JUDGMENT Tapash Mookherjee, J: 1. The judgment and order of conviction and sentence dated 30.05.2007 and 31.05.2007 passed by the learned Additional Sessions Judge, Durgapur in Sessions Trial No. 7 of 2002 (Sessions Case No. 24 of 2001) are under challenge in the present appeal. By the aforesaid judgment and order learned Trial Court convicted the accused Durga Hazra in the case, of the offences punishable under Section 394/34 I.P.C., 364/34 I.P.C., 304 part 1 I.P.C., and 201/34 I.P.C. and sentenced him to suffer R.I. for seven years and to pay fine of Rs. 2,000.00 (rupees two thousand only) I.D. to suffer R.I. for six months more for the offence under Section 394/34 I.P.C. and to suffer R.I. for seven years and to pay fine of Rs. 2,000.00 (rupees two thousand only) I.D. to suffer R.I. for six months more for the offence under Section 364 /34 I.P.C. and to suffer R.I. for ten years and to pay fine of Rs. 5,000.00 (rupees five thousand only) I.D. to suffer R.I. for one year more for the offence under Section 304 part-I, I.P.C. and also to suffer R.I. for two years and to pay fine of Rs. 500 (rupees five hundred only) I.D. to suffer R.I. for two months more for the offence under Section 201/34 I.P.C. Being aggrieved by such judgment of conviction and order of sentence the said accused Durga Hazra has filed the present appeal. 2. The prosecution case in short, is as follows:- 3. One Bishwanath Dhara, the driver of the truck bearing No. WGA-6257 went to Ilambazar P. S. in the morning of 03.03.1993 and orally narrated that on the previous evening he along with his son Tapas Dhara who had been working as the cleaner of the truck, took out the aforesaid truck from the office of the owner of the truck at Mogra for going to Damagoria Colliery to load coal. On the way three unknown persons with seven sacks with goods stopped the truck and requested to take them to a place at Assansol for a fare of Rs. 70.00 (rupees seventy only). The driver, i. e., the complainant agreed to the proposal and allowed those three persons to board in the truck with their goods. At night the truck was parked in a road-side Hotel at Bud Bud where all of them took dinner. After dinner all of them had slept. 70.00 (rupees seventy only). The driver, i. e., the complainant agreed to the proposal and allowed those three persons to board in the truck with their goods. At night the truck was parked in a road-side Hotel at Bud Bud where all of them took dinner. After dinner all of them had slept. Thereafter, those three passengers awoke the complainant and the complainant started the truck and proceeded towards Assansol. On the way those three persons threw chilly powder in the eyes of the complainant assaulted the complainant and his son and pushed the complainant and his son in two sacks and one of those three persons took control of the steering of the truck and drove the truck. After passing through a considerable distance they turned the truck back and started driving it towards Ilambazar. On the way those three persons had thrown out the complainant from the truck from over a bridge and drove away the truck with the complainant’s son. In the following morning the complainant somehow freed himself from the ties, searched for his son and finding none nearby, went to Ilambazar P. S. and narrated the aforesaid facts. Ilambazar Police passed over the information immediately to Kanksa P. S. from where some officers came to Ilambazar P. S. and took the complainant Bishwanath Dhara to Kanksa P. S. where Bishwanath Dhara again repeated the aforesaid incidents which had been reduced into writing and on the basis of such complaint Kanksa P.S. case No. 29/1993, dated 05.03.1993 had been started against three ‘unknown’ accused persons under Section 394 I.P.C. During investigation, Sections 364/302/201/120B and 412 I.P.C. had been added with the offence under Section 394 I.P.C. During investigation it revealed that the present Appellant Durga Hazra along with two other accused persons namely, Palash Sain and Subhas Bose, alias Bapi, committed the aforesaid offences and accordingly charge sheet under Section 364/394/302/201/120B/411 I.P.C. had been started against all the aforesaid three accused persons. 4. After commitment the case had been transferred to the Court of Additional Sessions Judge, Durgapur for trial. Considering the evidence collected during investigation charges under Section 364/34 I.P.C., 394/34 I.P.C., 302/34 I.P.C. and 201/34 I.P.C. had been framed against all the accused persons. The accused persons denied the charges, pleaded their innocence and claimed trial. 5. 4. After commitment the case had been transferred to the Court of Additional Sessions Judge, Durgapur for trial. Considering the evidence collected during investigation charges under Section 364/34 I.P.C., 394/34 I.P.C., 302/34 I.P.C. and 201/34 I.P.C. had been framed against all the accused persons. The accused persons denied the charges, pleaded their innocence and claimed trial. 5. To prove their case prosecution examined as many as 18 witnesses, proved some documents and produced some articles also. Defence tendered no evidence whatsoever. Considering the evidence on record learned Trial Court found the Appellant guilty of the offences punishable under Section 394/364/304 (part-1)/201/34 I.P.C. and passed different sentences including sentence of imprisonment and fine for the aforesaid offences. Learned Trial Court found the other two accused persons in the case namely, Palash Sain and Subhas Bose alias Bapi not guilty of the charges framed against them and hence learned Trial Court acquitted those two accused persons. 6. Being aggrieved by and dissatisfied with such judgment of conviction and order of sentence the accused Durga Hazra filed the present appeal. 7. A Rule for enhancement of sentence had been issued by this court suo motu. 8. Sri Bishwanath Dhara (P.W.-1,) was the defacto complainant and as such the main witness in the case. He was the driver of the truck bearing No. WGA 6257 and his son Tapas Dhara had been working as the cleaner in the truck at the relevant time as claimed by P.W.-1. P.W.-1 stated that on 03.03.1993, in the evening he along with his son took out the aforesaid truck from the office of its owner at Mogra and started for Damagoria Colliery to load coal from there and on the way three persons including the present Appellant stopped the truck on the way at Memari and boarded in the truck with seven sacks with cattle feed on promise to pay Rs. 70.00 (rupees seventy only) as the fare for such lift. P.W.-1 stated further that he had stopped the truck at Bud Bud and all of them had their meals in a roadside Hotel and sometimes thereafter they started from Bud Bud and proceeded towards Assansol. 70.00 (rupees seventy only) as the fare for such lift. P.W.-1 stated further that he had stopped the truck at Bud Bud and all of them had their meals in a roadside Hotel and sometimes thereafter they started from Bud Bud and proceeded towards Assansol. P.W.-1 further stated that after passing through some distance one of the accused persons boarding in the truck assaulted on his head with an iron rod, spread chilli powder in his eyes and after assaulting his son also all the three accused persons tied him and his son by rope and kept them inside two sacks. P.W.-1 added further that sometime after such confinement he had been thrown out of the truck from over a bridge on the road and the accused persons thereafter drove away the truck with his son inside. P.W.-1 stated further that in the following dawn he freed himself from the ties and rushed to the nearby Ilambazar Police Station where he narrated the entire incidents and subsequently he was taken to Kanksa P.S. where he again repeated the aforesaid incidents. During investigation P.W.-1 identified the dead body of his son after recovery and witnessed a seizure. P.W.-2 to 18 deposed on several other facts relevant in the case, to prove them. 9. Learned Advocate for the Appellant Ms. Minoti Gomes argued that the incident took place in the night of 03.03.1993 but the case had been registered at Kanksa P.S. on 05.03.1993 at 04.05 hours during which time there were three complaints by P.W.-1 before the police, as transpires from the evidence on record and it is not proved as to what was the first version of the P.W.-1 regarding the incidents alleged. We find sufficient force behind such argument of Ms. Gomes. 10. P.W.-1 during his evidence-in-chief stated that at the early hours of morning following the night of the incident he had gone to Ilambazar P.S. and narrated the incident there orally and thereafter some police officer from Kanksa P.S. came to Ilambazar P.S. and took him at Kanksa P.S. where he again narrated the incident orally which had been reduced into writing by a police officer at Kanksa P.S. and P.W.-1 proved his signature (Exhibit-1) on the complaint treated as the F.I.R in the case. The facts narrated by P.W.-1 at Ilambazar P.S. disclosed serious cognizable offences and it is, therefore, natural that the facts thus narrated by P.W.-1 had been recorded somewhere at Ilambazar P.S., but no such writing had been produced in the case. From the F.I.R. on the basis of which the present case had been started it is found to have been scribed not by any police officer of the Kanksa P.S. as claimed by the P.W.-1 but it had been scribed by one Pradip Kumar Das the owner of the truck in question. The said Pradip Kumar Das had been examined as P.W.-7 and Sri Das in his evidence also stated that he had scribed a complaint as per the statement of P.W.-1. It is not known as to what happened to the complaint scribed by a police officer at Kanksa P.S. It is surprising to note that the complaint, on the basis of which the present case had been started, was sent to Kanksa P.S. from Assansol South P.S. P.W.-1 never stated that he had gone to Assansol South P.S. at any point of time after the incident. It is also interesting to note that P.W.-18 who investigated the case, during his cross examination stated that there is no record to the effect that P.W.-1 had been brought to Kanksa P.S. from Ilambazar P.S., although P.W.-1 claimed that some police officer from Kanksa P.S. came to Ilambazar and took him to Kanksa P.S. 11. In view of the facts and circumstances stated above it remains a mystery as to what was the first F.I.R., under what circumstances it had been prepared and where it had been submitted by the P.W.-1. The delay in registering the case has not been also explained in any way. F.I.R. is the first check to find the credibility of the prosecution case and hence F.I.R. is the most valuable document on the basis of which a case has to stand upon. In the present case prosecution has failed miserably to prove such credibility of their case and as such the prosecution case should fail on that score alone. Learned Trial Court in the judgment did not pay any importance to the point and treated the inconsistencies stated above as a more technical issue and such a view is definitely wrong in law. 12. Next contention of Ms. Learned Trial Court in the judgment did not pay any importance to the point and treated the inconsistencies stated above as a more technical issue and such a view is definitely wrong in law. 12. Next contention of Ms. Gomes was that the Appellant had been illegally detained in Kanksa police station prior to his production before the court and during such illegal detention P.W.-1 had visited the police station and there was every probability of the investigating agency showing the Appellant to P.W.-1 as a culprit and hence the identification of the Appellant by the P.W.-1 during the T.I. Parade has no value in the case. She further argued that the statement, if any, made by the Appellant before the Magistrate during the T.I. Parade is not a confession under Section 164 Cr.P.C. and as such the statement is not admissible in evidence, at all. 13. To prove the guilt of the Appellant the prosecution relies upon the following sets of evidence. Firstly, that the P.W.-1 identified the Appellant in the T.I. Parade as the culprit and secondly, alleged discovery of some incriminating articles at the instance of the Appellant. 14. S.I. Asoke Kumar Lahiri (P.W.-9) in his evidence stated that he was posted at Ahamedpur police outpost at the relevant time and that on 06.03.1993 he located the truck involved in the case, having been parked by the side of Sukantapally Road and he seized the truck instantly by a seizure list and on the following day he found the Appellant and the accused Palash Sain moving suspiciously near to the truck trying for its’ sale and hence he arrested the Appellant and passed over the information to the O.C. Kanksa P.S. and thereafter he handed over the Appellant to the O.C. Kanksa P.S. So, according to P.W.-9, the Appellant was arrested on 07.03.1993. From the L.C.R’s. it is found that the Appellant had been produced in the Court on 09.03.1993. There is no explanation as to why the Appellant was not produced in the Court immediately after arrest on 07.03.1993 or on the following day. P.W.-1 stated that he kept contact with the police station as his son was not recovered after the incident and subsequently he identified the dead body of his son. In the circumstances, the probability of the P.W.-1 seeing the Appellant in the police station cannot be ruled out totally. P.W.-1 stated that he kept contact with the police station as his son was not recovered after the incident and subsequently he identified the dead body of his son. In the circumstances, the probability of the P.W.-1 seeing the Appellant in the police station cannot be ruled out totally. Hence the identification of the Appellant by the P.W.-1 during T.I. Parade loses its value. From the T.I. Parade report (Exhibit-9). It is found that the Appellant made a statement before the Magistrate in which he admitted having taken a part in the incident in question. However, such a statement, not recorded under Section 164 Cr.P.C. after statutory cautions etc., cannot be treated as a confession and as such not admissible in evidence, but learned Trial Court attached a lot of value to such statement which is not permissible in law. 15. The I. O. of the case, i. e., P.W.- 18 stated that he had recovered a dagger from the bank of river Kanur, with the ‘help’ of the Appellant and accordingly he had seized that dagger as the weapon of offence. P.W.- 18 did not mention any date of such alleged seizure. P.W.- 3 was a witness to that seizure and he stated that the said seizure was made on 05.03.1993. He had not identified the Appellant during his evidence as the person who was with the police during the alleged seizure. He had not also identified the dagger allegedly seized and placed before him, to be the dagger seized in his presence. The other witness of the said seizure was P.W.-12 but P.W.-12 had not supported at all the seizure as claimed by P.W.-18. Prosecution did not try to obtain any clarification from P.W.-3 regarding the date of the seizure either by declaring him ‘Hostile’ or by re-examination. So the contradiction regarding the date of the seizure between P.W.-3 and P.W.-18 remains on record. It should be mentioned here that the Appellant was illegally detained in the police station as discussed earlier. In the circumstances the date of the alleged seizure is very important. The description of the dagger allegedly seized at the instance of the Appellant and the one sent to F.S.L. for examination does not match. Learned Counsel for the Appellant further pointed out that no discovery statement has been proved in the case. In the circumstances the date of the alleged seizure is very important. The description of the dagger allegedly seized at the instance of the Appellant and the one sent to F.S.L. for examination does not match. Learned Counsel for the Appellant further pointed out that no discovery statement has been proved in the case. So the alleged seizure is not covered by Section 27 of the evidence Act. In reply, learned Counsel for the State argued that recording of a discovery statement is not mandatory and he cited a decision reported in 2005 (1) CHN 305 Bablu Mahanto – V- State of West Bengal on the point. It should be further noted that according to the P.W.-18 the dagger in question had been seized from the bank of the river Kanur but in the seizure list (Exhibit- 4/2) it is noted that the dagger had been recovered from a bush in a corner of the bridge over the river Kanur. So, due to the aforesaid reason it cannot be said that the alleged seizure has been proved beyond all shadows of doubt. Moreover the link between the alleged murder and the dagger has not been proved. 16. According to P.W.-1, one of the accused persons had hit on his head by an iron rod, sprayed chilli powder in his eyes, stabbed his son also inside the truck and thereafter the accused persons together tied the hands and legs of P.W.-1 and his son, packed them inside two sacks and thereafter threw P.W.-1 in the bed of the river Kanur from above a bridge on the road. But no medical report showing any injury on the person of P.W.-1 has been produced in the case. That apart, it is very difficult to believe that the accused persons, being three only in numbers could over power P.W.-1 and his son and committed all the aforesaid acts and that too inside the cabin of a running truck. 17. Learned Counsel for the Respondent/State had no satisfactory explanation to the anomalies, absurdities and inconsistencies in whole of the prosecution case, discussed above. 18. There were three accused persons in the case and according to the prosecution, all those three accused persons with a common intention committed the aforesaid offences. 17. Learned Counsel for the Respondent/State had no satisfactory explanation to the anomalies, absurdities and inconsistencies in whole of the prosecution case, discussed above. 18. There were three accused persons in the case and according to the prosecution, all those three accused persons with a common intention committed the aforesaid offences. Learned Trial Court found the Appellant only guilty of the offences and acquitted the other two accused persons from the case for want of any material against them. The fact being so, the necessary element of “common intention” is found not proved in the case. So finding the Appellant guilty with the aid of Section 34 I.P.C. is wrong in law. 19. Having thus considered all the facts and circumstances of the case and the evidence on record there upon, we have no hesitation to hold that the prosecution failed miserably to prove any of the charges against the Appellant beyond all reasonable doubts. The judgment of conviction and order of sentence passed by the learned Trial Court are wrong in law. In the circumstances, question of enhancement of sentence does not also arise in the case. The appeal is, therefore, allowed. The judgment of conviction and order of sentence passed in the case against the Appellant are set aside. The Appellant is found not guilty of all the charges framed in the case and he is acquitted. The Appellant be set at liberty at once, if not wanted in any other case. The Rule for enhancement of sentence is discharged. 20. Department to take steps under Section 388, Cr.P.C.