JUDGMENT: Ashim Kumar Banerjee, J. 1. P.W.6, while opening the door of his house in the morning at 59B Dhirendra Dhar Sarani, Calcutta, on July 12,1993, found a dead man aged about 50 years lying in front of his door. A handkerchief was tied in his neck. He informed the Police. The Police came and prepared an inquest report and sent the body for post mortem examination. The post mortem doctor opined that the victim died due to strangulation. According to him, the death was anti mortem and homicidal in nature. The Police tried to find out the identity of the victim. Despite frantic attempt, the Police could not find out the whereabouts of the victim. Ultimately P.W. 10, nephew of the deceased victim identified him when the photograph of the dead body was shown to him. Later on P.W.10 went to the morgue along with the P.W.8 and identified the dead body and the body was handed over to them for cremation. Initially the case was being handled by Muchipara Police Station. Since there was no considerable progress, the Detective Department of Calcutta Police took up the investigation from Muchipara Police Station. P.W.22 was entrusted with the investigation. On a local inquiry the Police initially could get hold of the taxi driver who gave some clue to the Police to reach the accused. Ultimately, the puzzle was solved. The mystery was unveiled. The story goes like this as hereinafter stated. 2. THE victim Ram Chandra Singh was working as Darwan under Doctor Buddhadev Bose, a Dentist at B.B. Ganguli Street, Calcutta. Ram Chandra was residing at 121-B, B.B. Gnaguli Street, Calcutta along with his wife, Saraswati Singh, three daughters and one son. He used to get Rs. 500/- per month as salary in addition to tips that he used to get from the patients of the Dentist. According to Saraswati, he was habitual drunkard and the entire tips, which he used to get, was spent for purchasing alcohol. It was difficult for Saraswati to maintain the household having four children. She started business of sale of kerosene oil. She used to buy kerosene from Scott Lane and sell the same from her house at a higher price. In course of such business she came to know Sajjad @ Raju. Raju became friendly to her. He used to come to her house along with his friends Bablu, Kalu and Panchu. She started business of sale of kerosene oil. She used to buy kerosene from Scott Lane and sell the same from her house at a higher price. In course of such business she came to know Sajjad @ Raju. Raju became friendly to her. He used to come to her house along with his friends Bablu, Kalu and Panchu. THEy sometime used to take alcohol along with Ram Chandra. According to Saraswati, she could save Rs. 30/40 thousand by sale of kerosene oil after maintaining her family. This part of the evidence is not clear and difficult to believe. Be that as it may, somehow Saraswati made her fortune by saving Rs. 30/40 thousand or more. Raju started demanding share of the bounty. Initially Saraswati gave him money. On that score there might have been some scuffle between Raju and Saraswati. According to Saraswati, Raju threatened her that he would kill her husband. At one point of time, Raju also threatened Saraswati that he would kidnap his eldest daughter. Even after the incident Raju came to the house of Saraswati and threatened her with dire consequence. On that day Raju and other accused took Ram Chandra with them and took alcohol and thereafter left him at Dhirendra Dhar Sarani where Ram Chandra was found dead. 3. ONE Lakshmi Narayan Dey (P.W.5) was a taxi driver. On July 11, 1993 he parked his car after dropping a passenger at Beadon Street - Central Avenue Crossing, near the red light area. Five persons including one old person came and hired his taxi. The old person was under complete influence of liquor. They went to Akroor Dutta Lane in central Calcutta and asked Lakshmi Narayan to stop the taxi near a sweetmeat shop. Four of them got down and told the taxi driver that they would come back again. Thereafter, they took the old man with them who was not in a position to move independently. They went inside a narrow lane. Lakshmi was waiting with his taxi in front of the sweetmeat shop. It was 1 A.M. in the night. Two persons rushed to the taxi and requested Lakshmi to give them a lift for carrying a patient to the hospital. Lakshmi refused on the ground that his taxi was not empty and it had already been booked. Lakshmi was waiting with his taxi in front of the sweetmeat shop. It was 1 A.M. in the night. Two persons rushed to the taxi and requested Lakshmi to give them a lift for carrying a patient to the hospital. Lakshmi refused on the ground that his taxi was not empty and it had already been booked. When those two persons being Kailash (P.W.5) and Shyamlal (P.W.16) were persisting their request those four persons came back and scolded Kailash and Shyamlal by saying that they had already booked the taxi and it was not possible to give them lift. Shyamlal and Kailash left the place after noting the taxi number. 4. LAKSHMI took all the four passengers of the taxi barring the old man and took them to Rajabazar where they released the taxi by making payment of the fare. On the next day i.e. July 13,1993 when people were discussing about the dead body one Joy Kishore Guin who was returning home after morning walk, heard the conversation of Kailash and Shyamlal over the last night incident and thought that the incident might have a nexus with the dead body. He reported the matter to the Muchipara Police Station. The Police thereafter examined Shyamlal, Kailash and Lakshmi Narayan when the entire mystery was unveiled. Two of the accused were apprehended by the Police. Kailash, Shyamlal and Lakshmi identified them in a Test Identification Parade in presence of the learned Magistrate (P.W.17). Bablu made confessional statement before the learned Magistrate (P.W.19) under Section 164 of the Criminal Procedure Code. Bablu stated that he used to go with Raju along with other friends at the house of Saraswati where they found a beautiful lady. Raju told them to assist him in finishing of Ram Chandra. Accordingly they assisted Raju. Raju thereafter paid them Rs. 500/- each. According to Bablu, Ram Chandra was under complete influence of liquor when they tied the neck with handkerchief and killed Ram Chandra by strangulation. 5. AFTER completion of investigation, the police charge-sheeted Raju @ Md. Sajjad, Sk. Sahid @ Bablu, Md. Sahajada, Sk. Kallu and Sk. Panchu under Section 302/34 of the Indian Penal Code. The case was split up against Md. Sahajada, Sk. Kallu and Sk. Panchu as they were absconding. 6. THE learned Trial Judge framed charge under Section 302/34 of the Indian Penal Code against the appellant herein and accused Sk. Sajjad, Sk. Sahid @ Bablu, Md. Sahajada, Sk. Kallu and Sk. Panchu under Section 302/34 of the Indian Penal Code. The case was split up against Md. Sahajada, Sk. Kallu and Sk. Panchu as they were absconding. 6. THE learned Trial Judge framed charge under Section 302/34 of the Indian Penal Code against the appellant herein and accused Sk. Sahid @ Bablu. THEy pleaded not guilty to the charge framed against them and claimed to be tried. The prosecution examined altogether 22 witnesses. The defence, however, did not adduce any evidence. The Court below examined them under Section 313 of the Code of Criminal Procedure. Santanu Bose (P.W.1): 7. SANTANU Bose, was attached to Detective Department of Calcutta Police. As per requisition of Muchipara Police Station, he went to the place of occurrence and prepared a rough sketch map after conducting a survey. He identified the plan prepared by him as well as the sketch map. Kanan Behari Chakroborty (P.W. 2): 8. P.W. 2, Kanan Behari Chakroborty, was the photographer who. took the photograph of the dead body. Kailash Srivastav (P.W. 3): P.W. 3, Kailash Srivastav, was a plumber by profession. In the night of July 11, 1993 while he was sleeping in his house at 8 Gopi Bose Lane, Calcutta someone woke him up and informed that one Haripada Das was having acute pain in his stomach. Kailash went to Haripada. Haripada told him for his hospitalization. He went for a search of taxi. He along with someone or some others went towards Nirmal Chandra Street. When he was proceeding towards Hind Cinema he saw a taxi entering Akroor Dutta Lane from Nirmal Chandra Avenue. He saw five persons getting down from taxi. He approached the taxi driver to hire the taxi for taking the patient to hospital. The taxi driver denied on the plea that his taxi had already been booked. Other persons who got down from the taxi also got annoyed and told him to go away because they would take the taxi for return journey. He found an old man in drunken condition being taken out from the taxi by the other persons. He left the place by noting down the number of the taxi. During deposition he always described the incident and his performance as "we" although he did not categorically depose that Shyamlal (PW-16) was with him. He found an old man in drunken condition being taken out from the taxi by the other persons. He left the place by noting down the number of the taxi. During deposition he always described the incident and his performance as "we" although he did not categorically depose that Shyamlal (PW-16) was with him. However on a combined reading of his deposition it is clear that Shyamlal was also with him. He identified two of the accused in jail. According to him, on the next day i.e. July 12,1993 they came to know that a person died in that locality. He discussed the incident on the next day i.e. on July 13, 1993. Police approached them and interrogated Kailash. While givining description of the accused, Kailash deposed that there were few pox marks on the skin of the accused Raju. He also pointed out small mark on the skin of the forehead of Bablu. Joy Kishore Guin (P.W. 4): 9. P.W. 4, Joy Kishore Guin, was a resident of the locality where the dead body was found. While returning from morning walk he found the dead body. He also found local people arid the Police personnel present there. In the evening when he was sitting in the party office the persons being Kailash (PW 3) and Shyamlal (PW 16) were discussing the taxi incident. Presuming that the taxi incident might have a nexus with the dead body he informed the Muchipara Police Station. Lakshmi Narayan Dey (P.W.5): 10. P.W.5, Lakshmi Narayan Dey was the taxi driver. He gave vivid description of the incident occurred on July 11,1993. He used to take out his taxi at 7 A.M. in the morning. He generally used to return at 12 O'clock in the night. On that day he took out the taxi at 10 A.M. from his garage and returned to his garage at 3 A.M. in the morning on the next day. In the night of July 11,1993 at about 12/12:30 A.M. a passenger boarded his taxi from Dharmotala. He dropped his passenger at Beadon Street - Central Avenue Crossing and then parked his car in the adjacent red light area at about 12:45 A.M. 4/5 persons approached him and asked him to give a lift to Hind Cinema. One of them was old and he was under the influence of liquor. Initially he declined because it was quite late at night. One of them was old and he was under the influence of liquor. Initially he declined because it was quite late at night. Then on the request of the 2/3 persons, he took all the five persons in his taxi and approached Hind Cinema via Central Avenue. After he reached Hind Cinema the passengers asked him to take left turn. He followed the instruction and took Nirmal Chandra Street and then took the right turn as per the direction of the passengers. He stopped near a sweetmeat shop at Akroor Dutta Lane. The passengers told him to wait as they would drop one of them at some distance and then would return back. While he was waiting in his taxi two other persons approached him and made a request to go to hospital for an emergency case. He declined, as his taxi had already been booked. There had been some altercation. Then the passengers who got down from the taxi came back and told that they had already booked the taxi. Out of five passengers four returned to his taxi. When they returned they had already left the old man and thus four of them boarded the taxi. They went to Rajabazar and released the taxi at Rajabazar after paying the fare. He identified the photograph of the old person. He also identified two of the accused in Test Identification Parade as well in Court. The identification mark, as discussed above, were however pointed out by Lakshmi Narayan for the first time in Court. He stated, "there are pox mark on both the checks of this accused as I see now" "There is a small mark on the skin of the forehead of this accused as I see now." Gautam Kheto (P.W.6) : Gautam Kheto was residing in 59B, Dhiren DharSarani, Calcutta- 12. At about 6.00 a.m. in the morning on July 12,1993 when he opened the gate of his house, he found a man lying on the road just near the gate. He went to Muchipara Police Station and informed the Police. Local people gathered. The Police took the photograph. He witnessesed the seizure of Khaini dibba and iron ring from the person of the dead body. He put his signature. He also identified the dead body from the photograph shown to him. Avay Kumar Dutta (P.W.7): 11. AVAY Kumar Dutta was tendered as witness without putting any question. Local people gathered. The Police took the photograph. He witnessesed the seizure of Khaini dibba and iron ring from the person of the dead body. He put his signature. He also identified the dead body from the photograph shown to him. Avay Kumar Dutta (P.W.7): 11. AVAY Kumar Dutta was tendered as witness without putting any question. Saraswati Singh (P.W.8): 12. SARASWATI was the widow of Ram Chandra Singh. Ram Chandra, was having his native village at Hariharpur in the State of Uttar Pradesh. SARASWATI was married for about 20/22 years. After marriage she came to live with her husband in a room adjacent to his shop. Ram Chandra was working with a dentist drawing salary of Rs. 500/- per month. They had three daughters and one son. Eldest daughter was Sushila (PW-13), son Biswanath Singh (PW-9), other two daughters being Mira and Asha. Ram Chandra used to get tips from the patients who visited the dentist. With such tips Ram Chandra used to drink. He was a habitual drunkard despite protest being made SARASWATI. To meet the expenses of the family SARASWATI started business of selling kerosene oil and used to earn Rs. 30/40/- per day. According to her, by such profit, she saved Rs. 40/50,000/- out of such business. In course of business, she came in acquaintance with one your man Raju. Soon they became close. They purchased a Rickshaw Van. Her business was flourishing. Raju started visiting her house frequently along with his friends including Sahajad, Bablu (Appellant No. 2), Panchu and Kaloo. Raju started extortion. Initially, SARASWATI used to give him money as per his demand. The relationship was becoming bitter when Raju started demanding Rs. 10,000/-. He threatened to kill Ram Chandra if the money was not given. He also threatened to kidnap Sushila. To pacify Raju, SARASWATI gave him her silver ornaments when Raju threatened her to kidnap Sushila. Raju started drinking in their house along with Ram Chandra. In the night of July 11, 1993, Ram Chandra went missing. He did not return home. Next day Saraswati went to the Police Station to lodge a diary. He was sent to another Police Station. By this way she visited four Police Stations being Entally, Bowbazar, Amherst Street and Jorasanko. She also started visiting the hospitals. However, she could not find her husband.. He did not return home. Next day Saraswati went to the Police Station to lodge a diary. He was sent to another Police Station. By this way she visited four Police Stations being Entally, Bowbazar, Amherst Street and Jorasanko. She also started visiting the hospitals. However, she could not find her husband.. On July 16,1993 the nephew (PW-10) of Ram Chandra visited their house and scolded her for not lodging any diary with the Police Station. Then Saraswati went to Muchipara Police Station and lodged a diary. After two days Police called her and showed one photograph. She could not identify because of defect in her eyesight. The nephew again came on July 24, 1993 when both of them went to the Police Station where the nephew identified the photograph as of Ram Chandra. Then they went to the Morgue and identified the dead body. Raju again visited her house after 7/8 days of Ram Chandra's missing and demanded a further sum or Rs. 10.000/- by saying that Ram Chandra would never return to his house. This time Raju threatened her that he would kidnap Biswanath. She identified Raju and Bablu present on the dock. She also identified the silver ornaments that were recovered from the custody of Raju produced in Court and exhibited as material exhibit No. III. In cross-examination, she deposed that on July 25, 1993 Ram Chandra was cremated. She denied suggestions given on behalf of the defence including the one that Raju never threatened her to kidnap his son or daughter or made any extortion. Biswanath Singh (P.W. 9): 13. P.W. 9, Biswanath Singh was the son of Ram Chandra. He was a minor. According to him, on July 11, 1993 Ram Chandra not return home. He was a habitual drunkard. His mother Saraswati was selling kerosene oil in partnership with Raju. Raju used to visit their house along with his friends. Soon Ram Chandra went missing Saraswati started searching at different places. On July 24,1993 body of Ram Chandra was received by the bereaved family. He identified Ram Chandra from the photograph. He proved his signature on the G.D. Entry. He deposed that he could not remember whether he had given any physical description of Raju or Raju's friends to the Police. Shib Kumar Singh (P.W. 10): 14. P.W. 10, Shib Kumar Singh, was a nephew of Ram Chandra. He identified Ram Chandra from the photograph. He proved his signature on the G.D. Entry. He deposed that he could not remember whether he had given any physical description of Raju or Raju's friends to the Police. Shib Kumar Singh (P.W. 10): 14. P.W. 10, Shib Kumar Singh, was a nephew of Ram Chandra. On July 14,1993 Saraswati visited his house and inquired of Ram Chandra. He came to know that Ram Chandra went missing from July 11. He advised Saraswati to lodge a diary. On July 16, 1993 he went to Saraswati and inquired of Ram Chandra. He got angry when he came to know that Saraswati was yet to lodge a diary. On July 21 or July 22 Saraswati called him. He again went to Saraswati on July 22 and came to know that he was to identify some photographs in the Police Station. He went to Muchipara Police Station and identified the photograph of Ram Chandra. He, however, did not return to Saraswati on that day. On the next day i.e. July 23 he disclosed to his parents that Ram Chandra had expired. He also informed his relations. On the next day i.e. July 24,1993 all of them accompanied by Saraswati, went to Muchipara Police Station and thereafter to N.R.S. Hospital morgue to receive the dead body. They cremated the body in Nimtala Burning Ghat. Paritosh Chakraborty (P.W. 11): P.W.11, Paritosh Chakraborty, the Constable, carried the body for postmortem. Brojogopal Ghosh (P.W.12): 15. P.W.12, Brojogopal Ghosh.the Sub-Inspector, attached to the Muchipara Police Station, recorded the G.D. entry on July 16,1993. Jaynath Dutta (P.W. 13): 16. P.W. 13, Jaynath Dutta was tendered as a witness without any question being asked. Debidas Chatterjee (P.W. 14): P.W. 14, Debidas Chatterjee, the Sub-Inspector of Police, attached to Detective Department, held inquest over a body in the morgue at N.R.S. Hospital. The body was of an unknown man aged about 50 years. The body had a tatoo mark on the hand in Hindi as "Ram Chandra". A Red and Chocolate coloured handkerchief was found tied around the neck with a double fixed knot over the left side of the neck. No external injury could be found in his naked eye. He did the inquest being assisted by Sahajan Mullick and Ratan Mullick. Dr. Dipak Kumar Chatterjee (P.W. 15): 17. P.W. 15, Dr. A Red and Chocolate coloured handkerchief was found tied around the neck with a double fixed knot over the left side of the neck. No external injury could be found in his naked eye. He did the inquest being assisted by Sahajan Mullick and Ratan Mullick. Dr. Dipak Kumar Chatterjee (P.W. 15): 17. P.W. 15, Dr. Dipak Kumar Chatterjee, senior Medical Officer was on duty in general emergency, he also deposed about the tatoo mark. Shyamlal Jadav (P.W. 16): 18. P.W. 16, Shyamlal Jadav, was a driver by profession. While he was sleeping on July 11 in his house P.W. 3 Kailash woke him up. Both of them went to search for a taxi. While they were proceeding to Hind Cinema through Nirmal Chandra Street they found a taxi entering into Akroor Dutta Lane. The taxi halted at Sweetmeat Shop. Five passengers with an old man got down and went to the side of the road. Kailash and Shyamlal approached the taxi driver and requested him for a lift to hospital. They saw the old man in drunken condition. Other five persons were holding the old man. The driver refused. When he was requesting the driver again those five persons became annoyed and told them to go away from the place, otherwise they would beat him. They left the place by noting down the taxi number. They came back to the locality and came to know that Doctor came and treated Haripada Das. On the next day, i.e. on July 12, 1993 in the morning he left for his work place. After returning from work he came to know that a dead body of an old man was found somewhere in Akroor Datta Lane. He came to know that from the local party office. On July 13 at about 8 A.M., Police came and inquired of Kailash and Shyamlal. On a query made by the Police he narrated the previous night incident to the Police. Police noted down in English and read it to them. After about three months he went to Alipore jail and identified the accused in a T.I. Parade. He also identified the accused present in dock. He also identified the taxi driver being P.W. 5. 19. IN cross-examination he gave details of the place where the dead body was found. Police noted down in English and read it to them. After about three months he went to Alipore jail and identified the accused in a T.I. Parade. He also identified the accused present in dock. He also identified the taxi driver being P.W. 5. 19. IN cross-examination he gave details of the place where the dead body was found. IN cross-examination he stated that he found 4/5 persons holding an old man who appeared to be in drunken condition. He faced a detailed cross-examination, however, could not be shaken. He corroborated Kailash in all material respect. Learned Magistrate (P.W.17): 20. P.W. 17, the learned Magistrate, held the Test Identification Parade. He gave a detailed narrative as to how the Test Identification Parade had been conducted in jail. Dr. Rabindra Basu (P.W. 18): P.W. 18, Dr. Rabindra Basu, held the post mortem examination of the victim. He gave vivid description of the dead body. According to him, the body had three external injuries being one abrasion on the right knee, one abrasion on the left supraclavicular region and one transverse continuous ligature mark. The ligature mark was found on the mid part of the neck. All the viscera were found congested, the lungs was congested. According to him, the death was due to the effect of strangulation - associated with head injury - anti mortem and homicidal in nature. He identified the handkerchief found in the neck of the dead body having a double knot. According to the Doctor, the victim died between 4 to 18 hours from the time of holding autopsy done at 2 P.M. on July 12,1993. Swapan Dhar (P.W. 19): 21. P.W. 19, Swapan Dhar, the learned Magistrate, noted down the confessional statement of Bablu under Section 164 of the Criminal Procedure Code. Anil Kar (P.W. 20): 22. P.W. 20, Anil Kar, was the Sub-Inspector, Homicide Squad Detective Department, Lalbazar. He arrested Raju on September 9,1993. On September 11,1993 he arrested Bablu. P.W. 21, Ashim Kumar Kar Chowdhury, was attached to Muchipara Police Station. On July, 11,1993 he was doing night duty from 9 P.M. At about 6:30 A.M. on July 12, 1993 one Goutam Kheto came to Muchipara Police Station and informed that an unknown man was lying dead at his door step. Sri Kar Chowdhury informed the O.C. Control for sending a photographer and foot and finger printing expert as well as the plan maker. Sri Kar Chowdhury informed the O.C. Control for sending a photographer and foot and finger printing expert as well as the plan maker. He noted down the information received from Sri Kheto. General Diary was lodged. He then proceeded towards the place of occurrence and held inquest. He also prepared seizure list of the items from the place of occurrence. Despite best efforts he could not find out the identity of the deceased. Ultimately on a clue received by him from Joy Krishna Guin, he examined Kailash and Shyamlal. He later on examined Lakshmi Narayan, the taxi driver. He lodged a suo motu F.I.R. on July 12,1993. 23. ON July 16,1993 he collected the viscera report. Ultimately he could reach to Saraswati. He also examined the Dentist where Ram Chandra had been working. He recorded the statement of Saraswati. ON a sum total of evidence of Kar Chowdhury it appears that he almost corroborated the other witnesses including the Saraswati, Shyamlal, Kailash and Lakshmi. Bikash Kumar Chattopadhyay (P.W. 22): 24. P.W. 22, Bikash Kumar Chattopadhyay, took over the investigation from Kar Chowdhury of Muchipara Police Station. He interrogated Raju on September 10, 1993 after his arrest. He also interrogated Bablu. During investigation three other names surfaced who could not be, however, apprehended. On July 16 Raju made a statement which led to recovery of silver ornaments from his house at 3/10 Narkel Danga Main Road. The two accused expressed their desire to make confessional statement. Accordingly he made a prayer before the Magistrate and confessional statement was recorded by the learned Magistrate. He also arranged for T.I. Parade. Ultimately the charge-sheet was submitted. In cross-examination he admitted not having examined Haripada Das who was allegedly unwell on the night of July 11,1993. Both the accused were examined under Section 313 of the Criminal Procedure Code. Apart from pleading innocence the accused did not unfold the narrative in their examination. IMPUGNED JUDGMENT : 25. CONSIDERING the evidence on record the learned Sessions Judge, held both the accused guilty of the offence and convicted both of them under Section 302 read with Section 34 of the Indian Penal Code. Both of them were sentenced for life coupled with a fine of Rs. 5,000/- each and in default to suffer rigorous imprisonment for further six months. APPEAL: 26. BEING aggrieved, the appellant Md. Both of them were sentenced for life coupled with a fine of Rs. 5,000/- each and in default to suffer rigorous imprisonment for further six months. APPEAL: 26. BEING aggrieved, the appellant Md. Sajjad @ Raju preferred the instant appeal which was heard by us on the above mentioned dates. Another convict Sk. Sahid @ Bablu did not prefer any appeal. APPELLANT'S CONTENTION : Appearing for the appellant, Mr. Sudipta Moitra, learned Counsel, contended as follows : i) There had been material anomaly on the location of the place of occurrence as would come out from the prosecution evidence. ii) The prosecution witnesses were not assured about the number of assailants; iii) There had been discrepancies in the factual matrix as deposed by the prosecution witnesses; iv) According to the taxi driver the accused came back within 10/15 minutes after leaving the old man. The story was highly improbable and it was not possible to strangulate a man and come back within 10/15 minutes without any resistance being offered by the victim which would not attract the attention of the residents of the locality; v) The weapon being the handkerchief was not produced during the trial; vi) The T.I. Parade was held long after the arrest of the accused which gave ample scope for the witness to see the accused before hand; vii) Despite the victim went missing there had been considerable delay in lodging the missing diary by the widow which also laid suspicion. PROSECUTION VERSION : 27. MR. Swapan Kumar Mallik, learned Counsel for the prosecution while opposing the appeal contended as follows : i) Both the accused gave confessional statement before the learned Magistrate. The learned Judge should have relied upon such statement. In any event the Court of appeal was entitled to look into such statement which would strengthen the conviction; ii) Learned Magistrate erred in administering oath while noting down the confessional statement. Such mistake could be cured under Section 463 of the Code of Criminal Procedure; (iii) The handkerchief was tendered as material exhibit IV hence the submission to the contrary was not tenable; iv) The inquest report suggested that it was a case of strangulation. Such mistake could be cured under Section 463 of the Code of Criminal Procedure; (iii) The handkerchief was tendered as material exhibit IV hence the submission to the contrary was not tenable; iv) The inquest report suggested that it was a case of strangulation. Such report found corroboration from the medical evidence as would appear from the post mortem report; v) The crime was pre-planned as would appear from the evidence, hence there was no scope for raising any doubt on that score; REPLY: 28. MR. Sudipta Moitra, learned Counsel, in reply, contended as follows : i) Since the alleged confessional statement was not relied by the Court below, the Court of appeal was not entitled to rely upon the same; ii) The accused were arrested on September 9,1993 long after the incident. They were on Police remand at least for three times. Hence, there was possibility that the witnesses could be shown the accused while in Police custody; iii) The recovery of silver ornaments had no nexus with the charges brought against the accused. In any event no evidence was laid when such articles were given to the accused. CASES CITED : In support of their rival contentions the parties cited the following decisions : (i) 1980, Criminal Law Journal, Page-171 (Philips v. State of Kamataka) (ii) All India Reporter, 1981, Supreme Court (Criminal), Page-1392 (Wakil Singh and Others v. Sfafe of Bihar) (iii) All India Reporter, 1988, Supreme Court, Page-1883 : 1988 CCrLR (SC) 146 (Kehar Singh and Others v. The State [Delhi Administration]) (iv) 1988, Criminal Law Journal, Page-573 (Akanman Bora v. State of Assam) (v) All India Reporter, 1993, Supreme Court, Page-1892 :1994 C Cr LR (SC) 106 (Varkey Josephs v. State of Kerala) (vi) Supreme Court Cases, 2003, Volume-Ill, Page-175 (Vimal Surest) Kamblev. Chaluverapinake Apal S.P. and Another) (vii) All India Reporter, 2004, Supreme Court, Page-26 (Badam Singh v. State of Madhya Pradesh) (viii) 2006, Calcutta High Court Notes, Volume-Ill, Page-763: (2006)2 C Cr LR (SC) 303 (Jayanti Bhattacharya v. Stare of West Bengal) (ix) 2008, Volume-ll, All India Calcutta Law Reporter, Page-13 : (2008)1 C Cr LR (SC) 665 (K.T. Palanisamy v. State of Tamil Nadu) (x) All India Reporter, 2009, Supreme Court, Page-271 : (2009)1 C Cr LR (SC) 403 (Asraf Sk. And Another v. State of West Bengal) (xi) 2009, Volume-ll, Supreme Court Cases (Criminal), Page-306 (State of Haryana v. Ved Prakash) (xii) 2009, Volume-Ill, Supreme Court Cases (Criminal), Page-1069 : (2010)1 C Cr LR (SC) 8 (State of Rajasthan v. Naresh Alias Ram Naresh) LAW BY PRECEDENTS : 29. BEFORE going into the point in issue let us discuss the law on the subject. CONFESSIONAL STATEMENT : 30. FOUR decisions were cited by the parties on this score. In the case of Kehar Singh (supra) the Apex Court observed that mere irregularity in recording the confessional statement would not perse make the statement inadmissible in evidence. The defects, if any, could be cured by taking recourse to Section 463 of the Code of Criminal Procedure. In the case of Philips (supra), the Division Bench of the Karnataka High Court was of the opinion that there was no provision of administering oath to an accused intending to make a confessional statement and in case of Magistrate administering oath such statement could not be admissible in evidence. The similar view was taken by the Division Bench of Gauhati High Court in the case of Akanman Bora (supra). Our Court also held the same view in the case of Jayanti Bhattacharya (supra). The Division Bench of our Court in the case of Jayanti Bhattacharya (supra) was of the opinion that the confessional statement extracted from an accused after administering oath would be hit by Article 20(3) of the Constitution and Section 281 of the Code of Criminal Procedure and as such the same could not be admitted into evidence. 31. IN Asraf Sk (supra) the Apex Court observed that when a case would depend upon the circumstantial evidence it was the duty of the Court to test the same by the touch stone of law relating to circumstantial evidence laid down by the Apex Court as far back in 1952. IN this regard, the Apex Court relied on its decision in the case of Hanumanth Gobind Nargundkar and Another v. State of Madhya Pradesh reported in All INdia Reporter, 1952, Supreme Court, Page- 343. The Apex Court also relied upon the decision in the case of Sarad Birdhi Chanda Sardha v. State of Maharashtra reported in All INdia Reporter, 1984, Supreme Court, Page-1622. The Apex Court also relied upon the decision in the case of Sarad Birdhi Chanda Sardha v. State of Maharashtra reported in All INdia Reporter, 1984, Supreme Court, Page-1622. IN the case of K.T. Palani Samy (supra) the Apex Court once again relied upon and reiterated the guidelines framed by the Apex Court in the case of Sarad Birdhi Chanda Sardha (supra). CONDUCT: 32. IN the case of State of Rajasthan (Supra), the Apex Court considered the conduct of the accused and observed that merely because the conduct of the accused was suspicious would not per se lead him to conviction unless and until the Court is satisfied with the evidence adduced that clearly and pointedly established the guilt of the accused. DUTY OF THE COURT IN CRIMINAL TRIAL ; The Apex Court in the case of Badam Singh (supra) observed, "The mere fact that the witnesses are consistent in what they say is not a sure guarantee of their truthfulness. The witnesses are subjected to cross examination to bring out facts that may persuade a Court to hold, that though consistent, their evidence is not acceptable for any other reason. If the Court comes to the conclusion that the conduct of the witnesses is such that it renders the case of the prosecution doubtful or incredible, or that there presence at the place of occurrence as eye-witness is suspect, the Court may reject their evidence." CONCEALMENT: 33. THE decision in the case of Vimal Suresh Kamble (Supra) was cited for the proposition that the statement sought to be proved by the prosecution through a witness not told to the Police during investigation and recording under Section 161, was not safe to be relied upon. OUR VIEW : 34. IF we closely analyze the factual matrix in the instant case we would find that acquaintance of the accused with the victim family was established by ocular evidence of Saraswati and Biswanath. The involvement of the accused with regard to commission of crime was proved by Kailash, Shyamlal and Lakshmi. It is true that there were few anomalies in their depositions. However, those minor anomalies did not or could not raise any doubt in the mind of the Court with regard to actual occurrence as discussed above. The learned Judge of the Court below was right in not relying upon the statement made under Section 164. It is true that there were few anomalies in their depositions. However, those minor anomalies did not or could not raise any doubt in the mind of the Court with regard to actual occurrence as discussed above. The learned Judge of the Court below was right in not relying upon the statement made under Section 164. It is unfortunate that the learned Magistrate while recording the statement did not even consider the bare minimum requisites of Section 164 which clearly postulates that in case of a witness administering oath is necessary. If a witness desires to make any statement the sanctity of such statement is strengthened by the administration of oath. In case of accused making of such statement is completely voluntary. Under Article 20(3) of the Constitution an accused was not obliged to disclose his defence prior to the trial. An accused is also entitled to plead innocence to face trial. Once he faces trial it is the duty of the prosecution to prove unimpeachably that the accused is guilty of the offence. Despite such safeguard if an accused desires to make any confession he may do so at his own risk. The Magistrate, before whom he desires to make his confession, is duty bound to caution the accused that such statement may be used against him during the trial. We are unable to appreciate how the Magistrate could administer oath compelling the accused to disclose what he knew about the incident. 35. MR. Mullick contended that such mistake was irregular and was curable under Section 463. In support of such contention he relied on the decision of the Apex Court in the case of Kehar Singh (supra). We are unable to accept. The mistake committed by the Magistrate in the given case goes to the very root of the matter and offends the mandate of the constitution stipulated under Article 20(3). Coming back to the factual matrix, we find that the death was proved by the medical evidence. The handkerchief was also seized. User of the handkerchief was proved by the Goutam Kheto who discovered the dead body at his door step. Goutam was an independent witness. Such evidence was corroborated by the Police Officer who made the inquest. The Post Mortem Report supported the case of strangulation. The doctor opined that the death was homicidal. The motive was clear as would appear from the evidence of Saraswati. Goutam was an independent witness. Such evidence was corroborated by the Police Officer who made the inquest. The Post Mortem Report supported the case of strangulation. The doctor opined that the death was homicidal. The motive was clear as would appear from the evidence of Saraswati. Hence, we are unable to find out any reason to disagree with the ultimate finding of the Court below. 36. LOT was said about the conduct of Saraswati and the time gap. According to Lakshmi, the accused took ten to fifteen minutes in between alighting from Taxi and again leaving the place by taxi without the old man being the victim. According to Mr. Moitra, the story was improbable. We are unable to accept. It was 10'O Clock in the night in the month of September, the residents of the locality were under deep slumber. The victim was under complete influence of liquor. Hence, there was remote possibility of giving any resistance by the victim and the case was easy for the accused who finished their job within ten/fifteen minutes. On the conduct of Saraswati we are of the view that it would cut both ways. Saraswati was a rustic lady. Her husband was missing. She was virtually maintaining the family having four minor children. From the evidence we find that she visited at least four Police Stations to inquire about the victim. Ultimately, she lodged the diary at the fifth Police Station being Muchi Para. We are not oblivion of the fact as to how the Police behaves with general public, particularly someone from the poorer section of the society. The lady was not having any one by her side at the hour of need. If we consider from that angle we would not find any unnaturality. 37. EVEN if we give credence to Mr. Moitra's contention that her conduct was not above board as not only she did not lodge any complaint to the Police Station after her husband went missing but also did not identify the photographs on the pretext of loss of eye sight. We are reminded by the Apex Court in the case of State of Rajasthan v. Naresh (supra) where the Apex Court observed that mere suspicion was not enough to draw an adverse inference against any person. 38. We are reminded by the Apex Court in the case of State of Rajasthan v. Naresh (supra) where the Apex Court observed that mere suspicion was not enough to draw an adverse inference against any person. 38. HENCE, we are of the view that even if we discard the confessional statement under Section 164 we would be of the considered view that there were enough materials to support the conviction. It is true that had the Section 164 statement been admissible in evidence it would strengthen the conviction. Unfortunately, because of the mistake on the part of the learned Magistrate we are not in a position to accept the same. Such inability however, does not lead us to have a different finding at the end. RESULT: The appeal fails and is, hereby, dismissed. DIRECTIONS : 39. THE appellant Md. Sajjad @ Raju is now in jail. He is directed to serve out the remaining part of his sentence as awarded by the learned Trial Judge. 40. LET a copy of this judgment along with Lower Court Records be sent to the Court of learned Trial Judge forthwith for information and necessary action. Prasad, J :-I agree.