N. K. BATABYAL, NURE ALAM CHOWDHURY ( 1 ) THIS appeal is directed against the Judgment and Order dated 27-1-94 passed by the ld Addl. Sessions Judge, Tamluk, Dist. Midnapur convicting the appellant for an offence under Ss. 302/201 of the I. P. C. and sentencing her to suffer imprisonment for life in Sessions Trial No. 1 (1)/93; arising out of G. R. Case No 492 of 1985. The prosecution case, briefly stated, is that Smt. Jyotsna Mal worked in the house of one Sachin Mondal as a maid-servant. Soon after her arrival in the house, troubles started between Gita Rani, deceased-wife of Sachin Mondal and Smt. Jyotsna Mal, who is the appellant here. On 31st May, 1985, at night, Gita Rani was murdered and her dead-body was thrown into the river Keleghai flowing by the side of Sachin's house. On the following day, the dead-body of Gita Rani Mondal was found floating near the sluice Gate of a canal connected with the river. The further prosecution case is that the appellant made an extra-judicial confession in presence of a large number of persons assembled at the house of Sachin stating that on the night of occurrence, she had killed Gita Rani with a Katari when Gita Rani was sleeping just outside her bed-room and threw her dead body in a gunny bag into the river, Keleghai flowing by the side of the house. She also made a judicial confession to the same effect later on. ( 2 ) CHARGE under Ss. 302/201, I. P. C. was framed against the appellant. The appellant pleaded not guilty to the charge. ( 3 ) THE learned Trial Judge has found the appellant guilty of committing the offence under Ss. 302/201 of I. P. C. and has convicted and sentenced her to suffer imprisonment for life for commission of an offence under S. 302 of I. P. C. and to undergo rigorous imprisonment for seven years for the commission of an offence under S. 201, I. P. C. subject to the provisions of S. 428. Cr. P. C. Both the sentences are to run concurrently. ( 4 ) BEING aggrieved by and dissatisfied with the Judgment and Order of conviction and sentences passed by the ld. Addl. Sessions Judge, the appellant has preferred this appeal. The learned advocate for the appellant and the learned State advocate have been heard at length. Cr. P. C. Both the sentences are to run concurrently. ( 4 ) BEING aggrieved by and dissatisfied with the Judgment and Order of conviction and sentences passed by the ld. Addl. Sessions Judge, the appellant has preferred this appeal. The learned advocate for the appellant and the learned State advocate have been heard at length. ( 5 ) THE special feature of the case is that there is no direct evidence of the perpetration of the offence. The only evidence forth-coming is extra-judicial confession of the appellant, judicial confession recorded by a competent Magistrate under S. 164, Cr. P C. and circumstantial evidence. The learned advocate for the appellant has drawn the attention of the Court to the discrepancies in the deposition of the prosecution witnesses as also to the fact that the learned Judge has failed to appreciate the oral evidence properly, that the learned Magistrate recording the statement under S. 164, Cr. P. C. did not specifically ask the appellant what prompted her to make the confessiona1 statement and that the learned Magistrate did not ascertain before recording the statement whether any Police Officer met the appellant when she was brought from the Jail custody and produced before the learned Magistrate immediately before the recording of her statement under S. 164, Cr. P. C. and that the learned Trial Judge did not consider other material circumstances of the case and failed to examine the appellant properly under S. 313, Cr. P. C. The learned State advocate has submitted that there is no substance in the contention of the learned advocate for the appellant and that there is no infirmity in the impugned judgment. ( 6 ) FROM the evidence on record, it transpires that Sachin Mondal, husband of deceased Gita Rani is a man of modest means and runs a village grocery-shop. There is only one bed room in his house where Sachin and Gita Rani with children as also the appellant who was an adult at the material time slept at night. On the night of occurrence, i. e. 31st May, 1985, the daughters of Sachin and the appellant were sleeping inside the room and as it was a hot summer night, so Gita Rani was sleeping on a mat on the Verandah just outside the bed-room. Sachin was not present in the house up to the time of occurrence that night. On the night of occurrence, i. e. 31st May, 1985, the daughters of Sachin and the appellant were sleeping inside the room and as it was a hot summer night, so Gita Rani was sleeping on a mat on the Verandah just outside the bed-room. Sachin was not present in the house up to the time of occurrence that night. He had to attend a Salish meeting in another village after closing his shop in the evening. An F. I. R. was lodged by Dulal Mallick (PW-1) brother of deceased-Gita Rani. The written F. I. R. has been marked Ext. 1/1; it was received at the P. S. on 1-6-85 at 22. 05 hrs. and on the basis of the said FIR, Mayna P. S. Case No. 1, D/- 1-6-85 under S. 302/201 and S. 34, I. P. C. was started (Ext. 1/3 ). Dulal Mallick (PW-1) was informed by a co-villager, Bishnupada Mondal on the night of occurrence that his sister Gita Rani was missing. He is a resident of village-Chandibenia. P. S. Mayna, not far away from the house of Sachin. On getting the information, he rushed to the house of his sister at Baruna. On reaching there, he found many persons were already assembled here and there. He also saw one Chatai and one mat which were already washed kept there along with a Katari. He also found stains of blood on the Chatai and the mat and the spot where Gita Rani was reportedly sleeping that night. He also found the appellant. Jyotsna Mondal was there along with many other persons including Bharati, daughter of Gita Rani (PW-3), Bimala, sister of Sachin (PW-5) a resident of the same village. That night, in the presence of PW-1 and others who gathered there, appellant Jyotsna confessed that she had killed Gita. Rani with a Katari while Gita was sleeping. She further stated that she packed her dead body in a gunny bag and threw the same into the Keleghai river. The appellant also brought out the instrument of murder i. e. Katari (marked Material Ext. 1) from the thatched roof of Sachin Mondal's house. P. W. 1 saw that the Katari was washed with water but still it contained bloodstains. Next morning at about 8. 00 a. m. , PW-1 along with the others went to the river side and found the dead-body. 1) from the thatched roof of Sachin Mondal's house. P. W. 1 saw that the Katari was washed with water but still it contained bloodstains. Next morning at about 8. 00 a. m. , PW-1 along with the others went to the river side and found the dead-body. After the recovery of the dead-body from the bridge at Giridhari, PW-1 went to Mayna P. S. and lodged a complaint there. This witness has stated in the cross-examination that he has no knowledge, whether Jyotsna had any illicit relation with Sachin but he had reason to suspect that Sachin was also involved in the matter. The place where the dead-body was recovered floating into the water was about two miles away from Sachin's house. The witness has strongly denied the suggestion put in cross-examination that appellant-Jyotsna did not make any extra-judicial confession in his presence. ( 7 ) A main part of the prosecution story about extra judicial confession finds corroboration from the deposition of PW-2 (Abinash Mondal), PW-3 (Bharati), PW-4 (Gayaram), PW-5 (Bimala), PW-6 (Kalikinkar), PW-7 (Sirish ). PW-8 (Kanchanbala) and PW-10 (Satish ). Abinash ( PW-2) is a man of Village-Baruni living in the same Bastu with Sachin. He was present at the Salish meeting along with Sachin and others. Sachin left the meeting few minutes before Abinash. When Abinash was returning on foot from the venue of the Salish meeting with Bonomali (not examined), Bomkesh (not examined), and Dinankar (not examined), then PW-2 heard the shouts of Binode Tati (husband of PW-5 ). They came to the Sachin's house and saw Bharati (PW-3) weeping and saying her mother, Gita Rani was missing. Then Sachin, Abinash Bonomali, Bomkesh and Dipankar went out in search of the missing person. The appellant Jyotsna was also present there. After sometime, those persons again came there and in the mean time Gayaram (PW-4) and Bankim, Member of Gram Panchayat came there. On enquiry by Bankim appellant-Jyotsna confessed that she had killed Gita Rani with a Daoli (Katari), when she was sleeping just outside the bed-room on a mat spread over a Chatai (Mat and Chatai marked collectively Mat. Ext. 1 ). Jyotsna also confessed that she put the dead-body in a gunny bag and threw it in Keleghai river flowing by the side of Sachin's house. Jyotsna also produced the Katari from the thatched roof of Sachin's house. Ext. 1 ). Jyotsna also confessed that she put the dead-body in a gunny bag and threw it in Keleghai river flowing by the side of Sachin's house. Jyotsna also produced the Katari from the thatched roof of Sachin's house. The Katari has been marked material Ext. 1 collectively. The Chatai, the Mat and the Katari were washed but still there were bloodstains visible of those articles. In cross-examination PW-2 has stated that the distance of the river from the house of Sachin is about 100 cubits with an embankment in between. He has also stated that Gita Rani was taller and heavier than Jyotsna. ( 8 ) REGARDING the confessional part of the story, Bharati (PW-3), who at the material time was about 15 years old, has stated more or less the same thing. ( 9 ) GAYARAM (PW-4) in 1985, was the Upa-Pradhan of Bagcha G. P. under which Baruni is a village. Obviously, he was an important man of the area at the material time. He came to the house of Sachin at about 0. 02 or 0. 03 hrs. at night, hearing about missing Gita Rani. Reaching there, he saw previous Upa-Pradhan-Bankim Patra (not examined), Dipak, Bonomali, Bomkesh and the accused Jyotsna. Gayaram enquired of Jyotsna about Gita Rani. The appellant confessed that she had killed Gita Rani with a Katari. She also confessed that she put the dead-body in a bag and threw it into the river Keleghai. Jyotsna also produced the Katari from the roof of Sachin's house. PW-4 has almost repeated everything regarding extra-Judicial confession, in the same manner in which PW-2 has stated. Bimla (PW-5) is the sister of Abinash (PW-2) and wife of Binode Tati. Her house is close to the house of Sachin. On the night of occurrence, Bharati (PW-3), and Jyotsna went to her house to enquire about missing Gita Rani. PW-5 said that she had got no information about Gita Rani. Then, PW-3 and Jyotsna left the place. After sometime, PW 5 heard a hue and cry coming from the side of Sachin's house. She at once went there and saw Gayaram (PW- 4), Bankim, Abinash and Sachin were present there. Gayaram and Bankim asked Jyotsna about missing Gita Rani. The appellant confessed that she had killed Gita Rani with a Katari and threw the dead body in a bag into the river Keleghai. She at once went there and saw Gayaram (PW- 4), Bankim, Abinash and Sachin were present there. Gayaram and Bankim asked Jyotsna about missing Gita Rani. The appellant confessed that she had killed Gita Rani with a Katari and threw the dead body in a bag into the river Keleghai. Thc appellant also produced the Katari from the thatched roof of Sachin's house. This witness repeated almost in the same way in which PW-2 and 4 have stated about the confessional part. ( 10 ) KALIKINKAR (PW-6) is a man of village-Chandibenia adjacent to village-Baruni within Bagcha Gram Panchayat. The Satish took place at his house over puja accounts and over partition of property of Satish Mondal (PW-10) and his brothers. Sachin was present in the Salish meeting. The meeting started at about 8. 00 p. m. and ended at about 11. 00 p. m. Satish Mondal (PW-10), Panchanan Mondal (not examined), Sachin Mondal, Abinash (PW-2), Bonomali (not examined), Sirish Mondal (PW-7) and others were present there. After the meeting was over at about mid-night, PW-6 was informed about missing Gita Rani by his nephews. Then, PW-6 with Satish Mondal (PW-10), Ramchandra (not examined), Bishnupada (not examined) and others went to Sachin's house where Gayaram (PW-4) and Bankim Patra (not examined) were present. He also saw appellant Jyotsna there. On being questioned by Gayaram and Bomkesh, the appellant-Jyotsna confessed that she committed the murder with a Katari and threw the dead body in a bag into the river Keleghai. PW-6 has described the confessional part of the story in the same way in which PW-2 and PW-5 were described the same. ( 11 ) PW-7, Sirish of Village-Chandibenia is a cousin of Kalikinkar (PW-6 ). He has stated that at about 1. 30 hrs. on the date of occurrence at night, he along with Kalikinkar, Satish (PW-10) and Ramchandra (not examined) went to the house of Sachin. On reaching there, he saw many persons including the daughters of Sachin. The appellant-Jyotsna confessed that she murdered Gita Rani with a Katari. She also produced a Katari from the roof of Sachin's house. This witness has almost repeated verbatim, the part of prosecution story regarding extra-judicial confession in the same way as the witnessed mentioned above. ( 12 ) SMT. Kanchanbala (PW-10) is the wife of Abinash. She went to the house of Sachin on hearing a hue and cry at mid-night. She also produced a Katari from the roof of Sachin's house. This witness has almost repeated verbatim, the part of prosecution story regarding extra-judicial confession in the same way as the witnessed mentioned above. ( 12 ) SMT. Kanchanbala (PW-10) is the wife of Abinash. She went to the house of Sachin on hearing a hue and cry at mid-night. She saw about 50-60 persons there including the appellant-Jyotsna. Bankim and another persons enquired of Jyotsna about Gita Rani. Jyotsna confessed that she committed the murder with a Katari. She also produced the Katari. ( 13 ) SATISH Mondal (PW-10) is a resident of Village Chandibenia. Sachin is his nephew by relation. On the night of occurrence at about midnight, he got the information about missing of Gita Rani from Dipak, Bonomali, etc. Satish with Sirish (PW 7), Kalipada, Ram Mondal, Niranjan, Panchanan reached Sachin's house. He saw Gayaram (PW-4) and Bankim and many other persons including the appellant-Jyotsna there. PW-10 heard that on being interrogated Jyotsna confessed that she had murdered Gita Rani with a Daoli etc. Thus, it is clear that PW-10 was not present when the alleged extra-judicial confession was made. So far as, a confessional part is concerned, PW-10 is a hearsay witness. ( 14 ) IT may he pointed out that in cross-examination of all the witnesses who came to the Court before the learned Court regarding the extra-judicial confession of the appellant, suggestions were put that the appellant did not make any extra-judicial confession. The suggestions were denied by the witnesses one and all. In the examination of the appellant under S. 313, Cr. P. C. about the extra-judicial confession, the appellant has claimed that she is innocent. She has also stated that she did not produce the Katari or the Chatai and the mat. She has also stated that she had been encircled by all and assaulted by them. ( 15 ) THE attention of the Court has been drawn to a very significant line in the deposition of PW-4 (Gayaram) which is the last but one sentence in the examination-in-chief of PW-4. In this sentence, PW-4 stated that early in the following morning he sent a letter to the O. C. of Mayna P. S. through Bankim Patra informing him about the incident. It appears from the cross-examination of S. I. , Mr. In this sentence, PW-4 stated that early in the following morning he sent a letter to the O. C. of Mayna P. S. through Bankim Patra informing him about the incident. It appears from the cross-examination of S. I. , Mr. K. G. Bose ( PW- 13) that on 17-6-93 that one G. D. was lodged on 1-6-85 at 8. 15 hrs. in the morning. The Carbon copy of the said Mayna P. S. , G. D. Entry No. 11, D/- 1-6-85 has been marked as Exhibit-10. In the said G. D. Entry at the, instance of Bankim Patra, the name of the murderer was not mentioned. But Ext.-10 is not with the Exhibit file, though it was REFERRED TO as a last item in the lists of Exhibits. It may be noted that in this connection a carbon copy of the original G. D. Entry was marked as Ext. (sic) without any explanation why the original G. D. Entry was not brought; therefore, the carbon copy could not be legally made an exhibit of the case. However, the existence of the G. D. Entry at the instance of Bankim Patra was admitted. Within the four corners of the prosecution case, there is no mention why the letter which was sent by PW-4 in the morning of 1-6-85 to the O. C. of Mayna P. S. about the incident has not been produced. The same was sent through Bankim Patra who was the Ex-Upa-Pradhan of the Anchal. The said Bankim Patra has not been examined in this case as a witness. There is no explanation why Bankim Patra was not available for examination as a witness. ( 16 ) THE prosecution side, in order to buttress the story of extra judicial confession has also heavily relied upon the judicial confession recorded under S. 164, Cr. P. C. by the Judicial Magistrate of Tamluk who has been examined as PW-11. It appears from the deposition of this witness that at the time of the recording of the statement of the accused in the Chamber of the Judicial Magistrate, no one excepting the accused and the Judicial Magistrate was present. The statement recorded under S. 164, Cr. P. C. has been marked Ext. 4. Usual routine warnings were given by the Judicial Magistrate to the confessing accused. The statement recorded under S. 164, Cr. P. C. has been marked Ext. 4. Usual routine warnings were given by the Judicial Magistrate to the confessing accused. The Magistrate was convinced that the accused made the statement voluntarily which was not a tutored statement. She has stated before the Judicial Magistrate that on the night of occurrence at about 10. 00 to 10. 30 p. m. when Gita Rani, the first wife of Sachin was sleeping then she struck her with a Katari on her head near the left ear. Thereafter, she threw the dead-body of Gita Rani in the river Keleghai. That night, her husband Sachin was not in the house. She also stated that she had struck Gita Rani thrice with the Katari. ( 17 ) THE post-mortem examination of Gita Rani had been marked as Ext. 5. The Doctor holding the P. M. Examination has been examined as PW-12 (Dr. Monhas Chakraborty ). The Doctor has found the following injuries :1. "lacerated wound 4"-3" on left side of head and left cheek with missing (sic) of left ear-pinna and exposing underlying bones, i. e. zygomatic bone, left temporal bone and left maxilla. 2. Lacerated wound 2"-1" on lateral side of left eye, deep upto bone and eye-ball. 3. Lacerated wound, 2"-1" deep on medial aspect of right elbow. 4. Lacerated wound 4"-3" muscle deep over right with missing of nipple of visceras decomposed. Stomach contents 1/2-4oz, fluid with undigested rice. Uterus-Small, empty. Bladder-Empty. Fractures in left temporal bone and left parietal bone. As desired by Police the sample of blood was preserved in a glass vial and sealed and labelled. Death - In my opinion, was due to shock and haemorrhage from multiple injuries as described above, ante-mortem and homicidal in nature caused by sharp-cutting heavy weapon like Katari, etc. ( 18 ) THE dead-body was identified to the Doctor by C-484 Nabahari Ghosh of Mayna P. S. ( 19 ) THE doctor in cross-examination has stated that if a body is dragged over an uneven surface, bruises and abrasions over the body are expected. The doctor has also stated that it might be that due to injury No. 1, the victim died instantaneously. But he cannot say which injury was inflicted first. ( 20 ) IN her examination under S. 164, Cr. The doctor has also stated that it might be that due to injury No. 1, the victim died instantaneously. But he cannot say which injury was inflicted first. ( 20 ) IN her examination under S. 164, Cr. P. C. about the confessional statement made by her before thc learned Judicial Magistrate, Tamluk, thc appellant has stated that for fear of Police, she stated to the Judicial Magistrate as tutored by them. She did not disclose it to- the Judicial Magistrate as she was threatened with assault and imprisonment. It is very interesting to note that no suggestion was put to the Investigating Officer in cross-examination that the appellant was compelled to make the judicial confession before the learned Judicial Magistrate as she was threatened with assault and imprisonment. From the F. S. L. report marked Ext. 8/1, it appears that blood was detected in the contents of items No. A, B, C, D, E, F and I as mentioned in Exhibit-8. No blood could be detected on the Sari marked Ext. 'j'. From the report of the Serologist (Ext. 9), it appears that the blood group of the stains on items C, D, E, F, H, J and K of Exhibit-8 were disintegrated and that the groups could not be determined. The blood group of items A and B of Ext. 8 could not be determined as the blood wasnot sufficient for test. But it was found that items No. A and B were stained with human blood. But the blood marks on the other items could not be determined. ( 21 ) THE central and most vital question in this case is whether in the facts and circumstances of the case, the prosecution story can be relied upon for coming to a decision that the appellant committed the crime as alleged. Admittedly, there is no direct evidence linking the appellant with the crime except the extra-judicial confession and the judicial confession recorded under S. 164, Cr. P. C. The learned advocate for the appellant has submitted that in the facts and circumstances of the case, the prosecution version should not be accepted as there is no independent corroboration of any part of the prosecution story. P. C. The learned advocate for the appellant has submitted that in the facts and circumstances of the case, the prosecution version should not be accepted as there is no independent corroboration of any part of the prosecution story. The learned State advocate has, in this connection, submitted that it is neither a rule of law nor of a prudence that evidence furnished by extra-judicial confession cannot be relied upon unless corroborated by some other credible evidence. In this connection, the learned State advocate has relied upon the principles laid down in State of U. P. v. M. K. Anthony; A1r 1985 SC 48 : (1985 Cri LJ 493 ). In that case, their Lordships have held that there is neither any Rule of law nor of prudence that evidence furnished by extra-judicial confession cannot be relied upon unless corroborated by some other credible evidence. The Courts have considered the evidence of extra-judicial confession a weak piece of evidence. If the evidence about extra-judicial confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused and in respect of whom, nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused, the words deposed to by the witnesses are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, if it passes the test, the extra-judicial confession can be accepted and can be the basis of conviction. In such a situation, (sic) in search of corroboration itself tends to cast a shadow of doubt over the evidence. If the evidence of extra-judicial confession is reliable, trustworthy and beyond reproach, the same can be relied upon and a conviction can be founded thereon. ( 22 ) THE learned Advocate for the appellant does not dispute the legal proposition upon which the learned State advocate relied but his contention is that basically the story of extra-judicial confession has to pass the test of credibility. According to the learned advocate for the appellant, the prosecution story has not been able to pass the test of credibility. According to the learned advocate for the appellant, the prosecution story has not been able to pass the test of credibility. ( 23 ) THE learned advocate for the appellant has in this connection, REFERRED TO the principles laid down in Herombo-Brahmbo v. The State of Assam, 1983 Cri LJ 149 : AIR 1982 SC 1595 . In that case, it was held that extra-judicial confession to afford a piece of reliable evidence must pass the test of reproduction of exact words, the reason or motive for confession and person selected in whom confidence is reposed. In that case, it was claimed that the accused person made confession to an under-trial prisoner in Jail awaiting trial for dacoity and the High Court accepted the evidence of extra-judicial confession without examining the credentials of the witnesses and ascertaining the words used. Held, that the evidence of extra judicial confession was unworthy of belief and it cannot be taken in to corroborate any other evidence. ( 24 ) THE other case which is relied upon by the learned advocate for the appellant is Nikunja Roy v. The State, 1992 C Cri LR (Cal) 366. In that case, on the night of occurrence, one Mono Ranjan Biawaa was in the company of one Gopal for sometime at about 7. 00 p. m. Shortly, after that. some villagers heard the sound of screaming coming from the direction of Nikunja's house. Some of the villagers wanted to go to the house of Nikunja but Amal waiting outside obstructed them. Not finding his son, father of Monoranjan went out in search of him but could not find him out. An F. I. R. was lodged on the basis of which Nikunja was arrested and according to prosecution, Nikunja pointed out the spot wherefrom the deadbody of Monoranjan was recovered. On these facts, the appellant Nikunja and another accused Amal were tried by the learned Addl. Sessions Judge, Alipore while the other accused Amal was acquitted. Appellant Nikunja was convicted under S. 302. I. P. C. Being aggrieved by this conviction, Nikunja preferred an appeal before the High Court which was heard by a Division Bench. The two learned Judges of the Division Bench having differed the matter was REFERRED TO the Third Judge. Sessions Judge, Alipore while the other accused Amal was acquitted. Appellant Nikunja was convicted under S. 302. I. P. C. Being aggrieved by this conviction, Nikunja preferred an appeal before the High Court which was heard by a Division Bench. The two learned Judges of the Division Bench having differed the matter was REFERRED TO the Third Judge. It was the contention of the appellant that the facts and circumstantial evidence upon which the conviction was based, were not reliable evidence to bring home the charge to the appellant. Held, when it is found that the Magistrate recording the confessional statement did not put any question as to why the accused is making confessional statement, when the accused was not asked that he would not be sent to the Police custody, even if he did not confess and the Magistrate himself was not available for giving the light us to whether all the precautions were taken before obtaining the confessional statement, no reliance can be placed on such confessional statement. The extra-judicial confession made before the Police Officer and in Police custody has to be ignored, being hit by Sections 25 and 26 of the Evidence Act. ( 25 ) XXX XXX XXX ( 26 ) THE learned advocate for the appellant has emphasized upon the fact that in this case the learned Magistrate did not ask the accused why she was making a confessional statement. Therefore, no reliance can be placed upon the confessional statements. ( 27 ) FROM a perusal of the decisions cited by learned lawyers of both the sides, it is clear that the general principles of law regarding extra judicial confession as laid down in M. K. Anthony's case (supra) provide the guidelines for acceptance of the extra-judicial confession in Court. From the proposition as laid down by the Lordships in that case, it is clear that Courts have considered the evidence of extra-judicial confession as a weak piece of evidence. Before evidence in this behalf, is accepted, it must be established by cogent evidence, what were the exact words used by the accused. There is no Rule that it cannot be acted upon unless corroborated. But before accepting the extra-judicial confession us reliable evidence, the Court has to sift the evidence very carefully in the light of the observations made in the said decision. There is no Rule that it cannot be acted upon unless corroborated. But before accepting the extra-judicial confession us reliable evidence, the Court has to sift the evidence very carefully in the light of the observations made in the said decision. Ultimately, the evidence has to pass a rigorous test on the touchstone of credibility. This general principle is acting as the under-current to the decisions cited by the learned advocate for the appellant. Therefore, all the decisions cited in this case, point to the fact that though corroboration of the extra-judicial confession is not essentially necessary, still the whole gamut of the evidence will have to pass through the rigorous test of credibility. ( 28 ) IT is not disputed that the exact words used by the appellant making the extra-judicial confession have not been quoted by the prosecution witnesses examined on the point. Moreover, there is a big question-mark about the G. D. Entry No. 11, dated 1-6-85 over the incident lodged by Bankim Patra, who was not examined as a witness and in which the name of the offender was not mentioned. There is also a mystery about the non-production of the letter sent by Gayaram (PW-4) to the O. C. , Mayna P. S. in the early morning of 1-6-85 through Bankim Patra, Ex-Upa-Pradhan of Bagcha Anchal, in which Gayaram narrated the entire incident. There is no explanation at all about the non-production of the GD Entry and of the letter. The attention of the learned trial Judge was also drawn to this aspect of the case. But the learned Judge by a queer argument explained away the laches on the part of the prosecution on this point. The relevant portion of the judgment is quoted below (vide page. . . paragraph-7 of the paper-book) :"this Court feels that the letter alleged to have been sent by Gayaram Mondal should be perused and direction was given to Mayna P. S. and other Police authorities concerned to produce the said letter before this Court but it was not produced. It is extremely unfortunate that though this Court directed to Police authorities including D. I. G. of Midnapur, let the Court know the reason for failure to produce the said document, if it could not be produced, the said direction was not complied with. It is extremely unfortunate that though this Court directed to Police authorities including D. I. G. of Midnapur, let the Court know the reason for failure to produce the said document, if it could not be produced, the said direction was not complied with. If the prosecution and the police do not properly co-operate with the Court, it becomes extremely difficult to adjudicate upon the litigations properly and effectively. However, I am to take a decision on the contention of the learned lawyer for the accused without the said letter. From what is written in the G. D. Entry (Ext. 10), it clearly appeared that the name of the alleged-murder of Gita Rani, wife of Sachin Mondal was not intimated to the P. S. Mayna. So, reasonably a question arises us to why the name was not disclosed to the P. S. , if the accused Jyotsna made the alleged extra-judicial confession in presence of the witnesses in the previous night. The said omission could be explained by P. W. 4 Gayaram Mondal. But, I find that the accused did not make any attempt to seek clarification from the said witness nor was any question put that he did not mention the name of the accused Jyotsna while sending the information to the P. S. Mayna. In this connection, I like to observe that it is not expected from the rustic village people that they will take every precaution while sending the information. The said G. D. Entry contained the mere information about the murder of Gita and so, in my humble opinion, it cannot be treated as an FIR of this case. " ( 29 ) IN a criminal case, the onus is always upon the prosecution and the accused person is always presumed to be innocent, except in rare cases, where the right of private defence is taken up. The learned Sessions Judge has committed a blatant error by throwing the onus upon the shoulder of the accused for seeking a clarification from the witness, P. W. 4. Even if not a single question was asked in cross-examination of P. W. 4, it was the duty of the prosecution to give the clarification as mentioned by the learned Sessions Judge. We have got it in the evidence that Bankim Patra was present when the extra-judicial confession was made by the appellant in presence of Gayaram and another. Even if not a single question was asked in cross-examination of P. W. 4, it was the duty of the prosecution to give the clarification as mentioned by the learned Sessions Judge. We have got it in the evidence that Bankim Patra was present when the extra-judicial confession was made by the appellant in presence of Gayaram and another. Bankim Patra was Upa-Pradhan of the Panchayat immediately before Gayaram. He has not been examined in the case as a witness and no explanation has been given therefor. If he lodged a G. D. Entry, then it is expected that, in fairness of things, he would disclose the entire thing including the extra-judicial confession. The same thing can be said about the mysterious letter written by Gayaram (P. W. 4) addressed to the O. C. of Mayna P. S. in the early morning of 1-6-85. The non-production of the letter or of the G. D. Entry (production of carbon copy of the G. D. Entry without any explanation for the production of the original one is not production of the original document as mentioned above) without any satisfactory explanation though enjoined upon by the Court raises the presumption that had this document been produced then the same would go against the prosecution case. The learned Sessions Judge has signally failed to appreciate the legal position on this point. ( 30 ) THERE is another vital circumstance which is going against the probability of the prosecution case. From the deposition of P. W. 2 Abinash, it has transpired that Gita Rani was taller and heavier than Jyotsna. In the P. M. examination, the age of Gita Rani has been given as about 25 years. The age of the accused appellant was about 20 years at the material time. From the sketch map marked Ext. 7, it appears that river Keleghai lies to the south of the house of Sachin Mondal. The distance between the house and river according to the P. W. 2 is about 100 cubits with an embankment in the middle. The height of the embankment is about 7-8 cubits from the ground level where paddy is grown. The embankment is about 10-15 ft. wide. Watery portion of the river is beyond the paddy field of the embankment and at a distance of about 40-50 cubits. The height of the embankment is about 7-8 cubits from the ground level where paddy is grown. The embankment is about 10-15 ft. wide. Watery portion of the river is beyond the paddy field of the embankment and at a distance of about 40-50 cubits. This has been mentioned by Tarun Khutia (P. W. 9) who lifted the deadbody from the canal along with Dulal (P. W. 1 ). This measurement is given in the cross-examination of Tarun Khutia. Therefore, we have to think the scenario where the heavy dead body of a taller and heavier woman was carried by the appellant to a distance of about 100 cubits at midnight after crossing an embankment of about 11 or 12 ft. height and going through an agricultural field to reach the watery portion of the river. There is no evidence that the dead-body was dragged along the ground otherwise there would be scratch marks on the dead-body which could be detected by the Autopsy Surgeon (P. W. 12 ). There is no doubt that in this case, the murder was committed not for monetary gain. Whatever the purpose for which the murder was committed is wrapped up in mystery. It is true that the deadbody was not dragged from the place of murder to the river. It must have been lifted and carried to the river side. Under the ordinary circumstances, it was not possible for a woman of 18-20 years to carry the dead-body of a taller and heavier person like Gita Rani through agricultural field at night and crossing an embankment of about 12 ft. and crossing a distance of about 100 cubits. The story of carriage of the dead-body as given by the prosecution side is not free from suspicion. This part of the prosecution story has not been proved beyond reasonable doubt. ( 31 ) IT is interesting to note that all the witnesses on the prosecution side coming to depose regarding the extra-judicial confession have denied in one voice that there was any illicit relation between Sachin Mondal and Jyotsna Mal. But, from the cross-examination of the I. O. P. W. 13, it appears that these witnesses stated otherwise about the relationship between Sachin and Jyotsna. The version given by the witnesses in Court on the point is a subsequent development. But, from the cross-examination of the I. O. P. W. 13, it appears that these witnesses stated otherwise about the relationship between Sachin and Jyotsna. The version given by the witnesses in Court on the point is a subsequent development. ( 32 ) IN this context, the Court has to judge the judicial confession recorded under Section 164, Cr. P. C. It appears from the confessional statement recorded under Section 164, Cr. P. C. and the deposition of Mr. Monhas Judicial Magistrate (P. W. 11) that his Bengali pronunciation is a bit different from that of the Bengalees as Bengali is not his mother-tongue. He did not ask the accused while recording her statement whether she could follow the pronunciation of the Magistrate. The Magistrate in his cross-examination has admitted that he did not specifically ask the accused what prompted her to make the confessional statement. The Magistrate also stated in his cross-examination that no question was put to the accused whether any Police Officer or any one met her during the period when she was brought from Jail custody and produced before him. ( 33 ) THERE is another aspect of the case which has been completely lost sight of by the learned trial Judge. There is nothing on record to show that the accused was informed of her constitutional right to consult a lawyer. Section 164 (2), Cr. P. C. does not refer to any right of the accused to consult a lawyer before making the confession. But the constitutional mandates of Article 22 (1) need not be incorporated in any ordinary statute to make it enforceable. "if the accused is not informed of his right to consult a lawyer before making any statement, he cannot properly exercise another fundamental right of his, namely, not to incriminate himself, under Article 20 (3 ). It is true that he is not being physically compelled to make the confession, but a confession obtained by depriving him of the opportunity of exercising his fundamental right to legal aid cannot be said to be a voluntary confession and is only an indirect way of compelling him to incriminate himself. At least, such a procedure cannot be said to constitute a fair procedure under Article 21 as interpreted in the case of Maneka Gandhi" ( AIR 1978 SC 597 ). (Quotation from D. Basu's Criminal Procedure Code 1973, 2nd Edn. p. 491 ). At least, such a procedure cannot be said to constitute a fair procedure under Article 21 as interpreted in the case of Maneka Gandhi" ( AIR 1978 SC 597 ). (Quotation from D. Basu's Criminal Procedure Code 1973, 2nd Edn. p. 491 ). Moreover, in Nandini v. Dani. AIR 1978 SC 1025 : (1978 Cri LJ 968), Iyer, J. , speaking for a three-Judge Bench held. . . "". . . . . the observance of the right against self-incrimination is best promoted by conceding to the accused, the right to consult a legal practitioner of his choice". If this proposition be correct, the fact that under Section 164 (1), Cr. P. C. the confession takes place in presence of a Magistrate would make no difference. Of course in Abed v. State, 1988 Cri LJ 354 (para 70), a Division Bench of this Court took a different view but that decision can be distinguished as that decision does not consider the implication of Article 22 (1) of the Constitution at all. ( 34 ) THEREFORE, before recording confession under Section 164 (2 ). Cr. P. C. the Magistrate should inform the accused of his/her right to consult a lawyer apart from the statutory warnings required under that Section. ( 35 ) TO sum up, it is found that there are several loose ends in the prosecution story. The nonproduction of the original G. D. Entry and the letter sent by Gayaram (P. W. 4) in the early hours of 1-6-85 about the occurrence raises a presumption that if those were produced, the same would go against the prosecution case. The prosecution story of the disposal of the dead-body from the place of occurrence is highly suspect. The Judicial Magistrate (P. W. 11) did not comply with all the essential statutory requirements for recording a confessional statement under Section 164, Cr. P. C. The lack of compliance with the constitutional mandates implicit in the act of recording a confessional statement under Section 164, Cr. P. C. takes away the voluntary character of the statement. The local witnesses before whom the alleged confessional statements were made, did not quote the words of the accused. Some of them definitely tried to improve upon the prosecution case at a later stage for reasons given above. P. C. takes away the voluntary character of the statement. The local witnesses before whom the alleged confessional statements were made, did not quote the words of the accused. Some of them definitely tried to improve upon the prosecution case at a later stage for reasons given above. The alleged confessional statement before the I. O. (P. W. 13) leading to the discovery of the instrument of murder etc. is not discovery at all because the things were already produced before the prosecution witnesses long before the arrival of the I. O. A thing cannot be discovered twice. This also betrays an attempt on the part of the prosecution to dress up the prosecution case. ( 36 ) THUS, considering the facts, circumstances and the probabilities of the case, it is very difficult to say that this is a case where the extra-judicial confession only can be sufficient to lead to a conviction of the appellant. For reasons stated above, the judicial confession also cannot form the basis of conviction of the appellant in the case. The prosecution side has not been able to prove its case beyond the pale of reasonable doubt. The appellant as clearly entitled to the benefit of doubt. ( 37 ) IN the result, the appeal succeeds and the order and judgment of conviction and sentence are set aside. The appellant is acquitted of the charges under Section 302/201 I. P. C. She be set at liberty at once. ( 38 ) LET a copy of this judgment be sent to the learned trial Court under Section 388 of the Cr. P. C. forthwith. Appeal allowed.