Judgment : GIRISH CHANDRA GUPTA, J. 1. BOTH these appeals are directed against a judgment dated 24th june 1997 passed by the Sessions Judge, Nadia, in Sessions Trial no. III of January 1997 arising out of Sessions Case No. 7 of november 1996 convicting the appellants under section 120b read with section 302 of the IPC and an order dated 30th June 1997 by which the appellants were sentenced to suffer imprisonment for life as also to pay a fine of Rs. 2000/- each, in default to suffer rigorous imprisonment for further two years for the offence punishable under section 120b read with section 302 of IPC. 2. ONE Susmita Roy, aged about 20 years, daughter of Nityananda roy (P. W. 2) and Smt. Snigdha Roy (P. W. 1), a student of Shri chaityna College, Habra, was murdered in the night of 29/30th June 1996. The appellants were charged under section 102b read with section 302 of IPC. The appellants except Ruidas along with others namely Arjun Saha, Ashim Saha, Ajit Biswas, Dipak Saha, ajay Saha and Pridip Sil were also charged under section 302 read with section 34 of the IPC as also under section 449 of IPC. The charges under section 302 read with sections 34 and 449 of IPC against the 11 accused persons, according to the learned Judge, could not be proved. Therefore, all the 11 accused persons were acquitted of the charge under section 302 read with section 34 of ipc and section 449 of IPC. The learned Trial Judge held that the charge under section 120b read with section 302 against the appellants was proved. It is on this basis that the six appellants were convicted and punished as indicated hereinabove. All the five appellants in CRA No. 223 of 1997 were enlarged on bail by an order dated 25th July 1997 passed by a Division Bench of this Court. The sole appellant in CRA No. 218 of 1997 was also enlarged on bail by an order dated 25th July 1997. During the pendency of the appeal, the 5th appellant, Ruidas Sarkar, in CRA no. 223 of 1997 died. An application was made by the widow of the deceased Ruidas Sarkar seeking an order that the appeal bearing no. The sole appellant in CRA No. 218 of 1997 was also enlarged on bail by an order dated 25th July 1997. During the pendency of the appeal, the 5th appellant, Ruidas Sarkar, in CRA no. 223 of 1997 died. An application was made by the widow of the deceased Ruidas Sarkar seeking an order that the appeal bearing no. CRA No. 223 of 1997, insofar as the 5th appellant Ruidas was concerned, might be allowed to abate which was rejected by an order dated 7th December 1999 considering that the deceased 5th appellant was also directed to pay fine for which his estate might be liable. 3. MR. Basu, learned Advocate appearing in support of the appeals, has confined his submissions to the trustworthiness of the evidence of the P. W. 15. He has also drawn our attention to the portions of the judgment under challenge in order to impress upon us that the learned Trial Judge himself was not happy with the evidence of the P. W. 15 and therefore the judgment under challenge, according to him, is not well founded. The evidence of p. W. 20 (I. O.), as regards conspiracy based on the statements made to him by the P. Ws. 9,10 and 12 during examination under section 161 Cr. P. C. , Mr. Basu submitted, is excluded by the rule against hearsay. We shall examine the submissions of Mr. Basu in some detail. But before we do so it would, in our view, be appropriate to notice the surrounding facts and circumstances preceding the fateful incident. In order to achieve that objective we would like to append a list of dates which is as follows: 22nd August, 1995 : An application under section 144 of the code of Criminal Procedure was filed by the p. W. 1 Smt. Snigdha Roy, mother of the deceased susmita, against Badal Saha, Dipak Saha, Arjun saha, Ajay Saha and Ashish Saha, all sons of nanigopal Saha, alleging that the persons constituting the opposite party were of a vicious character. They were brokers of real estate. They were engaged in forcibly dispossessing people from their lawful possession and that they had been threatening the applicant Smt. Snigdha Roy to dispossess her of her property bearing dag no. They were brokers of real estate. They were engaged in forcibly dispossessing people from their lawful possession and that they had been threatening the applicant Smt. Snigdha Roy to dispossess her of her property bearing dag no. 624,626 and 623, where the applicant along with her family was residing having a pacca dwelling house and plantation of valuable trees, for the purpose of laying a pathway. A certified copy of the said application under section 144 Cr. P. C. and the order sheet have been tendered and marked exts. 4 and 5 respectively. 4. THE P. W. 1 Smt. Snigdha Roy deposed in court that on the south of her house Saha brothers, namely Badal, Dipak, Arjun, Ajoy and ashim have their house. By the side of the house of Saha brothers the house of Ajit biswas was situate. The appellant Anil debnath has about 5 bighas of land after the house of Badal Saha. The Saha Brothers, the said Ajit Biswas and Anil Debnath do not have any direct access to the market from their respective house. A passage forcibly created through the land belonging to the P. W. 1 shall be beneficial to the aforesaid persons. She further deposed that the appellant Kajal bhowmick was the Secretary of the Bazar committee and he is the nephew of the appellant Anil Debnath. 26th September 1995 : The appellant Chitta Saha, a member of nagar Ukhara Gram Panchayat wrote to the revenue Inspector, Haringhata, Nadia, stating that there never was any existence of any pathway over the land comprised under dag no. 624,623 and that some miscreants were seeking to clandestinely create a pathway by removing the plantation. The letter has been tendered and marked ext. 6. 17th October, 1995 : The Revenue Inspector on the basis of an enquiry and deposition of the neighbours and the statement of the members of the Panchayat reported that there was no pathway on the land comprised in dag no. 623 and 624 and that the owner of the aforesaid property was in possession thereof and the aforesaid land was duly fenced. The report of the Revenue inspector is part of ext. 4. 22nd November, 1995 : Ranjit Kr. 623 and 624 and that the owner of the aforesaid property was in possession thereof and the aforesaid land was duly fenced. The report of the Revenue inspector is part of ext. 4. 22nd November, 1995 : Ranjit Kr. Ghosh, A. S. I. of Police, furnished a report to the learned Sub-Divisional Executive Magistrate that he had been able to ascertain from the statement of the villagers and the neighbours of the petitioner Smt. Snigdha Roy (P. W. 1) "that there was a path on the land bearing dag no. 624 623 which was being used by the villagers since long which was not recorded. The villagers expanded the path but the owners closing the path with fencing????. . Owner of that schedule land is in possession and the area is surrounded by the fence, for this reason a longtime enmity is growing on between the petitioner and OP men". This report is also part of ext. 4. 4th December 1995: the learned Executive Magistrate considering the report furnished by the Officer-in-Charge, haringhata Police Station and the BLLRO, haringhata, directed that proceedings under section 144 Cr. P. C. should be drawn up. Copy of this order has been tendered and marked Ext. 5. 29th January 1996 : the opposite parties did not appear before the learned Executive Magistrate nor did they take any steps. The learned Executive Magistrate heard the petitioner and made the order dated 4th December 1995 absolute. The order dated 29th January 1996 is also a part of ext. 5. 9th June, 1996 : the appellants approached the P. W. 1, seeking permission to lay a path through her agricultural land which was refused by her. Enlarged by the refusal they left the place threatening the P. W. 1 of dire consequences. The evidence of P. W. 1 in this regard is as follows:-"on 9th June 1996 at about 7 P. M. Kajalbhowmick, Ruidas Sarkar, arup Mondal, Chitta Saha and Anil Debnath (idfd. the accused at the dock) came to our house and demanded to mefor giving passage over my agricultural land where segun (teak) trees, mango trees, jibantrees etc. standing, starting from the land ofanil Debnath. I did not agree to their proposal. Accordingly, they threatened me bysaying that on my refusal they would start thesaid passage by breaking on my land and if sorequired there would be a loss of life (objected to). standing, starting from the land ofanil Debnath. I did not agree to their proposal. Accordingly, they threatened me bysaying that on my refusal they would start thesaid passage by breaking on my land and if sorequired there would be a loss of life (objected to). At the relevant time myselfalong with my husband, daughter Susmita (sincedeceased) were present. They left our house making such threatening. " 5. P. W. 2 Nityananda Roy, the husband of the p. W. 1 deposed in this regard as follows:- "on 9. 6. 96 at about 7 P. M. Anil Debnath, Arupmondal, chitta Saha, Kajal Bhowmick came to myhouse accompanied by Ruidas Sarkar, Prodhan. They are present in court (identifies the accused at the dock). They asked me to give passage over my land admeasuring six cubits coming from the house of Badal Saha. I did not agree to their proposal. I replied to them that I would give passage to them on thewestern side of my land and I would not allow for running such passage in the midst of myland as there was turmeric cultivation on my land. On my reply they threatened me to cut out the said passage over my land by force. Myself, my wife and my daughter Susmita, since deceased were then present. They left the place after giving such threatening. " 6. P. W. 15 Shantiranjan Saha deposed in this regard as follows:- "on 9th June, 1996 at about 7/7-30 p. m. Kajalbhowmick anil Debnath, Arup Mondal, Chitta saha and Badal Saha went to the house of susmita for discussion about pathway. Theyare present in Court (idfs. the accused at thedock). I was not present at the time of saiddiscussion. I entered into their house when they were coming out. I heard Kajal Bhowmick 10th June 1996 saying excitedly that the said pathway should be drawn over the land of Susmita, if so required, there would be loss of life. " 7. THE accused persons broke in upon the house of the P. Ws. 1 and 2 and forcibly laid a pathway. A written complaint was lodged by the P. W. 1 smt. Snigdha Roy, which is part of ext. 25/2, amongst others against some of the appellants. A case was started under sections 147/148/149/448/427/506/379 of the Indian Penal Code. 8. THE accused persons broke in upon the house of the P. Ws. 1 and 2 and forcibly laid a pathway. A written complaint was lodged by the P. W. 1 smt. Snigdha Roy, which is part of ext. 25/2, amongst others against some of the appellants. A case was started under sections 147/148/149/448/427/506/379 of the Indian Penal Code. 8. P. W. 1 deposed in this regard as follows:-"on 10th June 1996 I left my house in the morning and returned at about 2/2-30 p. m. On return I found that my cultivation of turmeric (halud) was destroyed along with felling of teak, jiban and mango trees and a passage wasmade by filling earth having taken from the land of Anil Debnath. My fencing was also found broken. The drain running from my motor room was also found fully filled up with earth. I heard from my husband and others that it was so done by Chitta Saha, Pradipseal, Anil Debnath, Arup Mondal, Badal Saha, dipak Saha, Arjun Saha, Ajoy Saha, Asim Saha and Ajit Biswas. I was also told that on protest by my daughter Susmita, she was chased to her room and her ear rings and rings weresnatched away and it was done by Badal Saha and Ajoy Saha. The trees so fallen by them were all taken away. On hearing it I lodged an information to Haringhata P. S. being numbered as Haringhata P. S. Case No. 93 dated 10-6-96. " 9. P. W. 2 in this regard deposed as follows:-"at about 1 P. M. Badal Saha, Dipak Saha, Arjun Saha, Ajoy Saha, Asim Saha, Pradip Seal, chitta Saha and Ajit Biswas came and after cutting my fencing on the boundary began tomake pathway over my land. The said persons are present in Court (identifies the accused at the dock). They also cut some of the trees including Jiban, teak, kacha, Jewil etc. and damaged turmeric grown on the land. Susmita went to protest their said overt act. She was chased by an iron rod by accused Badal Saha and Ajoy Saha whereby Susmita retreated and took shelter to her room. Badal Saha and Ajoy Saha chased her and entered into her room and snatched away a gold necklace and also ear rings from her. They also had taken away one wrist watch belonging to me lying on her table. Thereafter, they left the place. Badal Saha and Ajoy Saha chased her and entered into her room and snatched away a gold necklace and also ear rings from her. They also had taken away one wrist watch belonging to me lying on her table. Thereafter, they left the place. My wife was then absent at the house. She returned at about 2/2. 30 P. M. On hearing the matter from us, my wife went to P. S. for lodging a complaint. " 10. P. W. 15 Shanti deposed in this regard as follows:-"on the next day i. e. on 10th June 1996 at about 1 P. M. , I went to their house on hearing the news that the accused persons would forcibly create a pathway over the land. Reaching to the place I found Chitta Saha, ajit Biswas, Badal Saha, Arjun Saha, Asim saha, Dipak Saha, Anil Debnath and Arup Mondal cutting kacha fencing on both sides near the place where the present construction of wall was made. They cut down banging branches of mango tree in between the said land. They also cut down one teak (segun) tree by an axe. On protest Susmita was chased. I tried to inform thana over phone. Prior to that I requested them not to do said overt act as 144 proceeding was in force over the said land but without success. They had taken away the cut trees after breaking the said fencing. They filled earth on the side earth for the purpose of levelling the said land for passage. They also closed the drainage meant for watering the land. The persons, who were named by me and present on 10-6-96, are in Court today (idfs. the accused at the dock). After few days Susmitas parents raised the said wall. At the time of raising the said wall, Chitta Saha, Badal Saha, Dipak Saha, Arjun Saha, Ajoy Saha, Asim Saha, Anil debnath and Arup Mondal tried to prevent the raising of the said wall. They are present in Court (idfd. the accused at the dock). Chitta saha went away threatening with dire consequences (volunteers and says) Chitta Saha said that 200/300 people from Haringhata side were coming. Susmita went to P. S. when police came there, the construction of wall was completed. Police left on seeing the said construction. " 11. They are present in Court (idfd. the accused at the dock). Chitta saha went away threatening with dire consequences (volunteers and says) Chitta Saha said that 200/300 people from Haringhata side were coming. Susmita went to P. S. when police came there, the construction of wall was completed. Police left on seeing the said construction. " 11. THE fact that the pathway created on 10th June 1996 was closed by the P. W. 2 has been deposed to by him as follows:-"after 5/6 days we closed the said pathway by extending our boundary wall near the fencing, which was broken by the accused. Chitta Saha came to protest for raising such wall. My daughter Susmita again then rushed to the police station for making a complaint. No further disturbance took place on that day and the construction of the wall near the fencingwas completed. It would be convenient to Badal Saha, Dipak Saha, Arjun Saha, Ajoy Saha and Asim Saha ifthe passage be in existence over my land. As anil Debnath has land nearby, due to such passage there is chance of escalation of the value of his land. After the said construction of wall I received a notice from the Prodhan Ruidas Sarkar (identifies the accused). We replied to the said notice through our lawyer Jayanta Lahiriof Kalyani Court. " 18th June 1996: 26th June 1996 29th June 1996 the notice deposed to by the P. W. 2 to have been received from the Pradhan Ruidas Sarkar, the 5th appellant, since deceased, has been marked ext. 7. By the notice the P. W. 2 was informed that he had illegally extended the boundary wall and he was directed to remove the same. Shri Jayanta Kr. Lahiri, learned Advocate, replied to the notice dated 18th June 1996, issued by the Pradhan, the appellant Ruidas sarkar, since deceased. It was contended that the land had lawfully been covered by the boundary. The notice was addressed to the pradhan Ruidas Sarkar. Copies thereof were given to the Officer-in-Charge, Haringhata p. S. , District Magistrate, Nadia, Sub-Divisional Officer, Kalyani, S. D. P. O. , Kalyani and B. D. O. , Haringhata and were all sent under registered cover. The postal receipts have been marked ext. 9 and the copy of the letter dated 26th June 1996 has been marked ext. 8. Copies thereof were given to the Officer-in-Charge, Haringhata p. S. , District Magistrate, Nadia, Sub-Divisional Officer, Kalyani, S. D. P. O. , Kalyani and B. D. O. , Haringhata and were all sent under registered cover. The postal receipts have been marked ext. 9 and the copy of the letter dated 26th June 1996 has been marked ext. 8. Pursuant to the complaint dated 10th June 1996, the appellant Kajal Bhowmick had been arrested and was released on bail by the learned sessions Judge as would appear from the chargesheet dated 31st December 1996 filed by the police which has been marked ext. 25. 30th June 1996 sushmita was murdered between 11. 30 hrs. on 29th June 1996 and 04. 00 hrs. on 30th June 1996. It has transpired from the evidence of P.W. 20 during cross-examination that there had been heavy rains on the fateful night. At 5.15 A.M. in the morning police was informed telephonically by the P.W. 15 santiranjan Saha about the murder. The information was recorded in the General Diary which is part of ext. 20. At 6.30 hours, a complaint was lodged with the police by the P. W. 1 disclosing that on 29th June 1996 at about 11. 30 hrs in the night she went to bed with her husband (P. W. 2)and their daughter Sushmita in her room after locking the collapsible gate and shutting the doors of the rooms without bolting from within. At 4 A. M. the de facto complainant (P. W. 1) woke up from bed and found the doors including the collapsible gate open. When she entered into the room of her daughter she found her daughter Sushmita lying in a pool of blood. Many valuable articles were also missing. She has referred to the earlier enmity and the bad-blood and suspected of a conspiracy made by Kajal Bhowmick, Chitta saha, Anup Mondal, Anil Debnath etc. The written complaint has been marked ext. 1. 12. P. W. 1 in Court, in this regard, deposed, inter alia, as follows:- "the said written complaint was written in my presence by my husbands younger brother bidhan Chandra Roy and I signed on it. This is the said written complaint (marked Ext. 1). The witness identified her signature (markedas Ext. The written complaint has been marked ext. 1. 12. P. W. 1 in Court, in this regard, deposed, inter alia, as follows:- "the said written complaint was written in my presence by my husbands younger brother bidhan Chandra Roy and I signed on it. This is the said written complaint (marked Ext. 1). The witness identified her signature (markedas Ext. 1/1.)Kajal Bhowmick, Chitta Saha, Pradip Seal, arup Mondal, Badal Saha, Dipak Saha, Arjun Saha, Ajoy Saha, Asim Saha, Ajit Biswas andanil Debnath as accused in the said complaint (idfd. the accused at the dock). Police came to our house on 30. 6. 96 at about 6 a. m. I handed over the written complaint (Ext. 1) to the police during visit to our house. " 13. P. W. 13 Bidhan, brother of the P. W. 2, scribed the written complaint. He deposed as follows:- "on hearing it we, four brothers, viz. , myself, Bedanta Roy, Biswanath Roy and Biman Chandra Roy rushed to Nagarukhra by that taxi. Having arrived at Nagarukhra, we found Susmita lying dead on the cot at her room. Seeing the dead body I became so perplexed that I couldnot stand. I returned to my Sejo Boudi snigdha Roy and asked her to lodge an F. I. R. and according to her direction I wrote the said written complaint. I signed on it as a scribe. It was read over and explained to my Sejo Boudi who signed on it having under stoodits contents. Identified his signature on the f. I. R. (marked as Ext. 1/2). Identified the said written complaint (marked as Ext. 1)During the time of my writing, Police arrived accompanied by O. C. , Haringhata P. S. My Sejo boudi Snigdha Roy handed over the said written complaint to him. " 14. P. W. 15 at 5 A. M. on 30th June 1996 hearing the news had rushed to the place of occurrence. His evidence in this regard is as follows:-"on hearing it I also hurried to the house of Susmita. My brothers and father also followed me. I noticed Susmita Roy lying on her bed with a piercing injury on the right side ofher eye. To my estimation, probably she was then dead. I came out from their house in order to inform the matter to the thana from the nearby Exchange. I asked my another brother to bring a taxi. I noticed Susmita Roy lying on her bed with a piercing injury on the right side ofher eye. To my estimation, probably she was then dead. I came out from their house in order to inform the matter to the thana from the nearby Exchange. I asked my another brother to bring a taxi. I noticed a crowd of 15 women at the house of Susmita. I did not notice any outsiders except the father of susmita. I rang up to thana to inform that susmita had been murdered. Meanwhile Dr. Gopal Biswas came. On seeing the victim, the said Doctor opined that the victim had already expired. Meanwhile the taxi of Sudam Jana arrived. It was sent to Ghoja in order to bring the uncles of Susmita. I continued to sit outside. Police came afterwards. " 10th July 1996 From ext. 10, an information slip, it appears that a proceeding under section 107 Cr. P. C. registered as MP 554 of 1996 initiated by the p. W. 1 Smt. Snigdha Roy against Badal Saha, dipak Saha, Arjun Saha, Ashim Saha, Gita Saha, chandan Saha, Sima Saha and the wife of Dipak saha was pending on the date of occurrence i. e. 30th June 1996 and the next date fixed for hearing was 22nd July 1996. 31st December 1996 Police filed a charge sheet, bearing no. 119 dated 31st December 1996 consequent to the written complaint dated 10th June 1996 lodged by the P. W. 1 Smt. Snigdha Roy, against some of the appellants amongst others viz. Kajal bhowmick, Arjun Saha, Ashim Saha, Anil debnath, Anup Mondal, Pradip Sil, Badal Saha, dipak Saha, Ajay Saha and Anil Roy. Sushmita was one of the witnesses cited in the charge sheet. 15. THE evidence as regards conspiracy to kill the deceased sushmita given by the P.W. 15 is as follows: "on 29th June, 1996 at about 10 p. m. I was going to "das Decorators" for the purpose of return of gunny sheet hiredfor the meeting of D. Y. F. I. while I was returning I found that Badal Saha entering into his petrol pump. I became suspicious. A matador van of Janapth Majdur Paribahan committee is garaged inside the said petrol pump. I went behind it to urinate. I became suspicious. A matador van of Janapth Majdur Paribahan committee is garaged inside the said petrol pump. I went behind it to urinate. I noticed Kajal Bhowmick, Ruidas sarkar, Anil Debnath, Arup Mondal, Chitta Saha and Badal Saha sitting outside the room of the said petrol pump made of glass wall. I heard Kajal Bhowmick saying that whatever they would say that should be done at Nagarukhra, they should not to lerate that a weak family would stop their pathway. Susmita should be finished. I also heard Chitta Saha saying that they did not obey Pradhan including him self they should befinished. On hearing it I left the place. I went home direct, thinking that I should convey the said matter to thet hana on the next morning. " 16. MR. Basu drew our attention to the evidence of the P. W. 20 in order to highlight the omissions and contradictions in the evidence of P. W. 15. He drew our attention to the following portion of the cross-examination:-"q. Has he stated to you that on 29-6-96 at about 10 p. m. he was going to Das Decorators for the purpose ofreturn of gunny sheet hired for the meeting of D. Y. F. I. ? a. No. Q. Has he stated to you that while he was returning, hefound that Badal Saha entering into his petrol pump andthat he became suspicious? a. No. 17. IT was stated to me that on receipt of the lawyers notice, Kajal Bhowmick, Pradhan Ruidas Sarkar, Anil debnath, Chitta Saha and Arup Mondal held a meeting at the petrol pukmp of Kajal Bhowmick and it was decided at the meeting that the daughter of Nityananda Roy i. e. Susmita would be taught a lesson and Kajal Bhowmick said that what they would say at Nagarukhra that would be final. Q. Has he stated to you that a matador van of Janapath Majdur Paribahan Committee was garaged inside the said petrol pump? a. No. Q. Has he stated to you that he went behind it to urinate? a. No. Q. Has he stated to you that he noticed Kajal Bhowmick, ruidas Sarkar, Anil Debnath, Arup Mondal, Chitta Saha and Badal Saha sitting outside the room of the said petrol pump made of glass wall? a. No. Q. Has he stated to you that he went behind it to urinate? a. No. Q. Has he stated to you that he noticed Kajal Bhowmick, ruidas Sarkar, Anil Debnath, Arup Mondal, Chitta Saha and Badal Saha sitting outside the room of the said petrol pump made of glass wall? a. No. Q. Has he stated to you that he heard Chitta Saha saying that as they did not obey Pradhan including himself they should be finished and on hearing it he (P. W. 15) left the place? a. No. " 18. BASED on this part of the evidence of P. W. 20, Mr. Basu contended that there is no reliable evidence as regards any conspiracy to kill the deceased Sushmita. The evidence of P. W. 15, according to him, is not at all trustworthy and the learned Trial judge had also reservations in his mind as regards the truthfulness of the P. W. 15. He drew our attention to the following observations made by the learned Trial Judge while assessing the evidence of the P. W. 15: I) "now when P. W. 15 was well aware of the conspiracy of the accused persons at the so-called petrol pump at Nagarukhra to finish the victim Susmita on the night of occurrence, which was subsequently materialised. It is curious to note why the saidfact was not divulged by him to P. W. 1 or 2 at the time of filing written complaint at least to police. " II) "but the I/o (P. W. 20) had contradicted the said version and according to him, it was stated to him by P. W. 15 only that on receipt of a lawyers notice Kajal Bhowmick, Prodhan Ruidas sarkar, Anil Debnath, Chitta Saha and Arup Mondal held a meeting at the petrol pump of Kajal Bhowmick and it was decided at the meeting that the daughter of Nityananda Roy i. e. Susmita should be taught a lesson and Kajal Bhowmick said that what they would sayat Nagarukhra would be final. There is thus some discrepancy inthe statement of P. W. 15 made before the Court with the statement made by him to I. O. regarding meeting of the accused kajal bhowmick and others at his petrol pump for entering into an agreement to commit an illegal act. There is thus some discrepancy inthe statement of P. W. 15 made before the Court with the statement made by him to I. O. regarding meeting of the accused kajal bhowmick and others at his petrol pump for entering into an agreement to commit an illegal act. It stands to reason, therefore, that his subsequent statement before the Court is to some extent an improvement and/or embellishment of his earlier statement to I. O. " III) "his testimony has further been assailed regarding his visit to das Decorators or noticing Badal Saha entering into the petrol pump on the ground that it was not stated by him to I. O. , which was confirmed by the latter. It is not unlikely to mentionthat his visit to Das Decorators, which had an occasion for him to witness the conspiracy of the accused persons at the petrol pumpof Kajal Bhowmick, has been spelt out by way of his exaggerationson the belief that his testimony might be rejected. The said exaggerations even if it be construed as false, but that is no ground to discard his testimony to the effect that there was no agreement between the accused Kajal Bhowmick, Prodhan Ruidas sarkar, Anil Debnath, Chitta Saha, Badal Saha and Arup Mondal at the petrol pump of Kajal Bhowmick for teaching a lesson to the daughter of Nityananda Roy (P.W. 2) on their belief that whatever they would say at Nagarukhra would be final. " IV) "consequently, inference can be drawn regarding his presence near the petrol pump of Kajal Bhowmick on the night of occurrence after excluding his so-called exaggerations. Or more precisely, even if it be said that his evidence regarding his visit to Das Decorators is false, but that is not sufficient to brush aside his evidence altogether regarding his witnessing the meeting held atthe petrol pump of Kajal Bhowmick in presence of Kajal Bhowmick, ruidas Sarkar, Badal Saha, Anil Debnath, Chitta Saha and Arup Mondal to take an action against the daughter of Nityananda Roy (Susmita) for her flouting attitude to their supreme authority atnagarukhra. In that view of the matter, the decision of the case of Maleka Nidi (supra) relied on by the prosecution can be attracted to the facts and circumstances of the present case. " 19. MR. In that view of the matter, the decision of the case of Maleka Nidi (supra) relied on by the prosecution can be attracted to the facts and circumstances of the present case. " 19. MR. Basu in support of his submission that the evidence of the P. W. 15 cannot be pressed into service, relied on a Division bench judgment of the Orissa High Court in the case of Kandia Sahu vs. State reported in 1972 Cr. L. J. 219. He relied on paragraph 8 of the judgment which reads as follows:- "p. W. 9 also stated in his cross-examination that he invited Duryodhan Barik to his house to dine with him when duryodhan divulged the above conspiracy about killing the deceased to him. P. W. 9 also was told by Duryodhan then that he had agreed to kill the deceased as he would get some money and other things for doing the said job. It sounds extremely improbable that such a secret matter would be divulged in such a casual manner, and that too to P.W. 9, a person so closely associated with and interested in the deceased. P. W. 9 stated that he informed that deceased about the aforesaid conspiracy of the appellants very soon after he came to learn about the same. If really P. W. 9 came to know about the said conspiracy and kept the deceased informed about the same, it is surprising that the deceased, would call on Duryodhans place on the date of occurrence for taking any food or water in Duryodhan house on his way back from Angul to his village. On the contrary, the deceased, on the aforesaid information, would have tried his best to keep away from appellant Duryodhan and the other appellants, in all possible manners and in all circumstances. The other significant feature in the deposition of P. W. 9 is that this witness did not mention to the police during investigating about the conspiracy amongst the appellants to kill the deceased. He admits categorically that he did not inform anybody in the village about the aforesaid conspiracy and stated in the committing court that he did not know anything about the case. Because of the above-mentioned unconvincing features in his evidence, it becomes difficult for us to place any reliance on the uncorroborated evidence of this interested witness. The learned Addl. He admits categorically that he did not inform anybody in the village about the aforesaid conspiracy and stated in the committing court that he did not know anything about the case. Because of the above-mentioned unconvincing features in his evidence, it becomes difficult for us to place any reliance on the uncorroborated evidence of this interested witness. The learned Addl. Government advocate, appearing for the State, fairly and rightly conceded that on the above evidence of P. W. 9 the conviction of the appellants under section 120b (1), IPC could not be maintained. Accordingly, the conviction of all the three appellants in the above two Criminal Appeals, under section 120b (1), IPC and the sentences imposed on them thereunder are liable to be set aside. " 20. HE also relied on a judgment in the case of Lallu Mazhi and anr. vs. State of Jharkhand reported in 2003 SCC (Criminal) 544 for the proposition that the version of an untrustworthy witness who is also an interested witness cannot be made the basis of conviction. He relied on paragraph 13 of the judgment which reads as follows: "it is, therefore, clear that the genesis or the root cause of the incident is not known. The most crucial question as to the factum of possession over the land in dispute immediately preceding the date of the incident cannot be determined and any specific finding in that regard arrived at. The version of the incident given by the sole eyewitness who is also an interested witness on account of his relationship with the deceased and being inimically disposed against the accused persons is highly exaggerated and not fully corroborated by medical evidence. The version of the incident as given in the Court is substantially in departure from the earlier version as contained and available in the first information report. We cannot, therefore, place reliance on the sole testimony of Mannu (P.W. 9) for the purpose of recording the conviction of all the accused persons. " 21. HE also relied on the judgment in the case of Vimal Suresh kamble vs. Chaluverapinake Apal S. P. and Anr. reported in 2003 SCC (Criminal) 596 for the proposition that deposition in Court which is contradicted by the earlier statement made under section 161 cr. P. C. of the Code of Criminal Procedure cannot be accepted. " 21. HE also relied on the judgment in the case of Vimal Suresh kamble vs. Chaluverapinake Apal S. P. and Anr. reported in 2003 SCC (Criminal) 596 for the proposition that deposition in Court which is contradicted by the earlier statement made under section 161 cr. P. C. of the Code of Criminal Procedure cannot be accepted. He relied on paragraph 16 wherein the following view was taken:-"p. W. 5 Constable Ganga Ram was examined to prove that at about 7. 00 a. m. on 27. 4. 1992 respondent 1 had come to Gandhinagar Police chowki to find out if any occurrence had been reported. He replied in the negative. On the same day at about 8. 00 p. m. when he had come to vartaknagar Police Station for roll-call he had noticed that the accused had been arrested and that he was the same person who had come in the morning to Gandhinagar Police Chowki. The evidence of this witness is of no significance and also appears to be untrue. He was confronted with his statement made before the police in the course of investigation, but this fact was not stated by him in his statement made before the police. It, therefore, appears that the only fact which was sought to be proved through this witness was not stated by him in his statement recorded in the course of investigation. " 22. LASTLY Mr. Basu relied on a judgment in the case of Ramji Surya and Anr. vs. State of Maharashtra reported in AIR 1983 SC 810 on the advisability of insisting upon corroboration. He drew our attention to paragraph 8 of the judgment wherein the following view was taken:- "there is no doubt that even where there is only a sole eyewitness of a crime, a conviction may be recorded against the accused concerned provided the Court which hears such witness regards him as honest and truthful. But prudence requires that some corroboration should be sought from the other prosecution evidence in support of the testimony of a solitary witness particularly where such witness also happens to be closely related to the deceased and the accused are those against who some motive or ill-will is suggested. But prudence requires that some corroboration should be sought from the other prosecution evidence in support of the testimony of a solitary witness particularly where such witness also happens to be closely related to the deceased and the accused are those against who some motive or ill-will is suggested. Now in the instant case a careful analysis of the evidence relating to the inordinate delay involved in the giving of the first information to the police and the other inherent inconsistencies in the evidence of the sole-eyewitness i. e. Surjabai (P. W. 2) shows that her evidence cannot be considered, as sufficient to find the accused guilty. The first information (Ext. P. 10) itself appears to be one prepared after some deliberation. The role attributed to Gumba (P. W. 5) the former Police Patil in the prosecution evidence compels the Court to look for corroboration from the other prosecution evidence before accepting the evidence of Surajbai (P. W. 2). " 23. WE already have noticed the relevant evidence on the record. We have also noticed the submission advanced by the learned Counsel appearing for the appellant. According to us following questions arise for consideration: a) Did the learned Trial Judge entertain a lingering doubt in his mind as regards the truthfulness of the evidence of P. W. 15? b) Is the evidence of the P. W. 15 trustworthy? we shall consider the questions formulated above serially. (a) Mr. Basu has drawn our attention to four several portions of the findings of the learned Trial Judge in order to show that the learned Trial Judge himself entertained a doubt as regards the veracity of the evidence of the P. W. 15. We have set out above those portions and have marked the same I, II, III and IV. 24. THE first observation highlighted by Mr. Basu, noticed above, is contrary to the case of the defence itself. P. W. 15 was suggested during his cross-examination on behalf of the defence that the F. I. R. . had been prepared by the P. W. 15 and his associates Nani Malakar which the P. W. 15 denied. The relevant sentence in the evidence of the P. W. 15 recorded by the learned trial Judge reads as follows:-"it is totally false to say that myself and Nani Malakar on going to P. S. had prepared this F. I. R. of this case." 25. The relevant sentence in the evidence of the P. W. 15 recorded by the learned trial Judge reads as follows:-"it is totally false to say that myself and Nani Malakar on going to P. S. had prepared this F. I. R. of this case." 25. WHEN this was the case run by the defence it was not open to them to contend that the conspiracy hatched by the appellants was not divulged by the P. W. 15 before making the F. I. R. The learned trial Judge also failed to notice that the written complaint lodged by the P. W. 1 contained the following significant allegation: "i believe that the following miscreants had killed my daughter with conspiracy made away (?) Kajal Bhowmick, Chittasaha, Arup Mondal, Anil Debnath of village Nagarukhra and they had taken away the articles at the time of fleeing away. " 26. THE first finding/observation of the learned Trial Judge, as regards the veracity of the evidence of the P. W. 15, highlighted by mr. Basu, is incompatible with the evidence on the record. 27. THE second observation of the learned Trial Judge highlighted by Mr. Basu, which we already have noted above, is, we are sorry to say, equally without any substance. The learned Trial Judge observed that there was some discrepancy in the deposition of the p. W. 15 made before the Court and the statement made under section 161 Cr. P.C. to the I. O. but he failed to see that there was nothing on the record before him to establish that the reply, to the notice issued by the appellant Pradhan Ruidas Sarkar, given by the learned Advocate Jayanta Lahiri was received subsequent to 29th june 1996. According to the evidence of the P. W. 20 the I. O. the p. W. 15 during his examination under section 161 Cr. P. C. told him that on receipt of the lawyers reply the conspiracy was made. The lawyers letter, which has been marked Ext. 8, is dated 26th june 1996 and was sent under registered post on 26th June 1996 itself. On behalf of the defence the P. W. 15 was suggested that the lawyers letter was received on 2nd July 1996 but no attempt was made to prove the aforesaid fact by production of the envelope which would have clinched the issue. 8, is dated 26th june 1996 and was sent under registered post on 26th June 1996 itself. On behalf of the defence the P. W. 15 was suggested that the lawyers letter was received on 2nd July 1996 but no attempt was made to prove the aforesaid fact by production of the envelope which would have clinched the issue. It is not that the defence did not lead any evidence. They did, in fact, lead evidence. When they chose to examine witness where was the difficulty in producing this envelope. This would squarely bring the case within the illustration (g) of Section 114 of the Evidence Act which provides as follows:-"that evidence which could be and is not produced would, if produce, be unfavorable to the person who withholdsit. " 28. FURTHER assurance as regards the truthfulness of the evidence of the P. W. 15 is lent by the Ext. 25 which is a certified copy of the charge sheet filed against the appellants pertaining to G. R. No. 272/96 dated 10th June 1996 under sections 147/148/149/448/427/506 and 379 of the I. P. C. which was initiated on the basis of the written complaint lodged by the P. W. 1 consequent to the act of vandalism resorted to by the accused including the appellants. Ext. 25 goes to show that the appellant kajol Bhowmick was released on bail on 29th June 1996. Therefore, we have no doubt in our mind that the evidence of the P. W. 15 is truthful and trustworthy. The learned trial Judge had the benefit of watching the deamnour of the witness. He had no doubt in his mind as regards the truthfulness of this witness but he did not take the requisite pains for the purpose of effectively dealing with the submissions made on behalf of the defence and that precisely was the reason that some unsavoury remarks were made by him concerning the evidence of P. W. 15 while he believed that the evidence of this witness could not be discarded as untrustworthy. 29. THE third and fourth observations of the learned Trial Judge highlighted by Mr. Basu, containing an adverse remark against the evidence of P. W. 15, quoted above, is another instance which goes to show that the learned Trial Judge was not prepared to take the trouble of going deep into the matter. 29. THE third and fourth observations of the learned Trial Judge highlighted by Mr. Basu, containing an adverse remark against the evidence of P. W. 15, quoted above, is another instance which goes to show that the learned Trial Judge was not prepared to take the trouble of going deep into the matter. The observation that the p. W. 15 may have introduced the episode of Das Decorator by way of exaggeration and embellishment is not acceptable. P. W. 15 in his cross-examination deposed as follows:- "i am not the Secretary of D. Y. F. I. I am a member of d. Y. F. I. It is the Youth Federation of C. P. I. (M). Narayan Das was the Secretary of the Local Committee of c. P. I. (M) prior to the election. Sentu Babu is now the present Secretary after defeating him (Narayan Das)Insab Sardar is the present Secretary of D. Y. F. I. " 30. THE learned Trial Judge has repeatedly recorded, as regards the truth of which there is no dispute, that there were two groups of the political party C. P. I (M) in the locality. P. W. 15 belonged to one group and the appellants belonged to the other group. They were, nonetheless, the followers of the same political party. Therefore, they had access to each other including the functions of the political party which an outsider may or may not have. 31. P. W. 15 deposed that he was a member of D. Y. F. I. D. Y. F. I was a youth federation of CPI (M). Both the appellants and the P. W. 15 are members and office bearers of CPI (M). The episode as regards the das Decorator was introduced by the P. W. 15 because according to him on 29th June 1996 he went there for the purpose of returning the gunny-sheets hired for the meeting of the D. Y. F. I. The appellants being the members of CPI (M) were fully aware as to whether any such meeting of the D. Y. F. I. was held; Whether there was any occasion for hiring the gunny-sheets. Still no suggestion was given to the P. W. 15 that no such meeting of the D. Y. F. I. was held or that there was no occasion for gunny-sheets being hired from the Das Decorators or that there was no occasion for the p. W. 15 to go to Das Decorator for returning the gunny-sheets. This goes to show that the fact that the meeting of the D. Y. F. I. was held is not in dispute. The fact that the gunny-sheets were hired from the Das Decorator for the purpose of the said meeting is also not in dispute. There is, therefore, no reason for the court to view the evidence of the P. W. 15 with any amount of suspicion when he deposed that he being a member of the D. Y. F. I. had gone to Das Decorator for the purpose of returning gunny sheets hired for the meeting. The learned Trial Judge obviously failed to notice this aspect of the matter. 32. WE have thus dealt with the point of Mr. Basu as regards his submission that there was a lingering doubt in the mind of the learned Trial Judge as regards the truthfulness of the P. W. 15. We are convinced that the learned Trial Judge was unable to meet the points urged on behalf of the defence because he may not have taken, at the time of writing the judgment, trouble to go through the voluminous records in great detail and that is the reason why he made some uncharitable remarks against the evidence of the P. W. 15 but the learned Trial Judge did not entertain any doubt as regards the veracity of the evidence of P. W. 15. The first question formulated above is thus answered in the negative. (b) The contradictions in the evidence of the P. W. 15 sought to be highlighted by Mr. Basu, learned Advocate appearing for the appellants relate to the date of the conspiracy and the das decorator episode. By drawing our attention to the evidence of the P. W. 20 he contended that the P. W. 15 in his examination under section 161 Cr. P. C. did not tell the I. O. that the conspiracy took place on 29th June 1996. We already have demonstrated, while dealing with the second observation of the learned Trial Judge, that there is really no contradiction. P. C. did not tell the I. O. that the conspiracy took place on 29th June 1996. We already have demonstrated, while dealing with the second observation of the learned Trial Judge, that there is really no contradiction. The evidence of the P. W. 15 that the conspiracy took place on 29th June 1996 is fully reliable. It may also be pointed out that a wrong procedure was adopted on behalf of the defence for the purpose of obtaining contradiction. The contradiction on which Mr. Basu has been harping on was put to the P. W. 15 in this way:- "i do not know whether on receipt of the notice of lawyer Sri jayanta Lahiri, accused Kajal Bhowmick, Pradhan Ruidas sarkar, Anil Debnath, Chitta Saha and Arup Mondal held a meeting at the petrol pump. I did not state to the I. O. that on receipt of the notice of lawyer Sri Jayanta Lahiri, accused Kajal Bhowmick, Pradhan Ruidas Sarkar, Anil Debnath, chitta Saha and Arup Mondal had a meeting at the petrol pump. " 33. IT would appear from the portion of the evidence of the p. W. 15 in cross-examination quoted above that there are two sentences that is to say there were two questions. The first question was whether he told the I. O. that the meeting was held on receipt of the notice of the learned lawyer Jayanta Lahiri to which the witness answered that he did not know. The second sentence would suggest that the question was repeated to which he answered denying that he told the I. O. that on receipt of the notice the meeting was held at the petrol pump. At that stage the recorded statement should have been handed up to the witness. That would have been in conformity with section 145 of the evidence Act. This was not done and a wrong procedure was adopted by the defence. Reference in this regard may be made to the judgment in the case of Tahsildar Singh vs. State of U. P. reported in AIR 1959 SC 1012 . Their Lordships in paragraph 13 quoted the procedure laid down by Bose J. in an earlier judgment reported in 1952 SC 214 which is as follows: "resort to section 145 would only be necessary if the witness denies that he made the former statement. Their Lordships in paragraph 13 quoted the procedure laid down by Bose J. in an earlier judgment reported in 1952 SC 214 which is as follows: "resort to section 145 would only be necessary if the witness denies that he made the former statement. In that event, it would be necessary to prove that he did, and if the former statement was reduced to writing, the S. 145 requires that his attention must be drawn to these parts which are to be used for contradiction. But that position does not arise when the witness admits the former statement. In such a case all that is necessary is to look to the former statement of which no further proof is necessary because of the admission that it was made." 34. THERE Lordships after quoting a portion of earlier judgment further went on to opine as follows:- "the second part of S. 145 of the Evidence Act clearly indicates the simple procedure to be followed. To illustrate : A says in the witness-box that B stabbed C; before the police he had stated that D stabbed C. His attention can be drawn to that part of the statement made before the police which contradicts his statement in the witness box. If he admits his previous statement, no further proof is necessary; if he does not admit, the practice generally followed is to admit it subject to proof by the police officer. " 35. REFERENCE in this regard may also be made to a high authority on the subject in the case of Ram Bali vs. State reported in AIR (39) 1952 All 289 wherein the following instructive procedure was indicated:-"when the particular sentence or assertion in the statement under S. 162 is put before the witness, it must be marked by being underlined or enclosed in a circle and exhibited. The entire statement should never be exhibited; it is not admissible in evidence and has not been brought to the notice of the witness. If the witness admits having made that assertion or spoken that sentence, the assertion or sentence is proved also and nothing further remains to be done; if he denies or does not remember having made the assertion or spoken the sentence, the station officer will have to be called to prove that he made or spoke it. If the witness admits having made that assertion or spoken that sentence, the assertion or sentence is proved also and nothing further remains to be done; if he denies or does not remember having made the assertion or spoken the sentence, the station officer will have to be called to prove that he made or spoke it. This will be done by asking him whether the witness made the assertion or spoke the sentence bearing exhibit number so and so. This is the right way of proceeding to contradict a witness. I have dealt with this matter at length because many Ses. Judges do not know when an omission is a contradiction and allow lot of public time to be wasted in long cross-examination about omissions, and do not know the right way of confronting a witness by his previous statement and of getting it proved by Sub-Inspector. It is quite wrong for a Sessions Judge to make a note, when a witness denies or does not remember having made a certain statement before the sub-Inspector, that such a statement exists or does not exists. " 36. AS regards das Decorator episode we already have dealt with the matter while dealing with the third and the fourth adverse observations of the learned Judge. We already have demonstrated that the fact that a meeting of DYFI was held and that gunny sheets were hired from Das Decorator or there was occasion to hire the same as also to return the same was not in dispute. Therefore the evidence of P. W. 15 that he went to Das Decorators for the purpose of returning the gunny sheets cannot be viewed with any amount of suspicion. The only objection which would survive is that the P. W. 15 omitted to disclose to the P. W. 20 (I. O.) that he had gone to Das Decorator for the purpose of returning the gunny sheets. Does this omission amount to a contradiction? Our answer is No. Before an omission can be treated as a contradiction it has to be shown that the statement omitted during examination under section 161 Cr. P. C. cannot co-exist with what was stated in court. If the part omitted during the statement under section 161 cr. P. C. is not inconsistent with the evidence in Court, the omission does not amount to a contradiction. P. C. cannot co-exist with what was stated in court. If the part omitted during the statement under section 161 cr. P. C. is not inconsistent with the evidence in Court, the omission does not amount to a contradiction. Reference in this regard may be made to the following views expressed in the tahsildar Singhs case (supra). "if the provisions of the section are construed in the aforesaid background, much of the difficulty raised disappears. Looking at the express words used in the section, two sets of words stand out prominently which afford the key to the intention of the legislature. They are: "statement in writing", and "to contradict". "statement" in its dictionary meaning is the act of stating or reciting. prima facie a statement cannot take in an omission. A statement cannot include that which is not stated. But very often to make a statement sensible or self-consistent, it becomes necessary to imply words which are not actually in the statement. Though something is not expressly stated, it is necessarily implied from what is directly or expressly stated. To illustrate: a made a statement previously that he saw b stabbing c to death; but before the Court he deposed that he saw b and d stabbing c to death: the court can imply the word "only" after b in the statement before the police. Sometimes a positive statement may have a negative aspect and a negative one a positive aspect. Take an extreme example: if a witness states that a man is dark, it also means that he is not fair. Though the statement made describes positively the colour of a skin, it is implicit in that statement it self that it is not of any other colour. Further, there are occasions when we come across two statements made by the same person at different times and both of them cannot stand or co-exist. There is an inherent repugnancy between the two and, therefore, if one is true, the other must be false. On one occasion a person says that when he entered the room, he saw a shooting b dead with a gun; on another occasion the same person says that when he entered the room he saw c stabbing b dead: both the statements obviously cannot stand together, for, if the first statement is true, the second is false and vice versa. The doctrine of recital by necessary implication, the concept of the negative or the positive aspect of the same recital, and the principle of inherent repugnancy, may in one sense rest on omissions, but, by construction, the said omissions must be deemed to be part of the statement in writing. Such omissions are not really omissions strictly so called and the statement must be deemed to contain them by implication. A statement, therefore, in our view, not only includes what is expressly stated therein, but also what is necessarily implied therefrom. "contradict" according to the Oxford Dictionary means to affirm to the contrary. Section 145 of the Evidence Act indicates the manner in which contradiction is brought out. The cross-examining Counsel shall put the part or parts of the statement which affirms the contrary to what is stated in evidence. This indicates that there is something in writing which can be set against another statement made in evidence. If the statement before the police officer- in the sense we have indicated- and the statement in the evidence before the court are so inconsistent or irreconcilable with each other that both of them cannot co-exist, it may be said that one contradicts the other. If the statement before the police officer- in the sense we have indicated- and the statement in the evidence before the court are so inconsistent or irreconcilable with each other that both of them cannot co-exist, it may be said that one contradicts the other. From the foregoing discussion the following propositions emerge: (1) A statement in writing made by a witness before a police officer in the course of investigation can be used only to contradict his statement in the witness box and for no other purpose; (2) statements not reduced to writing by the police officer cannot be used for contradiction; (3)though a particular statement is not expressly recorded, a statement that can be deemed to be part of that expressly recorded can be used for contradiction, not because it is an omission strictly so-called but because it is deemed to from part of the recorded statement; (4) such a fiction is permissible by construction only in the following three cases: (i)when a recital is necessarily implied from the recital or recitals found in the statement: illustration: in the recorded statement before the police the witness states that he saw A stabbing B at a particular point of time, but in the witness box he says that he saw A and C stabbing B at the same point of time; in the statement before the police the word " only" can be implied i. e. , the witness saw A only stabbing B; (ii) a negative aspect of a positive recital in a statement: illustration: in the recorded statement before the police the witness says that a dark man stabbed B, but in the witness box he says that a fair man stabbed B; the earlier statement must be deemed to contain the recital not only that the culprit was a dark complexioned man but also that he was not of fair complexion; and (iii) when the statement before the police and that before the Court cannot stand together: illustration: the witness says in the recorded statement before the police that A after stabbing B ran away by a northern lane, but in the Court he says that immediately after stabbing he ran away towards the southern lane; as he could not have run away immediately after the stabbing i. e. , at the same point of time, towards the northern lane as well as towards the southern lane, if one statement is true, the other must necessarily be false. " 37. THE judgment in the case of Kandia Sahu (supra) cited by Mr. Basu is clearly distinguishable because in that case the alleged conspiracy according to the evidence of the sole witness had been divulged to the victim. It was naturally held by the Division bench that it was difficult to believe that in spite of knowing the conspiracy the deceased would go to take food and water to the conspirators. Evidence of P. W. 9 was also otherwise not believable. Therefore any observation made in the facts of that case can have no manner of application to the case in hand. 38. THE judgment in the case of Bimal vs. reported in 2003 SCC (Criminal) 596 equally has no manner of application to the facts and circumstances of the case in hand. The evidence of P. W. 5 in that case was clearly unreliable. Therefore the observations made in that case cannot be applied to the case in hand. 39. THE judgment in the case of Lallu Majhi vs. State of jharkhand (supra) also does not assist the appellants because in that case there was no clear proof as regards the root cause of the incident. The evidence of the sole eyewitness in that case was open to serious objections and therefore Their Lordships held that the conviction could not be recorded but in the present case the prosecution has been able to prove its case to the hilt. 40. THE judgment in the case of Ramji Surya vs. State of Maharashtra (supra) contains the rule of prudence necessitating corroboration but at the same time made it clear that the conviction can be recorded on the basis of the evidence of the sole eyewitness provided he is honest and truthful. 41. ALL the submissions advanced by Mr. Basu have thus been disposed of. We are of the view that the evidence of P. W. 15 is truthful and reliable. The learned trial Judge was justified in relying on the same. The second question is thus answered in the affirmative. 42. THE learned Trial Judge, as a matter fact, in his attempt to be over cautious has acquitted the appellants and six others of the charge under section 302 read with section 34 IPC. Although there was impeccable evidence. The learned trial Judge was justified in relying on the same. The second question is thus answered in the affirmative. 42. THE learned Trial Judge, as a matter fact, in his attempt to be over cautious has acquitted the appellants and six others of the charge under section 302 read with section 34 IPC. Although there was impeccable evidence. The learned Trial Judge was misled by the submissions made on behalf of the defence which would appear from the following portions made by the learned Trial Judge:-"the learned lawyers for the defence vehemently objected to the admissibility of the said statement u/s 27 of the Evidence Act inasmuch as the said statement was neither signed by the accused nor by any witness. Reliance was placed in this connection to the decision of the case of jackaran Singh vs. State of Punjab reported in AIR 1995 SC 2345 wherein it has been held that "absence of the signatures of thumb impression of an accused on the disclosure statement recorded u/s 27 of the Evidence Act detracts materially from the authenticity and reliability of the disclosure statement". " 43. THE attention of the learned Trial Judge was not drawn by the defence to the corrigendum issued by the Honble Apex Court by the order dated 25. 4. 96 in the case of Jaskaran Singh vs. State of Punjab reported in AIR 1995 SC 2345 indicating that the view of the Apex Court with reference to the failure to obtain signature of the accused on the disclosure statement recorded has been reviewed suo Motu and held to be erroneous. In the case of State of Rajasthan vs. Teja ram reported in 1999 (3) SCC 507 it has been held that " the investigating officer is not obliged to obtain signature of an accused ????? covered by section 27 of the Evidence Act". In the case of Suresh Ch. Bahri vs. State of Bihar reported in 1995 Supp. (1) SCC 80 an argument that the disclosure statement in order to be admissible under section 27 must have been reduced to writing was also repelled. 44. WE do not however want to go further into this because the State has not preferred any appeal and that is now a closed chapter. (1) SCC 80 an argument that the disclosure statement in order to be admissible under section 27 must have been reduced to writing was also repelled. 44. WE do not however want to go further into this because the State has not preferred any appeal and that is now a closed chapter. P. W. 9 Narayan Debnath, P. W. 10 Rabindra Biswas, an employee of the accused Kajol and P. W. 12, a wealthy resident of the locality, in their respective examination under section 161 Cr. P. C. had given important clue to the police as regards the conspiracy detailed hereafter. Each of the aforesaid witnesses namely P. Ws. 9,10 and 12 turned hostile at the time of trial. They were cross-examined by the prosecution. The statement made by each of the witnesses to the P. W. 20, the I. O. at the time of examination under section 161 Cr. P. C. was put to them but they denied to have made any such statement. The I. O. (P.W. 20), however, in his examination-in-chief as regards the information given to him by the P.W. 9 Narayan Debnath, deposed as follows:-"admits that I had examined the witness Narayan Debnath. Not a fact that he did not state to me that on 9-6-96 in the evening Kajal bhowmick, Pradhan Ruidas Sarkar and others gave threatening having gone to the house of Nityananda Roy to the effect that they would create a pathway by force and that on the next day i. e. on 10-6-96 at the dictates of pradhan Ruidas Sarkar, Kajal Bhowmick, Anil Debnath, Arup Mondal, pradip Seal, Badal Saha, Dipak Saha, Arjun Saha, Ajoy Saha and Asim saha created pathway by force on the land of Nityananda Roy having raided his house armed with deadly weapons and that they having entered into the room of Nityananda ransacked it and looted the articles and on protest by Susmita, daughter of Nityananda Roy, she was threatened with killing and over the issue a case was started at the thana and that he did not state to me that on 29-6-96 at about 10. 30 p. m. in the petrol pump of kajal Bhowmick, a meeting was held where Kajal Bhowmick, Pradhan ruidas Sarkar, Chitta Saha, Anil Debnath, Arup Mondal and Badal Saha were present and that they decided to kill the men of Nityananda Roy and that he had heard some of their words and that he had also heard some of plan of said killing and other words. " 45. SIMILARLY the I. O. (P. W. 20) during his examination-in-chief deposed as regards the examination of the P. W. 10 Rabindranath Biswas and the statement made to him was deposed to as follows:-"admits that I had examined witness Rabindra Nath Biswas. Not a fact that he did not state to me that he was working at the petrol pump of kajal Bhowmick for 7/8 years and that on 29-6-96 at about 10 p. m. at night when he was on duty in the petrol pump, his employer Kajal bhowmick, Pradhan Ruidas Sarkar, Chitta Saha, Anil Debnath, Arup mondal and Badal Saha came to the petrol pump and began to talk with (regard to?) Susmita and that he had pretended as if he was not hearing it by eavesdropping and that he heard them to say that the family members of Nityananda Roy would be killed and that his employer Kajal Bhowmick stated that the daughter of Nityanada Roy as (has?) such courage that he tried to contest with them and attempted to insult them and as such should be done to death and on 30-6-96 in the morning he heard Susmita was murdered and that in accordance with the version of his owner and pradhan Ruidas Sarkar, Susmita was murdered. " 46. SIMILARLY as regards the examination of the P. W. 12 Shaktiram Mallick the i. O. (P.W. 20) deposed as follows:- "admits that I had examined witness Saktiram Mallick. " 46. SIMILARLY as regards the examination of the P. W. 12 Shaktiram Mallick the i. O. (P.W. 20) deposed as follows:- "admits that I had examined witness Saktiram Mallick. Not a fact that he did not state to me that on 29-6-96 at about 10-30 p. m. when he was going towards Purbapara Nagarukhra, he saw in the petrol pump of kajal Bhowmick, Chitta Saha, Anil Debnath, Arup Mondal and Badal Saha were discussing something and when he approached near the petrol pump office slowly, he heard their conversation and that Kajal Bhowmick said that the daughter of Nityananda Roy had such courage that she should be taught a lesson and that she should be done what they wanted at nagarukhra and that they would see how court or thana could save her. " 47. THE evidence of the P. W. 20 as regards the statements made by the p. Ws. 9,10 and 12 during their examination under section 161 of the Cr. P. C. supports the evidence of the P. W. 15 as regards the conspiracy hatched by the appellants but the question is whether it is admissible regard being had to the fact that the P. Ws. 9,10 and 12 turned hostile in Court and denied their statements. What is the value to be attached to the evidence of the P. W. 20 in such a case? This question cropped up before the Apex Court in the case of balaram Prasad Agarwal vs. State of Bihar reported in 1997 (9) SCC 338 where it was contended by the learned Counsel appearing for the appellant that "if the informants are examined as witnesses as in the present case, the objection to hearsay disappears as then it becomes the original evidence of the informant who can be cross-examined about the truth of his information conveyed to P. W. 6 and in such an eventuality the versions deposed to by P. W. 6 and the informants will fall for scrutiny and will have to be weighed by the court with a view to ascertaining as to which of the versions on oath is a correct one". 48. THEIR Lordships did not express any final opinion with regard thereto except for observing that "we find prima facie some force in what the learned senior Counsel for the appellant submitted in this connection". 49. 48. THEIR Lordships did not express any final opinion with regard thereto except for observing that "we find prima facie some force in what the learned senior Counsel for the appellant submitted in this connection". 49. ALTHOUGH no final opinion was expressed, Their Lordships considered the question and quoted with approval the following view expressed by the Privy council in the case of Subramaniam vs. Public Prosecutor:-"evidence of a statement made to a witness who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made. The fact that it was made quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or some other persons in whose presence these statements are made. " 50. WE can therefore safely conclude that the evidence of P. W. 20 as regards the statements made to him by the P. Ws. 9,10 and 12 may not be treated as factually proved but the fact that such a statement was made by the P. Ws. 9,10 and 12 to the I. O. remains firmly established. We hasten to add that we are not using the evidence of the P. W. 20 as regards the statements made to him by the P. Ws. 9,10 and 12 for any purpose except for the fact that such a statement was made to him. 51. THE following facts and circumstances lend assurance to the Court that the judgment of the learned Trial Court is correct. a) There was long-standing dispute between the complainant party and the accused persons including the appellants as regards the pathway which the accused including the appellants were interested to curb out from the land possessed by the complainant party. The accused including the appellants were interested in contending that there was a pathway through the landed property of the complainant party which the complainant party was denying. The accused including some of the appellants took up the law in their own hands and forcibly laid a pathway on 10th June 1996. The accused including the appellants were interested in contending that there was a pathway through the landed property of the complainant party which the complainant party was denying. The accused including some of the appellants took up the law in their own hands and forcibly laid a pathway on 10th June 1996. The complainant party braved the accused persons including some of the appellants. They lodged F. I. R. against the invasion as also closed the pathway forcibly created on 10th June 1996. b) The incident of the creation of pathway was reported to the police and a criminal case under sections 147/148/149/448/427/506/379 was started. The appellants or most of them were accused in that case dated 10th June 1996. c) The appellant Kajal Bhowmick was arrested in connection with the aforesaid case dated 10th June 1996 and was released on bail on 29th June 1996. The appellants are the office bearers of a political party having immense influence in the area. d) Diverse proceedings between the complainant party and the appellants including the accused persons under sections 107 and 144 of the Cr. P. C. were pending besides the criminal case dated 10th June 1996. There is evidence on record to show that loss of life was threatened by some of the appellants to P. W. 1 on 9th June 1996. e) There is evidence to show that the deceased Susmita, an educated young woman, was actively engaged in opposing the intrusion and intended intrusion upon their property. f) Ext. 7 dated 18th June 1996 goes to show that the appellants exercising power of the Panchayat ruled by them had taken serious exception to the closure of the pathway by extending the boundary wall. g) The complainant party comprising of the mother, father and the daughter was relatively weak in the sense that the only male member Nityananda roy (P. W. 2) was not possessed of his faculty fully as a result whereof the leading role of the family was in the hands of the P. W. 1 Shrimati Snigdha roy. They had earned the wrath of the ruling political party by having the appellants or most of them arrested which added fuel to the fire which already was burning since prior to 9th June 1996. They had earned the wrath of the ruling political party by having the appellants or most of them arrested which added fuel to the fire which already was burning since prior to 9th June 1996. h) The proximity between the date of release of the appellant Kajol Bhowmick on bail and the date of murder is also very significant. i) P. Ws. 9,10 and 12 after making significant statement to the P.W. 20 backed out during the trial. 52. FOR the reasons discussed above, we are of the view that the learned Trial judge has not committed any error in passing the impugned judgment of conviction and sentences. The appeals are dismissed accordingly. All the appellants namely Kajal Bhowmick, Chitta Saha, Anil Debnath, Badal Saha and ruidas Sarkar in CRA No. 223 of 1997 were enlarged on bail. The sole appellant namely Arup Mondal in CRA No. 218 of 1997 was also enlarged on bail. They are except the deceased Ruidas Sarkar are directed to surrender forthwith before the court of learned Sessions Judge, Nadia in order to serve out the remainder part of their sentences as awarded by the learned Trial Court. The bail granted to them by orders dated 25th July 1997 is cancelled. The estate of the deceased ruidas is liable for payment of fine. 53. LOWER Court Records with a copy of this judgment be sent down forthwith to the learned Trial Court for information and necessary action. The learned registrar General is directed to circulate copies of this judgment to all the district Judges with a direction that copies of this judgment should be made available to the learned Judges and Magistrates in their respective judgeship for guidance in procedural matters.