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2010 DIGILAW 1311 (CAL)

Omar Ali Mondal v. STATE OF WEST BENGAL

2010-10-06

ASHIM KUMAR BANERJEE, RAGHUNATH RAY

body2010
JUDGMENT Ray, J. 1. CONSPECTUS of Appeal In this Criminal Appeal, the judgment of conviction and sentence dated 17/5/1994 and 19/5/1994 respectively passed by the learned Additional Sessions Judge, 3rd Court, Barasat, 24 Parganas (North) in Sessions Trial No. 2 (12) 93 is under challenge. By the impugned judgement, the learned Trial Judge convicted accused Omaf Ali Mondal(in short A1) under Section 376, I.P.C. Both the co-accused Sadak Ali Mondal (in short A2) and Abdullah Mondal (in short A3) were, however, found not guilty of the charge under Sections 376/ 34, I.P.C. All the three appellants Viz Omar Ali Mondal, Sadak Ali Mondal and Abdullah Mondal were convicted under Sections 302/34, I.P.C. Learned trial Court sentenced the convict appellant (A1) to undergo R.I. for 7 years and also to pay a fine of Rs. 2,000/- in default whereof to suffer R.I. for one year more for commission of an offence under Section 376,1.P.C., while the rest 2 convict appellants namely A2 and A3 were acquitted of the charge under Sections 376/34, I.P.C. since the said charge was not proved against them. All the three convict appellants were, however, sentenced to rigorous imprisonment for life each and also to pay a fine of Rs. 5,000/- each in default whereof to suffer R.I. for 2 years more. Both the sentences in case of A1 are to run concurrently. F.I.R. 2. BACK ground facts as unfolded in the FIR may be capsulized as under:- One Md.Khalil Ata (PW1) of village Hizla, post Ashoknagar within P.S. Habra, District North 24 Parganas lodged an FIR alleging inter alia that her daughter Mothfazila Khatun aged 21 years, a divorcee had a love relationship for the last 4 years with A1 who is the son of informant's cousin. Both of them agreed to marry each other and as such A1 used to come to his house and take his daughter out with him. On 9.8.1989 A1 along with three of his friends (one of whose nick name was Kalo) came to his house and took his daughter with them. The people of the neighborhood also saw them to roam at the Mominpur bus stand. On 11.8.1989 at dawn he came to know from the local people that his daughter was lying dead in Alauddin Mondal's jute field in Mominpur Mouza. The people of the neighborhood also saw them to roam at the Mominpur bus stand. On 11.8.1989 at dawn he came to know from the local people that his daughter was lying dead in Alauddin Mondal's jute field in Mominpur Mouza. On receipt of such news, he had been to the place of occurrence and found that his daughter had been murdered and was lying naked with a noose tied around her neck and blood flowing from her nose and mouth. According to the informant, A1 and his three friends together murdered his daughter. On the basis of the said FIR, Habra P.S. Case No.312 dated 11.8.1989 under Sections 302/34, I.P.C. was registered for investigation against A1 and Kalo. Investigation The case was endorsed to Jahar Sengupta (PW17), S.I. for investigation. In course of investigation the I.O. visited the P.O. and recorded the statement of available witnesses and also seized the wearing apparels of the victim as also her vanity bag and Hawai Chappal under a proper seizure list. He arrested A2 and A3. On his transfer Dilip Kumar Haider (PW 15) S.I. was entrusted with the further investigation of the case. He arrested A1. He recorded statements of some of the witnesses and also collected the FSL report. On completion of investigation, he submitted the charge sheet under Sections 376/302/34, I.P.C. against all the three appellants on 21.03.1992. Since the offences alleged were exclusively triable by the learned Court of Session, the case was committed to the Court of Learned Sessions Judge, 24 Parganas(North), Barasat by the Learned S.D.J.M., Barasat, North 24 Parganas vide order dated 29.12.1992. 3. ON consideration of the relevant police papers and other connected documents and materials on record, the learned Session Judge, 3rd Court, Barasat framed charge under Sections 302/34, I.P.C. against all the three appellants. The appellant No.1 was further charged under Sections 376, I.P.C. separately while appellant Nos. 3. ON consideration of the relevant police papers and other connected documents and materials on record, the learned Session Judge, 3rd Court, Barasat framed charge under Sections 302/34, I.P.C. against all the three appellants. The appellant No.1 was further charged under Sections 376, I.P.C. separately while appellant Nos. 2 and 3 were also charged under Section 376/ 34, I.P.C. Accordingly, they were asked to answer the charge framed vide order dated 2.12.1993 as under :- 'That all of you on 10th/11th August, 1989 after 3 p.m. and in the evening/night in the Jute Field of Allauddin Mondal of mouza Mominpour, J. L. No. 66 of P.S.-Habra, Dist-North 24 Parganas in furtherance of common intention of all of you viz., to commit rape and murder did commit murder by intentionally causing the death of Mst-Fajila Khatun by fastening her sari worn by her around her neck and by tightening the same after committing forcibly rape upon her against her will and consent and thereby committed an offence punishable under Sections 302/34 of I.P.C. and within the cognizance of this Court of Session." That on 10th/11th August, 1989 after 3 PM and in the evening/night in the Jute Field of Allauddin Mondal of mouza Mominpur, J.L. No.66ofP.S. Habra, Dist. North 24-Parganas. You committed rape forcibly upon Mst Fajila Khatun against her will and consent and thereby committed an offence punishable under Section 376 of I. P. C. and within the cognizance of this Court of Session." "Thatyouon 10th/11th August, 1989 after 3 p.m. in the Jute Field of Allauddin Mondal of mouza Mominpur, J.L.No.66 of P.S. Habra, Dist-North 24 Parganas in furtherance of common intention of all of you viz., to commit forcibly rape and, thereafter, to commit murder actually committed rape forcibly against her will and consent upon Mst Fajila Khatun and thereby committed an offence punishable under Sections 376/34 of I.P.C. and within the cognizance of this Court of Session." All of them, however, pleaded not guilty and claimed to be tried. Accordingly, all of them were put on trial. In Trial 4. DURING trial the prosecution examined as many as 17 PWs and also relied upon several documents (Exhibits 1 series, 2 series, 3 series, 4 series, 5 series, 6 series, 7 series, 8 series, 9, 10 series, 11 and 12 series) and also Material Exhibits (I to VI) in support of its case. In Trial 4. DURING trial the prosecution examined as many as 17 PWs and also relied upon several documents (Exhibits 1 series, 2 series, 3 series, 4 series, 5 series, 6 series, 7 series, 8 series, 9, 10 series, 11 and 12 series) and also Material Exhibits (I to VI) in support of its case. None has been examined from the side of defence in order to substantiate its plea of innocence, denial and false implication. The defence has, however, sought to rely upon the inquest report (Exhibit A). On consideration of evidence as adduced on behalf of the prosecution coupled with other relevant surrounding circumstances on record, the learned Court below recorded a finding of guilt against all the appellants as indicated earlier. Feeling aggrieved, all the three appellants have preferred the instant appeal. In Appeal The appeal was admitted for hearing by this Court and realization of fine was stayed vide order dated 17.06.94. All the three appellants were subsequently released on bail to the satisfaction of learned Chief Judicial Magistrate, Barasat, 24 Parganas (North) each with two sureties and one of whom shall be local in terms of order dated 29.06.94. This appeal was filed through Mr. Swasta Gopal Mukherjee, learned Advocate and he now represents A2 and A3 while he had no instruction to represent A1. Since the appellant No. 1 misused the privilege of bail, this Court cancelled bail granted in his favour. After such cancellation of bail, he was rearrested and he is now in custody. On his failure to engage a Counsel of his choice, Mr. Subir Ganguly was appointed by this Court as State defence Counsel to represent appellant No. 1. Categorization of Witnesses 5. FOR a better appreciation of evidence and circumstances on record all the seventeen witnesses examined by the prosecution may broadly be categorized under the following heads :- I. Parents of the Victim PW1, Md. Khalil Ata, of village Hijlia, the father of the victim and the uncle of Omar, A1, is the FIR maker. PW 10, Monajat Bibi, is the mother of the victim. II. Eye-Witnesses PW3, Abdar Mondal, and PW 6, Md. Sabur Ali Mondal, were the eyewitnesses. But these two eye-witnesses, have, subsequently turned hostile and not supported the prosecution case as eye-witnesses to the incident of rape and gruesome murder. III. PW 10, Monajat Bibi, is the mother of the victim. II. Eye-Witnesses PW3, Abdar Mondal, and PW 6, Md. Sabur Ali Mondal, were the eyewitnesses. But these two eye-witnesses, have, subsequently turned hostile and not supported the prosecution case as eye-witnesses to the incident of rape and gruesome murder. III. Last seen together witnesses PW 2, Abul Kasem Ata, PW 3, Abdur Mondal, PW 11, Md. Nasiruddin, and PW 12 Abdul Gaffar Ata (a hostile witness), residents of Hijlia saw the victim to move with the appellants through the village pathway for the last time prior to the incident as alleged. IV. Medical evidence Testimony of PW7, Dr. Bimal Kumar Khastagir, the then Superintendent of Barasat Hospital covers the medical evidence. PW14, Subrata Narayan Choudhury, scientific officer - cum- assistant chemical examiner, Government of West Bengal, conducted forensic examination of human blood and semen detected in the wearing apparels of the victim. VI. Police Witnesses vi) PW8, Dulal Chandra Dutta, S. I. prepared the Inquest Report (Exhibit A). PW9, Chittaranjan Saha, a constable posted at Habra PS at the relevant point of time carried the dead body of Fajila Khatun, the victim from a jute field to the Barasat Hospital for post-mortem examination. PW16, Sunil Kr. Das, another constable of the same PS was entrusted with the job of serving process. PW15, Dilip Kumar Haider S. I. is the second I.O. who recorded statements of some of the witnesses. On perusal of materials collected by him and the previous I.O. in course of investigation he submitted charge-sheet under sections 376/302/34, I.P.C. against the appellants. PW17, Jahar Sengupta, the first I.O. visited the P.O., examined all available witnesses seized a good number of articles in connection with the instant case. VII. Tendered witnesses PW4, Md. Nazir Ali, was tendered for cross-examination and his cress- examination was declined by the defence. PW13, Sk. Aliuddin, a resident of Hijlia was also tendered for cross- examination and he was cross-examined accordingly by the defence. VII. A Witness to the Inquest and Seizure PW5, Gopal Ch. Roy, a co-villager of the informant, witnessed the preparation of a seizure list (Exhibit 2) in connection with the seizure of wearing apparels, hawai chappal and vanity bag of the victim. VII. A Witness to the Inquest and Seizure PW5, Gopal Ch. Roy, a co-villager of the informant, witnessed the preparation of a seizure list (Exhibit 2) in connection with the seizure of wearing apparels, hawai chappal and vanity bag of the victim. Evaluation Keeping in view the heads of charge framed against the appellants and quoted in the preceding paragraph 3, we would now proceed to evaluate both the ocular and circumstantial evidence on record to come to a definite finding as to whether such charges have been established against them beyond reasonable doubt. Since both the eye-witnesses (PWs 3 and 6) have been declared hostile, the entire prosecution case rested on circumstantial evidence. A close scrutiny of the Judgement impugned reveals that the prosecution relied on several circumstances and the learned trial Court's finding of guilt is mainly based on four circumstances: (i) A1, the cousin of the victim, a divorcee having a love affair with her used to visit her paternal home and set out together out of their house. Even though the date of their marriage was settled, A1 subsequently married elsewhere, (ii) The appellants and the deceased were last seen together by PW2, PW3 (hostile witness), PW11 and PW12, (another hostile witness), (iii) Medical evidence establishing the factum of the victim's death caused due to shock and asphyxia which was ante mortem and may be homicidal in nature, (iv) FORensic report indicating detection of human blood and semen in the cuttings of saya, blouse, brassiere and sari worn by the victim Fajila Khatun. (i) Backdrop of love affair between A1 and the victim 6. THIS circumstance relied upon by the learned Court below is hardly of any significance for the simple reason that A's frequent visit to the parental house and taking her out of the parental home and moving together here and there pursuant to their love affair alone is not sufficient to connect the appellants with the crimes as alleged, unless it forms a link to the chain of circumstances. (ii) Last seen together Learned trial Court placed much reliance on the evidence adduced by Abdul Kasem Ata (PW2), Abdur Mondal (PW3, a hostile witness) Md. Nasiruddin (PW11) and Md. Abdul Gaffar Ata (PW12), (another hostile witness) who claimed to witness the appellant together with the victim for the last time prior to the incident of murder and rape as alleged against them. Nasiruddin (PW11) and Md. Abdul Gaffar Ata (PW12), (another hostile witness) who claimed to witness the appellant together with the victim for the last time prior to the incident of murder and rape as alleged against them. Abdul Kasem Ata (PW2) deposed as under :- "In the night prior to the morning when I saw the dead body of Fazila Khatun. I and SaburAli Mistry and one aged man Omar Ali were sitting in front of my shop. I saw Sadek Ali and Abdullah proceeding hurriedly towards their houses." At the out set of his cross-examination on behalf of Omar Ali (A1) he deposes that he had a grocery shop for which he had no license but in the same breath he denied that he made any statement before the I.O., that Omar Ali and Sabur Ali were sitting in front of his shop. He further adds that he does not know wherefrom they came and where they went. It transpires from further cross-examination made on behalf of the rest of the appellants that he had been to the PS 4/5 days after the recovery of the dead body. He was examined at that time but he does not recollect if he told the I.O. that Sadek and Abdullah were coming hurriedly on way to their houses. So also he did not state to the I.O. that the dead body was lying in the jute field of Alauddin. He has, however, denied the defence suggestion that Sadek and Abdullah did not go hurriedly towards their houses. Even though he has not supported the case of the prosecution, he has not been declared hostile by the prosecution for the reasons best known to them. Be that as it may, the fact remains that the only evidence which is forthcoming from his testimony is that he saw Sadek and Abdullah proceeding hurriedly towards their houses during the fateful night. At any rate, even if his testimony that he "saw Sadek Ali and Abdullah proceeding hurriedly towards their houses" is taken on its face value, such statement alone is not sufficient to boister the prosecution case of establishing incriminating circumstance relatable to last seen together theory. 7. ABDUR Mondal (PW3), a hostile witness has deposed that in the night of murder of Fazila Khatun, at about 7/7.30 PM he saw Sadek and Abdullah gossiping together and coming to their village Mominpur. 7. ABDUR Mondal (PW3), a hostile witness has deposed that in the night of murder of Fazila Khatun, at about 7/7.30 PM he saw Sadek and Abdullah gossiping together and coming to their village Mominpur. Fazila Khatun was seen following those two persons. He saw them entering their village Mominpur and he does not know anything more. Even though the deponent was an eye-witness to the incident of rape and murder, he retracted from his earlier statement made before the I.O. for the reasons not known to us. Curiously enough, despite his denial of having made any statement before the I.O. as an eye-witness to the incident, Jahar Sengupta (PW17), the first I.O. was not confronted with the statement of PW3 and no reason has also been assigned as to why contradiction was not taken from the I.O. when he came to the witness box. 8. AT any rate, during cross-examination by the prosecution he asserts that he did not state to the I.O. that yesterday at about 8 PM he was sitting with two of his villagers towards the end of their village i.e. where the village Hijlia starts and while they were sitting upon an aile of a jute field, or that suddenly he saw three male persons and one female coming by following the aile-path way of the village. The evidence of this hostile witness taken as a whole does not inspire confidence in our mind. Moreso, whenever the I.O. was not confronted with the deponent's denial of making any statement before him to the effect that he saw the appellants with the victim for the last time or he witnessed the incident of rape and murder of the victim by the appellants. The, credibility of this witness has thus affected considerably. We are, therefore, not prepared to place any reliance upon such testimony of this hostile witness. Md. Sabur Ali Mondal (PW6), another hostile witness testifies as under:- "On a Thursday (details I cannot say) J was sitting from 8PM to 9/10 PM in the shop of Kasem Ata situated at the Bridge Junction of Hijlia. I noticed going away of Sadek and Abdullah towards their houses from that place when I called them. Sadek told me that in that night I would not get seeds from Sadek and on the next day the same might be available. I noticed going away of Sadek and Abdullah towards their houses from that place when I called them. Sadek told me that in that night I would not get seeds from Sadek and on the next day the same might be available. Both of them were seen in an agitated mood and they were in hurrlness to go to their houses." During cross-examination this witness disownes his earlier statement made before the I.O. (PW17) and categorically asserts that he did not state to the I.O, that suddenly he noticed Sadek Ali, Abdullah Mondal, Fazila D/o. Khalil Ata and Omar Ali a relative of Ata going upon the village ail path way after crossing village Mominpur or that firstly, their notice escaped those four persons but suddenly they noticed that instead of entering village Hijlia they followed the left side aile path way and entered a jute field. He also retracted from his earlier statement made before the I.O. (PW17) that he saw Omar Ali to fall upon Fazila, and stripped off her wearing sari or that Omar, Sadek and Abdulla made a knot with that sari and fastened that knot around the neck of Faziia, and began to tighten it. He also did not state to the I.O. that Faziia tried to save her. He did not state to the 1.0. that, thereafter, Omar Ali caused Faziia to fall down and began to "enjoy" her (sambhog). He further testifies that he did not state to the 1.0. that within a short time Faziia became senseless and end of Faziia came thereafter or that the body of Faziia was left there and those three persons fled away therefrom. 9. JAHAR Sengupta (PW17), the first I.O. who recorded the statement of PW6 has, however unequivocally asserted that PW6 told him that he and two other villagers were sitting upon the ail towards the end of the jute field where the village Hijlia started. They suddenly noticed Sadek Ali, Abdullah Mondal, and Faziia and Omar Ali, a relative of Ata going upon the Hijlia village aile path way after crossing village Mominpur. The I.O. further states that PW6 told him that firstly those four persons escaped their notice but suddenly they noticed that instead of entering village Hijlia they followed the left side aile path way and entered a jute field when their suspicion arose. The I.O. further states that PW6 told him that firstly those four persons escaped their notice but suddenly they noticed that instead of entering village Hijlia they followed the left side aile path way and entered a jute field when their suspicion arose. It is available from I.O.'s testimony that PW 6 narrated the entire incident of rape and murder to him and he recorded such statement of an eye-witness in term of 161, Cr.P.C. accordingly. 10. IN this context it is to be noted that statement by a prosecution witness before the police in terms of Section 161, Cr.P.C. in course of investigation can only be used to contradict or to discredit such witness as provided under Section 145 of Evidence Act. It is well settled position of law that the same cannot be used as substantive evidence in favour or against the accused. Such statement can, however, be used for a very limited purpose, i.e. for the purpose of contradicting or discrediting a witness in view of provisions of 162, Cr.P.C. The previous statement can thus be used by the accused prosecution only to contradict or discredit a witness in the manner provided under section 145 of Evidence Act. Importantly, statements made to a police by a witness are not admissible in evidence (vide 1980 CrLJ 564 : AIR 1980 SC 873 [Hazari Lai, Appellant v. The State of Delhi, Respondent]) and 1976 Cr LJ 295 : AIR 1976 (SC) 294 [Sat Paul, Appellant v. Delhi Administration, Respondent]) Even though the position of law is clear on this point, the learned Court below has failed to take a legally correct approach in this regard. Learned trial Judge has observed that since the I.O. (PW7) was confronted with the previous statement of the prosecution witness and it was stated to him that accused Omar fell upon Faziia and stripped off her wearing sari and Omar Ali caused him to fall down and began to enjoy, his previous statements before the I.O. should be acted upon. The learned Trial Judge therefore proceeded to record his finding as under:- 'Thus the evidence of the hostile witness (PW6) is contradicted by the evidence of the I.O. PW 17 and in this respect I see nothing to disbelieve the I.O." 11. The learned Trial Judge therefore proceeded to record his finding as under:- 'Thus the evidence of the hostile witness (PW6) is contradicted by the evidence of the I.O. PW 17 and in this respect I see nothing to disbelieve the I.O." 11. HIS further observation in this regard in page 14 of the judgment is as under:- The evidence of these hostile witnesses do not support the defence version fully but in this particular trial it is seen that these witnesses who are declared hostile by the prosecution supported the prosecution case in material particulars as stated by me above. Hence, I accept these versions of those hostile witnesses which go to point out that the accused persons are responsible for this heinous crime." 12. LEARNED Trial Judge, has further proceeded to observe in page 15 of the judgement as under:- "In this respect there are two eye-witnesses PW3 and PW6 according to the prosecution but both of them turned hostile. The evidence of PW3 goes unchallenged while the evidence of PW6 was confronted from the mouth of the I. O. and after due consideration I hold that PW6 did not tell the truth and he told a lie." The learned trial Court has thus described PW6 as a liar, but in the same breath he has sought to regard his earlier statement before the I.O. sacrosanct. Accordingly, he treated the same as substantive piece of evidence and acted upon it. We feel constrained to observe that the entire approach of the learned Trial Judge is absolutely wrong in this regard for the simple reason that PW6's statement before the I.O. (PW17) cannot legally be treated as substantive evidence. Since there is a glaring departure from his previous statement before the I.O., contradiction has rightly been obtained from the I.O. PW17and in such circumstances the learned Trial Judge was free to take his own decision about trustworthiness or otherwise of the said hostile witness. But neither the I.Q.'s evidence in this regard nor the statement of PW6 recorded by the I.O. can be treated as substantive evidence to from the basis of conviction. 13. But neither the I.Q.'s evidence in this regard nor the statement of PW6 recorded by the I.O. can be treated as substantive evidence to from the basis of conviction. 13. IN our considered view, since PW6 the hostile witness has been confronted with his earlier statement made before the police, it is permissible to reject his evidence being contradictory to his earlier statements (vide 1979 Cr LJ 329 : AIR 1979 SC 400 (Prakash Chand, Appellant v. State (Delhi Administration), Respondent] and 1976 Cr LJ 1162 : AIR 1976 SC 1421 [Jit Singh, Appellant v. State of Punjab, Respondent]. IN that view of the matter retraction of this hostile witness PW6 from his earlier statement made before the I.O. seriously affects his credibility. Such being the position of law, his evidence on the last seen together aspect appears to be very scanty and is not conclusive to connect the appellants with the commission of crime of murder and rape. 14. RELYING upon a ruling of the Apex Court reported in (2010)1 SCC (Cr) 662 [Ramesh Bhai andAnr., Appellants v. State of Rajasthan, Respondent] it has rightly been argued by Mr. Ganguly, learned State Defence Counsel and Mr. Mukherjee, learned Advocate for A2 and A3 that the learned Court below has committed a serious illegality by placing much reliance upon the evidence of PWs. 2,11 and 12 who claimed to have seen the victim with the appellants for the last time since their evidence is of the "shaky nature." According to them, the learned Trial Judge's finding on that score appears to be erroneous. It is worth-mentioning here that although PWs 2, 11 and 12 have claimed in their testimony that they saw the victim along with the appellants for the last time, they have contradicted each other in respect of very crucial aspects of time and place when they saw the victim together with the appellants actually for the last time. Evidence on record clearly suggests that the alleged incident of murder and rape took place at about 12 midnight of 10/11.8.89. But some of the witnesses stated that they witnessed the victim for the last time in the company of the appellants in the evening hours and atleast one of them even stated that he could not recollect the name of the place where he saw them. But some of the witnesses stated that they witnessed the victim for the last time in the company of the appellants in the evening hours and atleast one of them even stated that he could not recollect the name of the place where he saw them. It is importantly important to note that whenever the Court intends to rely upon the circumstantial piece of evidence of last seen together, time gap between the point of time when appellants and deceased were seen together and deceased found dead should not be large (vide 2008 Cr LJ (SC) 3502 [Kusuma Ankama Rao, Appellant v. State of U.P., Respondent]). In other two rulings reported in (2005)2 SCC 114 : (2005)1 C Cr LR (SC) 366 [State of U.P., Appellant v. Satish, Respondent] and (2006)10 SCC 172 : (2006)2 C Cr LR (SC) 256 [Ramreddy Rajeshkhanna Reddy and Anr., Appellants v. State of Andhra Pradesh, Respondent], it is observed inter alia that the last seen theory come into play where the time gap between the point of time when the deceased was seen last alive with the accused and the deceased found dead is so small that possibility of any other persons other than the accused being the author of the crime becomes impossible. 15. IN such a situation, the Court, of course, is to look for some corroboration. IN our case as already indicated earlier, the nature of evidence is shaky and, in fact, such scanty evidence on record also lacks corroboration from other reliable witnesses. IN our considered opinion, the legal requirement to establish the last seen theory as mandated by the Apex Court in afore- quoted judicial pronouncements have not, therefore, been complied with in the present case. III. Medical Evidence 16. DR. Bimal Kumar Khastagir (PW7), who conducted the PM Examination of the victim identified by Constable No. 2945 Chittaranjan Saha (PW9), opined that the death was due to shock and asphyxia which was ante- mortem and may be homicidal in nature. He found the following injuries :- 1. One abrasion lower 1/3rd in both legs, irregularly. 2. One abrasion over both wrist joints. 3. Hyoid bone broken. 4. Marks of fingers present (tips of fingers) on either side of wind pipe, and round ligature mark around the neck which was on the middle of the neck, and transversely placed having dimensions 10"x11/2". One abrasion lower 1/3rd in both legs, irregularly. 2. One abrasion over both wrist joints. 3. Hyoid bone broken. 4. Marks of fingers present (tips of fingers) on either side of wind pipe, and round ligature mark around the neck which was on the middle of the neck, and transversely placed having dimensions 10"x11/2". It is available from his testimony that the document was prepared from the original PM Examination report and he attested the document in question after its comparison with the original PM Examination report and as such the copy of the said report was proved by the author of the said PM Report himself and marked as Exhibit 9 (objected to by the defence). Mr. Ganguly, the learned State Defence Counsel has sought to challenge the veracity of the PM Examination report and it is argued by him that the testimony of the doctor is based upon a document which is not PM Examination report in original and as such the medical evidence on record cannot be acted upon. In this connection he has referred to a ruling of the hon'ble Apex Court reported in 1997 C Cr LR (SC) 177 [Vijender, Appellant v. State of Delhi, Respondent] wherein it is ruled that a copy of the PM Examination report is not admissible in evidence. He has also referred to another ruling of the Division Bench of this High Court reported in (2005)2 C Cr LR (Cal) 503 [Jitu Sk. Jhantu Sk. and Mansur Barajee, Appellants v. The State of W.B., Respondent]. 17. WE have paid anxious consideration to such submission in the light of two rulings cited on behalf of the appellants. In the case before the Apex Court the doctor who conducted PM Examination of the victim did not come forward to depose even though he attended the hospital and performed his duties in District Hospital, Gaziabad on the very date when the record clerk of the hospital was deputed with a copy of PM Examination report to depose before the Court in the case under reference. It is, therefore, observed in paragraph 19 of the said judgment that whenever Dr. Gupta was in the hospital on that date he ought to have been examined to prove the PM Examination report since the prosecution was required to adduce best evidence of a doctor as per requirement of section 60 of the Evidence Act. It is, therefore, observed in paragraph 19 of the said judgment that whenever Dr. Gupta was in the hospital on that date he ought to have been examined to prove the PM Examination report since the prosecution was required to adduce best evidence of a doctor as per requirement of section 60 of the Evidence Act. In Paragraph 21 of the said judgment it is also, therefore, observed as under :- ".......the report of the Post mortem examination (Ext. P.W. 21/A) which we have found to be legally inadmissible for non-examination of the doctor who held the autopsy" (emphasis is ours). Similarly in the case before the Division Bench of this High Court reported in (2005)2 C Cr LR (Cal) 503 (supra) and cited on behalf of the appellants the doctor who conducted the PM Examination did not come forward to prove the copy of the PM Examination Report. Accordingly, it is held as follows :- The prosecution side not only failed to produce the Doctor who conducted Post mortem examination for his substantive evidence, but, also failed even to produce an authentic copy of the Post mortem Report. Naturally, having regard to the ratio of the decision reported in the case of Vijendra v. The State of Delhi (supra), we are legally bound to lend support to the contention of Mr. Roy that in this case there is no legal proof about the murder and rape." 18. THE case in hand is, therefore, both factually and contextually different from the cases covered by the decision of the Apex Court as also another Division Bench of this High Court. In this case, the doctor who conducted the PM Examination has come forward to depose and as such the substantive evidence adduced by him before the Court cannot be held to be legally inadmissible. Moreso, whenever the doctor as PW7 has deposed that he himself attested the copy of PM Examination Report after its comparison with the original PM Examination Report and in such circumstances the PM Examination Report was proved by him and was marked as Exhibit 9. THEre is no doubt that the attested copy of the PM Examination Report was admitted in evidence with the objection raised from the side of the defence. THEre is no doubt that the attested copy of the PM Examination Report was admitted in evidence with the objection raised from the side of the defence. Such objection, however, appears to be formal in nature and is not sustainable for the simple reason that the author of the PM Examination Report himself has attested the same after making a comparison with the original PM Examination Report which was prepared by him. THE copy of such PM Examination Report was written by Ashok Palit of Barasat Hospital and the doctor who was well conversant with his handwriting has duly attested the same. Therefore, the copy of the PM Examination Report prepared by Ashok Palit, a clerk of Barasat Hospital from the original PM Examination Report can easily be treated as an 'authentic copy' of the PM Examination Report. THE defence suggestion that the PM Examination Report has been manufactured or prepared for the purpose of trial does not appear to be plausible and, therefore, such suggestion is not acceptable. That apart, at the risk of repetition it is reiterated that the copy of the PM Examination Report was prepared by the clerk concerned from the original PM Examination Report and the same was duly attested by Dr. Khastagir, PW7 after comparing the same with the original. As such, it is beyond our comprehension as how the same can be regarded as a manufactured document prepared for the purpose of the trial. In such trajectory, we are of the considered view that the direct evidence is the best evidence and it is the cardinal rule of the law of evidence that the best evidence should be brought before the Court. Accordingly, the provisions of Section 60 of Indian Evidence Act requiring oral evidence to be direct have strictly been followed by ensuring the presence of the post mortem doctor (PW7) in the witness box. Furthermore, when the post mortem report in original is not available, the Secondary evidence, adduced through a compared copy as also oral account of its contents by the author of such report i.e. the Doctor who prepared the post mortem report and also himself compared the authenticated copy of the said documents from the original PM report, is admissible in terms of Section 65 of the Evidence Act. We are, therefore, of the definite opinion that the rulings cited on behalf of the appellants are not applicable to the facts and circumstances of the present case. Reliance can safely, therefore, be placed upon the substantive evidence of the doctor who conducted PM Examination of the victim. Accordingly, it is held that the injuries sustained by the victim were ante-mortem and homicidal in nature and the victim was murdered in the intervening night of 10/11th August 1989. Be that as it may, the fact remains that the prosecution is to establish the Appellants' involvement in commission of such a heinous and gruesome murder through cogent, consistent and telling circumstances which would unerringly point to the guilt of the appellants only. IV. Forensic opinion 19. THE mere two incriminating circumstances, namely the presence of human blood in the cuttings of Saya (Petty coat), blouse, brassiere and sari worn by Fazila Khatun and also detection of human semen on the wearing saya of the victim are not circumstances of such a conclusive nature and tendency as to exclude every hypothesis but the one of the guilt of the appellants. Moreso, whenever the blood group could not be detected for disintegration and insufficiency for test. THE semen group also could not be determined as the quantity was not sufficient for such test. Furthermore, the blood and semen of the appellants were also not taken out for investigation of the case. 20. IN that view of the matter both the medical and forensic opinion taken together are not sufficient to connect appellants with the commission of crime in the absence of a chain of cohesive circumstances unerringly pointing to their guilt. Location of the Place of Occurrence The next question comes up for consideration is whether the exact location of the P.O. has properly been identified. In a criminal trial a duty is cast upon the prosecution to identify the P.O. where the alleged incident took place. Turning to evidence on record it is found that it has been suggested from the side of the defence to PW8, a Police Officer who conducted inquest of the victim that the place of violence was elsewhere other than the place in the jute field referred to by him. Turning to evidence on record it is found that it has been suggested from the side of the defence to PW8, a Police Officer who conducted inquest of the victim that the place of violence was elsewhere other than the place in the jute field referred to by him. Such suggestion was, perhaps, offered when it transpires from his cross-examination that he noticed a place in the jute field measuring about 4-5 cubits in both sides where he saw marks of trampling of jute plants by human beings. Similarly, Jahar Sengupta (PW 17), the first I.O. at the outset of his cross-examination on behalf of Omar Ali (A1), corroborates PW8 and deposes that the victim girl was murdered in the very same place i.e. in the jute filed of Allauddin. of village Mominpur. According to him, it will be incorrect to say that Fazila died in her father's house. It further reveals from his cross-examination that there was a scuffling between the deceased and the miscreants at the P.O. and such incident took place in the month of August when the P.O. was not soaked with water. It is also emphatically stated by him in his evidence that there is a note in the CD that the P.O. was at Mominpur in the jute field of Alauddin Mondal. Incidentally, it may be pointed out that Hijila and Mominpur are two adjoining villages. 21. GOPAL Ch. Roy (PW5) is, however, frank enough to admit during cross-examination that he cannot say if the dead body was left there in the jute field of Alauddin by dragging her from any other place and further he cannot say the actual P.O. where Fazila was murdered. True, Dilip Kumar Haider S. I. and the second I.O. as PW 15 says in his cross-examination that the P.O. was in the house of Md. Khalil Ata of village Hijlia-Mominpur. Such assertion is, however, of no consequence since the deponent himself has admitted in his cross-examination that he did not see the dead body of Fazila Khatun when he visited the P.O. for the first time on 17.04.91. i.e. after the lapse of about seven months from the date of incident he visited the P.O. for the first time. The learned trial Court has, in fact, discussed the entire evidence on record in details on the question of identification of the P.O. in the judgement impugned. i.e. after the lapse of about seven months from the date of incident he visited the P.O. for the first time. The learned trial Court has, in fact, discussed the entire evidence on record in details on the question of identification of the P.O. in the judgement impugned. He has rightly rejected the evidence of PW15 that P.O. was in the house of Khalil Ata of village Hijlia on similar grounds that he visited the P.O. long after the occurrence and he even did not see the dead body of the victim Fazila Khatun. Learned Court below has mainly relied upon the testimony of the first I.O. Jahar Sengupta (PW17) who visited the P.O. immediately after occurrence. It is accordingly held by the learned Court below as under:- ".......during the struggle amongst the accused persons in one side and the deceased on the other side the jute plants were damaged and the P.O. is the place where the dead body was lying. It is worthy to note that Fazila Khatun was still bleeding from her mouth and nose when her body was detected in the early morning after the night of occurrence." 33. On our appreciation of evidence of witnesses who spoke on the location of the P.O. we are at one with the learned Trial Judge that the P.O. was in the jute field of Allauddin in Mominpur. So, we feel inclined to hold that the prosecution has fairly succeeded in pinpointing the exact location of the P.O. and the argument as advanced by Mr. Ganguly, the learned State Defence Lawyer and Mr. Mukherjee, learned Counsel for A2 and A3 is not tenable either factually or legally and as such their objection on that score stands overruled. Examination under section 313 Cr. P.C. 22. IT is argued by Mr. Ganguly, the learned State Defence Counsel that the necessary caution as required under the relevant provisions of Cr. Mukherjee, learned Counsel for A2 and A3 is not tenable either factually or legally and as such their objection on that score stands overruled. Examination under section 313 Cr. P.C. 22. IT is argued by Mr. Ganguly, the learned State Defence Counsel that the necessary caution as required under the relevant provisions of Cr. P.C. has not been administered to the appellants prior to their examination C Cr LR-95 under Section 313, Cr.P.C. and all inculpatory materials were also not put to them in order to ensure proper, effective and meaningful examination under Section 313, Cr.P.C. IT is, further argued by him that all the incriminating materials available during trial against the appellants were required to be put to them in course of their examination under Section 313, Cr.P.C. in order to give them an opportunity to explain important incriminating circumstances appearing against them during trial. In this connection he has referred to a ruling of the Division Bench of this High Court reported in 2003 C Cr LR (Cal) 346 [Harka Bahadur Rai, Appellant v. State of W.B., Respondent]. Relying upon the said ruling it is submitted by Mr. Ganguly, that a bare perusal of examination sheet would reveal that not a single question regarding alleged rape was put to the appellants and further that the ingredients of an offence under Section 302, I.P.C. were also not put to them in its proper perspective. Mr. Y. K. Dastur, the learned Counsel for the State submits that the judgment impugned under appeal cannot be supported and the reasoning for holding the appellants guilty of the charge under Sections 302/34, I.P.C. appears to be faulty and the same is not legally sustainable. In support of his contention Mr. Dastoor refers to two paragraphs i.e. 142 and 144 of the judgment of the Apex Court reported in AIR 1984 SC 1620 [Sharadv. State of Maharastra]. It is argued by him that there is a catena of rulings of the Hon'ble Apex Court uniformly taking the view that unless the circumstance appearing against an accused are put to him in his examination under Section 313, Cr.P.C. the same cannot be used against him. It is, therefore, submitted by him that the learned trial judge has committed an illegality in taking into consideration incriminating circumstances which were not put to the appellants during their examination under Section 313 Cr. It is, therefore, submitted by him that the learned trial judge has committed an illegality in taking into consideration incriminating circumstances which were not put to the appellants during their examination under Section 313 Cr. P.C. Since the conviction of the appellants is apparently based upon incriminating circumstances which were not put to them during examination under Section 313, Cr.P.C. the same are not legally admissible for recording an order of conviction. 23. IT is well-settled that the object of this provision under Section 313, Cr. P.C. is to give an opportunity to the accused to answer each and every piece of evidence adduced and relied upon by the prosecution. Therefore, failure of the learned trial Judge to make a detailed reference to prosecution evidence and to put each material circumstance appearing in the evidence against the appellants specifically, distinctly and separately contravenes this section. However, such failure of the learned trial Court to bring to notice of the appellants the inculpatory materials appearing against them will not itself render the conviction invalid unless it is shown that they have been prejudiced in their defence. IT cannot be said as a matter of law that defective or inadequate examination must be presumed to have caused prejudice. IT is not sufficient for them merely to show that they have not fully been examined as required by the section but they must show that such defective examination has materially prejudiced them and occasioned a failure of justice. When there are inculpatory materials in prosecution evidence against them and no questions on the same were put to the appellants in examination under Section 313, Cr.P.C, it is to be considered whether the appellants were materially prejudiced by such omission and thereby entitled to be acquitted. 24. IT has rightly been pointed out by learned Counsels for the appellants as also the State that the learned Trial Judge has failed to put some of the circumstances which are incriminating in nature in respect of the charge under Section 302 as also 376, I.P.C. to the appellants. Such being the factual position, we are of the considered opinion that the appellants were not afforded a reasonable opportunity of explaining those incriminating circumstances and materials on record appearing against them during trial. Such being the factual position, we are of the considered opinion that the appellants were not afforded a reasonable opportunity of explaining those incriminating circumstances and materials on record appearing against them during trial. In this connection we would like to refer to a ruling of the Apex Court reported in (2009)2 SCC Cr 243 [State of Punjab, Appellant v. Hari Singh and Ors., Respondent]. IT is ruled therein that the questioning of accused under Section 313, Cr.P.C. is not an empty formality and the "essence of accusation" has to be brought to the notice of the accused while examining under Section 313, Cr.P.C. In this context it is apt to quote paragraph 19 of the said decision in order to better appreciate the legislative intent justifying incorporation of the provision under Section 313, Cr. P.C. and it reads as under :- "19. Thus it is well settled that the provision is mainly intended to benefit the accused and as its corollary to benefit the Court in reaching the final conclusion." It is, however, held in another ruling of the Hon'ble Apex Court reported in 2003 SCC (Cr)1012 (Store (Delhi Administration).., Appellants. Dharam Pal., Respondent) that failure to draw accused's attention to inculpatory materials on record to enable him to explain it in his examination under Section 313, Cr.P.C. by itself does not vitiate the proceedings. It has to be established distinctly that the prejudice, if any was caused to the accused. In the present case as already indicated earlier the entire incriminating circumstantial evidence especially inculpatory materials connecting them with the commission of murder and rape were not put to them during their examination under Section 313 Cr. P.C. The appellants' valuable right to offer their explanation against such incriminating circumstances has, thus been infringed. As a matter fact, a serious prejudice has definitely caused to them because of an omission to bring inculpatory materials, which are available against them in course of trial to their notice and more particularly whenever the same have been used by the learned Trial Judge for securing an order of conviction against them. As a matter fact, a serious prejudice has definitely caused to them because of an omission to bring inculpatory materials, which are available against them in course of trial to their notice and more particularly whenever the same have been used by the learned Trial Judge for securing an order of conviction against them. We are, therefore, to opine that examination of an accused under Section 313, Cr.P.C. is not an idle formality and the trial Court is required to exercise abundant care, caution and circumspection in scanning the entire materials and circumstances on record appearing against the appellants and also putting the same to them. 25. AFTER meticulously taking into consideration the entire submission advanced by the learned Counsels for the appellants as also State with reference to the sets of questions put to each of the appellants, in the light of the principles laid down in different judicial pronouncements of the Hon'ble Apex Court, it can safely be concluded that all the incriminating materials and circumstances on record were not put to them and as such a reasonable opportunity to explain those circumstances were denied to them. Such a situation has undoubtedly caused a serious prejudice to them, we are, however, not at one with the learned Counsels for the appellants that necessary caution was not given to appellants as required under Section 313, Cr.P.C. Rather, a bare perusal of the examination-sheet would reveal that the appellants were duly cautioned before their examination under Section 313, Cr.P.C. At any rate, as per foregoing discussion we are to opine that appellants have not been properly and fairly examined and sufficient opportunity was also not afforded to them to expJain incriminating circumstances and inculpatory materials on record which were available against them during trial. 26. SINCE the questions have not been properly and fairly put to the appellants explaining the exact case they have to meet, the learned trial Court has failed to discharge its duty as envisaged under Section 313, Cr.P.C. In such circumstances, it is certainly open to this appellate Court to remand the matter to the learned trial Court so as to enable it to discharge its obligatory duty as mandated under the statutory provisions of law. Such failure of the Court, however, cannot be construed as a lacunae in the prosecution case and in that view of the matter no prejudice would also be caused to the appellants, if the case is sent back on remand. But we have refrained from taking recourse to such course of action for the simple reason that all the facts so established are not consistent only with the hypothesis of guilt of the appellants. Conclusion It is settled position of law that every link forming the chain of circumstance has to be proved. Direct evidence and all the circumstances taken together should be such so as to exclude all the hypothesis consistent with the innocence of the accused. In the case in hand it is evident from the foregoing discussion that the chain connecting each of the circumstances together has not been established satisfactorily. True, each circumstance by itself need not be conclusive but needless to say that all such circumstances taken together cumulatively must form unbroken chain of evidence leading to the-proof of the guilt of the accused. But in the present case charges could not be brought home on the basis of proved circumstances against the appellants beyond all reasonable doubts. 27. IT is to be borne in mind that the presumption of innocence in favour of the accused is available under the fundamental principles of criminal jurisprudence which speaks about such presumption of innocence for every person unless he is proved guilty by a competent Court of law. If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should normally be inclined to give the benefit of doubt to the accused. There is no doubt that the facts leading to the murder and rape of the deceased are horrendous in nature but it is also equally important to bear in mind that the graver the charge greater should be the standard of proof required. We are to cover a long distance, if we are to bridge the gap between "May be true" and "Must be true". In the present case the chain of events furnished by circumstances is not complete. Since the chain of the continuity of the circumstances is broken the appellants are entitled to the benefit of doubt. Decision 28. We are to cover a long distance, if we are to bridge the gap between "May be true" and "Must be true". In the present case the chain of events furnished by circumstances is not complete. Since the chain of the continuity of the circumstances is broken the appellants are entitled to the benefit of doubt. Decision 28. VIEWED in the light of the foregoing discussion we are unable to persuade ourselves to hold that the circumstantial evidence on record is sufficiently cogent and strong enough to lead this appellate Court to irresistible conclusion that it is only the appellants and the appellants themselves and none else are connected. We are, therefore, unable to concur with the ultimate finding of the learned Trial Judge and to uphold the order of conviction and sentence passed against them. Accordingly, the order of conviction and sentence impugned in respect of charge under Section 376, I.P.C. recorded against A1 is set aside. We also set aside the order of conviction and sentence in respect of charge under section 302 /34, I.P.C. passed against A1, A2 and A3. Result In the result the appellant Omar Ali Mondal, A1 is acquitted of the charge under Section 376, I.P.C. on the benefit of doubt. All the three appellants namely, i) Omar Ali Mondal (A1), (ii) Sadek Ali Mondal (A2) and (iii) Abdullah Mondal (A3) are acquitted of the charge under Sections 302/34, I.P.C. on the benefit of doubt. The Appeal thus stands allowed. Direction 29. APPELLANT Omar Ali (A1) is directed to be released forthwith, if not wanted in connection with any other Case A2 and A3 be discharged from their respective bail bonds. 30. LET a copy of this order be forwarded to the Superintendent of Dum Dum Correctional Home for necessary compliance. Let a copy of this judgment together with LCR be sent down to the Learned Additional Sessions Judge 3rd Court Barasat, 24 Parganas (North) forthwith for information and necessary compliance. Photostat certified copy of this order, if applied for, be supplied on priority basis.