JUDGMENT: Patherya, J: This appeal is directed against the judgment and order dated 30th July, 2004 and 31st July, 2004, passed by the Additional District & Sessions Judge, Fast Track 1st Court Suri, Birbhum, in Session Trial No.5 of 2003 arising out of Sessions Case No.40 of 2003 convicting thereby the accused appellant under Sections 302/201 IPC and sentencing him to suffer rigorous imprisonment for life with a fine of Rs.5000/-, in default to suffer rigorous imprisonment for five months more for the offence under Section 302 and further directed him to suffer rigorous imprisonment for seven years with a fine of Rs.1000/- in default to suffer further rigorous imprisonment for one month for the offence committed under Section 201 IPC. Both the aforesaid sentences were to run concurrently. The case of the prosecution is that the body of one Hapija was found dead inside the canal near the culvert over the canal on 12th February, 2001 with fatal injuries on her body inflicted by a sharp weapon. An F.I.R. was filed by the mother of the victim girl (P.W.1) on 12th February, 2001 at 16.45 hours. The said F.I.R. was written by P.W.6 (scribe) and bore L.T.I. of P.W.1, the F.I.R. maker. On the basis of the said F.I.R. Sainthia Police Station Case No.11 dated 12th February, 2001 under Section 302/201 of the Indian Penal Code was started. Thereafter, investigation was undertaken, inquest made and postmortem conducted. After completion of investigation chargesheet was issued and charges framed under Sections 302/201 of IPC. The said charges were read out and explained to the accused/appellant who pleaded not guilty and claimed to be tried. In all twelve witnesses were examined by the prosecution. The accused appellant was also examined under Section 313 of the Criminal Procedure Code and on consideration of the oral evidence so also the documents, the order of conviction was passed. Being aggrieved by the said order of conviction this appeal has been filed and order sought. Counsel for the accused appellant submits that there was no eyewitness to the said incident. There is no doubt that there was a love affair between the victim girl and the accused appellant. But that the accused appellant committed the offence has not been proved by the prosecution. Counsel for the accused appellant submits that there was no eyewitness to the said incident. There is no doubt that there was a love affair between the victim girl and the accused appellant. But that the accused appellant committed the offence has not been proved by the prosecution. This will be evident right from the filing of the F.I.R. on 12th February, 2001, as in the F.I.R. itself the name of Sk. Soleman as an F.I.R. accused person does not feature. Inquest was made and at the time of inquest also name of Sk. Soleman was not mentioned. All that was mentioned is the love affair between the victim girl and the accused appellant. Therefore, right from the beginning there was nothing to fix the accused appellant. In the postmortem report there is mention of injuries and undoubtedly the death was ante-mortem and homicidal in nature. The postmortem doctor in his evidence beyond the aforesaid, has not fixed the accused appellant with the guilt. P.W.1, mother of the victim girl is the F.I.R. maker. According to her on 28th Magh (11th February, 2001) at 12.00 noon the accused appellant came to her house and expressed his desire to marry the victim girl. She was not willing to give marriage to her daughter with the accused appellant without informing the villagers. The accused appellant had an objection to the said. This narration does not find mention in the F.I.R. There is also discrepancy in the time when the police came and the F.I.R. was written. According to P.W.1, the police came to the village at 4.00 p.m. and in the F.I.R. it was written at 10.00 p.m. On a reading of the F.I.R. it will appear that the F.I.R. was filed at 16.45 hours. Therefore, there is discrepancy in the time recorded in the F.I.R. and the evidence of P.W.1 (mother of the victim girl). This renders her evidence as not credible and ought not to be relied on. P.W.2, is the father of the victim girl. He too has corroborated the evidence of the mother vis-à-vis the recovery of the body of the victim girl. But as regards the proposal made by the accused appellant to marry his daughter, his evidence is nothing but hearsay as he heard the same from his wife. P.W.2, is the father of the victim girl. He too has corroborated the evidence of the mother vis-à-vis the recovery of the body of the victim girl. But as regards the proposal made by the accused appellant to marry his daughter, his evidence is nothing but hearsay as he heard the same from his wife. The wife, P.W.1 has not anywhere in her evidence stated that she informed the aforesaid to her husband (P.W.2). therefore, the credibility of the evidence of P.W.2 is doubted. From the evidence of P.W.2 another fact which emerges and is corroborated with the evidence of P.W.1 is that the accused appellant was arrested on 12th February, 2001 at 9.00 p.m. Although the time may differ by an hour, as P.W.1 has stated that it was 10.00 p.m. when he was arrested but the fact remains that the accused appellant was arrested on 12th February, 2001. The evidence of P.W.3 is not of much importance and need not be looked into. P.W.4 inhis evidence said that he was returning home along with Kholil from the house of Yunus Sk., but Kholil has not been examined. This is important, as it was P.W.4 who identified Soleman. According to P.W.4 three persons were coming near the tank known as ‘Shibgore’ when he was returning from the house of Yunus Sk. It was not possible for him to ascertain who the persons were so he questioned them and one of them disclosed his identity as Soleman. He was returning after visiting his elder sister’s house. He has further gone on to say that he could not see any other person besides Soleman. Although, he said he recognized only Soleman, despite that he questioned who one of the three was, to which he was told that the person was Soleman. Therefore, Soleman was not known to P.W.4. On being identified by Soleman himself, P.W.4 came to know Soleman, the accused appellant. In view of the aforesaid, the evidence of P.W.4 is also not credit worthy. P.W.5 is the recovery witness who recovered ‘hansua’, material exhibit-1. P.W.1 and P.W.2 have stated in their evidence that the accused appellant was arrested on 12th February, 2001 at 10.00 p.m and since then he was in police custody. In view of the aforesaid, the evidence of P.W.4 is also not credit worthy. P.W.5 is the recovery witness who recovered ‘hansua’, material exhibit-1. P.W.1 and P.W.2 have stated in their evidence that the accused appellant was arrested on 12th February, 2001 at 10.00 p.m and since then he was in police custody. The recovery took place after 2 to 3 days and from the seizure list it will appear that the recovery was made on 15th February, 2001 i.e., three days after the arrest of the accused appellant. P.W.5 identified material exhibit-1 by saying ‘this type of hansua’ when it was shown to him. The ‘hansua’ was not labeled though kept in a sealed cover. No recovery statement was also recorded, therefore, the recovery of the offending weapon is suspect. P.W.6 is the scribe and according to him the accused appellant confessed where the hansua was kept. It was on the basis of such confession that the hansua was recovered. He met the accused appellant when he was coming with the police with the said hansua. Therefore, his evidence cannot be accepted. But pertinently, P.W.6 has categorically stated that the accused appellant was arrested on the first day in the evening, when the police came to the village. P.W.7 is also a recovery witness, whose evidence is not believable, as it was the police, who told him that the accused appellant brought out the hansua from the pukur. P.W.8 is the seizure list witness and therefore, a formal witness. The confession about which he was spoken cannot be accepted at it was made in the presence of the police. P.W.9 is the formal witness, while P.W.10 is the postmortem doctor and all that he has stated is that due to injury the death of the victim girl occurred. Therefore, the death was ante mortem and homicidal in nature. Although, he has stated that the injury could have been caused only by a sharp weapon, he was not in a position to fix the guilt to the accused appellant. P.W.11 is also a formal witness, who has categorically stated that he was present at the time of inquest and that the accused appellant was arrested thereafter and taken to police station. P.W.12 is the Investigating Officer, who has spoken about the confession made to the police. P.W.11 is also a formal witness, who has categorically stated that he was present at the time of inquest and that the accused appellant was arrested thereafter and taken to police station. P.W.12 is the Investigating Officer, who has spoken about the confession made to the police. The confession cannot be accepted as it was made before the police and no step has been taken to have the same recorded before a Magistrate. Therefore, the confession is no confession in the eye of law. The recovery is also doubtful and the production of the accused appellant before the Court of the Sub-Divisional Judicial Magistrate on 16th February, 2001, evidences the role of the police in conducting the said investigation. It is only after the offending weapon was recovered, the alleged confession taken and seizure list prepared that the accused appellant was produced on 16th February, 2001 before the Sub-Divisional Judicial Magistrate. Therefore, this is a fit case for grant of acquittal to the accused appellant and to set aside the order of conviction. Counsel for the prosecution submits that there is no doubt that a relationship had cropped up between the victim girl and the accused appellant. In the F.I.R., the F.I.R. maker, P.W.1 (mother) has categorically stated that at 12.00 noon of 11th February, 2001 she was informed by the victim girl that the accused appellant had proposed marriage to her and that she would flee away after marrying him. This finds corroboration in the evidence of P.W.1, (mother) and in the evidence of P.W.2 (father) as told to him by P.W.1. P.W.2 has categorically stated that he heard all the aforesaid from P.W.1. It is true that in the F.I.R. it is the daughter who told the mother but in her evidence P.W.1 has stated that it was the accused appellant who told her. This will not defeat the case of the prosecution. In fact, the victim girl had told her mother that she would flee away with the accused appellant and there was resistance from the mother in getting the accused appellant and the victim girl married without informing the villagers. This resulted in the death of the victim girl and except for the hapless lover none could have committed the gruesome act. This resulted in the death of the victim girl and except for the hapless lover none could have committed the gruesome act. There is no doubt that the accused appellant was arrested on 12th February, 2001 at 10.00 p.m. and since then he was in judicial custody. It is on the basis of his confession that the recovery of the hansua was made. Non-recording of recovery statement under Section 27 of the Evidence Act will not warrant acquittal. At best, this could be a defective investigation and nothing more than that. P.W.4 while returning from the house of Yunus Sk. identified the accused appellant. In fact, it was the accused appellant who disclosed his identity. There is no reason to disbelieve him. While the accused appellant said that he was returning after visiting his elder sister’s house the defence has not produced the elder sister as witness. The confession made so also the recovery will point towards the guilt of the accused appellant. From the evidence of P.W.10, P. M. Dr. it is evident that injuries on the body of the victim girl were of such a nature that it would not indicate the death to be suicidal or accidental. Nature of death was homicidal and as the accused appellant was denied his love, the victim girl faced such a fate. Therefore, the order of conviction be upheld. Having considered the submissions of the parties there is no doubt that the victim girl was found dead in the dead of night between 11.30 to 12.00 on 12th February, 2001. Her body was recovered with injuries fatal enough to cause her death. From the records it appears that the F.I.R. was filed on 12th February, 2001 by the F.I.R. maker at 16.45 hours. The F.I.R. maker is none other than the mother of the victim girl and on the basis of the F.I.R. inquest was made. In the F.I.R. so also the inquest there is no mention of the F.I.R. maker suspecting the foul play by the accused appellant. The F.I.R. maker is none other than the mother of the victim girl and on the basis of the F.I.R. inquest was made. In the F.I.R. so also the inquest there is no mention of the F.I.R. maker suspecting the foul play by the accused appellant. From the postmortem report injuries are evident and the nature of demise is homicidal, but once again, to fix the accused appellant with the guilt of committing the offence one has to have more evidence than the F.I.R and the inquest or the postmortem doctor’s report and in this case one has to look in vain to find the existence of evidence which points towards the guilt of the accused appellant. It is true that the accused appellant and the victim girl developed an intimate relationship and each wanted marry the other. This will be evident from the evidence of P.W.1 (mother) who has stated that it was the accused appellant who proposed to marry the victim girl. In the F.I.R. what has emerged is that the victim girl informed P.W.1 (mother) of her intention to marry the accused appellant. This was resisted by the mother as she intended to give her daughter in marriage with the accused appellant only after informing the villagers. Therefore, there is a conflict in what has been stated in the F.I.R. and the evidence of P.W.1 (mother) as regards the person who proposed the marriage or sought to marry. P.W.1 has categorically stated that the police came to the village at 4.00 p.m. and complaint was written at 10.00 p.m. so also the accused appellant was arrested at 10.00 p.m. This finds corroboration from the evidence of P.W.2 too. But surprisingly, in the F.I.R. the time given is 16.45 hours of 12th February, 2001. This raises a pertinent question regarding the time of the F.I.R. 10.00 p.m or 16.45 hours. The arrest of the accused appellant took place at 10.00 p.m. on 12th February, 2001 but the accused appellant was not produced before the Court of the Sub-Divisional Judicial Magistrate, as required within 24 hours. In fact, on 15th February, 2001, the purported offending weapon (Mat Ext1) was recovered. There was a gap of 2 to 3 days from the date of arrest and recovery made. This recovery, according to counsel for the prosecution was made on the basis of the confession of the accused appellant. In fact, on 15th February, 2001, the purported offending weapon (Mat Ext1) was recovered. There was a gap of 2 to 3 days from the date of arrest and recovery made. This recovery, according to counsel for the prosecution was made on the basis of the confession of the accused appellant. This confession when looked into is no confession in the eye of law as it was made before the police and if such confession is correct, there is no reason for the Investigating Officer not to have the same recorded by a Magistrate which in this case has not been done. Therefore, the confession cannot be accepted and the recovery on the basis of such confession is also in doubt, more so, when no statement under Section 27 of the Evidence Act has been recorded. The evidence of P.W.6, as regards the confession cannot be accepted as he found police coming along with P.W.6 with the hansua. P.W.7’s evidence also cannot be accepted, as it was the police who told him about the recovery of hansua. Evidence of P.W.6 and P.W. 8 about the confession, in view of the aforesaid, cannot be accepted. The postmortem doctor’s evidence cannot be brushed away. He has stated about the injury caused but was not in a position to say who caused the injury. Therefore, his evidence cannot point to the guilt of the accused appellant. P.W.12 has spoken about the confession made to him but this, in view of the discussion above cannot be accepted. That leaves us with an important witness who is P.W.4. P.W.4, is a co-villager and on the night of 12th February, 2001 at about 11/11.30 p.m. found three persons coming while he was returning from the house of Yunus Sk. He could not identify any of these people. After putting a query to them he received an answer that the person coming was Soleman. Therefore, the accused appellant was not identified by P.W.4 independently. P.W.4 identified the accused appellant only when he was told by accused appellant of his identity. It is unbelievable that a person of the same village will not know each other. It is not the case of P.W.4 that he did not know the accused appellant. He said that he focused the torch on the persons coming and even then he was unable to identify the accused appellant. It is unbelievable that a person of the same village will not know each other. It is not the case of P.W.4 that he did not know the accused appellant. He said that he focused the torch on the persons coming and even then he was unable to identify the accused appellant. He identified the accused appellant only after disclosure of identity by the accused appellant. Therefore, there is no identification of the accused appellant independently by P.W.4. As P.W.4 did not identify the accused appellant independently, the accused appellant will get the benefit of doubt. Surprisingly, although, Kholil accompanied P.W.4, Kholil was not examined by the prosecution. Last but not the least, the arrest of the accused appellant took place on 12th February, 2001 and for 2 to 3 days he was kept in police custody. Recovery of material exhibit-1 was on 15th February, 2001 whereafter the seizure list was prepared. It was only thereafter on 16th February, 2001 the accused appellant was produced before the Court of Sub-Divisional Judicial Magistrate. This act of the Investigating Officer is questionable. Another question which arises, is why the recovery of offending weapon took so long, if there was a confession by the accused appellant and why the confession was not recorded by the Magistrate. This doubt which arises entitles the accused appellant to get the benefit of doubt, which in this case, without any hesitation we do grant to him. For all the aforesaid reasons, therefore, the order of conviction dated 30th July, 2001 and 31st July, 2001 are set aside and the appeal stands allowed and disposed of. The accused appellant was granted bail on 5th September, 2006. In view of the judgment passed this day, the accused appellant is released from the bail bond. Articles seized, if any, be destroyed after the period of appeal. Let the LCR be sent to the Trial Court forthwith. Criminal Section is directed to supply urgent photostat certified copies of this judgment to the parties, if applied for, upon compliance of all necessary formalities. I agree.