JUDGMENT
Alok Kumar Basu, J.
1. Appellant Bhabani Prasad Bhattacharya in connection with Sessions Trial No. 20 of 2000 faced charges under Sections 120-B/302, 302/34 and under Section 201 of the IPC along with Smt. Jayanti Bhattacharya and Shila Bhattacharya for the murder of Rita Bhattacharya who was wife of appellant Bhabani Bhattacharya. Appellant Jayanti Bhattacharya in the same trial along with Shila Bhattacharya faced the charge under Section 302/34 of the IPC for the murder of Smt. Kamala Bhattacharya who was the mother of appellant Bhabani Bhattacharya.
2. The learned Additional Sessions Judge, Arambag in the district of Hooghly while disposing of the said Sessions Trial found appellant Bhabani guilty for commission of the offence under Section 302/120-B and also under Section 302/34 of the IPC for the murder of his wife Rita Bhattacharya and Bhabani was also found guilty under Section 201 of the IPC.
3. The learned Additional Sessions Judge found appellant Jayanti Bhattacharya guilty of the offence under Section 302/34 of the IPC for the murder of Rita Bhattacharya and she was also found guilty under Section 302 of the IPC for the murder of Kamala Bhattacharya. The learned Judge recorded an order of acquittal as regards Shila Bhattacharya finding her not guilty under Section 302 of the IPC.
4. Bhabani Bhattacharya was sentenced to suffer life imprisonment both under Section 302/120-B and under Section 302/34 of the IPC separately and, that apart, he was also sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs. 5,000/- in default to suffer rigorous imprisonment for one month for the offence under Section 201 of the IPC.
5. Jayanti Bhattacharya was also sentenced to suffer life imprisonment separately both for the offence under Section 302/34 of the IPC for the murder of Rita Bhattacharya as well as under Section 302 of the IPC for the murder of Kamala Bhattacharya.
6. Jayanti Bhattacharya preferred Criminal Appeal 67 of 2001 and Bhabani Bhattacharya preferred Criminal Appeal 128 of 2001 and since both the appeals arose out of a common judgment and order, both the appeals were taken up together for disposal.
7. The prosecution case, behind the commencement of the Session’s trial, as revealed from the complaint of one Tustu Pada Bhattacharya of village Kachhra under P.S. Khanakul in the district of Hooghly disclosed a dastardly act of murder of two innocent female, Rita Bhattacharya wife of appellant Bhabani and Kamala Bhattacharya mother of appellant Bhabani.
8. Tustu Pada Bhattacharya in his complaint dated 10th April, 1993 stated that in the morning of 10th April, 1993 getting information from his neighbours regarding no response from the house of Bhabani Bhattacharya at the late hour of morning, he along with his daughter Shila came to the house of Bhabani which was very close to their house and finding the entrance door closed and with the help of a ladder which was noticed behind the back side of the house of Bhabani, they came inside the house of Bhabani and to their utter surprise and dismay found both Rita and Kamala lying dead with several bleeding injuries on their persons. Tustu Pada also noticed ransacking of the household articles.
9. At the instance of Tustu Pada Bhattacharya one neighbour was sent to Khanakul P.S. to give information and soon thereafter P.W. 27 S.I. Sukumar Nandy arrived at the place of occurrence and made a first hand survey of the P.O. and received complaint from Tustu Pada Bhattacharya wherein Tustu Pada alleged dacoity and murder by some unknown miscreants and also disclosed that appellant Bhabani was absent in the house and after sometime he was found coming from the local bus stand. Tustu Pada Bhattacharya also disclosed that getting information about the murder of his wife and mother Bhabani became unconscious and he was taken to the house of Tustu Pada Bhattacharya who was father-in-law of Bhabani.
10. S. I. Sukumar Nandy after holding inquest over the dead bodies sent the dead bodies for post mortem examination and he also prepared seizure lists in respect of the articles found inside the room. S.I. Nandy thereafter examined some local witnesses. S.I. Nandy also requisitioned the service of sniffer dogs and acting on the movement of the sniffer dogs, some persons of the locality were arrested and they were subsequently discharged,
11. After two/three days, S.I. Nandy acting on his source information and on interrogation of appellant Bhabani came to the conclusion that Bhabani along with his mother-in-law Jayanti and sister-in-law Shila might be involved behind the murder of Rita and Kamala and accordingly, all of them were arrested and taken to custody. S.I. Nandy in course of investigation recorded the statement of Bhabani and pursuant to that statement of Bhabani, S.I. Nandy recovered a knife from a nearby pond in presence of witnesses and also recovered a shirt and pant of Bhabani from another pond in presence of witnesses.
12. S.I. Nandy also arranged for recording statement of some of the relations of Bhabani by a local Judicial Magistrate.
13. Appellant Bhabani, during investigation, also gave a confessional statement before a learned Judicial Magistrate S.I, Nandy subsequently collected post mortem report and FSL report and on perusal of evidence collected during investigation, S.I. Nandy found a strong case against Bhabani, his mother-in-law Jayanti and sister-in-law Shila and accordingly, charge sheet was submitted against them under Sections 302/120-B, 302/34 and 201 of the IPC.
14. The learned Additional Sessions Judge on the basis of Police papers and after hearing both prosecution and defence framed charges against Bhabani under three heads namely under Sections 302/120-B, 302/34 and 201 of the IPC. The learned Judge framed charge under Section 302/34 of the IPC against appellant Jayantl and Shila. It is pertinent to mention that Bhabani faced the trial for the murder of his wife Rita Bhattacharya only while Jayanti and Shila faced the trial for the murder of kamala Bhattacharya.
15. The learned Additional Sessions Judge on perusal of the prosecution evidence which was both oral and documentary and after hearing submissions of both prosecution and defence found Bhabani guilty under all the charges framed against him and at the same time, he found Jayanti guilty of the offence under Section 302 of the IPC for the murder of Kamala Bhattacharya.
16. On perusal and examination of the judgment of the learned Additional Sessions Judge, it appears that the learned Additional Sessions Judge to hold Bhabani guilty under different Sections of the IPC as Indicated already, mainly relied on the circumstantial evidence which was collected by the I.O. during Investigation and which was in the form of recovery of incriminating weapon at the Instance of Bhabani, recovery of shirt and pant which Bhabani used during alleged commission of the offence and which was recovered at the instance of Bhabani, the confessional statement of Bhabani recorded by a learned Judicial Magistrate and finally, his failure to give any explanation regarding his absence at the material time when the murder took place.
17. The learned Additional Sessions Judge fully relied on the confessional statement of Bhabani and he got corroboration of such statement from the recovery of incriminating weapon and shirt and pant of Bhabani during Investigation and the learned Judge also rejected the alibi of Bhabani that at the material time he was at the house of his sister far away from the place of occurrence.
18. As regards Jayanti, the learned Judge mainly relied on the confessional statement of Bhabani and with the aid of Section 30 of the Indian Evidence Act, the learned Judge opined that Jayanti cannot escape the charge of murder of Kamala Bhattacharya and to substantiate the charge, the learned Judge also relied on the factum of recovery of a sari alleged to have been used by Jayanti at the time of commission of murder and which was corroborated by the FSL report indicating presence of blood on that sari.
19. Mr. Sekhar Basu appearing for the appellant Bhabani Prasad Bhattacharya in Criminal Appeal 128 of 2001, after analyzing the evidence of prosecution has strongly challenged the order of conviction and sentence recorded against his client. Mr. Basu during his submissions and also by filing a written note of argument has questioned bona fide of the investigating officer P.W. 27 and with the help of evidence of P.W. 1 to P.W. 5, Mr. Basu submits that investigating officer without taking the trouble of finding out the truth behind the tragic murder of two women, in fact, directed his Investigation as per instruction of some local political men namely P.W. Chunilal Hazra and P.W. Sattyen Ghosh.
20. Mr. Basu contends that FIR of P.W. 1 which was submitted before the investigating officer soon after the occurrence clearly indicated both commission of murder and decoity and absence of Bhabani Prasad at the relevant time and it was also disclosed in the FIR that Bhabani was found coming from the local bus stand and hearing the news of tragic death of his wife and mother, he became unconscious.
21. Mr. Basu contends that at the initial stage of investigation some local people were apprehended and the Investigating officer without ascertaining the fact of dacoity as disclosed in the FIR and without taking any trouble to ascertain why the ladder was placed behind the back side of the house of Bhabani Prasad, all of a sudden, merely on suspicion took Bhabani, Jayanti and Shila in custody and thereafter to substantiate his suspicion, collected evidence which are not at all admissible in law and unfortunately, the learned Judge relied on such inadmissible evidence and recorded the order of conviction.
22. Mr. Basu contends that on overall examination of the prosecution evidence both oral and documentary, it is very much clear that, to substantiate the charge of murder against Bhabani Prasad, prosecution wanted to rely on circumstantial evidence particularly, regarding alibi of Bhabant Prasad explaining his absence from the place of occurrence at the relevant time, attempt of Bhabani Prasad to remove ornaments from his house and to deposit the same with his mother In-law Jayanti, recovery of knife alleged to have been used for murder of both Rita and Kamala pursuant to the statement, of Bhabani Prasad, recovery of shirt and pant of Bhabani which he used at the time of alleged commission of murder of Rita and which was recovered allegedly at the instance of Bhabani from a pond, the confessional statement of Bhabani and finally the FSL report.
23. Mr. Basu contends that P.W. 1, father of deceased Rita who lodged the FIR did not mention anything indicating involvement of Bhabani behind the commission of the offence and, in fact, P.W. 1 in his examination in chief totally demolished the prosecution case as framed against Bhabani Prasad and surprisingly enough P.W. 1 was not declared hostile. Mr. Basu submits that P.W. 2 to P.W. 5 all the local people who were examined by I.O. on the very date of occurrence did not speak anything adverse against Bhabani or about the relation of Bhabani with Jayanti, another appellant, and none of these witnesses was declared hostile. Mr. Basu contends that when a witness is not declared hostile although that witness speaks against the prosecution case and thereby supports the defence version of innocence, the statement of that witness can be very well used by the defence to challenge the veracity of the prosecution case and, in fact, the statement of such a witness shall be binding for the prosecution and in this context Mr. Basu relied on the decision in the case of Mukhtiar Ahamed Ansarl v. the State (NCT of Delhi) reported in 2005 SCC (Criminal) page 1037 : 2005 Cri LJ 2569 and Rajaram v. The State of Rajasthan 2005 SCC (Criminal) page 1050.
24. Mr. Basu contends that prosecution relied on the statement of P.W. 6, P.W. 10, P.W. 19 and P.W. 23 regarding the attempt made on behalf of the Bhabani to remove the ornaments from his house and these witnesses were also produced before the learned Magistrate for recording their statement under Section 164 of the Cr. P.C., but, at the time of trial, these witnesses did not support the prosecution case at all for which all of them except P.W. 23 Madan Mohan Adhikary were declared hostile. All these witnesses in one voice stated in their deposition that they were compelled to give statement before the learned Magistrate as directed by the investigating officer.
25. Mr. Basu contends that both P.W, 1 father-in-law of Bhabani and P.W. 10 sister of Bhabani deposed that Bhabani was physically present at the house of P.W. 10 on the night when the murder took place and this part of the statement of P.W. 1 and P.W. 10 cannot be disbelieved.
26. Mr. Basu submits that both prosecution as well as the learned trial Court relied on the confessional statement ‘of Bhabani Exhibit 13, but, in the eye of law the confessional statement of Bhabani cannot be taken into consideration at all. Mr. Basu contends that the learned Magistrate who recorded the confessional statement and also from the confessional statement itself it is noticed that before recording the statement, Bhabani was administered oath and this administration of oath makes the confessional statement totally inadmissible in evidence. Mr. Basu has referred to the provisions of Article 20(3) of the Constitution of India and submits that according to the constitutional mandate a person charged with an offence cannot be compelled to depose against himself and this position has been further clarified by a Division Bench decision of the Guahati High Court in the case of Akanman Bora v. The State of Assam 1988 Criminal Law Journal page 573 as well as by the Division Bench Judgment of Karnataka High Court in the case of Philip v. The State of Karnataka 1988 Criminal Law Journal page 171. Mr. Basu submits that both according to the provision of Section 281 of the Criminal Procedure Code as well as under the provision of Article 20(3) of the Constitution of India if a confessional statement is recorded after administering oath to the deponent accused such confessional statement cannot be considered at all.
27. Mr. Basu contends that by several judicial pronouncement, guidelines have been provided for the learned Magistrates how to record a confessional statement and one such guideline relates to giving proper caution to the accused deponent before recording his confession, because, undoubtedly a conviction order can be passed solely on the confessional statement of an accused and for that reason, the Hon’ble Supreme Court time and again insisted strict compliance of the guidelines in the matter of recording of a confessional statement and one of such guideline is to inform the deponent before recording his confessional statement that he would not be remanded to police custody even if he makes statement or declined to make the same. Another important guideline is to obtain an explanation from the deponent accused as to why he wants to make a confessional statement although such a statement may be used against him for sustaining an order of conviction. Mr. Basu submits that the above guidelines find support from the decision of Bebendra Prasad Tewari v. The State of U.P. and the ratio of that decision was followed in the case of State v. Prasenjit Tapadar reported in 1991 (1) CHN page 331.
28. Mr. Basu submits that from the confessional statement and also from the deposition of the learned Magistrate P.W. 21 who recorded the confessional statement the undisputed position emerges that both the above guidelines were not followed while recording the confessional statement of Bhabani and hence, according to law the prosecution cannot derive any benefit from the confessional statement of Bhabani Prasad and the learned trial Judge committed grave blunder in law relying on such confessional statement in order to substantiate the order of conviction against the appellant Bhabani Prasad.
29. Mr. Basu submits that confessional statement of an accused is a part of the evidence for the prosecution to support the order of conviction and even leaving aside the confessional statement if there are other trustworthy and credible evidence, a conviction order can be sustained relying on such trustworthy and credible evidence.
30. Mr. Basu submits that prosecution as well as the learned trial Court relied on the recovery of the knife alleged to have been used by Bhabani Prasad and which was subsequently thrown by Bhabani Prasad in a nearby pond and which was recovered pursuant to the statement of Bhabani Prasad with the aid of Section 27 of the Evidence Act. Mr. Basu with the help of a judgment of the Privy Council reported in AIR (34) 1947 Privy Council page 67 : 1947 (48) Cri LJ 533 in connection with Phulu Kuri Kottayar v. Emperor submits that part of the statement given before the police officer, in an exception to Section 25 of the Evidence Act, shall be admissible in evidence which only relates to discovery of fact having nexus and connection with the actual commission of the offence and applying the ratio of decision delivered in the case of Phulu Kuri in the present case, it is found that the recovery alleged to have been made pursuant to the confessional statement of Bhabani Prasad given before the investigating officer cannot be considered as a legal evidence. Mr. Basu contends the witnesses examined by prosecution in connection with the alleged recovery of the knife also do not inspire confidence, because, P.W. 8 Chunilal Hazra and P.W. 14 Narayan Mondal from the very beginning bore enmity out of political consideration towards the appellant Bhabani Prasad and, in fact, it was the case of P.W. 1 as well as Bhabani Prasad as D.W. 1 that both of them directed the I.O. in the matter of conducting the investigation against Bhabani Prasad and other appellants.
31. Mr. Basu contends that pursuant to the same statement of Bhabani Prasad given before the investigating officer alleged recovery was made as regards wearing apparels of Bhabani Prasad and it is important to note that none of the prosecution witnesses examined in connection with such recovery supported the prosecution case in the least and there is no evidence on record to show that Bhabani was present when the recovery was made or the witnesses were present when recovery was made and in view of this nature of evidence, it is really doubtful whether Bhabani at all gave any statement to the investigating officer leading to alleged recovery of either knife or his wearing apparels and that being the factual position, prosecution cannot have the benefit of such recovery and the learned Judge also erred in law in relying on such recovery to support his order of conviction.
32. Mr. Basu contends that in this particular case prosecution actually relied on circumstantial evidence and it is needless to mention that in absence of direct evidence, prosecution can seek for conviction simply relying on circumstantial evidence, provided, the facts disclosing the circumstances against the accused are found to be trustworthy and linked with each other and leading to only one hypothesis indicating the guilt of the accused and eliminating all possibilities which would go to indicate his innocence.
33. Mr. Basu submits that when no reliance can be placed on the confessional statement of Bhabani Prasad, no reliance can be placed on the alleged recovery of knife and wearing apparels and when the prosecution witnesses themselves discarded the prosecution story regarding presence of Bhabani at the place of occurrence during the commission of the offence and also discarded the prosecution story of removal of the ornaments from the house of Bhabani, there remains nothing to support the prosecution case against Bhabani Prasad and the learned Judge, without considering the serious lacunas in the prosecution evidence and without considering the fact and circumstances supporting innocence of the appellant Bhabani, in a most mechanical manner and without application of mind, accepted the prosecution case as gospels’ truth and recorded the conviction order and justice demands that such a conviction order which is more based on conjecture and surmise than on legal evidence should be set aside.
34. Mr. Dastoor appearing for the appellant Jayanti Bhattacharya in connection with Criminal Appeal 67 of 2001 submits that judging the prosecution evidence as a whole it is very difficult to support the conviction order of this appellant. Mr. Dastoor contends that save and except the confessional statement of Bhabani Prasad and the evidence relating to recovery of a sari from Jayanti Bhattacharya which had mark of blood as claimed by FSL report, there is no other evidence to implicate Jayanti Bhattacharya in the commission of murder of Kamala Bhattacharya for which she faced the trial.
35. Mr. Dastoor submits that regarding recovery of sari prosecution has relied on the evidence of P.W. 15, but, this witness during his deposition was declared hostile and save and except the statement of this hostile witness there is no other evidence to support the prosecution claim that sari was recovered from Jayanti during investigation and if this claim of prosecution finds no ground for support, the FSL report: has got no relevance.
36. Mr. Dastoor contends that if confessional statement of Bhabani is legally admissible then and only then with the aid of Section 30 of the Evidence Act, prosecution could have claimed for conviction of Jayanti Bhattacharya and as Mr. Basu has challenged the admissibility of the confessional statement of Bhabani Prasad, he has nothing to add further and he reiterates the points taken by Mr. Basu in this regard.
37. Thus, Mr. Dastoor concludes that so far his client Jayanti Bhattacharya is concerned the learned Judge recorded his order of conviction merely on conjecture and surmise without caring for any legal evidence and for that reason alone the said conviction order is liable to be set aside.
38. Mr. Safiullah appearing for the State respondent in connection with both the appeals has supported the order of conviction and sentence and refuted all the points taken by both Mr. Basu and Mr. Dastoor. Mr. Safiullah contends that since investigation did not support the alleged commission of dacoity by the miscreants and since possibility of commission of the murder of Rita and Kamala by unknown miscreants was ruled out at the initial stage of investigation and since there was no tangible and credible evidence to support the alibi of Bhabani Prasad regarding his absence at the place of occurrence at the relevant time, I.O. had reasonable ground to suspect Bhabani Prasad in the commission of the crime and I.O. latter got corroboration from legal evidence collected during investigation.
39. Mr. Safiullah submits that FIR itself or statement of P.W. 1 cannot damage the prosecution case keeping in mind the possibility of P.W. 1 to save his own wife who happened to be co-accused and also to protect family prestige.
40. Mr. Safiullah contends that a ladder was found behind the back side of the house of Bhabani Prasad and P.W. 1 himself deposed that the entrance door was bolted from inside and in fact, P.W. 1 and his daughter entered into the house from the roof and this is enough to indicate that to hoodwink the public and also the investigating agency Bhabani used the ladder to enter into the room to commit the crime and thereafter he left the place of occurrence.
41. Mr. Safiullah contends that when there was no possibility of commission of the crime by the outsider, a reasonable question may arise what would prompt Bhabani Prasad to commit the murder of his own wife and mother and here comes the question of motive, although, motive may not assume any importance in criminal trial, but, in a case of this nature where husband and son appears to be involved in the commission of murder of wife and mother respectively prosecution must come with a reasonable explanation of motive and that motive has been clarified from the confessional statement of Bhabani Prasad himself.
42. Mr. Safiullah submits that Bhabani Prasad soon after the murder tried to remove the ornaments from his house and to deposit the same with Jayanti, her mother-in-law and this fact itself at the beginning created a strong ground for his involvement in the commission of the crime and this removal of ornaments and subsequent seizure of the same in presence of witnesses lends sufficient support to the prosecution case regarding involvement of Bhabani and Jayanti.
43. Mr. Safiullah submits that soon after arrest of Bhabani Prasad and during his police custody he gave a statement to the investigating officer leading to the recovery of knife from a pond and also leading to recovery of his wearing apparels from another pond and prosecution examined several witnesses in support of such recovery and seizure.
44. Mr. Safiullah contends that statement of Bhabani Prasad given before the police officer while in police custody leading to recovery is very much admissible in law keeping in mind the ratio of decision delivered by the Hon’ble Supreme Court in the case of State of H.P. v. Jit Singh reported in 1999 SCC (criminal) page 539 ; 1999 Cri LJ 2025 and also in the case of K. Chinnaswami Reddy v. The State of A.P. . Mr. Safiullah contends that in the case of Chinnaswami, the Hon’ble Supreme Court had the occasion to consider the Privy Council judgment delivered in connection with Phulu Kuri Kottayar v. King Emperor 1947 (48) Cri LJ 533 and distinguishing the fact of that case, the Hon’ble Supreme Court observed that the statement given by the accused while in police custody leading to discovery of fact and recovery of incriminating article shall be admissible as a whole.
45. Mr. Safiullah contends that the recovery of the knife at the instance of Bhabani Prasad from a place exclusively known to him and recovery of his wearing apparels sufficiently supports the prosecution case that it was Bhabani Prasad who killed his own wife with the knife and it was Bhabani Prasad who also helped Jayanti to kill his mother with the same knife. Mr. Safiullah has mentioned the deposition of the doctor who conducted post-mortem examination on the dead body of both Rita and Kamala to support his contention that Bhabani Prasad used the knife and subsequently threw the same into the pond.
46. Mr. Safiullah contends that much has been spoken about the admissibility of the confessional statement of Bhabani Prasad on the ground that he was administered oath by the learned Magistrate before recording the confessional statement. Mr. Safiullah contends that for the ignorance on the part of the learned Magistrate the prosecution is not likely to suffer and, that apart, there is nothing on record to show that deponent was prejudiced in any way for the administration of the oath. Mr. Safiulla submitts that it is a common practice for an accused to retract from his confessional statement at the subsequent stage of trial, but, the fact remains that the appellant Bhabani Prasad himself stated while his examination under Section 313 of the Cr. P.C. that he gave a statement to the learned Magistrate although he stated that he was under pressure from the investigating officer to make such statement. Mr. Safiullah submits that the post-mortem report, the recovery of the knife, the recovery of the wearing apparels, the attempt on the part of the Bhabani Prasad to remove the ornaments of his deceased wife all taken together lead us to one conclusion that Bhabani Prasad voluntarily gave the confessional statement and such confessional statement finds corroboration from the factum of seizure and other surrounding circumstances.
47. Mr. Safiullah contends that even a witness is declared hostile, if that witness earlier gave any statement before the learned Magistrate, it is not permissible for that witness to retract from the statement when the witness never challenged the fact that he was present before the Magistrate and he gave the statement. Mr. Safiullah with reference to a decision given in the case of Dagdu v. The State of M.P. contends that all the four witnesses who happened to be the relation of Bhabani Prasad at the earlier stage of investigation supported the prosecution case and gave the statement before the learned Magistrate and they retracted from their statement during trial only to help the accused person and their behaviour in this regard must be discarded for the sake of justice.
48. Mr. Safiullah submits that so far Jayanti Bhattacharya is concerned her Involvement gets full support from the confessional statement of Bhabani Prasad as well as from the recovery of her sari and FSL, report corroborates the prosecution case by indicating the presence of blood mark on that sari.
49. Mr. Safiullah contends that it has been alleged by the appellants that some local political men out of political rivalry misguided the investigating officer in order to save the real culprits and to take revenge against Bhabani Prasad and other appellants, but, this allegation finds no corroboration from the evidence of the investigating officer and the investigating officer being a public servant independently conducted the investigation and after collection of material evidence he placed the same before the trial Court and the trial Court being satisfied with the credibility of such evidence recorded the order of conviction against both the appellants and naturally, there appears no merit in either of the appeal and both the appeals should be rejected.
50. We have considered submissions of both the sides in connection with both the appeals and we have also examined the evidence on record both oral and documentary.
51. From the FIR of this particular case, we do not get any indication about involvement of Bhabani Prasad in the commission of the crime, rather, from the FIR and also from the statement of P.W. 1 to P.W. 5, we get a clear indication regarding commission of dacoity and murder. The investigating officer in his deposition as P.W. 27 disclosed that he had noticed ransacking of the household articles and he also had noticed presence of a big size ladder behind the backside of the house of Bhabani Prasad where the occurrence took place. The investigating officer took the help of sniffer dogs and subsequently he arrested some local people and they were discharged at a latter stage. The investigating officer as we find from his deposition made no attempt to verify the fact of dacoity from any angle and he also did not make any attempt to verify how and wherefrom the ladder was brought.
52. The investigating officer in his statement disclosed that on interrogation of some of the relatives of Bhabani Prasad namely Tarun Adhykary P.W. 6, Kamala Pada Bhattacharya P.W. 9, Jayanti alias Pranati Bhattacharya P.W. 10 and Gita Rani Adhikary P.W. 19 he became suspicious, because, these witnesses disclosed that Bhabani Prasad tried to remove ornaments of his wife and to deposit the same with Jayanti Bhattacharya.
53. Bhabani Prasad was arrested three days after the occurrence and it is the prosecution case that while in police custody he gave statement leading to recovery of knife and his wearing apparels and it is also the prosecution case that he gave confessional statement implicating himself and also Jayanti Bhattacharya.
54. P.W. 1 to P.W. 5 were examined by investigating officer on the very date of occurrence and all these witnesses did not speak anything adverse against Bhabani Prasad or about the alleged illicit relation of Bhabani Prasad with Jayanti who is mother-in-law of Bhabani and these witnesses were not declared hostile and the impact of not declaring them hostile will go against the prosecution case as we gather from the ratio of decision given in the case of Muktiar Ahamed Ansari (2005 Cri LJ 2569) (supra) and Raja Ram (2005 SCC (Cri) 1050) (supra).
55. Prosecution heavily relied on the statements of Tarun Adhykary, Pranati Bhattacharya and Gita Rani and, in fact, these witnesses also gave statement before the learned Magistrate under Section 164 of the Cr. P.C. But, at the time of trial all these witnesses declined to oblige the prosecution by retracting from their earlier stand and they were categorical in their statement that under pressure from investigating officer they gave false statement implicating the appellant Bhabani Prasad before the learned Magistrate. Even if we accept the prosecution case that Bhabani Prasad tried to remove the ornaments from his house to the house of his mother-in-law, that itself cannot lead us to make any adverse inference against Bhabani Prasad, rather, it was a natural act simply, because, in the absence of any inmate of the house, it was unsafe to leave valuable articles and since the house of father-in-law was near, Bhabani Prasad thought it proper to remove the valuable articles.
56. From the prosecution evidence we find that to substantiate its case against Bhabani Prasad, prosecution has relied on the confessional statement and also on recovery of knife and wearing apparels of Bhabani Prasad.
57. On examination of confessional statement of Bhabani Prasad, we find the undisputed position that oath was administered by the learned Magistrate before recording the statement and, that apart, the learned Magistrate did not inform the deponent that he would not be remanded to police custody and also the learned Magistrate did not obtain any explanation as to why he wanted to make the confession.
58. We have already discussed the legal position regarding the confessional statement and we find from different decisions referred in the body of this Judgment earlier that administration of oath itself would make a confessional statement totally inadmissible in evidence in view of mandatory provision of Article 20(3) of the Constitution of India and also in view of the provision of Section 281 of the Cr. P.C. It is also available from the decisions already indicated that unless the deponent is Informed that he would not be remanded to police custody again and unless an explanation is obtained as to the reason for giving the confessional statement, the confessional statement would not be inadmissible in law. Thus, having regard to the legal position as indicated above and on examination of confessional statement of Bhabani Prasad, we are of the firm opinion that such confessional statement cannot be acted upon to support the prosecution case.
59. Now, coming to the question of recovery of the incriminating weapon and recovery of the wearing apparels pursuant to the statement of Bhabani Prasad, we find from the evidence of P.W. Kamalapada Bhattacharya, Kalipada Banerjee and Aswini Kr. Nayak that none of them was present at the place of recovery of wearing apparels and none of them saw wherefrom the recovery was made as regards the wearing apparels and, in fact, there is no evidence on record to indicate that Bhabani Prasad was taken by the side of the pond in presence of witnesses and in his presence, the wearing apparels were recovered from the pond and naturally, in view of this evidence, we cannot place any reliance on the factum of recovery as regards wearing apparels of Bhabani Prasad.
60. As regards the recovery of the knife, we find that P.W. Chunilal Hazra, P.W. Satyen Ghosh and P.W. Narayan Mondal were witnesses to seizure and against these witnesses P.W. 1 and other witnesses examined by prosecution have stated in most clear and unambiguous term that they were instrumental in the arrest of Bhabani Prasad and Jayanti and they from the beginning took unusual interest in investigation and naturally, there are strong reasons to question the veracity of their evidence.
61. Now, in view of the evidence of the witnesses both regarding recovery of knife and wearing apparels, if we take into consideration the ratio of decision rendered in the case of Phulu Kuri Kottayar 1947 (48) Cri LJ 533 (supra) along with the State of H.P. 1999 Cri LJ 2025 (supra) and K. Chinnaswami Reddy 1963 (1) Cri LJ 8 (supra), we are really in strong doubt about the veracity of the statement alleged to have been given by Bhabani Prasad to the investigating officer while in police custody.
62. Thus, after considering the submissions of both the sides and having regard to the evidence on record, we find that all the principal witnesses of the prosecution, who were closely related to the victims and who should have been highly interested in the conviction of actual culprits, spoke nothing about the involvement of Bhabani Prasad and Jayanti. On the contrary, from the FIR and evidence of these principal witnesses, we get a clear idea that there was commission of dacoity and murder and the investigating officer for the reasons best known to him totally ignored the factum of dacoity and thereby he misdirected himself in the matter of investigating the case.
63. We have already discussed that the main evidence of the prosecution on which the learned Judge relied on to record the order of conviction are not admissible in evidence namely, the confessional statement of Bhabani Prasad so also the recovery of knife and wearing apparels.
64. Thus, in view of this position of evidence produced by the prosecution we find it really difficult to lend support to the order of conviction recorded against Bhabani Prasad and in our considered view, prosecution miserably failed to substantiate the charges framed against Bhabani Prasad and the learned Judge totally misdirected himself in the matter of appreciation of evidence, because, he ignored the settled legal principle while accepting the confessional statement and he also Ignored the factual position while accepting the factum of seizure of incriminating weapon and wearing apparels of Bhabani Prasad.
65. Now, coming to the case of Jayanti Bhattacharya we find the position more miserable from the point of prosecution. Since we have discarded the confessional statement of Bhabani Prasad for the reasons already recorded, prosecution cannot utilize the confessional statement against Jayanti. Another piece of evidence against Jayanti was that her sari was recovered which had the mark of blood, but, this very fact of recovery of sari has not been proved to our satisfaction since we find from the evidence of P.W. 15 Pradumna Roy that he did not support this seizure and it is important to note that I.O. was not confronted with the statement of Pradumna Roy during his examination by prosecution although, Pradumna was declared hostile.
66. Thus, when alleged confession of Bhabani Prasad cannot be of any help for the prosecution and when the factum of seizure of sari from Jayanti has not been proved, the learned trial Judge erred in law and fact in recording the order of conviction against Jayanti.
67. Thus, after careful consideration of entire prosecution evidence and keeping in mind the settled position of law clarified through different decisions cited at the Bar, we are of the view that there was practically no evidence to support the order of conviction and sentence either against Bhabani or against Jayanti and as such we find merit in both the appeals.
68. CRA 67 of 2001 and CRA 128 of 2001 are accordingly allowed.
69. The order of conviction and sentence recorded against Bhabani Prasad Bhattacharya and Jayanti Bhattacharya are hereby set aside and both he appellants are found not guilty of all the charges framed against them and they stand acquitted,
70. We find from record that Bhabani Prasad Bhattacharya is in detention and in view of our judgment he must be released forthwith from this case if he is not wanted in connection with any other case.
71. Send a copy of this judgment and order to the superintendent of the Correctional Home where Bhabani Prasad Bhattacharya is detained for his immediate release.
72. We find from record that appellant Jayanti Bhattacharya is on ball and in view of our present order she stands discharged from the ball bond with immediate effect.
73. Send a copy of this judgment and order to the learned trial Court immediately along with the LCR.
74. Certified copy of this judgment and order may be supplied on making proper application and after complying with all legal formalities.
Sadhan Kumar Gupta, J.
75. I agree.