JUDGMENT
T.C. Das, J.
1. The accused Manik Chandra Dey has been convicted under Section 302 I.P.C. by the learned Deputy Commissioner, North Cachar Hills in Sessions Case No. 2 of 1976 and sentenced to suffer imprisonment for life. The learned Deputy Commissioner exercised the powers of the Sessions Judge, under the Rules for Administration of Justice in North Cachar Hills District. The learned Deputy Commissioner has made this Reference as required under Rule 14 of the “Rules for the Administration of Justice in North Cachar Hills District” for confirmation by this Court as to the conviction and sentence passed by him. Earlier, a Reference was made to this Court but by the order dt. 26-2-80 in Criminal Hill Reference No. 1 of 1977 this Court remanded the Reference to the learned Deputy Commissioner to examine the Magistrate who recorded the confessional statement to prove the confession in accordance with law and to dispose of the case keeping in view the observations made by this Court. The learned Deputy Commissioner, in compliance to the direction of this Court, summoned the Magistrate and recorded his evidence and accepted the confessional statement as recorded by the said Magistrate. Thereafter, the learned Deputy Commissioner heard the parties and disposed of the case which resulted in the same findings arrived at in its former decision meaning thereby, that the conviction and sentence of the accused-appellant was not disturbed. As the Reference has been made by the learned Deputy Commissioner, it has been registered as Criminal Hill Reference No. 1 of 1983. As the appellant could not engage counsel to represent his case, this Court appointed Dr. M. K. Sarma, learned Counsel, as Amicus Curiae to represent the appellant. However, as Dr. M. K. Sarma is not available, he entrusted the brief to Mr, A. Roy, learned Advocate to act as Amicus Curiae and to represent the case of the appellant with the permission of this Court. We have also heard Mr. A.R. Paul Mazumdar, the learned Public Prosecutor, for the State. Mr. Roy, during the course of argument has submitted the following contentions:
(1) That the conviction and sentence inflicted upon the appellant are liable to be set aside on the ground that there is no eye witness to the occurrence and the prosecution relied upon the weak evidence incapable of connecting the guilt with the accused. (2) That as there is no direct evidence, the prosecution has relied upon the evidence of the mother of the accused, P. W. 2, the brother of the accused, P. W. 4 and one neighbour, P. W. 1. We were led by Mr, Roy to the evidence of the 4 witnesses. On going through the evidence as submitted by Mr. Roy, it appears that the so called confessional statement of the accused before the witnesses, namely, P.Ws. 2, 3 and 4, there is no other substantial corroborative evidence to support the prosecution. (3) The next submission of Mr. Roy is that though the confessional statement was recorded by the Magistrate and this Court directed to take the evidence to have better proof for the purpose of prosecution, yet, that confessional statement alleged to have been recorded by the Magistrate and proved by the prosecution in the case cannot be accepted as corroborative evidence at all inasmuch as while recording the statement of the accused under Section 313 Cr. P.C. the learned trial Court did not put to the accused any question about his confessional statement stated to have been recorded by the learned Magistrate. Referring to the implication of the provision of Section 313, Cr. P.C. Mr. Roy submits that if that part is omitted to be put to the accused, that cannot be taken into consideration by the Court and that part of the story should be totally kept out of consideration. Therefore, if that be the position in law, the further submission of the learned Counsel is that there is no confessional statement nor there is any direct evidence to help the prosecution to prove the guilt of the accused beyond any shadow of doubt. The learned Counsel for the appellant has drawn our attention to several decisions of the Supreme Court as well as of this Court. It may not be necessary to refer all those decisions placed before us by Mr. Roy because only few supporting decisions would be enough for our purpose ‘ on this point The learned Counsel has referred to us the decision of the Supreme Court rendered in Sharad v. State of Maharashtra . Dealing with the provisions of Section 313, Cr. P.C. their Lordships had observed and ruled that the circumstances which were not put to the appellant in his examination under Section 313 of the Criminal Procedure Code have to be completely excluded from consideration. We would like to quote the observations of their Lordships in Sharad (supra) as quoted in paras 142, 143 and 144 to the effect:
142. Apart from the aforesaid comments there is one vital defect in some of the circumstances, mentioned above and relied upon by the High Court, viz., circumstances Nos. 4, 5, 6, 8, 9, 11, 12, 13, 16 and 17. As these circumstances were not put to the appellant in his statement under Section 313 of the Cr. P.C. they must be completely excluded from consideration because the appellant did not have any chance to explain them. This has been consistently held by this Court as far back as 1953 where in the case of Hate Singh Bhagat Singh v. State of Madhya Bharat this Court held that any circumstance in respect of which an accused was not examined under Section 342 of the Criminal Procedure Code cannot be used against him. Ever since this decision, there is a catena of authorities of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under Section 342 or Section 313 of the Cr. P.C., the same cannot he used against him.” In Shamu Balu Chaugule v. State of Maharashtra this Court held thus (Para 5):
The fact that the appellant was said to be absconding not having been put to him under Section 342, Cr. P.C. could not be used against him.
143. To the same effect is another decision of this Court in Harijan Megha Jesha v. State of Gujarat where the following observations were made (Para 2):
In the first place, he stated that on his personal search of the appellant, a chadi was found which was blood-stained and according to the report of the serologist, it contained human blood. Unfortunately, however, as this circumstance was not put to the accused in his statement under Section 342, the prosecution cannot be permitted to rely on this statement in order to convict the appellant.
“144. It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court. In this view of the matter, the circumstances which were not put to the appellant in His examination under Section 313 of the Cr. P.C. have to be completely excluded from consideration.”
2. The same point also came up for consideration on several occasions in this Court. Reference is made to the case of “Faizul Ali v. State of Assam” reported in (1983) 1 Crimes 218. It was held by this Court that omission to put the question of vital importance to which the accused is to reply for his defence is fatal and that cannot be taken into consideration either to add assistance to the prosecution or to use as a supporting corroboration to the testimony of the witnesses. Therefore, according to Mr. Roy if that part is omitted from consideration, the next question would be as to whether there was any extra-judicial confession which could be sufficient to base the conviction of the accused. In this context our attention has been drawn by Mr. Roy to the earlier decisions of this Court remanding the Reference to the learned! Deputy Commissioner. In this context it is submitted that in the earlier Reference these evidences were available regarding extra-judicial confession. But, the Court, while scrutinising the evidence as well as the impugned judgment, did not consider those evidences to be sufficient to convict the accused and as such the Court remanded the case back to have better evidence relating to the con-fessional statement as recorded by the Magistrate.
3. The next submission of Mr. Roy is that the evidence of P. W. 2, the mother of the accused, cannot be believed to be true in respect of the so called extra-judicial confession and/or the confessional statement stated to be made by the accused to her. It is submitted that the categorical statement of P. W. 2 is that the accused came to her for the first time and informed her about his wife who was lying in a state of ‘fit’ but did not utter a single word that he was the author of the offence. Therefore, the evidence of P. W. 2 that the accused came and confessed to her cannot be believed. In the same line, it is submitted, that the evidence of P. W. 3, also cannot be believed on the basis of the evidence of P. W. 4 who has stated…. “Lakhan caught Manik and brought him to his house at about 9 p.m. and there, at his house, Lakhan tied him down with the leg of a cot after Manik admitted in their presence that he had killed his wife. “It is also stated that sometimes Manik behaved like a mad man. Same version was stated by P. W. 2 “That sometimes Manik used to lose the balance of his mind.” Manik was tied down by them because he had lost balance of his head on that night. The learned Counsel has drawn out attention to the evidence only to show that the accused was tied up and he had no mental balance. Therefore, if any such alleged confession was made before these witnesses, that cannot be said to be made freely and voluntarily. Referring to the decision as (Jagta v. State of Haryana) it is submitted by the learned Counsel that the evidence about an extra-judicial confession is in the nature of things a weak peace of evidence. If the same is lacking in probability as it is in the present case, there would be no difficulty in rejecting the same. In the State of U. P. v. M. K. Anthony , their Lordships placed reliance and reiterated the decision rendered in Jagta v. State of Haryana (supra). It was observed “before evidence in this behalf is accepted, it must be established by cogent evidence what were the exact words used by the accused”. In this context, Mr. Roy submits that it is not known as to what was the actual words used by the accused and the stereo type statements have been recorded in the evidence of all the P. Ws. relating to the so called extra-judicial confession. Reference may be made to the reported case of Heremba Brehma v. State of Assam . The learned Counsel referred to us the paras 9 and 18 of the judgment rendered in “Heremba”. In para 18, their Lordships observed “that extra- judicial confession to afford a piece of reliable evidence must pass the test of reproduction of exact words, the reason or motive for confession and person selected in whom confidence is reposed and it would not be possible to accept in toto extra-judicial confession as stated by the witnesses.”
4. The next contention of Mr. Roy, the learned Counsel appearing on behalf of the accused is that as the prosecution had failed to pass the test of reproduction of exact words, the reason or motive for confession, no evidentiary value can be placed on the evidence of the witnesses on such extra-judicial confession to prove the guilt of the accused. There being no other evidence, as submitted by the learned Counsel, of any nature nor any circumstances appearing to connect the accused with the guilt, the accused cannot be convicted merely on suspicion or as what others feel him to be guilty unless the guilt is ‘proved beyond reasonable doubt.
5. In reply, Mr. Paul Mazumdar, the learned Public Prosecutor has submitted that the omission to examine the accused under Section 313 Cr. P.C. appears to be a mere technicality and the very part of an extra-judicial confession was put to the accused while examining him under Section 313 Cr. P.C. Therefore according to the learned Counsel, the totality of the evidence including the own confessional statement of the accused as recorded by the Magistrate can also be taken into consideration along with the extra-judicial confession as a supporting evidence to corroborate the testimony of the witnesses. The next submission of Mr. Paul Mazumdar is that though the part of this fact was not put to the accused in the examination under Section 313 Cr. P.C. and though in fact the accused could not reply to those facts in his defence, yet, the Court can consider the totality of the evidence to consider the guilt of the accused. As regards the order of this Court passed in earlier reference, the learned Public Prosecutor submits that this Court while remanding the case back for taking further evidence regarding confessional statement of the accused, did not consider the entire evidence at all as because some evidence regarding the confessional statement and the evidence of the Magistrate were not placed on record. It was only for the better and further evidence, the case was remanded back and the learned trial Court, after considering the facts and circumstances of case and also as per direction of this Court, decided and disposed of the case. It was found by the learned trial Court as submitted by Mr. Mazumdar, that there was no material to change the earlier verdict and facing in a supporting corroborative evidence, the learned Deputy Commissioner maintained the conviction and sentence of the accused appellant in conformity with his earlier order. Referring to the evidence of witnesses, Mr. Mazumdar, the learned public prosecutor submits that there is clear and corroborative statement of all the witnesses with regard to the extra-judicial confession of the accused about his guilt. There was no evidence nor even a suggestion from the defence that the accused was in any manner tortured or compelled to make such extra-judicial confession before his own mother, brothers and one of his neighbours. Therefore, according to learned Counsel, the confessional statement was unbiased, and there was no evidence that any of them was even’ remotely inimical to the accused. In reply, it is further submitted to us by Mr. Paul Mazumder, that while the accused came to his mother, he did not know as to whether his wife had already died and as such it was not stated to his mother. But after confirming about the death, the accused made the confession to his mother that he was the author of the offence and his wife died of strangulation which he committed to kill her. As regards tying up the accused, it is submitted by Mr. Mazumdar, that after the commission of offence as the accused became imbalanced, he had to be tied up by his own relations. It is fairly admitted by Mr. Paul Mazumdar that there is no eye witness to the occurrence except the extra-judicial confession made by the accused and also the confessional statement as recorded by the learned Magistrate, Relying the case of State of U.P. v. M. K. Anthony (supra) Mr. Paul Mazumdar has drawn our attention to their Lordships’ findings and observations made in para 15 of the judgment and has submitted that the evidence about extra-judicial confession comes from the mouth of the mother and brother and the neighbour who are unbiased and not inimical to the accused. Therefore, according to the learned Counsel, their evidence can be relied on so far the extra-judicial confession of the accused is concerned. As regards the passing of test, Mr. Mazumdar has submitted that there is no adverse presumption that the test as laid down in Heremba 1983 Cri LJ 149 (supra) stands on the way to accept the statement of the witnesses.
6. Upon hearing the lengthy arguments of the learned Counsel for the appellant as well as the learned public prosecutor for the State, we find a considerable force in the argument of Mr. A. Roy, the learned Counsel for the appellant. Admittedly, there is no eye witness to the occurrence. The prosecution relies on the extra-judicial confession made by the accused to P. Ws. 2, 3 and 4 and also the confessional statement that was recorded by the Magistrate while the accused-appellant, was produced before him. We have also considered the various decisions placed before us by the learned Counsel of both the parties. As regards the confessional statement, we accept the submission of Mr. Roy to the effect that while examining the accused under Section 313, Cr. P.C., the learned trial court did not put him any question with regard to his confessional statement stated to have been made before the Magistrate. Therefore, on taking the ratio of the aforesaid decisions and more particularly in “Sharad” 1984 Cri LJ 1738 (supra) we may safely hold that the circumstances which were not put to the appellant in his examination under Section 313, Cr. P.C. have to be completely excluded front consideration. Therefore, we are of the opinion that the prosecution cannot take any aid of the confessional statement of the appellant stated to have been recorded by the learned Magistrate. While eliminating the confessional statement of the appellant from consideration, we next consider as to whether the extra-judicial confession could be accepted as made voluntarily and freely by the appellant to P. Ws. 2, 3 and 4. In this regard also we fully endorse the submissions made by Mr. Roy with regard to the extra judicial confession relied on by the prosecution to prove the guilt of the accused. It is undoubtedly a weak piece of evidence and if the same is lacking probability, it would not be difficult to reject them. Following the decision of Jagta v. State of Haryana 1974 Cri LJ 1010 (SC) (supra) rendered by their Lordships of the Supreme Court, we must hold that the prosecution had failed to establish by cogent evidence what were the exact words used by the accused while making the extra-judicial confession to P.Ws. 2, 3 and 4. The extra-judicial confession to afford a piece of reliable evidence must pass the test of reproduction of exact words, and the reason or motive for confession. In this case, we observed the stereo-type recording of extra- judicial confession without knowing the exact words used by the appellant and about his rational motive for such confession. There is no other corroborative evidence to support the testimony of the witnesses as regards the extra-judicial confession. The evidence discloses that the appellant was tied up with the leg of a cot and he was not in mental equilibrium. Therefore, the possibility of extracting the extra-judicial confession from the mouth of the appellant by the witnesses cannot be ruled out. If such possibility occurs which creates a doubt, the accused must get the benefit of that doubt. We, therefore, cannot agree with the submission of Mr. Paul Mazumdar, the learned Public Prosecutor that the extra-judicial confession was made freely and voluntarily by the appellant to P.Ws. 2, 3 and 4. There is no other material evidence placed by the prosecution to prove the guilt of the accused beyond reasonable doubt. Therefore, in absence of such cogent and material evidence on record we are unable to accept the findings of the learned trial Court in holding the appellant guilty under Section 302, I.P.C. to cause the death of his wife by strangulating her in the neck with his hands. The post mortem report speaks about three injuries. They are namely (a) abrasions over the forehead – 1″ X 1/8″, (b) abrasions over the left breast I” X 1/6″ and (c) abrasions over the left cheek 1/2″ X 1/4″. That apart, the autopsy surgeon found two bruises, one over the right side of the neck and the other on the left side of the neck. Although the medical evidence speaks about the death of the victim due to strangulation by manual pressure, in absence of cogent and material evidence on record it cannot be held that the appellant was the author of the offence. In the absence of cogent and material evidence, a doubt is created and the appellant is entitled to the benefit of that doubt.
7. Considering the totality of the evidence we cannot agree to the findings of the learned trial Court and we set aside the conviction and sentence on the appellant on benefit of doubt. In the result, we decline to accept the Reference of the learned Deputy Commissioner, North Cachar Hills for confirmation by this Court of the conviction and sentence passed by him. The Reference is accordingly rejected.
8. Before parting with the records we must record our appreciation to the learned Counsel for the appellant as well as the learned Public Prosecutor for rendering assistance to us with painstaking arguments.
J.M. Srivastava, J.
9. I agree.