Judgment Sarkar (II), J. This Criminal appeal is directed against the judgment of conviction and sentence passed by the learned Sessions Judge, Andaman and Nicobar Islands, Port Blair in Sessions case No. 4 of 1994 arising out of Mayabunder P.S. case No. 4/93 dated 10.1.1993. 2. The facts landing to this appeal are in short as follows:- The convict-appellant was married to the deceased in 1977. They lived as husband and wife for several years and three children, two female and one male were born to them. But with the passage of time, the relationship between the couple rapidly deteriorated. On the date of occurrence i.e. on 10.1.93 the deceased husband under influence of liquor as usual abused the convict-appellant and severely assaulted her and demanded more money for further drinks. The convict-appellant was forced to put with Rs.40/- and the victim went out with that amount and came back in drunken state. He abused the appellant, dragged her by the hairs and kicked her. The convict struck the husband on the head with a piece or 'faggot' as a result he fell down and the faggot was broken. Again the husband stood up and threatened to finish her. The wife out of fear pushed him down on the cot nearby and she jumped on him, tied his both the hands behind the back and with a 'Dah' struck him on the back of the neck several times, Victim was groaning. The convict turned the body face upside and cut the throat. She then changed her blood stained clothes covered the dead body with a wrapper, locked the door of the house and went to the house of one Sumitra Singh, a neighbour to call her three children who were witnessing the T.V. show in that house at that time. With the three children she went to the bus stop with the intention to catch the bus for Mayabunder P.S. but she learnt that the last bus already left. She then noticed the informant, viz. Dulal Banerjee on a cycle. The convict stopped Dulal Banerjee and told the entire story regarding the murder of her husband to him. Dulal Banerjee was Pradhan of the village and he asked the convict to go to Badamnallah Police Outpost and assured her that he himself would go to Mayabunder P.S. to inform the Police.
Dulal Banerjee on a cycle. The convict stopped Dulal Banerjee and told the entire story regarding the murder of her husband to him. Dulal Banerjee was Pradhan of the village and he asked the convict to go to Badamnallah Police Outpost and assured her that he himself would go to Mayabunder P.S. to inform the Police. Accordingly, Dulal Banerjee with one of his neighbour, Bahadur Singh went to Mayabunder P.S. on a motor bike and reported the incident to the Police at 22.45 hours when the F.I.R. was recorded by the Police and the Police came to the place of occurrence along with Dulal Banerjee, the informant and formal investigation was started. During investigation the confessional statement of the convict was recorded by the Magistrate under Section 164 Cr. P.C. Police also seized blood stained clothes, sharees etc. in presence of seizure witnesses under seizure list. Witnesses were also examined. Report of Serologist, Forensic expert and the postmortem report were all collected and on completion of investigation submitted charge-sheet under Section 302 IPC against the convict. 3. The learned Sessions Judge framed charge under Section 302 IPC and proceeded with the trial as the appellant pleaded not guilty to the charge. The learned Sessions Judge thoroughly examined the witnesses and the materials before him; examined the appellant under Section 313 Cr. P.C. and finally was pleased to find her guilt, to the offence under Section 304 (1) IPC and convicted her accordingly and sentenced her to suffer R.I. for 7 years with a fine of Rs.2,000/- and in default to undergo further sentence for six mouths. 4. On being aggrieved by such order of conviction and sentence, the convict has filed this appeal on the ground that she did not commit the murder of her husband, it was done by somebody else but the Police falsely implicated her and the evidence on record are also inadequate to justify her conviction. It has been finally submitted that she should be acquitted of the charge brought against her. 5. The learned Advocate for the appellant argued the case for two days, supported by number of decisions which are mainly on the general principles of Criminal trial.
It has been finally submitted that she should be acquitted of the charge brought against her. 5. The learned Advocate for the appellant argued the case for two days, supported by number of decisions which are mainly on the general principles of Criminal trial. Whatever it may be, after conclusion of the argument placed by the learned Advocate on the side of the appellant and the learned Advocate appearing for the State what we find is that, against the appellant only two points are there, one is extra judicial confession made by the convict just after incident to Dulal Banerjee, secondly her own confessional statement recorded by a Magistrate under Section 164 Cr. P.C. these are the two pillars on which the edifice of the prosecution case rests. Now the only question is whether the extra judicial confession as well as the judicial confession is voluntary confusion or not. It is a well settled principle of law that extrajudicial confession if found voluntary and true can form the basis of conviction even without corroboration. This view is supported by the Apex Court in its decision reported in (1) AIR 1971 SC 1871 ; (2) AIR 1975 SC 1320 . 6. There is no doubt that the first information was lodged by Dulal Banerjee and the F.I.R. shows that it was Dulal Banerjee who reported the incident at Mayabunder P.S. on 10.1.1990 around 22.05 hours and Dulal Banerjee put his signature on the recorded F.I.R. The Officer who recorded the information has also supported the fact that it was Dulal Banerjee who reported the incident to the Police Station and according to his information the F.I.R. was drawn up. In this context, the question will arise wherefrom Dulal Banerjee could know the facts of murder of the deceased i.e. the husband of the convict-appellant. How Dulal Banerjee could get the information in that night about the details of incident, as it appears from the F.I.R. unless he was reported so by the convict-appellant ? 7. It is suggested by the appellant's Advocate that Dulal Banerjee knew that somebody else committed the murder but to cover up the real culprit he falsely implicated the present appellant. This suggestion appears to have been given by the learned Advocate, there is no such whisper in the statement of convict-accused recorded under Section 313 Cr.
7. It is suggested by the appellant's Advocate that Dulal Banerjee knew that somebody else committed the murder but to cover up the real culprit he falsely implicated the present appellant. This suggestion appears to have been given by the learned Advocate, there is no such whisper in the statement of convict-accused recorded under Section 313 Cr. P.C. it is not raised anywhere that the appellant had any enemity with Dulal Banerjee, In the absence of any such ground it is very hard to accept the suggestion that Dulal Banerjee falsely implicated the convict-appellant. That apart the incident took place at about 18.30 hours and the incident was reported to Dulal Banerjee almost immediately. So the statement made by convict to Dulal Banerjee just after the incident was voluntarily made because, there is no such allegation that Dulal Banerjee influenced the convict by threat or any temtation to make such a false statement implicating herself. The Apex Court also in its decision reported in AIR 1975 SC at page 1230, has similarly emphasized that the extrajudicial confession by the accused can be based for conviction if made voluntarily. Therefore the extrajudicial confession that has been made by the convict to Dulal Banerjee is in our view absolutely voluntary. The evidence of Dulal Banerjee as a witness also supports this fact. Now regarding judicial confession recorded under 164 Cr. P.C., the first attack made by the appellant's Advocate is on the ground that the Magistrate has not been examined in this case. Usually, examining of the Magistrate who recorded the confessional statement of the accused, as a witness is not necessary. This view has been laid down by the Supreme Court in its earlier decision reported in (3) AIR 1952 SC at page 159, and its latest decision reported in (4) AIR 1981 SC at page 1165. Therefore, when the contents of the document that is the confessional statement is sufficient to disclosed the circumstances under which and the method according to which the statement has been recorded, it is not necessary to call the Magistrate for examination. 8. It is mentioned during examination under Section 313 Cr. P.C. that the convict was assaulted in Police custody in the night of 10.1.1993. Such assault can hardly affect the merit of the confessional statement which was recorded after three days while, the convict was in judicial custody.
8. It is mentioned during examination under Section 313 Cr. P.C. that the convict was assaulted in Police custody in the night of 10.1.1993. Such assault can hardly affect the merit of the confessional statement which was recorded after three days while, the convict was in judicial custody. It also appears from the confessional statement that the Magistrate explained the consequences of making such statement to the convict. The Magistrate enquired specifically if she was asked by anybody to make such statement under threat and temptation. Convict was given to understand clearly by the Magistrate, that if she makes any confessional state meat that may form the basis of her punishment. In spite of such precaution given by the Magistrate, it appears that the convict agreed to make confessional statement and the that she made was so rich in detail, and disclosed remote facts of her conjugal life from the date of marriage, the instantly husband E. Velu, that, hardly there is any scope for assumption that confessional statement was not voluntary. The convict-appellant did not disclose to the Magistrate that she was tutored by the Police or that the Police held out any threat or temptation to her. She did not file any petition before the trial Court that she was forced to make such confessional statement being misguided and under threat by Police. For the first time we find during examination under Section 313 Cr. P.C. that she has raised a story of threat and temtation by the Police. According to the Supreme Court even retracted confession may form the basis of conviction but corroboration in such case is desirable this view has been staled the Apex Court in its decision reported in (5) AIR 1963 SC 1094 . In this context it is also necessary to mention that confessional statement if not retracted at the earliest opportunity will be deemed voluntary, This principle is also supported by the decision of the Apex Court reported in (6) 1978 Cr. LJ at page 1414 (SC). 9. The details statement of fact contained in the confessional statement is sufficient to make it clear that the statement was voluntary. The decision of the Division Bench of Allahabad High Court reported in (7) 1997 Cr.
LJ at page 1414 (SC). 9. The details statement of fact contained in the confessional statement is sufficient to make it clear that the statement was voluntary. The decision of the Division Bench of Allahabad High Court reported in (7) 1997 Cr. LJ at page 3793, lays down that failure on the part of the Magistrate to get himself satisfied by questioning the accused that the confessional statement is voluntary will render the confessional in-admissible. This principal is not applicable to the present case, because the magistrate was satisfied by putting the questions to the convict-accused and also explaining to her the consequence of such statement if made. The satisfaction of the Magistrate is also recorded by the magistrate himself in the certificate appended by the Magistrate in the recorded statement. The learned Advocate for the appellant submits that the expression ‘Voluntary’ is necessary to be recorded by the Magistrate. In the instant case the certificate appended by the Magistrate i.e. Ext. 12 clearly indicates that the Magistrate has recorded that the convict-appellant made the confession voluntarily. So, mere submission that the confessional statement was not made voluntarily will not held the appellant in any way. Rather, we find that she has admitted during examination under Section 313 C.P.C. that she made the statement before the Magistrate. Once she has stated that she made false statement but on the next moment she has stated that she made the statement as tutored by the Police and again she has stated that under threat and temtation of being released from custody she made the statement. Thus the way of retraction from the confessional statement made by the convict is conflicting and contradictory. Therefore, no reliance can be given to such retraction. 10. The confessional statement to a great extent corroborates the extrajudicial confession made to Dulal Banerjee. 11. Accordingly, the extrajudicial confession and the judicial confession both appear to be made voluntarily. 12. That apart, it is suggested by the learned Advocate for the appellant that the Station House Officer of Mayabunder P.S. deliberately and falsely implicated the convict-appellant in this murder. Such suggestion has got no basis and such suggestion cannot form part of any substantive evidence. 13.
12. That apart, it is suggested by the learned Advocate for the appellant that the Station House Officer of Mayabunder P.S. deliberately and falsely implicated the convict-appellant in this murder. Such suggestion has got no basis and such suggestion cannot form part of any substantive evidence. 13. Prima facie the public servant must be presumed to act honestly and conscientiously and their evidence to be assumed on its intrinsic worth and cannot be discarded on the ground that being public servant they are interested in the success of the case of the prosecution. This principle has been laid down by the Supreme Court in its decision reported in (8) AIR 1978 SC 1571 . Similarly, it is laid down in (9) AIR 1956 SC 217 , that is not proper to distrust a Police Officer without ground and their evidence should not be disbelieved Only on the ground that they are Police Officers. Therefore, we do not find any substance in the submission made by the learned Advocate for the appellant that the SHO, Mayabunder P.S. falsely implicated the convict and fabricated the instant case of the prosecution against her. P.W. 9 viz. Dulal Banerjee has admitted in his cross-examination that the did not tell the Police at the time of lodging F.I.R. that Kasturi i.e., the convict told him that her husband assaulted her demanding money for liquor. The F.I.R. is a document containing the first information regarding a cognizable offence to the Police, it may not contain details of fact and F.I.R. is not a substantive evidence. Its importance lies in the fact that it sets in motion the investigation agency and it can be used only for corroboration and contradiction against the maker, but no other witnesses. We should not forget that a prosecution case may proceed even without any F.I.R. The Police may take up any investigation drawing up a formal F.I.R. receiving an information regarding cognizable offence even over the telephone therefore, the way in which the learned Advocate for the appellant stressed on the F.I.R. is not acceptable to us, in the background of the position of law. The learned Advocate for the appellant has also pointed out some minor omissions in the state meats of the witness recorded on oath. But, such omissions and minor contradictions cannot affect the probative value of the witnesses.
The learned Advocate for the appellant has also pointed out some minor omissions in the state meats of the witness recorded on oath. But, such omissions and minor contradictions cannot affect the probative value of the witnesses. It is laid down by the Apex Court in the matter of assessment of the probative value of the evidence of the rustic witnesses, in its decision reported in (10) AIR 1973 SC 2622 ; it is laid down clearly that variances of the fringes, discrepancies in details contradiction in narrations, and emblishment in inessential parts cannot militate against the varacity of core of testimony, provided there is an impress of truth and confirmity to probability in substantial fabric of testimony delivered. 14. That apart, if the evidence of a witness is found to be false in one respect the entire evidence should not be discarded. This view is supported by a decision of the Apex Court in its decision reported in 1976(1) SCC 2505. The learned Advocate for the appellant tried to argue that story of assault the convict made by the deceased husband just before the incident was not supported by any medical evidence the Doctor who examined the convict did not find any mark of assault on her person. It is not the case of anybody that due to such assault the convict received any severe injury. There may be intense pain due to kicks and punches, but it cannot be said with assurance that for such kicking or punching there could be physical injuries. So, the absence of physical injury on the person of the convict cannot disprove the fact of assault by the deceased to the convict just prior to the incident of murder. Besides the judicial confession and extrajudicial confession both contained statements regarding the assault by the deceased to the convict. Therefore, there is no cause for discarding that part of the evidence. 15. The learned Advocate for the appellant once more tried to point out that in postmortem examination no sign of liquor was found to the stomach of the deceased the Doctor's evidence does not contain any such statement that there was no existence of liquor in the stomach. The only state meat is that the stomach was found empty; and that was also about 24 hours after the alleged time of murder.
The only state meat is that the stomach was found empty; and that was also about 24 hours after the alleged time of murder. Naturally, rigor mortis already started and symptoms of drinking liquor was not found in existence after such long hours. The learned Advocate has produced the medical jurisprudence, one book by Dr. Modi and another by Dr. Lyons. There two books do not say how long the existence of liquor will be found in the stomach after the death. Therefore, these two books do not help the learned Advocate for the appellant to show that the prosecution’s case that the deceased took liquor before the fatal incident is false. After about 24 hours of death autopsy was held and the Doctor found the stomach empty. He did not say that no sign of liquor was there or that there was sign of liquor. Therefore, evidence of the Doctor being opinion evidence it can hardly override the evidence that we got from the judicial confession and extrajudicial confession. 16. Accordingly, after careful consideration of the evidence-on-record we find no defect in the impugned judgment or any reason to interfere with the same. The instant appeal has got no merit and it is liable to be dismissed. Hence the Criminal Appeal be and the same is hereby dismissed on contest. The judgment of conviction and the order of sentence passed by the learned Sessions Judge are hereby affirmed. Convict is to undergo the remaining part of the sentence in terms of the order of impugned judgment if she is in custody. If she is on bail, she is directed to surrender before the Trial Court immediately and the Trial Court is to take her in custody and commit her by warrant to the prison to serve out the remaining sentence. The order regarding the Alamat passed by the Trial Court is not interfered with. Mitra, J. : I agree.