Judgment 1. THE appellant impugns in the present appeal an order of conviction under Section 302 Indian Penal Code and sentence of death as passed on 19. 7. 191 by the learned Additional Sessions judge, First Court, Burdwan in Sessions Trial No. 46 of 1991 / Sessions Case no. 88 of 1991. The learned Additional Sessions Judge, First Court, Burdwan having passed a death sentence, there has been a reference to this Hon "ble court for confirmation of the death sentence under Section 366 Cr. P. C. The appeal and the death reference case have been heard together. 2. THE prosecution case inter alia is that the appellant was the husband of victim Alpana. On the morning of 29th Bhadra 1393 b. S. corresponding to 15th September, 1986 one Subhas Sardar, the brother of the appellant, ganapati Sardar, found his mother Rajeswari Sardar crying to the effect that alpana was lying dead in the bedroom while Ganapati Sardar was found absent. Subhas Sardar then came to his mother and found that his sister-in-law Alpana was lying dead in the bedroom of (Ganapati Sardar. There were sharp cutting injuries on the neck of Alpana. A blood-stained tangi was found in the room. Subhas reported this matter to Dhirendranath Pradhan, the local gram Pradhan and to other villagers. They came and found the dead-body of alpana in the bedroom of Ganapati Sardar. Ganapati was absent from the house. These neighbours heard from the mother and brother of Ganapati that ganapati slept on the previous night in the same room with Alpana and the children. Under the instruction of Subhas, Dhirendranath Pradhan wrote out a petition and it was submitted at 8. 35 a. m. before S. I., P. N. Mitra of Kaichar outpost who forwarded it through N. V. F. Hyder Ali so as to reach Mangolkote police Station at 4.10 p.m. It led to the initiation of Mangolkote P. S. Case No. 10 dated 15. 9. 86 under Section 302 I. P. C. against the present appellant. In the First Information Report, Subhas Sardar, the brother of the appellant, gave out that his sister-in-law was pregnant for about four months and for that reason his sister-in-law had been repeatedly beaten up by his elder brother Ganapati and she was asked to leave the house. The previous night at about 9 p. m. after taking the night meal. In the First Information Report, Subhas Sardar, the brother of the appellant, gave out that his sister-in-law was pregnant for about four months and for that reason his sister-in-law had been repeatedly beaten up by his elder brother Ganapati and she was asked to leave the house. The previous night at about 9 p. m. after taking the night meal. she slept in her room in the usual course. He did not know what really happened among his elder brother and his sister-in-law. It was his doubt that his elder brother made a plan to kill his sister-in-law previously because every night, there used to be light in their room but on the previous night, there was no light. The elder brother killed his sister-in-law with the help of a sharp tangi and thereafter he fled away. An inquest was held at 10-35 a. m. over the deadbody by S. I. P. N. Mitra attached to the I. C. Kaichar Out post who had his camp at Chaityanapur which continued till 11-45 a. m. In the inquest the dead body of Alpana was identified by Subhas, the brother of the present appellant. The deceased was found lying on a coarse mat made of palm leaves spread cm the floor in the room (east facing. The deceased was leaning towards the right side with her head pointing towards the south-east corner. The deceased's mouth was open and the teeth on the upper jaw was invisible. The deceased had no clothings on her person. The two eyes were open. Injuries of a serious nature were visible near the shoulder of the deceased's right arm, neck and left side of the neck near the collarbone. An injury stretching upto the wind pipe of the deceased's throat was found inflicted by a sharp cutting weapon which brought a major portion of the flesh inside the threat to the view. The portion of the deceased's body from the neck to the breast was found smeared with blood. The deceased was found clad in an old, torn, used yellow coloured petticoat. It came to be known that the deceased had been pregnant for about four months. There was a slashing injury near the left side of the chin. This injury had been inflicted by a sharp cutting weapon. He sent the dead body to the morgue through constable Dibakar Biswas for Post Mortem Examination. It came to be known that the deceased had been pregnant for about four months. There was a slashing injury near the left side of the chin. This injury had been inflicted by a sharp cutting weapon. He sent the dead body to the morgue through constable Dibakar Biswas for Post Mortem Examination. He drew up a sketch map of the place where he found the dead body. He seized the tangi with bamboo handle which allegedly contained human blood which was found just by the side of the dead body in the room. He seized the wearing apparels of the deceased under a seizure list. He also seized one matress, one blood-stained saree and bedding under a seizure list. He examined Subhas Sardar, Smt. Rajeswari Sardar, the mother of Subhas and the present appellant, Smt. Sunity Sardar, Ashoke Sardar, Rakhit Ghosh, Dhirendranath Pradhan and sailendra, Mukherjee under Section 161 Cr. P. C. He resumed investigation on 16. 9. 86 and on that day he also searched for the present appellant but did not get any trace of him. He sent the alamats to Forensic State Laboratory through the Sub-Divisional Judicial Magistrate on 23. 9. 86. On 24th September, 1986 he arrested the present appellant from his house at about 12. 45 p. m. and forwarded the appellant to the court on the following day. He submitted a prayer before the learned Sub-Divisional Judicial Magistrate for recording the statement of the appellant under Section 164 Cr. P. C. He collected the post mortem report and handed over the charge of the investigation of the case to the Officer- in- Charge Mangolkote P. S. on his transfer on 8. 8. 88 from the police Station. 3. AS and when the appellant was brought under arrest by Mangolkote P. S. in connection with the present case, the learned Sub-Divisional Judicial magistrate, Katwa took him into custody. On the prayer of the Investigation officer for recording his confessional statement under Section 164 Cr. P. C., the learned Sub-Divisional Judicial Magistrate, Second Court to record the confessional statement, if any, of the accused under Section 164 Cr. On the prayer of the Investigation officer for recording his confessional statement under Section 164 Cr. P. C., the learned Sub-Divisional Judicial Magistrate, Second Court to record the confessional statement, if any, of the accused under Section 164 Cr. P. C. It is revealed from the order sheet of the court of the learned Magistrate that as and when the present appellant was produced before the Second Judicial magistrate, Sri D. K. Basu and indicated to him his desire to confess, he was given statutory warning in pursuance of provisions under Section 164 Cr. P. C. The learned Magistrate thought it prudent enough to give some time to him to deliberate and make up his mind so as to evade undue influence, if any, and directed to be kept under segregation and to produce the appellant before him on the next day i.e. on 26. 9. 86 for recording his confession, if any. The order sheet further revealed that the appellant was produced before the said judicial Magistrate Sri D. K. Basu on the following day when he was given proper warning as per the provisions of Section 164cr. P. C. On further asking the appellant gave out that he was desirous to confess and accordingly his confession was recorded by the learned Judicial Magistrate and the confessional statement was kept in a sealed cover and was sent with the record. On the same day, as and when the appellant was produced before the learned Sub-Divisional Judicial Magistrate, he was remanded to jail custody. He was ultimately released on bail on 24.12.86. 4. BE that as it may, the post mortem report revealed that there was one incised wound over the anterior aspect of the right shoulder of the size 5"x2" x 1". There was one incised wound of the size 5" x 4" by bone deep (C5 + C6) obliquely placed directed upwards and backwards, cutting all the structures from skin to the bones. The skin margin retracted upwards. There was another incised wound of the size 3"x 2" x 1" just above the left clavicle bone. According to the report of the post mortem doctor the cause of death was due to the injuries which were ante mortem and homicidal in nature. It may be recalled that from the FSL report it was revealed that the blood which was found in the tangi was human blood. According to the report of the post mortem doctor the cause of death was due to the injuries which were ante mortem and homicidal in nature. It may be recalled that from the FSL report it was revealed that the blood which was found in the tangi was human blood. Police on completion of investigation submitted the charge sheet against the appellant under Section 302 I. P. C. on 30. 6. 89. On 20. 3. 91 the learned sub-Divisional Judicial Magistrate, Karwa committed him to the court of session for standing a trial under Section 302 I. P. C. On 28. 3. 91 the court of sessions took cognizance and ultimately by an order dated 3. 4. 91 transferred the case to the Additional Sessions Judge, 1st Court, Burdwan who on 19. 4. 91 framed a charge under Section 302 I. P. C. against the appellant which on being read over and explained to him the appellant pleaded not guilty to the same and claimed a trial. 5. IN the trial as many as 14 witnesses were examined on behalf of the prosecution and none on behalf of the defence. P.W. I. Subhas Sardar, the brother of the present appellant who lodged the First Information Report was declared hostile. His version at the trial was that the appellant was not in the house and he enquired from his mother about the cause of death of his sister-in-law, Alpana but his mother could not throw any light. Neighbours, Dhiren Pradhan and Sailen Mukherjee etc. came to the house of the accused. He then went to the Kaichar Outpost. He disowned having filed any petition at the police station but he admitted his own signature on the petition. According to him police came to his house and took his signature on the petition and on his proving his own signature thereon it was marked Ext. 1/1,he could not say who wrote out the petition. As and when the garments allegedly belonging to his sister-in-law were shown to him he stated that he could not say whether those garment belonged to the deceased sister-in-law. His version was that Ganapati was in the house of his sister at Birbhum but he could not say when Ganapali returned from Birbhum. When the tangi was shown to him he stated that he could not identify the tangi. His version was that Ganapati was in the house of his sister at Birbhum but he could not say when Ganapali returned from Birbhum. When the tangi was shown to him he stated that he could not identify the tangi. He stated in cross-examination by the prosecution that the relation between his eleder brother Ganapati and his sister-in-law, Alpana was quite normal and he denied having stated to police that his elder brother used to assault his sister-in-law Alpana. He could not remember if her stated to police that Ganapati used to ask Alpana to go out of the room. He also could not remember having stated to police that Ganapati retired after taking night meal on the previous night. He could not even say whether his sister-in-law was pregnant at that time. He denied having stated as well that a lamp which used to bum every night in the bedroom of Ganapati but was not burning in the in the room on the fateful night. He denied having stated to police that Ganapati fled away after committing murder of Alpana with a tangi. He denied that Dhiren pradhan and Sailen Mukherjee wrote out a petition as per his instruction and he signed the petition. He denied that he was suppressing the truth to save his elder brother Ganapati. Cross-examined by the defence he even blurted out that the contents of the petition were not read over to him and he was not aware of the contents thereof. 6. P.W. 2 Rajeswari Sardar, the mother of the appellant and P.W. I Subhas sardar, was similarly declared hostile at the trial. She said that her son ganapati was not in the house at the relevant time. Her version was that alpana was indeed murdered but she could not say who murdered Alpana. She denied having called the villagers. She even stated that she was not examined by police. In cross-examination by the Public Prosecutor she stated that Alpana was not pregnant at the time of the incident. She denied having stated to police that Alpana was carrying about four months. She denied having given out to police that the accused entertained doubt over the moral character of Alpana and that Ganapati disowned the father of the child that alpana was bearing. She denied having stated to police that Alpana was carrying about four months. She denied having given out to police that the accused entertained doubt over the moral character of Alpana and that Ganapati disowned the father of the child that alpana was bearing. She denied also having given out to police that Ganapati assaulted Alpana severely about 14 days ago and that on the fateful night alpana and Ganapati slept in the same room with their issues. She volunteered in her cross-examination by the prosecution that Ganapati was not in the house at all. She denied having given out to police that Ganapati quarreled with Alpana on the night of the incident. She even denied having stated to the police that she found a tangi in the bedroom of Alpana and that Ganapati fled away after committing murder of Alpana with that tangi. She also denied the suggestion that she was suppressing truth to save the appellant who was her eldest son. As and when the garment of Alpana were shown she stated that she could not identify those garments. P.W. 3 A shoke Sardar, a co-villager merely deposed that he found the deadbody of Alpana in the bedroom of Ganapati. He identified the dead body of Alpana to police but he could not say how Alpana met with her death. 7. P.W. 4 Smt. Suniti Sardar, wife of P.W. 1 Subhas Sardar deposed that alpana had been murdered but she did not know as to who murdered Alpana. She could not say about the relationship between Alpana and Ganapati. She feigned ignorance about her knowledge about the pregnancy of her sister-in-law alpana. She did not hear anything about the cause of death of Alpana, 8. P.W. 5 Dhirendranath Pradhan, who was the Gram Pradhan at the relevant time knew the appellant who was a co-villager. He deposed inter alia that he saw the deadbody of Alpana in the bedroom of Ganapati at about 7/3 a. m. in the morning of 29th Bhadra 1393 B. S. Her throat was found cut. Subhas Sardar (P.W. 1) informed him that his sister-in-law had been murdered. Getting the information he went to the house of Ganapati and found the deadbody of his wife Alpana. Ganapati was not in the house. Ganapati's mother and brother were present in the house. Subhas Sardar (P.W. 1) informed him that his sister-in-law had been murdered. Getting the information he went to the house of Ganapati and found the deadbody of his wife Alpana. Ganapati was not in the house. Ganapati's mother and brother were present in the house. Some para people namely sridam Mukherjee (not examined), Rakshit Ghosh (P.W. 7) and Naba Ghosh (not examined) were present. He heard from the mother of Ganapati that she found the dead body of the wife of Ganapati in that room. He heard from the mother of Ganapaati that on the previous night Ganapati slept with his wife and their issues but in the morning Ganapati was not found. He did not enter into the room out of fear. He wrote out the [petition according to the instruction of Subhas Sardar (P.W. 1) which did bear also his signature. He also proved the signature of the witnesses on the petition. He asked Subhas to file his petition at Kaichar Outpost. The police brought out a tangi from the room and he saw that tangi. The police seized that tangi in their presence under a seizure list. He proved the seizure list. The police seized some bedding and wearing apparels under a seizure list. He proved the said seizure list as well. He also was present at the time of inquest and he signed on the inquest report. He could not identify the tangi and the garments. In cross-examination he Stated that it was not specifically written in the: FIR that it was so lodged under the instruction of Subhas Sardar. But as a matter of fact he read it over to Subhas. He stated to police that Subhas went to call him. He denied that he did not hear anything from Subhas and his mother. He denied the defence suggestion that the First Information Report was written as per his own will. He further gave out that the accused did not belong to any political party even though he was himself a member of C P-1. (M. He denied that the case had been started on political rivalry. He denied that he did not hear from the mother of Ganapati that Ganapati slept with his wife on the previous night on the same day. (M. He denied that the case had been started on political rivalry. He denied that he did not hear from the mother of Ganapati that Ganapati slept with his wife on the previous night on the same day. P.W. 6 Sailendra Nath Mukherjee and P.W. 7 Rakshit Ghosh were merely tendered by the prosecution for cross-examination by the defence but the defence declined to cross-examine them. 9. P.W. 8 Dibakar Biswas, a constable who at the relevant time was attached to Kaichar Outpost accompanied P.W. 12 Sub-Inspector P. N. Mitra to the locale where he found the dead bcdy of a woman in a room and the local people identified the dead body to be one:of Smt. Alpana Sardar. Sub-Inspector p. N. Mitra investigated over the matter to the presence of local witnesses where he was also present. He took the dead body to Katwa Morgue before the Autopsy surgejon. 10. P.W. 9 Subhas Som, an Assistant Sub-Inspector of police attached to mongalkbte P. S. at the relevant time, testified that at 16. 10 hours he received a written petition forwarded by P.W. 12 P. N. Mitra of Kaichar Outpost through n. V. F Hyder Ali. He filled up a formal First Information Report on the basis of the petition. The formal FIR was marked as exhibit 5 and exhibit 5/1 was the signature of this witness of the formal First Information Report. He started mongalkote P. S. Case No. 10 dated 159. 86 under Section 302 I.P.C. against the present appellant Ganapati on the: basis of the said FIR. P.W. 10 Maitfa, the Officer- in- charge of Regional Forensic State laboratory, Government of West Bengal proved that on 24. 9. 86 while he was at Calcutta office he received one sealed covered cardboard case in connection with Mongalkote P. S. Case No. 10 dated 15. 9. 86 under Section 302 I. P. C. from S. O. J. M., Katwa. He examined the contents of that sealed box. The seal was found intact and the seal impression tallies with the seal affixed to the box. There were six sealed paper packets. He examined the contents of those sealed packets and prepared the report. He proved this report which was marked Ext. 6. He received the Serologist's report which was proved as Ext. 7. He sent the reports to the S. D. J. M., Katwa. There were six sealed paper packets. He examined the contents of those sealed packets and prepared the report. He proved this report which was marked Ext. 6. He received the Serologist's report which was proved as Ext. 7. He sent the reports to the S. D. J. M., Katwa. In cross-examination by the defence he stated that he examined the contents in a scientific way. 11. P.W. II Digambar Mondal, Sub-Inspector of police was the subsequent investigating Officer who completed the investigation on the transfer of P.W. 12 P. N. Mitra. He completed the Case Diary and collected the FSL report and submitted charge-sheet on 30. 6. 89. 12. P.W. 12 Paresh Nath Mitra. the first Investigating Officer after taking up the investigation of the case, held the inquest. He deposed inter alia about the identification of the dead body by P.W. 1 Subhas Sardar by the inmates of the house including P.W. 1. Subhas Sardar. He found cut injury near the throat of the deceased. He drew up a Sektch map showing the place where he found the dead body. He found a tangi with a bamboo handle in the room of the appellant allegedly containing human blood just by the side of the dead body. He seized the tangi in presence of witnesses under a seizure list prepared at the spot. He proved the seizure list. [he also seized the wearing apparel of the deceased Alpana under another seizure list. It was Ext. 4. He also seized one mattress, one blood-stained saree and bedding under a seizure list. He examined P. Ws. 1, 2, 3, 4, 5, 6 and 7 under Section 161 Cr. P. C. He searched for the accused but did not get any trace of him. He resumed investigation on 16.9.86 He ultimately arrested the appellant on 24. 9. 86 at about 12. 45 p. m. and he forwarded the appellant to the court of Sub-Divisional Judicial magistrate on the following day. He submitted a prayer before the S. D. J. M. for recording the statement of the appellant under Section 164 Cr. P. C. He collected the post mortem report. Ultimately on 8.8.88 he handed over charge of investigation to his successor P.W.-11. He submitted a prayer before the S. D. J. M. for recording the statement of the appellant under Section 164 Cr. P. C. He collected the post mortem report. Ultimately on 8.8.88 he handed over charge of investigation to his successor P.W.-11. He deposed inter alia that he examined P.W. 2 Rajeswari Sardar who stated to him about the pregnancy of alpana and the conjugal life of the appellant who denied the responsibility about the pregnancy of Alpana and about the appellant having assaulted alpana about 15 days ago. Be that as it may, the version of P.W. 2 to the said i. O. could not be taken up as evidence in view of the fact that P.W. 2 did not herself own up having given out such a statement to P.W. 12 and we also eliminate such testimony as given out by P.W. 12 from our consideration P.W. 13 Dr. Balai Lal Saha was true post mortem doctor who deposed inter alia that :- 1. One incised wound over the anterior aspect of the right shoulder 5'x2'xl'. 2. One incised wound 5'x4' by bone in between cervical vertebra 5 and cervical vertebra 6. This injury was obliquely placed directed upward and backward cutting all the structures from skin to bone. Skin margins we are found retracted inward. 3. One incised wound 3'x2'xl'just above the left clavicle bone. According to the opinion of the doctor, death was due to the effects of said injuries which were ante-mortem and homicidal in nature. He deposed further that the injuries might be caused by a sharp cutting weapon like tangi and stated that those injuries were sufficient to cause death. The incriminating weapon at the time of trial was found having got rusted but if it was sharpended, then according to his version the type of injuries found on the deceased could be safely attributed to ;as having been caused by the said sharpened weapon, i.e. tangi. 13. P.W. 14 D. K. Basu, the learned Judicial Magistrate before whom the appellant made the judicial confession under Section 164 Cr. P. C. testified to the effect that on 25. 9. 13. P.W. 14 D. K. Basu, the learned Judicial Magistrate before whom the appellant made the judicial confession under Section 164 Cr. P. C. testified to the effect that on 25. 9. 86 when under the order of the learned S. D. J. M. Katwa, the appellant was produced before him for recording his confessional statement, he asked him some questions and since the appellant expressed his willingness to make a confessional statement, he gave him due warning and also gave him sufficient time of reflection. Accordingly he sent the accused to jail custody and gave a direction that he has to be kept under segregation. The jail authority was directed to produce the accused before him when he put some questions again to him and on his expressing his willingness to make a confessional statement, on giving due warning and after keeping him segregated and ensuring that no police officer was present, his confessional under Section 164 Cr. P. C. was recorded in the chamber of P.W. 14 at about 2.10 p.m. He was satisfied that the appellant was not making the statement under any pressure, coercion or undue influence. He recorded his confessional statement in verbatim and he read over and explained the statement to him. He admitted it as correct and put his own signature thereto. At the bottom of the recorded statement he gave a certificate. He proved the confessional statement at Ext. 9 in the case. The signature of the accused appellant was also proved as Ext. 9/2. 14. THE learned Additional Sessions Judge took into consideration five aspects of circumstantial evidence that elicited in the case and came to a finding that taken in conjunction with the judicially recorded confession of the accused, the guilt of the accused appellant was proved beyond reasonable doubt. He found the confessional statement as voluntary and true and that prior to his examination under Section 313 Cr. P.C. it was not retracted. No specific application was filed by the appellant in retracting the confessional statement. Even though there was a belated retraction, it was an after thought and ought not to have been given much weight. Even if there was any minor defect in the recording of the confession the same was a curable one under section 462 Cr. P.C. and under Section 29 of the Evidence Act. Even though there was a belated retraction, it was an after thought and ought not to have been given much weight. Even if there was any minor defect in the recording of the confession the same was a curable one under section 462 Cr. P.C. and under Section 29 of the Evidence Act. As regards the motive for the murder the learned Trial Judge was of the view that there was evidence in the case that Alpana was pregnant at the material point of time and she was carrying for about four months and Ganapati entertained doubt about the paternity of the child in the womb of Alpana and hence there ensued trouble between the couple. However, in the confessional statement the accused appellant gave another fact as motive and he admitted there was frequent quarrel between him and his wife. His wife tried to administer some poisonous medicine on him despite his protest. He bore a grudge against his wife. At least this was evident that the relation between the husband and wife was not at all normal and it supplied a motive for the murder. The defence plea was of alibi even though not taken in a proper manner was rejected as untenable. Considering the circumstantial evidence as a whole the learned trial Judge was of the view that the chain of circumstances was complete and the entire chain ruled out the hypothesis of innocence of the accused and on the other hand led to an irresistible conclusion about his guilt. The confessional statement also strengthened the prosecution case. As regards the sentence the learned Trial Judge was of the view that it was a premeditated cold blooded ghastly murder which was committed at a time when the wile was sleeping with her husband. The murder having taken place with the help of a tangi in a brutal manner and the appellant being a middle aged man of about 38 years, there was no scope for showing any leniency to the accused in imposing the sentence. According to the learned trial judge it was a rarest of the rare type of cases and accused by his conduct has forfeited his right to survive in the society. He was indeed a hazard to the society itself. Accordingly the learned trial judge imposed the death sentence on the appellant ruling out any mitigating or extenuating circumstance. Mr. According to the learned trial judge it was a rarest of the rare type of cases and accused by his conduct has forfeited his right to survive in the society. He was indeed a hazard to the society itself. Accordingly the learned trial judge imposed the death sentence on the appellant ruling out any mitigating or extenuating circumstance. Mr. Balai Chandra Ray, the learned Senior Advocate who was engaged in the matter on behalf of the legal Aid to argue the appeal on behalf of the appellant contended in the first place that there was no legal evidence apart from the confessional statement to connect the appellant with the crime. He cited the decision in Bhugdomal Gangaram vs. the State of Gujarat reported in air 1983 SC 906 = 1983 Criminal Law Journal 1276 for the proposition that P.W. 2 not having testified while she was examined as a witness in support of the prosecution case that the appellant slept with his wife on the previous night and left earlier in the morning after having committed murder of his wife, the evidence of P.W. 5 Dhirendranath Pradhan that he heard from the mother of Ganapati (P.W. 2) that on the previous night Ganapati slept with his wife and their children but in the morning ganapali was not found, could not go into evidence, since such a statement by P.W. 5 was inadmissible unless P.W. 2 herself testified to that effect. Mr. Ray in the next place contended that in appreciating the evidence it is also to be borne in mind that no amount of suspicion constituted legal evidence for sustaining a conviction. 15. IN Yosin Gulam Haider vs. State of Maharashtra reported in AIR 1980 SC 878 a proposition had been laid down that if a witness narrates the entire incident to the Investigating Officer and ultimately resiles having given out the complicity of the accused, such a witness is indeed an unreliable witness. The statement of such a witness before the police could not be used to corroborate the prosecution case about the complicity of the accused or to convict him or such a resiled version. 16. MR. Ray further contended before us that the judicially recorded confession as was proved in the case by P.W. 14, the Judicial Magistrate, Sri. D. K. Basu (Ext. 16. MR. Ray further contended before us that the judicially recorded confession as was proved in the case by P.W. 14, the Judicial Magistrate, Sri. D. K. Basu (Ext. 9) was not admissible in law in view of the pronouncement of our High Court in State us. Prasenjit Tapadar and Anr., reported in 1991 Calcutta criminal Law Repoter (Calcutta) 121 = 1991 (I) Calcutta High Court Notes 331 regard being had to paragraphs 8, 9, 10 and 11 of the said judgment. That was a case where the accused respondents made a confessional statement. The question arose whether the said confessional statements were vlountary and true. In deciding upon the tests which are to be applied in this context for adjudicating the voluntaries of the confessional statement, the said decision discussed the principle of law enunciated in Dabendra Prasad vs. Slate of U. P. reported in AIR 1978 SC 1544 and Kehar Singh vs. State (Delhi Administration) reported in AIR 1988 SC 1883 . In Kehar Singh vs. State (Delhi administration)reported in AIR 1988 SC 1883 the Supreme Court observed as follows:- "on a consideration of the above decisions; it is manifest that if the provisions of Section 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-Section (2) of Section 164 is therefore, mandatory and imperative and non-compliance of it renders the confession inadmissible in evidence. Section 463 (old Section 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-section (2) of section 164 read with section 281 have been complied with. Section 463 (old Section 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-section (2) of section 164 read with section 281 have been complied with. If the Court comes to a finding, that such a compliance had in fact been made the mere omission to record the same in the proper form will not render it inadmissible in evidence and the defect is cured under section 463 (Section 553 of the old Criminal procedure Code) but when there is non-compliance of the mandatory requirement of section 164 (2) Criminal Procedure Code and it comes out in evidence that no such explanation as envisaged in the aforesaid sub-section has been given to the accused by the Magistrate, this substantial defect cannot be cured under section 463 Criminal Procedure Code". In the facts of the case in State vs. Prasenjit Tapadar and Anr., Prasenjit was arrested by the police on 4.3.87 and was forwarded to the learned sub-Divisional Judicial Magistrate, Alipore on 5.3.87. While forwarding him, the Investigating Officer prayed for 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 16.3.87. The Investigating Officer, however, produced Prasenjit before the learned Magistrate on 12.3.87 i.e. 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 another Judicial Magistrate of Alipore, Sri Barua to record the confession. Pursuant thereto Prasenjit was produced before the said judicial Magistrate, Sri Barua on that very day and the said Magistrate after cautioning him adequately, sent him to jail custody with a direction that he would be kept in segregation to enable him to reflect and he was to be produced before him on the following day i. e. on 13. 3. 87 at 3. p. m. In terms of the said direction Prasenjit was produced on 13. 3. 87 and his - 17. IN the case of Dabendra Prasad us. 3. 87 at 3. p. m. In terms of the said direction Prasenjit was produced on 13. 3. 87 and his - 17. IN the case of Dabendra Prasad us. State of U. P. reported in AIR 1978 SC 1544 the Supreme Court rejected the confessional statement made by the accused, as according to it, it suffered from three serious infirmities- (1) there was no contemporaneous record to show that the appellant was actually kept in jail as ordered by Judicial Magistrate, (2) the Judicial Magistrate who recorded the confessional statement of the appellant did not question him as to why he was making the confession and (3) there was also nothing in the statement of the said Magistrate to show that he told the appellant that he would not be remanded to the police lock-up even if he did not confess his guilt. 18. THE Division Bench observed that in the case of Dabendra Prasad Vs. State of U. P. (ibid) the accused was also directed to be kept for one day in jail after he was brought from the police custody and before the confession recorded. The Division Bench held that the requirements of Section 164 Cr. P. C. regarding the recording of confession have thus not been complied with in terms of the judgment of the Supreme Court in the case of Kehar Singhvs. State, (Delhi administration) reported in AIR 1988 SC 1883 and Dabendra Prasad vs. State of U. P. reported in AIR 1978 SC 1544 . Since at least it did suffer from two of the three infirmities pointed out by the Supreme Court in the case of dabendra Prasad vs. State of U. P. the Division Bench accordingly held that even if the confession was held to be voluntary, it must also be established that it was true, before it could form a basis for conviction and for the purpose of dealing with an answer to 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. In doing so the Division bench, however, ultimately concurred with the finding of an acquittal as recorded by the learned Trial Judge. The facts of the present case, however, have a distinctive feature of its own. Here in this case, we find that when on 25. 9. In doing so the Division bench, however, ultimately concurred with the finding of an acquittal as recorded by the learned Trial Judge. The facts of the present case, however, have a distinctive feature of its own. Here in this case, we find that when on 25. 9. 86 the appellant was produced before the learned Sub-Divisional Judicial Magistrate with a prayer by the Investigating Officer for recording the confessional statement of the appellant under Section 164 Cr. P. C. the learned Sub-Divisional Judicial magistrate took him into custody, which means and implies that he was taken in judicial custody and not handed over to police custody. He was forwarded before Sri D. K. Basu, Judicial Magistrate, Second Court, to record his confessional statement if any, and the learned Judicial Magistrate Sri D. K. Basu gave him the due statutory warning under Section 164 Cr. P. C. as would be evident from the order sheet itself. On 25. 9. 86 the learned Judicial magistrate gave him time for reflection and to evade undue influence, he directed the accused appellant to be kept in segregation with a further direction to produce him on the following day. It is indeed true that nowhere in the order sheet we find that he was actually produced from judicial custody on 26. 9. 86 for the purpose of recording the judicial confession. We find specifically from the order sheet that the learned Sub-Divisional Judicial magistrate on 26. 9. 86 after the confession had already been recorded by Sri D.K. Basu, Judicial Magistrate, Second court, directed that the accused was remanded to jail custody. Taken in conjunction with the testimony of P.W. 14 in the trial that the accused was sent to jail custody and he was directed to be kept under segregation and the jail authority was directed to produce him on 26. 9. 86 by his order dated 25. 9. 86 and accordingly on 26. 9. 86 the accused was produced before him, we cannot infer from such circumstances that there was nothing to show that the appellant was actually kept in jail custody as ordered by the Judicial Magistrate. We have perused for ourselves the confessional statement of the accused (Ext. 9), we find from it a candid answer given by the accused appellant that he was wrong and for that reason he was repentant and hence he was pleading guilty. We have perused for ourselves the confessional statement of the accused (Ext. 9), we find from it a candid answer given by the accused appellant that he was wrong and for that reason he was repentant and hence he was pleading guilty. Thus even though the Judicial magistrate recording the confessional statement did not question the accused as to why he was making the confession, the answer was clearly elicited in the recorded version of the judicially recorded confession that having felt remorse and being repentant, he was pleading guilty and he had a strong feeling that he committed a great wrong. 19. THE other question poised in Dabendra Prasad vs. State of U. P. (ibid) was that there was nothing in the statement of the Magistrate to show that he told the accused that he would not be remanded to police lock-up even if he did not confess his guilt. The confessional statement was not preceded by any such question by P.W. 14, Sri D. K. Basu in the present case too. But then the facts in the present case differ from that of Dabendra Prasad vs. Stale of U. P. (ibid)or for the matter of that of that in Stale us Prasenjit Tapadar andanr. (ibid. The accused was taken in judicial custody as would be evident enough form the order dated 25.9.86 as passed by the learned Sub-Divisional Judicial magistrate. He was not produced immediately from police custody and that apart, it was not during a period when the police remand was not over so that the accused appellant might have a feeling that he was to get back to police custody over again. 20. MR. Ray contended further that the questions put to the accused by the learned Judicial Magistrate at the time of recording his confessional statement were insufficient to disabuse the mind of the accused from police influence and there was no satisfaction recorded by the Judicial Magistrate that the accused was brought from the jail and not from the police custody. The testimony of P.W. 14 in the trial itself was good enough on the point that the accused was sent to jail custody and he was directed to be kept under segregation and jail authority was directed to produce him before 'P.W. 14 on 26.9.86 and accordingly on 26. 9. The testimony of P.W. 14 in the trial itself was good enough on the point that the accused was sent to jail custody and he was directed to be kept under segregation and jail authority was directed to produce him before 'P.W. 14 on 26.9.86 and accordingly on 26. 9. 86 he was so produced before him and no police officer was present at the time when he gave him due warning and kept him segregated. He was put some questions and he expressed his willingness to make the confessional statement and accordingly the confessional statement under section 164 Cr. P.C. was recorded in the chamber of the learned Judicial magistrate at about 2.45 p.m. and he was satisfied that the accused was not making the statement under any pressure, coercion or undue influence and he appended the statutory certificate at the bottom of the statement. Regard being had to the entire facts of the present case we have no hesitation to find that the confession as judicially recorded by P.W. 14 was voluntary and true. Mr. Ray appearing for the appellant cautioned us by citing the decision of Chandra Kant Chiman Lal Desai vs. State of Gujarat reported in 1992 (1)Crimes page 232 that a judicially recorded confession alone could not be taken as sufficient to sustain the conviction. In that case the accused made a confession before the Judicial Magistrate but retracted the said confession at the time when he was questioned under Section 313 Cr. P. C. It was held that the confession of accused could not be made the foundation of a conviction and it could only be used in support of the other evidence. In that case the trial court found that the Judicial Magistrate had not taken sufficient precaution before recording confessional statement to ensure that it was voluntary and accordingly passed an order of acquittal and convicted the appellant and the Supreme Court found that the approach of the High Court was erroneous. The High Court thought that the confessional statement was corrobbrated in material particulars but it did not consider and marshal the evidence against the accused first after excluding the confession altogether. It was held in the facts of the said case by the Supreme Court that the prosecution in such circumstances could not be said to have established the charge beyond reasonable doubt. It was held in the facts of the said case by the Supreme Court that the prosecution in such circumstances could not be said to have established the charge beyond reasonable doubt. The Supreme Court in this case followed the acknowledged principle of law in Kashmira Singh vs. State of Madhya Pradesh reported in AIR 1952 SC 159 for the proposition that the confession of an accused person is not evidence in the ordinary sense of the term as defined in Section 3 of the evidence Act and it could not be made the foundation of a conviction and it could only be used in support of the other evidence. The Supreme Court reiterated the principle in Kashmira Singh vs. State of Madhya Pradesh (ibid) that the proper way is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and to see whether, if it could be believed for a conviction to be safely based on it. If it is capable of belief independently of the confession, then of course it is necessary to call the confession in aid. But cases may arise where the Judges are not prepared to act on the other evidence as it stands, even though, if believed, the Judge may call in aid of the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept. We are fully alive to the responsibility cast on us in appreciating the entire chain of circumstantial evidence. In the case of Rahaman vs. Stale of U. P. reported in AIR 1972 SC 110 , it was reiterated that while adjudging the case merely on circumstantial evidence, we are to bear in mind that the circumstances forming the chain of evidence must be conclusively established and even when so established, they must form such a conclusion that it is not only consistent with the guilt but is inconsistent with any other reasonable hypothesis of innocence. The fact that the appellant was concealing himself for a considerable period of time though he must have known that he was wanted by police was not taken as sufficient to prove the conclusive nature of his guilt or of guilty knowledge, since a person may abscond on account of fear of being involved in the offence or for any other ostensible reason. But in the facts of the present case the accused took a false plea of alibi that he was present in the house of his sister on which account, however, no iota of evidence was led in the case on behalf of the appellant to substantiate the same. The murder admittedly took place in his bedroom. It was given out in evidence that the mother and brother of the appellant made statements to police but they resiled from the same and the contradiction was laid bare in the Trial Court when both of them turned hostile. The brother's wife also feigned ignorance in the matter as to how death of his own sister-in-law took place. We agree with the proposition of law propunded by Mr. Ray that without P.W. 2 having owned up having made a statement to P.W. 5 or P.W. 12, investigating Officer, about Ganapati slaying on the previous night with his wife and having slept with her along with the children in the bedroom and being missing from the very morning. But taken in conjunction with the other circumstantial evidence regarding the injuries found on the person of the victim having tallied with the type of injuries expected to be there from a tangy belonging to the accused which was lying just by the side of the dead body and the medical evidence having also established sufficient corroborative support in this regard and the blood as found or the tangy being found to be of human origin, the fact that the dead body was found in the room of Ganapati where the couple used to sleep at night was a strong piece of circumstantial evidence. Ganapati being conspicuously absent on the following morning is very much" there when no tangible evidence have came from the sister or any other relation of Ganapati that he had actually been in the sister's house, the very fact that the neighbors P. Ws. Ganapati being conspicuously absent on the following morning is very much" there when no tangible evidence have came from the sister or any other relation of Ganapati that he had actually been in the sister's house, the very fact that the neighbors P. Ws. 5, 6 and 7 came forthwith after detection of murder to lodge the First Information Report along with P.W. I after having inspected the house of Ganapati all prove the complicity of Ganapati taken in conjunction with the absconsion of the accused and his judicially recorded confession. The retraction of the confession at a belated stage can in no way make the confession of a lesser efficaciousness or value. In Sankdria vs. State of Rajasthan reported in AIR 1978 SC 1248 it was held that if the confession is not retracted at the earliest opportunity, it went to suggest a conclusion about the confession being a voluntary one. The appellant was taken in judicial custody immediately after the confessional statement was recorded on 26.9.86. The trial of the accused commenced in April 1991 and his examination under Section 313 Cr. P.C. took place on 25.6.91. It was only on 25.6.91 that he took the stance to retract the confession as earlier made by him on 26.9.86, almost five years after he chose to record a judicial confession. Therefore, such a retraction only went to suggest that the earliest confession as judicially recorded was indeed voluntary. As to the truth of the confessional statement, we have already come to a clear finding that it fitted in with the entire chain of circumstantial evidence on record, to lead to an irresistible conclusion already found by us on the evidence on record as correctly found and appreciated by us. 21. WE do not, however, think that it is really one of the gravest of the grave cases to warrant a sentence of death. The motive itself as suggested by the prosecution prove the reason that actuated the appellant to get suspicious about the conjugal fidelity of his wife that promoted him to kill his wife. We are of the confirmed opinion that the sentence of imprisonment of life instead would do proper justice to the appellant in the facts of the present case. 22. IN the result we confirm the order of conviction but alter the sentence to imprisonment for life. We are of the confirmed opinion that the sentence of imprisonment of life instead would do proper justice to the appellant in the facts of the present case. 22. IN the result we confirm the order of conviction but alter the sentence to imprisonment for life. We set aside the order of death sentence as passed on the appellant and reject the death reference. Death reference rejected. Appeal allowed in part.