest Department and the nearby road is a thoroughfare. PW-1 and PW-4 have seen the appellants near Hathbari forest, however, they have not claimed that they have seen Ajay Ravidas in the company of the appellants. The place of occurrence is adjacent to nursery of the Forest Department and the nearby road is a thoroughfare. PW-1 has stated that G.T. Road is a thoroughfare and it is about half kilometer from his house. The Investigating Officer has also stated that the road near the forest is a thoroughfare . PW-3 has stated that there are several houses near Sahid Mela Maidan and Pithakiyari Basti is adjacent to Sahid Mela Maidan and people from Basti go to the Maidan. PW-6 has stated that there are about 2000-3000 houses in the Basti and Sahid Mela Maidan is about 2 feet to 3 feet from her house. Though she has emphatically asserted in her cross-examination that she understands meaning of 2 feet – 3 feet, ignoring this abrasion in her testimony it must be accepted that the village is densely populated. And, the distance between Sahid Mela Maidan and the forest is about ½ km, however, no one has seen any overact on the part of the appellants. On this issue there is something more to add. The Investigating Officer has stated that G.T. Road is about 300 yards from the forest and there is a colliery at which CISF personnel are deputed. It has also come in evidence that there were Hard Coke Fuel factories; one was Ma Tara Fuels, and the Forest Department was running an office inside the forest and people go to the nursery to buy plants. However, the Investigating Officer has not recorded statement of any person from these places and no one has come forward to depose in the Court that he has seen the appellants near Hathbari forest in the company of Ajay Ravidas. 30. In the aforesaid circumstances, evidence led by the prosecution on last-seen-together does not implicate the appellants in the crime. The appellants were found talking to each other at Sahid Mela Maidan and Hathbari forest but they were not seen there in the company of Ajay Ravidas. Therefore, only on the basis that Ajay Ravidas has left home in the after-noon of 24.07.2010 and gone towards Sahid Mela Maidan with the appellants no inference on complicity of the appellants in the crime can be drawn against them. 31. Therefore, only on the basis that Ajay Ravidas has left home in the after-noon of 24.07.2010 and gone towards Sahid Mela Maidan with the appellants no inference on complicity of the appellants in the crime can be drawn against them. 31. This is fundamental in a criminal trial that the credibility and trustworthiness of a witness are examined in the light of the collateral and surrounding circumstances as also on the anvil of broad probabilities and normal human behaviour and conduct. The minor inconsistency in the evidence of a prosecution witness may appear due to error of observation, lapse of time, loss of memory or mental disposition at the time of the occurrence and that is why it is well accepted that every witness cannot give graphic description of all the events that had happened on the fateful day. However, a witness should weather the cross-examination and his evidence must inspire confidence of the Court. 32. A remarkable feature of this case is that the prosecution witnesses have failed to give any satisfactory explanation regarding their presence near Sahid Mela Maidan and Hathbari forest. As to their claim that on 24.07.2010 they have seen the appellants talking near Sahid Mela Maidan or Hathbari forest, we find that their testimony is not reliable. PW-1 has deposed in the Court that in the evening of 24.07.2010 he was returning from Gopalganj on cycle and near Hathbari forest he has seen the appellants talking. He has stated that he had gone to Gopalganj to see his Mausi and Bua and had meal at their place. However, in his cross-examination he says that he can not remember the name of his Mausi and Bua and he admits that he did not state before the police that at about 5:00 p.m. on 24.07.2010 he was returning home after meeting his Mausi and Bua. In paragraph no. 25, wherein he has stated that he had meal at their place, he has virtually contradicted himself when he says that he stayed there for about 15-20 minutes. He has also failed to disclose name of the neighbour of his Mausi and Bua and in his cross-examination the defence has put a suggestion to him that he has no relative at Gopalganj, and he had not gone to Gopalganj on 24.07.2010. He has also failed to disclose name of the neighbour of his Mausi and Bua and in his cross-examination the defence has put a suggestion to him that he has no relative at Gopalganj, and he had not gone to Gopalganj on 24.07.2010. PW-3 has admitted in his cross-examination that he did not tell the police that on the fateful day he was going to the market. He says that he has seen the appellants from a distance of about 500 yards which is quite impossible. PW-4 has admitted in her cross-examination that she did not tell the police that her father was unwell; she has claimed that she was returning home in the evening of 24.07.2010 from Rajganj after seeing her parents. PW-5 has also claimed that at about 5:00 p.m. on 24.07.2010 he was going to the market and he has seen the appellants and Ajay Ravidas going to Sahid Mela Maidan, however, in view of his statements in the cross-examination his testimony also does not inspire confidence. From the evidence of the witnesses, particularly, that of the mother of Ajay Ravidas it appears that the appellants have been implicated in this case on mere suspicion, but then, suspicion howsoever strong can not take the place of legal evidence [refer, “Sharad Birdhichand Sarda Vs. State of Maharshtra” reported in (1984) 4 SCC 116 ]. In “State of U.P. versus Ashok Kumar Srivastava” reported in (1992) 2 SCC 86 , the Hon’ble Supreme Court, in the same vein, has observed that great care must be taken in evaluating circumstantial evidence and if the evidences relied on are reasonably capable of two inferences, the one in favour of the accused must be accepted. A strong suspicion could have arisen on complicity of the appellants in the crime had the prosecution proved that the dead body of Ajay Ravidas and the pistol were recovered at the pointing out of the appellants and the recoveries were proved so as to bring a part of their confessional statement under section 27 of the Evidence Act, but there again other circumstances should have formed a chain, a complete chain, to bring home guilt of the appellants. 33. There are several other lacunae in the prosecution’s case and the mistakes committed by the Investigating Officer during the investigation taken together have seriously shaken the foundation of the case. 33. There are several other lacunae in the prosecution’s case and the mistakes committed by the Investigating Officer during the investigation taken together have seriously shaken the foundation of the case. In the first place, the confessional statement of Srikant Das records that his statement was recorded near Tulia river but in his cross-examination the Investigating Officer has failed to explain why Srikant Das was taken to Tulia river and how his confessional statement was recorded there. The medical report reveals that sharp-cutting weapon was also used in the crime but it was not recovered. The bullets extracted from the body of Ajay Ravidas which were given to the Chaukidar by PW-2 were not sent for forensic examination and therefore the report of the Sergeant Major on the pistol and empty cartridges is of no use for the prosecution. No blood mark was seen by the Investigating Officer near the place of occurrence and the private parts of Ajay Ravidas which were found severed from body were not recovered. In this context, this may not be irrelevant to record that the case set-up by the defence is that Ajay Ravidas was a person of bad character who had relations with girls of the locality and that was the reason he was killed by some other person. There is no whisper by the witnesses about a conspiracy by the appellants to murder Ajay Ravidas. The mobile phone used by Ajay Ravidas and the appellants, particularly, Srikant Das were not recovered and the call-details during the after-noon of 24.07.2010 were not retrieved by the Investigating Officer. PW-6 has stated that next day of the occurrence Srikant Das was found absconding, however, PW-5 has deposed in the Court that Srikant Das was arrested from home on 25.07.2010. 34. There is one more aspect of this case which we shall now deal. On a reading of the judgment under appeal, we find that the learned Sessions Judge has strongly relied on silence of the appellants about recovery of the incriminating materials in their examination under section 313 Cr. P.C. 35. In their examination under section 313 Cr.P.C, the appellants have denied their involvement in the crime and stated that they have been falsely implicated in the case. P.C. 35. In their examination under section 313 Cr.P.C, the appellants have denied their involvement in the crime and stated that they have been falsely implicated in the case. In a case based on circumstantial evidence when the accused does not offer any explanation to the incriminating circumstance or the explanation given by him is found untrue then it provides an additional link in the chain of circumstances and complete the chain. However, whatever may be the case of the prosecution if the prosecution evidence does not implicate the accused with commission of the crime silence of the accused or a simple denial by him in his examination under section 313 Cr.P.C regarding any circumstance in the case would not go against him and no adverse inference can be drawn against him. In “Mohan Singh Vs. Prem Singh and another” reported in (2002)10 SCC 236, the Hon'ble Supreme Court has held that statement of an accused under section 313 Cr.P.C can be used for appreciating the evidence led by the prosecution but it is not a substitute for the prosecution evidence. In a criminal trial a charge can be said to be proved only when there is cogent, consistent and reliable evidence and on vague conjectures an accused can not be convicted. The reasons given by the learned Sessions Judge to convict the appellants for murder of Ajay Rabidas is unfathomable. 36. To conclude, there are gaps in the prosecution story on the most fundamental aspects of the case and the prosecution evidence contains more chaff than grain. The circumstances relied upon by the prosecution are not proved and obviously the chain of circumstances is not complete. Therefore, we hold that the prosecution has failed to establish the charge against the appellants beyond reasonable doubt. 37. Accordingly, the conviction and sentence of R.I. for life under section 302/120(B) IPC with fine of Rs. 15,000/-each and R.I. for 3 years and fine of Rs. 10,000/-each under section 201 IPC passed by the Additional Sessions Judge-II, Dhanbad in Sessions Trial No. 535 of 2010 are set-aside. The appellants, namely, Nirmal Ravidas, Sadhan Chandra Dey and Srikant Das, who are in jail custody, shall be released forthwith, if not wanted in connection to any other criminal case. 38. In the result, Criminal Appeal (DB) No. 236 of 2016, Criminal Appeal (DB) No. 419 of 2016 and Cr. The appellants, namely, Nirmal Ravidas, Sadhan Chandra Dey and Srikant Das, who are in jail custody, shall be released forthwith, if not wanted in connection to any other criminal case. 38. In the result, Criminal Appeal (DB) No. 236 of 2016, Criminal Appeal (DB) No. 419 of 2016 and Cr. Appeal (DB) No. 653 of 2016 are allowed. 39. Let the lower-court records be sent to the Court concerned forthwith. 40. Let a copy of the Judgment be transmitted to the Court concerned and concerned Jail Superintendent through FAX.