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2013 DIGILAW 193 (GAU)

Jogen Gorh v. State of Assam

2013-03-14

I.A.ANSARI, P.K.MUSAHARY

body2013
JUDGMENT P.K. Musahary, J. 1. This is a case of rape and murder of a minor girl - a shocking crime indeed that shocks the societal as well as judicial conscience, that may bring it to the vicinity of 'the rarest of the rare cases' categorised by the Apex Court for the purpose of capital punishment 'when the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arose intense and extreme indignation of the community'. Gravaman of the present case is something less than the said category and a lesser punishment in the form of imprisonment for life has been imposed on the appellant. Unfortunately, the convict is an illiterate wage earner who is now serving the sentence in jail. Life of a 'have-not' with life imprisonment can give nothing but more miseries. So, as an appellate court we are gravely concerned with a question is he really a guilty person? The appellant has preferred this appeal from jail against the judgment dated 30.11.2007 rendered by the learned Sessions Judge, Dibrugarh, in Sessions Case No. 132 of 2004 convicting the appellant under Sections 376(2)(f)/302/201 IPC and sentencing him to undergo rigorous imprisonment for life and to pay fine of Rs. 2000/- in default rigorous imprisonment for three months under Section 302 IPC, imprisonment for 5(five) years and fine of Rs 2000/- under Section 376 IPC in default imprisonment for 2(two) months and imprisonment for 2(two) years and fine of Rs. 1000/- under Section 201 IPC in default of payment of fine further imprisonment for one month and directing all the sentences shall run concurrently. The prosecution projected its case as under: 2. On 31.12.2003 at about 8.30 PM, the informant left his minor children at home and participated in the village feast. In his absence, the appellant took out the informant's minor daughter and committed rape on her and then strangulated her to death. Returning home after the feast, the informant, having not found his victim daughter, started searching for her with the help of the villagers. All efforts to trace her out failed. In the next morning her dead body was found near the bamboo grove. On being informed the police arrived at the place of occurrence. A case, being Tingkhong Police Station Case No. 02/04, was registered under Sections 376(2)(f)/302/201 IPC. All efforts to trace her out failed. In the next morning her dead body was found near the bamboo grove. On being informed the police arrived at the place of occurrence. A case, being Tingkhong Police Station Case No. 02/04, was registered under Sections 376(2)(f)/302/201 IPC. Before the arrival of the police at the place of occurrence, the villagers apprehended the appellant on suspicion and detained him. The police arrested him after recording statements of the witnesses, got the inquest on the dead body held by a Magistrate and sent the dead body for post mortem examination. Police recovered one blanket, M.Ext.2, one white coloured vest (ganjee), M.Ext.3 and one old white coloured long pant, M.Ext.4 and seized them in presence of witnesses. The convict was produced before the learned CJM, Dibrugarh. The learned Addl. CJM, Dibrugarh, as directed by the learned CJM, recorded the confessional statement of the appellant in open court. 3. On completion of investigation, the IO collected the post mortem and FSL reports and laid the charge-sheet under Section 376(2)(f) 302/201 IPC. The magistrate concerned sent up the case on committal to the court of Sessions, Dibrugarh, who framed charge against the appellant under Sections 376(2)(f), 302 and 201 IPC. The appellant denied the aforesaid charges, pleaded not guilty and demanded trial. In order to prove the above charges the prosecution examined as many as 16 witnesses including the medical officer and the IO. During examination under Section 313 Cr.P.C., all incriminating materials found in the evidence of the prosecution witnesses were placed before the appellant and offered the chance of adducing evidence but he declined to examine any witness in his defence. On the basis of the evidence and the materials found on record and after hearing the learned counsel for the parties, the learned trial court rendered the impugned judgment convicting and sentencing the appellant as mentioned earlier. 4. We have heard Mr. B K Singh, learned counsel, who appears as Amicus Curiae for the appellant and Mr. D. Das, learned Addl. Public Prosecutor, Assam, appearing for the State. 5. We have thoroughly scanned the evidence on record. There is, admittedly, no eye witness to the alleged occurrence. The learned trial court considered the evidence recorded during trial and rendered the impugned judgment largely on the basis of circumstantial evidence and confessional statement of the appellant as recorded by the Addl. CJM, PW-11. 5. We have thoroughly scanned the evidence on record. There is, admittedly, no eye witness to the alleged occurrence. The learned trial court considered the evidence recorded during trial and rendered the impugned judgment largely on the basis of circumstantial evidence and confessional statement of the appellant as recorded by the Addl. CJM, PW-11. As a court of appeal, we are further to review and appreciate the evidence on record. As per evidence of witnesses, particularly, PW-11, learned Addl. CJM, appellant is a domestic aide, locally called as 'halowa', a ploughman; better called a wage earner. 6. The informant PW-1 is the father of the victim girl. His evidence is that on 31.12.03, at about 8 PM, he joined the village feast held near his house. Before leaving for the feast, he left the victim at home with his other minor daughter and two minor sons. As per his evidence, on his return he did not find his victim daughter at home and he started searching for her alongwith the villagers. Her dead body was found behind his house near the bamboo grove. She was found dead in a naked position with a pant around her neck. He then informed the Tingkong police station and the police came to the place of occurrence for investigation. The police held inquest and seized the vest (M.Ext.3). In his cross-examination, he disclosed that about 30 persons participated in the feast His house is situated near the house of his elder brother Yadav Gogoi (PW-3). The family members of his brother were present at home on the night of the occurrence. They did not participate in the village feast. The house of his cousin Pubeswar Gogoi (PW-2) also situates near his house. In the night of the occurrence his cousin Pubeswar and his family members were also present at home. The accused Jogen Gorh does not reside in his house. On the night of the occurrence, he did not see accused Jogen Gorh. He further stated that nobody told him that accused Jogen Gorh killed his daughter. 7. PW-2, Pubeswar Gogoi, is the cousin (brother) of informant PW-1. In his deposition, he stated that he joined the feast on 31.12.03. According to him, the accused Jogen Gorh was also present at the feast but he disappeared from the feast. He returned home after the feast at about 9 PM. 7. PW-2, Pubeswar Gogoi, is the cousin (brother) of informant PW-1. In his deposition, he stated that he joined the feast on 31.12.03. According to him, the accused Jogen Gorh was also present at the feast but he disappeared from the feast. He returned home after the feast at about 9 PM. As soon as he heard that the daughter of PW-1 was not found at home, he, along with other villagers, started searching for her. The dead body of informant's daughter was recovered from the bamboo grove behind his house. On being informed the police came to the place of occurrence and started investigation. He was interrogated by police. In cross-examination, he stated that he has no knowledge as to who killed the informant's daughter or why she was killed. There were only 10/15 people in the feast. They had liquor in the feast. The police came to the place of occurrence and interrogated Bhuyer Tassa (PW-9), Mangala Gogoi, Debeswar Chetia (PW-10) and Muleswar Gogoi (PW-14). He had however no knowledge why the police arrested the accused Jogen Gorh. 8. P.W.3, Sri Yadav Gogoi, stated that the accused was serving as ploughman in the house of Nandeswar, son of Muleswar Gogoi, PW-14. He also stated that the police interrogated him during investigation. He deposed that the informant's daughter disappeared on the date of occurrence and her dead body was found in a naked position. He put his signature, Ext.3(2), on the seizure list. In cross-examination he stated that he does not know who killed the informant's daughter. P.W.4 is a co-villager and he is an inquest witness, he had no knowledge as to who killed the victim girl. He also does not know how the incident took place. 9. P.W.5 is an important witness. He is the village headman. As per his evidence, on 1.1.04, he was informed by villagers that the dead body of informant's daughter was recovered. He came to the place where the dead body was recovered. He saw the dead body in a naked position with a pant around her neck. He informed the police and accordingly the police came to the place of occurrence. He put his signature on the inquest report. In his cross-examination he stated that he had no knowledge how the informant's daughter died. PW-6 is a reported witness. He saw the dead body in a naked position with a pant around her neck. He informed the police and accordingly the police came to the place of occurrence. He put his signature on the inquest report. In his cross-examination he stated that he had no knowledge how the informant's daughter died. PW-6 is a reported witness. PW-7 stated that having heard about the incident from others he came to informant's house. He saw the appellant being tied and detained by the villagers. Police came for investigation and interrogated witnesses. 10. PW-8, Lakheswar Gogoi @ Muthanga, in his deposition stated that having come to know about the incident he visited the house of the informant. On the next day of incident police came to the place of occurrence. According to his statement the villagers, on suspicion, fastened and detained the accused Jogen Gorh. He signed as a witness on the seizure list He, however, stated in cross examination that he does not know who killed the informant's daughter. PW-9 Sri Bhuyer Tassa is a seizure list witness and he has no knowledge about the incident. PW-10 Sri Debeswar Chetia deposed that on 1.1.04 the informant's daughter was murdered. The villagers apprehended the appellant Jogen Gorh and interrogated him. The appellant, during interrogation, confessed before the villagers that he killed the informant's daughter. Police came and he signed as a witness on the seizure list. In cross-examination he stated that the villagers fastened and assaulted the appellant. He denied the suggestion that the accused did not confess his guilt before the villagers. He stated that the seizure articles were not seen in the court. He also stated that at the time of making confessional statement before the villagers the policemen were also present. 11. PW-11, Md. Mazed Ali, was the Additional Chief Judicial Magistrate, Dibrugarh, on 6.1.2004 who recorded the confessional statement of the appellant. As per his evidence the accused was produced before him on 6.1.2004 and he cautioned him about the consequences of making the confession. The appellant was produced on the next day i.e. 7.1.04 at 1.30 PM. He was again cautioned about the consequences of making confession He stated that sufficient time was allowed to the appellant for his reflection and when the appellant agreed to make the confessional statement at 3.30 PM, he recorded the confessional statement of the appellant in his own language (in Assamese). He was again cautioned about the consequences of making confession He stated that sufficient time was allowed to the appellant for his reflection and when the appellant agreed to make the confessional statement at 3.30 PM, he recorded the confessional statement of the appellant in his own language (in Assamese). He proved the confessional statement, Ext.5, which was duly filled up and signed by him. He also proved his signature and thumb impression of the accused on Ext.5. He further deposed that the accused did not complain of ill treatment by the police or by any person. According to his evidence the accused repented for the crime he committed and he was satisfied that the accused made the confessional statement voluntarily before him. Accordingly he certified to that effect on the confessional statement. On being cross-examined this witness stated that the confessional statement of the accused was recorded in his open court. He admitted that he did not put any question specifically that the accused confessed his guilt on being advised by the police. Accused was an illiterate person and before recording confessional statement, the accused was detained in his office chamber guarded by an office peon. He denied the suggestion that the accused did not confess before him voluntarily and that the accused confessed his guilt without knowing the consequences of making the confession. 12. PW-12, Smti Prativa Bora, is the secretary of a local Manila Samittee. She stated that on being informed about the incident, she along with some women members, came to the place of occurrence on 2.1.2004. On suspicion, they apprehended the accused. On being interrogated, the accused confessed that he killed the victim girl after committing rape and threw her dead body behind the jungle. The police arrived at the place of occurrence and interrogated the accused. The female members of the village and home guard personnel were present during interrogation. In her cross-examination she stated that the village headman, Luchan Chetia, informed her about the incident The village headman asked her to come and accordingly she came to the place of occurrence in the afternoon. She was accompanied by other female members, namely Samu Chetia, Bijuli Chetia, Lilamani Gogoi, Olu Gogoi, Kalpana Gogoi, Monika Gogoi an Oli Chetia. They did not see the accused being assaulted by the villagers but they had seen the people rebuking the accused for the offence committed by him. She was accompanied by other female members, namely Samu Chetia, Bijuli Chetia, Lilamani Gogoi, Olu Gogoi, Kalpana Gogoi, Monika Gogoi an Oli Chetia. They did not see the accused being assaulted by the villagers but they had seen the people rebuking the accused for the offence committed by him. She stated that on her enquiry, the accused admitted his guilt in presence of Thaneswar Gogoi (PW-4), Luchan Chetia (PW-5) and other woman members. There were about 200/250 persons. The accused did not tell her how he killed the victim girl. She denied that false allegation was brought against the accused as they failed to nab the real culprit. She stated that the police interrogated her. She denied that she did not state before the police that the accused confessed his guilt. 13. PW-14, Sri Muleswar Gogoi, deposed that the accused was serving as a daily labourer in his house. On the night of occurrence he was enjoying the feast along with the informant and other villagers. The accused came to the feast once and after some time disappeared from the place of feast He returned home at about 8/9 PM after having meal in the feast The informant informed that his 7/8 years old girl had disappeared. He gave a torch light to the informant. He also went out with the informant searching for the girl. The girl could not be traced out by them and the villagers on the next morning recovered the dead body of the girl near the bamboo grove. On being informed police came to the place of occurrence along with the dog. The dog went near the dead body and thereafter went to a blanket lying near the house of Muthanga. The said Muthanga told that the blanket belonged to the accused. Next day, the villagers caught the accused while he was taking lunch in a hotel and brought him to village. The accused, in presence of the villagers, confessed that while the victim girl was sleeping, he lifted her out, committed rape and killed her thereafter. The accused led to and showed the place where he took the girl, committed rape and killed her. The villagers took snaps of all the places. On the night of occurrence, the informant's wife was not present at home. Only the minor sons and daughters of the informant were sleeping inside the house. The accused led to and showed the place where he took the girl, committed rape and killed her. The villagers took snaps of all the places. On the night of occurrence, the informant's wife was not present at home. Only the minor sons and daughters of the informant were sleeping inside the house. In cross-examination, this witness stated that the occurrence took place at about 7 PM. There are four houses near the informant's house. The accused was not present when the dog went to the house of the informant. The villagers suspected the accused and he was apprehended after two days from the date of the incident Police was present when the accused confessed the guilt This witness accompanied the accused to the police station. He admitted that he came to know that the accused was beaten up by police in the police station. However, he stated that he was not present at the time of making confession by the accused before the villagers. He was told by police that the accused confessed before the villagers and the accused was apprehended by the villagers and handed over to police. He had no knowledge as to whether the accused confessed his guilt due to torture by police. 14. PW-16, Sri Ranjit Moran, is the O/C at the relevant point of time. He himself took up the charge of investigation of the case after receiving the FIR and registering a case. He proceeded to the place of occurrence along with magistrate, Apurba Prasad Saikia and got the inquest done at the place of occurrence. He proved the inquest report. He testified the seizure of articles and proved the seizure list. He sent the dead body for post mortem examination and interrogated the witnesses. On the same day, on the basis of source information, arrested the accused and brought him to police station. During interrogation, he came to know that the accused stayed in the house of Muthanga@ Lakeswar Gogoi after committing the offence. He recovered a blanket which was used by the accused and the same was seized. He proved the seizure list and his signature. As the accused confessed his guilt, he forwarded the accused to the magistrate with a prayer for recording the confessional statement. He recovered a blanket which was used by the accused and the same was seized. He proved the seizure list and his signature. As the accused confessed his guilt, he forwarded the accused to the magistrate with a prayer for recording the confessional statement. He came to know that the accused made the confessional statement in the court The underwear of the accused which was seized during investigation was sent to FSL for examination. On his transfer, he handed over the case diary to SI Pradip Kr. Bora, PW-15, who sent the seized underwear to the FSL and collected the report. The second I.O. collected the post mortem report and submitted the charge-sheet. In cross examination he sated that he had no knowledge how the second IO packeted and sent the seized undergarments to the FSL. He also stated that initially the accused did not confess his guilt but subsequently he confessed before him and then he sent the accused to the court for recording his confessional statement. The accused confessed before him in the police station in presence of Bhuyer Tassa, PW-9, Debeswar Chetia, PW-10, and Lakeshwar, PW-8. The said witnesses belong to the place nearby the place of occurrence. He denied the suggestion that the accused was tortured and assured that nothing would happen to him if he confesses his guilt. He further admitted that he did not obtain the signature of the person in whose presence the accused confessed the guilt. 15. PW-15, Sri Pradip Kr. Bora, is the Second IO of the case. He deposed that he took over the charge of investigation from the first IO. According to him, the first IO almost completed the investigation. The seized jangia (underwear), till then, was not sent to FSL. He sent the said underwear for FSL examination. So, he collected the FSL report The FSL report gave positive test for human semen but negative test for blood. He proved the FSL report marked as Ext.9. He also collected the post mortem report and submitted the charge-sheet The defence declined to cross-examine this witness. 16. PW-13 is Dr. H.K. Mahanta, professor and head of the department, Forensic Medicine, Assam Medical College, Dibrugarh. He testified that he performed the post mortem examination on the dead body of the victim girl on police requisition. He also collected the post mortem report and submitted the charge-sheet The defence declined to cross-examine this witness. 16. PW-13 is Dr. H.K. Mahanta, professor and head of the department, Forensic Medicine, Assam Medical College, Dibrugarh. He testified that he performed the post mortem examination on the dead body of the victim girl on police requisition. The details of injuries found on the person of the victim girl have been recorded in the post mortem report, Ext.8. He proved the said report and his signature thereon. The relevant portion of the said report, specially pertaining to external and internal injury on organs of generation, area quoted hereunder: - Organs of generation, external and internal injury:-External genitals stained with blood. Laceration: Mid line tear of the posterior part of the genital involving perineum 2 cm posterior commissure and posterior wall of vagina 1.5 cm along the midline. All the laceration was 3.5 x 0.5 x 15 cm in size. Fresh tear of hymen at 3,6,8,10 O'clock position present. All wounds are found adherent by clotted blood. Clotted blood found in the vaginal canal. The labia minora are contused. The inner surface of the labia majora are abraded and contused. Cervix and uterus healthy. Vaginal swab smears taken from posterior vaginal fornia and cervix for laboratory examination. Result- Smears show intact spermatozoa. Gonococci- not seen. Age of the wounds 0-2 hours. All other organs were healthy. Stomach was healthy and contains semi digested rice food 350 ml. The medical officer opined that death was due to shock and haemorrhage resulting from the injury sustained which were anti mortem. He also opined that injury No. 1 to 14 were caused by blunt force impacts and the ligature mark around the neck was ante mortem and caused by application of ligature (strangulation). All injuries and ligature mark were homicidal in nature. Evidence of recent forceful sexual intercourse (rape) present. 17. Going through the entire evidence as scanned above, we have found absence of direct or ocular evidence on the offence committed on the victim girl. What we have found from the above evidence on record is that there was a village feast in which some villagers including the informant PW-1, PW-2 and PW-14 were present. 17. Going through the entire evidence as scanned above, we have found absence of direct or ocular evidence on the offence committed on the victim girl. What we have found from the above evidence on record is that there was a village feast in which some villagers including the informant PW-1, PW-2 and PW-14 were present. As per evidence of PW-14, the accused was present in the said feast for some time and left the place of feast PW-2 supported the evidence of PW-14 that the appellant was present at the feast and disappeared after some time. The prosecution entertained a strong suspicion and drew an inference that the appellant left the place of feast and committed rape on the victim girl and then killed her. This is one of the circumstantial evidence on the basis of which the learned trial court convicted the appellant. The suspension on the appellant intensified due to recovery of a blanket near the house of PW-8 with the help of a dog employed by the police for tailing the accused involved in the case. As per evidence of PW-14, on receipt of information about the incident, the police came to the place of occurrence with a dog and started the investigation. The dog, after taking the smell from the dead body of the deceased, led the police to the house of Muthanga @ Lakheswar Gogoi, PW-8 and stopped near the blanket. The said blanket was identified by Muthanga as that of the accused appellant. The police, suspecting the appellant as the perpetrator, arrested in presence of the villagers. The appellant allegedly confessed his guilt and volunteered to make confessional statement before the magistrate and accordingly he was produced before the learned CJM and his statement was recorded by the learned Addl. CJM, PW-11. There is no other substantial evidence for holding the appellant guilty. 18. As an appellate Court, we are cast with legal duty to examine and find out as to whether the above circumstance, namely that the appellant left the place of feast after remaining present for some time, has a nexus with the death of the victim. In other words, whether there is a chain of circumstances unerringly establishing the guilty of the appellant. We have noted that there is no evidence to the effect that the appellant was last seen with the victim. In other words, whether there is a chain of circumstances unerringly establishing the guilty of the appellant. We have noted that there is no evidence to the effect that the appellant was last seen with the victim. There is no evidence to the effect that the appellant was a regular or occasional visitor to the house of the informant Nothing is found in the evidence that on the date of occurrence the appellant was seen at or around the residence of the informant or moving in a suspicious manner. It appears from the evidence that amongst the participants in the feast he was the only male domestic aide and rest were mostly head of the families or village elders. As a wage earner the appellant was not supposed to remain present at the feast for long or till the end of it and he might have left the place to retire on his bed after day long work. There is no chain of events nor is there any start of the chain. PW-2 and 14 noted the absence of the appellant after remaining present for some time at the feast. Nobody saw him proceeding towards the informant's house. Had there been any evidence to that effect, a reasonable doubt could be entertained that the appellant was involved in the crime. If such evidence is found, the prosecution could have claimed that a chain from the point of leaving the place of feast and his move towards the house of the informant has been established and there was possibility of committing the rape on and murder of the victim by the appellant. The evidence available on record does not establish any such link or chain for drawing an inference of guilt against the appellant. 19. In the evidence it is found that nearby the appellant's house several houses exist For instance the house of PW-3, Yadav Gogoi, own brother of the informant PW-1, exist nearby informant's house. He does not know who killed the informant's daughter. He has not stated that he or all his family members participated in the village feast on the night of occurrence. The house of PW-2, Pubeswar Gogoi, cousin brother of the informant, also exists near the house of the informant. He does not know who killed the informant's daughter. He has not stated that he or all his family members participated in the village feast on the night of occurrence. The house of PW-2, Pubeswar Gogoi, cousin brother of the informant, also exists near the house of the informant. He (PW-2) did not state in his deposition that all the family members participated in the feast As per the evidence the informant's house exists at a distance of 100 metres only from the house of PW-14. The place of festival was at a distance of 50 metres only from the house of the informant The informant's house exists near the houses of other families. The incident of rape and murder took place between 7 PM & 8 PM while the village feast was going on. Nobody heard cry of the victim girl nor any commotion created due to forcible lifting or taking out of the victim girl from the house. As per evidence of PW-1 he left his victim daughter with his other minor son and daughters for village feast but he has not mentioned whether there were other adult family members in the house to take care of his minor children at home in his absence. He has not even stated as to whether his wife was present at home while he left for the feast It is natural on the part of a guardian that he would not leave the house in the late evening without posting some adult person to look after the children. It is difficult to accept that there was no adult member in the informant's house on the night of occurrence. In case there was any adult member in the house, he would have heard hue and cry and alerted the neighbours. In absence of evidence to that effect court cannot take any view that there was no adult member in the informant's house on the night of the occurrence. At the same time the court also cannot hold that informant could commit the offence so quietly without making noise or without being heard or seen by anybody. In view of the above, we are not inclined to accept that there exists strong and sufficient circumstantial evidence for drawing an inference against the appellant and hold him guilty of the offence. 20. In view of the above, we are not inclined to accept that there exists strong and sufficient circumstantial evidence for drawing an inference against the appellant and hold him guilty of the offence. 20. Before coming to the question of confessional statement we make ourselves alive with the established law that for the purpose of arriving at a conclusion of guilt it is not permissible to start with confession and corroborative evidence thereof and come back again to the confession. There is no escape that the prosecution case must rest on the materials brought before the court. What we have seen in the instant case is that the prosecution has first put much reliance on the confessional statement made by the appellant, initially before the police and then before the court The appellant admittedly retracted the confessional statement. It must be noted that the appellant was first detained by the villagers on suspicion as because he left the village feast after remaining there for sometime and he was, thereafter handed over to police, by the villagers. The police also suspected the appellant on the feed back furnished by the villagers. 21. As per the evidence of PW 14, police arrived at the place of occurrence with the dog squad and with the help of dog the appellant's blanket was recovered from the place near the house of Mathanga @ Lakheswar Gogoi (PW 8). No other prosecution witness deposed to the effect that the police came with a dog and with the help of dog the appellant's blanket was recovered. Even in the evidence of first I.O., PW 16, who was the Officer-In-Charge of the Tingkhong Police Station and who undertook the investigation, did not mention anything that he came to the place of occurrence with a dog or dog squad to detect the culprit and collected the clues with the help of dog. The dog squad is not readily available at every police station in Assam, particularly in the rural area, unless a special requisition is made for the same. There is nothing on record or in the evidence that the O.C.- cum - I.O. (PW 16) ever made such requisition for dog squad. The evidence of PW 14 that he utilised the service pf dog squad is not supported or corroborated by evidence of any other prosecution witness. There is nothing on record or in the evidence that the O.C.- cum - I.O. (PW 16) ever made such requisition for dog squad. The evidence of PW 14 that he utilised the service pf dog squad is not supported or corroborated by evidence of any other prosecution witness. Even assuming that the police indeed brought and utilized the service of dog squad and a blanket was found from a place nearby the house of PW 8, the court has to consider the reliability of such evidence inasmuch as it must first be established that the blanket so recovered belonged to appellant and it was exclusively used by him. There is no evidence to the effect that the said blanket was used by the appellant on the date of occurrence or before the commission of the offence. There is no proof that it was not used by some persons other than the appellant. There is not an iota of evidence that the blanket recovered by police with the help of the dog actually belonged to the appellant and it was left by him at a place near the house of Mathanga after commission of the offence. It is anybody's common sense that a blanket used at the time of commission of offence would be a clue for tracking down an accused and it would be fatal for him. So, why should an accused leave such article at such a place at a risk of being detected. Nobody has stated in the evidence that the appellant has been using the blanket during the relevant period to time. 22. The evidence of PW 14 in regard to the fact that the blanket belonged to the appellant can not be accepted in absence of corroborative evidence of other witness. A recovery of a blanket can not be treated as a strong evidence against the appellant inasmuch as there is nothing in the evidence that somebody saw the appellant proceeding to the house of the victim or coming out from the house of the victim using a blanket or carrying it to the place of occurrence. The prosecution could not bring out any material that the appellant was using the blanket at the relevant point of time or at the time of or after commission of the offence. The prosecution could not bring out any material that the appellant was using the blanket at the relevant point of time or at the time of or after commission of the offence. We have, under such circumstances, found that the learned trial court, simply on the basis of uncorroborated evidence of PW 8, drew an inference of guilt against the appellant. A presumption was drawn against the appellant merely on the basis of recovery of a blanket which was suspected to be owned by the appellant. Such presumption is not an evidence in the eye of law and no conviction can be ordered against the accused on the basis of such presumptive evidence. No doubt, a strong suspicion has been created against the appellant but it needs no further assertion that suspicion, howsoever strong, can not be a substitute for proof of the guilt of the accused beyond reasonable doubt. There are ample authorities on this; and it would be sufficient if the latest decision of the Apex Court as pronounced in Sampath Kumar Vs. Inspector of Police, Krishnagiri, reported in (2012) 4 SCC 124 is cited. The learned trial Court, as it appears from the reasoning furnished in the impugned judgment, proceeded against the appellant on the basis of suspicion, surmise and presumption taking them for strong evidence without any sanction of law and held the appellant guilty and awarded the extreme punishment like imprisonment for life. 23. As regards the confessional statement claimed to have been made by the appellant we have already noted from the evidence that before the police arrived at the place of occurrence the villagers, on suspicion, fastened and detained the appellant In doing so, as it appears frank the evidence, the appellant was physically assaulted and forced to admit the guilt. It has at least come to the fore in the evidence of PW 10, Debeswar Chetia, who clearly stated in cross examination that members of the public fastened and assaulted the appellant. He also stated that at the time of admitting his guilt police was present One can well appreciate the emotionally charged situation in the village as soon as the rumour was spread that the appellant had raped and killed a minor girl. He also stated that at the time of admitting his guilt police was present One can well appreciate the emotionally charged situation in the village as soon as the rumour was spread that the appellant had raped and killed a minor girl. In such a situation, it was quite possible that the appellant was beaten up by the public and due to such physical torture, in order to save his life, had to admit the guilt although he was not involved in the commission of rape and murder. The appellant belongs to different tribe and he was a poor daily wage earner. Such a helpless man could easily be coerced, forced or compelled to admit guilt. Police, during custody tutored him to admit the guilt and in fact on being tutored by police, he made the confessional statement before the Magistrate in the open court. He, in fact, stated during examination u/s. 313 Cr.P.C. that he made the confessional statement due to tutoring of the police. Whatever confessional statement was made by the appellant, therefore, was not voluntary; rather it was made on duress. There is no element of voluntariness in the confessional statement of the appellant. That may be the reason, why at the subsequent stage, the appellant retracted the confessional statement. No doubt, the learned Addl. CJM, who recorded the confessional statement, gave the statutory caution and time for 'reflection to the appellant, but as per the evidence the learned Addl. CJM, in an unusual manner, recorded the confessional statement in ah open court Normally a court of Addl. CJM, during court hour, is guarded by policemen on duty and the presence of such policeman in the court at the time of making the confessional statement in the open court, can not be ruled out There is no evidence that no policeman was present in the court at the time of making the confessional statement but a rustic illiterate man like the appellant can not be free from fear psychosis as he was brought from the police custody and was tutored by the police to admit the guilt The fear psychosis played its role and influenced the appellant to make involuntary confessional statements before the court A court of law can not act upon such involuntary confessional statement of an accused person and convict him without any direct or circumstantial evidence supporting his confessional statement 24. In view of the above, we are clear in our opinion that the confessional statement of the appellant was secured on duress and tutoring and it lacks essence of voluntariness and we, therefore, decline to act upon such involuntary statement of the accused. We are conscious of the law as laid down in Haroom Hazi Abdullah Vs. State of Maharashtra reported in AIR 1968 SC 832 , where it is held: that a retracted confession must be looked upon with greater concern unless the reasons given for having made it in the first instance (not for retraction as erroneously stated in some cases) are on the face of them false. Once the confession is proved satisfactorily any admission made therein must be satisfactorily withdrawn or the making of it explained as having proceeded from fear, duress, promise or the like from someone in authority. A retracted confession is a weak link against the maker and more so a co-accused. The evidence available on record in this case has demonstrated the fear factor which compelled the appellant to make the confessional statement. He was, undoubtedly, proved to have been put under duress and moved by false assurance/promise that nothing would happen if the appellant makes the confessional statement although he was, in feet, not involved in the offence. The Apex Court in Ram Chandra & Anr. Vs. State of, Uttar Pradesh; reported in AIR 1957 SC 381 held that where the proof of the factum of murder is itself solely dependent upon the confession, the apparent improbability of the manner in which the murder is said to have been brought about in the confession would be a cogent circumstance against the confession being relied upon. In this context let us have a look at the confessional statement Ext 5, as recorded by the Addl. CJM (PW11). The appellant stated that on the night of occurrence he called the minor girl and took her behind the house of another person. He does not know the name of the said girl. He pressed her neck for about 10 minutes and as a result she died. He was under the influence of liquor. He met the girl while he went out for work in the field. He knows the father of the said girl. He left the dead body and went away. He does not know the name of the said girl. He pressed her neck for about 10 minutes and as a result she died. He was under the influence of liquor. He met the girl while he went out for work in the field. He knows the father of the said girl. He left the dead body and went away. He did not commit misdeed (rape) on die girl on the night of occurrence. He slept in another house and police came with a dog to the place where he was sleeping but he left the place. On the next day, the police arrested him while he was taking meal in a hotel He alone committed the crime and no-other person was involved in the crime. He now feels bad for the crime he committed. 25. There is an apparent improbability in the present case given the manner in which the alleged offence was committed. A minor girl was called by the appellant and she was taken out of the house quietly and that too in the night The appellant confessed to have killed the minor girl by strangulation but he denied to have committed rape or forceful sexual intercourse on her but the medical evidence proves otherwise inasmuch as there is "evidence of recent forceful sexual intercourse (rape) present." The appellant admitted the charge of murder but denied the charge of committing rape. The confessional statement is to be read as a whole. If one part of the confessional statement regarding commission of murder is to be believed the other part viz. the denial of commission of rape upon the victim girl can not be disbelieved. Again if the part of the confessional statement on commission of murder is disbelieved the commission of rape is also to be disbelieved but such approach can not be made in dealing with the criminal case pertaining to serious offence like rape and murder The denial of charge of committing the offence of rape implies involvement of another person in the crime inasmuch as the appellant has. confessed to have committed murder of the minor girl by strangulation. If the medical evidence is to be believed that the victim girl was raped, the burden lies on the prosecution to prove that the girl was raped either by the appellant himself or by another culprit. confessed to have committed murder of the minor girl by strangulation. If the medical evidence is to be believed that the victim girl was raped, the burden lies on the prosecution to prove that the girl was raped either by the appellant himself or by another culprit. The prosecution has not pursued the approach that a second person or a culprit committed rape on the victim girl. There is no doubt that the prosecution proceeded against the appellant on the basis of presumption and confessional statement that it was the appellant alone who committed both the offences of murder and nape whereas it has failed to adduce cogent and reliable evidence; by ocular or circumstantial evidence, that the appellant committed both the offences. The confession of the appellant comprises of both inculpatory and exculpatory statements. Improbabilities in the prosecution story are apparent. So also, the absurd approach in the trial of the case is found in the present case. Why we are saying so is that the Apex Court, as far back as in 1952 ruled in Pahinder Kaur Vs. State of Punjab (1) ; AIR 1952 SC 554 that: a confession must either admit in terms of offence, or at any rate, substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating feet is not itself a confession. A statement that contains self- exculpatory matter can not amount to confession, if the exculpatory statement is of some fact, which if true, would negative the offence alleged to be confessed. A statement which when read as a whole is of an exculpatory character and in which the prisoner denies his guilt is not a confession and can not be used in evidence to prove his guilt. Further it is held therein that confession and admission must either be accepted as a whole or rejected as a whole and the court is not competent to accept only the inculpatory part while rejecting the exculpatory part as inherently incredible. 26. In the aforesaid facts and circumstances of the case, no court, in the present case, would be able to take a view that the circumstantial evidence is incompatible with the innocence of the accused to hold that the case against the appellant has been proved beyond reasonable doubt. 26. In the aforesaid facts and circumstances of the case, no court, in the present case, would be able to take a view that the circumstantial evidence is incompatible with the innocence of the accused to hold that the case against the appellant has been proved beyond reasonable doubt. We disagree with the view and conclusion arrived at by the learned trial court in holding the appellant guilty and punishing him with imprisonment for life. The appellant, in our considered view, is entitled to benefit of doubt and acquittal on ground of failure of the prosecution to prove the case against him beyond all reasonable doubt The impugned judgment and order, is, hereby quashed and set aside. Consequently, the appellant is acquitted on benefit of doubt He be set at liberty forthwith, if his further detention is not required in connection with any other case. 27. The appeal stands allowed Return the LCR forthwith. Let the learned Amicus Curiae be paid an amount of Rs. 5,000/- as his legal fee, for the legal service rendered by him.