JUDGMENT : Ashim Kumar Roy, J. Babu Molla (the appellant in CRA No. 385/2015) and his mother Manjuma Bibi (appellant in CRA No. 449/2015) and three of their relations were placed on trial in a sessions trial before the learned Additional District and Sessions Judge, 4th Court, Berampore, Murshidabad to answer charges for the offences punishable under section 364/34 IPC and under section 302/34 IPC. During the pendency of the trial the accused Gulamajan Molla, the father of the appellant Babu Molla expired and the case against him was filed. In the said trial both Babu Molla and his mother Manjuma Bibi were convicted under section 302/34 IPC. While Babu Molla was sentenced to death, his mother Manjuma Bibi was sentenced to suffer imprisonment for life and to pay a fine with default clause. However, other two accuseds Rijaul Molla and Firoja Bibi were acquitted. 2. The order of conviction and sentence passed against Babu Molla gave rise to death reference 4 of 2013 and simultaneously the said judgment being challenged by Babu Molla and his mother Manjuma Bibi in two separate appeals CRA No. 805 of 2013 (Babu Molla-appellant) and CRA No. 179 of 2014 (Manjuma Bibi-appellant) were registered. 3. The said death reference and the aforesaid two appeals came up for hearing before a division bench of this High Court, where one of us was a party. 4. This High Court by a judgment and order passed on February 16, 2015 set aside the order of conviction and sentence and remitted back the case to the trial court for their retrial from the stage of the examination of the accuseds under section 313 Cr.P.C. The order of conviction and sentence was set aside essentially on the ground the examination of the accuseds under section 313 Cr.P.C. was not in accordance with law and the incriminating materials against the accuseds appearing from the evidence on record and were taken into consideration by the Trial Court to hold them guilty were not referred to them. 5. Following the aforesaid order passed by this court both Babu Molla and his mother Manjuma Bibi were re-examined afresh under section 313 Cr.P.C. Once again the trial court found Babu Molla guilty under section 302/34 IPC and he was sentenced to death. Whereas, Manjuma Bibi was found guilty on three counts and convicted under section 302/34 IPC, 364/34 IPC and under section 201 IPC. Whereas, Manjuma Bibi was found guilty on three counts and convicted under section 302/34 IPC, 364/34 IPC and under section 201 IPC. She was sentenced to suffer imprisonment for life for her conviction on the first count and then to suffer rigorous imprisonment for eight years and seven years respectively on rest two counts. On all counts, the appellant Manjuma Bibi was sentenced to pay fine with default clause. 6. The trial Judge submitted the reference before this court for confirmation of sentence of death, which gives rise to the present death reference case no. 2 of 2015 and the order of their conviction being challenged by Babu Molla and his mother Manjuma Bibi in two separate statutory appeal the same give rise to CRA No. 385 of 2015 and CRA No. 449 of 2015. Since the death reference and the aforesaid two criminal appeals were arising from the self-same judgment and order, both were taken up for hearing together and are now disposed of by this common judgment and order. 7. The prosecution case in short is as under. On April 6, 2009, from morning the victim boy, Sohel, aged about five years, who was playing with his friends in front of their house, found missing. The parents and other members of his family and the villagers searched different places but he could not be traced out. A missing diary was lodged with the local police station. Thereafter on April 8, 2009 from one Sifon Molla, a friend of the victim, witnesses came to learn that when both the child were playing, the accused Babu Molla called them inside his house and they went there. The victim was asked to stay but Sifon to leave. The aforesaid incident was then reported to the police station and at night police came and searched the house of the accused persons, but could not trace out the child. The villagers were, however, asked by the police to keep watch over the house. The witnesses had a strong suspicion against the appellants and other members of their family behind the missing of the victim boy because they thought, since Babu Molla was blind, they might have kidnapped him for his eyes that may be implanted on Babu Molla after the boy was killed. The witnesses had a strong suspicion against the appellants and other members of their family behind the missing of the victim boy because they thought, since Babu Molla was blind, they might have kidnapped him for his eyes that may be implanted on Babu Molla after the boy was killed. On the next day at the early morning one of the witnesses PW/4 Hasina, when was going to attend nature's call, found the appellant Manjuma Bibi was throwing a yellow colour sack in a doba. Seeing this, the witness raised voice, when local people came and police was informed. Police then recovered the said sack from the doba and on opening the dead body of the victim Sohel was found with both of his eyes uprooted and throat slit. Both the appellants with the other members of their family were arrested. After recovery of the dead body, the police once again searched the house of the appellants/convicts and noticed marks of blood on the wall of the room of the appellant Babu Molla and the police seized blood strain scrap from the wall as also an injection syringe and a bottle. A few days after, pursuant to the statement of the appellant/convict Babu Molla a knife was recovered from an abandoned privy of house of the accused persons. 8. This is a case entirely rests on circumstantial evidence. In a case of this nature, a duty is cast on the prosecution to prove each piece of circumstances, they proposes to use against the accused beyond all reasonable doubts. Each link in the chain of circumstances not only to be proved, independently, beyond any shadow of doubt but the chain of circumstances must be completed, leading to one and only one conclusion that it is the accused persons and none else is responsible for commission of the crime. Each piece of circumstance must be compatible with the guilt of the accused and cannot be explained with his innocence. 9. During the trial, the prosecution examined total 17 witnesses. However, the defence examined none. Now, from the trend of cross-examination and the reply given by the appellants in their examination under section 313 Cr.P.C., it appears the defence case is one of innocence and false implication. 10. 9. During the trial, the prosecution examined total 17 witnesses. However, the defence examined none. Now, from the trend of cross-examination and the reply given by the appellants in their examination under section 313 Cr.P.C., it appears the defence case is one of innocence and false implication. 10. Following circumstances were relied upon by the prosecution to prove the charge against the appellant, (a) On April 6, 2009 in the morning the victim boy Sohel was playing in front of his house with a friend and thereafter he was found missing. (b) On the next day, over microphone, a public announcement was made in the village about the missing of the boy, still he could not be found. (c) On the day thereafter, one Sifon Molla, who was playing with the victim boy, informed the witnesses, at the time they were playing, the appellant/convict Babu Molla called both of them in their house and while victim boy was asked to stay there, he left. (d) Thereafter being suspicious about the involvement of Babu Molla and his relations behind Sohel's missing, since, Babu Molla was blind and his family was searching for eyes to be implanted on him, the police was informed. They came in the village and searched the house of the appellant/convict, but the missing boy could not be found out. (e) On the next day in the early morning villagers/witnesses were attracted by a hue and cry raised by PW/4 Hasina Bibi, a co-villager and when they rushed to the spot, they were informed that appellant/convict Manjuma Bibi, the mother of Babu Molla, was found throwing a yellow sack in a nearby doba. (f) Being suspicious, the police was immediately informed. The police arrived at the spot and recovered the said yellow sack from the doba and found the dead body of victim, with both of his eyes uprooted. (g) Thereafter, the house of Babu Molla was searched and the wall of his room was found smeared with blood. (h) The police seized the scrapping of the blood stain from the mud wall and also a glass made syringe, a bottle having suspected blood and some blood stained scrap from the mud wall. (i) The photographs of the blood stained wall was also taken and exhibited during the trial. (h) The police seized the scrapping of the blood stain from the mud wall and also a glass made syringe, a bottle having suspected blood and some blood stained scrap from the mud wall. (i) The photographs of the blood stained wall was also taken and exhibited during the trial. (j) After arrest of Babu Molla and on being led by him police also seized one knife, which was concealed in an abandoned latrine belonging to the accused persons. 11. However, the trial Judge took into consideration the following circumstances as the incriminating circumstances appearing in the evidence against the convict/appellant Babu Molla and sought for his explanation with regards to the same during his examination under section 313 Cr.P.C. (a) The witness PW/1 Roshan Biswas, PW/2 Ayub Biswas, PW/3 Subera Bibi, PW/5 Jinnat Biswas and PW/7 Asmat Mondal all suspected the appellants/convicts Babu Molla, Manjuma Bibi and other members of their family for killing the victim Sohel Biswas and uprooting his eyes, since Babu Molla who was blind needed eyes for implantation and for regaining his visions. (b) According to the PW/3 Subera Bibi and PW/7 Asmat Mondal, the appellant/convict Babu Molla and their family was in search of eyes, which they needed for him. (c) It was the evidence of the PW/5 Jinnat Biswas they uprooted his eyes in anticipation of transplanting those uprooted eyes into the eyes of Babu Molla. (d) In presence of the PW/10 and PW/11 police seized some blood stained soil and a glass made of syringe from the house of the appellants/convicts. (e) During investigation police also took the photograph of blood stained wall of the room of the appellant/convict Babu Molla, where the victim was killed. (f) After arrest the appellant/convict Babu Molla was brought to his house by the police and at that time he recovered a knife from their abandoned latrine and subscribed his signature on the seizure list. 12. Besides above, the following questions were put to the accused/appellant Manjuma Bibi. (a) According to the witness PW/Roshan Biswas, she was involved in kidnapping victim Sohel Biswas and killed and uprooted his eyes. 12. Besides above, the following questions were put to the accused/appellant Manjuma Bibi. (a) According to the witness PW/Roshan Biswas, she was involved in kidnapping victim Sohel Biswas and killed and uprooted his eyes. (b) The appellant/convict Manjuma Bibi was found throwing a yellow sack in the doba of one Alimuddin, a co-villager and hearing a cry raised by PW/4 Hasina Bibi, the villagers rushed to the spot, police was informed and after the said yellow sack was lifted from water, inside the sack, the dead body of the victim Sohel Biswas was found with both of his eyes and nose uprooted. (c) A violent injury mark was also found on the throat of the victim. (d) The statement of PW/4 Hasina Bibi that she saw the appellant/convict Manjuma Bibi to throw a yellow sack in the doba of Alimuddin, a co-villager and when the said sack was lifted, the dead body of the victim Sohel was found, was recorded before a judicial Magistrate under section 164 Cr.P.C. (e) According to the PW/5 Jinnat Biswas, the eyes of Sohel were uprooted so that the same can be transplanted on Babu Molla and he could see again. 13. The learned trial court having reached to its conclusion that the following circumstances have been proved against the appellant/convict held them guilty of the offences with which they were charged as also under section 201 IPC. (a) On April 6, 2009, the victim boy Sohel Biswas was found playing with his friend Sifon Molla and thereafter was found missing. (b) A missing diary was lodged on April 6, 2009 itself. (c) On April 8, 2009, at about midnight one Rahimuddin Sk lodged an FIR for kidnapping of the victim boy by the appellant/convict and their other relations. (d) Immediately after the lodging of the FIR, the house of the accused persons was searched but the victim boy could not be traced out. (e) At the dawn of April 9, 2009, PW/4 Hasina Bibi found the appellant/convict Manjuma Bibi was throwing a yellow colour sack in the doba belonging to one Alimuddin, a co-villager. (f) Having seen the appellant/convict Manjuma Bibi to throw a yellow colour sack in the doba of Alimuddin, PW/4 raised hue and cry and many villagers being attracted by such hue and cry collected there. (f) Having seen the appellant/convict Manjuma Bibi to throw a yellow colour sack in the doba of Alimuddin, PW/4 raised hue and cry and many villagers being attracted by such hue and cry collected there. (g) The police arrived there lifted the bag from the doba and the dead body of the victim boy was found with his eyes uprooted and throat slits. (h) On the same day the Investigating Officer of the case seized one glass made syringe and blood stained mud from the house of the appellant/convict. (i) The photographs of the wall of the room of the appellant/convict Babu Molla smeared with blood was also taken. (j) The post-mortem doctor PW/16 found that victim was killed by throat slit and his eyes was uprooted. According to his opinion, the victim suffered a homicidal death. (k) The appellant/convict during his police custody furnished an information to the police about the place where material Ext.-1, the knife, was concealed and the same was seized in presence of independent witnesses. 14. Mr. Sekhar Basu, Sr. Advocate, who on our request agreed to appear in this matter as amicus curiae referred to the following points for our consideration. (a) Although none of the witness claimed that they have any direct knowledge that the victim boy Sohel before his missing was playing with one Sifon Molla, still the trial court held that there was evidence to that effect. Even assuming, it was fact, still such evidence has no value far less any probative value, to connect the appellants/convicts with the commission of the alleged offence. (b) According to the prosecution, the motive behind killing of the child was to obtain his eyes for transplantation of the same on the appellant/convict Babu Molla, who was blind by both eyes and the said appellants/convicts and their family members were for searching of the same, however, each one of the witnesses only disclosed their strong suspicion without anything more. Suspicion however strong cannot take place of proof. (c) According to the prosecution's own case on the very night immediately after lodging of the FIR, the house of the appellants/convicts was searched but nothing incriminating was discovered. Suspicion however strong cannot take place of proof. (c) According to the prosecution's own case on the very night immediately after lodging of the FIR, the house of the appellants/convicts was searched but nothing incriminating was discovered. (d) There was a gap for about 7 hours between the recovery of the dead body and search of the house of the appellant/convict, when one glass made syringe bottle and blood stained scrap from mud wall was seized by the police, and there was no explanation for such unusual gap. (e) On chemical analysis by FSL no human blood was detected on those items. (f) On the night previous to the day of the discovery of the dead body, in spite of thorough search of their house, nothing suspicious was detected. (g) According to PW/4 Hasina Bibi, she saw the appellant/convict Manjuma Bibi to throw a sack in a doba and from that the dead body of the victim was recovered. It appears from evidence on record that the said doba was surrounded by many houses but no resident was examined during the trial. (h) The evidence of PW/4 connected appellant/convict Manjuma Bibi with an offence of causing disappearance of evidence of murder but during the trial she was not charged under section 201 IPC. (i) Without a charge being framed under section 201 IPC, she was still convicted thereunder by the trial court, holding that an offence punishable under section 201 IPC is a minor offence of section 302 IPC. (j) No evidence was forthcoming that the scrap of mud obtained from the wall of the room of the accuseds and the glass syringe recovered from their house were stained with human blood. (k) The appellant/convict Babu Molla, admittedly is blind by both eyes, therefore, his involvement in the commission of the actual crime is suspicious. (l) It is also suspicious that he would either himself conceal the offending weapon or has seen concealment by another, as also his leading the police to discover the same. 15. The learned counsel appearing on behalf of the appellant/convict only reiterated what have been submitted by the amicus curiae Mr. Basu. It is claimed that the appellants/convicts are innocent and have been falsely implicated by some motivated persons and they should be acquitted. 16. On the other hand the learned Public Prosecutor vehemently opposed and resisted this appeal. 15. The learned counsel appearing on behalf of the appellant/convict only reiterated what have been submitted by the amicus curiae Mr. Basu. It is claimed that the appellants/convicts are innocent and have been falsely implicated by some motivated persons and they should be acquitted. 16. On the other hand the learned Public Prosecutor vehemently opposed and resisted this appeal. He contended that admittedly the appellant/convict is blind of both eyes and he and his family members therefore requiring eyes for transplantation in place of damaged eyes and the defence during the lengthy cross-examination of the witnesses never able to shatter those witnesses and thus it cannot be said the prosecution has failed to prove the motive behind the crime. He further submitted that from the house of the appellants/convicts the blood stained glass syringe and bottles were recovered and the walls were found to be smeared with human blood and for that no explanation is forthcoming from the side of the appellants/convicts, which clearly points out their guilt. He then vehemently contended the facts that the appellant/convict Manjuma Bibi, the mother of the appellant/convict Babu Molla was found throwing a sack in a doba and from that sack the dead body of the victim boy with his eyes uprooted was found coupled with the fact after arrest the appellant/convict Babu Molla furnished an information to the police and led the police party to recover the offending weapon "a knife" clearly proved their guilt and their conviction is fully justified. He, however, submitted this is a case of circumstantial evidence and the appellant/convict Babu Molla is blind of both eyes, thus this is not a case of capital punishment. 17. Heard the learned counsels on behalf of the parties. In support of their respective submissions, the learned counsel for the appellants/convicts and the learned Public Prosecutor cited the following case laws, Case law referred by the appellants/convicts:- Nagendra Bhakta v. Emperor reported in AIR 1934 Cal 144; Upendra Chandra Poddar and others v. Emperor reported in AIR 1941 Cal 456; Nagaraj v. State represented by Inspector of Police, Salem Town, Tamil Nadu reported in (2015) 2 SCC (Cri) 724. Case law referred by the Public Prosecutor:- Shambhu Nath Mehra v. State of Ajmer reported in AIR 1956 SC 404 ; State of Maharashtra v. Suresh reported in 2000 SCC (Cri) 263; State of W.B. v. Mir Mohammad Omar and others reported in (2000) 8 SCC 382 ; Ezhil v. State of Tamil Nadu reported in AIR 2002 SC 2017 ; Geejaganda Somaiah v. State of Karnataka reported in AIR 2007 SC 1355 . 18. The victim boy suffered a homicidal death and both of his eyes were uprooted was proved beyond all reasonable doubt by the evidence of PW/15, the Autopsy Surgeon. During post mortem, a cut injury on the frontal portion of the neck 4 inch x 3 inch x 3 inch was found and missing of both the eyes was also noticed. Except, suggesting the PW/15 that his opinion was not correct nothing was brought on record to demolish the credibility of this witness. We have carefully gone through the evidence of PW/15 and find no reason to differ him. We further find during his cross-examination the witness disclosed that on 9.4.2009, when he was holding the post mortem, the decomposition started and in all normal cases rigor mortis finished after 48 to 72 hours which takes us near to the time of missing of the victim boy, that part of his evidence went unchallenged. 19. Now the only question we have to adjudicate whether the guilt of the accuseds/appellants has been proved beyond all reasonable doubt. It is true that even in a case based on circumstantial evidence the motive behind the crime is not always needed to be established by the prosecution, when there are enough other incriminating materials. However, when any specific motive is attributed by the prosecution, the same is always required to be proved. The prosecution witnesses only expressed their doubt that the appellants/convicts and their family members were searching for eyes that be implanted on the appellant/convict Babu Molla and no further tangible material was brought in the form of evidence during the trial to show that the appellants/convicts and their family members were in search of eyes for the blind Babu Molla. The prosecution may not have established the motive but for that it cannot be said that the prosecution case failed. 20. The prosecution may not have established the motive but for that it cannot be said that the prosecution case failed. 20. We however on close scrutiny of the testimonies of the witnesses do not find that anyone of them had any direct knowledge that the deceased child Sohel Biswas, before his missing was playing with one Sifon Molla. Even accepting that part of the prosecution case, still the same by itself neither can be considered as a circumstance remotely suggesting the appellants/convict's involvement in the commission of the offence nor a link in the chain of circumstances. It further be noted the boy Sifon Molla was not examined on the claim that he being a relation of the appellants/convicts was gained over. However, law does not permit the prosecution to decline examination of any witness on the mere claim that witness was gained over. In such a situation the witness ought to be examined and then if he did not support the case of the prosecution, he be declared hostile. 21. However, the most crucial circumstance in this case was brought on record by the prosecution, examining PW/4 Hasina Bibi. According to her, 3 days after the missing of the victim boy Sohel, at around dawn, while she was going to her privy, she found appellant/convict Manjuma Bibi, carrying a yellow sack in her hands and then to throw the same in a doba situated adjacent to their house and belonging to Alimuddin. Seeing that she raised alarm when villagers collected there and police was called. The police after coming to the spot lifted the sack from the doba and opening the same, the dead body of the victim with his both eyes uprooted and slit throat, was found. She identified the appellant/convict Manjuma Bibi during the trial. The evidence of this witness was also recorded under section 164 Cr.P.C. The defence although cross-examined her at length with reference to her such evidence but in spite of its best efforts could not able to impeach her credit. No infirmities in her evidence also could be highlighted. She identified the appellant/convict Manjuma Bibi during the trial. The evidence of this witness was also recorded under section 164 Cr.P.C. The defence although cross-examined her at length with reference to her such evidence but in spite of its best efforts could not able to impeach her credit. No infirmities in her evidence also could be highlighted. We further find while the appellant/convict Manjuma Bibi was examined under section 313 Cr.P.C., a specific question was put to her with reference to the evidence of PW/4 that she saw her throwing a yellow colour sack in the doba of Alimuddin and from that sack subsequently the dead body of the victim was recovered. In reply to the said question the appellant/convict Manjuma Bibi claimed to be innocent and the allegations were false. 22. Undoubtedly, as the law stands, in every criminal case it is for the prosecution to prove the guilt of the accused in the trial. However, in every crime there are certain facts which are exclusively within the special knowledge of the accused persons i.e. those facts, which are pre-eminently and exceptionally within his or her knowledge and it is almost impossible for the prosecution to prove such facts. In the case, at hand, it is exclusively within the special knowledge of the appellant/convict Manjuma Bibi how the dead body of Sohel Biswas came to her hands, which, she was seen to have been carrying in a sack and then to throw in the doba of Alimuddin by the PW/4 Hasina Bibi and it was she only who can explain it. When in a criminal case, any person is found in his/her possession, dead body of any victim, who suffered a homicidal death, there may be three possibilities. One, is that it was not she or he but someone else had killed the victim but to screen the real offender he or she tried to remove and conceal the corpse. Second, may be it was not known to him or her, who was the real offender but in a peculiar situation, he or she came in contact with the corpse and on a reasonable apprehension that may arouse a strong suspicion either against him or her or against someone close to them and for that simple reason he or she tried to dispose of the subject matter of offence surreptitiously. But, in absence of above two possibilities and when the dead body which is the subject matter of a murder was found in the possession of the accused is proved beyond all reasonable doubts by the prosecution, the failure of the accused to explain as to how the same came into his or her hands, third, possibility arises, that is, he or she is the killer or involved in the crime and is a strong incriminating circumstance against him or her pointing his or her guilt towards the commission of the offence, inconsonance with the provisions of section 106 of the Evidence Act. 23. In this case the recovery of blood stained syringe from the house of the appellant/convict Manjuma Bibi is another circumstance goes against her also the presence of blood stain on the mud wall of their house. Having regard to above, we do not find any wrong in conviction of the appellant/convict Manjuma Bibi for being involved in the commission of the murder of the victim boy. 24. So far as her conviction under section 201 IPC is concerned, although no charge was framed thereunder, nevertheless, the trial court convicted her under section 201 IPC holding that the same is a minor offence punishable under section 302 IPC. Amicus curiae, Mr. Basu relying upon two very recent decisions of the Apex Court, in the case of Anil Alias Raju Namdev Patil v. Administration of Daman & DIU, Daman and another reported in (2006) 13 SCC 36 and Bhimanna v. State of Karnataka reported in (2012) 9 SCC 650 , raised a question when the basic elements of the offence punishable under section 302 IPC and section 201 IPC are completely distinct and different, it is completely absurd to suggest offence punishable under section 201 IPC is a minor offence of the offence punishable under section 302 IPC. Still on the face of the decision of a five-Judges Bench of the Hon'ble Supreme Court in the case of Kalawati and another v. The State of Himachal Pradesh reported in AIR 1953 SC 131 , we are unable to agree with the contention of the learned amicus curiae. In this regard it would be sufficient to refer the observation of the Apex Court, in paragraph 22 of the said decision. Which is quoted below. It was urged for her by Mr. In this regard it would be sufficient to refer the observation of the Apex Court, in paragraph 22 of the said decision. Which is quoted below. It was urged for her by Mr. Mathur that as she was acquitted of this offence by the Judicial Commissioner, and as there has been no appeal by the Government against the acquittal, she cannot now be convicted of the same by this Court. This argument proceeds on a fallacy. Section 201 is not restricted to the case of a person who screens the actual offender, it can be applied even to a person guilty of the main offence, though as a matter of practise a court will not convict a person both of the main offence and under section 201. The Judicial Commissioner acquitted Kalawati of the offence under section 201 for which she was convicted by the Sessions Judge, only because he thought that the main offence itself, namely, murder, was brought home to her. But if we think for the reasons given above that it would not be safe to convict her of the main offence the acquittal is no legal impediment to her conviction under section 201. It was held by the Privy Council in Begu v. Emperor, 52 Ind. App. 191 (P.C.) that in a charge of murder under section 302 a conviction under section 201 without a further charge being made was warranted by the provisions of section 237, Criminal Procedure Code If Kalawati had been acquitted of an offence under section 201 independently of the charge of murder against her, it would have been a different matter. But as her acquittal is so intimately related to the charge of the main offence, and as it took place only for the reason that she was held guilty of murder, there is no bar to the restoration of the conviction under section 201. Sub-section 2 of section 221 Cr.P.C. corresponds to section 237 Cr.P.C., 1998 and this provision applies to a case when from the evidence leads by the prosecution, it becomes doubtful which particular offence has been committed. In the aforesaid case the Hon'ble Supreme Court approved the view expressed by the privy council in Begu v. Emperor, 52 Ind. App. Sub-section 2 of section 221 Cr.P.C. corresponds to section 237 Cr.P.C., 1998 and this provision applies to a case when from the evidence leads by the prosecution, it becomes doubtful which particular offence has been committed. In the aforesaid case the Hon'ble Supreme Court approved the view expressed by the privy council in Begu v. Emperor, 52 Ind. App. 191 (P.C.) that where it was held with the aid of section 237 Cr.P.C., it would be lawful for a court to convict an accused for an offence under section 201 IPC in absence of any charge being framed thereunder when the accused in the same trial, was charged under section 302 IPC for a murder. Be that as it may, the trial court convicted the appellant/convict Manjuma Bibi both for an offence punishable under section 302 IPC and section 201 IPC. However she incurred a conviction under section 201 IPC, since the trial court was of the view that same is a minor offence to an offence punishable under section 302 IPC. Now, on the face of the decision of the Hon'ble Apex Court in the case of Kalawati and another v. The State of Himachal Pradesh (supra), that an accused can be well convicted under section 201 IPC even in absence of any charge thereunder, when he or she tried for an offence punishable under section 302 IPC, no further debate in this regard is at all called for. Only thing now left for our consideration whether it be lawful or just for a court after convicting an accused for a higher offence still to convict him or her for a lesser offence. In other words, whether it would be lawful to convict a person and sentence him or her thereunder, when he or she already convicted and sentenced for an aggravated or for a grave offence. In our opinion and in the light of the decisions referred herein above in the case of Kalawati and another v. The State of Himachal Pradesh (supra), where the Apex Court held as a matter of practise a court will not convict the accused for both the main offence and under section 201 IPC. We therefore, set aside the order of conviction of the appellant/convict Manjuma Bibi under section 201 IPC. 25. This now brings us to the case of the appellant/convict Babu Molla. We therefore, set aside the order of conviction of the appellant/convict Manjuma Bibi under section 201 IPC. 25. This now brings us to the case of the appellant/convict Babu Molla. It is the specific case of the prosecution that Babu Molla is completely blind of both eyes and motive behind the killing of the victim boy was to transplant the eyes so as to enable him to regain his vision. As already stated there is no direct evidence against him. So far as the most crucial circumstance of this case that the co-appellant/convict Manjuma Bibi, the mother of the appellant/convict Babu Molla, was found carrying a sack and throwing it in a doba and from the said sack the dead body of the victim Sohel Biswas was recovered, the same ought to be excluded from our consideration against him for the simple reason no question was put to him as regards to such circumstance, when he was examined under section 313 Cr.P.C. In our opinion, this is one of the very incriminating circumstances towards the commission of the offence. Therefore, undoubtedly, not questioning the appellant/convict Babu Molla with reference to that has certainly caused a serious prejudice to him. In this regard it be noted earlier having found similar wrong committed by the trial court, we sent back the case for re-trial for both the appellants/convicts from the stage of their examination under section 313 Cr.P.C. It is for the second time the trial court has committed the same mistake. At this stage we do not propose to send the matter back to the court below once again for re-trial from any particular stage. In this regard reliance may be placed in the case of Sharad Birdhi Chand Sarda v. State of Maharashtra reported in AIR 1984 SC 1622 and in the case of Kuldeep Singh and others v. Delhi reported in (2003) 12 SCC 528 . 26. The another circumstance used against the appellant/convict Babu Molla, is the recovery of a knife, the alleged offending weapon from their abandoned latrine. According to the Investigating Officer of the case PW/17 Nil Madhab Nandi, after the arrest of the appellant/convict Babu Molla and on the information furnished by him the offending weapon, the knife, was seized. The said statement was exhibited during the trial and marked Ext.-13 and the recovery memo was marked as Ext.-7. According to the Investigating Officer of the case PW/17 Nil Madhab Nandi, after the arrest of the appellant/convict Babu Molla and on the information furnished by him the offending weapon, the knife, was seized. The said statement was exhibited during the trial and marked Ext.-13 and the recovery memo was marked as Ext.-7. We further find from the Ext.-7, the date and time of seizure was September 14, 2009. However, in other places in the self-same seizure list date was noted as April 14, 2009. We accept the contention of the learned Public Prosecutor that was a mistake and seizure was actually made on April 14, 2009. However, one thing cannot be over looked that the PW/17 stated in his deposition that statement of the appellant/convict Babu Molla was recorded on April 10, 2009 and recovery was made on April 14, 2009. Therefore, there has been a delay of clear 4 days from the date of furnishing the information by the accused Babu Molla and recovery of the alleged offending weapon, knife. Undoubtedly, this delay of 4 days is quite fatal for the prosecution. It is the consistent view of the Apex Court, while interpreting section 27 of the Evidence Act is this………….. reason behind this partial lifting of the ban against confession and statement made to the police by an accused while in police custody, is that, if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth to that part, and that part only, of the information which is clear, immediate and proximate cause of the discovery. The Apex Court stressed very much on the proximity between the furnishing of information and the discovery pursuant thereto, meaning thereby the discovery must be the immediate effect of collection of information from the accused by the police. On this score there are several judgments of the Apex Court. We are however of the view it would be quite sufficient if the reliance is placed in the case of Antar Singh v. State of Rajasthan reported in (2004) 10 SCC 657 . On this score there are several judgments of the Apex Court. We are however of the view it would be quite sufficient if the reliance is placed in the case of Antar Singh v. State of Rajasthan reported in (2004) 10 SCC 657 . Furthermore, besides the delay of 4 days between the date of receipt of information from the appellant/convict Babu Molla and discovery of the offending weapon knife, the Investigating Officer of the case PW/17 completely contradicted his evidence in-chief during his cross-examination and stated as follows, I arrested Babu Molla at about 21.15 hrs. on 9.4.09. Babu Molla was taken to P.C from 10.04.2009 to 13.04.2009. I did not record the statement of Babu Molla when he was in police custody. On 14.04.2009 on interrogation Babu Molla stated that he had concealed the knife that has been used to kill Sohel. But I have not recorded the statement of Babu Molla. On 14.04.2009 I recovered the knife. During the trial, out of two seizure list witnesses Ahsan Mondal and Sadek Ali Mondal, only Ahsan Mondal was examined as PW/12. It was the evidence of the PW/12 that the appellant/convict Babu Molla brought out a knife searching the abandoned privy of his house and handed over it to the police. However, during cross-examination he stated, when Babu Molla was brought by the police in front of his house about 20/50 persons were gathered and the police brought out a knife from the abandoned privy, thereafter he put his signature on the seizure list. On the face of the above contradictions in the statements itself of the Investigating Officer PW/17 and the seizure witness Ahsan Ali Mondal PW/12 and the contradictions between their statements and other infirmities pointed out herein above, the alleged recovery of the offending weapon on the information furnished by the appellant/convict Babu Molla does not create any confidence and we are of the opinion it will not at all be safe to rely upon the same. 27. In this case admittedly, the appellant/convict Babu Molla became blind by two eyes, much before the occurrence. He was charged and convicted under section 364/302/34 IPC. We find no material to support the case of an offence of abduction. 27. In this case admittedly, the appellant/convict Babu Molla became blind by two eyes, much before the occurrence. He was charged and convicted under section 364/302/34 IPC. We find no material to support the case of an offence of abduction. So far as his conviction for an offence punishable under section 302/34 IPC, based on circumstantial evidence, we have already noted the prosecution has failed to prove those circumstances against the appellant/convict Babu Molla. Having regard to above, the order of conviction and sentence passed against the appellant/convict Babu Molla is set aside and the death reference stands rejected. The CRA No. 385 of 2015 stands allowed. The appellant/convict Babu Molla, if not detained in connection with any other case, at once be released from the custody. 28. The only question now left for our consideration when the appellant/convict Manjuma Bibi was charged under section 302/34 IPC with four others and when against one of them the case was filed due to his death and three others were acquitted, it would be lawful to convict her under section 302 IPC simpliciter without any alternative charge being framed thereunder. There are plethora of judgments, which answer in affirmative. Recently in the case of Pal Singh and another v. State of Punjab reported in (2014) 11 SCC 508 , the same view was taken by the Supreme Court. In the case of Darbara Singh v. State of Punjab reported in (2013) 1 SCC (Cri) 1037, the Supreme Court elaborated the law as under in para 20 and 21 which is quoted below, "20. The defect in framing of the charges must be so serious that it cannot be covered under Sections 464/465 Cr.P.C., which provide that, an order of sentence or conviction shall not be deemed to be invalid only on the ground that no charge was framed, or that there was some irregularity or omission or misjoinder of charges, unless the court comes to the conclusion that there was also, as a consequence, a failure of justice. In determining whether any error, omission or irregularity in framing the relevant charges, has led to a failure of justice, the court must have regard to whether an objection could have been raised at an earlier stage during the proceedings or not. In determining whether any error, omission or irregularity in framing the relevant charges, has led to a failure of justice, the court must have regard to whether an objection could have been raised at an earlier stage during the proceedings or not. While judging the question of prejudice or guilt, the court must bear in mind that every accused has a right to a fair trial, where he is aware of what he is being tried for and where the facts sought to be established against him, are explained to him fairly and clearly, and further, where he is given a full and fair chance to defend himself against the said charges. 21. 'Failure of justice' is an extremely pliable or facile expression, which can be made to fit into any situation in any case. The court must endeavour to find the truth. There would be 'failure of justice'; not only by unjust conviction, but also by acquittal of the guilty, as a result of unjust failure to produce requisite evidence. Of course, the rights of the accused have to be kept in mind and also safeguarded, but they should not be overemphasised to the extent of forgetting that the victims also have rights. It has to be shown that the accused has suffered some disability or detriment in respect of the protections available to him under the Indian criminal jurisprudence. 'Prejudice' is incapable of being interpreted in its generic sense and applied to criminal jurisprudence. The plea of prejudice has to be in relation to investigation or trial, and not with respect to matters falling outside their scope. Once the accused is able to show that there has been serious prejudice caused to him, with respect to either of these aspects, and that the same has defeated the rights available to him under criminal jurisprudence, then the accused can seek benefit under the orders of the court. (Vide Rafiq Ahmad v. State of U.P., SCC p. 320, para 36; Rattiram v. State of M.P. and Bhimanna v. State of Karnataka. In the result, so far as the appellant/convict Manjuma Bibi is concerned, her conviction is altered to 302 IPC simpliciter and sentence of imprisonment for life, however, remained unchanged. The appeal preferred by her CRA No. 449/2015 stands dismissed. In the result, so far as the appellant/convict Manjuma Bibi is concerned, her conviction is altered to 302 IPC simpliciter and sentence of imprisonment for life, however, remained unchanged. The appeal preferred by her CRA No. 449/2015 stands dismissed. Office is directed to send down the LCR together with the copy of the judgment to the court below at once. Urgent xerox certified copy of this order be given to parties, if applied for, as early as possible. Md. Mumtaz Khan, J. - I agree.