JUDGMENT
N.G. Das, J.
1. This appeal under Section 374 of Cr. P. C. is directed against the judgment of learned Additional Sessions Judge, South Tripura, Udaipur dated 14-9-1994 whereby learned Addl. Sessions Judge convicted the appellants, namely, (1) Akhil Das, (2) Atindra Debnath and (3) Dipak Das for commission of the offence under Section 302 of IPC and sentenced them thereunder to suffer R.I. for life. The learned Additional Sessions Judge also convicted the appellants under Section 376(2)(g) of IPC and sentenced them thereunder to suffer imprisonment of 10 years and also to pay a fine of Rs. 1000/- each in default of which a further period of six months R.I. The sentence were, however, ordered to run concurrently.
2. We have heard Mr. K.N. Bhattacharjee, the learned senior counsel appearing on behalf of the appellants and Mr. S. Das, the learned Public Prosecutor appearing on behalf of the respondent.
3. The facts giving rise to filing of this appeal are that on 3-10-1989 around 6:30 p.m. deceased Archana Das came to the tailoring shop of Haradhan Majumder (P.W. 5) for taking delivery of her frock but as the frock was not made ready by that time Archana was going back to her house. It was alleged that when Archana was going back to her house the appellants followed her and as she proceeded to a certain distance the appellants suddenly caught hold of her, put some piece of cloth on her mouth and thereafter dragged her away to a certain distance. It was further alleged that after taking her on the slope of the river Gomti all the appellants committed rape on her one by one and thereafter killed her by causing injuries on her person with sharp cutting weapons.
4. On that fateful night no one passed any information about Archana to her father. Archana’s father also thought that she might have gone to her sister’s house. But on the following morning he came to know from some woman that the dead body of Archana was lying on the bank of Maharani Barrage. On receipt of this information Manindra Das, the father of the deceased (P.W. 16) rushed to that place and found her daughter lying dead in a naked condition with bleeding injuries on her person.
5. In the meantime, Incharge O/C of Gandacherra P. S. received some information that dead body of a girl was lying on the Gomti Barrage at Maharani. On receipt of this information S. I. Shri Babul Das (P.W. 17) along with Circle Inspector of Police went to the place of occurrence when P.W. 16 lodged the F.I.R. with him narrating the fact that his daughter went to the tailoring shop for bringing her frock and thereafter on the following morning he got the information that her dead body was lying on the Maharani Barrage.
6. After recording the F.I.R., S. I. Babul Das took up the investigation of the case and in course of his investigation Shri Das prepared the inquest report of the dead body, sent it to the Civil Hospital for post-mortem examination, recorded the statements of a few witnesses under Section 161 of Cr. P. C. and as the statements of the witnesses he already recorded showed the involvement of the three accused in commission of the offence he went out in search of them and during his search he arrested the appellant Akhil Das. Subsequently, he also arrested the other two accused and they were produced before the Court. Thereafter, the Investigating Officer also recorded the statements of a few more witnesses, obtained post-mortem examination report, seized the materials under separate seizure list and thus after completing investigation charge-sheeted the appellants for their prosecution under Sections 376/302 of IPC.
7. Learned Chief Judicial Magistrate after taking cognizance of the offence committed the case to the Court of learned Sessions Judge as the case is exclusively triable by the Court of Sessions. The case however, came to the file of learned Additional Sessions Judge on transfer. The accused persons were also produced before the learned Additional Sessions Judge, who after perusal of the documents and after hearing the learned counsel for the parties framed two distinct charge namely, one under Section 376(2)(g) of IPC against the appellants for commission of the offence of gang rape and the other charge under Section 302 of IPC for having killed the deceased Archana intentionally. The charges were read over and explained in Bengali to the appellants who pleaded not guilty and claimed to be tried.
8. In order to bring home the charge the prosecution examined 17 witnesses in all also exhibited the documents, namely, seizure list, ejahar, hand-sketch map etc. The appellants adduced no evidence in support of their defence. However, their defence as would appear from the cross-examination as well as the statements they gave at the time of examination under Section 313 of Cr. P. C. is that they have been falsely implicated in this case.
9. Learned Additional Sessions Judge, however, after appreciation of the evidence on record particularly the evidence of P.W. 5 and P.W. 15 arrived at the conclusion that the appellants committed the aforesaid offences and hence he convicted all the appellants under the aforesaid sections and sentenced them to suffer the term of imprisonment as already indicated above.
10. Now Mr. K. N. Bhattacharjee, the learned senior counsel appearing on behalf of the appellants has at the very outset argued that the evidence of P.W. 15 on which learned Additional Sessions Judge placed much reliance for making the finding of conviction is not acceptable, firstly, because, the evidence of this P.W. 15 was recorded after about 10 days and secondly, because the evidence of this witness will further show that he did not make any statement to the Investigating Officer that he saw the appellants dragging the deceased. It has, therefore, become necessary for us to scrutinise the evidence of P.W. 15.
11. P.W. 15 is one Subodh Das. He deposed that in the evening of that fateful day he went to Haripur bazar for purchasing some articles and while coming back to his house from bazar he saw the appellants carrying Archana towards the south by putting some clothes into her mouth; He stated further that even though he found the appellants forcibly taking away the deceased he did not disclose this fact to any one else. It is in his evidence that on the following morning he found the dead body of Archana near the Barrage. But even though he saw the dead body of Archana lying there he did not feel it necessary to disclose this fact to any one. He has, however, stated that after about 10 days when Investigating Officer visited their village he mere a statement to Daroga Babu. But in the same breath he also stated that he did not disclose the matter to Daroga Babu. During cross-examination it was elicited from him that when the Investigating Officer visited the place of occurrence on the following morning he also went there but at that time also he did not disclose this fact to the Investigating Officer. He has, however, given an explanation that he did not disclose the matter to any one or to Daroga Babu out of fear. But we are unable to accept this explanation as there was no cogent reason why he did not disclose the matter even when he was making the statement to the Investigating Officer. The Investigating Officer also did not assign any reason as to why he did not think it worth his while to examine this witness on the following day when he went to the place of occurrence.
12. Apart from the evidence of this witness it appears from the judgment of learned Additional Sessions Judge that he placed reliance upon the evidence of P.W. 5. P.W. 5 is the Tailor in whose shop the deceased went for taking delivery of her frock. The evidence of this P.W. 5 establishes the fact that the deceased went to his shop in the evening of 3-10-1989 and that the frock being not made ready by that time the deceased left the shop and started for her house. This part of the prosecution case is established. But this cannot help the prosecution as the evidence of P.W. 15 is not acceptable for the simple reason that there is no corroborating or supporting evidence.
13. The learned Additional Sessions Judge, however, placed reliance upon the statement of some witnesses which were brought on record by way of cross-examination. Those statements have been marked as Ext. P-4, P-5 and P-7. But we are really at a loss to understood how the learned Additional Sessions Judge could mark the entire statement of those witnesses as exhibit. We have gone through the evidence of those witnesses. The deposition sheets of the witnesses through whom those statements under Section 161 of Cr. P. C. were marked as exhibits do not show how the learned Additional Sessions Judge could satisfy himself that these witnesses should be declared hostile and that they should be examined in the nature of cross-examination.
14. Learned Additional Sessions Judge should note that before declaring a witness hostile it is necessary for him to look into the statement made before the Investigating Officer to see whether the witness was actually resiling from the position taken during investigation. The party calling the witness i.e. prosecution must lay a foundation for cross-examination his witnesses. The witness must show himself to be not only adverse but hostile to the party calling him by his testimony given. The fact that he has become hostile has to be established by eliciting information such as could give an indication of hostility. But on perusal of the statements of those witnesses we find that the learned Public Prosecutor who conducted the case did not put a single question to show that the witnesses really became hostile. That apart, it is really not understandable to us how the entire statements recorded under Section 161 of Cr. PC. can be marked as exhibit. .It appears to us that neither the public prosecutor nor the Additional Sessions Judge is conversant with the relevant provisions of the Evidence Act. It may be noted that only those passages in the previous statements should be proved which are contradicted by him and if such contradiction is intended to be used as evidence in the case, the witness must be allowed an opportunity of explaining or reconciling his statement. And if this opportunity is not given to him, the contradictory writing cannot be placed on record as evidence. It is a requirement of law that after satisfying himself learned Sessions Judge must allow the prosecution to bring the attention of the witness to that part of his statement recorded under Section 161 of Cr. P. C. so that the witness might also give some explanation while denying that he did not state (to the Investigating Officer But also on going through the evidence of such a serious case we find that neither the learned Additional Sessions Judge nor the Public Prosecutor made any sort of endeavour to comply with this mandatory provision of law. Therefore, the statements which have been marked as Exs. P-4, P-6 and P-7 have got no evidentiary value. We cannot help recording our displeasure for the manner in which the case was conducted on behalf of the prosecution and so also tried by the learned Additional Sessions Judge.
15. Learned Additional Sessions Judge also made a finding that there was circumstantial evidence connecting the crime. We cannot loose sight of the fact the law regarding circumstantial evidence. A conviction can very well be awarded on the basis of the circumstantial evidence. But law is that the chain of circumstantial evidence must be so well-knit that all the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. In the present case, we really fail to understand how that chain was established.
16. For all the reasons stated above, we are of the view that the finding of convictions made by the learned Additional Sessions Judge is bad in law and as such cannot be maintained.
17. In view of the discussions made above, we are constrained to hold that learned Additional Sessions Judge not only failed to record, the evidence according to law but also failed to appreciate the standard of scrutiny of evidence needed in such a case. The prosecution, in our view, failed to bring home the charges under Section 302 of IPC and Section 376(2)(g) of IPC.
18. The result is that, the conviction and sentence awarded by the learned Additional Sessions Judge are set aside. The appellants are acquitted of the charges under Sections 376(2)(g) and 302 of IPC. The sureties are discharged.
A copy of the judgment be sent to learned trial Court and another copy to Mr. K. Bhowmik, learned Additional Sessions Judge wherever he is stationed for his guidance.