JUDGMENT : A.D. CHOUDHURY, J. 1. The Death Reference Case No.4/2019 and Crl.A.No.92(J)/2019 have been heard together and are being disposed of by this common judgment and order. 2. By the impugned judgment dated 27.09.2019 and the order of sentence dated 03.10.2019, passed by the learned Sessions Judge, Sivasagar in Sessions Case No.130(S-N) of 2018 arising out of GR Case No.390/2018 (PRC No.131/2018 & to Simaluguri GRPS case No.6/2018 under Sections 302, 302/34, 376(D) IPC, the appellant was convicted under Section 302 IPC and was sentenced to death and the accused Bikash Das was also convicted under Section 376(1) IPC and was sentenced to undergo Rigorous imprisonment for life and also to pay a fine of Rs.10,000/-and, in default, further simple imprisonment of three months. 3. The prosecution case in a nutshell is that on10.07.2018, the victim, a young female student of the 5th Semester of Assam Agricultural University, Jorhat, boarded the Down Dibrugarh Rangia (Kamakhya) Express from Sivasagar Railway Station at 08.52 AM and took her seat in the DSLR compartment attached next to the Engine. Her dead body was found lying in a half-naked condition at Simaluguri Railway Station in the toilet of the compartment. The incident was immediately reported to RPF and then to GRP at Simaluguri Railway Station. After observing all the formalities, the body of the victim was brought down to platform No.1 of Simaluguri Railway Station. A Railway Hospital Doctor immediately examined the body, and the victim was declared dead. Accordingly, GRPS UD case No.16/18 was registered, and an investigation was initiated. 4. Based on the materials recovered from the purse of the deceased, the mother of the deceased was called, and she identified the dead body at Simaluguri Railway Station. An inquest was conducted, and the body was sent to Sivasagar Civil Hospital for post-mortem examination. A formal FIR was lodged on the next date by the Station Superintendent of Simaluguri Railway Station, which was registered as Simaluguri GRPS Case No.6/2018 under Sections 302/376 IPC. 5. Based on the aforesaid ejahar, the investigation was started and on completion of the investigation, finding prima facie involvement of two accused persons including the present appellant in the commission of offence, the Investigating Officer filed a Charge Sheet vide C.S. No.3/18 dated 21.09.2018 against the two accused persons under Sections 302/376(1) IPC to stand trial in the Court. 5. Based on the aforesaid ejahar, the investigation was started and on completion of the investigation, finding prima facie involvement of two accused persons including the present appellant in the commission of offence, the Investigating Officer filed a Charge Sheet vide C.S. No.3/18 dated 21.09.2018 against the two accused persons under Sections 302/376(1) IPC to stand trial in the Court. Thereafter, the learned Judicial Magistrate First Class, Sivasagar, committed the case to the Court of the learned Sessions Judge, Sivasagar, for trial. After receiving the case record for committal, the case was registered as Sessions Case No. 130(S-N) of 2018. Thereafter, the learned Sessions Judge, Sivasagar, framed charges against the accused persons under Sections 302/376(1) IPC. Particulars of the acquisition of the above charges were read over and explained to the accused persons, to which they pleaded not guilty and claimed to be tried. 6. The prosecution also projected that on the next day of the incident, in a similar circumstance, another dead body of a woman was found at Mariani Railway Junction. Accordingly, Mariani GRPS Case No.14/2018 was registered. In the aforementioned case, the present appellant, along with another, was charge- sheeted in Sessions Case No. 130(S-N) of 2018 under Sections 302/376(1) IPC before the Sessions Judge, Sivasagar. The prosecution also projected that the present appellant made a confessional statement before the JMFC, Jorhat on 31.07.2018. 7. The prosecution’s case is based on circumstantial evidence. To bring home the charges against the accused persons, the prosecution side examined as many as 44 witnesses. After completion of the prosecution evidence, the accused were examined under Section 313 Cr.P.C, confronting them with all the incriminating circumstances so that the accused could explain the same. The co-accused, namely, Bipin Pandey adduced nine defence witnesses; however, the accused Bikash Das declined to adduce any defence evidence in his support. Upon conclusion of the trial and on appreciation of the materials available on record, the learned Trial Court opined that the prosecution had succeeded in establishing the charges brought against the accused Bikash Das beyond all reasonable doubt and accordingly, convicted him in the manner as recorded hereinabove. The other accused, namely, Bipin Pandey, was acquitted of the charges. 8. Heard Ms. B. Bhuyan, learned Senior counsel/Addl. PP. in Death Sentence Reference No. 4/2019 and Mr. A. Dhar, learned Amicus Curiae for the appellant in Criminal Appeal (J) No.92/2019. Also heard Mr. The other accused, namely, Bipin Pandey, was acquitted of the charges. 8. Heard Ms. B. Bhuyan, learned Senior counsel/Addl. PP. in Death Sentence Reference No. 4/2019 and Mr. A. Dhar, learned Amicus Curiae for the appellant in Criminal Appeal (J) No.92/2019. Also heard Mr. A.M Bora, learned Senior counsel/Amicus Curiae in Death Sentence Reference No. 4/2019 and, Ms. B. Bhuyan, learned Senior counsel/Addl. PP in Crl.A.(J) 92/2019. 9. Assailing the impugned judgment and order dated 27.09.2019 passed by the learned Sessions Judge, Sivasagar, Mr. A.M Bora, learned Senior counsel/Amicus curiae for the respondent, has argued that, save and except the alleged disclosure statement and extrajudicial confession, there is not even an iota of evidence against the accused to prove the charges. The learned counsel has also argued that even the disclosure statement leading to the alleged discovery of the weapons used in the commission of the offence is inadmissible in the absence of any disclosure statement of the accused persons. 10. Mr. Bora, learned counsel further contends that the conviction is based on the alleged extrajudicial confession; however, admittedly, such confessional statements were made during police custody and therefore, not admissible in terms of Section 25 and Section 26 of the Evidence Act. It is further contended by Mr. Bora, learned counsel that the circumstances, based on which the learned Trial Court convicted the accused, do not even raise any suspicion or hypothesis of guilt of the accused. There is no chain of evidence that points guilt only towards the accused; rather, according to him, this is a case of no evidence. 11. Per contra, Ms. Bhuyan, learned Senior counsel contends that the prosecution has been able to prove beyond all reasonable doubt, the chain of conclusive circumstances, which only points that it is the accused and none other, who committed the offence and therefore, the learned Trial Court was correct in convicting the accused persons and sentencing them. 12. We have considered the arguments advanced at the Bar by the learned counsels for the contesting parties and also the learned Amicus Curiae in the Death Sentence Reference. We have also carefully gone through the evidence available on record. 12. We have considered the arguments advanced at the Bar by the learned counsels for the contesting parties and also the learned Amicus Curiae in the Death Sentence Reference. We have also carefully gone through the evidence available on record. Since the basic arguments of the appellant’s counsel are to the effect that the evidence adduced by the prosecution side is wholly insufficient to establish the charges brought against the accused beyond a reasonable doubt, we propose to briefly analyze the evidence brought on record. 13. The prosecution projected PW-2 Sri Kailash Basfor to be the person, who had discovered the dead body in the toilet of the train. PW-36, Sri Aprajeet Saikia and PW-37, Biman Barua are two persons who brought the dead body from the toilet of the coach to the platform. PW-1 Brikodar Hazarika is a hospital attendant and Dr. Ranjit Das @ Rubi Ranjan Das is a doctor of the Railway Hospital, who declared the victim to have died. PW-3 Constable Pankaj Handique is the person to whom the PW-2 first intimated about the incident. PW-26 Abhishek Anand is a guard of the train and PW-27 Prabeen Kumar and PW-29 Tridip Chetiya are the Loco Pilots, who informed the fact of discovery of the dead body to PW-28 Dhireswar Boro, who is the Superintendent of the Simaluguri Railway Station. 14. The PW-4 Bapan Golder, PW-5 Mridul Das, PW-6 Nirmal Dey are different businessmen, who first witnessed the dead body which was brought to the platform. PW-7 Bimal Paul was one of the passengers of the coach, where the dead body was found. PW-8 Shantiram Pator is the Station Superintendent. PW-9 Head constable Madhuram Deka is projected to be on duty RPF of Mariani Railway Station, who searched one CCTV footage and identified the accused. 15. PW-11 Alok Chakraborty, PW-12 Kishore Barman, PW-15 Nasiruddin Ahmed, PW-16 Raju Majhi, and PW-17 Constable Polly Basumatary, who witnessed the crime scene recreation. PW-13 Tunu Das, PW-14 Haren Bora, PW-21 Nityananda Saikia, PW-22 Diganta Bora, PW-23 Md. Safikul Khan, PW-24 Subash Das are the seizure witnesses, which will be dealt at the appropriate time. PW- 19 Ratul Kumar Das and PW-20 Indreswar Gogoi are Laboratory Technician, who collected blood of the accused for DNA matching. PW-13 and PW -14 are the forensic experts. PW-13 Tunu Das, PW-14 Haren Bora, PW-21 Nityananda Saikia, PW-22 Diganta Bora, PW-23 Md. Safikul Khan, PW-24 Subash Das are the seizure witnesses, which will be dealt at the appropriate time. PW- 19 Ratul Kumar Das and PW-20 Indreswar Gogoi are Laboratory Technician, who collected blood of the accused for DNA matching. PW-13 and PW -14 are the forensic experts. PW-38 Major Munin Bordoloi is an employee of mobile service provider, who proved the issuance of the SIM Card recovered. PW-43 SI Gobinda Kalita and PW-44 Sri Atul Gogoi are the Investigating Officers (IOs). 16. PW-2 Kailash Basfor deposed that he went to Simaluguri Police Station on 10.07.2018 to see off one of his friends. He boarded Dibrugarh Rangia Express in the bogie next to the engine and when he went to the toilet of the coach and while opening the toilet door, he saw legs with shoes through half open door and immediately, informed to the PW-3 and RPF Person at platform, who in turn advised him to inform it to GRP. 17. PW-3 testified that PW-2 came to the RPF Post at Simaluguri Station and informed that, in the toilet of the coach attached next to engine, one girl was lying in a half naked condition with a Gamocha wrapped on her neck and accordingly, PW-2 along with one Inspector and other RPF staff went to the coach and GRP, Simaluguri Railway Station was also informed and while showing up to the toilet of the coach, he saw one girl in half naked condition, was lying inside the railway coach toilet. Accordingly, the matter was informed to the Railway Station Master. The dead body of the girl was brought out from the toilet to the Platform No. 1. After some time, Railway Doctor arrived at the spot and declared the girl to be dead. 18. PW-1 is the attendant of Simaluguri Railway Hospital. According to this witness, on 10.07.2018, the Superintendent of Simaluguri Railway Station asked him to attend the Railway Station with a medical team. When he arrived at Simaluguri Railway Station, he found a girl with a nosebleed lying on Platform No. 1. A red coloured Gamocha was found wrapped around her neck, and the zip of her pant was half opened. When he arrived at Simaluguri Railway Station, he found a girl with a nosebleed lying on Platform No. 1. A red coloured Gamocha was found wrapped around her neck, and the zip of her pant was half opened. By that time, the Railway Doctor arrived at the Simaluguri Railway Station, and, after examining the girl, the Railway Doctor declared her to be dead. The defence confronted this witness that he did not state before the police that the zip of the pant of the victim was half open; However, he denied such suggestion. 19. PW-4 and PW-5 are tea stall owners at Simaluguri Railway Station Platform No. 1. PW-6 is a pan shop owner at Simaluguri Railway Station Platform No. 1. These witnesses testified that on 10.07.2018, at around 9:10 a.m. Dibrugarh Rangia Express arrived at Simaluguri Railway Station at Platform No. 1. After some time, they saw the dead body of a girl being brought down from SLRD coach attached next to the engine, to Platform No. 1. Seeing that, they went to the place where the dead body was kept at the Platform. They also found that a Gamocha was wrapped around the neck, and the zip of her pant was half opened. These witnesses identified material Exhibit (Ext.) 1 as the said Gamocha. He is also a witness to the seizure list, Ext. 1. Nothing important is extracted from their cross-examinations. 20. PW-7 is an employee of Railway Mail Service (RMS), Simaluguri. According to this witness, he was on duty till 7.45 am of 10.07.2018, at RMS, Simaluguri Railway Station and after completing his duty, he obtained a train ticket for going to Mariani by down Dibrugarh Rangia express, which arrived at Simaluguri Railway junction around 9.10 am. He boarded the SLR coach, which consisted on that day of 3 parts, one part for physically disabled persons, one for passengers and the other for the luggage. While he boarded the said coach, no other passenger was present, and one bag was lying over a single seat. Thereafter, other passengers boarded the coach. After a few moments, PW-2 raised hue and cry as he found a dead body in the toilet of the coach. On hearing this, this witness and other passengers sitting in the said coach got down from the coach. GRP personnel arrived at the spot. Thereafter, other passengers boarded the coach. After a few moments, PW-2 raised hue and cry as he found a dead body in the toilet of the coach. On hearing this, this witness and other passengers sitting in the said coach got down from the coach. GRP personnel arrived at the spot. They brought down the dead body of one girl from the coach toilet and kept the same at platform No. 1. This witness also saw one Gamocha on the neck of the dead body, and the pant of the dead body was half opened. He identified the material Ext. 1 in the Court. During cross-examination, he stated that after he boarded the train, four to six numbers of Army personnel boarded the train. The carry bag was kept in a seat on the coach, and he did not use the toilet. 21. PW-8 is the Station Superintendent of Simaluguri Railway Station. According to this witness, on 10.07.2018 at around9.10 am 15928 down Dibrugarh Rangia Express arrived at Simaluguri Railway Station at Platform No. 1. While signaling the train to leave the Station, the Train Guard, PW-26 informed him that train could not be moved as one dead body was found in SLRD 05706 coach and the guard handed over him a written memo in this regard. Accordingly, he lodged the formal FIR before the Officer-in-Charge, GRP. He exhibited the FIR as Ext. 2 and signed it as Ext. 2(i). During the cross-examination, he stated that till his deposition, there was no CCTV at Simaluguri Railway Station. 22. PW-9 is a Head Constable of RPF attached to the Mariani RPF post and PW-33 is SI, Jayram, who was at the relevant point in time serving as Sub Inspector of the Special Intelligence Branch of RPF Mariani. Their statements are similar. On direction from the Divisional Security Commissioner (DSC), PWs-9 & 33, went to check the Up Kamrup Express from Mariani to Tinsukia in relation to serial murders in trains at 05:00 am on 12.07.2018. Thereafter, they searched CCTV footage of Avadh Assam Express, which left New Tinsukia Station on 11.07.2018 at 10.30 am. According to these witnesses, the reason for checking the CCTV of the said train (Avadh Assam Express) was that in the SLR coach of Avadh Assam Express, a dead body of a lady was recovered at Mariani Junction. Thereafter, they searched CCTV footage of Avadh Assam Express, which left New Tinsukia Station on 11.07.2018 at 10.30 am. According to these witnesses, the reason for checking the CCTV of the said train (Avadh Assam Express) was that in the SLR coach of Avadh Assam Express, a dead body of a lady was recovered at Mariani Junction. While going through the CCTV footage of New Tinsukia Platform No. 2 of 11.07.2018 at 10.30 a.m., they noticed that while the train entered New Tinsukia Station, one person got down from the coach towards Platform No. 2 by crossing the railway tracks. These witnesses also noticed that the person in question was in a hurry and frequently looked towards the coach. After several repeated views, the face of the man could not be seen in the CCTV footage. However, they saw a bag on the shoulder of that man. His forehead appears to be large with raised hair. After repeatedly observing the CCTV footage for four or five times, they could recognise his walking style. Thereafter, these witnesses went to the platform to search for a similar person at the New Tinsukia Platform. At about 6 a.m., an announcement was made regarding the arrival of the Dibrugarh Rangia Express at Plate Form No. 2. Thereafter, both PWs-9 & 33, searched the train for the suspect but found none. They also searched the next train, the Dibrugarh Rangia Train, but found no suspect in the train. This train left Tinsukia at about 6.30 am on 12.07.2018. While they were returning to the RPF Camp at Tinsukia at the Mariani end of Platform No. 2, they noticed one person carrying a bag on his shoulder, heading from the Mariani end to the Ledo end. Having suspicion as the man seemed similar to the person seen in the CCTV footage, they caught the person. When the person approached them, these witnesses could notice one nail scratch mark on the cheeks of the said person. 23. Accordingly, they interrogated the person, and the person stated that he was on his way to Duliajan. On their questioning, he failed to show any ticket, and accordingly, their suspicion intensified. They were in civil dresses; however, they identified themselves as RPF Personnel and checked his bag. On checking the bag of the person, they found some dirty clothes along with a new Gamocha. On their questioning, he failed to show any ticket, and accordingly, their suspicion intensified. They were in civil dresses; however, they identified themselves as RPF Personnel and checked his bag. On checking the bag of the person, they found some dirty clothes along with a new Gamocha. Thereafter, they searched the pocket of the said person and during the checking of the pocket of his pant, they found a pair of earrings and on inquiring about its owner, the person replied that the same belonged to his sister’s. Having suspicion, ASI Jayram sent the picture of the earrings through WhatsApp to the mobile phone of the two children of the woman, whose dead body was recovered at Mariani in Abadh Assam Train, and the said boys instantly replied that those earrings were of their mother’s. On ascertaining such a fact, they brought the person to the RPF post at New Tinsukia Station, who identified himself as Bikash Das. After taking him to the RPF post, the matter was reported to the DSC of RPF at Tinsukia and at 15.20 hrs. DSC arrived at New Tinsukia Platform and took custody of the said person. During the search of the bag, at the RPF post, they found one pair of ‘payal’ wrapped in polythene. One mobile phone (Material Ext.6) was also found in the pocket of the accused, the display of which was found locked. Railway journey Ticket (material Ext.12), platform tickets (material Ext.13-to 15), earring (material Ext.17) and one Gamocha (material Ext.18) were seized in the DSC office. Thereafter, the Assam Police Personnel arrived at the DSC office. During cross-examination, these witnesses admitted that they were in civil dresses without any arms. They further revealed that on 12.07.2018, they had searched CCTV footage relating to the arrival of the Abadh Assam Train dated 11.07.2018 at New Tinsukia Junction. They denied the suggestion of the defence that the mobile phone, ‘payal,’ railway tickets and other articles were not recovered from the possession of the accused, Bikash Das. They also denied that they made the statements for the first time in the Court, as regards the interception based on CCTV footage, finding of nail scratch marks on cheek of the accused Bikash, searching his bag, finding of earrings, etc. 24. PW-10 is the Doctor working as Senior Medical & Health Officer at Sivasagar Civil Hospital on 10.07.2018. They also denied that they made the statements for the first time in the Court, as regards the interception based on CCTV footage, finding of nail scratch marks on cheek of the accused Bikash, searching his bag, finding of earrings, etc. 24. PW-10 is the Doctor working as Senior Medical & Health Officer at Sivasagar Civil Hospital on 10.07.2018. He performed the postmortem on the dead body of the victim. He found a blood- stained, swollen face, bleeding from the nose, a double turn ligature around the neck with a knot present in the front of the neck. 25. Wounds position and character are as follows: Wounds position and character- Abrasions mark present to the frontal head Right side 2" X1%" (length X breath). Abrasion mark present to the right head 2½" X 2" size. Abrasion mark present to the right arm 3" x 2" size. Bluish black colour skin changes present to the back side of the crease of buttocks. Nail scratch is present in both breasts. Lateral side. 1" X ½"size. Bruise-position, size and nature- Bruises present in the abdominal wall. Anterior lateral position. 4" X 3" size. Peeling of the epidermis with whitedermis (pale dermis exposed) in the abdomen. Mark of ligature on neck dissection etc. Ligatures mark present over the neck, which is transverse and encircles the neck completely. Below the thyroid cartilage, the base of the ligature mark is soft and red. Enchymosis is present under the ligature mark. Knot is present in front of the neck. Pale white tissues are present distal to the ligature mark. Cranium & spinal canal: Scalp, skull, vertebrae- Swelling present in the scalp (frontal head of Rt. Side about 3" X 2" size with discontinuity of the skin dermis. Abrasion present in the scalp 3" X 2" size Membrane- Healthy. Brain & Spinal Cord- Healthy. More detailed description of injury or disease: Late Radha Kumari aged about 21 years, expired due to Asphyxia due to strangulation, which is antepartum in nature. The swelling of the face and cyanotic facial region. Protrusion of the tongue, abrasion mark of the hand (rt), facial region, frontal head, all are antepartum in nature, and ligature mark over the neck. This is Traverses and encircling the neck, which is Antepartem in nature. Above all, the findings are antepartum in nature. The peeling of the dermis of the Anterior lateral wall of the abdomen. Protrusion of the tongue, abrasion mark of the hand (rt), facial region, frontal head, all are antepartum in nature, and ligature mark over the neck. This is Traverses and encircling the neck, which is Antepartem in nature. Above all, the findings are antepartum in nature. The peeling of the dermis of the Anterior lateral wall of the abdomen. Both sides of the Abdomen are postpartum in nature. Blush black colour of the skin in the back side of the tunk and buttocks are postpartum intense. The duration of the injury is about 4-6 hours. NB: Vaginal swab collected for examination of the spermatozoa (sperm), which is unstained for laboratory test. Result. No sperm found in the vaginal smear examination He opined that the cause of death was due to strangulation, which is antepartum in nature. 26. During cross-examination, he stated that he did not see a mark of semen in the vaginal swab. During the examination, he did not find any sign of an injury mark in the private part of the victim. 27. PW-11, PW-12, PW-15, PW-16, PW-17 and PW-18 are persons who witnessed the crime scene recreation at Line No. 4, Simaluguri Railway Junction Platform No. 2 inside a railway coach. They deposed that on arriving at the said coach, accused Bipin Pandey demonstrated to the police by placing a Gamocha around the neck of a woman police and also stated that after wrapping the Gamocha on the neck, accused Bikash Das dragged the girl to the toilet, and the police recorded the entire scene in a video camera. PW-15 stated that the Gamocha was wrapped by accused Bikash Das, and PW-16 saw accused Bipin Pandey demonstrating how Bikash wrapped the Gamocha around the neck. 28. PW-13 and PW-14 are the two witnesses who witnessed the police discovering some hairs and blood stains on the seats of one railway coach standing in the platform No. 3. According to PW- 13, the police and other departmental people collected hair and blood there from, and the police seized the same. He proved Ext. 5 as the seizure list and Ext. 5(i) is his signature. However, PW-14 was declared hostile as he stated that police personnel asked him to sign a paper, and he, accordingly, put his signature on Ext. 5 and put his signature as Ext. 5(ii). He proved Ext. 5 as the seizure list and Ext. 5(i) is his signature. However, PW-14 was declared hostile as he stated that police personnel asked him to sign a paper, and he, accordingly, put his signature on Ext. 5 and put his signature as Ext. 5(ii). He denied his statement made before the police, stating that in his presence, the police recovered and seized some hairs and some drops of dry blood from a Railway compartment. 29. PW-17 is a Lady Constable attached to Simaluguri Police Station. During the crime scene recreation, she played the role of the victim as a dummy. According to her, from the platform, she entered the coach and took a seat, as demonstrated by the accused Bikash, and as stated by Bikash, she changed her seat by showing her back to the accused. Bikash Das also stated that Bipin Pandey was sitting with him, and he also stated during the crime scene recreation that after having a close discussion, he wrapped the gamocha around the neck of the victim, and after tying the knot on the neck, the victim was laid on the floor of the coach. Thereafter, accused Bikash disclosed that he and Bipin gagged the mouth of Radha Kumari as she raised hue and cry, then dragged her to the gate corridor and closed the door of the coach from inside. Accused Bikash also disclosed that while Bikash was holding the victim Radha Kumari by gagging her mouth, accused Bipin Pandey committed rape on Radha Kumari. Thereafter, Bikash committed rape on Radha Kumari. Accused Bikash also disclosed that, upon finding Radha Kumari dead, they dragged her to the toilet and kept her tied, and they got down at Simaluguri Railway Station. According to this witness, the entire demonstration was videographed, and during the demonstration, one Executive Magistrate from Nazira was also present with them. Some other persons have also witnessed the demonstration of crime scene recreation. A report was also prepared, which she proved as Ext. 7 and Ext. 7(2) as her signature. A similar process was again followed on 17.07.2018, being led by the accused Bipin Pandey. She denied the defence suggestion that the accused persons did not demonstrate the crime scene recreation voluntarily, and they were compelled to do so by the police. A report was also prepared, which she proved as Ext. 7 and Ext. 7(2) as her signature. A similar process was again followed on 17.07.2018, being led by the accused Bipin Pandey. She denied the defence suggestion that the accused persons did not demonstrate the crime scene recreation voluntarily, and they were compelled to do so by the police. During the cross-examination, she stated that she went to do the role and she did prepared and rehearsed on 16.07.2018 at platform No. 2. 30. PW-19 and PW-20 are two Laboratory Technicians at Sivasagar Civil Hospital, Joysagar. On 17.07.2018, at approximately 12:00 noon, two accused persons were brought to the hospital for the collection of bloods for DNA test. These witnesses recognised both the persons in the dock. According to these witnesses, under the supervision of Doctor Brajen Saikia (PW-35), Senior Medical & Health Officer, he, along with PW-20 Indreswar Gogoi, collected 2ml blood from each of the accused following the instruction of collecting blood for DNA testing. After collecting the blood in the specified vial, it was packed in an ice container and sealed in the presence of a superior officer. Dr. Brajen Saikia filled out the blood collection form. These witnesses proved the blood collection form as Ext.-9 and Ext.-10 respectively, and their signatures as Exts. 9(i)and 9(ii), Ext. 10 (i) and Ext. 10(ii) respectively. 31. PW-21, PW-22 and PW-23 are three witnesses who were projected by the prosecution to be seizure witnesses. PW-21 witnessed the seizure of a Video Camera (Panasonic Full HD Camera), two Pen Drives from Md. Safiqul Khan (PW-23), a Video Photographer. This witness proved the seizure list as Ext-11 and his signature as Ext-11(i). According to this witness, the seizure was done on 18.07.2018. This witness was also a witness to the seizure of railway compartment SLRD No. 05706 on 19.07.2018. He proved Ext.-1 as the Seizure list and Ext.-1(ii) as his signature. PW-22, on the other hand, also witnessed the seizure of Ext.-11, and he put his signature as Ext.-11(ii). 32. PW-23 was a professional videographer. He was the owner of a Panasonic Full HD Video Camera. According to this witness, on 15.07.2018, Additional SP, Headquarters asked him to give his service of videography on the early morning of 16.07.2018. He had videographed the crime scene recreation. He also stated in a similar line to that of PW-21 and PW-22. 32. PW-23 was a professional videographer. He was the owner of a Panasonic Full HD Video Camera. According to this witness, on 15.07.2018, Additional SP, Headquarters asked him to give his service of videography on the early morning of 16.07.2018. He had videographed the crime scene recreation. He also stated in a similar line to that of PW-21 and PW-22. He proved his signature in Exhibit-7 as Exhibit-7(3). During cross-examination, he stated that he saw the accused, Bikash Das, on 16.07.2018, and Bipin Pandey on 17.07.2018, both under police custody, with handcuffs. On both days, the police introduced the accused persons to him. Police asked him to interrogate the accused persons relating to the incident with the victim. He further stated during cross-examination that the memory card had crashed during the display in the court, and therefore, he could not compare it with the CD. 33. PW-24 is the Station Superintendent of Sivasagar Railway Station. He proved a railway ticket No. H 39452359 as M. Exhibit-6, a Journey ticket dated 10.07.2018 issued in Sivasagar Railway Station. During cross-examination, he stated that he could not say by whom or from whom the M. Exhibit-6 was purchased. 34. PW-25 is the mother of the victim girl. According to this witness, on 10.07.2018, her daughter came to Sivasagar Station to travel to the house of her maternal uncle at Farkatting by Dn. Dibrugarh Rangiya (Kamakhya) Express. According to her, at 08:18 AM, she procured a journey ticket. This witness was also accompanying her daughter. Her daughter was carrying a Meizu-2 brand mobile phone, her college ID card, a white colour T-shirt and a pair of plazo pants in her bag with other ladies' cosmetic items in her purse. She had also lent the victim Rs. 10,000/- to purchase a new mobile phone at Farkatting. According to her, on 10.07.2018 at about 08:48 AM, the train arrived at Sivasagar Railway Station Platform. While her daughter boarded the train, she saw one person at the railway coach gate wearing a white half shirt. She did not see any other person in the said coach at that time. According to her, she could recognise the person whom she saw in the train coach, and she also identified Bikash Das in the Court. According to her, after seeing off her daughter, she returned home. She did not see any other person in the said coach at that time. According to her, she could recognise the person whom she saw in the train coach, and she also identified Bikash Das in the Court. According to her, after seeing off her daughter, she returned home. On the same day, at about 10:30 to 11:00 AM, while she was in UCO bank, Saroj Singh rang her that there was a quarrel with one girl at Simaluguri Station and requested her to take more information from Janta Timber at Sivasagar. Hearing this, she went to Janta Timber, and then the owner of Janta Timber told her that the police had requested her to go to the police station. Accordingly, she, along with her 13-year-old son, went to Simaluguri Police Station and arrived there at around 12 noon. Thereafter, she was taken to Simaluguri Railway Station in a police vehicle and arriving there, she saw a massive gathering at the railway platform and then she saw that the dead body of her daughter was lying at platform No. 1. She witnessed an Assamese phulam gamocha wrapped around the neck of the dead body, reddish injury mark on her hand, and other parts of the body and injuries with bleeding on her face. Thereafter, the police asked about the details of the mobile number used by her daughter and some other facts. She identified Material Exhibit-1 as the gamocha wrapped around the neck of the dead body. She also identified Exhibit-7, the Meizu Dual SIM phone handset used by the victim, Exhibit-8, the book carried by her daughter, Exhibit-9, the purse bag carried by the victim, and M.Exhibit-9(1) to 9(9) various stationary items and clothes kept in the bag. She also identified the M.Exhibit-10 as the ID Card of her daughter issued by Jorhat Agricultural University. M.Exhibit-11(1) to M.Exhibit-11(6) are the shoe pair/wearing apparel used by her victim daughter. She also identified the accused in the dock to be the person whom she saw on 10.07.2018 while boarding her daughter in the train coach. She further deposed that the police did not take her to identify the accused after his apprehension, though they stated that they would take her to identify him. She also exhibited her statement, recorded before the Magistrate, as Exhibit14 and her signature as Exhibit 14 (1) to 14(6). 35. She further deposed that the police did not take her to identify the accused after his apprehension, though they stated that they would take her to identify him. She also exhibited her statement, recorded before the Magistrate, as Exhibit14 and her signature as Exhibit 14 (1) to 14(6). 35. During her cross-examination, she stated that in her Exhibit-14 statement, she stated that once her daughter boarded the train, the person whom she saw at the gate disappeared. She further admitted during the cross-examination that she said before the police that if the man she saw at the gate were shown to her, it would be difficult for her to identify the man due to her mental condition. According to her, after the death of her daughter, she saw the apprehended accused persons in photographs, in newspapers and on TV. 36. This witness was re-examined, and during her re- examination, she deposed that phone number 8011531332 was issued to her based on Exhibit-19 application filed by her, and she handed over the mobile phone SIM to her victim daughter for her use. Though initially, a 3G SIM was allotted subsequently, by taking her consent, her daughter converted the 3G to a 4G SIM, Though the phone number remained the same till her death, she used the said Airtel SIM in the mobile phone Exhibit-7. During her cross- examination by the defence, she stated that she did not state anything regarding taking a 3G SIM from Airtel and converting it to a 4G SIM and that her daughter used the mobile phone. 37. PW-26 is the guard of the train in question. PW-27 is the Assistant Loco Pilot of the train in question, and PW-29 is the Loco Pilot of the train in question. PW-26 deposed that PW-28, the Loco Pilot, informed him about the recovery of a girl lying in the SLR coach. After receiving confirmation from the Loco Pilot, he went to the SLR coach and found that the girl was lying in the toilet of the SLR coach. Accordingly, he informed PW-28, the Station Superintendent of Simaluguri Railway Station, and thereafter, the body of the girl was brought down to the platform. He proved Exhibit 15, the rough journal train journey. He proved Exhibit 15 (2)as the relevant entry relating to the arrival at Simaluguri Station. 38. Accordingly, he informed PW-28, the Station Superintendent of Simaluguri Railway Station, and thereafter, the body of the girl was brought down to the platform. He proved Exhibit 15, the rough journal train journey. He proved Exhibit 15 (2)as the relevant entry relating to the arrival at Simaluguri Station. 38. PW-27, the Assistant Loco Pilot, deposed that when the train was about to start from Simaluguri Railway Station, one person came to the pilot’s cabin and informed him and PW-29, the Loco Pilot, that a girl was lying at the SLR coach Accordingly, loco pilot went to the said coach and informed the matter to train guard and remained in the engine. 39. PW-29, the Loco Pilot, also deposed in a similar line. 40. PW-28, the Station Superintendent, testified that PW-36 and PW-37 were asked to bring the dead body from the toilet to the GRP Post. 41. PW-30 is the Officer-in-Charge of RPF Post Tinsukia Railway Junction, and he witnessed the seizure of two pen drives (Exhibit-17), which contain the CCTV footage installed at New Tinsukia Railway Station. During cross-examination, he admitted that he had not given any certificate to certify as to who copied it from the monitor to the pen drive and the contents in the pen drive. 42. PW-31 Assistant Superintendent of Police, HQ, Sivasagar, who seized various articles in connection with GRP Case No. 6/2018. According to this witness, during the investigation as required by the investigating officer, he sent 15 articles to the Director of Forensic Science, Assam, Kahilipara, on 18.07.2018 with 14 questionnaires. He proved Exhibit-18 as the requisition letter with questioners given by him to the Director, FSL. He also proved Exhibit-18(i) to 18(iii) as his signatures and Exhibit 18(iv) as the facsimile seal used by him while packing the articles for sending them to FSL. According to him, the articles were sent through one Sub Inspector Gobinda Kalita of Simaluguri GRP, as a special messenger. He proved the certificate of authority given to such officer as Exhibit-19 and his signature as Exhibit-19(i). This witness testifies that he received the report from the FSL, Kahilipara, opened the report packet and had gone through the same. He proved Exhibit-20 as a forwarding letter from FSL, Assam, addressed to him, and he has endorsed the report to the I.O. of GRP Case No. 6/2018. This witness testifies that he received the report from the FSL, Kahilipara, opened the report packet and had gone through the same. He proved Exhibit-20 as a forwarding letter from FSL, Assam, addressed to him, and he has endorsed the report to the I.O. of GRP Case No. 6/2018. He exhibited Exhibit-21 as the challan dated18.07.2018 relating to the blood sample sent for FSL. 43. During cross-examination, he deposed that I.O. made all the seizures, and he was not present during the seizure of the articles sent to FSL. The seized articles were kept with the I.O., till they are sent to FSL. During cross-examination, he further stated that as per Exhibit-18, he marked a copy of Exhibit 18 to the SDJM, Nazira and another copy to the Officer-in-Charge, Simaluguri GRP, the I.O of the case, with a direction to arrange to send the exhibit to the FSL Kahilipara with proper enclosure. During cross- examination, he admitted that there was no mention regarding the container in which articles were sent to FSL in Exhibit-18 and that he had not seized the brush seal put in Exhibit-18. 44. PW-32 is the SI of New Tinsukia GRP. He saw accused Bikash Das on 12.07.2018 in the office of DSC, Tinsukia. He witnessed seizure of M. Exhibit-7 Mobile Phone, M. Exhibit-6 Railway Journey Ticket from Sivasagar to Farkatting, M. Exhibit-12 Railway Journey Ticket from Tinsukia to Dibrugarh dated 11.07.2018, M. Exhibits 13 to 15, platform tickets issued by Tinsukia Junction dated 09.07.2018, 11.07.2018, 25.07.2018, M. Exhibit-16 on pair of towel wrapped in polythene recovered from the bag of accused Bikash Das, Material Exhibit-17 one pair of earring recovered from the pant’s pocket of accused Bikash Das, one white green Gamocha recovered from the bag of accused Bikash Das. 45. PW-32 is also a seizure witness of Material exhibit-6- 6, Material exhibit-7, Material exhibit-12, Material exhibits-13 to 15, Material exhibit-16, Material exhibit-17 and Material exhibit-18. According to this witness, the aforesaid Material exhibits were seized in his presence by the Officer-in-Charge of Simaluguri GRP from the bag of the accused, Bikash Das, and in the office of DSC, Tinsukia. During his cross-examination, he admitted that he cannot say where the bag containing the seized articles was recovered, and he saw the seized articles in one bag at the DSC office only. 46. During his cross-examination, he admitted that he cannot say where the bag containing the seized articles was recovered, and he saw the seized articles in one bag at the DSC office only. 46. PW-34 is the Circle Officer, Nazira, in whose presence the crime scene was recreated. He proved the report of crime scene recreation as Exhibit-8 and his signature in the said report as Exhibit-8(1). During cross-examination, he stated that he was present as a witness to the crime scene recreation and he has no role except witnessing the same. 47. PW-35 is the senior Medical and Health Officer at Sivasagar Civil Hospital at Joysagar, who collected blood and hair from the two accused persons for a DNA test with the assistance of Indreswar Gogoi, PW-20 & Ratul Kr. Das PW-19. He recognized both the persons in the dock. According to him, under his supervision, PW-19 & PW-20, collected the blood samples from each of the accused. He proved Exhibit-9 and Exhibit-10 as blood collection reports from accused Bikash Das and Bipin Pandey, respectively and his signature as Exhibit-10(III). He denied the suggestion of defence that he did not supervise the entire process of taking the blood sample and packing it. 48. PW-36 and PW-37 are temporary employees at Simaluguri Railway station who brought down the dead body from the toilet of SLR coach to the platform No.1 at 10.07.2018 at 8.30 AM on the instruction of the station master. Their cross-examination is not so relevant. 49. PW-38 is the Principal Circle Nodal Officer, Bharati Airtel Limited, who testified that the company used to obtain signed applications with details of applications, including photographs and detailed addresses, with ID cards for providing mobile phone connections. He exhibited Exhibit-19, the application form in original along with voter ID card, based on which a SIM vide No.89915604000100179194 was issued to mobile No.8011531332, and he deposed that the original SIM issued was for 2G/3G. The said SIM card was shown to him by taking it out from the mobile in the court, and he stated that such sim was registered under Airtel, but it was later upgraded to 4G, and he proved Exhibit-12 as a 4G SIM bearing No.8991000900583572691U. 50. During cross-examination, he testified that he could not remember till when the mobile phone number remained active . 50. During cross-examination, he testified that he could not remember till when the mobile phone number remained active . He further stated that he cannot confirm that the mobile phone number mentioned in Exhibit 19 is of the material in Exhibit 12 (c), and his evidence is based on the record of Exhibit 19. 51. PW-39 and PW-40 are Forensic Experts. PW-39 is a Scientific Officer at the Serology Division, Directorate of Forensic Science, Assam. He received two parcels under memo No.SVR/V/2018/FSL/2019 dated 18.07.2018 on 19.07.2018 advising examination of the said parcels in connection with Simaluguri PS case No.06/2018 under section 302/376 IPC. He found one parcel sealed in an ice box and one sealed big big-sized paper envelope consisting of 15 exhibits enclosed with a cover which was sealed with the impression of a seal corresponding with the seal impression “forwarded seal”. Sero 4042/A, Sero 4042/D, Sero 4042/E and Sero 4042/F gave positive tests for human blood and semen. Sero-4042/B, Sero 4042/C and Sero 4042/H gave negative tests for blood and semen. Sero-4042//GG gave a positive test for human semen and a negative blood test. 52. PW-41 is JMFC cum Munsiff No.1, Jorhat, before whom the accused Bikash Das made a confessional statement under section 164 Cr.P.C in connection with another case (Mariani GRPS Case No.14/2018) and such statement was recorded on 31.07.2018. During cross-examination, he stated that, in the order sheets dated 31.07.2018 and 02.08.2018, there was no mention of giving prior warning to the accused Bikash Das about the consequences of confession, though he was verbally warned. During cross-examination, he further stated that Bikash Das was sent to police custody from 26.07.2018 to 31.07.2018. Upon production on 31.07.2018, the accused expressed his willingness to confess his guilt before him, but had declined to make any confession before SDJM Nazira in Simaluguri GRPS Case No.6/2018. 53. PW-42 is the witness to the seizure of two pendrives by Officer-in-Charge GRP from Simaluguri from Inspector T. Shanti Kumar Singha, and he proved the exhibit-17 seizure list and his signature as Exhibit-17(ii). During cross-examination, he deposed that he had loaded the footage of the CCTV cameras of platform No.1 & 2 from the computer system kept in their office as asked by the officer-in-charge GRPF. He further admitted that he had not given any certificate in this regard of his authority to load the footage on the pendrive. 54. During cross-examination, he deposed that he had loaded the footage of the CCTV cameras of platform No.1 & 2 from the computer system kept in their office as asked by the officer-in-charge GRPF. He further admitted that he had not given any certificate in this regard of his authority to load the footage on the pendrive. 54. PW-43 is one of the I/O of the case. His important relevant testimony is to the effect that during the investigation, he seized the bag found near the dead body and the articles found inside the purse. He also saw the phulam gamusa tied around the neck of the deceased (Material Exhibit 1). He also saw blood stains on the face and neck of the body. He sent the dead body for a post-mortem report. He proved the dead body forwarding challan as Exhibit 32 and his signature as Exhibit 32 (1). According to the witness, after the post-mortem examination, the wearing apparels of the deceased were handed over by doctors after packing them in a separate paper envelope to the dead body escort party, and he seized those from his escort party and proved Exhibit-33 to be the seizure list. He also testified that he found the accused, Bikash Das, being kept in the office of DSC Tinsuka and found a bag with him. He interrogated Bikash Das in the said office and on being shown by accused Bikash the articles of the said bag were seized from him in presence of witnesses. The materials were material exhibit-6, material exhibit-7, material exhibit-12, material exhibits- 13 to 15, material exhibit-16, material exhibit-17 and material exhibits-18, 19 & 20. He exhibited the statement of Bikash recorded under section 161 Cr.P.C as exhibit-35. According to this witness on 12.07.201, on being led by accused Bikash, they searched the rented house of co-accused Bipin Pandey and seized certain suspected articles. Subsequently, on 14.07.2018, Bipin Pandey was apprehended by Dibrugarh police and was forwarded to Sivasagar police and was accordingly arrested. According to this witness, accused Bipin admitted in his statement recorded under section 161 Cr. P.C. that while he, along with Bikash, was travelling by the Down Dibrugarh Rangia express, one woman came to Sivasagar station with one girl to see off the girl and put her in the coach in which they travelled. This witness proved such a statement as Exhibit 36. P.C. that while he, along with Bikash, was travelling by the Down Dibrugarh Rangia express, one woman came to Sivasagar station with one girl to see off the girl and put her in the coach in which they travelled. This witness proved such a statement as Exhibit 36. This witness also testified as regards recreation of the crime scene on 16.07.2018 through accused Bikash Das, and that such exercise was carried out in the presence of Executive Magistrate and other witnesses and subsequently on 17.07.2018, the crime scene was recreated through accused Bipin Pandey and the exercise was carried out in the presence of Executive Magistrate Dr. Ganesh Ch. Das and other witnesses. According to this witness, on both days of the crime scene recreation, police personnel were outside the coach. He also testified that PW-17 Smt Polly Basumatary, PW-23, was a dummy victim. He exhibited the crime scene recreation report as exhibits 7 and 8, respectively, and his signature therein. He also testified that after the recreation of the crime scene, he had seized the camera used by the PW-23 and two pendrives containing video recordings of the crime scene. He proved the seizure list as Exhibit 11. He also testified that during the investigation, by obtaining permission from the Court, accused Bipin and Bikash were sent to Sivasagar civil hospital to collect blood from them for DNA matching and blood samples were sent to FSL through Additional SP, Sivasagar. He also testified that he seized two pendrives containing CCTV footage from RPF post Tinsukia and proved exhibit-17, seizure list. He also testified that due to his illness, the investigation was handed over to PW-44. During cross-examination, he deposed that a lady constable removed the clothing from the body of the victim and that in the inquest report, it was mentioned that no injury was seen in the private parts of the victim. After the inquest, the wearing apparels were again put on the body of the victim by the lady constable. 55. Regarding Exhibit 31, he stated that the seizure list for Exhibit 31 was prepared on July 10, 2018, at 12:00 noon. The seized articles under exhibit-31 were not kept separately by being kept in individual packets, and they were not packed, and no signatures of the seizure witness were taken on the said articles. 55. Regarding Exhibit 31, he stated that the seizure list for Exhibit 31 was prepared on July 10, 2018, at 12:00 noon. The seized articles under exhibit-31 were not kept separately by being kept in individual packets, and they were not packed, and no signatures of the seizure witness were taken on the said articles. He also admitted that there is no record that there is no mention either in the exhibit-33 seizure list or in the case diary that the seized articles under exhibit-33 were kept in separate packets. He also stated that in exhibit-33 seizure list, there was no mention regarding the presence of semen or blood stains in the clothes seized under Exhibit 33. This witness further stated that he recorded the statement of the mother of the victim (PW-25) on11.07.2018 at 2.30 AM, and in her statement recorded under section 161 Cr. P.C., PW-25, stated before him that even if she sees the person, it will be difficult for her to identify. He was confronted with the fact that PW–9 Madhu Ram Deka did not state before him what was stated in the witness box. This witness also stated that the articles under exhibit-3 seizure list were shown to him by one SI Sankar Kumar Das of RPF at DSC Office, Tinsukia. He also stated that RPF personnel did not seize the articles during the recovery of the seized articles. This witness also stated during cross- examination that he recorded the statement of accused Bikash Das on 12.07.2018 at 7.15 pm and of Bipin Pandey on 14.07.2018 at about 12.30 PM and that there is no endorsement that the above statements were produced before the Magistrate. He also stated that he has not collected the CCTV footage of 12.07.2018 and of Bikash Das, who was apprehended for the DSC office . He also stated that he has not examined any person from Tinsukia Railway Station to ascertain that the accused Bikash was actually apprehended by PW-9 & PW-33 on 12.07.2018 at morning hours with one blanket. He also stated that he has not made any investigation or collected CCTV footage of those who purchased the railway ticket platforms (item Nos 2 to 5 of exhibit-3) and that in exhibit-3 there was no mention that the seized articles belong to the victim. He also stated that he has not made any investigation or collected CCTV footage of those who purchased the railway ticket platforms (item Nos 2 to 5 of exhibit-3) and that in exhibit-3 there was no mention that the seized articles belong to the victim. He has also stated that he has not investigated the ownership of the mobile phone or the two SIM cards found in the seized mobile phone (item 1 of exhibit-3). He also deposed that he has not investigated the friends of the deceased or those with whom she used to talk on the mobile phone. He had also not investigated with whom the deceased talked by using her mobile phone. He also stated that before the crime scene recreation, no permission was taken from the court. He also stated that during crime scene recreation on 16.07.2018 and 17.07.2018, Additional SP Headquarter, DSP Headquarter, SDPO Nazira and DSP GRP Lumding Division, and he himself were present. CRPF personnel were also present, and a total 50-60 police personnel were present. He also stated that he did not produce exhibits 7 and Exhibit 8 in the court during the investigation. He stated that he did not follow the requirements of Section 65D while seizing the pendrive from the videography. He admitted that while taking samples, the accused persons were in police remand and were with him. While taking permission to collect a sample, he had not produced the accused before the court for taking consent and no consent was taken from the Magistrate before obtaining permission for collecting blood samples. He also stated that while sending the gamusa to FSL, there was mention of the presence of blood and semen in the said gamusa. He admitted that he has not sent the article to FSL, and Additional SP, Headquarters sent those on 18.07.2018. While denying the defence suggestion that the seized articles were not kept separately, he admitted that there was no mention in the case diary that the seized articles were kept in a separate packet. 56. PW-44 is the other I/O. According to this witness, he initiated the investigation on 19.07.2019, seized the SLRD coach No. 05706, and recorded the statement of the victim's mother, sent her to court to have her statement recorded under Section 164 CrPC. P.C., and he has also interrogated the accused person in police custody and recorded his statement. 56. PW-44 is the other I/O. According to this witness, he initiated the investigation on 19.07.2019, seized the SLRD coach No. 05706, and recorded the statement of the victim's mother, sent her to court to have her statement recorded under Section 164 CrPC. P.C., and he has also interrogated the accused person in police custody and recorded his statement. Although the previous IO had also recorded their statement, they had also collected the reports from FSL and filed the charge sheet (Exhibit 37). 57. In the backdrop of the evidence above led by the prosecution, this Court is called upon to examine whether the prosecution has succeeded in establishing the charges brought against the accused persons beyond a reasonable doubt. 58. It is clear from the prosecution's case, as presented through their witnesses, that their case is based on circumstantial evidence. It is by now well settled that circumstantial evidences are evidences not based on direct eye-witness accounts, but based on evidence from which the guilt of an accused can be inferred. It consists of a chain of facts and events that, when linked together, point conclusively to the guilt of the accused. Unlike direct evidence, circumstantial evidence requires the Court to draw inferences. It is equally well settled that the prosecution, while relying on circumstantial evidence, must prove its link in the chain of circumstances beyond a reasonable doubt. If any link is weak or missing, the benefit of the doubt must go to the accused. In Sharad Birdhi Chand Sarda Vs. State of Maharashtra reported in 1985 SCR (1 ) 88 , the Hon’ble Apex Court laid down five golden principles, which are as follows: a) The circumstances from which guilt is to be inferred must be fully established. b) The fact so established should be consistent only with the hypothesis of guilt of the accused. c) The circumstances should be of a conclusive nature and tendency. d) They should exclude every possible hypothesis except the one to be proved. e) There must be a complete chain of evidence so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. 59. It is also equally well settled that when relying on circumstantial evidence, the prosecution must establish a complete chain of circumstances, consistent with the hypothesis of guilt.Suspicion, however strong, cannot replace legal proof. 60. 59. It is also equally well settled that when relying on circumstantial evidence, the prosecution must establish a complete chain of circumstances, consistent with the hypothesis of guilt.Suspicion, however strong, cannot replace legal proof. 60. The Hon’ble Apex Court in Hanumant Vs State of Madhya Pradesh reported in 1952-2 SCC 71 , reminded that in cases, where the evidence is circumstantial , the circumstances from which the conclusion of guilt is to be drawn should be, in first instance is fully established, and all the facts so established should be consistent only with the hypothesis of guilt of the accused. The chain must be so complete that it rules out any theory other than the guilt of the accused. 61. In criminal jurisprudence, the circumstantial evidence is admissible and can lead to a conviction, but only if it satisfies a strict standard as recorded hereinabove. The prosecution has the onus to eliminate all reasonable hypotheses except that of the accused’ guilt. Any gap in the evidentiary chain mandates acquittal. Such a principle is based on another important principle that the liberty of an individual cannot be curtailed unless guilt is established with absolute certainty, even when relying solely on circumstantial evidence. 62. To summarize, what the prosecution must establish is a complete and unbroken chain of circumstances, which are established and points only to the guilt of the accused, and it excludes every other possible hypothesis. It is seen from the different judicial pronouncements that the Courts in India, while dealing with the circumstantial evidence, follow a conservative and cautious approach, especially in cases involving the death sentence or life imprisonment, motive-based prosecution and where scientific and forensic evidence are missing or inconclusive. 63. As would be apparent from the materials on record, the prosecution's case is heavily based on the extrajudicial confession of the accused in the shape of crime scene recreation. Apart from that, another critical projection of the prosecution is the recovery of jewellery from the accused appellant. 64. The circumstances projected by the prosecution and accepted by the learned Trial Court, to have been established beyond a reasonable doubt and exclude every possible hypothesis except that the accused appellant has committed the offence, can be summarized as follows:- I. Recovery of the Meizu mobile phone, which belonged to the deceased, from the possession of the accused Bikash Das. II. II. Recovery of the Railway journey ticket of Sivasagar to Farkating issued by Sivasagar Railway Station on 10.07.2018 from the possession of the accused Bikash Das. III. DNA test result, particularly for the M. Exbt.1 Gamocha found on the neck of the deceased. IV. Admission of accused Bikash Das before police regarding travelling by train (Dibrugarh Rangia Down Express) on 10.07.2018. V. Motive of the accused persons in committing the crime. VI. The confessional statement of the accused Bikash Das recorded in connection with the Mariani GRPS Case No.14/2018. VII. Recognition of the accused Bikash Das by the mother of the deceased at the Railway coach gate. VIII. Non-explanation by the accused persons in respect of the incriminating materials put to them during their examination u/s 313 Cr.P.C. IX. The extrajudicial confession of accused Bikash Das and Bipin Pandey before Md. Sofiqul Khan, the videographer during the process of crime scene reconstruction as an additional circumstance against the accused Bikash Das and Bipin Pandey. 65. In the case in hand, through the evidence of PW-2, Kailash Basfor and PW-3 Constable Pankaj Handique, the prosecution has been able to establish beyond a reasonable doubt that on 10.07.2018, a female dead body was recovered from the toilet of SLRD 05706 Coach of Abadh Assam Express. 66. Through the evidence of PW-4, PW-5, PW-7, PW-36 and PW-37, the prosecution has also been able to establish that after recovery of the dead body, the moving train was halted, and the dead body was taken to the platform No.1 of Simaluguri Railway Station. Through the evidence of PW-10, Dr. Rupam Borkakoty, who performed the post-mortem examination, the prosecution has also been able to establish that the death was homicidal in nature and the cause of death was due to strangulation, which is ante- partum in nature. The prosecution has also been able to establish that the body was that of the alleged victim. 67. Now, therefore, what remains to be established by the prosecution as to whether the accused appellant has committed rape on the victim and killed her? As recorded hereinabove, the evidence relied on by the prosecution is circumstantial in nature, and there is no direct evidence to link the accused to the commission of the offence. 68. 67. Now, therefore, what remains to be established by the prosecution as to whether the accused appellant has committed rape on the victim and killed her? As recorded hereinabove, the evidence relied on by the prosecution is circumstantial in nature, and there is no direct evidence to link the accused to the commission of the offence. 68. The circumstances projected by the accused pointing accusation against him, firstly, is the recovery of the phone of the victim from the possession of the accused and the recovery of the railway journey ticket from Sivasagar to Farkating dated 10.07.2018. Another vital circumstance according to the prosecution is the admission of the accused before police regarding his travel by the train in which the body was recovered on 10.7.2018, and his confessional statement recorded in connection with another case relating to the death of another victim in connection with Mariani GRPS Case No.14/2018. The other critical chain is the alleged identification of the accused by the mother of the deceased, and want of explanation of the accused person under section 313 Cr.P.C and also the extrajudicial confession made by two accused persons before the videographer during the process of crime scene recreation. 69. So far, relating to the recovery of the phone allegedly belonging to the deceased from the possession of accused Bikash Das, the prosecution heavily relied on the evidence of PW-9 Constable Madhuram Deka and PW-32 SI Sankar Kumar Das. 70. As per the evidence of PW-33, SI Jayram, they found one Meizu phone in the pocket of the accused Bikash Das, who failed to open the phone and also failed to give the number of the phone. They also found one pair of earrings in the pocket of the accused. However, admittedly, they did not seize these materials; instead, they took the accused to the RPF post and the matter was reported to the Divisional Security Commissioner, and seizure was made in the Office of the Divisional Security Commissioner (DSC). Thus, the seizure was made inside the Office of the Divisional Security Commissioner. The IO confirmed that he found the accused Bikash Das in the DSC office, and the articles including the Meizu Phone were seized from the bag in presence of witnesses. Thus, the seizure was made inside the Office of the Divisional Security Commissioner. The IO confirmed that he found the accused Bikash Das in the DSC office, and the articles including the Meizu Phone were seized from the bag in presence of witnesses. During cross-examination, the IO confirmed that he has not examined any person from Tinsukia Railway Station to ascertain that the accused Bikash Das was actually apprehended by PWs-9 & 13 on12.07.2018. 71. Section 100 (4) and (5) Cr.P.C, mandates that ordinarily independent and respectable inhabitants of the locality should be called to witness search and seizure. If no such witness is joined, the prosecution is required to give a reasonable explanation, otherwise, the recovery evidence is considered weak and suspect. It’s true that absence of independent witnesses does not ipso facto vitiate the recovery, but makes it unsafe to rely solely on Police testimony, unless, it inspires confidence. 72. In the case in hand, the first recovery is said to have been effected in a public place and it is also testified by PW-9 & PW-33 that many other persons were present, however, instead of informing the jurisdictional police by detaining the accused in the platform itself so as to make the recovery in the place where the materials were recovered, these two RPF personnels brought the accused to the office of the DSC at around 7.30 to 8 AM and the seizure was made by PW-20 at around 9 PM on the same day inside the police station. In our opinion such a conduct, in the given facts of the present case, is contrary to fair investigation and cast a doubt and inasmuch as, no explanation is forthcoming from the prosecution that the seizure at the spot was genuinely impossible; there was absence of public witness, rather the evidence is otherwise. 73. Even if it is assumed that the seizure was duly made, however, the prosecution is duty bound to establish that the material so seized, i.e., the Meizu phone, as well as the ornaments/ jewellery, belongs to the victim. The railway tickets recovered can be used to prove the factum that the accused travelled by the same train on the fateful day and nothing more. 74. The railway tickets recovered can be used to prove the factum that the accused travelled by the same train on the fateful day and nothing more. 74. Yet, another aspect is that, through the evidence of the Investigating Officer, the defence has successfully contradicted that PW-9 and PW-33, who purportedly first intercepted the accused Bikash Das did not state before the I.O that they had intercepted accused Bikash Das and that on checking his bag they found the dirty clothes along with a new Gamocha, pair of earrings etc. The IO also stated during cross-examination that, he had not examined any persons from Tinsukia Railway platform to ascertain that Bikash Das was really apprehended by PW-9 & 33 along with one black bag. Therefore, in such a circumstance, to place reliance on the recovery from the possession of the accused, other corroborative evidence like Forensic Report relatable to such recovery should be insisted. 75. The prosecution though, tried to prove that the Meiju phone belongs to the accused; in the considered opinion of this court, the prosecution had failed to establish the same. Though the mother of the victim was examined as a prosecution witness, she did not even identify the jewellery allegedly recovered from the possession of the accused as belonging to her daughter. The IO affirmed that he had not investigated as regards the ownership of the mobile phone or the two SIM Cards found in the seized mobile phone. A closure scrutiny of the evidence of PW-38, Nodal Officer, Bharati Airtel Ltd., it is seen that the SIM Card was still inserted inside the seized mobile, while he witnessed the same in the Court and it was taken out in the court only, thereby corroborating the evidence of the IO that no investigation as regards ownership of the mobile phone was made. Such SIM cards and Mobile Phone were not even sent for scientific examination nor any CDR was exhibited. The prosecution could have collected materials to prove the location of the phone at the time of commission of the crime. The Exhibit-19, at best may establish that she applied and was granted a mobile SIM card, not to say that said phone was in possession of the victim when the crime was committed and that the SIM cards taken out from the phone exhibited was the same SIM card provided to her. 76. The Exhibit-19, at best may establish that she applied and was granted a mobile SIM card, not to say that said phone was in possession of the victim when the crime was committed and that the SIM cards taken out from the phone exhibited was the same SIM card provided to her. 76. Though the prosecution through the evidence of PW-19, PW-20, PW-39 and PW-40 projected that the blood sample of the accused was collected and sent for DNA profiling along with certain blood stain and hair found in the place of occurrence as well as found the Gamocha wrapped around the neck of the deceased but through the forensic evidence, the prosecution has only been able to establish that the blood stain found in the Gamocha is of human and semen were also found. In the absence of DNA being matched with the sample collected from the accused, it cannot be said that the blood stain/semen found on the Gamocha is of the accused. Interestingly, the blood samples collected were sent to the Forensic Science Laboratory (FSL) not by the Investigating Officer but by an Additional Superintendent of Police. The prosecution has miserably failed to establish that after the collection of the samples/recovery of the hair and blood stains from the place of occurrence, the said samples were duly preserved and forwarded to the FSL. The I/O in his cross-examination has admitted that he was not involved in the entire process, and it is the Additional Superintendent of Police who sent the samples to the FSL and collected the report. The I/O also admitted that during the collection of such samples, no intimation was given to the learned jurisdictional Magistrate. Even if the DNA profiling and exhibits are accepted, what is found is that there was no DNA matching of such blood sample of the accused, instead the blood and semen marks found on the long jeans pant, blue colour underwear and grey colour long pant purportedly recovered from the possession of the accused were fragmented and could not be amplified and therefore, its comparison with other does not arise. 77. 77. It is apposite to record herein that the Additional Superintendent of Police, who was examined as PW-31, testified that he sent 15 articles to the Director of Forensic Science on 18.07.2018 with 14 questionnaires and he received the report from FSL and opened it and had gone through the same. Thus, the proper collection and the preservation of the sample itself are clouded. 78. That being the position the DNA result more particularly on the material exhibit-1 i.e., the Gamocha found wrapped around the neck of the deceased, in no way can be used as a circumstance to link the accused in the commission of the crime. 79. The other circumstances of admission of accused Bikash Das regarding his travel by Dibrugarh Rangia Down Express on 10.07.2018 are of no value, inasmuch as such railway tickets can be used to prove a factum that the accused travelled by the same train, where the dead body was found on the same date, i.e., on 10.07.2018. In the absence of any other circumstances to link the accused in the commission of the offence, such circumstances independently cannot be used against the accused. 80. The prosecution has placed heavy reliance on the extrajudicial confession purportedly made by the accused before the videographer, who recorded the crime scene recreation. Before proceeding further, we take note of the propositions of law laid down by the Constitution Bench of the Hon’ble Apex Court while dealing with the provisions of Sections 24 to 27 of the Indian Evidence Act and Section 162 CrPC in State of U.P. Vs. Deoman Upadhyaya reported in 1960 SSC online SC 8 . Amongst other, the Hon’ble Apex Court laid down a proposition that a confession made to a person other than a police officer, while in custody of police, cannot be used as evidence against such person, in a proceeding in which the said person is charged with the commission of an offence, subject to the condition that such confession is made in the immediate presence of a Magistrate. Yet, another principle laid down is that a statement made, whether it is a confession or not, to another person, when the maker of the confession is not in custody, the person before whom such statement is made, may be proved, if it is otherwise relevant; however, the person before whom such confession is made shall not be a police officer. 81. In the case in hand, the prosecution witness before whom such confessions were made by the accused, unequivocally testified that when such confessional statements were made, the accused persons was in police custody and 50-60 police personnel were present including many senior police officers and the accused was handcuffed. The police personnel were also heavily armed. Therefore, in the given facts, it is our unhesitant view that the learned Trial Court committed a serious error of law by relying on the confessional statement made by the accused, before the aforesaid prosecution witness while in police custody and in the presence of a police officer, to be corroborative evidence and mitigating circumstances against the accused. 82. Now, coming to the evidence of crime scene recreation, the evidentiary value is circumscribed by Sections 8 and 27 of the Evidence Act. The conduct of the accused in pointing out the place or demonstrating the manner of commission of offence may be relevant under Section 8 of the Evidence Act, However, if the reconstruction of crime scene, merely reproduces what is already known to the investigating agency and does not lead to discovery of any new facts, evidentiary value of such crime scene recreation’s worth is negligible. A mere crime scene demonstration by the accused without corroboration cannot lend assistance to the prosecution. 83. In the case in hand, a closure scrutiny of evidence of the videographer and also from the evidence of the I.O. (PW-20), we are of the unhesitant view that the crime scene recreation did not result in the recovery of any material object or the discovery of any new fact, which is unknown to the investigating agency. It only recorded the conduct of the appellant in enacting the alleged sequence of events based on the information already gathered by the investigating agency. Such conduct, in law, cannot, by itself, establish guilt in the absence of corroborative evidence. 84. It is apposite to record herein that the mother of the victim PW-25 saw the accused in the Coach in which her daughter also travelled, and she identified him in the court; however, in her cross-examination, she admitted that if the accused is shown to her, it will be difficult for her to identify him. After the arrest of the accused, no Test Identification Parade was conducted. After the arrest of the accused, no Test Identification Parade was conducted. She also admitted that she saw the apprehended accused person in the photographs published in the newspaper and shown on television, before she saw the accused in the dock. Thus, from this evidence, it is clear that, before identifying the accused in the court, she had already identified him as the perpetrator of the crime based on his photos published in newspapers and shown on television news. Therefore, it cannot be safely concluded that the PW-9 firmly recalled the accused seeing him in the railway coach on the fateful day. Consequently, it cannot be safely concluded that PW-25 saw the accused for the first time, after she saw him in the railway station and could identify him in the dock; rather, it is an admitted position that she already identified the accused before seeing him in the dock. Otherwise also, in absence of any other circumstances such testimony may establish that accused was in the train. Therefore, such circumstance are projected to link the accused to the crime, in the considered opinion of this court, cannot be accepted. 85. The reliance of the learned Trial Court that the accused while was examined under section 313 Cr.P.C did not deny his statement made before the police that he confessed before police that he travelled in the same train on the day of commission of the crime. Such conduct of the accused proves that he travelled by the same train, even if is used against the accused, again, such factum only shall be a proof of fact that accused travelled in the same train but in absence of the proof that, the belongings of the victim were recovered from his possession and that there is matching of DNA sampling, the guilt of the accused can’t be safely concluded. 86. Now, let us deal with the confessional statement of the accused Bikash Das recorded in connection with Mariani GRPS Case No.14/2018. 87. In the case in hand, from a closure scrutiny of evidence of the I.O., it is seen that the accused was arrested on 16.07.2018 in connection with the present case i.e., Simaluguri PS Case No. 6/2018 and being informed, he interrogated the accused on 17.07.2018, at Simaluguri Police Station. The accused refused to give a confessional statement before the jurisdictional Magistrate in connection with the Simaluguri Police Station Case. The accused refused to give a confessional statement before the jurisdictional Magistrate in connection with the Simaluguri Police Station Case. In the meantime, the accused was in custody of Simaluguri Police Station on 26.07.2018 and the I.O. of the Moriani Police Station Case No. 14/2018 on 28.07.2018 took the custody of the accused and the crime scene recreation was conducted. On 31.07.2018, the accused were produced before the jurisdictional Magistrate of Mariani Police Station. The confession was made on 03.08.2018 i.e. two days after the last custody of the Police. 88. It is important to note that admittedly the accused refused to give confessional statement in connection with the present trial and thereafter he remained in continuous police custody in connection with the other case i.e., Mariani PS Case, till last two days before the confession and therefore, such a confession following prolonged custody requires heightened scrutiny to exclude taint, more particularly, when the accused, firstly refused to give confessional statement on the same fact, which in our view, the learned trial Court failed and placed heavy reliance on it, on the ground that while recording such statement, due procedure was followed. 89. The last circumstance that was projected and accepted by the learned Trial Court is the motive of the accused. The motive, according to the prosecution as well as the learned trial court, is his statement recorded under section 164 Cr.P.C, However, the learned trial court did not make any attempt to discuss the evidentiary value of such statement recorded under section 164 of the Cr.P.C., that too not in the case for which the accused was tried. 90. Yet, another aspect of the matter is that, for grave offences like murder and rape, Courts must insist on reliable corroboration. In such a case, where the confession is the sole evidence and there is no recovery, no medical link and no surrounding circumstances to lend assurance, it would be unsafe to convict an accused. 91. Having regard to the facts as recorded hereinabove and also the aforesaid principle, if we look for corroboration in the present case, we found none. 92. Therefore, in the totality of the matter, we are of the unhesitant view that the circumstances do not form a complete chain, which lead to an irresistible conclusion of the guilt of the accused. Instead, it is a case of no legal evidence against the accused. 92. Therefore, in the totality of the matter, we are of the unhesitant view that the circumstances do not form a complete chain, which lead to an irresistible conclusion of the guilt of the accused. Instead, it is a case of no legal evidence against the accused. Thus, none of the pieces of evidence relied on as incriminating by the Trial Court can be treated as incriminating pieces of circumstantial evidence against the accused. An accused can be convicted on legal evidence, and if only a chain of circumstantial evidence has been so forged as to rule out the possibility of any other reasonable hypothesis, except the guilt of the accused. It is by now well settled that between “may be true” and “must be true”, there is a long distance to travel, which must be covered by clear, cogent and unimpeachable evidence by the prosecution before an accused is condemned as a convict, which, in this case, is totally absent. 93. Accordingly, for the reasons recorded hereinabove, the judgment and order of conviction dated 27.09.2019 and the order of sentence of the appellant dated 03.10.2019 passed by the learned Sessions Judge, Sivasagar in Sessions Case No. 130(S-N) of 2018, under section 302, 302/34, 376(D) IPC arising out of G.R. Case No. 390/2018 (PRC No.131/2018) & Simaluguri GRPS Case No.6/2018, stands set aside and the appellant Bikash Das is acquitted from the charges leveled against him. 94. For the reason that we have acquitted the accused, we need not go into aggravating and mitigating the circumstances noted down by the Trial Court for affording the appellant, i.e., Bikash Das, a ‘Death Sentence.’ Accordingly, the Death Sentence Reference is also dismissed. 95. The accused is set at liberty forthwith, unless detained or wanted in any other case. The bail bonds stand discharged. The TCR be returned back to the Trial Court forthwith. 96. Registry to forward a copy of this judgment and order to the Superintendent of District Jail, Sivasagar.