SURYA KUMAR TIWARI, J. ( 1 ) BEING aggrieved by the conviction and sentence recorded by Mr. , Milan Chatterjee, Additional Sessions Judge, Hooghly, in Session Trial Case No. 147 of 1992, (dated 18th March, 1996) this appeal came to be filed. The learned Additional Sessions Judges death reference as well as the appeal have been heard together. ( 2 ) DECEASED Reba Ghosh was married to the appellant about three years prior to the date of incident i. e. , 16-1-1992. The appellant as well as deceased had been to the Sankranti fare organised in village Malpaharpur and also called on the parents of deceased Reba. All these facts are not in dispute. ( 3 ) THE case of the prosecution is that on the date of incident the appellant and deceased went to the house of the parents of deceased Reba (hereinafter referred to as in-Jaws house ). At about 10 p. m. PW 7 Swap an Ghosh, PW 17 Trilochan and two others went to the house of PW 1 Satya Narayan Ghosh (brother of the deceased) and informed him that his sister Reba Ghosh was missing and his brother-in-law Nibaran was found tied with rope by the side of the road. PW 1 Satya Narayan, PW 2 Ajit Kumar Ghosh and PW 5 Gopal went to the house of the appellant and found him lying on a cot. They enquired from the accused whereabouts of their sister. The accused confessed that he had killed his wife by strangulating her with a muffler. The other witness on the point of confession is PW 13 Biswanath who has stated thus: He also made confession in my presence and also in the presence of Satya Narayan that his wife was quarrelling with his mother and for these he murdered his wife. The quarrel was in respect of one necklace. ( 4 ) IN the meantime the persons present on the spot started searching for the appellant's wife. They found her dead body lying at a distance of about 1 km. from the place where the appellant was found tied with a rope. Becharam went to the Police Station and reported the incident to the Officer-in-charge of the Police Station i. e. , PW 20 Bholanath Bhaduri. The information was recorded in G. D. No. 717 dated 17-1-1992 at 00. 45 hours. from the place where the appellant was found tied with a rope. Becharam went to the Police Station and reported the incident to the Officer-in-charge of the Police Station i. e. , PW 20 Bholanath Bhaduri. The information was recorded in G. D. No. 717 dated 17-1-1992 at 00. 45 hours. Bholanath Bhaduri rushed to the spot and saw the dead body. He went to the house of PW 1 Satya Narayan where he recorded the, statement of Satya Narayan which forms part of FIR (Exhibit 1 ). Inquest report was prepared by the Subinspector Hazra (PW 26 ). Exhibit 6 is the inquest report which disclosed two large marks of echymosis on the neck of the deceased. The dead body was sent to postmortem for examination. ( 5 ) PW 25 Dr. S. K. Ghosh performed autopsy on the dead body of the deceased Reba and found two bleeding marks in and around her neck. According to doctor, the deceased was strangulated by any soft object. In his opinion the cause of death was strangulation which was homicidal in nature. ( 6 ) PW 20 Bholanath Bhaduri seized a bicycle lying near the place of occurrence. The police arrested the accused. The accused took the police near the place of occurrence. He dug out the slippers kept hidden under the earth. The police questioned the appellant and the appellant informed that the ornaments which the deceased wearing was in the custody of one Mohan Mallick. The police party visited the house of Mohan Mallick but he was found absent. Mohan Mallick turned up subsequently at the Police Station. His arrival and his statement has been noted in. G. D. No. 768 dated 17-1-1992 (Exhibit 11 ). Mohan Mallick led them to a bamboo grove in his courtyard and took out ornaments concealed there. They were seized. A seizure list was prepared by the police (Exhibit 8) on 18- 1-1992. According to prosecution the accused had handed over the ornaments of his wife for safe custody before the arrival of the villagers on the spot. ( 7 ) THE learned Sessions Court framed charges under Section 302. IPC against the appellant. The appellant pleaded not guilty. The learned Sessions Court convicted the appellant the offence of murder and sentenced him to death. Hence this appeal. ( 7 ) THE learned Sessions Court framed charges under Section 302. IPC against the appellant. The appellant pleaded not guilty. The learned Sessions Court convicted the appellant the offence of murder and sentenced him to death. Hence this appeal. ( 8 ) THE first point for consideration is whether the deceased Reba died in a homicidal death? PW 9 Becharam, PW 18 Vidyut, PW 1 Satya Narayan and PW 2 Ajit Kumar Ghosp have deposed that Reba was found dead on the spot. She had sustained strangulation marks around her neck. PW 25 Dr. S. K. Ghosh has proved that the injuries on the throat of the deceased were homicidal in nature and the said injuries resulted into her death. I, therefore, decide the point in affirmative. ( 9 ) THE next point for consideration is whether the injuries sustained by the deceased were inflicted by the appellant? There is no eye witness. The entire case is based on circumstantial evidence and extra-judicial confession of the accused. ( 10 ) I shall deal with extra-judicial confession-first. It has been laid down by the Apex Court in case of State of Punjab v. Bhajan Singh that extradicial confession itself is a very weak piece of evidence and it cannot be relied upon, if after taking into consideration the surrounding circumstances the Court entertains doubt about the voluntary nature of the confession. In case of State of Assam v. Manick Chandra De it has been laid down that it is necessary to reproduce the exact words used in the confessional statement of the accused before it is exhibited. In the light of the legal provisions. I proceed to examine the evidence. ( 11 ) PW 1 Satya Narayan the brother of the deceased has deposed that having come to know about the death of his sister he alongwith his elder and younger brothers his cousin and one Biswanath Ghosh went to the house of the appellant and questioned him as to why he had killed his sister. The appellant broke down and confessed that he had wrapped muffler around her throat and had put mud in her mouth after she was dead. PW 2 Ajit Kumar Ghosh is the other brother of the deceased who has deposed that he visited the appellants house. The appellant broke down and confessed that he had wrapped muffler around her throat and had put mud in her mouth after she was dead. PW 2 Ajit Kumar Ghosh is the other brother of the deceased who has deposed that he visited the appellants house. The appellant confessed that he had murdered his wife by flinging her down and throttling her after pressing her chest with knee. This witness says that he was accompanied by Gopal Ghosh. PW 5. Gopal Ghosh has clearly denied that accused had made any such confession. It, therefore, follows that the statements of PW 1 Satya Narayan and PW 2 Ajit regarding the alleged confession appear to be at variance. So is the fate of alleged confession made before PW 3 Biswanath which has been reproduced in para 3. above. ( 12 ) IT has also to be borne in mind that PW 1 Satya. Narayan after having seen the dead body of his sister and after visiting the house of the accused and having procured his extra-judicial confession straightaway went home and slept peacefully without lodging FIR in Police Station. At page 40 of the Paper Book the statement of witness read thus: From that house, we returned home because we were nervous. In the morning at about 4. 4. 30 a. m. police came to our house. Police came to our house with Nibaran Ghosh. No brother worth his salt whose only sister has been murdered would sleep peacefully after having learnt about the incident. This conduct of these witnesses is inconsistent with normal human conduct and the story of extra judicial confession also does not inspire confidence. ( 13 ) THE next link in the chain of circumstances is recovery of ornaments of the deceased from the possession of Mohan Mallick. PW 15 Mohan Mallick has denied that any ornaments of the deceased was recovered from his possession. The prosecution wants to rely on the so-called statement of the appellant which led to recovery of the ornaments. The statement of the accused does not appear to have been reduced into writing and even if reduced into writing has not been exhibited. I am, therefore, unable to rely on any such statement sought to be proved by oral evidence. The prosecution wants to rely on the so-called statement of the appellant which led to recovery of the ornaments. The statement of the accused does not appear to have been reduced into writing and even if reduced into writing has not been exhibited. I am, therefore, unable to rely on any such statement sought to be proved by oral evidence. It has to be borne in mind that Section 27 of the Evidence Act allows only that part of the statement to go down on record which distinctly leads to discovery of a fact. Even if the ornaments were recovered from the possession of Mohan Mallick, it cannot be inferred that the appellant was the murderer of the deceased. ( 14 ) THE two witnesses of the seizure memo Ashok Kumar Ghosh (PW 14) and Abhoy Ghosh (PW 16) have also not supported the prosecution story. ( 15 ) I now come to the FIR PW 20 Bhohmath Bhaduri has deposed that on 16-1-1992 he was the Officer-in-Charge of Haripal Police Station. During night one Becharam Ghosh of Taldaha come to Police Station and informed him that Reba Ghosh wife of Madan Mallick had been murdered and the dead body was lying in a field. After receiving information he proceeded to the spot with the police force, and recorded the information in G. D. No. 717. G. D. No. 717 has not been exhibited. But the original G. D. book has been filed in this case in order to prove (Exhibit 8 ). We are aghast to note that page No. 8714 of G. D. is torn and instead page No. 9600 has been inserted in its place. The carbon used for recording G. D. No. 717 is so faint that it cannot be deciphered. This is clearly an ineterpolation which appears to have been done after tearing off the original page. ( 16 ) PW 9 Becharam Ghosh deposed that he had been to Police Station and reported the death of the deceased. When the police was informed about the commission of a cognizable offence, the Officer-in-Charge of the Police Station. PW 20 Bholanath Bhaduri was duty bound to record an FIR in the FIR book as per Section 154. Cr. P. C. (See Kurukshetra v. State of Haryana ). When the police was informed about the commission of a cognizable offence, the Officer-in-Charge of the Police Station. PW 20 Bholanath Bhaduri was duty bound to record an FIR in the FIR book as per Section 154. Cr. P. C. (See Kurukshetra v. State of Haryana ). The refusal to record first information renders is police officer liable to be punished under Section 180, IPC Admit Admittedly the police went to PW 1 Satya Narayans house after starting investigation. The statement of PW 1 which bas been treated as FIR would be hit by Section 162, Cr. P. C. (See Somappa v. State of Mysore) find that Exhibit-1 cannot be treated as FIR. ( 17 ) I am conscious of the fact the Apex Court in case of A. Joseph v. State of Kerala, has laid down that the receipt and recording of First Information Report by the police is not a condition precedent to setting in motion of a criminal investigation. An investigation without FIR would not be bad. Since the original information recorded in G. D. No. 7817 has been suppressed and replaced in the general diary the prosecution story becomes doubtful. The conduct of the relatives of the deceased examined by the prosecution also is suspicious. The recovery of the alleged articles of the deceased from Mohan Mallick is of no consequence. Prosecution witnesses Nos. 18 Bidyut. PW 17 Swap an Ghosh and PW 9 Becharam saw the accused tied with rope. Accused informed them that some miscreants had forcibly taken away his wife. PW 18 Bidyut and PW9 Becharam have stated that they saw that the accused had a bleeding nose. It. therefore, cannot be said that the accused was the person who killed his wife. ( 18 ) THE learned Additional Public Prosecutor Mr. Sudipto Moitra has vehemently argued that the conduct of the accused was abnormal. After he met PW 18 Bidyut Ghosh and others on the spot, instead of searching his wife directly went home and was found lying on a cot. It has to be remembered that a person having normal human conduct is yet to be found. Some people after facing violent attack are so shocked that their behaviour becomes abnormal. I therefore, find the prosecution has. thus failed to establish that the injuries sustained by the deceased were caused by accused. It has to be remembered that a person having normal human conduct is yet to be found. Some people after facing violent attack are so shocked that their behaviour becomes abnormal. I therefore, find the prosecution has. thus failed to establish that the injuries sustained by the deceased were caused by accused. The learned Judge not only allowed inadmissible evidence and the confessional statement made to police to go on record but has also formulated question Nos. 33. 47 and 51 are questions which are based on inadmissible evidence. Question Nos. 55 and 56 are based on prejudged notions of the learned Judge. The accused should not be questioned on the basis of the conclusions drawn by the Court. The accused should be questioned only with regard to the circumstances appearing in the prosecution evidence against him so that the accused can explain his position if he so chooses: Questioning him on the basis of inadmissible evidence and personal beliefs prejudices the defence case. Prejudice has been defined as introduction of any evidence not relevant to the charge which might place the accused in an unsympathetic light (per Sir Marshall Hall ). The Supreme Court in case of Kashmira Singh v. State of M. P. , has cautioned the Courts dealing with ghastly crimes and directed that the approach of the Courts while dealing with ghastly crimes they are required to take a detached view. One should always bear in mind that every murder is a ghastly crime and accused can be convicted only when the guilt is proved beyond reasonable doubt. ( 19 ) THE learned Counsel for the appellant has rightly taken exceptions to several observations of the learned Judge in his judgment. The learned Judge appears to have lost track. Development of judicious out-look comes only after proper treining and constant practice. State Government as well as the High Court do not appear to be serious about establishing a judicial officers training institute in spite of repeated recommendations of the successive Law Commissions. ( 20 ) WE allow the appeal and set aside the conviction and sentence passed, against the appellant. The learned Trial Court while sentencing the accused to death ignored the observations of the Apex Court made in case of Bachhan Singh v. State of Puryab and Machhi Singh v. State of Punjab. ( 20 ) WE allow the appeal and set aside the conviction and sentence passed, against the appellant. The learned Trial Court while sentencing the accused to death ignored the observations of the Apex Court made in case of Bachhan Singh v. State of Puryab and Machhi Singh v. State of Punjab. In the later case the Apex Court has clearly stated that the death sentence should be passed in rarest of rare cases when the collective conscience of the community is shocked. Unfortunately the learned Trial Court only remembered murder of beloved Prime Minister Indira Gandhi and the Rajya Sabhas resolution dated 24-3-1995. A Judge should be guided by only the law laid down by superior Courts. All other considerations are extraneous. The appellant is acquitted of the charge under Section 302, IPC. He be set at liberty forthwith. The death reference is rejected. ( 21 ) BEFORE parting with the case we hereby direct the Registrar. Appellate Side to keep the G. D. book under a sealed cover and issue a show-cause to PW 20 Bholanath Bhaduri as to why a complaint under Section 201. Cr. P. C. and 166. IPC should not be filed against him. We also direct that the Registrar. Appellate Side, to take necessary disciplinary action against the concerned employees of Paper Book Section for preparing incorrect copy of Ex. 3. ( 22 ) AN extract copy of paras 14 to 16 sent to Registrar. Appellate Side with a direction that the matter be placed before the Administrative Committee for consideration whether the learned trial Judge should be allowed to exercise powers of Sessions Judge. Appeal allowed.