RIPU SUDAN DAYAL, J. ( 1 ) I have had the benefit of going through the draft judgment prepared by my brother, K. J. Sengupta, J. I am in full agreement with the conclusion reached and the order proposed in that judgment. At the same time, I would like to add a few words of my own. ( 2 ) I fully agree with my learned brother that there is no direct evidence on the record to prove the charge framed against the appellant under Section 302 of the Indian Penal Code. Circumstantial evidence also does not form a complete chain to support the sole hypothesis that the appellant is guilty of the crime with which he has been charged. Therefore, the only point for consideration is whether the plea of guilty recorded by the learned Trial Court can be the basis for holding the appellant guilty of the charge of murder. My learned brother already narrated in details the facts of the case. Factual narration need not, therefore, be made over again by me. It would be sufficient to mention that the charge of murder was framed by the learned Trial Court twice. Firstly, it was framed on 6th July, 1987. After the charge was read out and explained to the appellant, the latter stated in Bengali I have killedt. The learned defence counsel was not present at that time. However, soon after the plea of guilty was recorded, the defence counsel appeared and raised objection against the framing of charge in his absence. Subsequently, the learned Counsel retired firm the case. Thereafter, charge was again framed on 12th April, 1989. At that time, the appellant submitted that he committed the murder under the state of insane condition. He was also asked whether he pleaded guilty to the charge, to which he pleaded not guilty and claimed to be tried. Thus on 12th April, 1989, he did not admit all the ingredients of the offence of murder and specifically pleaded not guilty to the charge, whereas on the earlier date, that is, on 6th July, 1987, he had pleaded guilty but that was done by him in the absence of his counsel. However, the fact remains that the appellant was not convicted on the plea of Tguilty. However, the fact remains that the appellant was not convicted on the plea of Tguilty. After a charge is framed under Clause (b) of sub-section (1) of Section 228 of the Code of Criminal Procedure, 1973, the same is required by sub-section (2) to be read and explained to the accused and the accused is to be asked whether he pleads guilty of the offence charged or claims to be tried. Section 229 provides that if the accused pleads guilty, the Judge that record the plea and may, in his discretion, convict him thereon. Thus conviction does not follow automatically when an accused pleads guilty to the charge framed against him. It is for the Judge to accept the plea of guilty and convict him thereon or not to accept the same and try him for the offence with which he has been charged. The discretion to accept the plea of guilty should be exercised along well established legal principles. Bat where the plea of guilty is accepted, it operates as waiver of the accuseds right to question the legality of his conviction made on such a plea. However, where the plea of guilty is not accepted by the Court, the prosecution has got to prove all the constituents of the offence and the mere plea of guilty cannot take the place of proof by the prosecution. As observed in Shyama Charan Bhathuar and Others v. Emperor, a plea of guilty is not a confession such as is dealt with in the Indian Evidence Act in respect of relevance or irrelevance. It is a statement which, if accepted by the Court, amounts to a waiver on the part of the accused of trial in which alone a confession might be utilised in evidence. The view I am taking also gets support from Abdul Kader Allarakhta v. Emperor, Haobyam Chaoyaina Singh v. Hetsnam Mangi Singh and Others and New Gaginaya Goods Marl and Another v. State. I am, therefore, of the view that an accused cannot be held guilty on the basis of his plea of guilty, where his plea has not been accepted by the Court. I am, therefore, of the view that an accused cannot be held guilty on the basis of his plea of guilty, where his plea has not been accepted by the Court. ( 3 ) IN the result, the appeal is allowed the order of conviction and sentence against the appellant is set aside the appellant is acquitted of the offence of murder under Section 302 I. P. C. , and it is directed that he be released from custody, forthwith, unless required in connection with any other case. Sengupta, J.- In this appeal the appellant convict has impugned the judgment and order sentencing him to undergo life imprisonment and also to pay a fine of Rs. 2. 000/- in default rigorous imprisonment for two years more. The appellant was arraigned for trial for the charges of committing murder of his wife under Section 302 of the Indian Penal Code. ( 4 ) THE prosecution was initiated in pursuance of an FIR lodged by the PW - 1 on 4th June, 1984 in the morning. The complaint in the FIR was, in effect that appellant is alleged to have killed his wife by inflicting injury on her neck by Dao (Chopper) during the night of 3rd, 4th June 1984. ( 5 ) THE PW -1 further alleged in the FIR that he lodged it in pursuance of his late fathers direction and the appellant is alleged to have confessed his guilt before him, his late father and a large number of villagers. The Officer in Charge of Legal Police Station started investigation on 4th June, 1984 itself. While doing so the Investigating Officer did prepare inquest report seized in criminating articles and lastly he arrested the appellant on that day. ( 6 ) IT appears from the records that on 5th June, 1984 the accused is said to have made confession before the learned Sub-Divisional Judicial Magistrate Mekliganj, but it was not recorded. On 8th June, 1984 it was fixed for recording confession. On 8th June, 1984 it is recorded that the appellant wanted to make confession but he was given time till 12th June, 1984 for his reflection. Ultimately he did not make any confessional statement as it appears from the order dated 15th June, 1984 during the committal period. The appellant/ accused had no lawyer of his own. On 8th June, 1984 it is recorded that the appellant wanted to make confession but he was given time till 12th June, 1984 for his reflection. Ultimately he did not make any confessional statement as it appears from the order dated 15th June, 1984 during the committal period. The appellant/ accused had no lawyer of his own. Accordingly, the Court appointed lawyer for the accused from the State panel. After committal on 6th July, 1987 before the learned Sessions Judge in absence of the defence counsel the charge was read out and explained by the learned Public Prosecutor. The appellant/accused, however, pleaded and/or stated Ami Khoon Korechi (I have committed murder ). Immediately after making such plea of guilt, the learned defence lawyer appeared before the Court and took serious objection to the effect that in his absence the charge ought not to have been read over and explained and he ought not to have been asked to plead as to his stand to the charge. Accordingly, the learned lawyer argued for expunging of that statement and/or plea of guilt. The then learned Sessions Judge did not accept such prayer and request. The learned lawyer for the defence applied to Court below for relieving himself from discharging his duty as a defence counsel. This prayer was accepted by the Court. In his place instead another learned lawyer. Mr. Ambika Charan Roy was engaged by the Court itself. The record remains as it is as narrated by us. The learned Sessions Judge, however, did not accept the aforesaid plea, and did not convict him on the basis of that plea, on the other hand he proceeded with the trial. ( 7 ) AFTER engagement of the new lawyer, it appears on his prayer the accused/appellant was medically examined during his custodial period in order to examine his mental condition by a psychiatrist. It appears from records that he was examined by the doctors and found to be fit to stand for trial. Naturally the trial continued. On 12th April, 1989 the formal charge under Section 302 of I. P. C. was framed and recorded, and the same was read over and explained, by the learned trial Judge to appellant on that date. The appellant! accused pleaded not guilty stating Insane Abasthayay Khoon Korechilum (I committed murder in the state of insanity ). Naturally the trial continued. On 12th April, 1989 the formal charge under Section 302 of I. P. C. was framed and recorded, and the same was read over and explained, by the learned trial Judge to appellant on that date. The appellant! accused pleaded not guilty stating Insane Abasthayay Khoon Korechilum (I committed murder in the state of insanity ). ( 8 ) THE learned trial Judge thereafter proceeded with trial. As many as 23 witnesses were examined by the prosecution. There was none on behalf of the defence. The unnatural death of Nisobala is admitted. Admittedly there was no eye-witness to see the occurrence of killing so also has been recorded by the learned trial Judge. The learned trial Judge proceeded to find out the correctness of the plea of insanity by the accused. While summing up and/or analysing the evidence, the learned trial Judge held that plea of insanity is unbelievable. The learned trial Judge has relied on the circumstantial evidence to the effect that the appellant was in the same room with the victim at night on date of occurrence. Since the appellant has not explained as to how his wife was killed, it was held by the learned trial Judge, no person other than the appellant murdered the victim. ( 9 ) THE learned lawyer for the appellant submits that having regard to the evidence adduced by the prosecution it would appear that the appellant! accused was insane. His abnormal behaviour would also be apparent from the fact on record that he allowed himself to be arrested by the police on the day following the date of occurrence when the police was investigating and enquiring into the matter and he did not flee away. ( 10 ) DURING hearing of the appeal the learned lawyer appearing for the State, submits and admits that there is no eye-witness not there is any strong circumstances for which the appellant/accused should be convicted. He submits that if the judgment of the learned trial Judge is perused carefully and all the evidences are examined meticulously then it will appear that the accused! appellant has made a confession which is a judicial one, not only at the time of committal but also on two occasions when the charge was framed and explained to him. He submits that if the judgment of the learned trial Judge is perused carefully and all the evidences are examined meticulously then it will appear that the accused! appellant has made a confession which is a judicial one, not only at the time of committal but also on two occasions when the charge was framed and explained to him. In no uncertain terms he has confessed before the Court that he has committed murder but in his insane condition. He argues as plea of insanity has not been proved the Court can accept such a confession although this plea is self exculpatory. In support of his submission he cites authorities reported A. I. R. 1969 Supreme Court page 422 A. I. R. 1988 Supreme Court 1983: A. I. R. 1988 Supreme Court page 483 respectively. He submits further in view of the above decisions it is lawful for the Court to rely on the inculpatory portion of the confession alone. ( 11 ) THE learned lawyer for the State further submits that to prove the plea of Insanity burden lies upon the accused/appellant who has not been able to adduce any evidence to prove the same whether or not he was insane at the time of occurrence. As the plea of insanity is not proved so the inculpatory portion of the confession is acceptable and we can in this case separate the grain from the chaff. Although, the Court has convicted on different reasoning but it could have been, now it can be done on this ground. ( 12 ) WE have perused the judgment containing reasoning of the learned trial Judge and found that the learned trial Judge convicted the appellant on the basis of circumstantial evidence only. There is no evidence on record to prove that appellant/accused was in the same room with the victim at night of the date of occurrence. The learned trial Judge, according to us has recorded such finding without any evidence. Only the PW 15 in his Examination-in-Chief in one line has stated that accused/appellant was in the same room with his wife on the fateful night. But in the cross- examination he immediately stated that he did hot visit the room of accused during the day and night of the aforesaid date of incident. So this evidence of the P. W. 15 cannot be accepted. But in the cross- examination he immediately stated that he did hot visit the room of accused during the day and night of the aforesaid date of incident. So this evidence of the P. W. 15 cannot be accepted. PW -16 who was the wife of PW -15 stated in her evidence to prove that accused/appellant was in the same room at that night when the incident took place but in cross-examination she has contradicted herself. None of the witnesses has proved the fact of presence of the appellant at night with his wife on the date of occurrence. Unless there is such evidence, the circumstance leading to the conclusion of the appellant having committed murder of his wife, is not established. In other words, so-called circumstances holding the appellant guilty is nothing but conjecture and/ or surmises. ( 13 ) IT appears from the judgment and order of the learned trial Judge that he has altogether brushed aside the portion of evidence of prosecution witnesses tending to prove insanity of the appellant/accused, but has relied on the portion there of which records hearsay evidence of the prosecution witnesses about commission of murder. In the FIR being Exhibit-i, the PW-1 mentioned of extra judicial confession of the appellant before himself, his late father and other villagers. But in his evidence he did not utter a single word of extra judicial confession, nor any of the villagers came forward to prove alleged extra judicial confession. ( 14 ) WE are constrained to record that the learned trial Judge all the time has given his anxious consideration to find out the truthfulness of the defence plea of insanity but he did not care to see the very fundamental principle as to whether the prosecution has been able to bring home the charges beyond all reasonable doubts allunde disproof of so-called alibi. ( 15 ) IT is pertinent to mention that the learned trial Judge has not decided nor convicted on the basis of the confession, nonetheless we allow such plea to be raised and argued as the materials are available before us. ( 16 ) AS we have already observed that the reasoning and findings of the learned trial Judge are not sustainable under the law, we are unable to allow this order of conviction to stand on the ground of circumstantial evidence. ( 16 ) AS we have already observed that the reasoning and findings of the learned trial Judge are not sustainable under the law, we are unable to allow this order of conviction to stand on the ground of circumstantial evidence. This matter is a very old one and from the date of conviction eight years have gone by. Therefore, it would not be proper for us to remand this matter for fresh consideration by the learned trial Judge on the point argued by the State Counsel. Accordingly we have decided to examine the pros and cons of the argument advanced by the learned lawyer for the State. It will appear from the records as well as out narration of events as above that during the committal period no confession could be obtained either under Section 164 of Cr. P. C. or otherwise. Therefore, observation, recorded by the learned Magistrate on 8th June, 1984 during committal period cannot be accepted, under law, a confession to rely on for trial. It is true on 6th July, 1987 when a charge was explained by the learned Public Prosecutor in absence of the learned defence counsel a plea and/ or statement of guilt has been recorded. We do not approve of such recording in absence of the learned defence lawyer. Such course of action adopted at the threshold of trial is not only illegal but it would have vitiated the entire trial had it been followed by acceptance of plea of guilty. Fortunately it was not done. In any event even if it is assumed that it was a valid and proper framing of the charge the statement made by the appellant was not a plea of guilty but it was a plea and/or statement of guilt. It is significant to mention that on the basis of such plea the learned trial Judge did not convict him rather proceeded for trial. The above plea and/or statement of guilt by the appellant/accused in an abrupt and irregular procedure cannot be treated as a judicial confession as place of evidence, as the statutory caution under Section 164 of the Evidence Act was not given to the appellant. The above plea and/or statement of guilt by the appellant/accused in an abrupt and irregular procedure cannot be treated as a judicial confession as place of evidence, as the statutory caution under Section 164 of the Evidence Act was not given to the appellant. It is settled law in order to have the judicial confession the statutory caution under Section 164 of the Criminal Procedure Code is a sine qua non and unless the same is done such kind of so-called confession cannot be relied on nor can be accepted by the Court. Next we came to his plea at the reading over charges on 12th April, 1989 the appellant has pleaded not guilty but at the same time he has stated that he killed his wife in insanity. It is significant to mention that the learned trial Judge after recording the plea of not guilty, has allowed the statement and! or plea to be recorded as to his admission of guilt in insane condition. We do not approve of such casual and careless recording of a statement made by the accused when he was pleading not guilty. At the time of explanation and reading over of charges to the appellant/accused in the event the accused pleads not guilty then Court has no option but to proceed with the trial in all force by compelling the prosecution to prove the guilt to the hilt. In the event the accused pleads guilty, then it is for the trial Judgets discretion having regard to the circumstances and facts, either to convict him accordingly or to proceed with the trial without caring for and/or falling back upon the statement and/or plea of guilty. If the accused! appellant does not plead guiltyt straightway, rather pleads his guilt instead the Court cannot rely and/ or accept the statement while giving the answer to reading over of the charges. Our above observations are supported by a decision reported in AIR 1987 Bombay 345. The above Special Bench decision of the Bombay High Court in paragraphs 4 and 5, has decided amongst others that a plea of guilty can be accepted by the Court - if it is made in presence of his counsel and with understanding of the accused and his counsel as to consequences of such plea. The above Special Bench decision of the Bombay High Court in paragraphs 4 and 5, has decided amongst others that a plea of guilty can be accepted by the Court - if it is made in presence of his counsel and with understanding of the accused and his counsel as to consequences of such plea. Unless such safeguard of representation of counsel is taken and unless the Judge is prepared to accept such plea of guilty, it would be proper to record the plea of does not plead. ( 17 ) IT has been further observed and decided in paragraphs 12 and 14 in gist that when at the opening of the Sessions the accused is asked to plead and the accused pleads guilty but the Judge has decided not to act on the plea empanels the jury for his trial, the plea of guilt is not a piece of evidence in the trial and the plea not being a circumstances appearing in evidence against the accused within the meaning of Section 342 of the Cr. P. C. (Old) calling for any explanation. It has been further decided in paragraph 5 of the said judgment that a confession of guilt on arraignment does not become a plea of guilty unless and until it is accepted by the Judge. If not accepted the confession ought not to be recorded. It has been further observed as follows: the Judge having decided not to act on the plea it should have been treated as nonexistent through out the trial or as a matter requiring no explanation from the accused. ( 18 ) AS we have already recorded that the learned trial Judge has not proceeded on the basis of so-called plea of guilty by not convicting them then and there, rather learned trial Judge has proceeded with the trial so the learned trial Judge ought to have treated the plea of guilt as nonexistent. So applying the aforesaid test we cannot hold and accept that the aforesaid utterance of the accused,/appellant is a confession. ( 19 ) LET us examine the statement made by the accused/appellant assuming it to be a confession. The so-called confession in answer to the charge consist of two parts - Inculpatory and exculpatory. The exculpatory portion is commission of murder in insane condition. ( 19 ) LET us examine the statement made by the accused/appellant assuming it to be a confession. The so-called confession in answer to the charge consist of two parts - Inculpatory and exculpatory. The exculpatory portion is commission of murder in insane condition. Now, question is, whether the Court can exclude the exculpatory portions and accept the inculpatory portion for the purpose of conviction or not. Furthermore, whether the Court can inquire into truthfulness of the exculpatory portion or not, and after holding the exculpatory part on being disproved, whether the Court can accept the inculpatory portion or not. The decision cited by the learned lawyer for the State reported in AIR 1969 Supreme Court page 422 is of course a guiding factor to solve the aforesaid vexed question. The ratio laid down by the above decision is that inculpatory portion can be accepted if the exculpatory portion is found to be inherently improbable. The conviction on the basis of inculpatory portion of the confession is valid. In the Supreme Court decision factually the accused made confession having exculpatory statement being inherently improbable and also the same contradicted to other evidence. On this fact and background, it was held that exculpatory portion of the confession can be rejected and inculpatory portion can be accepted as an evidence for conviction. The earlier decision of the Supreme Court being reported in AIR 1992 Supreme Court has been distinguished on the said factual backdrop. The earlier decision of Supreme Court has not been overruled in principle. Therefore, the principle laid down is the earlier decision still holds good. In the decision reported in AIR 1978 Supreme Court page 1096 it has been held that where a confession or an admission is separable there can be no objection to exculpatory part being taken into consideration which appears to be true and reject the exculpatory part which is false. Where, in this case, in our view, the above statement is not separable from each other. Therefore, the decision laid down in AIR, 1978 Supreme Court page 1096 (supra) has no manner of application in this case. The portions of the confessional statement being insane condition, is not inherently improbable nor the same contradicts to other facts and circumstances of this case. Therefore, the decision laid down in AIR, 1978 Supreme Court page 1096 (supra) has no manner of application in this case. The portions of the confessional statement being insane condition, is not inherently improbable nor the same contradicts to other facts and circumstances of this case. In fact there are oral evidence by a number of prosecution witnesses that the accused/appellant was not normal and sometime he behaved like a mad man. Therefore, it cannot be said that such statement of being insane is inherently improbable. Therefore, the ratio decided in the authority reported in AIR. 1969 Supreme Court page 422 (supra) has no manner of application in this case. In a recent decision reported in 1996 (11) SCC page 641. It has been held that confession of the accused has to be taken as a whole and the exculpatory part cannot be thrown aside. So, following the recent Supreme Court decision we cannot accept the above statement made by the accused/appellant in answering to the charge as it was read over and explained to him is a confession or is a piece of evidence for the purpose of conviction. Therefore, we are unable to accept the submission made by the learned counsel appearing for the State/prosecution that conviction can be upheld relying on the confession made by the appellant. ( 20 ) WE have already held that the findings of the learned trial Judge is without any evidence. Besides, there is a serious lapse on part of the learned trial Judge as the circumstances for which the accused has been held to be guilty, was not put to the accused/ appellant in order to give an opportunity to explain under Section 313 of the Cr. P. C. while putting question to the accused/appellant. We have examined the question and answers put by the learned trial Judge under Section 313 of the Cr. P. C. to the accused and we do not find any question was put to the accused to the effect that you were in the same room with your wife during the night of the occurrence and would you explain how the deceased was murdered? This very vital duty has not been performed by the learned trial Judge though he has proceeded to convict on such circumstances. This very vital duty has not been performed by the learned trial Judge though he has proceeded to convict on such circumstances. The learned Lawyer appearing for the appellant has rightly submitted that is a case depending on circumstantial evidence there should be a definite trend pointing to wards the guilt of accused. The circumstances in which the prosecution sought to rely on should put question under Section 313 of the Cr. P. C. to the accused unless it is done such circumstances cannot be taken into consideration adversely against the accused. In support of his submission he has cited the decision rendered by the Division Bench of this Court reported is 1995 Cr. L. R. (Cal) 88. In the above decision, Their Lordships have held that the failure of Court to put question under Section 313 of the Cr. P. C. Court regarding the circumstances to the accused is a fatal one. In such case the circumstances adverse to the appellant cannot be relied on. The above Division Bench has also followed and relied on Supreme Court decision reported in A. I. R, 1976 Supreme Court page 557 followed by another Supreme Court decision reported in A. I. R. 1984 Supreme Court page 1622. Therefore, the circumstances on the basis of which the conviction was made by the learned trial Judge cannot be upheld on this count also. It is not the duty of the Court while convicting accused to consider the evidence and proof of alibi first but to examine first as to whether the prosecution has been able to prove the discharges beyond reasonable doubt. In this case, the prosecution, however, miserably failed to discharge of its onus to prove that the appellant has committed murder of his wife, particularly, when the learned trial Judge has not accepted the plea of guilty rather proceeded with trial. ( 21 ) IN the result, we allow the appeal and set aside the order of conviction and sentence against the appellant and acquit him of the offence of murder under Section 302 of the I. P. C. and direct that he shall be forthwith released from the jail provided of course be is not required in connection with any other case of charge. Appeal allowed.