JUDGMENT Monoj Kumar Mukherjee, J. Anup Biswas @ Bishnu, Prasenjit @ Bhola Tapadar and Ms. Tulu Dutla were arraigned before the learned Additional Sessions Judge, 2nd Court, Alipore for conjointly committing the murder of Ujjal Bose and causing disappearance of its evidence. As in the course of the trial Talu Dutta died the trial proceeded against the other two. On conclusion thereof, the learned Judge, while recording an order of acquittal in respect of the charge of causing disappearance of evidence, convicted both of them of the other charge and sentenced each of them to death. Aggrieved thereby, they have filed two independent appeals and the learned trial Judge, in his turn, has made the statutory reference under s. 366 of the Code of Criminal Procedure, 2. Both Ujjal and Tulu were lawyers practicing in the Courts at Alipore. While Ujjal was a permanent resident of Madhyamgram in the district of 24-Parganas (North) where he used to live with his family including his wife and brother Himadri (P.W.1). Tulu used to reside in a flat on the third floor of a four-storied building at CN. Roy Road, Calcutta within the police station of Tiljala. Ujjal however, was a frequent visitor to the flat of Tulu and occasionally spent the night there. 3. The case for the prosecution is that in the morning of March 4, 1987, Himadri got a massage from Tiljala Police Station through Madhyamgram Investigating Centre that his brother. Ujjal had died in the flat of Tulu on the previous night. On getting the information, he rushed to Tiljala Police Station and accompanied by a Police Officer, went to the flat of Tulu, There he found his brother lying dead. On his query, Tutu told him that his brother had died due TO heart attack. The explanation did not satisfy Himadri, as he found his brother lying naked on the floor with a number of injuries on his person He, therefore, went hack to the Tiljala Police Station and lodged a complaint alleging that his brother had been murdered. On that complaint, a case was registered and investigation was taken up by the police. On completion of investigation, police submitted charge-sheer against Tulu and the two appellants and in due course, the case was committed to the Court of Session. The appellants -.pleaded not guilty to the charges framed against them and contended that they were falsely implicated. On that complaint, a case was registered and investigation was taken up by the police. On completion of investigation, police submitted charge-sheer against Tulu and the two appellants and in due course, the case was committed to the Court of Session. The appellants -.pleaded not guilty to the charges framed against them and contended that they were falsely implicated. 4. There being no eye witness to prove the charges leveled against the appellants the prosecution rested its case on a confessional statement said to have been made by the appellant Prasenjit before a learned Maghtr3te on March 13, 1987 and some other circumstantial evidence to which we will refer in details at the appropriate stage. 5. Law is well settled that before a confession can be admitted in evidence as a relevant fact, it must be proved that it was voluntarily made. It is in that context that the legislature in its wisdom has laid down an elaborate procedure under s. 164 of the Code of Criminal Procedure, which has to be followed before a confession judicially recorded can gain admission as a relevant fact. In the case of Kehar Singh v. State (Delhi Administration) reported in AIR 1988 SC 1883 . the Supreme Court considered the requirements of s. 164 of the Code of Criminal Procedure in the light of its earlier decisions as also those of the High Courts and observed as under :- "On a consideration of the above decisions it is manifest that if the provisions of s. 164(2) which require that the Magistrate before recording, confession shall explain to the person making confession that he is not bound to make a confession and if he does so it may be used as evidence against him and upon questioning the person if the Magistrate has reasons to believe that it is being made voluntarily then the confession will be recorded by the Magistrate. The compliance of the sub-s. (2) of s 164 is therefore, mandatory and imperative and non-compliance of it renders the confession inadmissible in evidence Section 463 (old s.533) of the Code of Criminal Procedure provides that where the questions and answers regarding the confession have not been recorded evidence can be adduced to prove that in fact the requirements of sub-s(2) of s.164 read with s.281 have been complied with If the court comes to a finding, that such a compliance had in fact beer, made the mere omission to record the same in the proper form will not render it inasmissible evidence and the defect is oured under s.463 (s.553 of the old Criminal Procedure Code), but when there is non, compliance of the mandatory requirement of s.1642) Criminal Procedure Code and it comes out in evidence that no such explanation as enviaged in the aforesaid sub-section has been given to the accused by the Magistrate, this substantial defect can Dot be cured under s. 463 Criminal Procedure Code." 6. Keeping in view the above principle of law let us consider whether the confession in the instant case is a voluntary one or not. The records indicate that Prasenjit was arrested by the police on March 4. 1987 and was forwarded to the learned Sub-Divisional Judicial Magistrate. Alipore on March 5, 1987. While forwarding him, the Investigating Officer prayed permission of the Court to take him in police custody for a fortnight. The learned Magistrate allowed the prayer and permitted the Investigating Officer to keep Prasenjit in police custody till March 16. 1987. The Investigating Officer, however, produced Prasenjit before the learned Magistrate on March 12, 1987. that is, four days before the expiry of the period of police custody, with a prayer that his confession might be recorded as he was willing to confess. The learned Sub-Divisional Judicial Magistrate allowed the prayer and asked Sri A.K Barua a learned Judicial Magistrate of Alipore to record the confession. Pursuant thereto, Prasenjit was produced before Sri Barua on that very day and the learned Magistrate, after cautioning him adequately, sent him to jail custody with a direction that he should be kept in segregation to enable him to reflect and produced before him on the following day, that is, on March 13. Pursuant thereto, Prasenjit was produced before Sri Barua on that very day and the learned Magistrate, after cautioning him adequately, sent him to jail custody with a direction that he should be kept in segregation to enable him to reflect and produced before him on the following day, that is, on March 13. 1987 at 3 p.m. In terms of the said direction, Prasenjit was produced on March 13, 1987 and his confessional was recorded on that day. From the confessional statement (Ext. 15), we find that before recording the confession the learned Magistrate firstly Told him that he was a Magistrate and then he inquired of him whether he was threatened or coerced for which he was making the confession to which his reply was in the negative. The learned Magistrate next asked him whether he knew that if he made the confession it might he used against him and he might be punished to which his reply was in the affirmative. The last question asked by the learned Magistrate before recording the confession was whether he was making the confession voluntarily to which he gave a positive answer. Then he recorded the statement made by Prasenjit and made the memorandum required under sub-s. (4) of s.164 of the Code of Criminal Procedure. 7. While testifying as P.W. 34, Sri Barua stated that on March 12. 1987 when the accused was produced before him. he cautioned him in his chamber by saying that he was not bound to confess and after giving him time for reflection directed his production on the following day. In cross-examination he however admitted that the details of caution that he had given to the accused were not mentioned in his order dated March 12. 1987. He also admitted that he died not put any specific question to the accused by stating that he was not bound to give a confessional statement. He next stated in cross-examination that the order sheet dated March 12, 1987 did not indicate that he ascertained from the accused as to wherefrom he was produced on that day. It was also elicited from him in cross-examination that he did not ascertain from the accused if he had been manhandled while in police custody nor did he caution him on any of the two days, the accused was produced before him, that is, on March 12. It was also elicited from him in cross-examination that he did not ascertain from the accused if he had been manhandled while in police custody nor did he caution him on any of the two days, the accused was produced before him, that is, on March 12. 1987 and March 13, 1987 that he would not be sent to further police custody even if he did not give any statement. Sri Barua also admitted that he did not try to ascertain from the accused as to why he was making the confession. 8. It is thus seen that neither the confessional statement recorded by Sri Barua nor his testimony in Court discloses that he explained to Prasenjit that he was not bound to make a confession that he would not be remanded to the police custody even if he did not make a confession. The above omissions, in our considered view are vital; for the former is a statutory one and the other was absolutely necessary in this case-keeping in view the fact that the police custody of Prasenjit was yet to be over-to reassure the accused at the time of recording the confession that he would not be sent there let he was obsessed with the feeling that if he did not make the confession, he might be harassed. Another omission which we cannot also lose sight of is that the learned Magistrate did not enquire of Prasenjit as to why he was making the confession. 9. In the case of Davendra Prasad v. State of U P reported in AIR 1987 SC 1544, the Supreme Court rejected the confessional statement made by the accused, as according to it, it suffered from three serious infirmities in that- i) there was no' contemporaneous record to show that the appellant was actually kept in jail custody a, ordered by the Judicial Magistrate; ii) the Judicial Magistrate, who recorded the confessional statement did not question the accused as to why he was making the confession; and iii) there was nothing in the statement of the Magistrate to show that he told the appellant that he would not be remanded to the police Jock-up even if he did not confess his guilt. 10. 10. It is interesting to note that as in this case-in the case of Davendra (supra) also, the accused, was ordered to be kept for one day in the jail, after he was brought from police custody and before the confession was recorded. 11. From the above discussion, it is evidently clear that the requirements of s. 164 of the Code of Criminal Procedure regarding recording of confession have not been complied with in terms of the judgment of the Supreme Court in the case of Kehar Singh (supra) and it suffers from two of the three serious infirmities pointed out by the Supreme- Court in the case of Davendra Prasad (supra). Such being the state of things appearing on record surrounding the confession, we are unable to share the view of the learned trial Judge that the confession is a voluntary one. 12. Even if the confession is held voluntary, it must also be established that it is true, before it can form a basis for conviction, and for the purpose of dealing with and answering this question, it would be necessary to examine the material points mentioned in the confession and compare it with the rest of the prosecution evidence and the probabilities of the case. 13. The evidence of Dr. P. B. Das (P.W. 54), who held the post-mortem examination discloses that there was as many as 32 injuries on the person of Ujjal, most of them being abrasions and bruises. One of the injuries, however, (injury no.30) was described by him as "one semi-circular/non-continuous ligature mark on the anterior part of the neck below the level of thyroid cartilage on the left side going back and obliquely above and behind the left ear and is more prominent than on the right side, having a depressed area on the left side of mid-line and on the right side of the neck is less prominent and going obliquely behind and upwards upto right mastoid region having the measurement of 111/2 x ½” and having a wide gap on the back of neck measuring 4½”. On further dissection, furrow was found parchmentised and the subcutaneous tissues having echymosis," 14. On further dissection, furrow was found parchmentised and the subcutaneous tissues having echymosis," 14. The doctor opined that the death was due to strangulation associated with the injuries stared by him, which were ante-mortem and homicidal und also having the evidence of intake of alcohol by the deceased as per F.S.L (Forensic Science Laboratory: report. When shown a 'window-curtain' spring wire (Ext. XXII)" which was seized from the fiat of Tulu Dutta, the doctor opined that the injury no.30 could have been caused if his neck had been pressed with the same. The doctor further opined that from the 'nature of injuries sustained by 'the victim, it could be said that be was assaulted by more than one assailant. According to the doctor, the strangulation might have been 'caused by manual force as well as using some string or wire. In cross-examination, the doctor stated that injury no. 30 must have been caused from behind By way of further explanation, he said that the above injury could be caused if the ligature was placed around the neck of the victim and if he was dragged with such ligature mark before his molecular death. 15. On the basis of (i) the injuries found on the person of the victim particularly injury no. 30 and the opinion of the doctor, (ii) recover y of the spring wire (Ext. XXII) with a strand of human hair, on examination was found to be that of the victim, and (iii) a soleprint found on the neck of the victim, which tallied with that of appellant Prasenjit the prosecution sought to prove that the victim was strangled from behind with the wire and by putting pressure on the neck with foot. Keeping in view the above prosecution evidence, let us see whether the confession is true or not. 16. On perusal of the confessional statement, we find that it contains wealth of unnecessary details which are not relevant for to be a confession it must either admit in terms the offence or substantially all the facts which constitute the offence. In the instant case. Prasenjit bas narrated the fact" relating to the death of Ujjal in the following manner:- "I heard shouts of Tulu Dutta and Bishnu from the bigger room. It appeared to me that they were quarreling. I was in the smaller room where. In the instant case. Prasenjit bas narrated the fact" relating to the death of Ujjal in the following manner:- "I heard shouts of Tulu Dutta and Bishnu from the bigger room. It appeared to me that they were quarreling. I was in the smaller room where. I used to sleep I had a mind to practice 'table' and as such I sat in my room. Thereafter, out of curiosity I went to the bigger room. Going there, I found Bishnu and Tulu Dutta threatening Ujjal Bose. I heard Bishnu telling Ujjal Bose that he should not behave improperly after taking liquor and he should not create any problem otherwise situation would be made exceedingly bad. Tulu Dutta was telling Ujjal Bose that he (Ujjal Bose) had taken lots of money and ornaments from her (Tutu Dutta). Tutu Dutta excitedly asked Ujjal Hose to return all the aforesaid articles to her. Both Tutu Dutta and Bishnu were very excited at that time Ujjat Bose was sitting on the cot by resting against the almirah and looking towards the balcony. Ujjal Bose was heavily drunk; Tulu Dutta had also taken liquor and smell of liquor was coming out of her mouth. It seemed that she had no capacity to do anything........................................................... Tulu Dutta was shaking the head of Ujjal Bose by pulling his hair and Bishnu pulled Ujjdl babu from the khar by catching hold of his hand and made him fall. I was standing behind Bishnu. Bishnu jumped and sat on the chest of Ujjalbabu and pressed his neck very tightly. Masima. I mean Tulu Dutra, pressed the two hands of Ujjal Bose and Bishnu asked me excitedly to press his two legs. Seeing the excited mood of Bishnu I pressed the two legs of Ujjalbabu as asked by him. After a few minutes Bishnu stated 'he is finished, release the legs. I released the legs. 17. From the confessional statement, it thus appears that the death of Ujjal was primarily due to Bishnu's jumping on his chest and putting pressure on his neck with his hands; and Tulu and Prasenjit abetted him by catching hold of Ujjal's hands and legs respectively. 18. I released the legs. 17. From the confessional statement, it thus appears that the death of Ujjal was primarily due to Bishnu's jumping on his chest and putting pressure on his neck with his hands; and Tulu and Prasenjit abetted him by catching hold of Ujjal's hands and legs respectively. 18. The above confession does not at all fit in the backdrop of the prosecution case that the death of Ujjal was primarily due to strangulation by a metallic spring which was primarily from behind and Prasenjit's pressing his leg against his neck. The above two facts are conspicuously absent in the confession; beside Prasenjit claimed to have played a minor role in the death of Ujjal and that too owing to the excited mood of Bishnu. When considered in touch, tone of probability, the confession also does not appear to be true for the simple reason that if Bishnu had jumped and sat on the chest of Ujjal there would have been some injuries on the chest, if not fractures of rib, but there was no suck injury. Then again, if death was caused in the manner stated by Prasenjit there would not be 32 injuries as found 'by the doctor. For the foregoing discussion, we are 'also unable to hold' that the confession is true. 19. Leaving the confession, out of our consideration, let us now see whether the other circumstances alleged against the two appellants have been conclusively proved and if so proved, whether they are incompatible with their innocence. The first circumstance that has been alleged against the two appellants is that on the fateful night they were present in the flat of Tulu, This circumstance was sought to be proved by the prosecution through Krishna Das Gupta (P.W. 9). who is a resident of a first floor flat in the same building. Sm. Das Gupta testified that Bishnu and Bhola, the appellants before us, belonged to their locality and she found them visiting the flat of Tulu Dutta at times. She next stated that the found Bishnu visiting the flat of Tulu Dutta in the night of 3.3.87 at or about 9.30/10:03 PM. According to her on that particular night when her granddaughter was not taking her meals. she found Bishnu entering her house. Then she opened the door and complained to Rishnu that her grand daughter was not taking her meals. According to her on that particular night when her granddaughter was not taking her meals. she found Bishnu entering her house. Then she opened the door and complained to Rishnu that her grand daughter was not taking her meals. On being so told Bishnu asked her to take her meals In cross-examination, the witness stated that Bishnu went upstairs after talking to her and his grand-daughter and she (the witness) was in her room at that time She further stated that the talked with Bishu while standing in the dining space. She admitted that she personally did not see Bishnu entering the flat of Tulu by accompanying him to that fact or otherwise. She also admitted that she had not seen Bhola visiting the flat of Tulu Dutra on any occasion by accompanying him or otherwise. 20. The above admissions of PW. 9 clearly indicate that she did not actually see Bishnu to enter the flat of Tulu Dutta, which is on the third-floor of the building, on that night nor did she see Bhola to go to the flat of Tulu on any occasion. Her evidence, even if it is accepted in its entirety, only proves that Bhola and Bishnu used to come to the building, in which she and Tulu lived, occasionally. Such occasional visit to the building in question does not prove, far less conclusively, that on that particular night they had gone to the flat of, Tulu Dutta. Even if we have accepted his evidence that Bhola was a frequent visitor to the flat of Tulu, still then, we could not have considered it to be an incriminating circumstance for, admittedly, Bhola is the younger brother of Tulu Satta’s son-in-law. As against P.W.8’s evidence that Bishnu was also a frequent visitor, we get from the evidence of Bapi Dey (P.W. 16) a resident of another flat in the second-floor of the same building, that Bishnu visits the flat of one Mr. Dtpal Chatterjee, who. Resides in the first floor of their building. It is of course true that P.W.16 was declared hostile but then in eur considered view, the learned trial Judge was not justified in permitting prosecution to declare him so. Dtpal Chatterjee, who. Resides in the first floor of their building. It is of course true that P.W.16 was declared hostile but then in eur considered view, the learned trial Judge was not justified in permitting prosecution to declare him so. From his examination-in-chief we find that immediately after he had deposed to the facts that he ran a stationary shop and that he knew the accused persons, the prosecution prayed far permission to declare him hostile and the learned Judge gave the permission without considering that the prosecution had not laid any foundation to show the hostility of the witness. It is trite law that before seeking permission to declare a witness hostile, the prosecution must demonstrate either by referring to his statement recorded under s.161 of the Code of Criminal Procedure or otherwise that he was not telling the truth and only then the Court can exercise its judicial discretion in favour of the prosecution. In that view of the matter, we do not find any reason to disbelieve the evidence of P W. 16 that Bishnu was a frequent visitor to. the flat of Utpal Chatterjee. On the conclusions as above we must hold that the prosecution has signally failed to prove that the appellants were in the flat of Tulu Dutta in the fateful night. 21. The next circumstance on which the prosecution has relied is the find of injuries on the persons of the two appellants when they were examined by Dr. P.B. Das on March 6. 1987 at or about 1 PM Dr. Das testified hit Prasenjit @ Bhala had five scrach marks and Anup Biswas @ Bishnu had five scratch marks and three abrasions on their respective, persons. According to the doctor, those injuries could have been caused due to scuffing and nailing, The doctors opined that the injuries found by, him could have been caused more than 48 hours before his examination Relying upon the above evidence the prosecution contended that the appellants sustained the injuries at the time of the incident due to. Scuffle with the deceased. The appellants, however sought to explain away the injuries as having been inflicted by the police while they were in their custody. Scuffle with the deceased. The appellants, however sought to explain away the injuries as having been inflicted by the police while they were in their custody. In view of the respective stands of the parties and in absence, of any cogent reason to disbelieve the doctor, we must hold that on 6.387 the appellants had, on 'their persons, the injuries detailed by the doctor, But then, we have found that the prosecution failed to prove that the two appellants had gone to the flat of Tutu on the fateful night. Mere presence of the injuries cannot lead us to conclude that they must have sustained the injuries in the flat of Tutu at the time Ujjal met with his death. On the contrary, we find that there is substance in the contention of the appellants that they sustained the iujuries while in police custody. 22. As has been already noticed the two appellants were arrested on -March 4, 1987 and were produced in Court by S.I., A.K. Roy (P.W. 56) on March 5, 1987. In his deposition, P. W. 56 stated that he forwarded the three accused persons, including Tulu, to the learned Sub-Divisional Judicial Magistrate, Alipore with a prayer for their medical examination. When cross-examined on this point, he said that he made the prayer on a separate paper on the same day the accused persons were forwarded. He further stated that he got the order of the learned Magistrate for medical examination of the accused persons on his proper on 5.3.37. The above statements made by the witness do not get support from the contemporaneous record. Rather the record proves otherwise. From the order dated March 5, 1987 passed by the learned Magistrate, we find that prayer was made by the Investigating Officer only for taking nail scrapping and finger prints of all the accused persons. The learned Magistrate allowed the said prayer and permitted the Medical Officer of the Police Case Hospital to take nail scrapping of all the three accused persons in the interest of the investigation of the case and also permitted the Investigating Officer to take finger prints of all the accused persons in presence of a learned Judicial Magistrate. There is no reference of any prayer for medical examination of the accused persons far less any order directing such medical examination. There is no reference of any prayer for medical examination of the accused persons far less any order directing such medical examination. It cannot be therefore, said that the prosecution has been able to prove by best and satisfactory evidence that the appellants had injuries on their persons when they were produced before the learned Magistrate. It can be safely presumed, therefore, that they sustained the injuries while they were in police custody. In that view of the matter, we need not consider the further contention of the appellants that the injuries were the result of the police beating, for our inquiry was limited to the question whether the appellants sustained the injuries in the flat of Tulu Dutta and at the time Ujjal Bose was killed there. On the conclusion as above, the above circumstance cannot be said to be an incriminating circumstance pointing towards the guilt of the accused 23. The next Circumstance which the prosecution has relied upon against the appellant Bishnu is the find of blood on the trousers he was' wearing at the time of his arrest on March 4, 1987. This circum-stances cannot be said to be an incriminating one as the report of examination does not indicate that it was human blood, this apart when Bishnu was not asked to explain" the circumstance during his examination under s.313 of the Code of Criminal Procedure, the circumstance could not be used against him. 24. As against prasenjit, the prosecution has also relied upon the find of his finger prints on a wine bottle which was seized from the residence of Tulu. This circumstance has not been relied upon by the learned Judge and in our view rightly-as the Investigating Officer (PW. 56) admitted in cross-examination that the articles seized from the flat of Tulu were taken in a jeep waiting downstairs and that Bhola @ Prasenjit and others had helped him in bringing down those articles from the 3rd floor to the ground floor. Thus the possibility of Prasenjit having handled the particular wine bottle cannot be ruled out. 25. The last circumstance which the prosecution has much relied upon to sustain the charge levelled against Prasenjit is the find of his sole prints on the neck of the deceased. Thus the possibility of Prasenjit having handled the particular wine bottle cannot be ruled out. 25. The last circumstance which the prosecution has much relied upon to sustain the charge levelled against Prasenjit is the find of his sole prints on the neck of the deceased. Even if we accept the evidence adduced by the Expert (P.W.38) in proof of the above circumstance, we cannot lay much emphasis thereupon as the science of sole print is still in a rudimentary stage in the case of Bhulakiram Koiri v. The State reported in 73 CWN page 467, a Division Bench of this Court considered the question, to what extent the evidence of an expert in foot prints and sole prints can be relied upon, in the light of various decisions of the High Courts and that of the Supreme Court in the case of Pritam Singh & anr. v. The State of Punjab. reported in AIR 1956 SC 415 and answered the same as under :- "We hold therefore that it is unsafe to base a conviction on the basis of the expert's evidence a one regarding footprint or sole print. - As considered in the light of the observations made by the various authorities on the subject and in view of the principles laid down in the different cases on the paint the science of footprint or sole print or of track evidence appears to be still in an embryonic stage. It may have traveled beyond the stage of crude empiricism but, has not yet reached the stage of an exact science." 26. In view of the above proposition of law, we cannot lay much importance on the above evidence. 27. On the conclusion as above we cannot but hold that the prosecution his failed to prove its case against the appellants beyond all reasonable doubts. We, therefore, allow the two appeals, acquit the two appellants of the charge under s. 302/34 of the Indian Penal Code and reject the reference made by the learned trial Judge. Let the appellants be set at liberty forthwith. Haridas Das, J. I agree. Both the appeal allowed; appellants acquitted; reference rejected