U.B Shah, J.:— The appellants, namely Deoraj and Giridhari Goala, have filed this appeal challenging the judgment and order dated 12-1-1999 passed by the learned Additional Sessions Judge, Cachar, Silchar in Sessions Case No. 47 of 1995 whereby; and whereunder the appellant Deoraj Goala was convicted under Section 201 read with Section 109 IPC and sentenced to suffer R.I for two years and to pay a fine of Rs. 500/- i.e to suffer another one month's R.I, and the appellant Giridhari Goala was convicted under Section 302 IPC and sentenced to'suffer imprisonment for life and to pay a fine of Rs. 500/-, i.e to suffer R.I for another one month. The appellant No. 2 was also convicted under S. 201 read with S. 109 and sentenced to suffer R.I for three years and also to pay a fine of Rs. 500/-, i.e to suffer another one month's R.I Both the terms of imprisonment in respect of convict Giridhari Goala shall run concurrently.
2. Heard Mr. N. Choudhury, learned counsel for the appellants as well as Mr. K.A Mazumder, learned P.P appearing for the respondent-State. The facts of the prosecution case, in brief, are that on 20-11-1993, the husband of the deceased, Umakanta Goala (P.W 10) of Badribasti lodged a written ejahar with the in-charge of Banskandi Outpost of Lakhipur P.S alleging, inter alia, that his wife Radhika Goala had disappeared from his house at about 2 p.m on 19-11-1993 and on that day, at about 4.00 p.m when his mother went to the well for fetching water, she saw the dead body of his wife floating on the water of the well. It was also stated in the ejahar that the deceased Radhika was suffering from insanity for last few days. On the basis of the aforesaid ejahar, the in-charge of Banskadi Outpost recorded the GD entry No. 338 dated 20-11-1993 and the said GD entry was forwarded to the Lakhipur P.S to register a U.D Page: 819Case and take up for investigation. Thereafter, Lakhipur P.S registered a U.D case No. 28 of 1993 dated 21-11-1993.
3. Subsequently, on 23-11-1993, another written ejahar was lodged by one Shyam-sundar Goala (P.W.1) with the, I.C Banskandi O.P stating, inter alia, that his niece Radhika had been murdered by Smt. Mulki Goalini, Deoraj Goala and Sri Giridhari Goala. In the said ejahar, it was also stated that on reaching the house of Umakanta (P.W 6), he could learn that Radhika had been murdered by the aforesaid accused. On the basis of the said ejahar, another GD entry No. 402 dated 23-11-1993 was made by Banskandi Outpost which was forwarded to Lakhipur P.S for registering a case and the in-charge of Banskandi police outpost took up the case for investigation. The said ejahar was registered as Lakhipur P.S case No. 214 of 1993 under Section 302/34 IPC.
4. During the course of investigation, the police arrested the accused appellant Giridhari Goala and Deoraj Goala and forwarded them to the learned Magistrate. Upon completion of the investigation, the police submitted charge-sheet under Section 302/34 IPC against the aforesaid two accused.
5. As the offence was cognizable and exclusively triable by the Court of Session, the case was committed to the Court of Sessions Judge, Cachar, Silchar. On receipt of the records, the learned Sessions Judge, Cachar transferred the case to the learned Additional Sessions Judge, Cachar for trial.
6. The learned Addl. Sessions Judge in the course of trial, framed charges against accused Deoraj Goala under Sections 201/109 IPC for committing offence of disappearance of evidence relating to murder of the deceased and against accused Giridhari Goala under Sections 302/201/109 IPC for committing murdeir of Radhika.
7. To bring home the guilt of the accused appellants, the prosecution examined as many as twelve witnesses including the official witnesses. On completion of the evidence of the witnesses, the accused appellants were examined under Section 313 Cr. P.C when they denied the allegations made against them. However, they examined one witness in defence in support of their case.
8. Considering the material on record, the learned Additional Sessions Judge recorded the conviction and sentence against the accused appellant as stated supra.
9. Being aggrieved by the said judgment and order of conviction and sentence, the accused appellants have come before this Court with the” instant appeal.
10. Mr. Choudhury, the learned Counsel appearing for the accused appellants while attacking the impugned judgment and order of conviction and sentence would contend, that the learned trial Court in the trial did not consider the fact relating to the insanity of the deceased and also the medical evidence of P.W 9. Dr. K.K Chakraborty who conducted post mortem on the dead body Of the deceased. His second contention before us is that admittedly there was no eye witness of the alleged murder of the deceased Radhika inasmuch as the prosecution also failed to prove any circumstances which can connect the accused appellants with the alleged murder except the alleged confessional statements of the accused appellant Giridhari before P.W 5 and 7 which cannot be accepted in view of the provisions of Section 26 of the Evidence Act as the alleged confessional statement was given by the accused appellant Giridhari while he was in police custody. More so, the said statements of P.W 5 & 7 being improve statement and first time disclosed in the course of trial cannot be relied upon for the purpose of convicting the accused appellants. The learned counsel further submits that the P.W 4 Sri Kishore Goala did not state to P.W 12, Md. Iyajul Rahman, the I.O of the case that the accused appellants Giridhari and Deoraj concealed the dead body of the deceased under the straw. Not only that, even P.W 5 also did not state to P.W 2, Md. Iyajul Rahman, that he found the accused appellant Deoraj, Kabura Goala and Chita Goala were on guarding near the straw and while he tried to climb the top of the heap of straws, the accused Deoraj protested and those statements were made first time before the Court at the Page: 820time of trial. Hence, the same cannot be accepted for convicting the accused appellants being those statements are improved version.
11. He further urges that mere presence of the accused appellants in their house at the time of death of the deceased does not ipso facto connect them with the alleged offence. He finally urges that the trial Court also failed to consider the evidence of D.W 1, Mohan Gowala, whose house is about 10-15 cubits away from the house of the deceased where the dead body of the deceased was found and he is neither a relation of the accused appellants nor an interested witness.
12. Per contra, Mr. K.A Mazumder, learned P.P while supporting the impugned judgment of conviction and sentence and resisting the submission of Mr. Choudhury would contend that admittedly there was no eye-witness relating to murder of the deceased. He further submits that the whole prosecution case is mainly based on the evidence of P.W 5 and 7 before whom the accused appellants Deoraj, the father-in-law of the deceased and Giridhari, brother-in-law of the deceased, made their confessional statement and the learned Trial Court rightly convicted them believing their statements.
13. Upon going through the judgment of the learned Trial Court, it appears that the learned Trial Court convicted the accused appellants, mainly relying on the extra-judicial confession made by the accused appellants to P.W 5 and 7 to whom the accused appellants allegedly admitted the guilt, particularly, the statement of the accused appellant Giridhari, inter alia, that he (Giridhari) had assaulted Radhika by a bamboo foot and as a result, she died. The said bamboo foot was subsequently discovered from the sugar cane field on being led by the accused appellant Giridhari.
14. For proper appreciation of the submission of the learned Counsel for the parties as well as evidence on record, it would be proper on our part to discuss about the evidence of the prosecution witnesses.
15. P.W 1 stated that he has learnt regarding the murder of his niece from Sri Sugrib (P.W 6) and he saw the accused appellants who were in hurry for cremation of the dead body of his niece which he prevented with the help of the local people and ultimately, lodged ejahar (Exbt. 1) in the Banskaiidi Outpost.
16. P.W 2 Smt. Phulmati Goala, a co-villager of the deceased, in her statement stated that on the fateful day, she met with the Radhika in Badri where Radhika went to take bath and seeing her, Radhika started crying and told her that she was not allowed to take food by her mother-in-law for four days and also assaulted her with a ladle and on the same day, the accused Giridhari and his mother came to her house and enquired about Radhika.
17. P.W 3 Ram Prasad Kahar, a neighbour of the accused appellants in his statement stated that before the day of recovery of the dead body of the deceased, the accused appellant Giridhari came to his house in search of Radhika and on the following day, at about 11 a.m, he went to the house of the accused appellants and enquired about Radhika. But he was told by the mother of Giridhari that Radhika was sleeping on the top of the roof of the house. He again in the evening went there and enquired about Radhika and found the accused persons were guarding in front of straw and on his enquiry, the accused told that Radhika was on the top of the roof. Thereafter, he called the Secretary, Hari Koirai (P.W 5) and one Putul Kahar brought Kishore Goala (P.W 4). Light was brought and they went in front of the straw where the accused persons were guarding and found Radhika lying dead covered with straws. Then P.W 5 asked the accused appellant Deoraj not to remove the dead body and thereafter informed the Banskandi out post.
18. P.W 4, Kishore Goala, also corroborated the evidence of P.W ‘3 and in addition to that, he stated that P.W 3 took Putul Kahar, Raj Narayan Mohan and him to the house of the accused Deoraj wherd the dead body was kept hidden under the straw was found by the accused appellants Deoraj and Giridhari and they identified the deat body by flashing the torch.
19. P.W 5, Hari Narayan Koirai who is a neighbour of the deceased as well as witness of the inquest report (Exbt. 2) and seizure witness of Ext. 3, also stated the same story as stated by P.W 3 and 4 and in addition to that he stated that the hair of the deceased was untied and she was wearing red blouse with yellow sari and her hair was not wet. He informed the Baskandi police outpost over telephone, when the accused appellant Deoraj was asked as to how the deceased died, the accused appellant Deoraj told that she died by falling into the well and then he measured the depth of the water of the well with bamboo and found the depth of the water about one and half feet deep water to which no person can die by falling into the water. Thereafter, he sent P.W 6 Sugrip Goala to the house of P.W 1 as Radhika had no parents. He also stated that when he went to the house of the accused Deoraj, Manjur Ali and Muslim were also with him. He also made a deposition before the Magistrate. He further stated that when the accused Giridhari was taken from Baskandi Outpost to Lakhipur P.S, he was with him and at that time, the accused Giridhari stated to him that he hit Radhika with part of Betua bamboo. When he told that he would be able to identify the bamboo, then the police came and the said bamboo had been seized (M. Ext. 1) by the police and he put his signature in the seizure list.
20. P.W 6 is the distant relation of P.W 1. In his deposition he stated that Hari Narayan Kuri (P.W 5) sent him to the house of P.W 1 and he gave deposition before the Magistrate. Exbt. 5 is his deposition and Exbt. 4 is the deposition of Hari Narayan Goala.
21. P.W 7 Sri Pradip Goala who stated that the accused Giridhari admitted before him and the police that he killed Radhika with a bamboo pole, He also stated that the accused told about keeping the bamboo in the sugar cane field in his cross, he also stated that Giridhari made, confession while he was brought in the police station.
22. P.W 8 did not say anything about the incident. Hence, it is not necessary to reproduce her statement. P.W 9 is the scribe of ejahar (Exbt. 1) as well as seizure witness.
23. The trial Court mentioned two prosecution witnesses as P.W 9. First P.W 9 is Sirajuddin Laskar who is the scribe of Ejahar and the second P.W 9 is Dr. K.K Chakraborty, who had done post mortem over the dead body of the deceased and found the following injuries over the dead body.
(1) One abrasion on right scalpular region, measuring 2 × 1 c.m fresh and and mortem, neck externally, healthy, internally on dissection found healthy including the hyoid bone.
Thorax
Laryynx and Trachea found congested and contain froth mixed with blood and sand particles. Both the lungs are voluminous, water logged congested, a cut section excude froth mixed with blood.
Other healthy
Column of the abdomen stomach
Contents-Semi digested food materials and full of water sand particles are present. Other all organs are congested.
Column of Trachea — Membrane
Membrane and brain congested. Death in my opinion was due to as a result of anti morten drowning.
The injury mentioned above may cause fainting if some one is thrown into well in such fainted condition death may be caused by asphyxia-Ex. 9(1) is my signature.
The abrasion may be caused by the bamboo stick material.
24. In his opinion, the abrasion may be caused by the bamboo stick (M. Exbt. 1) or may be caused due to fall into the well. According to him, if a dead body is thrown into water, then there will be no water in the lungs of the dead body. There is no direct link of the death of the deceased with the injuries of abrasion. In his cross, he stated that injury abrasion is superficial in nature and the injury may be caused due to fall in the well also.
25. P.W 10 Umakanta Goala is the husband of the deceased who in his statement categorically stated that his wife Radhika was Page: 822suffering from insanity and on the day of alleged incident, he went to the house of one of his relative. On the following day, he returned home at noon and when he reached home, he found many people gathering there and on being asked, his father and mother (who was FIR named accused, but subsequently not tried being not charge-sheeted), told that his wife had died falling into the well and his wife was found dead on the bank of the well. Accordingly, he went to the police station along with Mohan Goala (D.W 1) and lodged written ejahar. On the following morning, the police came to his house and examined the dead body and sent the same, to the Medical College. He also identified the Ejahar lodged by him as Exbt. 5. In his cross, he stated that police told him since night had fallen, he should keep the dead body carefully and they would come on the following day. Accordingly, the dead body was taken to the house from the bank of the well and kept it covered with cloth. The villagers lifted the dead body.
26. P.W 11 Baktar Uddin Majumder, ASI of police who prepared the inquest report as identified by P.W 10, husband of the deceased.
27. P.W 12 Md. Iazul Rahman who received first ejahar from P.W 10, husband of the deceased and made a G.D entry and for warded the FIR to Lakhipur P.S and upon receipt of the said ejahar, a UD case was registered and sent P.W 11 to visit POC and hold the inquest and send the dead body for the post mortem examination. In his cross, he specifically stated that P.W 2 Smt. Phulmati Goala did not state to him that Radhika's mother-in-law assaulted Radhika with a spoon (Hata) and that P.W 3, Ramprasad also did not state that the accused informed him that Radhika was over the roof and he informed the police that she would be taken down on arrival of her husband and at about 4 p.m finding Deoraj giving duty in his house and that after the evening, seeing light in the tilla and that in the afternoon, he with Kishore (P.W 4) Hari (P.W 5) Rampati Goala went to the house of the accused persons. P.W 4 and 5 also did not state to him that the accused appellants Deoraj and Giridhari concealed the dead body of the deceased under the straw. P.W 5 stated to him that he found Deoraj, Kachu Goala and Chitta Goala were on guard near the house of Deoraj. He also stated that P.W 5 did not state to him that he tried to climb over the heap of straw and accused appellant Deoraj protested that led him further suspicion and he along with Putul, Ramnarayan dispersed the straw. In his cross he further stated that P.W 7 also did not state to him that the dead body of the deceased was brought out from the sugar cane field and the accused appellant Giridhari told before him that material Exbt. 1, the piece of bamboo was hidden in the sugar came field and the dead, body was hidden below the straw.
28. Mohan Goala, DW 1 is the nearest neighbour of the husband of the deceased Umakanta Goala who also accompanied Umakanta (P.W 10) to the police station at the time of lodging the first ejahar relating to unnatural death of the deceased. The aforesaid DW in his statement stated that distance between his house and the house of the deceased is about 10/15 cubits and she fell in a well and died. He also corroborated the statement of P.W 10, inter alia, that P.W 10 went to Banskandi police outpost accompanied by him. He further submitted that as per direction of the police, they kept the dead body of Radhika on a bamboo mat covered with straw in the house of Umakanta and throughout the night, he was present in the house of Umakanta near the dead body. On the next morning, police came and after making inquest report on the dead body, the same was taken away. According to him, the well is about 10-15 cubits deep and level of the water was 7/8 cubits. The relation between Radhika and her family members were quite normal. He also stated that the deceased Radhika had three children and after the birth of the youngest child, she Suffered from insanity. In his cross, he stated that he is not the relative of the accused appellants. He also confirmed that the well was about 10/15 cubits deep.
29. Having heard the lerned Counsel of the parties and on going through the evidence of the prosecution witnesses as well as the Page: 823impugned judgment and order of conviction and sentence, it appears that the learned Sessions Judges found the accused persons guilty on the basis of the following materials, viz. (1) the accused persons tried to hide the dead body of the deceased in the court-yard of the accused persons but ultimately failed to hide the same as some witnesses recovered the dead body of the deceased covered by straw; (2) the accused appellant Deoraj narrated the story how and what manner the accused Giridhari committed the offence and he also made extra-judicial confession before the P.W 5 and 7; and (3) the accused appellant Giridhari led the police to the place where the bamboo foot which was used for committing the alleged offence was hidden, on the basis of which the said bamboo, foot was recovered. Mainly these are circumstances or the pillars on which the super structure of the prosecution story was built up.
30. Now let us see how strong are these pillars of the prosecution story in view of the evidence on record.
31. First we have to note that the story which has been stated before the trial Court by the prosecution witnesses, namely, P.W 2, 3, 4, 5 and 7, whether the said story was also narrated before the I.O of the case or not. If not stated to the I.O of the case at the time of recording the statement under Section 161 Cr. P.C, but subsequently stated before the Court at the time of trial, then these evidences cannot be taken into consideration for the purpose of conviction as those evidences can be said to be improved version for first time in the Court.
32. P.W 12 of the I.O of the case who is very much interested for punishment of the accused persons after filing of the charge sheet stated in all fairness before the Court that P.W 2 Fulmati did not state to him the facts what she stated before the trial Court, inter alia, that Radhika's mother-in-law assaulted Radhika with a spoon and P.W 3 also did never state to him what he stated in the Court, inter alia, that the accused appellants informed him that Radhika was over the roof and that informed the police that she (Radhika) would be taken down on arrival of her hushed and that at about 4 p.m finding the accused appellant Deoraj giving duty in his house and that after the evening, seeing light in the tilla and that in the afternoon, he with Kishore (P.W 4), Hari (P.W 5), Rampati Goala went to the house of the accused appellants. It also appears from his evidence that P.W 4, Kishore also not stated to him at the time of recording the statement under Section 161 Cr. P.C that the accused appellants Deoraj and Giridhar concealed the dead body of the deceased under the straw. Not only that, P.W 5 also first time stated in the Court that he found the appellant Deoraj, Kachu Goala, Chita Goala, were on guard near the house of the accused appellant Deoraj. The said witness also did not state to him that he tried to climb over the heap of straw and the accused appellant Deoraj protested and that this led to his suspicion and he along with Putul, Ramnarayan dispersed the straw and the hair of the deceased was disheveled and the body of the deceased was not wet. P.W 7 also did not stated to the I.O of the case that dead body was brought out from the sugar cane field. Not only that the said P.W also did not state to him that Giridhari told before him (P.W 7) that material Exbt. 1 the piece of bamboo was hidden in the sugar cane field and the dead body was hidden below the straw, believing which the learned trial Court passed the order of conviction. According to us, as those versions of the prosecution witnesses were made first time in the Court, such improved version cannot be used for the purpose of conviction.
33. In the case of Radha Kumar v. State of Bihar (now Jharkhand), (2005) 10 SCC 216, the Apex Court noted, inter alia, that “undisputedly, these witnesses have not disclosed complicity of the appellant in the crime in their statement made before the police inasmuch as they have not even disclosed the name of the appellant as the accused in their statement made before the police and for the first time in the Session Court after several months they have disclosed complicity of the appellant in the crime. No person has been assigned by the prosecution for nondisclosure of the name of the appellant before the police by these witnesses. This being Page: 824the position, we are of the view that it would not be safe to place reliance upon the statement of these witnesses made for the first time in the Sessions Court after several months of the alleged occurrence without there being any reasonable excuse for not naming the accused before the police especially when the prosecution case has not been supported by the informant who also claimed to be an eye-witness.”
34. In the instant case also, it is the admitted position that the evidence by which the prosecution tried to incirminate the accused appellants first time stated before the trial Court without disclosing the same before the police when their statements were recorded under Section 161 Cr. P.C The husband of the deceased (P.W 10) who was not shown-as an accused, but is a witness of the prosecution specifically stated that his wife was suffering from insanity and the dead body was found on the bank of the well. Therefore, according to us, it was not proper on the part of the trial Court to place reliance upon such statement of those witnesses for convicting the accused persons, as the improved story narrated by the prosecution witnesses turned into ashes.
35. In Nepal Singh v. State Of Haryana, (2009) 12 SCC 351 : AIR 2009 SC 2913, while the Apex Court upheld the order of acquittal of the accused by the trial Court and set aside the judgment of a Division Bench of Punjab and Haryana High Court convicting the appellant of that case also considered the improved version of the evidence as it would be evident from Para-41 and 42 of the said report wherein it is stated that “during cross examination he accepted that all this was not stated during investigation. He also accepted that it was not mentioned in the FIR that gifts and other articles were given as dowry. He accepted that his father in law Udai Singh had settled the marriage between the accused and the deceased. Interestingly Udai Singh (DW 1) has stated that there was no demand from the side of the accused at the time of marriage. The deceased and her parents had never Complained to him that the accused or any member of his family was raising any demand of any kind when confronted with the statement made during investigation. PW 5 accepted that he had not stated many vital things during investigation which for the first time he was speaking in Court. Similar is the position with PW 7 the brother of the deceased. He also accepted on being confronted with the statement made during investigation that he had not stated particularly certain relevant aspects. Similar is the position with the evidence of mother of deceased (PW-6).
As was rightly noted by the trial Court there was no evidence towards the claim regarding any demand of dowry. That being so the High Court ought not to have interfered with the well reasoned judgment of the trial Court directing acquittal the reasoning of the High Court that something must have happened and otherwise deceased would not have committed suicide is clearly indefensible.”
36. Other evidences remain are extra judicial confession and leading to discovery of the bamboo foot which was allegedly used at the time of commission of murder. In Kishore Chand v. State of Himachal Pradesh, 1990 Cri LJ 2289 : ((1991) 1 SCC 286 : AIR 1990 SC 2140), while the Apex Court considering the case of substantial evidence also dealt with when the extra judicial confession can be relied upon. In paras 7 & 8 of the said report, it is noted, inter alia, that
“7. xxx The next piece of evidence is the alleged extrajudicial confession made by the appellant to P.W 10 an unambiguous extra judicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of its falsity. But in the process of the proof of the alleged confession the Court has to be satisfied that it is a voluntary one and does not appear to be the result of inducement threat or promise envisaged under S. 24 of the Evidence Act or was brought about in suspicious circumstances to circumvent Ss. 25 and 26 of the Evidence Act. Therefore, the Court has to look into the surrounding dicumstances and to find whether the extra judicial confession is not inspired by any improper or collateral consideration or circumvention of the law Page: 825suggesting that it may not be true one. For this purpose the Court must scrutinize all the relevant facts such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made and finally the actual words used by the accused. Extra-judicial confession if found to be voluntary, can be relied upon by the Court along with other evidence on record. Therefore, even the extra judicial confession will also have to be proved like any other fact. The value of the evidence as to the confession depends upon the veracity of the witness to whom it is made and the circumstances in which it came to be made and the actual words used by the accused. Sometimes it may not be possible to the witness to reproduce the actual words in which the confession was made. For the reason, the law insists on recording the statement by a Judicial Magistrate after administering all necessary warnings to the accused that it would be used as evidence against him.
8. Admittedly P.W 10 and the appellant do not belong to the same village. From the narrative of the prosecution story it is clear that P.W 27, and P.W 10 came together and apprehended the appellant from his village and was taken to Jassur for identification. After he was identified by P.W 7 and P.W 8 it was stated that he was brought back to Gaggal village of P.W 10 and was kept in his company and P.W 27 left for further investigation. Section 25 of the Evidence Act provides that no confession made to a police officer shall be proved as against a person accused of any offence. Section 26 provides that no confession made by any person while he is under custody of the police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. Therefore, the confession made by an accused person to a police officer is irrelevant by operation of Section 25 and it shall be proved against the appellant. Likewise the confession made by the appellant while he is in the custody of the police shall not be proved against the appellant unless it is made in the immediate presence of the Magistrate, by operation of S. 26 thereof. Admittedly, the appellant did not make any confession in the presence of the Magistrate. The question, therefore, is whether the appellant made the extrajudicial confession while he was in the police custody. It is incredible to believe that the police officer, P.W 27, after having got identified the appellant by P.W 7 and P.W 8 as the one last seen the deceased in his company would have left the appellant without taking him into custody. It is obvious that with a view to avoid the rigour of Ss. 25 and 26, P.W 27 created an artificial scenerio of his leaving for further investigation and kept the appellant in the custody of P.W 10, the Pradhan to make an extra judicial confession. Nothing prevented P.W 27 to take the appellant to a Judicial Magistrate and had his confession recorded as provided under Section 164 of the Cr. P.C which possesses great probative value and affords an unerring assurance to the Court.”
37. In the instant case also, it appears that the alleged extra judicial confession was given by the accused appellant Giridhari to P.W 5 and 7 after his arrest while he was in the custody of the police and proceeding towards police outpost. No only that P.W 5 & 7 specifically stated that while the accused was making the extra judicial confession at that time the police was also there. Therefore, according to us, the said extra-judicial confession also cannot be accepted for the purpose of conviction of the accused appellant Giridhari. More so, the confessional statement of the accused appellant Deoraj implicates the co-accused Giridhari, his son, can also not be accepted being the same is exculpatory statement.
38. Admittedly in the instant case, the confessional statement of the accused neither recorded by the Judicial Magistrate nor was any Judicial Magistrate present at the time of the said extra-judicial confession.
39. In Mohd. Adbul Hafeez v. State of Andhra Pradesh, (1983) 1 SCC 143 : AIR 1983 SC 367 : (1983 Cri LJ 689), the Apex Court discussed how and what manner the recovery statement is to be recorded, particularly, the evidence leading to recovery of a weapon used in the commission of offence. While discussing the same, the Apex Court in para 5 of the said report stated, inter alia, “the next piece of Page: 826evidence against the appellant is that he along with accused 2 and 3 gave information to the investigating officer that the ring MO 1 was sold to jeweller PW 3 Pandurangam Kondiah Now, who gave this information leading to the recovery of this ring MO 1 left us guessing. In examination-in-chief PW. 3 Pandurangam K. Kondiah stated that his jewellery shop is near Gulzar House, that in the course of his business he buys and sells ornaments and jewels. He deposed that on December, 9, 1978. Accused 1 to accused 4 whom he identified in the Court, came to his shop and sold ring MO. 1 to him for Rs. 325.He further stated that on Dec. 27, 1978, a Sub-Inspector of Police and some constables accompanied by accused 1 to 3 came to his shop and accused 1 to 3 asked him to produce No. 1 ring which they had sold to him he stated that he took out MO. 1 ring from the show case and placed it on the box and the same was attached by the Sub-Inspector of Police under Ext. P/2. Does this evidence make any sense? He says that accused 1 to 4 sold him the ring. He does not say who had the ring and to whom he paid the money. Similarly, he stated that accused 1 to 3 asked him to produce the ring. It is impossible to believe that all spoke simultaneously. This way of recording evidence is most unsatisfactory and we record our disapproval of the same. If evidence otherwise confessional in character is admissible under Section 27 of the Indian Evidence Act, it is obligatory upon the Investigating Officer to state and record who gave the information; when he is dealing with more than one accused, what words were used by him so that a recovery pursuant to the information received may be connected to the person giving the information so as to provide incriminating evidence against the person. The evidence of Pandurangam, therefore, hardly provides any incriminating evidence against the present appellant.”
40. In Anter Singh v. State Of Rajasthan, (2004) 10 SCC 657 : AIR 2004 SC 2865 : (2004 Cri LJ 1380), the Apex Court reiterated the principle as stated supra and noted, inter alia, in paras, 13 and 14 of the said report that
“13. Although the interpretation and scope of Section 27 has been the subject of several, authoritative pronouncements, its application to concrete cases in the background events proved therein is not always free from difficulty. It will, therefore, be worthwhile at the “outset, to have a short and swift glance at Section 27 and be remained of its requirements the Section says:
‘Proyided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved.’
14. The expression ‘provided that’ together with the phrase ‘whether it amounts to a confession or not’ show that the section is in the nature of an exception to the preceding provisions particularly Sections 25 and 26. It is not necessary in this case to consider if this Section qualifies, to any extent, Section 24, also. It will be seen that the first condition necessary for bringing this Section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only ‘so much of the information’ as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word ‘distinctly’ means ‘directly indubitably’, ‘strictly’, ‘unmistakably’. The word has been advisedly used to limit and define the scope of the provable information. The phrase ‘distinctly’ relates ‘to the fact thereby discovered’ and is the linchpin oft he provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of “the discovery. The reason behind this part lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth Page: 827of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered.”
41. While summing up the requirement of the aforesaid Section 27, the Apex Court further noted in para 16 of the said report that:
(1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of the evidence connecting it with the crime in order to make the fact discovered admissible.
(2) The fact must have been discovered.
(3) The discovery must have been in consequence of some information received from the accused and not by accused's own act.
(4) The persons giving the information must be accused of any offence.
(5) He must be in the custody of a police officer.
(6) The discovery of a fact in consequence of information received from an accused in custody must be deposed of.
(7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible.”
42. In the instant case, as we have already held earlier that the prosecution witness did not state the fact relating to the leading to discovery of the bamboo foot before the I.O of the case while their statements were recorded under Section 161 of the Cr. P.C and the same was first time stated before the trial Court. On that count alone, their statements cannot be, Relieved.
43. In the sam line of reasoning, the fact leading to the discovery is also to be disbelieved. Furthermore, from the decisions of the Apex Court, At is crystal clear that the requirement of Section 27 of the Evidence Act, firstly, the information from the accused, regarding the materials used in the commission of offence, and then the recording of the statement of the accused and finally the said fact has to be proved. Mere leading to recovery of the appellant allegedly used in the commission of offence itself would not suffice the requirement of Section 27 of the Evidence Act.
44. In the instant case, admittedly, the investigating agency neither recorded any statement as required under Section 27 nor proved the material by examining through serological test and also failed to prove that the said bamboo foot was used in the commission of the alleged offence of murder which can connect the accused appellant Giridhari.
45. Assessing the evidence in a criminal case, the Court should go for strict proof on the face of which the accused can be connected with the commission of offence like murder and when the case is based entirely on the circumstantial evidence, the circumstances relied by the prosecution has to be fully established if the chain of events which can connect the accused with the crime in any way happened broken, the there would be no other option before the Court except to come to a reasonable conclusion consistent with the innocence of the accused. In the instant case, though the prosecution proved the circumstances, that the dead body of the deceased was found in the courtyard of the accused persons, but failed to connect the same with the torture by the mother-in-law of the deceased by spoon and further to the recovery of the material bamboo foot used in the commission of offence, even the extra judicial confession of the accused appellant Giridhari in view of the evidence of P.W 12, the I.O of the case.
46. It is also not clear to us as to why the trial Court did not consider the fact that the deceased was suffering from insanity as stated by P.W 10, the husband of the de ceased when the husband of the deceased himself not ruled out the possibility of her drowning in the water of the well. A prosecution witness whose evidence to some extent corroborated by D.W 1 and according to us, when the fact relating to insanity of the deceased is available in the prosecution Page: 828witness, the Court is supposed to examine the said fact of insanity and if the fact of drowning of the deceased in the well is probable due to her insanity, then the same cannot be ruled out when the inmates of the deceased like the mother-in-law and the accused Giridhari also searched about her in the house of P.W 2. Why the P.W 10, husband of the deceased, who had no quarrel with the deceased, would allow the real culprits to be escaped from the punishment for murder of his wife, even if they are the relatives like the accused appellants, for committing such offence and in this case, admittedly, the P.W 10 has not even suspected the accused appellants. More so, it appears from the record that the deceased was the mother of three children, but none of those children were also examined by the prosecution, even some other witnesses, who were present at the time of recovery of the dead body were also not examined by the prosecution which also creates some doubt regarding the prosecution case. For the foregoing reasons, we are of the view that the prosecution has failed to prove its case beyond reasonable doubt and the trial Court was not justified in convicting the appellants and accordingly, the appeal is allowed. The conviction and sentence of the appellants are set aside and they are acquitted from the charge levelled against them. As the appellant Deoraj Goala is on bail, his bail bond is accordingly discharged. The appellant Giridhari Goala is directed to be released forthwith, if not required in connection with any other case.
47. Appeal allowed.