JUDGMENT Jahagirdar, J. In Sessions Case No. 33 of 1980 tried by the learned Sessions Judge of Panaji, three accused were prosecuted for offences punishable under section 460 read with section 34 of the Indian Penal Code, section 302 read with section 34 and, section 397 read with section 34 of the Indian Penal Code. A charge was framed by the learned Session o; Judge against the three accused and we think it to be convenient to briefly refer to the said charge because it in one sense outlines the prosecution case that was to follow. 2. It was in the first place mentioned that on 5th of September 1980 between 7.30 p m. and 8 p.m. at a place called Limawaddo Kerem in village Tiviro, the three accused in furtherance of their common intention committed house-breaking by night by effecting entry into the house of Filomena Rangel for the purpose of committing offences punishable under the Indian Penal Code. Thus they were charged with an offence punishable under section 460 read with Section 34 of the Indian Penal Code. They were then charged with the offence punishable under section 302 read with section 34 or the Indian Penal Code for: having committed the murder of not only be said Filomena by hitting her with sharp and blunt weapons but also of her daughter Fell with similar weapon s. These were the allegations in the second charge and the third charge respectively. The fourth charge mentioned the common intention shared by all the accused while committing the offence (If robbery publishable under Section 397 read with Section 34 of the Indian Penal Code. 3. The facts leading to the prosecution have been mentioned in sufficient details in the judgment of the learned Sessions Judge and it is not necessary for us to repeat the same. However, brief reference must be made to the same in order to be able to appreciated: the evidence which was led before the learned Sessions Judge. One Filomena Rangel had a son and a daughter. The son Vicente has been examined in the instant case 3S P.W.23. The daughter Feli was also a victim of the incident in this case. However, brief reference must be made to the same in order to be able to appreciated: the evidence which was led before the learned Sessions Judge. One Filomena Rangel had a son and a daughter. The son Vicente has been examined in the instant case 3S P.W.23. The daughter Feli was also a victim of the incident in this case. The mother and daughter were living together in then house at Limawaddo-Kerern, a part of village Tivim -accused No. 3 was residing in the neighborhood of the said Filomena and was thus naturally known to her family. Accused No.1 is named Christopher, but be is popularity or otherwise known by the nick-name of Kistu. In their depositions in the Court, all the prosecution witnesses have referred to accused No. 1 as Kistu and inevitably we will also in this judgment call him Kistu. 4. According to the prosecution, on the evening of 5tb of September 1980, and to be precise, between 7.30 and 8 p. m., accused No.3 effected an entry into the house of Filomena under a false pretext of returning a ladder borrowed from her. After be thus effected the entry into the house, accused No. 1 and 2, who were waiting outside the house, also entered the said house. According to the prosecution case which was sougt to be unfolded through the confession of accused N.3 accused No.2 first dealt fatal blows on the head and body of Feli, thus causing her an almost instantaneous death. When this assault on Feli was going on accused No. 1 was not taking any part, but as soon as Filomena came out of the bath-room where she was taking bath accused No.1 proceeded to her and assaulted on her bead with a Weapon Which has been described as Pal Koyta by the witnesses, Accused No.1 also dealt several blows on the head and body of Filomena. The punchanama of the scene of offence, which was made after the dastardly crime was dejected shows that blood was seen all over the house. Several articles in the house were also smeared with blood. According to the prosecution the accused thereafter decamped with one gold chain and two gold bangles which belonged to the deceased Filomena. In the meantime, after bearing noises coming from the house of the deceased. Several articles in the house were also smeared with blood. According to the prosecution the accused thereafter decamped with one gold chain and two gold bangles which belonged to the deceased Filomena. In the meantime, after bearing noises coming from the house of the deceased. several neighbors bad gathered in front of the house but the accused bad effected a successful exit from the scene of the offence before the neighbors could come into the house. 5. There are several witnesses who have been examined on behalf of the prosecution. They have been so examined for the purpose of proving different circumstances against the accused. It must be stated at the outset, that there is not a single eye witness to the crime of the murder of Filomena and her daughter Feli. The entire prosecution case bangs on circumstantial evidence. Towards the object of proving that it were the accused who committed the murders of Filomena and her daughter Feli the prosecution has relied on severable of circumstances. We will in a short while discuss the testimonies of the witnesses according to the circumstances which those witnesses have been called upon to prove. 6. The learned Session Judge himself has recognised that the case is one when the prosecution case lay entirely upon circumstantial evidence. Toe learned Sessions Judge has in his judgment enumerated the circumstances appealing against each of the accused. He bas appreciated the various circumstances as unfolded by the prosecution witnesses and was sufficiently impressed by the prosecution evidence to be able to convict accused No.1 and 3 of the offences punishable under Section 460 read with Section 34, Section 302 read with Section 34 and Section 397 read with Section 34 of the Indian Penal Code. The learned Sessions Judge. however, us not persuaded to bold that the offences had been proved against accused No.2. He, therefore, acquitted accused No.2 of all the offences with which he had been charged. For the offences punishable udder Sections 302 lead with 34 and 460 read with 34 of the Indian Penal Code, accused Nos. 1 and were sentenced to imprisonment for life. For, the offence punishable under Section 397 read with Section 34 of the Indian Penal Code, a sentence of ten years. rigorous Imprisonment was imposed on them. A direction was also given by the learned Sessions Judge that the sentences shall run concurrently. 1 and were sentenced to imprisonment for life. For, the offence punishable under Section 397 read with Section 34 of the Indian Penal Code, a sentence of ten years. rigorous Imprisonment was imposed on them. A direction was also given by the learned Sessions Judge that the sentences shall run concurrently. Thus the learned Sessions Judge did by his judgment and order dated 26th of Februarys 1982. It is this order of conviction and sentence: that is the subject matter of challenge in these two appeals. Criminal Appeal No. 15/B of 1982 has been filed by original accused No.3 while Criminal Appeal No. 16/B of 1982 has been filed by accused No.1 We are proceeding to consider the cases of accused Nos. 3 and 1 in that order not merely because they have preferred their appeals in that order but also because the learned Sessions Judge himself bas discussed the evidence against accused Nos. 3 and 1 in that particular order. For example in paragraph 63 of his judgment the learned Sessions Judge begins with the evidence appearing against accused No.3 by the opening words "Let us start with A. 3 Babol". 7. The first circumstance which has hen relied upon by the learned Sessions Judge against accused No.3 is the discovery of two gold t angles pursuant to a statement made by accused No.3 under Section 27 of the Evidence Act. A part of the same circumstance which has been relied upon by the learned Sessions Judge is the recovery of a gold chain allegedly at the instance of accused No.3. According to the prosecution evidence, accused No.3 was possessed of this gold chain some time after the murder of Filomena and her daughter had taken place and he tried to dispose of the same for the sake of raising some money. This also was done, according to the prosecution evidence, at the instance or accused No.2 who, however, has been acquitted by the learned Session Judge. 8. The Second circumstances which was relied upon by the learned Sessions Judge was that sometime in the evening before the murders were committed, one Damiao Estrocio, examined as P.W. 25. had seen accused No.3 sitting on the roof of his own house doing some repairs. At that time there was a ladder near the house of accused No.3 which ladder was later found in the house of Filomena. had seen accused No.3 sitting on the roof of his own house doing some repairs. At that time there was a ladder near the house of accused No.3 which ladder was later found in the house of Filomena. Since the ladder had traveled from the house of accused No.3 to the house of Filomena; an inference was drawn that accused No.3 also must have traveled from his own house to the house of Filomena. 9. That there was an incised wound between the left thumb and the index fingure of accused No.3, which injury was treated by the family doctor of accused No.3 on 6th of September 1980, that is one day after the murder bad taken place, is the third circumstance on which the learned Sessions Judge has placed reliance. A .Scientific Assistant attached to the Police Department has taken some foot prints from the scene of offence. The prosecution has sought to prove that the foot-prints of accused No.3 were obtained and when the latter foot-prints were compared with the foot prints found at the scene of offence they were found to be similar, If not identical. This is the fourth circumstance which has been press ed in its service by the prosecution. The next circumstance relied upon by the learned Sessions Judge is that the shoes which belonged to accused No.3 were found concealed in the Choola in the house of Filomena. These shoes were subsequently recovered by the police. The last, and undoubtedly the most important circumstance, which has been relied upon by the prosecution is the confessional statement made by accused No.3 before the Judicial Magistrate, First Class, of Mapusa. This confessional statement recorded on 22nd of November 1980 has been produced at Exhibit 49 and the learned Magistrate has been examined to prove the confession made to him by accused No.3. Though the learned Sessions Judge in his judgment referred to this circumstance, namely the circumstance of the confession made by accused No.3, as the last and the most important piece of prosecution evidence against accused No.3 in our opinion we would be justified in discussing the same first in this judgment before turning to the evidence relating to the other circumstances against accused No.3. 10. 10. Before we start the discussion of the evidence we may also briefly refer to the circumstances- on which the learned Sessions Judge relied upon for convicting accused No. 1. The learned Sessions Judge has begun paragraph 72 of his judgment by mentioning that the circumstantial evidence against accused No.1 is sufficient to show unequivocally that he was with accused No.3 on the said occasion and that he took part in committing the said offences. The first circumstance is the discovery of two articles' pursuant to the statement made by accused No.1 under Section 27 of the Evidence Act. It is alleged that accused No.1 discovered the weapon of the offence, which is called Pall Koyta on 26th of October 1980. II is also alleged by the prosecution that on the same day accused N". 1 discovered an article which has been described as mask. This mask when sent to the Forensic Science Laboratory was found to contain a blood-stain of about 0.5 cm. in diametre and this bloodstain was situated, according to the report of the Forensic Science Laboratvry, On the backinner side of the mask On analysis it was found that this blood was of ‘O’ group. It has not been mentioned in the report whet here the Rh., factor was positive or negative. The fact that the blood of Filomena was also of ‘O’ group is sought to be connected with the find of the blood of ‘O’ group on the mask allegedly used by accused No.1 and this connection is the circumstance on which the learned Sessions Judge has relic:d upon. Unfortunately we find that in paragraph 74 and 75 of his judgment the learned Session Judge has recorded a finding that the Pall Koyta was stained with human blood of 'O' group. It is unfortunate that the learned Sessions Judge did not carefully read the report sent by the Forensic Science Laboratory which showed that the Pall Koyta was having stains of human blood but the blood group of the same could not be detected for the reason that the results were inconclusive. If the mind of the learned Sessions Judge was influenced by the fact that a weapon such as the Pall Koyta, which was allegedly discovered at the instance of accused No.3. If the mind of the learned Sessions Judge was influenced by the fact that a weapon such as the Pall Koyta, which was allegedly discovered at the instance of accused No.3. was stained with the blood of a particular group to which the blood of deceased Filomena also belonged, then it has definitely vitiated the finding given by him on this. particular circumstance. It has not been contended by the learned Government Advocate appearing before us that the Pall Koyta had also "blood of 'O' group which would be incriminating. We have seen the report of the Forensic Science Laboratory produced at Exhibit 97 and we are satiated that the Pall Koyta did Dot have human blood of 'O' group, as wrongly thought by the learned Sessions Judge. This circumstance of the discovery of the Poll Koyta and the cloth mask assumes importance because in the confessional statement of accused No.3 he has said that accused No.1 was having a Pall Koyta in his hand and was wearing a cloth mask on his head at the time of the crime. 11. As stated earlier the confession of accused No.3 made to the Judicial Magistrate is a very important circumstance and It is held that the confession was voluntary as well as true, then it would form undoubtedly a very wrong piece of evidence against the accused. But in the instant case, the confession has been refracted The charge against the accused was framed on 9th of January 1981. The trial itself, for one reason or another, did not begin till 3rd of June, 1981. It may be added at this stage that till that time no Advocate was appearing for accused No.3. On this date Mr. M. K. Naik Kambli was appointed to represent accused No.3. After he took instructions from accused No.3, a statement sigt1ed by accused No 3 was presented to the learned Sessions Judge. This was done on 31 d of June 1981 itself. In this statement the confession dated 22nd November 1980 recorded by the learned Magistrate of Mapusa has been retraced. The explanation for retracting the said confessional statement have been set out in great details in this statement of 3rd June 1981. 12. This was done on 31 d of June 1981 itself. In this statement the confession dated 22nd November 1980 recorded by the learned Magistrate of Mapusa has been retraced. The explanation for retracting the said confessional statement have been set out in great details in this statement of 3rd June 1981. 12. Broadly speaking, it bas been mentioned by accused No.3 that when he was in the police custody in the Bicholim Police Station the investigating officer informed Jim that on some day in the after noon he would be taken to the Judicial Magistrate either at Bicholim or at Mapusa and that he should tell the Magistrate a story which would be fed to him. Accused No, 3 has further stated in this statement that a story was in fact cooked up and it was given to him. He was made to commit it to heart and in fact he was made to rehearse the said confessional statement so that while he was taken to the Magistrate concerned he would not fumble on any part of the story given to him. He was then told that if the Judicial Magistrate asked him as to whether he was making the confessional statement under duress or threats, he should give an answer in the negative. He bas also stated that he was given the hope that if he made the confession according to the story tutored by the police he stood reasonable chances of acquittal It is in these circumstances, says accused No.3, that he as persuaded to make a confessional statement. In other words his contention is that the confessional statement has neither voluntary nor true. Since: this is a case of circumstantial evidence and since also the circumstances are to be tested on the touchstone of the confessional statement, which forms the bedrock of the prosecution case, it would be appropriate for us to begin the examination of the prosecution evidence with the confessional statement itself. 13. The learned Judicial Magistrate of Mapusa one Mr. Kaissare, has recorded the confessional statement and he has been examined as P. W. 20 in this case. He has mentioned that he received a letter dated 3rd November 1910 written by Inspector Zuarkar of CID Panaji, which letter was in the form on an application, requesting him to.1ecord the confessional statement of accused No.3 under Section 164 of the Code of Criminal Procedure. He has mentioned that he received a letter dated 3rd November 1910 written by Inspector Zuarkar of CID Panaji, which letter was in the form on an application, requesting him to.1ecord the confessional statement of accused No.3 under Section 164 of the Code of Criminal Procedure. The learned Magistrate says that on that application he passed an order to issue a letter to the Jailor of the Judicial Lock-up at Mapusa to produce accused No.3 before him on 20th of November 1910. We are inclined to think that the learned Magistrate gave rather unusually a long period of time for the production of accused No.3 before him. We do not see any justification why the learned Magistrate thought it fit to give such a belated date as of 20lh November 1980 when he had received an application on 3rd of November 1980 from Inspector Zuarkar. It is not necessary for us to say anything further on this aspect of the matter. The learned Magistrate bas thereafter mentioned that according to him accused No.3 was in judicial loock up at Panaji. The learned Magistrate, therefore, sent a letter on 5th of November 1980 to the Assistant Jailor of Judicial Lock up at Panaji to produce accused No.3 before him at 2.30 p.m. on 20th of November 1980. Neither the application made by Inspector Zuarkar nor the order passed by the learned Judicial Magistrate thereon nor the letter which the learned Magistrate sent to the Assistant Jailor of Judicial lack-up at Panaji has been produced in evidence in this case. We are making a reference to this aspect of the prosecution evidence because in the cross-examination conducted on behalf of accused No.3, the learned Magistrate was forced two admit as follows : "It was accused himself who told me that be was in judicial custody from 29.10.80". In view of this admission, we do not see how the learned Magistrate was bold enough to assert in be cross-examination on behalf of accused No. 2 that at the accused was brought from judicial jock up of Pallaji and not from judicial lock-lip of Maousa. In view of this admission, we do not see how the learned Magistrate was bold enough to assert in be cross-examination on behalf of accused No. 2 that at the accused was brought from judicial jock up of Pallaji and not from judicial lock-lip of Maousa. If it were necessary for us to subject the manner in which the confessional statement was recorded and also the confessional statement itself to minute examination, we would have examined all these aspects in greater details and expressed a final opinion one way or the other on the manner in which the confessional statement has been recorded . For the purpose of the desposal of these appeals , however we do not think it necessary to elaborate on these blemishes which may appear on the surface as minor but which on the facts and circumstances of a case may be of crucial importance. 14. The learned Magistrate has thereafter narrated the precautions taken by him t before proceeding to record the confessional statement of accused No.3 which he did On 22nd of November 1980. He gave time to accused No.3 to ponder over the necessity of making the confession upto 22nd November 1980 at 2.30 p.m. Nearly 48 hours, therefore, have been given to accused No.3 to reconsider the decision, if he had arrived at one, of making a confession to the Judicial Magistrate the confessional statement, including the preliminary questions asked by the learned Magistrate 10 accused No.3, has been tendered in evidence is Exhi bit 49 in this case. It shows the preliminary questions asked by the learned Magistrate and also the time given by the learned Magistrate to accused No. to think over the necessity or the desirability of making a confession. Thereafter on 22nd of November 1980 accused No.3 was again brought before him whereupon the learned Magistrate assed him some further questions. Thereafter the learned Magistrate was satisfied that the accused was willing to make It confessional statement of his own will without any threat, promise or pressure from any police or from any other quarters It is this background that the learned Magistrate proceeded to record to confessional statement of accused N". 3. Thereafter the learned Magistrate was satisfied that the accused was willing to make It confessional statement of his own will without any threat, promise or pressure from any police or from any other quarters It is this background that the learned Magistrate proceeded to record to confessional statement of accused N". 3. Below the said statement is to be found the endorsement made by the learned Magistrate that he had explained to accused No.3 that he was not bound to make a confession and if he did so that may be used as evidence against him. He has also mentioned that be believed that the confession was voluntarily made and it Was taken in his presence. He bas also asserted that it was read over to the person making it and was admitted to be correct by accused No.3. 15. Apparently, therefore the confessional statement of accused No.3 has been recorded by the learned Magistrate after taking all the necessary precautions and after he has cautioned accused No3 about the consequences of the confession made by him. We have not expressed a final opinion as to whether this confessional statement is voluntary or true and have advisedly used the adjective "apparently" while mentioning the precautions taken by the learned Magistrate. We have done so because in the first place the learned Magistrate was not personally satisfied that accused No 3 was brought from the judicial look-up. It is rather unusual that an accused should known that he is in judicial custody or police custody. The learned Magistrate has admitted that he found out that accused No.3 was in judicial custody because he himself told him RO. Similarly in the cross-examination on behalf of' accused No. 1 he was specifically asked. whether Inspector Zuarkar was standing outside his chamber when the statement of accused No.3 was being recorded. The learned Magistrate denied the suggestion that Inspector Zaurkar was standing outside his chember at the time when he was recording the statement of accused No.3. He, however, hasteJ1ed to clarify that before he stared recording the confession of accused No.3 he purposely came out of his chamber to see whether Inspector Zaurkar was there and he found that he was not there. This is rather a strange reply to be given when in the very opening part of the cross-examination the, learned. He, however, hasteJ1ed to clarify that before he stared recording the confession of accused No.3 he purposely came out of his chamber to see whether Inspector Zaurkar was there and he found that he was not there. This is rather a strange reply to be given when in the very opening part of the cross-examination the, learned. Magistrate says that he did not make any enquiry as to who were the police officers why escorted accused No.3 from the judicial lock up to the Court. So he did not recollect who brought accused No.3 to his chamber, though he was inclined to think that it was either his peon or the bailiff working for him on that day. If this is so, how is it that it occurred to him to see whether Inspector Zuarkar was standing outside--his chamber or not.1 Thereafter be has made a bolder assertion that he was particular to see whether- P.1. Zuarkar was there or not because the letter of request to record the statement of accused No. 3 was sent by Inspector Zuarkar. We must repeat that it is not our finding that there were police officers or other police personnel present outside the chamber of the learned Magistrate at the time of the recording of the confessional statement of accused No.3 We may once again say that we are not examining this aspect of the case in its entirety but we are also not recording a finding that all the precautions, including the precaution of ensuring the absence of the police at the time of recording the statement, have been in fact taken by the learned Magistrate when he recorded the said confessional statement. There are unexplained statements in the evidence of the learned Magistrate which have compelled us to make the above observation 16. Proceeding on the basis that the learned Magistrate did take all the necessary precautions including the precaution of seeing that Inspector Zuarkar was not outside his chamber while recording the statement, we will proceed to examine the contents of the confessional statement. Let us give a summary of the confessional statement Itself which will practically be in the nature of a reproduction of the said statement. This is necessary because: the confession is in great details and the learned Government Advocate has based major part of his arguments on this confession. Mr. Let us give a summary of the confessional statement Itself which will practically be in the nature of a reproduction of the said statement. This is necessary because: the confession is in great details and the learned Government Advocate has based major part of his arguments on this confession. Mr. Kamoli the learned Advocate appearing for accused No. 3, has assisted us in examining this confessional statement. Before we refer to the criticism made by Mr. Kambli, let us briefly examine the contents of the confessional statement. 17. Accused No.3 mentions in the confessional statement that he knew accused Nos. 2 and 1 as Anthony and Kittu, though he did not know their full names. About a week prior to the murder he met accused No.2 near a locahty, which has been describe by various witnesses as Bungalow that time accused No.2 told him that accused No 1 had some work, apparent~ with accused No.3. On 4th of September 1980 accused No.3 met accused No. 1 and 2 at Bungalow when they told him that he should met them at Bungalow on the next day morning. Accused: No.3 does not enquire with them the purpose for which the meeting on the morning of the September 1980 is to taken place. Unquestioningly he obeys their desire and proceeds to meet them at Bungalow at about 8 a.m. on 5th of September 1980. At this point of time accused No.2 asked accused No.3 as to whether he had good relation with the family of Rangel which family, it may be menuoned. consists of deceased Filomena and her daughter Feli. Accused No.3 proudly told accused Nos. 1 and 2 that he had good relations not only with Rangel but also with all other persons in the village. Accused No.2 then asked accused No.3 whether at about 8 p.m. Rangel would open the door for him. To this accused No.3 replied that Rangel may open the door at about 7.30 p.m. but it was unlikely that she would open the door at about 8 p.m.1he reason as to why they would not open the door at 8 p.m. has not been spelt out in the confessional statement. According to the confessional statement. To this accused No.3 replied that Rangel may open the door at about 7.30 p.m. but it was unlikely that she would open the door at about 8 p.m.1he reason as to why they would not open the door at 8 p.m. has not been spelt out in the confessional statement. According to the confessional statement. accused No.2 directed accused No.3 to collect a hider from the house of Rangel and bring the same again near the house of Rangel at about 7.30 p.m. the confession proceeds to mention that accused No.3 thereafter went to the house of Raugel at about 5.30 p.m. and brought the ladder which he took to his house. At 7.30 p.m. he returned with the ladder near the house of Rangel when accused Nos. 1 and .2 were already present near the verandah of the house. Accused No.3 thereafter knocked on the door of the hose of Rangel and' the daughter Feli opened the door. Before accused No.3 asked and thing. Feli is said to have told him that her mother was taking a bath and she went and informed her mother about the arrival of accused No.3 to sit. Accused No. 3 thereafter kept the ladder in the hall and sat on a chair. The confessional statement then proceeds to mention that the radio in the house was on at that time and Feli herself sat on an easy chair and stained rezading. Suddenly accused N0,2 entered the house and gave a Kayta blow on the head of Feli. He gave several blows, but after the first blow gave several blows, but after the first blow had been give Feli should for the monthey. Her mother asked from inside the bathroom as to whether Feli had got herself hurt by dashing against the easy- chair. Thereafter the following is to be found in the confessional statement: “The said Anthony signaled me to say yes and accordingly I said Yes to the mother of the said Felly”. 18. Accused No.3 then proceeds to say that accused No.2 asked him to give Koyta blows on Feli, but the refused However, he held Feli under the directions of accused no 2 who thereafter gave more blows of Koyta on the head of Feli, one of which fell on the had of accused No.3. 18. Accused No.3 then proceeds to say that accused No.2 asked him to give Koyta blows on Feli, but the refused However, he held Feli under the directions of accused no 2 who thereafter gave more blows of Koyta on the head of Feli, one of which fell on the had of accused No.3. As a result of his injury accused No. 3 released Feli, In the process accused No. 2 is said to have held the hand of accused No. 3 twice and the shirt of accused No. 3 was torn when he gried to extricate him-self from the grip of accused No.2. 19. Somewhat curiously the statement cxontains the details of the clothes worn by accused No. 2 at this time . The statementg mentions that Kistu entered the house and thereafter accused No.2 closed the door. Accused No. 2 was wearing a black shirt of long sleeves with white lining and a short pant. The confessional statement then proceeds to describe the role played by accused No.1 who had come in the house with a Pall Koyta in his hand and covering his face by means of a mask. Here again the statement proceeds to give the minute details of the apparel worn by accused No.1 when he entered the house for committing the dastardly crime. It is mentioned that accused No. 1 was wearing a coffee colour shirt and a short pant. Accused No. 1 went in the direction of the bathroom where Filomena was taking bath. Accused No.3 followed him but not beyond a particular .spot. He stood near a cot whereas accused No. 1 stood near the curtain. After the mother of Feli came out of the bathroom after taking the bath, accused No.1 gave a blow of Pall Koyta on her neck. She fell down without uttering a word. The confessional statement mentions that accused- No.1 thereafter gave many blows of Pall Koyta on the mother of Feli. Accused No.2 is said to have put off the radio. Their after accused No.1 took Feli from the easy chair and dragged her near the cot and assaulted her again with Pall Koyta which was freely used on her mouth since, according to the statement, Feli was making some sounds. 20. Accused No.2 thereafter is said to have gone to the kitchen and washed his legs and hands. Accused No.3. Their after accused No.1 took Feli from the easy chair and dragged her near the cot and assaulted her again with Pall Koyta which was freely used on her mouth since, according to the statement, Feli was making some sounds. 20. Accused No.2 thereafter is said to have gone to the kitchen and washed his legs and hands. Accused No.3. could not wash his shoes since there was noise outside. Accused No.2 then took two bangles and a gold chain from under a cushion and under the instructions of accused Nos. 1 and 2 accused No.3 put off the kerosene lamp and a candle on the alter. AU the three of them retreated from the scene of offence through the back door. Accused No.2 told accused No.3 to keep the bangles and gold chain with him. Here again accused No 3 refused to accept the booty given by accused No.2. Since, however, accused No. 2 threatened him with dire consequences he took the same and went to his house. On the next day says the confessional statement, he went to Or. Dumaskar. 2l. After three days accused No.2 met this accused, namely accused No.3, near Bungalow and he started demanding money from him. Since accused No.3 did not have all money with him, accused No.2 directed him to pawn the golden ornaments to raise money. Thereafter accused No.3 has described the sleeps which he took for raising the money with he help of the golden chain which had been taken from the house of Filomena. The confession proceeds to say that he had not pawned the gold bangles which remained with him and which he hid below a Karldi tree by the side of his house. 22. A statement to amount to a confession must be an acknowledgment of the guilt of the maker of the confession itself. If a statement does not contain facts on the basis of which the person making the said statement could not be held criminally liable, then one cannot say I hat the statement is a confession in the legal sense As he has been pointed out by the Supreme Court in K Padayachi v. State of Tamil Nadu,1 confession is au admission of the offence by a person charged with the offence. An admission of a fact, however incriminating but not by itself establishing the guilt of the maker of such admission, would not amount to confession within the meaning of Sections 24 to 26 of the Evidence Act. This is the law pointed out by the Supreme Court a law which is found to be adumbrated in a beadroli of decisions of not only the Supreme Court but also of the Privy Council. Reference may for the sake of convenience, be made to Nara Jana Swami v. Emperor; Palvinder Kaur v. State of Punjab2, and A. Nagesia v. State of Bihar.3 From the above it is easily seen that merely because a particular person says that he was present at the scene of the offence when the offence was committed or that he took part in the said crime under compulsion or out of fear of punishment at the hands of the offenders it cannot be said that he was making a confession in the true sense of the word. 23. Bearing this in mind we must see whether the statement recorded by the learned Judicial Magistrate in this cases did in fact or in law amount to a confession on the part of accused No.3. It is undoubtedly true, as Mr. Dias pointedly tells us, that the statement contains wealth of details which could not have been there if the person making the statement were not aware of the same. However, the wealth of details is no guarantee of the veracity of a confessional statement. Some times brevity may not be the soul of a confessional statement though it may be the soul of wit. The protracted and detailed manner of narration of the events that took place on the fateful night, on the facts and circumstances of this case, will put a query mark before the authenticity of the facts mentioned in the statement in question. Mr. Dias, however, insists that this is a confession in the true sense of the term because apart from mentioning the role played by accused Nos. 1 and 2 in the crime, accused No.3 has made certain statements which would unmistakably involve him with the crime for which he is being prosecuted. It is true, says Mr. Dias, that. Mr. Dias, however, insists that this is a confession in the true sense of the term because apart from mentioning the role played by accused Nos. 1 and 2 in the crime, accused No.3 has made certain statements which would unmistakably involve him with the crime for which he is being prosecuted. It is true, says Mr. Dias, that. a certain crucial moments accused No.3 is shown to be expressing reliance and showing hesitancy, but the overall picture of the event that is un folded in the confessional statement is one in which the role of accused No 3. is unmistakable. He was, according to Mr. Dias, a willing party to the trespass into the house of the victims and also to the assault by accused No. 2 on Feli. We are afraid we cannot agree with this interpretation placed by Mr. Dias on the confessional statement of accused No.3. 24. We have taken the liberty of reproducing the contents of the confessional statement in extensor. It is noticed from the said confessional statement that accused No.3 has given a picture of himself as one who was being driven to be a party to the incident that took place on that night. At no stage, either before entering the house or after entering the house has he mentioned anything which will, even stretching the evidence to some permissible extent, connect him with the offences for which all the accused are being charged. For example, he does not say that before entering the pause accuse No. 1 and 2 told him the purpose of their visit to the house of Filomena. Nor has it been mentioned by him that he himself knew that accused No.1 and 2 were in some way going to, commit the murder of two .innocent persons and despite this knowledge be entered the house and also made it possible for accused Nos. 1 and 2 to enter the house. There is thus no acknowledgement on his part of the criminal intention, if there was one on the part of accused Nos. 1 and 2 of doing away with the lives of two persons for the purpose of committing theft from their house. On the other hand, he is careful enough to mention that he merely sat on a chair after he entered the house of Filomena. 1 and 2 of doing away with the lives of two persons for the purpose of committing theft from their house. On the other hand, he is careful enough to mention that he merely sat on a chair after he entered the house of Filomena. He does not, for example, mention that he bad himself carried any weapon with him or that he knew that accused Nos. 1 and 2 were carrying weapons with them when they were standing outside the house of Filomena. 25. Accused No.3 has also been careful enough to mention that he refused to be a party to the assault that was mounted upon Felt by accused No.2 with the help of a dangerous weapon like Koyta. 01 the other hand, be merely caught hold of Fell and that too because accused No.2, who was having a KOYTA with him, directed him to do so. Despite the fact that he held Fli firmly, which enabled accused No.2 to give several further blows of Koyta on Feli, it is surprising that no mention is made either in the confessional statement or , the massive evidence which the prosecution has collected in this case that the clothes of accused No.3 had been stained with blood. What is interesting is that after accused No.1 entered the house with a mask on his face which mask bad not been noticed by accused No.3 when they were outside the house, accused No.3 did not participate in any activity in the house. On the other hand, he merely stood, near a cot while accused No.1 proceeded to execute the feindish act for which he had come in the house. 26 The mention of the shoes in the confessional statement will be commenced upon by us little later. It is sufficient for the present to state that some shoes were found in the Choola of the house several days after the incident bad taken place and a pathetic attempt bas been made by the prosecution to connect these shoes with accused No.3 by evidence which by no stretch of imagination can be called reliable. Accused No.3 there after mentions hat he under the threat of accused No-2 accepted the golden ornaments. He again mentioned that he was forced to pawn the chain because of the pressure of accused No 2 to get some money. Accused No.3 there after mentions hat he under the threat of accused No-2 accepted the golden ornaments. He again mentioned that he was forced to pawn the chain because of the pressure of accused No 2 to get some money. The gold bangles, however were not pawned or sold by him but were concealed below a Kandi tree. We may add that during the course of the investigation the two gold bangles are alleged to have been discovered at the instance of accused No.3 pursuant to a statement made by him under Section 27 of the Evidence Act. 27. It is impossible to spell out the precise role played by accused No.3 in the incident that took place on that night in the house of Filomena. For what offence are we going to convict accused No.3 even if we accept every word said by him in this confessional statement? He has not mentioned that he shared the common intention, if there was one, between accused Nos. 1 and 2 of committing the murder and to commit robbery in the house of Filomena; he has not mentioned that he willingly helped accused No.2 to do a way with the life of Feli; he has not mentioned that he assisted accused No.1 in the execution of Filomena, nor has he mentioned that he did anything willingly which would facilitate the commission of the crime by accused Nos. 1 and 2. All this leads us to the conclusion that the confession recorded by the learned Magistrate is not a confession in the true sense of the word because it does not inculpate accused No.3 at all in the crime for which all the three accused were tried. 28. Mr. Kambli, has in the light of the prosecution evidence which he brought to our notice, questioned the voluntary nature of the confession made by accused No.3. He concedes that the Magistrate's evidence does not disclose that the statement is otherwise than voluntary. It may be, says Mr. Kambli, that the learned Magistrate in all honesty and bona fide took what he regarded as the necessary steps to ensure that the statement which was to be made by accused No 3 would be a voluntary statement and not one under threat, inducement or coercion. But, according to Mr. It may be, says Mr. Kambli, that the learned Magistrate in all honesty and bona fide took what he regarded as the necessary steps to ensure that the statement which was to be made by accused No 3 would be a voluntary statement and not one under threat, inducement or coercion. But, according to Mr. Kambli, when one examines the recitals in the confessional statement in the light of the prosecutiol1 evidence it would be easily seen that the said statement has been recorded after practically the entire investigation in the case bas been completed. We have no hesitation in accepting this as a matter of act Mr. Kambli says that every fact that has been mel1tioned in this confessional statement was already known to the investigating machinery and the confessional statement does not contain anything which was not known to the investigating machinery at the time when the said statement was recorded We are inclined to accept this criticism made by Mr. Kambli in respect of the confessional statement. It has not been possible for the learned Government Advocate to point out whether the said confessional statement contains any fact, remote or proximate, relating to the prosecution which was not by this time known to the investigating machinery. But, Mr. Dias says that itself does not detract from the voluntary nature of the confession. He says that, on the other hand, it ensures not only the voluntary character of the confession but also its veracity. We are not suggesting that the confessional statement must be thrown overboard merely because it contains every fact that was known to the police by the time this statement was made. But on the facts and circumstances of this case, there is considerable cloud of un-naturalness hanging over this confessional statement. 29. We have already mentioned earlier that there is a wealth of details in the confessional statement, which is rather unusual. For example the clothes worn by accused No.2 at the time of the crime has been described as follows "Anthony was wearing a black shirt of long sleeves with white lining and a short pant". The graphic description seems to militate against the veracity of the statement made therein. The manner of narration also is some what ill the nature of all essay rather than a statement made by a person overcome by remorse. The graphic description seems to militate against the veracity of the statement made therein. The manner of narration also is some what ill the nature of all essay rather than a statement made by a person overcome by remorse. It is possible that the confessional statement which is being recorded by the learned Magistrate in English does not reflect the statement made by accused No.3 in his own language. If the confessional statement had been recorded in the language or accused No. 3 himself, it would have given a mare faithful picture not only of the contents of the statement but a1so of the circumstances in which that statement came to be recorded. The benefit of the confession in the Ili1guage of the person making it, unfortunately, is not available to us For this we cannot blame the prosecution because the facilities for recording the evidence in the language of the witnesses in the judicial Courts in this Union territory are not available. But we are not discarding the confessional statement on the ground that it is not recorded in the language of the confessor, but the sequence of the events mentioned and the manner in when that sequence is. mentioned smacks somewhat of a trained mind rather than an amaturish mind which can be said to be the mind of accused No.3. By the time the confessional statement had been made, panchnama of the scene of offence had been made, the discovery of the weapons of offence had been made the mask which was allegedly worn by accused No.1 had also been discovered pursuant to a statement made by him under Section 27 of the Evidence Act; the shoes allegedly belonging to accused No.3 bad been found in the choola of the house where the tragedy took place; that there was a radio in the house is also clear from the recitals in the panchanama of the scene of offence; the manner of the assault could have been easily constructed from in the recital to be found in the said panchanama itself; there were hair and blood on a chain was a towel, towel in hand of Filomena which necessarily indicated that she was taking a bath or was just taking a bath when the assault on her took place. If the- prosecution had been able to show that this confessional statement contained some fact which was unknown to it at the time when this statement was recorded. We would have been less inhibited in accepting not only the voluntary nature of the confessional statement but also its veracity. 30. Apart from this, this confession has been retracted; it has been retracted at the earliest time th1f was available to this particular accused on the facts and circumstances of this case. We have in the earlier put of this judgment mentioned the relevant dates which show how accused No.3, who was totally undefended originally in the court, could not make any representation to the Court concerned though he had been brought before the Court several times. Mr. Dias, however, contends the it is a belated retraction and the delay in the retraction itself militates against the non voluntary nature of the confessional statement. The submission is obviously made upon the proposition of law pointed out by the Supreme Court in Shankaria v. State of Rajasthan4 - It is true that in a country like ours where retraction are common as pointed out by the Privy Council in Bhuboni Sahu v. The King5 the mere fact of retention should not disable a Court from acting upon it if it is proved that the retraction itself is unnatural and the original confession was natural voluntary and true. However on the facts of this case which we have detailed above, it is difficult not to accept the retraction, though it has been made at a later stage. We will not, however allow accused No.3 to escape merely on the basis of the retraction. We will however, proceed on the basis that it is a retracted confession 31. Though there is in Jaw no bar against a Court acting upon a retracted confession, as has been pointed out by the Supreme Court on several occasions, it is a rule of prudence to seek corroboration if the recitals in a retracted confession are to be acted upon See for example, State of U.P. v. Boota Singh6 The same authority mentions that it is not necessary that a retracted confession should be corroborated in each material particular, but it is sufficient that there is a general corroboration of the important incidents mentioned in the confession. We will now proceed to examine the question whether there is in the prosecution evidence in this case, a general corroboration to the facts mentioned in the confessional statement bearing in mind the law laid down by the Supreme Court. We will also bear in mind the guidelines given by the Supreme Court in Nand Kumar v. State of Rajasthan7 as to how the corroboration is to be sought to the recitals contained in a confessional statement. The Supreme Court in the said case pointed out that what is sufficient corroboration for this purpose has to be decided in each case on its own facts and circumstances. However, proceeding further the Supreme Court has observed as follows; "It may, however, be generally stated that where the prosecution by the production of reliable evidence which is independent of the confession, and which is also not tainted evidence like the evidence of an accomplice or the evidence of a co-accused establishes the truth of certain parts of the account given in the confession and these parts are so integrally connected with other pares of the accused's confession that a prudent judge of facts would think it reasonable to believe, in view of the established truth of these parts, that what the accused has stated in the confession as regards his own participation in the crime is also true, that is sufficient corroboration. More than this is not needed; less than this is ordinarily insufficient". Bearing these observations of the Supreme Court In mind we will now proceed to examine the other evidence to see whether corroboration, which is found to be necessary in this case is available. 32. The first piece of evidence which can be also characterised as circumstance apparently appearing against accused No.3 is the discovery of two gold bangles at his instance. These gold bangles are at M. O. 1. These are said to have been discovered pursuant to a statement made by him under Section 27 of the Evidence Act at a place which is just fifty paces away from his house. Kalidas Chodankar, examined as P.W 9, has proved the discovery of these gold bangles. Mr. Kambli has subjected the testimony of this witness, as the testimonies of other witnesses relating to the discovery, to severe criticism. Kalidas Chodankar, examined as P.W 9, has proved the discovery of these gold bangles. Mr. Kambli has subjected the testimony of this witness, as the testimonies of other witnesses relating to the discovery, to severe criticism. For the present, however, we will proceed on the basis that some such discovery has been made at the instance of accused No. 3 while examining the prosecution evidence we may, in passing, note Same of the infirmities apparent in the evidence. 33. P.W. 9 Kalidas has mentioned that on 24th of October 1980 he was requested by a police constable to go to the police station because the officer of that police station wanted him. He also wanted this witness along with his scales because some gold ornaments were to be weighed. Accordingly this witness went to the police station where he was taken to chamber of the officer. Another panch was also present. The police officer told this witness that an accused person would be brought before him and that he should listen to what that accused person is going to say. Accused No.3 was brought before him whereupon he and the other panch asked the accused what his name was and the identity of accused No.3 was disclosed. Thereafter the witness and the other panch asked him whether he wanted to tell them anything. The reply given by accused No.3 was as follows: "The bangles had been hidden by me at a place to which I will take you now" . Thereafter they all proceeded to a place which according to the recital contained in the panchanama was about fifty paces away from the house of accused No.3, P. W. 9 Kalidas has proceeded to mention as follows: "Then the accused started searching near the bases of 5 or 6 trees. Then he stopped at the base of one of those trees. We also stopped. The tree was a "candam" tree. Near the base of the tree there was a big stone and a heap of dry leaves. The accused moved aside the stone, then he removed the leaves. He picked two gold bangles from the spot. He handed over the bangles to me" 34. Proceeding further, P. W. 9 Kalidas has mentioned that the weight of those two gold bangles was 23.300 grammes. At that time the market rate of gold was Rs. 142 per gram me. The accused moved aside the stone, then he removed the leaves. He picked two gold bangles from the spot. He handed over the bangles to me" 34. Proceeding further, P. W. 9 Kalidas has mentioned that the weight of those two gold bangles was 23.300 grammes. At that time the market rate of gold was Rs. 142 per gram me. The witness, who can be regarded as an expert in respect of Golden ornaments, has mentioned that there was on the bangles the design of "Ponnoscantto" which means the design of the scales of a jackfruit. He recognised the bangles at M. O I before the Court as those discovered at the instance of accused No.3. in the cross-examination he bas stated as follows : "The accused had not buried the bangles in any hole. The stone was of ordinary type of this much thickness showed about 15 to 20 cm) The stone could be seen by a person looking to it. It was not hidden. The leaves were around and beneath the stone". Mr. Kambli’s criticism of this witness on the bases that he was asked or bring the scale. along with him and on the basis of the manner of discovery is, in our opinion, justified. But at this stage we are not rejecting the evidence relating to the discovery, We also can not Ignore a statement made by this witness in reply to a question asked by Mr. Kambli that there was only one type of design of "Ponnoscantto" which was the design of the present bangles. It would be advantageous to postpone the nature of the evidence relating to the discovery till We take note of the evidence relating to what can be regarded as the recovery of the gold chain (M. 0.2). According to the prosecution, the gold chain (M.O. 2) was also the subject matter of robbery after the murder took place and by strong chain of evidence this link in the circumstantial evidence is sought to be forged by the prosecution. 35. P. W. 11 Naraina Kamat is the panch who proves the statement made by accused No 3 that be, accused No.3, had given the chain to one motor cycle pilot whose Dame was Shantaram Calangutkar who also had been examined as P.W 15. 35. P. W. 11 Naraina Kamat is the panch who proves the statement made by accused No 3 that be, accused No.3, had given the chain to one motor cycle pilot whose Dame was Shantaram Calangutkar who also had been examined as P.W 15. When Shantaram was contacted and was brought to the police station, Shantarm rebuked accused No.3 for getting him into unnecessary trouble. However Shan tar am disclosed that accused No 3 and his own brother. Surya by name, had come to the motor cycle stand at Mapusa. Accused No.3 told him that he was in need of money as somebody in his family was sick. A gold chain was with him which he off red to Shantaram for raising money. Shantaram was alert enough to remember that only some days back a murder had been committed and he asked accused No.3 whether the chain belonged to the murdered person. Having assured by accused No.3 that it was not so he took the chain to one of his friends and brought the money and gave it to accused No. 3. Four or five days thereafter accused No.3 was found to be in need of more money and this witness gave him some more money. The thirst of accused No.3 for money was not satisfied. Eight to ten days thereafter, accused No.3 went to him for the third time and told him that he required a sum of Rs. 500. PW. 15. Shantaram thereafter gave the chain to one Suresh Moraskar and asked him to obtain a loan from the Bank on the basis of the said chain. Ultimately it has been shown by the prosecution evidence that through one Yassim Khan, examined as P.W. 16 in this case, an amount of Rs. 1000 was raised from the Corporation Bank. This is nut a discovery in the sense it is understood under Section 27 of the Evidence Act. One statement has led to another and a chain of transactions has resulted in the pawning of the chain (M.O.2). For the present we will proceed on the basis that the gold bangles (M.O.1) were discovered pursuant to a statement made by accused No.3 under Section 27 of Evidence Act and the gold chain (M. O 1) had been at one time or another handed over by accused No. 3 to P. W. 15 Shantaram. 36. For the present we will proceed on the basis that the gold bangles (M.O.1) were discovered pursuant to a statement made by accused No.3 under Section 27 of Evidence Act and the gold chain (M. O 1) had been at one time or another handed over by accused No. 3 to P. W. 15 Shantaram. 36. The question is whether it has been proved by the prosecution that these golden ornaments belonged to deceased Filomena. For the purpose of establishing this fact, the prosecution has examined essentially three witnesses. One is Justina Perdra (P. W. 3). He is the husband of one Cecilia who has been examined as P. W. 22. Both the husband and wife are the neithbours of deceased Filomena and naturally they known Filomena's family very well, P. W. 3 Justino has mentioned that Filomena had a daughter by name Feli who was also murdered on that night when Filomena was murdered. Filomena had another child, a boy, and he was in Bombay. After describing the circumstances in which he and his wife came to suspect that something unusual was taking place in the house of Filomena. He has described in details the manner in which he and others went to the house of Filomena and how the police were ultimately cil1ed to that house. It is not necessary to refer to that part of the evidence because that dose not at /lit connect any of the accused with the offence in question. He was asked whether Filomena used to wear ornaments in her daily life. His answer was that she used to wear permanently one chain around her neck and one bangle in each forearm. According to him, on the day of the incident in the morning he had seen Filomena giving food to her pig and at that time he noticed that she was wearing those ornaments referred to by him. He said that he would be able to recognise the chain and bangles if shown to him. He was asked whether he could give a description of the ornaments. He accepted the challenge and said that the chain was of the type of "vinni" and its length was upto the chest, a little above the navel of the deceased FiJomen8. The chain was an old one. According to him the bangles were of the pattern of "Ponnoscantto". He was asked whether he could give a description of the ornaments. He accepted the challenge and said that the chain was of the type of "vinni" and its length was upto the chest, a little above the navel of the deceased FiJomen8. The chain was an old one. According to him the bangles were of the pattern of "Ponnoscantto". The ornaments were shown to him and he easily identified them its those belonging to Filomena. We remain unimpressed by the show of his ability made by this witness to identify the ornaments worn by a neighboring woman. He says that he has seen the ornaments often. The question is from what proximity. Has he handled them at, any time? The answer must necessarily be in the negative. 37. Pressed further in the cross-examination, he was forced to admit as follows: It is true that I maintain that these bangles and the chain were the same that Filomena used to wear because I always used to see her wearing them. There is no other reason for me to say that those articles are the same that Filomena used to wear". Earlier in the cross-examination he has admitted that the patterns of the gold chain as well 'as of the gold bangles were easily available in the market. In this context it was necessary for a prosecution witness, who wants to identify the ornaments before the Court, 'to make available some additional material which would have enable the Court to accept his testimony relating to the identification of the ornaments. Without lingering any further on the testimony of this witness, we will now turn to the testimony of Cecilia, who can definitely be regarded as a more competent witness than this witness as far as the identification of the ornaments is concerned. 38. P. W. 22 Cecilia has also, like her husband who has preceded her earlier in the prosecution, mentioned the circumstances which led her and others to the house of Filomena and the arrival of the police and discovery of the dead bodies of Filomena and her daughter Feli. On the question of the identification of the ornaments, she has stated, like her husband, that Filomena always used to wear one chain on her neck and two bangles on her hand. She also used to wear one flog. On the question of the identification of the ornaments, she has stated, like her husband, that Filomena always used to wear one chain on her neck and two bangles on her hand. She also used to wear one flog. She bas made a slight improvement by mentioning that Filomena had more ornaments which she would wear on occasions such as going to the Church on Sunday or coming to a market town like Mapusa. On such occasions, according to Cecilia, Filomeua used to wear two more bangles of the same type which she used to wear daily. Proceeding further, she has mentioned that on 5th of September 1980 this witness had seen Filomena wearing the chain and also two bangles. She was wearing them even at 6 p.m. when Filomena had come to her house. She naturally expressed her ability to recognise the bangles if they were shown to her, which was done. She recognised M.O. 2 as the gold chain and M.O. 1 as the gold bangles worn by Filomena 39. In the cross. examination of this witness, it has been brougJ1t out that in the first statement which she made before the police she had mentioned that Filomena used to wear a chain and two bangles and that she had not mentioned that Filomena bad more ornaments than she was wearing daily. Her second statement was recorded on 2nd October 1980 while her fine statement had been recorded on very next day after the night of murder. The third statement of this witness was recorded by the police on 24th October J 980. She says that she was not aware that Filomena's son to whose testimony we will come shortly, had informed the police that two bangles that Filomena used to wear were found by him in the cupboard of the house. She admitted the suggestion of having made such a statement before the police on 23rd October 1980. However, she expressed her opinion that the two bangles that Vicento, Filomena's son, had found in the cupboard must be those two that Filomena used to keep in the house while the other two bangles that she used to wear daily must have been stolen. She was not called to the witness-box to express an opinion on the facts involved. Unfortunately this part of the evidence has commended itself to the learned Sessions Judge and we would. She was not called to the witness-box to express an opinion on the facts involved. Unfortunately this part of the evidence has commended itself to the learned Sessions Judge and we would. therefore, be justified in examining the testimony of this witness and in particular her ability to identify beyond reasonable doubt the ornaments which were before the Court. Asked to clarify her ability to identify the ornaments she has mentioned as follows: "I never knew about the size or weight of the bangles. Only after they were found the police showed me the bangles and I recognised the same. I admit that goldsmiths are manufacturing this type of bangles. If I said that the attached bangles that Filomena used to wear it was because I used to see those bangles worn by her. There is no other reason for me to say that the bangles attached by the police are the same that filomena used to wear". Similar answers are to be fonf1d in respect of the gold chain also which she: was able to identify merely because Filomena, according to her, was wearing the same. 40. Mr. Dias, however asks us not to discard the testimony of Cecilia who can be regarded as a competent witness because she is neighboring woman and must have had enough opportunity to observe the ornament worn by Filomena. We have no doubt that Cecilia was a neighbor of the deceased Filomena ; we also do Dot doubt that she must have had occasions to observe the golden ornaments worn by Filomena if Filomena was wearing the golden ornaments which are before the Court. Mr. Dias says that there is nothing which should induce this Court to suspect the testimony of this witness. We are afraid this is not the correct line of - approach. The question is whether there is anything in her evidence which would induce us to act upon the same. What has she said which would persuade us to bold that she has correctly identified the ornaments? A part from the fact that she had seen the ornaments worn by Filomena regularly, she has not mentioned any other factor with the assistance of which she was able to identify them. Apart from this, the testimony of this witness bristles with certain suspicious factors. At one stage she had told the police that Filomena had two bangles and a chain. Apart from this, the testimony of this witness bristles with certain suspicious factors. At one stage she had told the police that Filomena had two bangles and a chain. It is true that she h ld mentioned this on the very next day after the incident had taken place. Thereafter she changed her story and mentioned that Filomena had four bangles and one chain; two gold bang les she used to wear daily and two she used to keep in the house only to be worn on special occasions. It has been successfully brought out in the cross-examination of this witness that her second statement was extracted from her only after the son of Filomena found that there were two gold bangles in the cupbl1ard in the house 41. Let us now see what Vicente, the son of Filomena, has to say about the identification of the golden ornaments were by his mother. He is examined as P. W.23 and he has mentioned that his mother usually used to wear two gold bangles and one gold chain, besides one gold ring. According to him whose statement was naturally recorded after the statement of Cecilia had been recorded, in addition to the ornaments mentioned by him, his mother used to have two more bangles in the house. The police asked him to check all the articles in the house and inform them whether any articles were missing. He did the checking and found two gold bangles in the cupboard. The said cupboard had not been touched nor any other articles in the room had been disturbed. According to him, these two bangles found by him in the cupboard were worn by his mother on certain occasions, whereas the other two bangles and the chain were worn by her regularly every day. He identified the bangles (M.O 1) and the chain (M.O.2) as those belonging to his mother. He brought with him to the witness-box the two gold bangles which he bad found in the cupboard. He identified the bangles (M.O 1) and the chain (M.O.2) as those belonging to his mother. He brought with him to the witness-box the two gold bangles which he bad found in the cupboard. The following to be found in the record of the learned Sessions Judge is worth extracting: "I brought them today to the Court (the witness produces two gold bangles which were examined now by the Court as well as by the pleaders of the accused; they are of the same type and size than the two attached bangles produced at M.O.1 after being examined, the bangles are returned to the witness)". 42. In the cross-examination of this witness, he has not helped the prosecution by mentioning about his special ability to identify the ornaments or the special features of the ornaments on the basis of which he could identify them as these belonging to his mother. On the first occasion when his statement was recorded by the police on 16th of September 1980 be had as admitted by him, told the po1ice that the bangles his mother used daily were found by him. On that occasion he did not tell the police that the two gold bangles were missing. But he says that he was not certain whether his mother had two or four bangles but he wants to add that he was not certain as he was under tension at that time. It was only when his second statement was recorded on 5th of November 1980 that probably the story of four gold bangles came to the surface because by that time the two gold bangles had been discovered by the police pursuant to a statement made by accused No. 3 under Section 27 of the Evidence Act. The witness has mentioned that he was able to identify the bangles because he used to see his mother wearing them. Here again there is no assistance available to the Court which has to decide whether the witness has correctly convincingly or beyond reasonable doubt identified the ornaments on the basis of which the court is called upon to fasten criminal liability upon the accused before the Court. 43. Here again there is no assistance available to the Court which has to decide whether the witness has correctly convincingly or beyond reasonable doubt identified the ornaments on the basis of which the court is called upon to fasten criminal liability upon the accused before the Court. 43. We cannot help expressing our distress at the manner in which the learned Sessions Judge obliterated certain evidence which was before him and has disabled this Court from judging the correctness of the finding recorded by him while he was recording the evidence of P.W. 23 Vincente Rangel. We have extracted above a part of the record wherein it has been mentioned by the learned Sessions Judge that the bangles produced by this witness were compared with the bangles (M.O.I) and they were found to be of the same type and size. It may be, this is the finding of the learned Sessions Judge, but it is a finding which is to be reviewed by the final Court of facts, which is this Court, in an appeal from an order of conviction under Section 302 of the Indian Penal Code. By returning those two bangles to the witness, the learned Sessions Judge has prevented us from discharging our duty of examining whether the finding recorded by him is correct or not. To say the least, it is an unusual procedure followed by the learned Sessions Judge. Apart from this we are least impressed by the identification of the ornaments attempted by the three witnesses. We are convinced that the prosecution has failed to prove that the ornaments recovered during the course of the investigation are those worn by deceased Filomena on the day on which she was tragically murdered. The statement of Vincente that the round end of the chain which is to be inserted in the hook is bent itself is so vague that it is impossible on the basis of this statement alone to accept his testimony that he was able to identify the chain. As far as the bangles are concerned, he has not placed before the Court any material - on the basis of which we would have been able to hold that the ornaments belonged to deceased Filomena. Nor bas be strengthened his testimony by admitting that he was not sure whether the chain had a cross. As far as the bangles are concerned, he has not placed before the Court any material - on the basis of which we would have been able to hold that the ornaments belonged to deceased Filomena. Nor bas be strengthened his testimony by admitting that he was not sure whether the chain had a cross. If he was observing the chain worn by his mother regularly, it is inconceivable that he would be unable to notice such a prominent mark as a cross on the chain. 44. The learned Sessions Judge has discussed this part of the evidence in paragraph 63 of his judgment. The learned Session3 Judge has noted that Cecilia (P.W.22) and Vincente (P.W.23) had initially stated that deceased Filomena had one chain and two bangles only and that, later on, they said in supplementary statements that the number of bangles were four. According to the learned Sessions Judge, "this change of stand in regard to the number of bangles has no relevance and only points to the good faith of both net witnesses". This is taking the line of leths resistance by the learned Sessions Judae. Inconsistent statement made by prosecution witnesses in criminal case are very material and they cannot be brushed aside by saying that such statements reflect the good faith of the witnesses. It does not need an authority to underline such an elementary fact, but if one is needed we may refer to Suraj Mal v. State, A.I.R 1979 Supreme Court, 1408 wherein it has been mentioned that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages the testimony of such witnesses becomes unreliable and unworthy of credence and il1 the absence of special circumstances no conviction can be based on the evidence of such witnesses. We, therefore, do not agree with the learned Sessions Judge when he finds that the ornaments (M.O. 1 2) with which in one sense accused No.3 was connected belonged to deceased Filomena. If this is so, then no criminal liability can be fastened on accused No.3 on the basis of the fact that he was at some time in possession of the said articles. We may repeat that we are not recording any finding upon the acceptability or otherwise of the evidence relating to the discovery and recovery of M O. 1 and M.O.2 before the Court. 45. We may repeat that we are not recording any finding upon the acceptability or otherwise of the evidence relating to the discovery and recovery of M O. 1 and M.O.2 before the Court. 45. We now come to the next circumstance relied upon by the prosecution, namely the injury that Was find on the hand of accused No.3 on 6th of September 1980 when he was examined by Dr. Dumankar, examined as P.W. 14. The prosecution is in a way justified in relying upon the testimony of this witness because accused No.3 had gone, as the testimony of this witness shows to him on 6th of September 1980, which was the day immediately after the might. In which the crime was committed Dr. Dumaskar is a medical practitioner of the village in which the accused resides. He is a soft of family doctor of accused No. 3 because he has treated the mother of accused No.3 many times. He has mentioned that on 6th of September 1980 at about 10 a.m. accused No.3 bad come to his dispensary with his left hand bandaged. He removed the band age and flow that he had a cut between the left thumb and index finger. gone to the doctor with an injury ('n 6th of It is not necessary to say anything more about the treatment given by Dr. Dumaskar because accuse No. 3 has admitted that he had gone to the doctor with an injury on 6th of September 1980. In his statement under Section 313 of the Code of Criminal Procedure accused No.3 has mentioned that he had sustained this injury four days before he had gone to the doctor. Mr. Kambli has seized upon this fact an d has mentioned that Dr. Dumaskar has in his evidence not said anything about the age of the injury found on the body of accused No. 3. it is, therefore, possible, says Mr. kambli to accept the explanation of accused No. 3. if it is, there fore, possible, says Mr kambli to accept the explanation of accused No. 3. if Dr. Dumaskar has in his evidence not said anything about the age of the injury found on the body of accused No. 3. it is, therefore, possible, says Mr. kambli to accept the explanation of accused No. 3. if it is, there fore, possible, says Mr kambli to accept the explanation of accused No. 3. if Dr. Dumaskar has not prove before the Court the age of the injury which he found on the body of accused No.3 on the morning of of 6th September 1980 then it is impossible to hold that that injury was caused on the previous night when accused No.3 along with the other accused had allegedly trespassed into the house of Filomena. There is considerable substance in this contention of Mr. Kambli But is possible to explain away the failure of Dumaskar to give than age of the injury because according to Dr. Momaskar accused No.3 himself came to hum and told him that he had been injured in the previous night. The question is whether the accounts all gedly given by accused No.3 to Dr. Dumaskar can be an authentic one. 46. Dr. Durnaskar has given a detailed account of the statement made by accused No.3 to him. As per this account accused No.3 and two his friends were seated on the parapet wall in front of the house of Filomena at about 6 p.m. Sometime thereafter some noises started coming the house when accused No.3 and his friends rushed to the house and knocked on the door. They asked what was going on Accused No.3 thereafter mentioned that some persons were heard going away by the back door. Their suspicion having been aroused, they rushed towards the back door of the house and noticed that some people had run away from the house but due to darkness accused No.3 and his friends could not see them nor were they able to see how many people were there. Thereafter accused No.3 has mentioned that he attempted to climb toe back wall of the house and in that process he must have sustained the injury which was noticed by the doctor. Accused No. 3 did not notice the injury at that time. He noticed it while rescuing a policemen who had fallen in a well while combing the area. Thereafter accused No.3 has mentioned that he attempted to climb toe back wall of the house and in that process he must have sustained the injury which was noticed by the doctor. Accused No. 3 did not notice the injury at that time. He noticed it while rescuing a policemen who had fallen in a well while combing the area. He has admitted that he applied some local medicine on the same and thereafter went to the doctor JD the: morning That accused No.3 was treated by Dr. Dumaskar is clearly established by the other prosecution evidence which shows that Some medicines prescribed by Dr, Dumaskar were purchased by accused No.3 from a local medical shown M.D. 10 which is the Koyta was shown to Dr. Dumaskar and he mentioned that the injury noticed on the hand of accused No 3 could have been caused by that weapon. Dr. Dumaskar has mentioned that the injury sustained by accused No.3 had irregular margins. Despite this he was bold enough to say that the said injury could have been caused by the Koyta which was before the Court and which had no sharp edge. That a Koyla has necessarily sharp edge cannot be disputed. 47. His statement was recorded on 27th of October 1980 and he has admitted that in the statement made to the police the length of the injury on the dorsal and the palm side of the hand was not mentioned. He accepted the suggestion that the injury sustained by accused No.3 could be caused by glass splinters and that is why he accepted the account given by accused No.3. In other words, the injury noticed by Dr. Dumaskar on accused No.3 was fully consistent with the account given to the doctor by accused No.3 The fact that the injury had irregular margins and could have been caused by a glass splinter, therefore, cannot escape our attention. From the testimony of the doctor, it is impossible to infer that the injury found on the hand of accused No.3 on the morning of 6th September 1980 was necessarily caused in the circumstances mentioned in the confessional statement of accused No.3 namely that when accused No.2 assaulted Feli with a Koyta when accused No.2 was bolding her, one blow fell on his hand and he received the injury. It is significant to note that accused No.2 himself has been acquitted for want of proper evidence. if this is so, then that part of the confessional statement which relates to accused No.2 must be held to be not easily acceptable. If the prosecution case is that the injury on the hand of accused No.3 was caused at the time when accused No.2 inflicted injuries on Feli then it is difficult to accept the same in view of the fact that the prosecution case relating to accused No.2 has been found to be unacceptable, by the Court below and has not been shown to be acceptable to us. In a given case, in exercise of the appellate powers this Court may after the finding and confirm the conviction, but this is definitely not one of those cases. We are, therefore, not accepting the prosecution case that the injury found by Dr. Dumaskar on the hand of accused No.3 is a link in the chain of circum5tantial evidence which is to be forged around the neck of accused No.3. 48. The find of the ladder in the house of deceased Filomena after the murder was committed has also been, curiously, accepted by the learned Sessions Judge as a circumstance appearing against accused No.3. A ladder cannot be, by any stretch of imagination said to be an unusual article to be found in a house in the village. For the purpose of proving that this article was earlier in the day in the house of accused No.3 and later traveled to the house of Filomena, the prosecution has examined a boy of about 19 years. But we do not see how the find of the ladder in the house of Filomena, which is its proper place, can be regarded as a circumstance against accused No. 3. P. W. 25 Damiao Ertrocio has mentioned that at about 5 or 5:15 P.M, on 5tb of September 1980 he saw accused No.3 on the roof of his house replacing some tiles This witness changed his clothes, had his cup of tea and then went to accused No.3 to help him in the work. After sometimes both of them got down and this witness spent his time upto 630 p.m. in the company of accused No.3 in his house. After sometimes both of them got down and this witness spent his time upto 630 p.m. in the company of accused No.3 in his house. Assuming that whatever this witness is telling is true, we just cannot see how it can connect accused No.3 with the offence that took place later in the evening in the home of Filomena. If anything, the evidence of this witness shows that if a ladder had been borrowed by accused No.3, he did it for some justifiable reason. He had reason to borrow it because as the witness himself says, that ladder had been used by accused No.3 for going the roof of his house for the purpose of replacing some tiles. If the confessional statement is to be believed, the borrowing of the ladder was a mere pretence or an excuse only for the purpose of returning with the same to the house of Filomena to facilitate the committing of the dastardly crime later at night. 49. P. W. 26 Keshori Mama has been examined by the prosecution for the purpose of showing that accused No.3 was not in his house at about 7.30 p. m. when the offence had taken place. According to her, one week before the Ganesh festivity, which was a Friday she beard Cecilia calling the name of Feli She beard Cecilia shouting. This immediately did not attract the attention of this witness, but when the shouting continued for some time she in turn shouted for Pirtem, who is the sister of accused No.3. She asked Pirtem v. whether Feli's mother was at her place because Feli's mother or Fell herself often used to go to the house of this witness to collect remains of the food for their pigs. Pirtem told her that neither Feli nor her mother had been to her place. When this witness suggested to Pirtem who is also called Piru, that they should go to the house of Rangel to find out what had happened, Piru agreed to it and both of them went towards the house of Rangel. At that stage this witness asked Piru as to whether accused No.3 was not at home. According to her, the reply of Piru was "No. He left the house just now (attanth bair guela)". At that stage this witness asked Piru as to whether accused No.3 was not at home. According to her, the reply of Piru was "No. He left the house just now (attanth bair guela)". That a person should remain in his house for twenty four hours of the day is not an expectation to be harboured by any reasonable or prudent man. Even If we accept that accused No.3 was not present in his house at a particular time, it cannot, by any stretch of imagination, be said that he was elsewhere at a particular house. This apart from the fact, that the testimony of this witness is hearsay because it is the statement which is alleged to have been made by Piru who herself has not been examined by the prosecution. The evidence is so hopelessly irrelevant that it IS not necessary for us to dwell any more on the same. 50. Equally irrelevant and useless is the evidence relating to the identification of M.0.9 the shoes, a the shoes which were worn by accused No.3. 1 W. 6 Santana Estrocio found two shoes in the choda of the house of Filomena three days after he dead body had been discovered that is, She found those shoes in the ashes of the choola sometime on 8th of September 1980 and she accordingly informed the police. The shoes were attended. To help the prosecution, a boy called Hanumant Ambekar bas been examined as P.W. 38 lie is supposed to Identify the shoes (M.O. 9) found m the ashes as those belonging to accused No. 3. Let us see the statement made by this witness 10 this regard. "When the shoes were shown to me I recognised them as similar to those Babol used to wear". Babol is accused No.3. Before this. he had already been asked by police officer as follows : "If I show you boots, will you be able to recognise them?" On behalf of accused No.3 this witness was cress-examined and be admitted that he did not know that the brand of the shoes shown to him by the police officer was nor did not know what as the brand of the shoes which accused No.3 used to were. He admitted the suggestion that there are many companies manufacturing shoes similar to those of M. O. 9. He admitted the suggestion that there are many companies manufacturing shoes similar to those of M. O. 9. He also admitted that be did not know the size of accused No. 3's feet. On being shown the shoes also he was unable to tell their size. He also accepted the suggestion that this type of shoes is very command that many people used to wear them. Nothing more be said about the quality of this evidence to reject the same. 51. Now we come to another type of evidence which is not usually pressed by the prosecution in its service and that is the alleged find of foot prints of accused No.3 at the place of the offence. 1n Pritam Singh v. State of Punjab,8 the Supreme Court pointed out that the science of identification of foot prints was no doubt a rudimentary science and much reliance could not be placed on the result of such Identification. The track evidence however, could be relied upon as a circumstances, which, along with other circumstances, would point to the identity of the culprit though by itself it would not be enough 'O carry conviction in the minds of the Court. Manohar Joshi, examined as P.W. 2. is the foot-prints expert. He is the Scientific Examiner in the Crime Branch C. I. D. Panaji and before he was examined in this case he is examined only in another case on the question of foot-prints. We have with the assistance of Mr. Kambli as well as the Government Advocate, gone through the testimony of this witness In great details and with all the attention it deserves After doing so we are unable to accept his assertion that the foot prints of accused No.3 which he obtained tallied with the foot-prints which he found at the scene of offence. Exhibit 76 are the foot-prints of accused No.3 obtained by this witness. Exhibit 74 are the presence of the foot-prints found by him at the scene of offence. 52 In his examination-in-chief, P. W. 32 Manonar Joshi has mentioned that after comparing the two sets of foot-prints be came to the conclusion that "there was a lot of resemblance between the foot. prints of accused No. 3 and the fool-prints at the scene of the offence and. 52 In his examination-in-chief, P. W. 32 Manonar Joshi has mentioned that after comparing the two sets of foot-prints be came to the conclusion that "there was a lot of resemblance between the foot. prints of accused No. 3 and the fool-prints at the scene of the offence and. therefore, he came to the conclusion that the foot-prints found at the scene of defence could be of accused No 3. He has, undoubtedly, as pointed out by Mr. Dias, given some test on the basis of which he was able to come to the conclusion mentioned before the Court. The points which were taken into consideration by him were the size and shape of the toes, gap between the toes, alignment of toes, relative position of toes in respect of base line, shape of the ball of the foot, sl1ape of inset, shape of heel and dimension of the foot-prints With an almost disarming candour, this witness admitted III the cross-examination that it was not possible to say positively whether a foot-print is of a certain person. It was only possible to say whether such foot-print can or cannot be of such person. Unfortunately the witness bas not prepared any report which could have enable the Court to lest whether the opinion which he formed after the examination of the foot-prints was correctly stated before the Court or whether that opinion was incorrect. In this there is a lacuna and it is not, therefore possible for us to hold that the foot-prints found at the scene of offence could reasonably be said to be the foot-prints of accused No.3. We have, therefore, no alternative but to exclude this evidence altogether from our consideration. 53. After subjecting the entire prosecution evidence relating to accused No.3 to a proper and exhaustive analysis, which we are required to do we are not able to say that the prosecution has established any chain of circumstantial evidence which can reasonably be made the basis for the conviction of accused No 3. Admittedly there is no eye witness to the offence; a chain of circumstantial evidence must be a complete chain and in order to form that chain there must at least be two links. In this case, after a careful consideration of all the circumstances relied upon by the prosecution, we have been able to form an opinion that do link bas been satisfactorily established. In this case, after a careful consideration of all the circumstances relied upon by the prosecution, we have been able to form an opinion that do link bas been satisfactorily established. This apart from the question as to whether each link has been forged satisfactorily to form a chain. 54. Mr. Dias is right when be say that each link should not be tested on the basis whether it is consistent with the prosecution evidence. According to him, the cumulative effect of all the circumstantial evidence must be considered by the Court. But the chain must be forged by fastening every link in the chain. In the instant case we find that there are no links at all which have been proved beyond reasonable doubt. Identification of ornaments M.O. 1 and 2 has not been established to the satisfaction of the Court; the discovery of the ladder is hopelessly irrelevant to the consideration of the question of the guilt of accused No.3; that accused No.3 was not in his house at the time when the offence was committed has not been proved by primary evidence; even if it is held that he was not there the circumstance is such that no inference of guilt can be drawn against him; the injury on the hand of accused No.3 has been reasonably and satisfactorily explained by accused No.3 himself; the footprints found at the scene of offence are not shown to be those of accused No.3. What remains is only the confession made by accused No.3 before the learned Judicial Magistrate. We have said enough on the nature of this confession, which has been retracted. The correct legal position is that no conviction can safely be recorded on the basis of an uncorroborated retracted confession. There must be some corroboration which we have been unable to find in the other prosecution evidence in this case. The prosecution has thus failed to prove its case beyond reasonable doubt against accused 55. Now we proceed to consider the case of accused No.1. Against him the prosecution has pressed into as service the discovery of what is regarded as the weapon of offence, namely, the Pall Kayta. The prosecution also has relied upon the discovery of an article. which has been described as a mask, pursuant to a statement made by accused No.1 under Section 27 of the Evidence Act. Against him the prosecution has pressed into as service the discovery of what is regarded as the weapon of offence, namely, the Pall Kayta. The prosecution also has relied upon the discovery of an article. which has been described as a mask, pursuant to a statement made by accused No.1 under Section 27 of the Evidence Act. These discoveries have been proved by P.W. 17 Ramesh Naik. Bdore we go to his evidence, which is for the purpose of showing that the discoveries were made on 26th of October 1980, it would be appropriate to notice the testimony of another witness, examined as P.W. 27, namely Dominic Perelra. He says that on 10th of October 1980 he was a panch witness to the discovery of a Koyta at the instance of accused No.1 in investigation which led to Session Case No. 32 of 1980. In that case the Koyta was exhibited as M.O. 22. His evidence is not relevant to the discovery of the Pall Koyta and the mask in this case done on 26th of October 1980, but it is of some importance because it wilt show that fifteen days before the Pall Koyta and the mask had been recovered in this case, the house of accused No.1 has been visited by the police and the balcony of his house had been searched. P.W. 27 Dominic says that on 10th October 1980 his presence was requisitioned by the police. He went near a jeep where accused No.1, commonly known as Kistu, and the police party were present. There was another panch called Ramnath. Kistu made a statement that he would show a Koyta and thereafter he led the police party and the panchas to his house. All the persons entered the compound of the house of accused No.1 and then the balcony. At this stage the mother of accused No.1 opened the door from inside. This necessarily shows that the balcony is outside the main entrance to the house and one can have access to its without anybody in the house giving permission. Thereafter this witness has mentioned that Kistu started searching for Koyta in the balcony. He did not find it. Thereafter he went inside the house and from the fine compartment Kistu moved to another room. Thereafter this witness has mentioned that Kistu started searching for Koyta in the balcony. He did not find it. Thereafter he went inside the house and from the fine compartment Kistu moved to another room. From this room he moved to a third room, which is the kitchen, and it is from this third room that Kistu picked up a Koyta from beneath the choola platform where usually fire-wood is kept. 56. It is not necessary for us to express any opinion on the acceptability of the discovery evidence relating to the Koyta on 10th October 1980 which was done in connection with mother Sessions, case but we cannot ignore the evidence which has been brought by the prosecution itself which shows that on 10th October 1980 accused No.1 had searched what has been described as the balcony of his house, which balcony is easily accessible to anyone. At that time nothing unusual was noticed by the police. It is true, as Mr. Dias is quick enough to point out to us, that in that investigation the investigating officer was different from the one in the present case. We are referring to this evidence only for the purpose of appreciating the topography of the house of accused No.1 which shows that the house consists of as outer portion, which is open and an inner portion, which can be entered into only after the door is unlocked from within. 57. P.W. 17 Ramesh says that on 26th of October 1980 his services were obtained by the police for the purpose of witnessing a discovery which was to be made at the instance of accused Nos. 1 and 2. We will ignore his testimony relating to accused No.2. First he asked accused No.1 as to what his name was and he was told that be was Kistu D'Souza. On being further, asked, accused No.1 told that he wanted to produce the Pall Koyta, mask and the pant that he was wearing. Thereafter the police party went in a vehicle to the house of one Johny. When they reached that house accused No.1 called out one Josephine. On being called twice, a young girl came out of the house. Accused No.1 asked her to bring his Poll Koyta upon which Josephine went inside the house and came out with a Pall Koyta. Thereafter the police party went in a vehicle to the house of one Johny. When they reached that house accused No.1 called out one Josephine. On being called twice, a young girl came out of the house. Accused No.1 asked her to bring his Poll Koyta upon which Josephine went inside the house and came out with a Pall Koyta. She gave it to accused No.1 which was attached under the appropriate panchanama. It has been mentioned by this witness that at the time when this Pal; Koyta was produced, there were some stains on the ring where the wooden handle is inserted. He identified the Pall Koyta before the Court as the one which had been produced by accused No.1. 58. Thereafter they proceeded to the house of accused No.1 where they were to the balcony. In the said balcony they noticed a heap of fishing nets. Accused No.1 went through the nets and from among the heap took out a mask and handed it over to the police officer. The Pall Koyta is M.O. 32 before Court while the mask is M.O. 33. We have noticed earlier that when the Pall Koyta was attached the witness had found some stains on the Iron ling III which its handle is inserted. If, therefore, the panch witness or the police officer had noticed any 1tain on the mask which was also discovered in the balcony of the house of accused No.1 it would have been undoubtedly mentioned in the panchanama ; it would have undoubtedly been mentioned by his deposition. The absence of a statement to the effect that any particular stain was noticed on the mask (M.O. 33) must necessarily be noted by us. In the examination-in-chief, while deposing to the fact of accused No.1 fising out a mask from the fishing nets, the witness has not said anything about any stains having been found on that mask. In the cross-examination, he was asked whether It was mentioned in the panchanama that Kistu took out a mask from the hear of fishing nets in the balcony of his house. He bad to admit that it had not been so mentioned. However, be asserted that the fact was that there was such a pile of fishing net and that the mask was taken out from that heap. 59. He bad to admit that it had not been so mentioned. However, be asserted that the fact was that there was such a pile of fishing net and that the mask was taken out from that heap. 59. In the panchanama it has been mentioned that Kistu then led the Panchas to his house situated nearby and from the verandah of his house the produced the said 'mayem' with light khaki colour with the length of 12" and with of 9". It appears to be made of cot wools--with holes stitched in between with white thread probably to keep open the eyes to be used as mask". Two things must be noted in connection with this evidence. In the first place, in the panchanama, which is a contemporaneous document If the alleged fact of discovery, there is no mention at all that accused No.1 took out the mask which was in the fishing nets. In thus second place, no mention is made of any stain on the mask which was allegedly taken out by accused No.1 from the heap of fishing nets: That there was any stain of any kind on the mask bas not been mentioned even in the deposition of the panch witness. We must proceed on the basis that there was 110 noticeable stain on the mask which was discovered at the instance of accused No. 1. 60. A question arises as to whether the mask was really hidden at all in the balcony of the house of accused N0. 1. We have already noted that the word "balcony" is used to a place which is a fort of raised platform In front of the house and this place is not closed to outsiders. It is a place 10 which free access is available to anyone. It is almost an open place and, therefore, if something is found in the said place, it cannot be said that that thing has been discovered. From the absence of the mention of the heap of fishing nets in the panchanama which is, as stated earlier, a contemporaneous document, one can I reasonably infer that there was no heap of fishing nets in the verandah or, at any rate accused No.1 did not take out a mask from the heap of fishing nets. From the absence of the mention of the heap of fishing nets in the panchanama which is, as stated earlier, a contemporaneous document, one can I reasonably infer that there was no heap of fishing nets in the verandah or, at any rate accused No.1 did not take out a mask from the heap of fishing nets. If a particular fact gives rise to two inferences it is evitable that the inference which is favorable to the accused must be dawn and you cannot give benefit of doubt to the prosecution. Considering these two facts, namely the open nature of the space to which the mask was found and the fact that no mention is made in the panchanama about the presence of the fishing nets in the balcony we are inclined to think that a discovery within the meaning of Section 27 of the Evidence Act has not been made at least in so far as it relates to the mask. 61. We will return to the mask in a short while again, but before that we must dispose of the significance of the, attachment of the Pall Koyta (M.O. 32). When sent to the Forensic Science Laboratory, the said Pall Koyta was found to have been stained with blood. On analysis it was found that the blood detected on that article was human blood. However, the group of the blood found on this article could not be detected as the results were inconclusive. In other words, it has not been shown that M O. 32 namely the Pall Koyta alleged to have been discovered at the instance of accused No.1 could have been used in the murder of Filomena and her daughter felt. It has come on record that the blood group of Filomena and Feli is 'O', Rh factor is said to be positive. As far as the blood on the Pall Koyta is concerned it is found to be only human blood. Neither the group of the blood nor the Rh factor thereof, has been determined by the Forensic Science Laboratory. From this, therefore, it is not possible to connect accused No.1 with the crime with which he is charged. 62. Now We will return to the discovery of M. O. 33 the mask. We have said enough on the absence of the fishing nets in the balcony from where it is . From this, therefore, it is not possible to connect accused No.1 with the crime with which he is charged. 62. Now We will return to the discovery of M. O. 33 the mask. We have said enough on the absence of the fishing nets in the balcony from where it is . said to have been discovered at the instance of accused No. 1, We have also made comment upon the fact that no stain of any kind was noticed on the mask by the panchas and members of the investigating party when this discovery is alleged to have been made. When the mask was sent to the Forensic Science Labortory it was found to contain one blood stain of about O. 5 cms. in diameter situated on its back inner side. When examined, this blood was found to belong to 'O' group. This establishes a reasonable connection with the crime because, as we have already mentioned above 1 the blood group of Filomena and her daughter Feli was also 'O' group. We are not suggesting for a moment that any tampering with the article concerned bas been made by the investigating machinery. But one cannot forget the fact that the blood stain found on the mask is so small in size, namely O. 5 cm, which is one fifth of an inch, and it was found to be situated on the back inner side of the mask. The mask itself is a sort of covering which covers the head entire face and part of the neck. There are two slits on the front side through which the person wearing it can see. The mask can, not doubt, effectively prevent the person using the same from being identified by others. The question is whether a blood-stain of such a small size situated at such an unusual spot of the: mask could be the blood of one of the victims. Let us not forget that we are trying to see whether there is a corroboration to the confessional statement made by accused No.3. In the absence of the confessional statement, such a find of one small stain of blood on the back of the headgear could have been necessarily ignored by us. Let us not forget that we are trying to see whether there is a corroboration to the confessional statement made by accused No.3. In the absence of the confessional statement, such a find of one small stain of blood on the back of the headgear could have been necessarily ignored by us. Even if we want to given it due importance, we must consider whether this find of the blood-stain of a group to which the blood of the victims belonged corroborates the confessional statement made by accused No.3. 63. Returning to the confession made by accused No, 3, we notice what has been said by him about the assault made by accused No.1 on Filomena: "Thereafter mother of the said Felly came after taking bath when Kistu gave a blow of PAL on the neck of the mother of Felly. She fell down without uttering anything.1 Kistu thereafter gave many blows of PAL on the mother of Felly". We have seen the photographs of the body of Filomena. Looking to the confessional statement and also looking at the photographs, one cannot but notice that the attack that was made on Filomena was most merciless, indiscriminate and almost savage. When such an attack was made, one would normally expect that the blood sprouting from the body of Filomena could have sprayed the entire mask and other clothes of the assailant. The find of a single insignificant stain of blood on the inner back side of the mask, I here force, is inconsistent with the recitals to be found in the confessional statement and it is far from being corroborative of the same. It is not inconceivable, as bas been insisted by Mr. D. Y. Sawant, the learned Advocate appearing for accused No.1, that such a small blood stain could be due to an injury which accused No. 1 himself might have suffered. The prosecution has not established that the group of the blood of accused No.1 is anything else than 'O'. 64. At this stage we are constrained to refer to certain orders passed by the learned Sessions Judge at the time of the trial. Inspector Zuarkar, the investigating officer, was examined as P.W. 45. His examination-in chief was concluded on 28th of September 1981 and the matter was adjourned to 5th of October 1981 at 2.30 p. m. for cross-examination. 64. At this stage we are constrained to refer to certain orders passed by the learned Sessions Judge at the time of the trial. Inspector Zuarkar, the investigating officer, was examined as P.W. 45. His examination-in chief was concluded on 28th of September 1981 and the matter was adjourned to 5th of October 1981 at 2.30 p. m. for cross-examination. On the latter date, there is an endorsement by the learned Sessions Judge that cross-examination by accused No.1 was reserved.. Cross-examination on behalf of accused No.2 was however, made on that day and the case. Was adjourned to 7th of October 1981. On that date it has been mentioned by the learned Sessions Judge that cross-examination by accused No.1 was "nil". In the brackets it bas been mentioned "opportunity given to accused No.1 to cross-examine". It has also been mentioned that cross-examination by accused No.3 was nil, though opportunity was given to him to cross-examine the witness. Thereafter the prosecution is said to have closed its case On 12th of October 1981 the Advocate for accused No.3 submitted an application before the learned Sessions Judge pointing out that the God, Daman and Diu Advocates' Association by a resolution passed on 3rd October 1981 had decided to boycott ail the Judicial and Revenue Courts from 5th to 7th (both days inclusive) of October 1981. For this reason the Advocate for accused No.3 did not remain present on 5th and 7th of October 1981. Those were the dates fixed for inspector Zuarkar to be cross-examined. Since the deposition of inspector Zuarkar was given and recorded in English and no interpretation of the same was done in Konkani, accused no. 3 could not follow the deposition. It was necessary, therefore. for the Advocate for accused No.3 to read the deposition and to take instructions from accused No. 3 for a proper cross-examination of inspector Zuarkar in the interest of justice. The Court was, therefore, requested to recall Inspector Zuarkar for cross-examination. 65. On the said application the learned Sessions Judge made an order frowning upon the conduct of the bar in boycotting the Court from 5th to 7th October 1981. It has been mentioned that the Advocate for accused No.3 failed to appear on 5th of October 1981 without assigning any reason or filing an application. 65. On the said application the learned Sessions Judge made an order frowning upon the conduct of the bar in boycotting the Court from 5th to 7th October 1981. It has been mentioned that the Advocate for accused No.3 failed to appear on 5th of October 1981 without assigning any reason or filing an application. It has also been mentioned that on 7th of October 1981 the Advocate for accused No.3 again failed to appear in Court. This is an admitted fact and there was no necessity for the learned Sessions Judge to Use this fact for refusing permission to cross examine inspector Zuarkar. The learned Sessions Judge has made a note that accused No.3 was told by the Court on 7th October 1981 to cross-examine the investigating officer as his Advocate was not present. Naturally accused No 3 could not avail of the said opportunity because the position of the investigating officer was in English. The learned Sessions Judge insists that if the accused bad asked for the examination-in-chief to be translated for him, the court would have unhesitatingly done so. For these reasons the opportunity to cross. Examine Inspector Zuarkar was denied to the defence. It was so denied to accused No.1 also. 66. In a sessions case where the accused are being tried for such serious offences as those of murder, robbery and lucking house trespass at night and where massive evidence consisting of testimonies of more than forty witnesses has been produced, it is futile to expect that the accused can effectively cross-examine the investing officer particularly when the said officer is of the rank of an Inspector of Police. He is true that the learned Advocate for both accused Nos.1 and 3 were not present on 5th and 7th October 1981. A presiding officer of a Court cannot afford to be angry and annoyed over the conduct of the Advocates if such conduct, in the opinion of the presiding officer, is not proper and they to deny due procedure of the trial £0 the accused persons. We say this despite the fact that Advocate for accused No. 1 was pleasant on 5th of October 19.q and asked for an adjournment which was granted, but the case was fixed on 7th of October 1981. We say this despite the fact that Advocate for accused No. 1 was pleasant on 5th of October 19.q and asked for an adjournment which was granted, but the case was fixed on 7th of October 1981. The learned Sessions Judge has shown a keen sense of his devotion to duty when he has mentioned that on the dates, despite the boycott of the Courts by the Advocates, he conducted those cases where the accused were in custody, but we fail to appreciate his refusal to grant permission to accused Nos. 1 and 3 to cross-examine the investigation officer in a case of this type the accept ability or otherwise of the prosecution case, to a large extent, depends upon the answers elicited in the cross-examination of the investigating officer. It is unfortunate that due to the result of one or the other person the prosecution evidence in this case has been allowed to stand as it is without being examined in the light of the evidence that could have been given by the investigating officer in the cross examination. This is, in our opinion, an unusual case. We do not see how the urgency which was felt by the learned Sessions Judge could have been in any way impaired by giving one or two dates to the Advocate concerned to cross-examine the investigating officer. In one's zeal for speedy trial, one cannot sacrifice fair-play. 67. This is particularly so when we are informed, and we find it so on the material which has been made available for our perusal, that the blood of accused No. 1 had been sent to the chief Medical Officer of the blood bank of the Goa Medical College. A copy of the letter addressed by the said medical officer discloses that the blood group of accused No. 1 is ‘O’ Rh positive. It is true that unfortunately this has not become a part of the evidence in this case. If the investigating officer had been cross-examined, the Advocates for the accused would have elicited the information from him that the blood of accused No.1 had been sent to the Blood Bank of the Goa Medical College. The reply sent by the sad Blood Bank also would have come on recorded. Indeed we are disturbed by the fact at he prosecution has sur-pressed this particular piece of evidence. The reply sent by the sad Blood Bank also would have come on recorded. Indeed we are disturbed by the fact at he prosecution has sur-pressed this particular piece of evidence. It was the duty of the prosecution to bring this fact on record without waiting for the defence to elicit this from the cross-examination of the investigating officer, who can now speak from a protected position unaffected by any question that would have been asked by the defence counsel. We are making this comment on the basis of the papers made available for our perusal and given to the Advocates for the accused under Section 173 of the Code of Criminal Procedure. The learned Government Advocate has not been able to tell us that factually this is incorrect. It is, therefore, crystal dear to us that the presence of a small blood stain on the inner back side of the mask found in the open space such as toe balcony of the house of accused No. 1 and the fact that it was human blood of 'O' group are of no consequence at all in this case. They do not in any manner connect accused No. 1 with the crime in question and they do not in any manner corroborate the recitals to be found in the confessional statement at Exhibit 49 made by accused No.3. 68. At this stage we cannot also help in noting that the learned Sessions Judge did not give, as he was bouf1d to give, the opportunity to accused No. 1 to explain the presence of human blood of 'O' group on the mask. No question about this was asked to him in the examination under Section 313 of the Code of Criminal Procedure. If a circumstances appearing against the accused is not put to him in the examination under Section 313 of the Code, how could the conviction be passed upon that circumstance? (See Rahim Beg v. State of U.P.,9 paragraph 25). Failure to question the accused in this case on such a vital point as the presence of human blood of 'O' group must be held to be an incurable defect. 69. The learned Government Advocate bas, with some amount of persistence, contended that the find of a blood. (See Rahim Beg v. State of U.P.,9 paragraph 25). Failure to question the accused in this case on such a vital point as the presence of human blood of 'O' group must be held to be an incurable defect. 69. The learned Government Advocate bas, with some amount of persistence, contended that the find of a blood. stain on the mask discovered at the instance of accused No.1 and the fact that this blood was human blood of 'O' group should not be belittle by us. We agree that the find of human blood on an article is not of small consequence. But when the blood-stain was of Insignificant size and when the prosecution has kept back certain evidence from the gaze of the Court and when the defence was effectively prevented from subjecting the investigating officer's testimony to cross-examination, we find ourselves unable to hold that the prosecution has furthered Its case by the disclosure of a blood-stain of 0.5 cms., on an article not uncommon in use in the villages. 70. Mr. Dias thereafter contended that accused No.3 at any rate, cannot be exonerated of all the offences with which he is charged. Even if it is insisted as we are insisting, that we must seek corroboration to the recitals contained in - the confessional statement, there is corroboration as far as accused No.3 is concerned. There are several difficulties which Mr. Dias cannot overcome. In the first place, even if we accept all the recitals contained in the confessional statement as true, what is the picture that emerges? It was that accused No.2 gave several blows on the body of Fail causing her instantaneous death. Accused No.3 himself did not take part in that activity. A conviction under section 302 read with Section 34 of the Indian Penal Code would have been recorded if accused No.2 had been held guilty and if we bad accepted the recitals in the confessional statement. Accused No.2 has been acquitted. Therefore, accused No.3 cannot be convicted under Section 302 read with Section 34 of the Indian Penal Code nor can he be convicted under Section 302 simpliciter because no actual act is attributed to him. Accused No.2 has been acquitted. Therefore, accused No.3 cannot be convicted under Section 302 read with Section 34 of the Indian Penal Code nor can he be convicted under Section 302 simpliciter because no actual act is attributed to him. For similar reasons we cannot convict him for the murder of Filomena either under Section 302 read with Section 34 Or Section 302 simpliciter of the Indian Penal Code which murder, acc0fding to the prosecution took place at the bands of accused No. 1. We are reluctant to convict accused No.3 of the offence of robbery because the evidence relating to the identification of the recovery and discovery of the golden ornaments bas failed to impress us. In these circumstances, accused No.3 cannot be convicted for any of the offences with which he had been charged. 71. Before we proceed to allow these appeals by passing the order, we cannot help briefly mentioning three facts which have, to some extent, disturbed us while hearing these appeals. One was the mention by the learned Sessions Judge that human blood of 'O' group was found on the Pall Koyla alleged to have been discovered at the instance of accused No. 1. If this fact had been established, we think that it would have provided a very close link between the crime and accused No.1 But factually this is incorrect. The second fact is the return of the two gold bangles produced by P.W. 23 Vincente. This was done by the learned Sessions Judge without allowing us an opportunity to find out whether the finding recorded by him is correct. The third circumstance is the refusal of the learned Session Judge to give an opportunity to accused No.1 and 3 to cross-examine such an important witness as the investigating officer. This last factor assumes some ominous significance because of the holding back by the Prosecution of Some material evidence which would have otherwise helped the accused and would have knocked out the very bottom of the prosecution case. 72. In the result both these appeals are allowed. The order of conviction and sentence recorded by the learned Sessions Judge of Panaji in Sessions Case Nos. 33 of 1980 is set aside. Both accused Nos. 1 and 3 in that case are acquitted of the offences with which they bad teen charged. 72. In the result both these appeals are allowed. The order of conviction and sentence recorded by the learned Sessions Judge of Panaji in Sessions Case Nos. 33 of 1980 is set aside. Both accused Nos. 1 and 3 in that case are acquitted of the offences with which they bad teen charged. They shall be set at liberty forthwith if not required in any other case. Appeals allowed. 1. AIR 1972 SC 66 2. AIR 1939 Privy Counsel 47. 3. AIR 1966 SC 119 . 4 AIR. 1978 SC 1248. 5. AIR 1949 Privy Council 257, 6. A.I.R 1978 SC 1770. 7. 4963(2) SCR 890 8. AIR 1956 SC 415 . 9.1972(3) S CC 759 @ 768.