Judgment : PRASAD, J. (1) These two appeals arise out of a common judgment and order dated 10th February 2005 passed by the learned Additional Sessions Judge, Fast Track Court II, Krishnagore in Sessions Trial No. II of July 2004 arising out of Sessions Case No. 55 of June 2004 convicting the two appellants herein for the offence punishable under Section 302 of the Indian Penal Code read with Section 34 thereof. (2) The appellants were heard on the question of sentence on 11th February, 2005 and thereafter by an order passed on the same day that is on 11.2.2005, they were sentenced to suffer rigorous imprisonment for life as also to pay fine of Rs. 4,000/-each, in default to suffer further rigorous imprisonment for one year each. (3) Being aggrieved by the judgment and orders of conviction and sentences passed by the learned trial Court, the appellants have preferred the present appeals separately. (4) Prosecution version as unfolded during trial in a nutshell is that the informant Unfar Seikh of village Bilkumari within the limits of Nakashipara police station lodged a written complaint at Nakashipara Police Station on 29.2.2004 at about 06.05 hours that on 28.2.2004 at about 02.00 hours at night he got massage over telephone about the murderous assault on his brother Jabbarul Seikh. Getting such information, he came to the resident of his brother and found him lying dead on the varandha of his house at village Dhananjoypur. It was alleged in the complaint that he asked the appellant Mahima Bibi, the wife of his deceased brother about the incident but she could not narrate the incident in details. It was also mentioned in the written complaint that after hearing the co-villagers who were assembled at the house of his brother prior to his arrival there, the informant was confident that the appellant Mahima Bibi committed the murder of his brother in collusion with another. (5) On the basis of aforesaid complaint, Nakashipara Police Station Case No. 53 of 2004 dated. 29.2.2004 was started against the appellant Mahima Bibi under Section 302/120B of the Indian Penal Code. (6) The Investigating Agency took up investigation. (5) On the basis of aforesaid complaint, Nakashipara Police Station Case No. 53 of 2004 dated. 29.2.2004 was started against the appellant Mahima Bibi under Section 302/120B of the Indian Penal Code. (6) The Investigating Agency took up investigation. During investigation, the Investigating Officer visited the place of occurrence; prepared sketch map of the place of occurrence; conducted inquest on the dead body of the deceased; seized some alamats from the varandha of the house of the deceased as per seizure list; examined the available witnesses; recorded their statements and collected post mortem examination report of the deceased. (7) In the usual course after completion of investigation, the Investigation Officer submitted charge sheet against the appellants herein under Section 302/34 of the Indian Penal Code. (8) The case was committed to the Court of Sessions. (9) In the Court of learned Trial Judge, charge under Section 302 read with Section 34 of the Indian Penal Code was framed against the appellants. The appellants pleaded not guilty to the charge framed against them and claimed to be tried. (10) In the trial Court, as many as 19 witnesses were examined on behalf of the prosecution. (11) P.W.1, Unfar Seikh is the brother of the deceased who lodged the F.I.R. (Exhibit 1); P.W.2, Mostafijur Seikh is the scribe who wrote the complaint as per instruction of P.W.1; P.W. 3, Jinna Seikh, P.W.5 Rahima Bibi; P.W. 6 Kauchar Seikh, P.W. 7 Akmina Bibi, P.W.10 Saru Bibi, P.W. 16 Dalim Biswas and P.W.17 Dalim Seikh (all co-villagers of the deceased) were declared hostile; P.W. 4 Habibar Rahaman is the witness of the inquest report conducted by the Investigating Officer on the dead body of the deceased; P.W. 8, Billal Seikh and P.W. 9, Motaleb Seikh are the two persons who according to prosecution version had seen the appellant Ohab Seikh fleeing away from the side of the house of the deceased on relevant night of the incident; P.W. 11 Rabia Bewa is the step mother of the appellant Mohima; P.W. 12 Gobinda Lal Biswas is the then constable of Nakashipara Police Station who took the dead body of the deceased to Hospital for the purpose of post mortem examination; P.W.13 Matiur Seikh is one of the witnesses of the seizure list; P.W. 14 is Dr. R.N. Haider who conducted post mortem examination on the dead body of the deceased at Hospital; P.W. 15 Sanjoy Upadhyay is the then A.S.I, of Nakashipara Police Station who after receipt of written complaint made by the informant had registered the case at Police Station; P.W. 18 Swarajit Kundu is the then A.S.I, of Nakashipara police station before whom seizure of one Dao was made and P.W. 19, Arup Kumar. Pal is the Investigating Officer of this case. (12) Apart from leading oral evidence, the prosecution also tendered and proved a large number of exhibits which were marked as Exhibits 1 to 12 and Mat Exhibit I. (13) Though the appellants were examined under Section 313 of the Code of Criminal Procedure, yet there was no adduction of evidence by them. (14) The defence version as it appears from the trend of cross-examination of P.Ws. as also from the suggestion thrown to the witnesses was denial of the prosecution case as brought out in evidence. (15) The learned Trial Judge disbelieved the defence version. (16) The learned Trial Judge after considering the oral and documentary evidence and hearing the learned Counsel for the parties passed orders of conviction and sentences against the appellants as indicated above. (17) Learned Counsels appearing for the appellants urged that there is no eye-witness of the occurrence and the prosecution case is totally based on circumstantial evidence. Learned Counsels vehemently contended that no incriminating circumstances, which have been relied upon by the prosecution, have been proved beyond shadow of a reasonable doubt and as such the learned Trial Judge was now justified in recording the finding of guilt against the appellants. Placing reliance on the three decisions of the Honble Apex Court reported in (2002)9 SCC 408 , (2003) 11 SCC 527 and 1992 SCC (Cr) 915, the learned Counsel appearing on behalf of the appellant Mahima Bibi submitted further that the prosecution has not come with clean hands and the evidence of witnesses produced by it does not inspire confidence and the learned Trial Judge evolved a new case which is not deposed to by the prosecution. (18) Per-contra, the learned Counsel appearing for the State-respondent supported the impugned judgment passed by the learned trial Court. (18) Per-contra, the learned Counsel appearing for the State-respondent supported the impugned judgment passed by the learned trial Court. Learned Counsel urged that the learned trial Court was right in coming to the conclusion that the circumstances as brought on record stand duly proved and they by themselves complete the chain of circumstances which would lead to the conclusion that the appellants were the authors of the crime. (19) We have given our anxious and thoughtful consideration to the respective contentions of the learned Counsel for the parties. We have perused the evidence both oral and documentary tendered and proved by the prosecution to substantiate its case and the impugned judgment. (20) At the outset, it needs to be mentioned here that it is not disputed that the deceased Jobbarul Seikh died instantaneously on account of injuries sustained by him at the varandha of his residence on the night of occurrence while he was sleeping there with his wife and minor daughter. The Investigating Officer (P.W. 19) performed inquest on the dead body of the deceased at the varandha of the house of the deceased on 29.2.2004 at about 7 A.M. and thereafter the dead body of the deceased was taken to Hospital for the purpose of post-mortem examination by P.W. 12, Constable Gobinda Lal Biswas. (21) P.W. 14, Dr. R. N. Haider, who conducted post mortem on the dead body of the deceased on 29.2.2004 at Hospital found the following anti-mortem injuries on the person of the deceased :- "1. Transverse sharp cut injury over front of neck at the level of thyroid cartilege measuring 5" X 2 X thyroid cartilege. Muscles and vessels were cut. Haematoma of neck muscle was present. Hyoid bone was intact. 2. Sharp cut injury over left glutial region measuring 22" X 2" X muscle deep. 3. Sharp cut injury over back of left thigh measuring 5" X 2" X muscle deep. 4. Sharp cut injury over the back of left leg measuring 5" X 2" X bone deep. Left fabulaewas cut." (22) In the opinion of Dr. Haider, death was caused due to shock and haeomorahage of the injuries resulting ante-mortem injuries sustained by the deceased. It was further opined that the injuries might be caused by Dao, Ramdao and Hansua. (23) That apart, the material witnesses of the prosecution namely, P.Ws. Left fabulaewas cut." (22) In the opinion of Dr. Haider, death was caused due to shock and haeomorahage of the injuries resulting ante-mortem injuries sustained by the deceased. It was further opined that the injuries might be caused by Dao, Ramdao and Hansua. (23) That apart, the material witnesses of the prosecution namely, P.Ws. 1 to 11 and 17 in their evidence before Court also stated unambiguously that the deceased was murdered on the date of incident at night. Thus, it is amply established that the deceased met a homicidal death on account of the injuries sustained by him on the date of incident at night. (24) Now, we have to consider whether the appellants herein were responsible for causing the injuries to the deceased resulting his instantaneously death on the spot. (25) On going through the evidence on record, it is found that the conviction of the appellants is based on circumstantial evidence as there is no direct evidence to establish involvement of the appellants in the murder of the deceased. (26) It is settled law that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused. Those circumstances should not be capable of being explained by any other hypothesis, except the guilt of the accused and the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. It needs no reminder that legally established circumstances and not merely anguish of the Court can form the basis of conviction and more serious the crime, the greater should be the care taken to scrutinise the evidence lest suspicion takes place of proof. (See Dhananjoy Chatterjee alias Dhana v. State of West Bengal, 1995 AIR SCW 510) (27) Now, we shall deal with the circumstances which have been relied upon for bringing home the offence to the appellants in order to determine whether all these circumstances have been proved or not beyond shadow of reasonable doubt. (See Dhananjoy Chatterjee alias Dhana v. State of West Bengal, 1995 AIR SCW 510) (27) Now, we shall deal with the circumstances which have been relied upon for bringing home the offence to the appellants in order to determine whether all these circumstances have been proved or not beyond shadow of reasonable doubt. Circumstance No. 1 (28) An attempt was made by P.W. 1, the informant during the course of his evidence to the effect that there was difference in mind sometimes in between the appellant Mahima and the deceased. There was no mention of any such plea in the FIR lodged by P.W. 1 rather the same finds no corroboration from the evidence of any neighbouring co-villagers. On the contrary, there is evidence on record to show that the matrimonial relationship between appellant Mahima and her husband, the deceased was good and out of said conjugal life, Mahima gave birth two daughters fathered by the deceased. Apart from the aforesaid consideration, there is nothing in the testimony of the prosecution witnesses that the appellant Ohab Seikh was having a grouse against the deceased. (29) For the reasons aforesaid, we are in complete agreement with the submission of the learned Counsel for the appellants that this particular circumstance has not been established beyond any reasonable doubt. Circumstance No. 2 (30) It was tried to be shown by the testimony of P.Ws. 8 and 9 that they found the appellant Ohab Seikh fleeing away from the side of the home of deceased on the relevant night of the incident. The evidence of P.Ws. 8 and 9 to this part of the prosecution case is not consistent. They have made prevaricating statement with regard to this part of the prosecution case in material particulars from stage to stage. If there had been any substratum of truth in the claim of P.Ws. 8 and 9 that they had seen the appellant Ohab Seikh fleeing away from the side of the house of deceased on the relevant night of incident then they could have certainly disclosed the said fact to any of the villagers who were assembled on the spot and also to the Investigating Officer who came to the spot on the relevant date of incident and recorded their statement under Section 161 of the Code of Criminal Procedure. What was the compelling circumstances for which they could not have disclosed the said fact to any one? No explanation has been forthcoming on the side of the prosecution in this regard. Apart from the aforesaid consideration, P.W. 8 has stated something which P.W. 9 has not stated and similarly P.W. 9 has stated something which P.W. 8 has not stated although according to their evidence they were in company with another and on hearing outcry they came to the place of occurrence together. P.W. 9 has nowhere whispered that he found the appellant Ohab Seikh without having shirt and with a dao in his hand which P.W. 8 has deposed in his evidence before Court. Similarly, P.W. 8 has no where stated in his evidence before Court to support the evidence of P.W. 9 that he asked Mahima about the name of assailant of Jabbar and in reply Mahima told that the appellant Ohab committed murder of Jabbar Seikh. That apart, the claim of P.Ws. 8 and 9 in this regard has been clearly falsified by the testimony of P.W. 19, the Investigating Officer of this case who recorded their statements under Section 161 of the Code of Criminal Procedure. The evidence of P.W. 19 in this regard is as follows :-"Billal Sheikh (P.W. 8) did not state to me that after hearing outcry coming from the house of Jabbar Sheikh, Motaleb and he himself were proceeding towards the house of Jabbar Sheikh along with torch light in his hand and they saw the accused Ohab Sheikh fleeing away from the side of the house of Jabbar Sheikh. He (P.W. 8) also did not state to me that they saw accused fleeing away along with dao in his hand having no shirt on her body. He (P.W. 8) also did not state to me that he could identify the accused Ohab Shiekh with the light of torch in his hand. Motaleb Sheikh (P.W. 9) did not state to me that Billal Sheikh and he himself were proceeding towards the house of Jabbar Sheikh or that at that time they saw the accused fleeing away then. He (P.W. 9) did not state to me that they saw accused Ohab Sheikh fleeing away and thereafter, they went to the house of Jabbar Sheikh. He (P.W. 9) did not state to me that they saw accused Ohab Sheikh fleeing away and thereafter, they went to the house of Jabbar Sheikh. He (P.W. 9) did not state to me that Mahima Bibi told him that accused killed Jabbar Sheikh and fled away." (31) Thus, we find material contradictions in the testimony of P.W. 8 and P.W. 9. The testimony of these witnesses is far from impressive and the story put forward by them is difficult to accept on its face value. As such this circumstance could not be said to have been proved beyond shadow of reasonable doubt. Circumstance No. 3 (32) The learned trial Court has been influenced by the fact that the appellant Ohab Seikh had absconded after 29.2.2004 when the police got suspicious of his complicity in this offence. It is true that this appellant did himself scare with effect from 29.2.2004 till he was arrested on 25.5.2004 and this conduct is relevant under Section 8 of the Evidence Act. But this is not the only conclusion to which it must lead the Court. Even innocent persons may, when suspected of grave crimes, be tempted to evade arrest: Such is the instinct of self-preservation in an average human being. (33) In case of Rahman v. State of U.P., AIR 1972 SC 110 : 1972 Cr LJ 23 it was found that the appellant in that case was concealing himself for nearly a month, though he must have known that he was wanted by the police. It was held by the Supreme Court that absconding by itself is not conclusive either of guilt or of a guilty conscious, for a person may abscond on account of fear of being involved in the offence or for any other allied reason. (34) To similar effect are the observations made by the Supreme Court in case of Matru alias Girish Chandra v. State of U.P., AIR 1971 SC 1050 : 1971 Cr LJ 913. (35) In K. Mohammed v. State of Kerala, AIR 1963 Kerala 54 : (1963)1 Cr LJ 175 a Division Bench of the said Court held that instances are not rare when rustics in our country even when they are absolutely innocent behave as guilty persons and their absence from the house for three or four days in fear of the police cannot create any presumption of guilt. (36) We are, therefore, not inclined to attach much significance to this conduct of the appellant Ohab Seikh on the peculiar facts and circumstances of this case particularly when there is no evidence on record to show as to how many occasions the Investigating Officer had tried to apprehend the appellant during the period from 29.2.2004 to 25.4.2004. Circumstance No. 4 (37) The appellant Ohab Seikh is stated to have, after being arrested on 25.5.2004 made a disclosure statement that he could point out the dao allegedly used in the commission of the crime and then he is said to have lead the police party to his residence where a dao as per evidence of Investigating Officer (P.W. 19) was recovered from beneath the cot of his room. There is nothing in the testimony of P.W. 19 that the alleged recovered dao bore any marks of blood and he took steps in accordance with law for sending the said dao to chemical examiner in order to ascertain that the same bore marks of human blood and, therefore, there is altogether no evidence on record that the recovered dao bore any marks of blood and/or human blood. (38) The evidence of P.W. 19 touching the recovery of the said dao in the manner stated by him has not been corroborated at all by any of the seizure list witnesses that is P.Ws 13, 16 (the two independent witnesses) and P.W. 18, the then A.S.I, of Nakashipara Police Station. P.Ws. 13, 16 and 18 in their evidence before Court have nowhere whispered that this appellant after being arrested led P.W. 19 to his house and brought out one dao from beneath the cot of his room. That apart, evidence available by the testimony of P.W. 19 that on 29.2.2004 at about 14.50 hours he conducted search of the house of the appellant but he did not find anything after search and as such he prepared mis-search list. (39) Apart from the aforesaid considerations, the prosecution in the instant case has not produced the recorded version of the statement made by this appellant in consequence whereof the dao under consideration was recovered. (39) Apart from the aforesaid considerations, the prosecution in the instant case has not produced the recorded version of the statement made by this appellant in consequence whereof the dao under consideration was recovered. (40) The decision of Allahabad High Court in the case of Nathu v. State reported in AIR 1958 Allahabad 467 lays down that under Section 27 of the Evidence Act that part only of the information given by an accused is admissible as distinctly relates to the facts recovered. Unless, therefore, the exact words used by an accused in giving the information are known, the Court is not in a position to decide to what extent the particular statement is admissible in evidence. The practice of not recording the actual words by the Investigating Agency was, therefore, disapproved. In the case of Panchu Gopal Das v. The State reported in AIR 1968 Calcutta 38, somewhat similar observations were made. It was observed that it is only proper for prosecution if they want to adduce evidence under Section 27 of the Evidence Act which is an exception to the power enjoined by Section 25 of the Evidence Act, to prove by production of the written record only of so much of the statement as led to the discovery of article. It js unsafe to rely on the oral statement without corroboration by any written record of any such statement contemporaneously made, even if admissible. (41) In the case of Bahadul v. State of Orissa reported in AIR 1979 SC 1262 , the Honble Supreme Court had held as under : "As regards the production of the tangia by the accused before the police, the High Court seems to have relied on it as admissible under Section 8 of the Evidence Act. As there is nothing to show that the appellant had made any statement under Section 27 of the Evidence Act relating to recovery of this weapon hence the factum of recovery thereof cannot be admissible under Section 27 of the Evidence Act." (42) In view of the above legal position and from our independent analysis of the prosecution evidence which we have already discussed earlier, we have to hold that this circumstance cannot be deemed to have been proved beyond shadow of any reasonable doubt. Circumstance No. 5 (43) This circumstance relates to the statement of the appellant Mahima Bibi made under Section 313 of the Code of Criminal Procedure where she pleade,d her innocence and throw the entire blame on the appellant Ohab Seikh. A reading of the statement of the appellant Mohima Bibi made under Section 313 of the Code of Criminal Procedure shows that it is self-exculpatory. She is throwing the entire blame on the appellant Ohab Seikh for committing the murder of the deceased. She does not implicate herself substantially to the same extent as to other co-accused, the appellant Ohab Seikh. It is, therefore, not covered by Section 30 of the Evidence Act. It cannot be treated as "evidence" against the co-accused where a person pleads innocence and throws the entire blame on the co-accused that statement cannot be used against the co-accused. Where one accused seeks to clear himself at the expense of the other accused jointly tried with him, his statement cannot be taken into consideration against the co-accused: The statement must amount to a distinct confession of his own guilt. The statements, however, criminating made in self-exculpation or in mitigation of guilt are self-serving statements and are not admissible. (44) It has been held by the Supreme Court in Balbir Singh v. State of Punjab reported in AIR 1957 SC 216 that the confession of one accused can be used against others if the confession implicates the maker substantially to the same extent as to the other co-accused person against whom it is sought to be taken into consideration. Where on reading the confession as a whole, it appears that he was really trying to throw the main blame on the other accused, the confession cannot be used at all. (45) Now, coming to Section 313 of the Code of Criminal Procedure. This Section lays down the procedure for the examination of an accused after the prosecution evidence is recorded. (45) Now, coming to Section 313 of the Code of Criminal Procedure. This Section lays down the procedure for the examination of an accused after the prosecution evidence is recorded. In sub-section (4) of Section 313 of the Code of Criminal Procedure, it is lays down that "The answers given by the accused may be taken into consideration in such enquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed." (46) A reference to sub-section (4) of Section 313 of the Code of Criminal Procedure would make it abundantly clear that it excludes the possibility of a confessional statement made by an accused recorded under Section 313 of the Code of Criminal Procedure to be used against a co-accused such answers as are given by the accused can be used only for or against him and not against others. We do not find any indication in this section which would go to show that the answers given by one accused under this section could be considered against his other co-accused. (47) That apart, the meaning given to the phrase "is proved" as it occurs in Section 30 of the Evidence Act is that the confession to be proved must have existed before the trial had begun, that is, must have been recorded, before the trial of the case commenced. A reference to Section 3 of the Evidence Act would show that "A fact is said to be proved when, after considering the matter before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists." (48) The aforesaid definition itself excludes the consideration of a confessional statement made by an accused under Section 313, Criminal P.C., against a co-accused of his, because in order to hold that a fact is proved, the Court must be in a position to believe, after consideration of the circumstances, that it is true or is so probable that a prudent man would, under the circumstances of the case, act upon the supposition that it so exists. Now with regard to statement that is recorded by the Court under Section 313, neither the question of belief in its existence nor of the probability of its existence arises. Such a statement is within the knowledge of the Court itself and the belief in its existence or in the probability of its existence is out of question. A distinction has to be drawn between the words "belief" and "knowledge". A belief will be inculcated in the mind of a person by various factors: by evidence of witnesses or by inferences from given premises. But not so with knowledge. Knowledge is gained by a person by making use of his perceptional faculties and is clearly distinguishable from belief. Therefore according to the ordinary cannons of interpretation a fact that has already come to the knowledge of the Court during the trial does not need being proved and cannot be proved so as to make the Court believe in its existence. Proof is needed of a fact which the Court does not know or believes to exist. (49) In view of the above legal position the statement made by one Mahima Bibi in reply to the question put to her under Section 313 of the Code of Criminal Procedure cannot be considered against the appellant Ohab Seikh in the instant case. Accordingly, the circumstance is not sufficient to lead to any irresistible inference that Ohab Seikh had committed the murder of deceased in furtherance of a common intention of the appellant Mahima Bibi. (50) From the circumstances appearing from the facts and circumstances of the case which we have already discussed above, it cannot be inferred that there was plan or meeting of mind of the appellant Mahima Bibi to commit the offence for which she was charged with the aid of Section 34 of the Indian Penal Code. There is no evidence on record to hold that the appellant Mahima Bibi was having any common intention and from the circumstances appearing on record, no common intention can be inferred. (51) The learned Court seems to us to have failed to take into consideration all the relevant facts and circumstances of the case. There is no evidence on record to hold that the appellant Mahima Bibi was having any common intention and from the circumstances appearing on record, no common intention can be inferred. (51) The learned Court seems to us to have failed to take into consideration all the relevant facts and circumstances of the case. As proof of the appellants guilt depended solely on circumstantial evidence it was incumbent on the learned trial Court to properly consider and scrutinise all the material factors and circumstances for determining whether the chain of circumstantial evidence is so complete as to lead to the only conclusion of the appellants guilt. (52) In our view, the cumulative effect of the circumstantial evidence in this case stated by us in the preceding paragraph of our judgment falls far short of the test required for sustaining conviction. (53) For the reasons given above, we are satisfied that the prosecution has not been able to prove the case against the appellants beyond reasonable doubt although a valuable life was lost. We have serious doubt as to the prosecution version and once the case is in the region of suspicion, the benefit will go to the accused. (54) The appeals therefore, succeed and are allowed. (55) The judgment and order of conviction and sentences passed by the learned trial Court are set aside and the appellants are acquitted of the charge framed against them. (56) It appears from the record that the appellants are now in jail. They are directed to be released forthwith from custody, if not required to be detained in connection with any other case. (57) Before parting with this case, we feel impelled to express our sense of distress at the manner in which the Investigating Agency had investigated the case. Had the Investigating Agency investigated into the case in a correct manner, the true case would have been unfolded and justice could be done. But for reasons unknown, it was discarded and as we suspect a different colour was given to the occurrence. (58) Lower Court Records with a copy of this judgment to go down forthwith to the concerned trial Court for information and necessary action. (59) Send a copy of this judgment to the Superintendent of the concerned Correctional Home where the appellants are now under detention for information and necessary action.