Judgment & Order (Oral):

Michael Zothankhuma, J.

1. Heard Mr. L.R. Mazumdar, learned counsel for the 2 appellants in Criminal Appeal No. 20/2022 and Crl.A. 52/2025 and Mr. D.K. Bagchi, learned Amicus Curiae, appearing for the appellant in Crl.A.(J) 117/2022. We have also heard Ms. A. Begum, learned Addl. PP for the State.

2. The three appellants herein have been convicted vide judgment dated 25/10/2021, passed by the Additional Sessions Judge (FTC), Cachar, Silchar, in Sessions Case No. 152/2009, under section 302 and 201 IPC. They have been sentenced to undergo rigorous imprisonment for life with a fine of Rs. 5000/- each, in default, simple imprisonment for 3 months under section 302 IPC. They have also been sentenced to undergo rigorous imprisonment for 3 years with a fine of Rs. 5000/- each, in default, simple imprisonment for 3 months under section 201 IPC.

3. The counsels for the appellants submit that there is no evidence to link the appellants with the death of the deceased. Further, despite the Learned Trial Court having come to a finding that the discovery of the alleged weapon used for killing the deceased had been made on the oral disclosure statement made by appellant Bholla Sankar Singh, there was no disclosure statement made by the said Bholla Sankar Singh. Further, the weapon had not been sent for FSL examination. They also submit that the seizure of the blood stained clothes of the appellants do not in any manner prove that the appellants had killed the deceased, in the absence of proof that the blood on the seized clothes was human blood or that it was the blood of the deceased. The Learned counsels for the appellants submit that the appellants have been convicted on the basis of circumstantial evidence, pursuant to the conjectures and speculation made by the Learned Trial Court, without there being any evidence to show that the appellants had been with the deceased immediately prior to his death. They accordingly submit that the impugned judgment should be set aside.

4. The learned APP, on the other hand, submits that the evidence adduced during trial shows that there was discovery of the knife and dao used in the killing of the deceased, on the basis of the oral disclosure statements made by the appellants Bholla Shankar Singh and Dibyakanti Paul @Tuton. She submits that when the disclosure statements made by the two appellants had resulted in the recovery of one dagger and one dao, which were the weapons used for killing the deceased, there was no infirmity in the conviction of the appellants by the learned Trial Court. The learned APP also submits that the medical evidence showing the injuries on the deceased, proved that the seized dagger and dao were the weapons which had been used for killing the deceased. She also submits that the statement of the appellant Shri Sanjib Sahu, which had been recorded under section 161 Cr.P.C, had been exhibited during trial as Ext. 14 and the same proved that the appellant Sanjib Sahu was also guilty of having taken part in the killing of the deceased. The learned APP also submits that the statement of the appellant Bholla Sankar Singh @ Bala Singha recorded by the police under section 161 Cr.P.C. and which had been exhibited at Ext.17 has clearly proved that he had killed the deceased with the dagger. Further, the statement made to the police by the appellant Dibyakanti Paul @ Tuton under section 161 Cr.P.C, which had been exhibited at Ext.15 was to the effect that Bholla Singh had used the dagger and the dao to kill the deceased. She also submits that the appellant Bholla Sankar Singh had apparently called up PW-7 on 06/10/2008, wherein he had asked PW-7 to keep Rupees 10 lakhs. The learned APP submits that the blood stained clothes of Sanjib Sahu having also been seized by the police, there was no infirmity in the learned Trial Court convicting the appellants for having killed the deceased. The learned APP, in support of her submission that the recovery of weapons having been made on the oral disclosure statements of the appellants Bholla Sankar Singh and Tuton, the same proved the guilt of the appellants, has relied on the Full Bench decision of this Court in the case of Rajiv Phukan & Anr. Vs. The State of Assam reported in 2009 SCC OnLine Gau 102. In para 37 of the said judgement, the Full Bench has observed as follows :-

                   “37. Though, it is true that the exact statement of an accused, which is sought to be proved, under Section 27, must be disclosed before the Court and that such a statement should be reduced into writing, in order to enable the Court to believe that such a statement had indeed been made by the accused and also to enable the Court know as to what the accused had exactly stated, the mere fact,-that the written record has not been produced, cannot be held to have made Section 27 inapplicable. With respect, we are of the view that the decision in Pandav Koya (supra), which gives an indication as if Section 27 would not apply at all to a case, where the disclosure statement is not proved to have been reduced into writing, is not a correct exposition of the law. Whether a Court, in a given case should, or should not, believe a disclosure statement, which has not been reduced into writing, is a question, which relates to the merit of the case and not to the admissibility of the oral evidence as regards the fact that the statement, leading to the discovery of a fact, has been made by the accused.”

5. We have heard the learned counsels for the parties.

6. The conviction of the three appellants have been made only on the basis of circumstantial evidence, inasmuch as, the learned Trial Court has come to a finding that the circumstantial evidence proved the guilt of the appellants in killing the deceased, beyond all reasonable doubt. The reasons given by the learned Trial Court for coming to the above finding and conviction of the appellants under section 302/201 IPC, which is at para 59 and 60 of the impugned judgment dated 25/10/2021, is reproduced herein below as follows:-

                   “59. Hon'ble Supreme Court in Sharad Birdhichand Sarda vs. State of Maharashtra so reported in (1984) 4 SCC 116 has laid down the golden principles of standard of proof required in a case sought to be established on the basis of circumstantial evidence. From the discussion of the evidences relating to the circumstances as described herein before, it appears that the following circumstantial facts stand proved beyond reasonable doubt;

                   (a) That the deceased Tapash Das went with accused Dibyakanti Paul @ Tuton to Paliapool Farm;

                   (b) That the accused person Dibyakanti Paul fleeing to his elder uncle's house when P.W.7 Sasanka Das came to enquire about his missing son reflects Dibyakanti Paul @ Tuton's conduct as envisaged u/s 8 of Indian Evidence Act;

                   (c) That accused persons Bhula Singh and Bikash Saha initially pleading ignorance about whereabouts of Tapash Das but later, Bhula Singh retorted that Tapash Das went to Palipool to attend a birthday party and thereafter, Bhula Singh left for Silchar;

                   (d) That P.W.3, P.W.4 and P.W.5 testified that Tapash Das wanted to go with accused Dibyakanti Paul @ Tuton, and that P.W.7 testified that P.W.3 and P.W.4 told him that Tapash Das went with Dibyakanti Paul @ Tuton, thus, evidence borne in C/R shows the deceased was with the accused Dibyakanti Paul @ Tuton before his death;

                   (e) That the accused person Dibyakanti Paul @ Tuton intentionally suppressed material facts about Tapash Das accompanying him to Palipool Farm;

                   (f) That recovery of the dead body on 05-10-2008 from under an abandoned Ambassador car at Palipool Farm and the fact that the dead body was identified by the informant which was further corroborated by the Medical Officer on the age side.

                   (g) All the accused persons led the police to recover the weapons, clothing apparels of the accused persons, wrist watch from their respective houses/premises after the crime. No explanation was offered to the police as to why the accused persons would conceal all such articles / materials only to be produced during the course of investigation.

                   60. Section 106 of the Indian Evidence Act also comes into play where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused persons. When the accused fails to offer proper explanation about the existence of said other facts, the Court can always draw an appropriate inference. When a case rests on circumstantial evidence, if the accused persons fail to offer a reasonable explanation in discharge of burden placed on them by virtue of Section 106 of the Indian Evidence Act, such a failure may provide an additional link to the chain of circumstances [relied on Parubai vs. State of Maharastra, decided by the Hon'ble Supreme Court on 10-08-2021 in Crl. Appeal 1154/2018].”

7. The learned Trial Court has held that the deceased Tapash Das had gone with the appellant Dibyakanti Paul @ Tuton to Pailapool farm. However, a perusal of the evidence of the informant (father of the deceased) and the 3 friends of the deceased, who are PW-7, PW-3, PW-4 and PW-5 respectively, shows that no one had seen the deceased going with the appellant Dibyakanti Paul @ Tuton to Pailapool farm. The evidence of PW-7 is to the effect that on 04/10/2008, he found his son (deceased) with PWs- 3, 4 and 5 in front of the shop of PW-3. He told his son to go back home. Thereafter PW-7 went back to his house and after taking his meal went to sleep. He came to know that his son did not return home the next morning. On asking PWs- 3, 4 & 5, he was told that the deceased had been taken away by the appellant Dibyakanti Paul @ Tuton to Pailapool Agriculture Farm. However, the evidence of PW Nos. 3, 4 & 5 is to the effect that while the deceased, PW Nos. 3, 4 & 5 were all standing together in front of the hotel of PW-3, PW-7 came and asked them to go home. Accordingly, all of them left for their respective houses, including the deceased. There is no whisper made by PW Nos. 3, 4 and 5 in their evidence, that the deceased had left his friends in front of respondent No. 3’s hotel, along with the appellant Dibyakanti Paul @ Tuton. Thus, it is clear that the evidence of PW-7 on this count which obviously is hearsay, has not been corroborated by the persons, who he has stated had informed him that the deceased had left the place with the appellant Dibyakanti Paul @ Tuton.

8. With regard to a question put by us as to whether there was any motive for the appellants to have killed the deceased, the learned APP has taken us to the evidence of PW-7, which was to the effect that the appellant Bholla Sankar Singh had asked him (PW-7) on 06/10/2008 to keep Rs. 10 lakhs. The evidence by PW-7 on this count does not give any reason as to why PW-7 was to keep 10 lakhs for the appellant Bholla Singh. There is no connection of the Rs. 10 lakhs demand allegedly made on 06/10/2008 with the discovery of the death of the deceased on 05/10/2008. Further, the deceased having apparently been killed between 4th and 5th October 2008, we fail to find any connection with the alleged call made to PW-7 by Bholla Sankar Singh on 06/10/2008. There is also no proof that Bholla Sankar Singh had called PW-7 on 06.10.2008.

9. PW-7, in his evidence, has also said that when he had gone to the house of the appellant Dibyakanti Paul @ Tuton, Tuton had left the house through the back door and gone to the house of his elder uncle. There also, Tuton had left the house of his uncle through the back door. PW-7 further stated that on a query made to Tuton by PW-7 with regard to the deceased, Tuton had denied accompanying the deceased to the Pailapool agricultural farm. PW-7 also stated that PW Nos. 3, 4 & 5 had confirmed that the deceased had gone with Tuton to the agricultural farm. The learned Trial Court has apparently accepted the evidence of PW-7, with regard to the conduct of the appellant Dibyakanti Paul @ Tuton, which showed his guilty conscience. However, as stated above, the evidence of PWs -3, 4 and 5 is totally contrary to the evidence of PW7 on this count.

10. The learned Trial Court also held that the appellant Bholla Singh and one Bikas Saha had initially pleaded ignorance about the whereabouts of the deceased but later, Bholla Sankar Singh had stated that the deceased had gone to Pailapool to attend a birthday party. This finding of the learned Trial Court has apparently been made on the basis of the statement of the appellant Bholla Sankar Singh to the Police under section 161 Cr.P.C, which is reflected in the evidence given by PW-7. However, the same is not corroborated by any evidence.

11. The learned Trial Court had also made a finding to the effect that PW Nos. 3, 4 and 5 had testified that the deceased wanted to go with the appellant Dibyakanti Paul @ Tuton and that PW-7 had testified that PW Nos. 3, 4 and 5 had told him that the deceased went with Dibyakanti Paul @ Tuton. However, the finding of the learned Trial Court is completely at variance with the evidence of PW Nos. 3, 4 & 5, who never stated that the deceased went with the appellant Dibyakanti Paul @ Tuton. The findings of the learned Trial Court that the appellant Dibyakanti Paul had intentionally suppressed material facts about the deceased accompanying him to Pailapool farm is not borne out by any evidence, inasmuch as, PW-7 had gone back home after telling his son and his friends to go home. Thus, PW-7 had no way of knowing where the deceased went or with whom after PW-7 had gone home. The friends of the deceased had also in their evidence stated that they had not seen the deceased going with the appellant Dibyakanti Paul @ Tuton to Pailapool farm. As such, it is not known from where the learned Trial Court came to a finding that the appellant Dibyakanti Paul had suppressed material facts regarding the deceased accompanying Dibyakanti Paul to Pailapool farm.

12. The recovery of the dead body on 05/10/2008 from an abandoned car at Pailapool farm does not in any manner prove that the death of the deceased had been caused by any of the appellants, as the recovery of the knife and dao by itself, without the same being sent for examination before the experts in the Forensic Science Laboratory (FSL) to prove whether the same was weapon used to kill the deceased is fatal to the case of the prosecution. There has been no examination by the experts, as to whether the weapons recovered by the police were the ones that had been used by the appellants in killing the deceased. There were also no eyewitnesses to the killing of the deceased and the prosecution has not been able to establish any motive for the appellants wanting to kill the deceased. The only grounds for convicting the appellants by the learned Trial Court and coming to a finding that they were guilty of the offence of Section 302/201 IPC, is on the basis of the statements made by the appellants before the police under Section 161 Cr.PC, which had been exhibited before the learned Trial Court and the alleged oral disclosure statements made by the appellants, which led to the discovery of the knife, dao and blood stained clothes of the appellants.

13. Further, there had been no examination of the seized clothes of the appellants done by experts in the FSL, to prove that the blood stained clothes was actually stained with blood and whether the blood, if any, was human blood or animal blood. Further, there was no examination whether the blood on the clothes belonged to the victim.

14. In the case of Nandu Singh vs. State of Madhya Pradesh (now Chattishgarh) reported in (2022) 19 SCC 301, the Supreme Court has held that in a case based on circumstantial evidence, motive assumes great significance. It is not as if motive alone becomes the crucial link to be established by the prosecution and in its absence, the case of the prosecution must be discarded. But at the same time, complete absence of motive assumes a different complexion and such absence definitely weighs in favour of the accused.

15. As stated in the foregoing paragraph, there is no motive for the appellants to kill the accused has been established by the prosecution and as such, a crucial link in the chain of circumstantial evidence is missing in the present case.

16. The evidence of the Investigating Officer IO) (PW-16) is to the effect that all the appellants were arrested and they confessed their guilt. Their oral disclosure statements led the Police to recover the weapons, which were used and concealed by them. In the case of Bodhraj alias Bodha and others Vs. State of Jammu and Kashmir reported in (2008) 8 SCC 45, the Supreme Court has held that mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given. Further, in the case of Ramanand @ Nandlal Bharti Vs. the State of Uttar Pradesh, (Criminal Appeal No. 64-65/2022), the Supreme Court has held the Para 53 & 54, as follows :-

                   “53. If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence along with his blood stained clothes then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter.

                   54. The reason why we are not ready or rather reluctant to accept the evidence of discovery is that the investigating officer in his oral evidence has not said about the exact words uttered by the accused at the police station. The second reason to discard the evidence of discovery is that the investigating officer has failed to prove the contents of the discovery panchnama. The third reason to discard the evidence is that even if the entire oral evidence of the investigating officer is accepted as it is, what is lacking is the authorship of concealment. The fourth reason to discard the evidence of the discovery is that although one of the panch witnesses PWD2, Chhatarpal Raidas was examined by the prosecution in the course of the trial, yet has not said a word that he had also acted as a panch witness for the purpose of discovery of the weapon of offence and the blood stained clothes. The second panch witness namely Pratap though available was not examined by the prosecution for some reason. Therefore, we are now left with the evidence of the investigating officer so far as the discovery of the weapon of offence and the blood stained clothes as one of the incriminating pieces of circumstances is concerned. We are conscious of the position of law that even if the independent witnesses to the discovery panchnama are not examined or if no witness was present at the time of discovery or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the discovery evidence unreliable. In such circumstances, the Court has to consider the evidence of the investigating officer who deposed to the fact of discovery based on the statement elicited from the accused on its own worth.”

17. The Supreme Court in the above case further held that it was not ready or rather reluctant to accept the evidence of discovery in view of the I.O. in his oral evidence, not having stated about the exact words uttered by the accused at the Police Station, regarding the disclosure statement made by him.

18. In the case of Prabhoo Vs. State of Uttar Pradesh reported in AIR 1963 SC 1113, it has been held that from the mere production of blood stained articles by the appellant, one cannot come to the conclusion that the appellant committed the murder. Even if somebody else had committed the murder and the blood stained articles had been kept in the house, the appellant might produce the blood stained articles when interrogated by the police. It cannot be said that the fact of production is consistent only with the guilt of the appellant and inconsistent with his innocence.

19. The above being said, we are surprised that the Trial Court could have allowed the statements made by the accused/appellants under section 161 Cr.P.C to the police to be exhibited during the trial and having accepted the same as evidence. Statements under section 161 Cr.P.C. cannot in any manner, be considered to be admissible in evidence and the same can only be used for the purpose of contradiction of the witness who made the said statement. This has been squarely laid down by the Supreme Court in the case of R. Shaji Vs. State of Kerala reported in (2013) 14 SCC 266.

20. In the case of State of Karnataka Vs. David Razario and another reported in AIR 2002 SC 3272, the Supreme Court has held that the exact information given by the accused while in custody, which led to the recovery of the articles has to be proved. The Supreme Court further held that it is, therefore, necessary for the benefit of both the accused and the prosecution, that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence, inasmuch as, the basic idea embedded in section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The Supreme Court thus held in paragraph 5 of the above judgement as follows:-

                   “5. The first question is whether the evidence relating to recovery is sufficient to fasten guilt on the accused. Section 27 of the Evidence Act is by way of proviso to Sections 25 to 26 and a statement even by way of confession made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused. This position was succinctly dealt with by this Court in Delhi Admn. v. Bal Krishan [(1972) 4 SCC 659 : AIR 1972 SC 3] and Mohd. Inayatullah v. State of Maharashtra [(1976) 1 SCC 828 : 1976 SCC (Cri) 199 : AIR 1976 SC 483] . The words “so much of such information” as relates distinctly to the fact thereby discovered, are very important and the whole force of the section concentrates on them. Clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. The ban as imposed by the 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. If all that is required to lift the ban be 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. The object of the provision i.e. Section 27 was to provide for the admission of evidence which but for the existence of the section could not in consequence of the preceding sections, be admitted in evidence. It would appear that under Section 27 as it stands, in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in the custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken into custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him. This information which is otherwise admissible becomes inadmissible under Section 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and the prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. 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 as 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. It is now well settled that recovery of an object is not discovery of a fact envisaged in the section. Decision of the Privy Council in Pulukuri Kottaya v. Emperor [AIR 1947 PC 67 : 48 Cri LJ 533 : 74 IA 65] 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. (See State of Maharashtra v. Damu [(2000) 6 SCC 269 : 2000 SCC (Cri) 1088 : 2000 Cri LJ 2301] .) 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. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given.”

21. In the present case, neither has the disclosure statement made by the appellants been recorded in writing nor have the Prosecution Witnesses given evidence stating the exact information/disclosure made by the appellants, which allegedly resulted in the discovery of the weapons and clothes.

22. In the present case, the evidence of the Doctor (PW-12), who conducted post-mortem examination on the dead body of the deceased is to the effect that he found multiple injuries on the deceased which are as follows:-

                   “Injuries: 1) Cut injury of the neck at the level of the 5th cervical vertibra, anteriorly extending wiż beyond the stamomastoid muscles on both sides measuring 10 x 5 cm. X spinal channel deapth cutting through skin, muscles, vessles, nerves, tracia, isofagus, vertebra and spinal cord.

                   2) Cut injury right side of face just above the lower jaw line from below the right axsear to the right side of chin measuring 10 x 3 cm. X bone deapth cutting across skin, muscles, vesseles, nerves and the mandeble bone.

                   3) Multiple stab wounds measuring 2 X 3 cm. X abdominal cavity found on the abdomen at dierete places. On explora-tion, intestines showed multiple perforation at various places. EEver Liver and the right kidney found punctured and contused on the interior surface.”

In the opinion of PW-12, death was instantaneous resulting from injuries to the neck and spinal cord, as described, which were ante mortem and caused by heavy sharp cutting weapon and was homicidal in nature.

23. Though the injuries sustained on the body of the deceased could have been caused by the seized dao and /or the dagger, the prosecution was to establish that the seized weapons had been used for killing the deceased. There being no eyewitnesses and the weapons not being sent for forensic examination, it would be difficult to prove that the seized weapons had been the weapons used for killing the deceased, especially when the alleged discovery of the weapons does not appear to have been made in terms of the decision of the Supreme Court in the case of David Rzario (Supra).

24. Further, the Supreme Court in the case of Mustkeen @ Sirajudeen Vs. State of Rajasthan reported in (2011) 11 SCC 724, has observed in para 25 as follows :-

                   “25. 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 object 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.”

25. The evidence of the prosecution witnesses nowhere indicates that the appellants were ever seen with the deceased and as such, the circumstance of “last seen together” is not applicable to the facts of this case. We find that the acceptance of the statements made by the appellants under section 161 Cr.P.C. as admissible evidence by the learned Trial Court, is misplaced. There was no blood stain on the seized dagger and the dao and the same were also not sent for forensic examination. There was no eyewitnesses to the crime. There is no statement made by the Investigating Officers (PWs-16 & 17) to the effect that the seized dagger and dao had been used for killing the deceased. Mere recovery of weapon is not sufficient to establish the charge of murder. Further, it is interesting to note that there is overwriting with regard to the seizure list made in respect of the dagger. The seizure list has two dates i.e. 06/10/2008 and 08/10/2008. There was no initials made in respect of the overwriting in the said seizure list. The date of the signature of the Chief Judicial Magistrate, Cachar, on the seizure list of the dagger is also overwritten, as it appears that there are the dates 07/10/2008 and 08/10/2008, apparently overwritten on the said document. Here also, there are no initials for the person who made the overwriting. The clothes of the appellants which were seized by different seizure lists, have also not been sent for forensic examination. The I.O. has also not proved that the seized dagger or the seized dao was the weapon used in the killing of the deceased.

26. All the above facts, in our view, does not allow us to draw an inference of guilt against the appellants, as all the alleged incriminating facts and circumstances cannot be said to be totally incompatible with the innocence of the appellants. In the present case, as there is no direct evidence, the chain of circumstantial evidence would have to be complete, to draw an inference that the appellants were guilty of the crime. However, as we find that there are serious infirmities in the manner in which the Learned Trial Court has come to a finding of guilt against the appellants, the impugned judgment is not sustainable, as the circumstantial evidence do not form a complete unbroken chain.

27. Due to the above reasons, we are not inclined to agree with the decision of the learned Trial Court, inasmuch as, the golden principles of the standard of proof required in a case for conviction on the basis of circumstantial evidence, as provided in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra reported in (1984) 4 SCC 106, has not been established. We find the findings of the learned Trial Court to be based on surmises and conjectures. We thus hold that the prosecution has not been able to prove the guilt of the appellants in respect of the charges framed against them, beyond all reasonable doubt. Accordingly, the appellants are acquitted of the charges framed against them, by giving them the benefit of doubt. Consequently, the impugned judgment dated 25/10/2021, passed by the Additional Sessions Judge (FTC), Cachar, Silchar, in Sessions Case No. 152/2009, is hereby set aside and the appeals stand allowed.

28. The respondents are directed to release the appellants immediately from judicial custody, if not wanted in any other case.

29. Send back the TCR.

30. In appreciation of the assistance provided by the learned amicus curiae, his fee should be paid by the High Court Legal Services Committee as per norms.