JUDGMENT Ashim Kumar Banerjee, J: Prosecution Case: Para Toppo was the husband of the victim. He was working as a Mechanic under the local Administration at Campbell Bay. Their house was destroyed in tsunami. Since then, they were living in the permanent shelter. The couple had three children- Prema Toppo, Vishal Toppo and Poonam Toppo. Prema was staying with her grandmother (mother’s mother) whereas Vishal and Poonam both minors were residing with their parents in the permanent shelter. On August 3, 2010, the victim Profulit Minj went to see her mother who was also residing nearby. Poonam accompanied her. Poonam went to tuition at the house of Rajini and came back at 8.30 PM when Profulit Minj, Vishal and Poonam took food and went to bed. At night at 9.30 PM accused came and kicked at the door, enquired about the whereabouts of Profulit Minj. Poonam opened the door. When Profulit came out accused started inflicting blows of dao upon her. She tried to resist but failed. While she was fleeing away, the accused inflicted blow on her head. She fell down in the nearby drain outside the house and died. Poonam rushed to the house of her choti nani and then disclosed the incident to their maternal uncle. When the maternal uncle rushed to the house accompanying Poonam found the victim lying on the ground. At the time of occurrence, accused was in towel. Poonam and Vishal made statements before the learned Magistrate that were recorded under section 164 of the Code of Criminal Procedure. Vishal also corroborated Poonam. The accused made confessional statement at the police station in presence of PW.1, Pradhan of the Campbell Bay. According to the statement, the accused was suspicious about the wife’s illicit relationship with one Sudhir Xalxo. Despite repeated cautions, Profulit Minj did not adhere to. As a result, being annoyed, the accused killed his wife. Such statement was recorded at the police station in presence of two witnesses being Navaneethan and Jayaprabha, Up-Pradhan and Pradhan of Campbell Bay. STATEMENT OF THE ACCUSED The statement made by the accused was tendered as Exihibit-2 appearing at page 80. The contents are quoted below: “Ikraranama u/s 27 Evidence Act 1871 of Para Toppo S/o Late Birsa Toppo (42 yrs), Mechanic APWD R/o RPRS Shelter C/Bay. STATEMENT OF THE ACCUSED The statement made by the accused was tendered as Exihibit-2 appearing at page 80. The contents are quoted below: “Ikraranama u/s 27 Evidence Act 1871 of Para Toppo S/o Late Birsa Toppo (42 yrs), Mechanic APWD R/o RPRS Shelter C/Bay. “I am residing with my family at my permanent shelter RPRS colony No. 53 A and working as a mechanic in APWD Department. Near about two years before in the year 2008, I suffered with heart disease. Due to which, I had to go to Private Medical Chakraborty, Dollygunj, P/Blair for treatment. When I returned back to my wife’s house at C/Bay, I was on doubt about the illegal relation of my wife with a man called Shri Sudhir Xalxo. I told many times to my wife not to keep any illegal affair with any person but she did not listen. One day, I saw my wife with Sudhir Xalxo when they were in love and also saw Sudhir touching my wife’s chest. As such, at the same moment, I slapped my wife and Sudhir Xalxo. For this reason, distance occurred between me and my wife. For many months, neither we talk nor did we sleep with each other. I tried to make her understand not to keep any illegal affair with other person. Even though my wife talked so many times over line phone and also met with Sudhir Xalxo without anybody’s knowledge. For this reason, yesterday 03/08/10 at about 0930 hours at night, with a Dao in my hand called my wife, after few minutes she came out from her room, I at once, attacked on her neck with the Dao. My wife ran outside for her safety, I too ran behind her and attacked on her neck many times due to which she died on the spot. After that I came to police station to inform about the matter, I don’t worry about my mistake because she had an illegal affair with somebody. For which in the state of depression I murdered her.” The accused, however, denied making any statement before the police custody and pleaded not guilty and faced the trial. EVIDENCE The prosecution examined 17 witnesses. The accused did not produce any witness. For which in the state of depression I murdered her.” The accused, however, denied making any statement before the police custody and pleaded not guilty and faced the trial. EVIDENCE The prosecution examined 17 witnesses. The accused did not produce any witness. During examination under section 313 of the Criminal Procedure Code, the accused made following statements in defence:- “Q: 104 What do you want to say anything further of your own? Ans: I have been falsely implicated in this case. My children used to reside under my mother-in-law who controlled them and my children did not state truth and they did not see anything. When I come home from outside, I saw my wife in a pool of blood and I only called police over phone. My children come to see me in the PS also in hail continuously but my mother-in-law stopped them.” Vishal and Poonam, being the eye witnesses were consistent and corroborated each other. According to Vishal, he was reading in class-X being 15 years old at the time of his deposition that was made after about five months of the occurrence. On the fateful day, he went to the school in the morning and came back at about 1.30 PM. He requested his father to purchase school bag for him. He wanted to accompany his father but his father assured him that he would get it for him. On being asked, he gave a carry bag to his father who left the house for market on a bike. After sometime, his mother Profulit Minj came to the house and they took dinner and enjoyed watching Television at about 8.30 PM. Profulit Minj and Poonam went to bed and he continued watching TV till 9.30 PM when he went to bed. Soon after, his father came back and kicked at the door. He came out of the room. His father asked him to enter inside the room and sleep. After sometime he heard the shouting of his mother. He woke up and found the door locked from outside. He could get out of the room by climbing up using the gap between the door and the roof. He found, his father was inflicting blows of Dao on his mother. He tried to go in front; his father threatened him showing the Dao. He woke up and found the door locked from outside. He could get out of the room by climbing up using the gap between the door and the roof. He found, his father was inflicting blows of Dao on his mother. He tried to go in front; his father threatened him showing the Dao. He rushed to the house of his Nani being accompanied by his mama Thardius in a house at Kamal Basti and informed his Nani, his father murdered his mother. They all came by auto and found his mother lying near a drain in a pool of blood. In the cross-examination Vishal was consistent about the incident, however, admitted, his narration of the entire incident prior to the occurrence, was not told to the learned Magistrate. He emphatically denied the suggestion; he got the information from his Mama. Poonam was also consistent of what she had told to the Magistrate. There might be insignificant contradictions that would have no relevance to the narration of the occurrence. According to Poonam, at 9.30 PM her father came and kicked at the door. She opened the door. Her father asked the whereabouts of her mother. Her mother came out. She tried to flee away when her father inflicted blows on her. She fell down near the drain. Her father was wearing a towel. She made such statements before the learned Magistrate and signed it. She recognized her signature when shown to her. In cross-examination, both Vishal and Poonam admitted, they started staying with their Nani after the incident. Poonam was also consistent during her cross-examination. Neither Vishal nor Poonam could be shaken in cross-examination. Poonam also categorically denied, neither her Nani nor the police did teach her what to depose before the court. The others were post-occurrence witnesses. The learned Additional Sessions Judge dealt with the evidence in detail. We need not discuss in detail. The evidence of PW 13, Thardius was, however, significant. PW 13 was the maternal uncle who was first informed about the incident by the children. Vishal deposed, he rushed to the house of Choti Nani and informed Thardius who was the son of the elder sister of Salomi, the mother of the victim. In short, Thardius was the cousin brother of the victim. PW 13 was the maternal uncle who was first informed about the incident by the children. Vishal deposed, he rushed to the house of Choti Nani and informed Thardius who was the son of the elder sister of Salomi, the mother of the victim. In short, Thardius was the cousin brother of the victim. He deposed, on the fateful day at about 9.20 PM when he was at his house the police came and informed him about the death and he would be required to go to the hospital with the dead body. Accompanying the children Poonam and Vishal, he came to the house and saw Profulit Minj dead. He found the dead body on the ground and the accused was crying next to the dead body. He identified his signature on the inquest as also the seizure list and other Exhibits being Exhibits 11, 12, 13, 14 and 15 as well as Exhibit 10. He deposed, the police did not collect anything from the house. After postmortem, the body was cremated. He also recognized his signature in Exhibit 6. In cross-examination, he expressed his opinion, “It may be that Salomi might be said that Poonam and Vishal to say against their father.” It was his opinion and nothing else. He also stated, “On that day Poonam and Vishal came to my house to attend a party and after attending the party they slept at my residence. After police informed the matter they were also sleeping at my house at that time. Fact that Prema Toppo married against the wish of her accused father and for that reason there was a quarrel between them. Salomi Kujur is the mother-in-law of Para Toppo. Fact that there was a quarrel between Para Toppo and Salomni Kujur.” The above statement was made in cross-examination. Hence, the prosecution could not get any opportunity to declare him hostile as contended by Mr. Khan, appearing for the prosecution. PW 1, 10, 11, 12, 14 and 16 were post-occurrence witnesses. They were local people assembled after the death and witnessed the inquest and some of them became the witnesses to the seizure. PW 8, the doctor examined the accused. She found no smell of liquor from the mouth of the accused. PW 9 was the Autopsy Surgeon. He gave details of the injuries. They were local people assembled after the death and witnessed the inquest and some of them became the witnesses to the seizure. PW 8, the doctor examined the accused. She found no smell of liquor from the mouth of the accused. PW 9 was the Autopsy Surgeon. He gave details of the injuries. According to him, the death was homicidal in nature and arose due to cardiac arrest in view of profuse hemorrhage. He was shown the weapon. He denied the suggestion that the subject weapon could not be cause of the injuries. The other witnesses were Police Officers. The learned Additional Sessions Judge in his painstaking judgment running into 99 pages, discussed in detail each and every piece of evidence. He also considered the extra judicial confession being Exhibit 2 as an additional factor to help him to draw a logical conclusion. He put emphasis on the statement made by Vishal and Poonam recorded under section 164 of Criminal Procedure Code and the learned Judge ultimately came to the conclusion, accused was responsible for the death. Hence, this appeal before us. CONTENTIONS OF THE ACCUSED-APPELLANT Mr. N.N. Nag, learned counsel appearing for Para Toppo, the appellant above named, contended before us, there were contradictions galore in the statements made under section 164 of Code of Criminal Procedure and the statements made before the learned Judge. Moreover, there was no corroboration from the neighbours. According to Mr. Nag, both the children omitted to narrate the incident during day time, including their visit to Nani’s place, going to school, taking tuition. Mr. Nag further contended, the witnesses were not shown the weapon purportedly seized from Para Toppo, the accused appellant. The towel mentioned by the children was also not produced. The towel was not exhibited. He lastly contended on the issue, the extra judicial confession as relied on by the learned judge did not have any corroboration from the witnesses. On the issue of seizure Mr. Nag would contend, seizure was not properly recorded and proved by the prosecution. The seizure witness being PW 13 did not mention about the weapon. He merely admitted his signature appearing on the seizure list and the contents were not proved. In any event, the prosecution did not declare him hostile or cross-examine him for the said purpose. He also referred to the deposition of PW 12 Sanathan who was declared hostile. The seizure witness being PW 13 did not mention about the weapon. He merely admitted his signature appearing on the seizure list and the contents were not proved. In any event, the prosecution did not declare him hostile or cross-examine him for the said purpose. He also referred to the deposition of PW 12 Sanathan who was declared hostile. Sanathan was also consistent with Thardius to the extent, they signed it without knowing the content. Mr. Nag relied on sections 26 and 27 of the Indian Evidence Act 1872 wherein it is provided, no confession made in police custody shall be proved against such person unless it was made in the presence of the Magistrate, provided when any fact is deposed to as discovered in consequence of an information received from a person accused of any offence, in the custody of a Police Officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Mr. Nag also referred to the evidence of PW 13 where the witness opined, Poonam and Vishal might be under the influence of their Nani. He lastly contended, the so called surrender by the accused was not proved at all. The seized offending weapon was also not shown to the witnesses for identification. Hence, there was break in the chain of incidents as placed by the prosecution. According to Mr. Nag, the accused Para Toppo was implicated at the instance of Salomi Kujur who had a strained relation with her son-in-law, Para Toppo, on the issue of marriage of Prema, the PW 4. Referring to the forensic report, Mr. Nag was critical about the investigation as in the absence of matching of the blood group of the blood found in the towel as also the offending weapon with the blood group of the victim. Mr. Nag prayed for setting aside the order of conviction with a consequential order of acquittal. Contentions of prosecution Mr. N.A. Khan, learned advocate appearing for the prosecution strongly relied on the evidence of Vishal and Poonam being PW 2 and 3. He contended, both the children were consistent with their statements made before the learned Magistrate. They corroborated each other on the happening of the incident. Contentions of prosecution Mr. N.A. Khan, learned advocate appearing for the prosecution strongly relied on the evidence of Vishal and Poonam being PW 2 and 3. He contended, both the children were consistent with their statements made before the learned Magistrate. They corroborated each other on the happening of the incident. No suggestion was put to them, they were sleeping in the house of Choti Nani, as suggested on behalf of the accused. The wearing apparel of the accused being the towel was seized. The blood content was found to be proved. Mr. Khan relied on the independent witness being PW 1, the Pradhan of the Panchayat who was present at the time of making of the extra judicial confession by the accused. He drew our attention to the cross-examination of PW.2 and 3 where both of them emphatically denied the suggestion given to them with regard to the implication of the accused. On the issue of strained relation so contended by Mr.Nag, Mr.Khan, submitted, this could be used as a double edged weapon. He relied on the evidence of Salomi Kujur, P.W.5 and drew our attention to the cross-examination where the statement of Thardius was categorically denied by Salomi. On the postmortem report, Mr.Khan contended, it was duly filled up by the Doctor. Column 13 that was filled in by the police officer would merely record the statements made by the witnesses before the police about the cause of the death. The Autopsy Surgeon would not have anything to do on that score. Hence, filling up of that column by the police officer could not be said to be illegal as suggested by Mr.Nag during his argument. REPLY While giving reply, Mr.Nag relied on section 26 of the Evidence Act to say, the seizure made in police custody at the police station was not permissible and could not be brought In evidence. OUR VIEW The prosecution case, as made out by the prosecution witnesses were consistent and was having corroboration from each other. Even if we discard the evidence of PW 12 and 13, we would find, the consistent stand of two children being PW.2 and 3 before the learned Magistrate while making statements under section 164 of the Code of Criminal Procedure as well as before the learned Additional Sessions Judge was sufficient enough to record an order of conviction. Even if we discard the evidence of PW 12 and 13, we would find, the consistent stand of two children being PW.2 and 3 before the learned Magistrate while making statements under section 164 of the Code of Criminal Procedure as well as before the learned Additional Sessions Judge was sufficient enough to record an order of conviction. If we look to the evidence of PW.13, we would find, during examination, the witness proved the documents signed by him during investigation. Hence, prosecution possibly did not think it fit to declare him hostile. In fact, there was no occasion to do so. It is, however, true, PW.13 placed another story with regard to the children that would distinguish the ocular evidence. According to him, police informed him about the incident and he accompanied the children to go to the house of the victim. He was, however, not clear as to whether the children were staying with him or not. Of-course, he made a statement contrary to the prosecution case, he saw Para Toppo crying near the dead body. At that stage, it would have been proper to declare him hostile. However, the prosecution in their wisdom did not do so. During cross-examination, Thardius made it clear, PW.2 and 3 were staying in their house. If we believe Thardius, we have to dislodge the entire evidence given by Vishal and Poonam. The question would thus remain, whether the evidence of Thardius would inspire our confidence or not and to what extent, he could be believed. During his cross-examination, Thardius tried to build the defence case, Para Toppo and Salomi had a strained relation due to quarrel on the issue of marriage of Prema. Hence, Salomi might have tutored Poonam and Vishal to depose against their father. Apropos, such statement, may we once again look to the statement of the accused during his examination under section 313. The accused denied having strained relation with Salomi. He did not say, why he was falsely implicated in the case. He did not spell about the so called strained relation between him and Saloni on the issue of marriage of Prema. In fact, he did not mention anything about such marriage. A case made out at the Bar without having any nexus with the evidence, is something that must be ignored. He did not spell about the so called strained relation between him and Saloni on the issue of marriage of Prema. In fact, he did not mention anything about such marriage. A case made out at the Bar without having any nexus with the evidence, is something that must be ignored. Even if we give credence to what Thardius had said, we would find, it was his brainchild having no nexus either with the evidence of the rest of prosecution witnesses or the accused himself. Question No.50 and the answer during examination under section 313 being relevant herein, is quoted below: “Q: 50 PW 13 Thardius also deposed that after that he accompanying Poonam, Vishal came to house of his sister Prafulit and identifying you in the court he further deposed that he saw dead body of Prafulit on the ground and seating near her dead body you were started crying. What do you want to say? Ans: False.” The answer given by the accused himself would belie the claim of Thardius, Para Toppo was crying near the dead body. Presence of Para Toppo at the place of occurrence was not stated by anyone except Thardius. Para Toppo denied such claim that would obviously shake the confidence of the Court as to the veracity of the deposition of PW.13. If we discard PW.13, we would find a complete consistent case made out by the prosecution being backed by concrete ocular evidence of two children who witnessed the murder of their mother by the father that would itself be sufficient to sign the judgment of conviction, even if we ignore the extra judicial confession made by the accused. Mr.Nag relied on Apex Court decision in the case of State of Delhi Vs. Shri Ram Lohia, reported in All India Reporter 1960 Supreme Court 490. The Apex Court in paragraph 13 observed, “The statement under S.164 referred to was not specifically put to Aggarwal even to contradict him. Statements recorded under S.164 of the Code are not substantive evidence in a case and cannot be made use of except to corroborate or contradict the witness. The Apex Court in paragraph 13 observed, “The statement under S.164 referred to was not specifically put to Aggarwal even to contradict him. Statements recorded under S.164 of the Code are not substantive evidence in a case and cannot be made use of except to corroborate or contradict the witness. An admission by a witness that a statement of his was recorded under S.164 of the Code and that what he had stated there was true would not make the entire statement admissible much less that any part of it could be used as substantive evidence in the case.” The observation of the Apex Court would rather support our ultimate findings. In the instant case, the statements made by Vishal and Poonam before the learned Magistrate and their consistent deposition before the learned Sessions Judge corroborating each other, would be sufficient to sign the order of conviction. If we look at the deposition, we would find the children, although being minors, were confident and emphatically denied the suggestion put to them contrary to what they had stated before the learned Magistrate. They could not be shaken. If we bring the facts in a narrow compass, we would find, the incident occurred in presence of two witnesses being PW.2 and 3. Once their evidence inspired the confidence of the Court, mensrea was not important to disbelieve the prosecution witnesses particularly, the ocular witnesses. The defence was to show, such statements could not be relied upon. In the present case, on a combined reading of the deposition particularly, the cross-examinations, we would find the defence case as we understood, Prema’s marriage against the wish of her father, became a subject matter of controversy between the father and Salomi, the mother-in-law. They had strained relation. Both the children were staying in the house of Choti Nani on the day when police informed Thardius who rushed to the spot along with the children. Thardius saw Para Toppo crying near the dead body. The above case made out from the Bar should have nexus with the record. The record would show, the defence did not produce any witness. During examination of the accused under section 313, the accused stated, he was falsely implicated in the case. His children were tutored by Salomi. Why it was done, was not spelt out. The above case made out from the Bar should have nexus with the record. The record would show, the defence did not produce any witness. During examination of the accused under section 313, the accused stated, he was falsely implicated in the case. His children were tutored by Salomi. Why it was done, was not spelt out. In reply to question No.50, the accused categorically denied, he was crying near the dead body. Hence, the case made out by Thardius that Para Toppo was present near the dead body, was totally belied. From a sum total, we cannot rely upon the statement of Thardius. His evidence did not inspire our confidence. PW.12 Sanathan was declared hostile when he declined to admit the prosecution case. It is true, evidence of a hostile witness would also be relevant provided it would inspire confidence of the Court. PW.12 was also a witness to the investigative documents being Exhibit 10 to 14. He deposed in cross-examination, “Fact that I went to the place of occurrence. I saw blood in front of the house of Profulit, and I stayed there at that time for about 5 minutes and when I was there, there was nobody and children of Profulit are also not there and the local persons are also not there at that time.” He denied to have gone to the place of occurrence immediately after the incident on that night. If we take his evidence at a glance, we would find, he denied his presence at the spot at the relevant time. He did not throw any light otherwise on the occurrence. While cross-examining PW.1, the defence counsel put a suggestion, the Pradhan deposed against the accused out of political rivalry. We do not find any assertion by the accused while being examined under section 313. If we at all look at the so called extra judicial confession, we would find, accused became annoyed due to the illicit relationship of the victim with an outsider that became the cause of the murder. Both the children, one about 15 years old and the other one about 10 years categorically deposed before the Court of law against their father at the risk of insecurity ( Pertinent to note, the accused was a government servant and was maintaining his children till the date of the incident). Both the children, one about 15 years old and the other one about 10 years categorically deposed before the Court of law against their father at the risk of insecurity ( Pertinent to note, the accused was a government servant and was maintaining his children till the date of the incident). Unless and until, they actually witnessed the incident they would not depose so as they did, particularly, against their father. They lost their mother at the early age. Adducing evidence against their father would also amount to losing their father throughout the life. We do not find any scope to disbelieve them. The appeal fails and is hereby dismissed. Send a copy of the judgment to the accused in the correctional home. Send down the lower court records forthwith.