Judgment :- (1.) THIS appeal is directed against a judgment and order dated 22nd May, 2003, and 23rd May, 2003, passed by Sri T. K. Gupta, Learned Additional Sessions Judge, 1st Court, howrah, in Sessions Trial Case No. 178 of 2002 convicting the appellants under sections 302 and 201 of the Indian Penal Code read with section 34 thereof. By the order dated 23rd May, 2003, both the convicts appellants were sentenced to suffer imprisonment for life and to pay a fine of Rs. 10,000/-each in default to undergo further rigorous imprisonment for a period of two years for the offence punishable under sections 302 of the IPC read with section 34 of the IPC. No separate punishment for the offence punishable under section 201 of the IPC was, however, inflicted. (2.) THE case of the prosecution briefly stated is that on 21st May, 2002 the accused Salil Das and the accused Mahela Bibi along with her husband the deceased Fakir came to the house of Sufal Sarkar. After taking dinner, these three persons went to sleep at the roof of the house of PW-1, Sufal Sarkar. PW-1 Sufal Sarkar is the husband of the sister of the accused Salil Das. In the dead of the night Sufal Sarkar allegedly was informed by his wife Bani, PW-2, that her brother Salil das and the accused Mahela Bibi had murdered Sk. Fakir and the body was thrown into the adjoining pond called "hatpukar". Sufal Sarkar, thereafter, informed the police. The police came and the body was recovered. Both the accused persons made extra-judicial confession that they had committed the crime. Both the accused were charged under section 302 read with section 34 of the Indian Penal Code and under section 201 of the Indian Penal Code read with section 34 of the Indian Penal Code. The learned Trial Judge convicted the accused persons under both the charges levelled against them. (3.) MR. Kamal, the learned Advocate, appearing for the appellant, submitted that this is one of those rare cases where the police in collusion with the PW-1 who is an influential person inflicted greatest possible harm to the accused persons who, according to him, are wholly innocent. The police has been instrumental, according to him in fabrication of the record and securing a judgement on the basis of untrue and incorrect evidence. The police has been instrumental, according to him in fabrication of the record and securing a judgement on the basis of untrue and incorrect evidence. He submitted that not only the conviction should be set aside but adequate compensation should also be granted by this court for respectable rehabilitation of the accused in the society who are victims of false implication. (4.) MR. Dutta Gupta, the learned Advocate, appearing for the State, however, disputed the submissions made by the learned Advocate, appearing for the Appellant. (5.) WE shall consider the evidence in some detail. The learned Trail judge in convicting the accused persons has opined as follows :-"on careful scrutiny of the entire evidence on record, both oral and documentary I found that the prosecution was able to prove as well as establish the following facts and circumstances namely : i) In the night of 21. 5. 2002 accused Salil Das along with accused Mahela Bibi and her husband Sk. Fakir took shelter in the house of de facto complainant Sufal Sarkar, husband of Salils sister Bani Sarkar. ii) In that night accused Salil along with accused Mahela and her husband Sk. Fakir slept in the roof of said house and that salils sister Bani provided them beddings. iii) In the midnight Salil came down and informed her sister bani that he and Mahela committed murder of Mahelas husband Fakir in the roof and they drowned the dead body in the water of nearby tank named Hatpukur. iv) Accused Salil prayed for mercy to her sister Bani as well as to Banis husband Sufal but police was called by Sufal. v) Police came and dead body of Sk. Fakir was recovered from the v/ater of Hatpukur as shown by accused Salil in presence of police and others. vi) The blood stained beedings, wearing apparels and weapon of assaults namely katari and razor all blood stained were recovered from the roof of the house of Sufal Sarkar and were seized under seizure lists. vii) Post Mortem examination reveals presence of incised wounds on the person of victim Sk. Fakir which were ante mortem and homicidal in nature and which might be caused by a katari. viii) Accused Salil had an illicit relation with accused Mahela and that as a result there was family dispute in between accused Mahela and her husband Sk. Fakir, the victim of this case. Fakir which were ante mortem and homicidal in nature and which might be caused by a katari. viii) Accused Salil had an illicit relation with accused Mahela and that as a result there was family dispute in between accused Mahela and her husband Sk. Fakir, the victim of this case. (6.) IN this connection learned Defence Counsel referred certain case laws on the point of appreciation of circumstantial evidence and submitted that the prosecution was not able to prove the alleged circumstances to form a complete chain to prove the alleged charge under section 302/34 IPC against the accused persons. In this "connection he referred case laws reported in 2003 C. Cr. LR 147, 2003 c. Cr. LR (SC) 36 and 2000 Cri. LJ 1869 (HP). On perusal of those case laws find that facts of those cases did not tally with the fact of the instant case. In none of the referred cases accused persons made extra judicial confession before his relation. As such those case laws cannot be pressed into service in the instant case having distinct set of facts. (7.) ACTUALLY the essential requisite for basing conviction on circumstantial evidences are as follows :- 1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. 2) The facts so established should be consistent only with the hypothesis of the guilt of the accused. 3) The circumstances should be of a conclusive nature and tendency. 4) They should exclude every possible hypothesis except one to be proved; and 5) There must by chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and it must show that in all human possibility the act must have been done by the accused persons. (8.) FROM above discussions it is clear that the prosecution has been able to establish the circumstances as stated above and that the fact so established were consistent only with hypothesis of the guilt of the accused. Again those proved circumstances were of conclusive nature and excluded every possible hypothesis except the one to be proved and that the chain of evidence was complete leaving no reasonable ground for the conclusion consistent with the innocence of the accused. Again those proved circumstances were of conclusive nature and excluded every possible hypothesis except the one to be proved and that the chain of evidence was complete leaving no reasonable ground for the conclusion consistent with the innocence of the accused. Accordingly, I am of opinion that the prosecution has been able to prove beyond reasonable doubt from the evidence on record that both the accused persons namely Salil Das and Mahela Bibi committed the offence of murder of Mahelas husband Sk. Fakir and that they tried to conceal their misdeed by throwing the dead body in the water of hatpukur. Accordingly, I find and hold that the prosecution has been able to prove beyond reasonable doubt that both the accused persons are guilty of committing offence under sections 302/34/201 IPC. As this is a case of murder, the question of applying lenient provisions of probation of Offenders Act does not arise. (9.) EACH of the eight propositions and/ or circumstances taken into consideration by the learned Trial Judge for the purpose of convicting the accused persons, is indeed open to serious objection. (10) THE first proposition of fact or the circumstance found against the accused persons, for convenience, is once again set out hereinbelow. "in the night of 21. 5. 2002 accused Salil Das along with accused mahela Bibi and her husband Sk. Fakir took shelter in the house of de facto complainant Sufal Sarkar, husband of Salils Sister Bani sarkar. " (11.) PW 2 Bani Sarkar, wife of de facto complainant who happens to be the full sister of the accused Salil Das deposed as follows : "on 21. 5. 02 at about 4. 00 p. m. my brother Salil Das and two other persons out of which one female and another male person had been to our house. They told me that they are willing to go to Haldia for marketing. As the train to go to Haldia is available at 4. A. M. , it is not possible for them to avail that train for which they came to our house and wanted to stay in the night. They told me that they are willing to go to Haldia for marketing. As the train to go to Haldia is available at 4. A. M. , it is not possible for them to avail that train for which they came to our house and wanted to stay in the night. " (12.) PW 8 son of PW2 in his evidence stated that he was reported by his mother, the PW 2, that his maternal uncle had arrived at their house with a Mohammedan male and female at 4.00 P.M.P.W. 15, Sub-Inspector, h. N. Bag, the I.O., was told by the PW2 that her brother and the two other persons had come to her house at 3. 00 P. M. on 21st May 2002 but she did not tell him that in order to avail a train at 4 A.M. in the following morning they wanted to stay at her house during the night. In the written complaint, which has been marked exhibit 1, lodged by the PW 1, the husband of the P.W. 2, it is alleged that at 6. 30 P. M. , the pw 1 came back home and found that his brother-in-law Salil Das along with a Mohammedan couple had come to their house. There is, therefore, no evidence before us to hold that the accused persons together with the deceased had come to the house of PW1 in the night of 21st May, 2002. This circumstance found by the learned Trial Judge is wholly contrary to the evidence on record. (13.) THE second circumstance and/or the proposition of fact held by the learned Trial Judge in convicting the accused persons for convenience is once again set out hereinbelow :- "in that night accused Salil along with accused Mahela and her husband Sk. Fakir slept in the roof of the said house and that Salils sister Bani provided them beddings. " P.W. 2 in her evidence stated as follows :-"after providing dinner I told them to take sleep in the room. They told me that they will sleep in the roof due to hot season. Thereafter, i gave beddings. These are the beddings which I provided them. The seized beddings have already been marked material ext. 1. " P.W. 2 in her evidence stated as follows :-"after providing dinner I told them to take sleep in the room. They told me that they will sleep in the roof due to hot season. Thereafter, i gave beddings. These are the beddings which I provided them. The seized beddings have already been marked material ext. 1. They had been to roof for sleeping at about 10.30 to 11.00 p. m. " (14.) THIS evidence of PW 2 becomes suspicious when we consider the evidence of the autopsy surgeon PW 14. There is evidence, which shall be discussed hereafter, that by 3.00 A.M. not only Fakir had been killed but his body had also been disposed in the pond. The autopsy surgeon found the stomach of fakir empty. His evidence is as follows :- "digesting after food (meal) it requires about 6 hours. It may take about 8 to 10 hours in some cases. It varies and depends on gastric movement of a person. It may be continued for 24 hours in some cases. I find the stomach of the victim was empty. " pw 1 in his written complaint has alleged as follows :-"after having the dinner all three of them went to bed on my roof top at night. They took a sataranji (durrie), a kantha cotton wrapper and a pillow from my wife. " pw 1 in his evidence deposed as follows :-"my wife also told me that my brother-in-law, one female and another person came to my house and they were taking sleep on the roof of my building. " (15.) THE statement made in the written complaint goes to show that the de facto complainant not only knew that the guests had come but also he knew that they had slept at the roof after taking dinner whereas the evidence given in Court goes to show that he for the first came to know from his wife that guests had come and they were sleeping on the roof. (16.) ADMITTEDLY, there were six members in the family the couple (P.W. 1 and 2) their three children, and a paying guest Abhya Mukherjee. But the only other family member who has been examined is PW 8, son of pws 1 and 2. (16.) ADMITTEDLY, there were six members in the family the couple (P.W. 1 and 2) their three children, and a paying guest Abhya Mukherjee. But the only other family member who has been examined is PW 8, son of pws 1 and 2. The PW 8 does not even appear to have seen the guests in the house which would appear from his following evidence:-"on 21.5.02 at about 10.00 p. m. when I returned to our house after completion of tution my mother told me that my maternal uncle Salil das has come to our house. My mother also told that one Didi (patano)of Salil and his husband has also come to our house at about 4. 00 P.M. " (17.) THE evidence of P.W, 1 is thus contrary to his statement made in the written complaint. The evidence of P.W. 2 is highly improbable because it is in conflict with the medical evidence." (18.) THERE is, therefore, no dependable evidence to hold that in the night the accused Salil Das along with the accused Mahela Bibi and the victim Sk. Fakir after taking dinner slept in the roof. The second finding, of the learned Trial Judge, quoted above cannot in our view be supported. (19.) THE third proposition of fact found by the learned Trial Judge and/ or the circumstances which weighed with him in convicting the accused persons is as follows :- "in the midnight Salil came down and informed her sister Bani that he and Mahela committed murder of Mahelas husband Fakir in the roof and they drowned the dead body in the water of nearby tank named Hatpukur. " (20.) THIS finding is based on the evidence of P.W. 2, Bani Sarkar, which is as follows :- "at about 3.00 a.m. on 25.5.02 the accused Salil knocked the door of my room. When I opened the door I found that Salil was wearing one wet lungi. He also told me to shut the door and window. On my query he told me when they had been to the roof of our building to sleep there was quarrelling over the issue of money between the other two persons who came to my house on that very date. He also told me to shut the door and window. On my query he told me when they had been to the roof of our building to sleep there was quarrelling over the issue of money between the other two persons who came to my house on that very date. He also disclosed that they have committed murder to one Fakir, the husband of Mahela." (21.) P.W. 15, the I.O. has contradicted the P.W. 2 by deposing that she did not tell him that the accused Salil had asked her to shut the door or the window nor did she tell him that the accused Salil had told her that the husband and wife were quarreling on the roof over money matter or any other matter nor did she tell him that the accused Salil had confessed to her that the dead body of Fakir had been thrown into the pond known as Hatpukur. (22.) P.W 1 has also contradicted the evidence of the PW2 by deposing that "on 22.5.02 I was asleep. At that time my wife, Bani Sarkar knocked my door. It was about 2/2.30 a.m. As such I woke up. My wife told me to come out from the room and she told that a murder has been committed". The P.W. 1, therefore, was not told as to who had been murdered. If the door of P.W. 2 according to her evidence was knocked at by the accused salil at 3 P.M. , as deposed by her, how could she knock the door of her husband for the purpose of giving the information at 2/2. 30 P.M. which she herself received at 3 P.M. is a great mystery. (23.) THE written complaint, which is exhibit 1, filed by the P.W. 1 interestingly enough contradicts the evidence given by the P.W. 1 in court which has been noticed above. In the written complaint, the P.W. 1, alleged that "when I opened the door my wife informed me that my brother-in-law and his called sister (the relation formed by mutual consent only) Mahela jointly killed Sk. Fakir. In the written complaint, the P.W. 1, alleged that "when I opened the door my wife informed me that my brother-in-law and his called sister (the relation formed by mutual consent only) Mahela jointly killed Sk. Fakir. They dropped his corpse beside Hatpukur from the southern side of the roof, drew it over the cemented ghat to the north-east corner of the pond and burried it in the bog near bamboo grove." (24.) THE aforesaid allegation to be found in the written complaint was not supported either by the de facto complainant, the P. W. 1, or his wife the P. W. 2. (25.) ACCORDING to the evidence of P. W. 1 "on interrogation police came to know from the accused persons that they have thrown the dead body to the water of the pond." Accordingly to the evidence of P. W. 2. "on query by Police Salil told they have thrown the dead body of fakir in the water of Hatpukur. Thereafter police had been to hatpukur accompanied by Salil. " (26.) THE only other family member, who deposed in this case, is P.W. 8, the son of P. W. 1 and 2. He deposed that Salil had confessed to his mother, the P.W. 2 that Salil and Mahela had murdered Sk. Fakir. However, P.W. 8 in his cross-examination admitted as follows :- "i did not state to police that the accused Salil confessed his guilt before Police that he and Mahela committed murder to the husband of Mahela by means of sharp cutting katari." (27.) P.W. 3, S. I., Biman Dey, and P.W. 12, the O.C., Mr. Haque, deposed that the accused persons had confessed that they had killed Sk. Fakir and had drowned the dead body in the pond. Therefore, the only witness to whom the alleged confession was made are P.W. 3 and P.W. 12 which is not admissible under sections 25 and 26 of the Evidence Act. The alleged confession in any event is of no value for the simple reason that an alleged confession extra-judicial in nature can be acted upon provided the confession is believable. If any authority is needed for this proposition, reference may be made to the judgment in the case of State of Rajasthan v. Rajaram reported in 2003 (8) SCC 180 paragraphs 18 to 20. If any authority is needed for this proposition, reference may be made to the judgment in the case of State of Rajasthan v. Rajaram reported in 2003 (8) SCC 180 paragraphs 18 to 20. (28.) THE story that the dead body was thrown from the roof into the pond is absolutely unbelievable. In the dead part of night if a human body, dead or alive, is dropped from a height of 20 to 25ft into water or even on the floor, the sound likely to be generated shall be very high. No one complained about any sound. The allegation made by the P. W. 1 in the written complaint makes the thing even more improbable. The allegation is :-they dropped his corpse beside Hatpukur from the southern side of the roof, drew it over the cemented ghat to the north-east corner of the pond and burried it in the bog near bamboo grove. " (29.) IMAGINE the time the alleged operation might have taken to be carried out. (30.) P. W. 1 has deposed that the height of his building from the roof, where the accused and the deceased were allegedly sleeping, is twenty two feet. The autopsy surgeon in his cross-examination has admitted that if a person, either dead or alive, is thrown from the height of twenty to twenty-five feet, a fracture injury is bound to be there. His evidence in this regard is as follows :-"in case of throwing a body (alive or dead) from 20-25 ft. height it is expected dislocation, fracture etc. I find no injury on the head of person. In case of throwing a body from 20-25 ft. height there may or may not be damage of kidney, liver etc. " (31.) WE are, therefore, of the view that the evidence of the couple, the P. W. s 1 and 2, is not believable. It is full of contradictions. The confession allegedly made to the P. W. 2 by the accused person is not believable at all. The confession allegedly made to the police is not admissible in evidence. The story that the dead body of the deceased was thrown or dropped from the roof is equally untrue. It is full of contradictions. The confession allegedly made to the P. W. 2 by the accused person is not believable at all. The confession allegedly made to the police is not admissible in evidence. The story that the dead body of the deceased was thrown or dropped from the roof is equally untrue. (32.) FOR the aforesaid reasons, we are of the view that the third proposition of fact or the circumstance found by the learned Trial Judge is wholly against the weight of the evidence on the record. (33.) THE fourth proposition of fact relied upon by the learned Trial judge is as follows:-"accused Salil prayed for mercy to her sister Bani as well as to banis husband Sufal but police was called by Sufal. " (34.) P.W. 1, Sufal Sarkar, in his evidence has not deposed that the accused, Salil Das, prayed for mercy from him. P.W. 2, however, deposed as follows : "then Salil wanted mercy by pulling our leg." P.W. 15, the I.O. , has contradicted the P.W. 2 by saying as follows : "the witness did not state to me that accused Salil prayed for mercy by pulling the leg of Bani Sarkar and her husband Sufal Sarkar. " P.W. 8 deposed as follows : "salil pulled my mothers leg and told my mother to save him. " (35.) EVEN P.W. 8 does not corroborate the evidence of P.W. 2 that the accused prayed for mercy of either of his parents. On them top of that, P.W. 8 has deposed that "i was not fnterrogated by the police and my statement was not recorded." (36.) WE are amazed that in this state of evidence the learned Trial judge found the alleged circumstances against the accused persons. (37.) THE fifth circumstance or the proposition of fact found by the learned trial judge is as follows :-"police came and dead body of Sk. Fakir was recovered from the water of Hatpukur as shown by accused Salil in presence of police and others. " (38.) P.W. 1 has deposed in his evidence that the pond is 10-15 fts. away from his house. According to him, the dead body was found at a distance of 100-150 fts. away from his house. P.W. 7 deposed that at 4 P.M. the body was brought out. " (38.) P.W. 1 has deposed in his evidence that the pond is 10-15 fts. away from his house. According to him, the dead body was found at a distance of 100-150 fts. away from his house. P.W. 7 deposed that at 4 P.M. the body was brought out. P.W. 1 has in this regard further deposed as follows :-"on identification of the accused police brought out the dead body from the water of the pond which is commonly known as Hatpukur." (39.) WE have noticed that the allegation in the written complaint is that not only the body was dropped from the roof but it was also burned which was not supported at the trial by the defacto complainant himself. P.W. 2 has gone a step further. She deposed that "salil brought out the dead body from water." (40.) P.W. 15, the I.O. deposed that "we recovered the body." Therefore he does not corroborate the evidence of P.W. 2 that Salil recovered the, body nor does he corroborate the evidence of P.W. 1 that as per indication or as pointed out or as shown by Salil the body was recovered. Who actually entered into the water and recovered the body is, however, a mystery and there is no evidence whatsoever in that regard. Let alone the story to be found in the written complaint as regards burial of the body in the bog. (41.) P.W. 3, the S.I. , Biman Dey deposed that "we entered into the house of Sufal Sarkar with the help of local people," who were these local people, however, has not been disclosed by him. (42.) P.W. 8 deposed that Sikul Deo Singh and Biswanath had been called by the police. P.W. 12, the O.C. , Mr. Haque also deposed that Sikul deo Singh and Biswanath Sarkar, the neighbours of P.W. 1 had accompanied them. From the evidence of P.W. 1 it appears that Sikul deo Singh is the closest neighbour of P.W. 1 Sikul Deo Singh has not been examined. Biswanath Sarkar is the P.W. 7. He did not disclose in his evidence as to who actually brought out the dead body from the water. (43.) P.W. 12, the O.C., Mr. Haque deposed that the duty officer, Gobinda das, had informed him about the incident in the house of P.W. 1. Biswanath Sarkar is the P.W. 7. He did not disclose in his evidence as to who actually brought out the dead body from the water. (43.) P.W. 12, the O.C., Mr. Haque deposed that the duty officer, Gobinda das, had informed him about the incident in the house of P.W. 1. The said duty officer, Gobinda Das, has not been examined nor is the diary allegedly recorded by Gobinda Das disclosed. (44.) THERE is, thus, no dependable evidence to show that the dead body was at all recovered from the pond. The medical evidence is blissfully silent on this aspect of the matter. (45.) THE sixth proposition of fact or the circumstance which weighed with the learned trial judge in convincing the accused person is as follows :-"the blood stained beddings, wearing apparels and weapon of assaults namely katari and razor all stained were recovered from the roof of the house of Sufal Sarkar and were seized under the seizure list. " the alleged recovery is gravely in doubt. P.W. 2 deposed as follows :-"then police again had been to our roof accompanied by Salil and recovered the blood stained katari which was lying by the side of water tank and also seized the beddings. Thereafter police left for p. S. along with the accused persons on the next following morning at about 7. 30 a. m. on 25. 5. 02 Police left the P. O. " (46.) ACCORDING to P.W. 3, the S. I. , Biman Dey, the period of their stay in the house of the P.W. 1, is as follows : "we rushed to the house of Sufal Sarkar at about 3. 30 a. m. We returned to Bagnan P. S. at about 9. a. m. on 22.5.02". (47.) EXHIBIT 2 is a seizure list by which the offending katari was allegedly seized from the roof of the house of Sufal Sarkar on 22nd may,2002 between 09.05 and 09.25 hours. Exhibit 3 is a seizure list under which a mattress, three pillows, one wrapper, a lungi and earth both controlled and blood stained were allegedly seized from the roof of the house of Sufal Sarkar during 08.40 hours and 09.05 hours on 22nd may, 2002. Exhibit 3 is a seizure list under which a mattress, three pillows, one wrapper, a lungi and earth both controlled and blood stained were allegedly seized from the roof of the house of Sufal Sarkar during 08.40 hours and 09.05 hours on 22nd may, 2002. Exhibit 4 is a seizure list by which old saree soaked in water with blood stain was recovered from the bathroom of Sufal Sarkar during 09.40 and 09.50 hours on 22nd May, 2002. Exhibit 5 is a seizure list by which a full sleeve old shirt and a lungi, both blood stained, were recovered from the bathroom of Sufal Sarkar during the period 09.30 and 09.40 hours on 22nd May, 2002. Exhibit 11 is a seizure list by which one dry bamboo leaf stained with blood was seized from outside, right side of the exit gate of the building of Sufal Sarkar during 09. 50 and 10.10 hours. Exhibit 12 is a seizure list under which one razor in a broken condition was seized from the roof of a building under construction situate adjacent to the western side of the building of Sufal sarkar between 10.10 and 10.20 hours. Each of the seizure lists was witnessed by Biswanath Sarkar (P.W. 7), Sufal Sarkar, (P.W. I), somenath Sarkar, (P.W. 8), and Sikul Deo Singh who has not been examined. Biswanath Sarkar, P.W. 7, apart from identifying his signature on the seizure list could not throw any significant light on the seizure of the articles. P.W. 8, Somenath Sarkar, deposed as follows : "1 do not know the contents of the seizure list. " (48.) P.W. 1 similarly did not throw any significant light on the seizure of the aforesaid articles except for identifying his signature on the seizure list. We have already seen that according to P. W. 2 the police had left her house at 7.30 A. M. According to P.W. 3. the S. I. , Biman Dey, the police had left by 9 A.M. Even assuming that the evidence of P.W. 3 is correct the seizure lists mentioned above could not have been prepared in the house of P.W. 1 because they purport to have been prepared between 8.40 hours and 9.40 hours. The evidence of P.W. 7 goes to suggest that the seizure lists were prepared at 4 A.M. on 22nd may, 2002 which also renders the seizure lists doubtful. The evidence of P.W. 7 goes to suggest that the seizure lists were prepared at 4 A.M. on 22nd may, 2002 which also renders the seizure lists doubtful. The significance of the bathroom, from where the material exhibits viz. bloodstained saree, a full sleeve old shirt and a lungi both bloodstained were seized, has not been disclosed by anyone. If all the three persons including the two accused were on the roof, how did the blood stained wearing apparel find its way to the bathroom could not be followed. The significance of the razor seized and marked Ext. 3, from the roof of an under-construction adjoining house has not even been investigated much less proved. (49.) THE seizure lists do not inspire any confidence. On the top of that, there is no dependable evidence that the wearing apparels were the wearing apparels of the accused or the deceased. P.W. 15 has also admitted that the wearing apparel had not been worn by Salil. On the top of that the learned Trial Judge proceeded on the erroneous basis that the bloodstained razor was seized from the roof of the house of Sufal Sarkar (P.W. 1). (50.) THE seventh proposition of fact and circumstance found by the learned Trial Judge in convincing the accused person reads as follows : "post Mortem examination reveals presence of incised wounds on the person of victim Sk. Fakir which were ante mortem and homicidal in nature and which might be caused by a katari," it is true that P.W. 14 deposed as follows : "in my opinion death was due to shock and haemorrhage following above mentioned cut throught injury which is ante mortem and homicidal in nature. Injuries are possible in case of assault by a katari which is produced to day in Court. This is the P. M. report prepared my me (marked Ext. 9). " (51.) BUT the point of significance which did not occur to the learned trial Judge is the fact that a razor was seized from the top of an adjoining under construction house. That razor was also sent to the forensic laboratory and the forensic laboratory has reported that the razor contained blood mark. The F.S. L. report is exhibit 13. That razor was also sent to the forensic laboratory and the forensic laboratory has reported that the razor contained blood mark. The F.S. L. report is exhibit 13. The relevant portion of the F. S. L. report reads as follows :- "blood was detected in all the items marked A (Katari), B (Sari), c (Lungi and half shirt), D (Lungi), E (bamboo leaf), F (Razor) and g (content of glass phial)." (52.) THE assault in all probability was by the razor because the wound found was an incise wound. The katari produced by the police was a rusted one and the razor was not shown to the doctor. The fact that the razor was seized from the adjoining house strongly suggests that the actual place of occurrence is somewhere else and not the house of the P. W. 1. (53.) LASTLY, the learned trial judge advanced the following proposition of fact : "accused Salil had an illicit relation with accused Mahela and that as a result there was family dispute in between accused Mahela and her husband Sk. Fakir, the victim of this case." (54.) THE only evidence with regard to the alleged illicit relationship between Salil Das and Mahela Bibi is that of the P.W. 9 and P.W. 10. P.W. 9 has deposed that there was such a rumour in the locality which has no evidentiary value. P.W. 10, son of the deceased, deposed that there was illicit relationship between Mahela Bibi and the accused Salil Das. But he has admitted in his cross-examination that he is a resident of bombay. He works there as a Jari worker. He has also deposed that because of the alleged illicit relationship between Mahela Bibi and Salil das, there was dispute between his father and the mother. (55.) THE evidence of a non-resident witness in the first place does not inspire confidence. He did not also disclose as to what had he seen on the basis whereof he came to the aforesaid conclusion. He also did not disclose what dispute if any he had seen. If we accept that there was an illicit relationship between Mahela Bibi and Salil Das and that, that was the cause of dispute between Mahela and her husband, then it is not possible to accept that her husband Sk. He also did not disclose what dispute if any he had seen. If we accept that there was an illicit relationship between Mahela Bibi and Salil Das and that, that was the cause of dispute between Mahela and her husband, then it is not possible to accept that her husband Sk. Fakir will accompany mahela Bibi and her paramour Salil Das and that too in the house of salils brother-in-law. What is still more difficult to believe is that in that case Fakir would agree to lie with his wife in the open roof of the house of P. W. 1 when her paramour was also lying around. Only one mattress and one wrapper and three pillows were allegedly provided to them which would go to suggest that they had shared one bed which is also not believable if there was illicit relationship between Mahela and salil. We are, therefore, unable to accept this proposition. There is no dependable evidence to show that there was any illicit relationship between Salil Das and Mahela Bibi. (56.) THESE are the circumstances found by the learned Trial Judge for the purpose of convincing the accused persons, which are not based on evidence and could not have been arrived at on proper appreciation. Therefore, the raison detre of the conviction is gone. (57.) EXHIBIT 1, the written complaint, was made after the investigation had started. No lengthy reasoning is required to establish that. The following allegation appearing in the written complaint would make it clear : "the police came and as shown by my brother in law Salil Das, they recovered the corpse from the water at a distance of 20 feet from the bank to the north east corner of the pond (Hatpukur)." (58.) EVIDENTLY the complaint was lodged after the investigation had already started. How long after commencement of the investigation was the written complaint lodged is, however, anybodys guess. The written complaint and the formal F.I.R. were produced before the concerned magistrate on 23rd May, 2002. According to the evidence of the P. W. 1, the police station is situate at a 5 minutes walking distance from his house. According to the I.O. (P. W. 15) the police party started from the P.S. at 3.20 A.M. According to the S.I. (P. W. 3) they reached the P.O. at 3.30 A. M. According to the Officer-in-Charge, Mr. According to the evidence of the P. W. 1, the police station is situate at a 5 minutes walking distance from his house. According to the I.O. (P. W. 15) the police party started from the P.S. at 3.20 A.M. According to the S.I. (P. W. 3) they reached the P.O. at 3.30 A. M. According to the Officer-in-Charge, Mr. Haque (P.W. 12} "we received a written complaint from Sufal Sarkar. Then we found the accused. " Accordingly to P.W. 7 the body was recovered at 4 A.M. Therefore, the F. I. R. should have been received before 4 A. M. whereas the F.I.R. appears to have been received at 07.25 hour on 22nd May, 2002. It was produced before the learned S. D. J. M. on 23rd May, 2002 for which there is no explanation. The accused were arrested on 22.5.02 at 8.05 A. M. to the I.O. (P. W. 15). He admitted that they were produced before the Court of learned S.D.J.M on 23.5.02. The actual time of production has not been recorded in the case diary. He admitted that the accused were produced before the learned S.D.J.M after expiry of 24 hours. There is nothing to show, as admitted by the P.W. 15, that the wearing apparels were worn by the accused Salil. He also admitted that no personal belonging of the accused was seized by him. (59.) THE anomaly as regards : a) the actual time when the written complaint was received; b) the suspicious character of the seizure lists discussed above; c) omission to investigate into the relevance of the razor recovered from the roof of an adjoining house; d) omission to investigate into the relevance of the blood stained clothes seized from the bathroom of the P. W. 1; e) omission to ascertain the actual date and time of death of the deceased; f) omission to examine all the six family members of the P. W. 1; g) omission to examine the neighbours; h) untrue evidence given by the officers of the police discussed above i) untrue evidence of the P. W. 1 and 2 and their son the P. W. 8 go to establish that the officers of police acted hand in glove with the P. W. 1. A question may arise as to why did they do so? A question may arise as to why did they do so? (60.) P. W. I in his evidence has furnished an answer to this Question which is as follows : "I am a Journalist of Ananda Bazar Patrika. I have got press card. I am reporter for the last 20-25 years. As a reporter I used to go elsewhere for collection of news. As a reporter I am acquainted with different P. S. of different Dist. including minister level. " (61.) HE also admitted that his first wife died an unnatural death. The second wife is the sister of the first wife. A son and a daughter born out of the first marriage maintain no connection with him. (62.) THERE is no dependable evidence on the record to show that Sk. Fakir at all came to the house of Sufal Sarkar on 21st May, 2002. There is no evidence whatsoever even by approximation to show the actual date and time of death of Sk. Fakir. Even assuming that the dead body of Sk. Fakir was recovered from the pond, it is quite likely that he was killed at some other place on some other day. Seizure of the bloodstained razor from the roof of the adjoining under-construction building lends support to this hypothesis. There is no dependable evidence direct or circumstantial to establish that the accused persons were in anyway connected with causing death of the deceased. On the top of that P. W. 15 deposed that "P.W. 2 further stated to me that the female accused mahela came to the house of P.W. 2 earlier. " P.W. 2 accepted this "not a fact that I did not state to police that the female accused came to our house on earlier occasion prior to this incident. But subsequently, P.W. 2 sought to resile from this. The actual story is far different from the one presented to the Court by the prosecution and the defacto complainant. (63.) THE ommissions and commissions of the Police, discussed above, go to establish that they took a false written complaint from the P.W. 1, after embarking upon investigation, in order to falsely implicate the appellants and to screen the actual offender. We are of the view that ends of justice cannot be secured by simply acquitting the appellants. The social stigma attached to them is not likely to be washed out soon. We are of the view that ends of justice cannot be secured by simply acquitting the appellants. The social stigma attached to them is not likely to be washed out soon. Not only the appellants but also their family members more particularly their children are likely to be the worst sufferers. Respect and esteem of the fellow members of the society is possibly ones greatest possession. Money cannot restore it. But an acquittal even with a token amount of compensation is likely to provide a balm to the wounded feelings and tarnished image of the appellants. Mr. Dutta Gupta appearing for State, submits that we have no jurisdiction to grant compensation while allowing the appeal. (64.) IN the case of Smt. Nilabati Behera v. State of Orrisa and Ors. reported in AIR 1993 SC 1960 Their Lordships treated a letter dated 14th september 1988 as a writ petition under Article 32 for determining the claim of compensation made therein consequent upon the death of petitioners son Suman Behera, aged about 22 years, in police custody. In awarding compensation. Their Lordships relied upon the Article 9(5) of the International Covenant of Civil and Political Rights 1966 which reads as follows :-"anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation." (65.) THEIR Lordships in that judgment relied on an earlier judgment in the case wherein it was said that the Court is not helpless to grant relief in a case of violation of the right to life and personal liberty and it should be prepared to forge new tools and device, new remedies for the purpose of vindicating this precious fundamental rights. Their lordships also relied on the judgment in the case of Union Carbide corporation v. Union of India reported in 1991 (4) SCC 584 wherein Mishra cj had held that "we have to develop our own law and if we find that it is necessary to construct a new principle of liability to deal with an unusual situation which has arisen and which is likely arise in future. . . . . . . , there is no reason why we should hesitate to evolve such principle of liability. . . . . " In the aforesaid judgment Courts jurisdiction under articles 32 and 226 of the Constitution of India to award monetary compensation was reiterated. . . . . . . , there is no reason why we should hesitate to evolve such principle of liability. . . . . " In the aforesaid judgment Courts jurisdiction under articles 32 and 226 of the Constitution of India to award monetary compensation was reiterated. (66.) IN the case of D. K. Basu v. State of West Bengal reported in 1997(1) SCC 416 Their Lordships held that the objective sought to be achieved in awarding compensation is "to apply balm to the wounds". In paragraph 54 of this judgment Their Lordships held as follows : "thus, to sum up, it is now a well-accepted proposition in most of the jurisdictions, that monetary or pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citizen by the public servants and the state is vicariously liable for their acts. The claim of the citizen is based on the principle of strict liability to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the State, which shall have the right to be indemnified by the wrongdoer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the criminal courts in which the offender is prosecuted, which the State, in law, is duty bound to do. The award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortious act committed by the functionaries of the State. The quantum of compensation will, of course, depend upon the peculiar facts of each case and no straight-jacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under the public law jurisdiction is, thus, in addition to the traditional remedies and not in derogation of them. The amount of compensation as awarded by the Court and paid by the State to redress the wrong done, may in a given case, be adjusted against any amount which may be awarded to the claimant by way of damages in a civil suit." (67.) IN the case of Shakila v. V. R. Dhoble and Anr. reported 2003 (7)SCC 749 , which was an appeal against an order of acquittal, although their Lordhips dismissed the appeal but the State Government was nonetheless directed to pay compensation of a sum of Rs. 100000/- to the mother and child of the deceased in exercise of jurisdiction under article 142 of the Constitution of India. That was a case in which the police personnel who had inflicted injuries on the deceased were not detected and the investigation had left much to be desired. Their lordships in the circumstances were not in a position to interfere with the judgment and the order for acquittal but justice was rendered by (a) granting compensation as indicated above and (b) by directing an enquiry to be conducted by the Head of the Police Force of the Siate under direct control of the Chief Secretary of the State to find out as to who were the persons responsible for the injuries on the body of the deceased and their Lordships further directed that based on the investigation proceedings should be taken if necessary also against the persons acquitted. (68.) IN the case of State of West Bengal v. Babu. Chakraborty reported in 2004 (12) SCC 201 Their Lordships set aside an order passed by the high Court directing the State Government to pay Rs. 1,00,000/-as compensation to the accused. The reason which weighed with Their lordships was that there was nothing to show that the steps taken by the police were otherwise than in good faith was also protected under section 69 of the NDPS Act 1985. (69.) THE case before us presents telling circumstances. 1,00,000/-as compensation to the accused. The reason which weighed with Their lordships was that there was nothing to show that the steps taken by the police were otherwise than in good faith was also protected under section 69 of the NDPS Act 1985. (69.) THE case before us presents telling circumstances. There was a deliberate attempt both on the part of the defacto-complainant and the police to frame the accused persons knowing well and/or in any event without any reasonable ground to believe that they were involved in this crime. Both the police and the defacto complainant acted mala fide with an ulterior motive. The accused Salil in his examination under section 313 Cr. PC stated in answer to question No. 68 "we are not guilty. We have been implicated. We know nothing. " We have undoubted jurisdiction to pass appropriate orders to secure the ends of justice under section 482 of Crpc. There is no prohibition in the code forbidding grant of compensation in a deserving case. Mere acquittal, we are convinced, shall not help respectable rehabilitation of the appellants in the society. Justice means as also implies rendering a person what is due to him. Mr. Dutta Gupta except for challenging our jurisdiction to grant compensation in this appeal has not advanced any submission whatsoever as regards the justifiability of the contention of the learned Advocate for the appellant that the State should in this case be directed to pay compensation. (70.) THIS appeal is, therefore, allowed. The conviction and sentence imposed upon the appellants by the Trail Court are set aside. It appears that the appellant Mahela Bibi is now on bail pursuant to an order of this Court. The bail bond furnished by Mahela Bibi stands discharged. The appellant Salil Das who is in jail should be released forthwith, if his detention is not required in any other case. (71.) THE State of West Bengal is directed to pay on account of compensation a sum of Rs. 1,00,000/- (Rs. One lakh) to the appellant Salil das and a sum of Rs. 50,000/-(Rs. Fifty thousand) to the appellant Mahela bibi within 12 weeks from date. The appellant Salil Das is continuously languishing behind the bars ever since he was arrested on 22nd May 2002. The appellant Mahela Bibi, it appears, was granted bail by this court by an order dated 27th August 2003. 50,000/-(Rs. Fifty thousand) to the appellant Mahela bibi within 12 weeks from date. The appellant Salil Das is continuously languishing behind the bars ever since he was arrested on 22nd May 2002. The appellant Mahela Bibi, it appears, was granted bail by this court by an order dated 27th August 2003. In that view of the matter we have not granted the same amount of compensation to her. It is clarified that grant of this compensation shall not preclude the appellants from suing the State for recovery of compensation if they are so advised. In the event such a suit is filed the same shall be disposed of in accordance with law. In the event a decree is to be passed, the compensation granted by this order shall be taken into consideration. The Superintendent of Police of the concerned district is directed to have the unnatural death of the deceased Fakir reinvestigated by an officer not below the rank of D. S. P. (72.) MR. Dutta Gupta, the learned counsel, for the State, prayed for stay of operation on that part of the order by which State has been directed to pay compensation. Considering the gravity of the matter and the question of law involved, the order granting compensation is stayed for a period of eight weeks. Lower Court Records with a copy of this judgment to go down forthwith to the learned Trial Court for information and necessary action. Send a copy of this judgment to Superintendent, Correctional Home where the appellant Salil Das is now under detention for information and necessary action.