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2016 DIGILAW 124 (CAL)

Samir Barik v. State of West Bengal

2016-02-03

ASHIM KUMAR ROY, MALAY MARUT BANERJEE

body2016
JUDGMENT : M.M. Banerjee, J.: In Sessions Trial No. 277 of 2008 the Ld. Sessions Judge, Howrah in terms of his judgment passed in the case found both the appellants guilty of the charges under Sections 302/120B I.P.C. The Ld. Sessions Judge further found the appellant Samir Barik guilty under Section 380 I.P.C. Both the appellants were convicted and on their conviction under Section 302 I.P.C. both of them were sentenced to suffer imprisonment for life and to pay fine of Rs.5000/- each in default to suffer S.I. for six months. No separate sentence was passed for their conviction under Section 120B I.P.C. However, appellant Samir Barik was sentenced to suffer R.I. for 2 years and to pay a fine of Rs.5000/- i.d. to suffer S.I. for four months on his conviction under Section 380 I.P.C. One Dipali Bhattacharjee lodged a written complaint on 26.02.2008 at 7.00 in the evening, stating that she had been to the house of one Partha Ghosh whose house is opposite to her house, at about 5.30 p.m., called his wife Srabanti Ghosh but she did not get any response either from her or from her daughter Tithi. It is stated in the F.I.R./written complaint that she opened the half-opened grill gate and the wooden door of the room and entered there, where she found Srabanti Ghosh lying in front of the door of their bed room and was bleeding. She also found that Tithi, the daughter of Srabanti Ghosh was lying near her feet and a pillow was put on her face. It is stated in the written complaint that she understood that both were dead. It is also stated in the F.I.R. that the television inside the room was on, she put on the light and cried and called everyone, and Sharabanti’s sister-in-law Boby and some other people rushed there. It is alleged that one or more than one had killed Srabanti and her daughter brutally. It is found that charges under Sections 120B/201/302 I.P.C. were framed against both the appellants for entering into criminal conspiracy to commit the murder of Srabanti Ghosh; for causing disappearance of evidence and for committing the murder of Srabanti Ghosh and further charge under Section 302 I.P.C was framed against accused Somashree Das @ Tusi, for committing murder of Prapti @ Tithi and further charges under Section 380/411 I.P.C. were framed against appellant Samir Barik. Before adverting to the argument put forward by the Ld. Advocates for the appellants and the Ld. Counsel for the State, it would be pertinent to state that with a view to proving its case the prosecution relied on and examined as many as 28 witnesses. Out of those witnesses P.W.1 Dipali Bhattacharjee, P.W.2 Bijon Behari Bhattacharjee, P.W.3 Bobby Ghosh and P.W.4 Bidyut Ghosh are the neighbours of deceased Srabanti Ghosh. P.W.5 Partha Ghosh is the husband of deceased/victim Srabanti Ghosh. P.W.8, Debabrata Roy is a seizure witness, P.W.10 Suparna Sen is another seizure witness, P.W.13 Swapan Ghosh, P.W.14 Sk. Sorafuddin and P.W. 15 Sk. Nasiruddin are also witnesses of seizure. The details of seizure and the evidence of the witnesses will be dealt with while considering the argument of the Ld. Advocates of the parties Suffice it to say for the present that P.W. 17 Dr. Harashit Sarkar is a medical officer who conducted post mortem on the dead bodies of both the victims - mother and her daughter. P.W. 27 Bidit Kumar Mondal is a sub-inspector of police who assisted the investigating officer of the case P.W. 28 Chandan Ghosh. Both the Ld. Advocates appearing for the appellants argued that the prosecution tried to build up this case on circumstantial evidence but has failed to prove its case. It was argued by the Ld. Advocate for appellant Somashree that P.W.3 in her evidence has claimed that on 26.02.2008 at about 12.30 in the noon she went to the roof of their house for drying out clothes and she again went there at about 1.30 p.m. when she found one lady knocking at the grill gate and calling Srabanti (deceased) and as she was a regular visitor she could recognise her by her voice and saw her standing on the staircase. It was argued that P.W.3 appears to be a chance witness and there is nothing in her evidence that she could identify either of the appellants at the house of the victims. However, on scrutiny we find that towards the end of her examination-in-chief she stated that she had seen Tusi (appellant Somashree) was knocking the grill gate when she had seen her to do so from the roof top. The Ld. However, on scrutiny we find that towards the end of her examination-in-chief she stated that she had seen Tusi (appellant Somashree) was knocking the grill gate when she had seen her to do so from the roof top. The Ld. Advocate appearing for the appellant Somashree argued that P.W.4 Bidyut Ghosh in his evidence has claimed that while he was in his room he found one lady covering her head and face with her saree leaving along the pathway in front of his house and he could recollect that the said lady who left the house of Partha Ghosh covering her head and face was Tusi @ Somashree Das w/o Chandan Das. It was argued that such claim of P.W.4 is not at all acceptable and moreover there is nothing in his evidence that he identified appellant Somashree as the same person whom he had seen leaving the house of Partha Ghosh covering her head and face. It is true that there is nothing like that in the evidence of P.W.4 but the Ld. Counsel for the State showed that on the date of examination of P.W.4 in Court on 06.08.2008 appellant Somashree was not produced in Court as on the relevant day she was at the hospital. The Ld. Advocate argued that P.W.5 Partha Ghosh is the husband of victim Shrabanti and father of victim Prapti. On the face of his evidence at the relevant time and on the relevant day he was not in the house because he had left for office around 8.30 to 8.45 a.m. It was argued that his evidence cannot be of any help to the prosecution. It was argued that P.W.10, Suparna Sen is a seizure witness whose evidence is that she is next door neighbour of appellant Somashree @ Tusi and on 11.03.2008 at 3.00 p.m when she was in her house police came to her house and called her and they took her to the house of the in-laws of Tusi who was also with the police. Her further evidence is that appellant Tusi thereafter brought out some articles from her house in her presence – first of all a big handkerchief of red and yellow colour which is normally tied around head and disclosed in her presence that with the help of the said red-yellow handkerchief she had killed Tithi. The Ld. Her further evidence is that appellant Tusi thereafter brought out some articles from her house in her presence – first of all a big handkerchief of red and yellow colour which is normally tied around head and disclosed in her presence that with the help of the said red-yellow handkerchief she had killed Tithi. The Ld. Advocate argued that it is in the cross-examination of P.W. 10 that age of the daughter of Somashree is 12/13 years and that young girls wear such handkerchief around head and it is quite natural to have a handkerchief in a house where such young girl lives. The Ld. Advocate argued that the prosecution story that the seized scarf was used by the appellant (Somashree) to cause the death of the victim girl Tithi is not at all believable. The Ld. Advocate thereafter argued that P.W. 10 also has claimed in his evidence that one small towel was recovered from the well of the house of appellant Somashree but seizure of such towel is all the more doubtful. The Ld. Advocate drew our attention to the cross-examionation of P.W. 15 where he has stated that save and except accused Somashree no other woman was present there at that point of time and so this piece of evidence is sufficient to disbelieve the evidence of P.W. 10. Further argument of the Ld. Advocate is that this P.W. 15 Sk. Nasiruddin as per his evidence is cleaner of well and he was taken by police to the well in question when one Sk. Sorafuddin (P.W.14) climbed down inside the well and took 4/5 buckets of mud from inside the well. This P.W. 15 was then standing outside the well and he has claimed that one towel was made available from inside the mud. The Ld. Advocate argued that this P.W 15 expressed his inability to identify the towel shown to him in course of giving evidence in Court. It was argued by the Ld. Advocate that P.W. 14 Sk Sorafuddin went inside the well and took out 4/5 buckets of mud but there is nothing in his evidence that in course of lifting the mud he found one towel. It was argued by the Ld. Advocate that P.W. 14 Sk Sorafuddin went inside the well and took out 4/5 buckets of mud but there is nothing in his evidence that in course of lifting the mud he found one towel. It was argued that it is in the evidence of P.W. 14 that coming out of the well he found one small towel but it is specifically in his cross-examination that when he was inside the well and was filling mud in the bucket he had not found anything. It was argued by the Ld. Advocate for appellant Somashree that the prosecution failed to prove any statement of the appellant leading to discovery of such seized scarf and the towel or any other article. The Ld. Advocate for the appellant referring to the evidence of P.W. 22 Pradip Roy argued that by examining this witness the prosecution wanted the court to believe that both the appellants together lived in a hotel (Hotel Dhruba) at Old Digha but such evidence of P.W. 22 cannot be relied on because it is apparent from his evidence that he was not in that hotel, on the purported date of arrival and departure of the appellants to and from that hotel and the writing in the Hotel Register was not done in his presence. It was argued that this witness did not identify appellant Somashree as the woman staying in their hotel with the other appellant. The Ld. Advocate for appellant Somashree argued that P.W.23 Tarapada Das was examined by the prosecution to believe the story that both the appellants visited Digha together and stayed together in a hotel but the fact remains that this P.W. 23 could not identify appellant Somashree in Court while giving evidence. The Ld. Advocate argued that the prosecution wanted the Court to believe that there was amorous relation between appellant Somashree and the other appellant and since this came to be known to the victim, Shrabanti and the latter was blackmailing the appellant (Somashree), both the appellants decided to cause murder of Shrabanti and according to the prosecution that is the motive behind committing the crime but the prosecution having failed to prove any such relationship between the appellants the very basis of the motive ascribed in this case remains not proved. The Ld. The Ld. Advocate argued that since the seizure of the handkerchief (scarf) as narrated by P.W. 10 does not tally with the description of the same in the seizure list, and the evidence of P.W. 15 does not inspire confidence to believe the recovery of towel from the well and by reason of the same being not identified by the witnesses and the evidence of P.W. 15 rendering the presence of P.W. 10 at the time and place of seizure doubtful, the Ld. Trial Judge ought to have found the appellant not guilty of the charges. It was also argued that one of the mobile phones of the husband of victim Shrabanti and used by her allegedly stolen and recovered from appellant Samir Barik was there at the place of occurrence but the prosecution failed to prove the tower location of that mobile handset (phone). The Ld. Advocate for appellant Somashree also argued that the purported confessional statement of the co-accused (appellant Samir Barik) that he had taken Somashree and her daughter to Digha as also to Somashree’s cousin’s house at contai remains uncorroborated and the Ld. Trial Judge ought not to have believed and relied on such confessional statement of co-accused Samir Barik. The Ld. Advocate argued that none of the witnesses examined on behalf of the prosecution ever stated that he had ever seen appellant Somashree at Digha in any hotel far to speak of staying there in any room together with the other appellant Samir Barik and the story of the prosecution that since the extra marital and amorous relationship between the appellants came to be known to victim Shrabanti, they hatched up a conspiracy to finish Shrabanti cannot be believed. The Ld. Advocate further argued that although separate charge under Sec. 302 I.P.C. was framed against the appellant for committing the murder of Tithi, the daughter of victim Shrabanti, the prosecution miserably failed to prove the said charge against her and even the Ld. Trial Judge in the impugned judgment came to observe that the fact remains that because of Sec. 120B of I.P.C., it is immaterial who committed whose murder and as it was a dual venture it is very difficult to fix up which accused actually murdered which victim. It was argued that without making such general observation the Ld. Trial Judge in the impugned judgment came to observe that the fact remains that because of Sec. 120B of I.P.C., it is immaterial who committed whose murder and as it was a dual venture it is very difficult to fix up which accused actually murdered which victim. It was argued that without making such general observation the Ld. Trial Judge ought to have held that the prosecution has miserably failed to prove the charge under Sec. 302 I.P.C against the appellant for causing murder of Tithi. It was argued that it is almost inconceivable that the appellant being a mother of a girl aged about 10/12 years would commit the murder of a little girl and it is also beyond anybody’s imagination that she would commit the murder of Shrabanti a good friend of her when apparently there was no inimical relation between them. It was argued that the appellant deserves acquittal from the charges framed against her. The Ld. Advocate appearing for appellant Samir Barik argued that the case brought against the appellant by the prosecution is first of all the motive of the appellant to commit the crime because he had illicit relation with appellant Somashree that was known to victim Shrabanti and the latter was blackmailing her (Somashree) and they wanted to cause the murder of Shrabanti but the very basis of this story is not at all proved from the evidence on record as led by the prosecution. It was argued that the story of motive has not been proved. Secondly, the alleged recovery of a mobile handset used by victim Shrabanti and some of her gold ornaments at the instance of the appellant is also not believable. It was argued that the prosecution examined and relied on the evidence of one Sandip Raha (P.W.12) to the effect that on 02.03.2008 a tall man sold one Nokia 6300 model mobile phone to him (he runs a mobile shop) and then again on 05.03.2008 at 10.00 p.m. some police officers along with the said tall man came to his mobile shop and in the presence of police officers identified him as the person to whom he had sold the Nokia mobile handset is difficult to believe. It was argued that this P.W. 12 is a planted witness. It was argued that this P.W. 12 is a planted witness. It was argued that it is in his cross-examination that at the time of purchasing the mobile phone he did not even note down the name of the person who sold it and did not enquire as to wherefrom he got the said mobile phone. The Ld. Advocate argued that it is in the cross-examination of P.W. 12 that he admitted to have retaining the mobile illegally since no paper was handed over to him. The Ld. Advocate argued that the recovery of gold ornaments of deceased Shrabanti from the house of the appellant Samir Barik consequent upon his statement leading to such discovery is also not believable because it is highly improbable that a person after committing murder would take along with him the ornaments of the victim only to preserve incriminating evidence against him. It was argued that appellant Samir Barik had no criminal antecedent and so it cannot be said that for taking away some gold ornaments he would commit murder during day time. It was argued that the appellant was arrested on 04.03.2008 and was in police custody till 19.03.2008 and made confessional statement on 20.03.2008 which cannot be said to be voluntary and true. It was also argued that in his examination under Sec. 313 Cr.P.C. the appellant retracted from his confession and thereby the confessional statement pales into insignificance. It was argued that after retraction the confessional statement lost its force and credibility and the Ld. Trial Judge ought not to have relied on the same. It was argued that the prosecution tried to build up its case and to prove the charges against the appellant on the basis of the confessional statement of the appellant which does not find corroboration from any material angle and the conviction on the basis of such confessional statement should be set aside and the appellant should be acquitted of the charges framed against him. The Ld. Advocate argued that the identification of appellant Samir Barik by P.W. 23 Tarapada Das has no probative value because the prosecution case is that both the appellants stayed together in hotel Moniraj at old Digha but this witness could not identify the other appellant and this goes to show that the prosecution case stands on a weak pedestal. The Ld. Advocate argued that the identification of appellant Samir Barik by P.W. 23 Tarapada Das has no probative value because the prosecution case is that both the appellants stayed together in hotel Moniraj at old Digha but this witness could not identify the other appellant and this goes to show that the prosecution case stands on a weak pedestal. The Ld. Advocate for the appellant argued that according to the prosecution appellant Samir Barik was in use of two mobile phones having number 9830116507 and 9231660895 but the prosecution failed to prove the call detail records of the latter number to establish its tower location on the relevant date and at the relevant time. The Ld. Advocate drew our attention to the cross-examination of P.W. 27 Bidit Kumar Mondal where he has stated that he did not collect the call details of mobile number 9231660895 which was also seized from Samir Barik. It was argued by the Ld. Advocate that in terms of the confessional statement of the appellant there was a missed call by the other appellant to the mobile phone of appellant Samir Barik but the prosecution has failed to establish this fact by producing sufficient cogent evidence. It was also argued that the evidence of P.,W. 17 Harashit Sarkar, the autopsy surgeon does not lend corroboration to the injuries allegedly inflicted by the appellant upon the victim in so far as his confessional statement is concerned. The Ld. Advocate argued that it is most unsafe to convict an accused solely on the basis of retracted confession and on that score referred to a decision of the Hon’ble Apex Court reported in 2004 SCC (Cri) 2081 where it was held :- “Before acting on a confession made before a Judicial Magistrate in terms of Section 164, the Court must be satisfied first that the procedural requirements laid down in sub-sections (2) to (4) are compled with. These are salutary safeguards to ensure that the confession is made voluntarily by the accused after being apprised of the implications of making such confession. After this first requirement of acting on a confession is satisfied, the Court, called upon to consider the evidence against the accused, should still see whether there are any circumstances appearing from the record which may cast a doubt on the voluntary nature of the confession. After this first requirement of acting on a confession is satisfied, the Court, called upon to consider the evidence against the accused, should still see whether there are any circumstances appearing from the record which may cast a doubt on the voluntary nature of the confession. The endeavour of the Court should be to apply its mind to the question whether the accused was free from threat, duress or inducement at the time of making the confession. In doing so, the Court should bear in mind, that under Section 24 of the Evidence Act, a stringent rule of proof as to the existence of threat, duress or inducement should not be applied and a prima facie opinion based on evidence and circumstances may be adopted as the standard laid down. Having thus reached a finding as to the voluntary nature of a confession, the truth of the confession should then be tested by the Court. The fact that the confession has been made voluntarily, free from threat and inducement, can be regarded as presumptive evidence of its truth. Still, there may be circumstances to indicate that the confession cannot be true wholly or partly in which case it loses much of its evidentiary value. In order to be assured of the truth of confession, the rule of prudence is that the court should look to corroboration from other evidence. However, there need not be corroboration in respect of each and every material particular. The expression “corroboration of material particulars” does not imply that there should be meticulous examination of the entire material particulars. It is enough that there is broad corroboration in conformity with the general trend of the confession. Broadly, there should be corroboration so that the confession taken as a whole fits into the facts proved by other evidence. In substance, the court should have assurance from all angles that the retracted confession was, in fact, voluntary and it must have been true.” Relying on a decision reported in 1992 SCC (Cri) 157 the Ld. Advocate argued that the Prosecution should not be allowed to make the confessional statement as the basis of the case and then looking for corroboration but instead the prosecution must show by adducing sufficient, cogent, credible and consistent evidence that charges brought against the appellants have been proved. The Ld. Advocate argued that the Prosecution should not be allowed to make the confessional statement as the basis of the case and then looking for corroboration but instead the prosecution must show by adducing sufficient, cogent, credible and consistent evidence that charges brought against the appellants have been proved. The Ld. Counsel appearing for the State argued that the prosecution in the instant case has been able to prove the recovery of the mobile handset (phone) used by victim Shrabanti from the shop of P.W.12 at the instance of appellant Samir Barik. It was argued that the recovery of gold ornaments of victim Shrabanti from the house of appellant Samir Barik has also been proved. It was argued that the prosecution by examining P.W.6, Indrajit Das @ Chandan who happens to be none else than the husband of appellant Somashree has been able to prove that there was a relation in between the appellants. It was argued that appellant Samir Barik helped P.W.6 for arranging collection of blood when the wife of his brother-in-law gave birth to a child at Marwari Relief Society Hospital and blood transfusion was needed for her at that point of time. It was argued that the prosecution has been able to prove that the appellants stayed together in hotels at Digha and to that effect the prosecution has been able to adduce both oral and documentary evidence. It was argued that P.W.22 Pradip Roy in his evidence has stated that appellants Samir Barik and Tusi were allowed room number 201 of Dhruba Hotel. He has further deposed that the entire handwriting covering serial no. 746 was written by the party and similar evidence has been adduced by P.W. 23 Tarapada Das. The Ld. Advocate inviting our attention to the evidence of P.W. 20 Tarun Kanti Banerjee, the handwriting expert argued that this witness proved that the entries made in the Hotel Registers were in the handwriting of appellant Samir Barik. It is found that Exb-24 is the report of the handwriting expert. This P.W. 20 also identified the disputed handwriting of appellant Samir Barik appearing in the Register of Hotel Moniraj which has been marked as Exb-25. He also proved the disputed handwriting appearing in the Register of Hotel Dhruba to be in the handwriting of appellant Samir Barik which has been marked as Exb-26. This P.W. 20 also identified the disputed handwriting of appellant Samir Barik appearing in the Register of Hotel Moniraj which has been marked as Exb-25. He also proved the disputed handwriting appearing in the Register of Hotel Dhruba to be in the handwriting of appellant Samir Barik which has been marked as Exb-26. From the above it is found that the prosecution has been able to establish by adducing sufficient, cogent and credible evidence that both the appellants stayed together in the hotels at Digha and this lends corroboration to the confessional statement made by appellant Samir Barik in that respect. We find that P.W. 24, Bharati Ghosh is the mother-in-law of victim Shrabanti, she identified the stolen gold ornaments as produced by the prosecution as belonging to her daughter-in-law. The recovery of the stolen article at the instance of appellant Samir Barik cannot also be disbelieved. In this regard P.W. 25 Ranjit Das, a neighbour of appellant Samir Barik stated about recovery of gold ornaments, one SIM Card of mobile set, one pair of shoes and one jacket. The Ld. Trial Judge very rightly believed the testimony of P.W.25. After going through the evidence and materials on record and having regard to the argument put forward by the Ld. Advocates for the appellants and the Ld. State Counsel we find that P.W.27, Sub-Inspector Bidit Kumar Mondal carried out investigation into the angle of call details of mobile phones seized in the case and the tower locations of the same on the date of the incident. It is found from the evidence of P.W. 27, the Tata Indicom number 9231660895 was in the name of Samir Barik, mobile No. 9830775002 was in the name of Shrabanti’s husband which was found missing on the date of the incident, mobile number 9836128831 which was in the name of Indrajit Das, husband of Somashree was exclusively used by appellant Somashree and mobile connection number 9874400921 was taken by Somashree in the name of Abhijit Das, her brother-in-law. Mobile phone number 9239369869 and 9231463345 and another mobile number 9830775002 were in the name of Partha Ghosh, the husband of victim Shrabanti. Mobile phone number 9231660895 in the name of Arup Barik, brother of appellant Samir Barik was given by the appellant as telephone number at hotel Dhruba. Mobile phone number 9239369869 and 9231463345 and another mobile number 9830775002 were in the name of Partha Ghosh, the husband of victim Shrabanti. Mobile phone number 9231660895 in the name of Arup Barik, brother of appellant Samir Barik was given by the appellant as telephone number at hotel Dhruba. We have already found hereinabove that the mobile phone which was being used by victim Shrabanti was recovered from the shop of P.W. 12 as sold by appellant Samir Barik. Mobile phones bearing number 9830116507 and 9231660895 were seized from appellant Samir Barik. It is found from the evidence of P.W. 26 that in the mobile number 9836128831 used by appellant Somashree @ Tusi, number of calls came from mobile numbers 9830116507 and 9232517595 which were being used by appellant Samir Barik. So intimacy between the appellants also gets the support and corroboration from such evidence on record and it is in the evidence of P.W. 26 that there were phone calls between the holders of such mobile phones for a long period even 40 minutes and consuming in total 3 hours in a day. We also get from the evidence of P.W. 26 that on 26.02.2008 the mobile tower of Hutch in respect of mobile number 9830116507 shows that the holder of the said mobile started moving from Duttapukur to Hridoypur, Ultadanga, Canning Street, Akash near Howrah Station, Bantra and lastly at Chatterjeehat. We have already found that mobile number 9830226507 was in the name of Samir Barik and according to P.W.26 after the incident there was no phone call between those mobiles except that one call was made on 26.02.2008 at 3.45 p.m. and both the Hutch tower location showed as at Chatterjeehat. It is also found in the evidence of P.W. 26 that call details of mobile number 9874400921 showed that on 26.02.2008 at 13.22 hours the said mobile set was at Jagacha and there was talk between Samir Barik and Somashree. Going by the evidence of P.W.26 we also find that the mobile of victim Shrabanti was recovered from the mobile repairing shop at Duttapukur and the IMEI number duly tallied with the said mobile set and it is the number of the victim. Going by the evidence of P.W.26 we also find that the mobile of victim Shrabanti was recovered from the mobile repairing shop at Duttapukur and the IMEI number duly tallied with the said mobile set and it is the number of the victim. It is found on scrutiny of the C.D.R of mobile number 9830116507, used by appellant Samir Barik, that this mobile phone was used on the date of the incident (26.02.2008) at 9.50 a.m. when its tower location was at Narsinghapur near Duttapukur and it moved to Hridaypur and made a call to mobile number 9836128831 at 10:33:55 hours and thereafter again there was call in that mobile phone from the mobile phone of appellant Samir Barik at 10:51:31 hours and the tower location shows that the appellant Samir Barik’s mobile was at Jessore Road, Bakra S-2. The next call was made at 11.20 hours in the mobile phone of appellant Somashree and the tower location shows it was at Ultadanga, at the time of the next two calls 11:52:21 hours and at 11:22:39 hours the tower location shows this at Canning Street, Kolkata. The next call was made at 12:09:40 hours and the tower location was at Akash Hotel near Howrah Station. The next call was made at 12:24:24 hours and the tower location shows it was at Bantra East and at the time of next call on 15:45:22 hours the tower location was at Chatterjeehat. It may not be out of place to repeat once again that the mobile number 9836128831 was being used by appellant Somashree and P.W. 7, her brother-in-law has testified how she had obtained the mobile connection in his name by forging his signature in the application form. Be that as it may, it has been established that on the date of the incident there were number of calls made by and between the appellants themselves. None of the appellants chose to come to the witness box to deny that they never used the aforesaid mobile phones and never had any telephonic conversation over the mobile sets between themselves. None of the appellants chose to come to the witness box to deny that they never used the aforesaid mobile phones and never had any telephonic conversation over the mobile sets between themselves. Moreover, there is no explanation from the side of appellant Samir Barik why on the date of the incident he moved from Duttapukur to Chatterjeehat at Howrah and in the absence of any such explanation it can well be said that on the date of the incident and at the relevant point of time he went to the house of victim Shrabanti pursuant to the conspiracy hatched by him and the other appellant Somashree. So, from the above it can well be said that there is merit in the argument put forward by the Ld. Counsel for the State that the appellants had such an intimacy between themselves that they conspired together to finish Shrabanti as she was having knowledge about the illicit relation between them. The prosecution has been able to prove the motive of the appellants for committing the murder of Shrabanti. So far the evidence of P.W.3 Bobby Ghosh is concerned that on the date of incident at 12.13 in the noon she had been on the roof of their house and saw Shrabanti was putting wet clothes on the roof for drying and at about 1.30 p.m when she again had been there she found one lady knocking at the grill gate and was calling Shrabanti by her name and as she was a regular visitor she recognised her by her voice and saw her in a standing position on the stair case. It is further in her evidence that after having the meal (lunch) she went to bed and because of mosquitoes she went to shut the window when she noticed that all the windows of the house of Shrabanti were closed. We have already hinted above at the evidence of P.W.3 Bobby Ghosh that at about 1.30 p.m when she went to the roof for the second time she found one lady knocking at the grill gate and was calling Shrabanti by her name and as she was a regular visitor, she (P.W.3) recognised her by her voice. An attempt was made by the Ld. Advocate appearing for appellant Somashree that this P.W.3 in course of giving evidence in Court did not identify the appellant Somashree. The Ld. An attempt was made by the Ld. Advocate appearing for appellant Somashree that this P.W.3 in course of giving evidence in Court did not identify the appellant Somashree. The Ld. Counsel for the State, however, pointed out that the Lower Court Record shows that this P.W.3 was examined by the prosecution on 6th day of August, 2008 on which date appellant Somashree was at the hospital and was not produced in Court. Moreover, there is nothing in her cross-examination that she could not identify that particular lady by her voice. On the contrary it is in her cross-examination that she was quite acquainted with the voice of Somashree since she used to visit the house of Shrabanti frequently. This P.W.3 in her evidence has stated that after hearing the cries of Deepali Bhattacharjee, P.W. 1, she went to the house of Shrabanti and found that her ‘saree’ was not in proper order and a ‘Banti’ by her side and one piece of gloves was also found on her thigh. Shrabanti’s daughter Prapti @ Tithi was found below her feet. A phone call was made to Partha Ghosh, P.W. 5 the husband of victim Shrabanti and she also made a telephone call to Jagacha Police Station. P.W. 4 Bidyut Ghosh in his evidence has stated that at about 3.10 p.m. on 26.02.2008 while he was in his room he found one lady covering her head and face with her saree was leaving the house of Partha Ghosh and it is further in his evidence that the said lady who left the house of Partha Ghosh covering her head and face was Tusi @ Somashree Das. P.W. 5, Partha Ghosh in his evidence said that on 26.02.2008 his wife and daughter were murdered. It is in his evidence that wife of Chandan Das, the appellant Somashree was his wife’s intimate friend. P.W. 2 Bijon Bihari Bhattacharjee, husband of P.W.1 is a witness to the inquest. So from the evidence of P.W.s 1, 2, 3, 4, 5 as also from the evidence of P.W.17 the autopsy surgeon it is found that Shrabanti Ghosh and her daughter Prapti @ Tithi were brutally murdered. P.W. 2 Bijon Bihari Bhattacharjee, husband of P.W.1 is a witness to the inquest. So from the evidence of P.W.s 1, 2, 3, 4, 5 as also from the evidence of P.W.17 the autopsy surgeon it is found that Shrabanti Ghosh and her daughter Prapti @ Tithi were brutally murdered. We have already observed that there was not only intimacy but also some sort of extra marital relation between appellant Samir Barik and the other appellant Somashree Das and in making such observation we have analysed the evidence on record particularly the seizure of mobile phones, the call details thereof, the seizure of Shrabanti’s ornaments and mobile phone at the instance of appellant Samir Barik. We have also observed that the prosecution has been able to prove the motive of the appellants to commit the crime. The evidence on record also establishes the presence of both the appellants at the scene of the occurrence at the relevant point of time and on the relevant date. We are now to look at the confessional statement, albeit, retracted, of appellant Samir Barik. As referred to and relied on by the Ld. Advocate for the appellant Samir Barik, the essence of the principle laid down in the decision reported in 2004 SCC (CRI) 2081 there should be corroboration so that the confession taken as a whole fits into the facts proved by other evidence and the Court should have assurance from all angles that the retracted confession was, in fact, voluntary and it must have been true. Appellant Samir Barik in his confessional statement which has been duly proved before the Ld. Trial Judge has narrated that the other appellant Somashree was an intimate friend of Shrabanti and Somashree informed her about the help extended by him for Somashree’s elder brother and Shrabanti also knew that there was no physical relation between Somashree and her husband for last 4 years. Somashree’s husband used to ill treat her and pressurised her for getting back the money which he had spent at the time of birth of the son of her elder brother, that under the pressure of her husband Somashree on the pretext of going to her father’s place used to go to Digha with him, (appellant Samir Barik) and on each occasion he used to give some amount to the other appellant. He also stated in his confessional statement how the intimacy developed between them culminated into their physical relation with each other, that he used to go to the house of Somashree in absence of her husband and Shrabanti being close friend of Somashree came to know that Somashree was pregnant. It is further in his confessional statement that Somashree was under mental pressure and was in need of money and disclosed to him that she (Somashree) had confessed before Shrabanti that she was impregnated by him, (appellant Samir Barik) and after that she (Shrabanti) would blackmail her and would demand money from her. Appellant Samir Barik in his confessional statement has also stated how he and the other appellant thought about the exit of Shrabanti from this world so that there may not be any obstruction in carrying on their illicit relation. He has stated in his confessional statement that Shrabanti made a demand of Rs.20,000/- from Somashree under the threat that she would inform her husband that the child in the womb of Somashree was fathered by him, that he at that point of time was not in a position to give much amount of money and so they chalked out a plan to murder her. He has also stated that how on the date of the incident appellant Somashree had entered into the house of Shrabanti at about 1.50 p.m. and thereafter as per pre- arrangement he entered into the house and thereafter how he gagged and caught hold of Shrabanti, fell her on the ground, placed himself on her body and strangulated her and that he also kicked on her breast and belly. It is further in his confessional statement that Shrabanti’s daughter got up from her sleep and tried to cry out when Somashree gagged her and at her instance he also killed the little girl tying a scarf around her neck, and thereafter Somashree also murdered her with a pillow. It is also in his confessional statement that in the meantime when Shrabanti’s body got a little movement he again pressed her throat, asked Somashree to bring the kitchen knife, after Somashree brought it he struck Shrabanti on her hand and waist and in the meantime Somashree opened the almirah and taken out the ornaments and gave those to him. It is also in his confessional statement that in the meantime when Shrabanti’s body got a little movement he again pressed her throat, asked Somashree to bring the kitchen knife, after Somashree brought it he struck Shrabanti on her hand and waist and in the meantime Somashree opened the almirah and taken out the ornaments and gave those to him. His further narration in the confessional statement is that he left the scene of occurrence with the gold ornaments and the mobile handset. Further details of the confessional statement are not necessary for our consideration. We have already observed hereinbefore that the prosecution has been able to prove and establish that there was not only intimacy but also extra marital and illicit relation between appellant Samir Barik and appellant Somashree. The prosecution has also been able to prove the telephonic conversation over mobile phones between the appellants themselves, that the mobile phone of appellant Samir Barik moved from Duttapukur to Howrah, Jagacha, Chatterjeehat, that incriminating articles were recovered at the instance of the appellant including the mobile handset of victim Shrabanti and gold ornaments from the house of appellant Samir Barik, that the prosecution has also been able to prove that both the appellants together had been to Digha and stayed there at hotels as husband and wife and that victim Shrabanti was a close friend of appellant Somashree. So all these lend ample corroboration to the confession made by appellant Samir Barik. The only point that requires to be considered whether the confession was made without any inducement, threat or promise and was made voluntarily. We find as rightly pointed out by the Ld. Counsel for the State that the appellant was given proper caution as envisaged under Sec. 164 Cr.P.C. Before recording the statement the appellant was also directed to be kept in segregation for reflection and having regard to the evidence of the Ld. Judicial Magistrate who recorded such confessional statement the Court should hold that the confession was made without any threat, inducement or promise and is voluntarily. In this regard we find that P.W. 19 Debasish Giri while was posted as Judicial Magistrate, 3rd Court, Howrah recorded the confessional statement of accused/appellant Samir Barik on 20.03.2008. His evidence pertaining to our discussion is as follows:- “The accused expressed his willingness voluntarily to make confessional statement. In this regard we find that P.W. 19 Debasish Giri while was posted as Judicial Magistrate, 3rd Court, Howrah recorded the confessional statement of accused/appellant Samir Barik on 20.03.2008. His evidence pertaining to our discussion is as follows:- “The accused expressed his willingness voluntarily to make confessional statement. I gave him statutory caution like that if he makes the confessional statement before me then that might be taken as evidence against him, leading to his conviction, that he is not bound to make any confessional statement and further that if he declines to make any confessional statement then he will not be handed over to police custody” His further evidence is that in spite of such warnings he was eager to make such confessional statement and as such he forwarded him to the correctional home, Howrah with a direction that he be kept under segregation till he was produced before him at 4.15 p.m. on 20.03.2008. Further evidence of the Ld. Magistrate (P.W.19) is that on 20.03.2008 the accused was produced before him in his chamber at 4.15 p.m. and he again gave him statutory caution but still then he was willing to make confessional statement. In this context it can also be observed that the appellant never made any complaint before the Ld. Magistrate or before the Ld. Trial Judge that he did not make confessional statement voluntarily and in the context as already discussed we find that appellant Samir Barik made confessional statement voluntarily and the same was not made due to threat, inducement or promise. So having regard to the chain of circumstances which the prosecution has been able to prove by adducing sufficient, cogent, credible and consistent evidence and that appellant Samir Barik made confessional statement voluntarily and that such confessional statement is found to be true and fits into the facts proved by the prosecution by adducing evidence we are of the considered view that there is no scope for interference with the judgment and order of conviction and sentence passed by the Ld. Sessions Judge, Howrah. We, therefore, find that there is no merit in this appeal and the same is liable to be dismissed. Accordingly, the appeal is dismissed. The judgement and order of conviction and sentence passed by the Ld. Sessions Judge are hereby affirmed.