JUDGMENT : 1. This is an appeal against conviction. The accused has carried this appeal under Section 374(2) of the Code of Criminal Procedure, 1973 against a judgment of conviction dated October 30, 2017 passed by the Learned Session Judge, Andaman and Nicobar Islands, Port Blair in Session Case No. 07 of 2016 [Session trial No. 7 (02) of 2016] convicting the accused under Section 302 of the Indian Penal Code and also sentence passed on October 31, 2017 sentencing the accused to suffer the rigorous imprisonment for life and to pay of fine of Rs. 50,000/- and in default to suffer a further rigorous imprisonment for 3 more years for an offence under Section 302 of the Indian Penal Code in accordance in Section 35 (2) of the Code of Criminal Procedure with provision of payment of compensation as well. 2. Substantial questions of law arise for consideration in this appeal. The first is how are the words "reason to believe" mentioned in Section 328(1) of the Code of Criminal Procedure (referred to hereafter as "the Code") to be construed. The second is what is the effect on the sessions trial of a case committed to the Court of Sessions where the mandatory procedure of Section 328 of the Code is violated. The third is, does it vitiate the trial and the conviction reached on merits/evidence? The fourth is what is the effect of either the Chief Judicial Magistrate at the stage of committal or the court of sessions at the time of trial and conviction, relying upon a confessional statement under Section 164 of the Code, which has admittedly been taken on oath by the Magistrate concerned? Does this violate Article 20(3) of the Constitution of India? What is its effect on the ultimate decision of the case? Mr. Kabir, Learned Advocate appearing as counsel for the accused (referred hereafter as the appellant) has, made the above submissions on the basis of facts on record which cannot be disputed. He has further made submissions on merits, on the basis of the evidence and that according to the well-established precedents the guilt of the Appellant could not be proved beyond reasonable doubt. He has further made submissions on merits, on the basis of the evidence and that according to the well-established precedents the guilt of the Appellant could not be proved beyond reasonable doubt. He also submits that the record would show that the appellant never got a reasonable chance to defend himself and the Court-appointed Legal Aid Counsel did not point out facts which glared on the record to the Court/ Magistrate below which would have immediately prevented the learned Magistrate from committing the mentally unsound accused for trial by the court of sessions. Mr. Kabir, further submitted in the alternative and without recording any concession, that in the event, the court is not with him, the court may find the accused guilty of the lesser charge of culpable homicide not amounting murder and direct that the imprisonment that the appellant has already suffered be treated to have been served by the appellant from the minimum possible sentence that the court can award for the lesser charge. 3. Mr. Mondal, Learned Public Prosecutor and Government Pleader, however, strenuously submits that every opportunity of being heard was given to the appellant as required by law and that the appellant has from the beginning admitted and confessed guilt, has himself told his relatives who were examined that he had killed his wife in a fit of anger during a quarrel relating to property and that the confessional statement was only one of the many pieces of evidence which the learned Sessions Court had considered. That apart, he submits that though the case is based on circumstantial evidence, this is a situation where the accused husband was the last person to have seen the deceased alive, there had been a quarrel by them over property and prior attempts to strangle the wife, and therefore the guilt of the accused had been proved beyond reasonable doubt. 4. The first three questions which I have formulated in paragraph 2 above, can be summarized as follows:- if the Learned Chief Judicial Magistrate does not follow the mandatory procedure prescribed under Section 328 of the Code, and commits a person to trial by a court of sessions though he ought to have held from the records that there was reason to believe that the accused was mentally unsound and thus incapable of making his defence, does it render the entire proceeding, including the consequential trial a nullity? 5. 5. Let me first deal with the submissions relating to the committal proceedings being procedurally ultra vires and therefore, nullity. The facts relating to the case being registered and committed to the Court of Sessions would disclose, from the records, as follows:- 5.1 The instant criminal appeal arises out of a proceeding which was registered as Humfrygunj Police Station Case No. 32 of 2015 dated 16.09.2015 under Section 302 of the Indian Penal Code, 1860, against the present appellant alone. After completion of the investigation, the investigating agency had filed a report under Section 173 of the Code of Criminal Procedure, 1973 being Chargesheet No. 37 of 2015 dated 18.11.2015 under Section 302 of the Indian Penal Code against the present appellant. Upon cognizance being taken, the matter was committed to the Court of Session by the Learned Magistrate on January 28, 2016, and the matter was registered for trial as Session Case No. 07/16, Sessions Trial No. 7 of February, 2016. 5.2 A brief scrutiny of the Lower Court Records of the case brings to light a very dark episode of administration of criminal law. It does not appear to this Court after considering the case records that this is an Independent country with a rule of law where the rights of an accused are protected, either by the law-enforcement agencies or the last bastion of protection under the laws, to wit, the courts. I felt as if I had been transported to pre-independence Port Blair or was a character in Kafka's "The Trial." 5.3 I will try to summarize why I feel so. The Lower Court Records, referred to as "LCR" hereinafter, were brought before this Court as part of the records this court was to consider in appeal. These showed that on various dates the appellant was not produced before the Learned Magistrate at the pre-committal stage on clear observation that he was exhibiting conduct which required psychiatric treatment for which he could not be produced before the Learned Chief Judicial Magistrate. Initially he had been hospitalized in the mental/psychiatric ward and thereafter, at least till long after November 3, 2015, he was still undergoing treatment and on medication in the jail itself, under the supervision of the Jail Medical Officer. Initially he had been hospitalized in the mental/psychiatric ward and thereafter, at least till long after November 3, 2015, he was still undergoing treatment and on medication in the jail itself, under the supervision of the Jail Medical Officer. 5.4 On September 24, 2015 at 02.30 PM the accused described as Sunil Kumar rather than as Sanil Kumar was referred to Psychiatrist care for admission under the mental ward for further management because the accused was found on medical examination to be exhibiting violent, aggressive and abnormal behavior since that morning and it was expressly mentioned that counseling was tried but failed. He was observed to be very restless and violent. This appears from the referral slip signed on September 24, 2015 by the Chief Medical Officer of the District Jail Hospital, Prothrapur who observed the aforesaid. There is a forwarding report date October 1, 2015 signed by the Jailor which shows that treatment of the accused was being continued even on October 1, 2015 and so he could not be produced before the Learned Chief Judicial Magistrate, Port Blair. At paragraph 4 of the said forwarding report the Jailor has clearly mentioned that the Appellant was admitted in the mental ward and at paragraph 5 it has been mentioned that the appellant's treatment is continuing at GB Pant Hospital and that the accused could not be produced on that date. However, judicial custody was sought to be extended at the instance of the investigating agency on October 1, 2015 for fourteen days, which appears not to have been granted. The extension was only till October 8, 2015. 5.5 Even on October 8, 2015, the Investigating officer has sought extension of judicial custody for a further fourteen days with effect from October 8, 2015, with a telling sentence in the last paragraph of the application where such prayer has been made:- "That, the accused person Sanil Kumar is undergone treatment at G.B. Pant Hospital, Port Blair." 5.6 What the Investigating officer intended to mean by the words "is under gone" is not clear to me. If he wanted them to mean that the appellant had undergone mental treatment but was now all right, then there would have been no reason for the appellant not to have been produced on October 8, 2015 requiring the Learned Magistrate to direct that the papers relating to the medical treatment be submitted by the Jailor on the next date fixed being November 3, 2015. 5.7 All of which finally brings us to the "discharge slip" which has seen the light of the day in both the lower court records as a photocopy and as part of the reports which this Court commissioned and which were filed before this Court. 5.8 This was first seen by the Learned Chief Judicial Magistrate as a photocopy annexed to the next forwarding report filed on November 3, 2015 by the same Jailor. 5.9 This is the first document in the LCR which discloses, as Annexure 1a, 1b and 1c, being three pages, the discharge slip. The discharge slip is dated "5/scrawl/15." I write thus because though the patient is invariably described as P. No. 14811/24.9.2015 and the date for reporting as 12.10.2015, in case of the date when discharge was granted the appellant, shown to be suffering from "cannabis psychosis with hallucination and depression" was shown in the appropriate column to have been discharged on October 5, 2015, while the date of signature by the doctor shows "5" as the day and "15" as the year, but there is an over-written figure between the two, where the first digit is indubitably "1" but the second has been tortuously made to resemble a zero, without fully being able to disguise its genesis as something else. 5.10 The reason why I make such heavy weather out of these documents, being the discharge slip and the application made by the jailor bringing to the notice of the Chief Judicial Magistrate the fact of such mental illness of the appellant is because of the following material paragraphs in the application and the nature of the mental disease mentioned in the discharge slip. The paragraphs in the application possibly dated November 3, 2015 are as follows:- "1. That the accused Sanil Kumar S/o. Late Beer Bahadur aged 34 years was admitted in District Prison, Prothrapur on 17-09-2015 in the aforesaid case. 2. The paragraphs in the application possibly dated November 3, 2015 are as follows:- "1. That the accused Sanil Kumar S/o. Late Beer Bahadur aged 34 years was admitted in District Prison, Prothrapur on 17-09-2015 in the aforesaid case. 2. That as per the order sheet No. 3 dated 08-10-2015, the production date of the accused is fixed on 03.11.2015 by the Ld. Chief Judicial Magistrate, Port Blair. 3. That petitioner has been directed to submit the documents relating to the medical treatment of the aforesaid accused before Ld. Court by the next date fixed. 4. That the aforesaid accused was referred to G.B. Pant Hospital, Port Blair on 24-09-2015 at 12.30 pm by Chief Medical Officer, Jail Hospital and got admitted in Psychiatric ward and latter he was discharged on 05-10-2015, photocopy of discharge slip is enclosed and marked as Annexure-I (a), (b) & (c). 5. (Wrongly mentioned as paragraph 6) That the aforesaid accused is still continuing his psychiatric medication in the Jail Hospital under the supervision of Jail Medical Officer, Jail Hospital, Prothrapur." 5.11 The treatment sheets as well as the ultimate discharge slip issued by the psychiatric ward doctors, indicate that the appellant was suffering from psychosis and continued to be under treatment. Thus it is clear that even on November 3, 2015 the accused/appellant was still mentally unsound and required psychiatric medication under the supervision of Jail Medical Officer and there is nothing on records to show such medication was discontinued and Learned Chief Judicial Magistrate acted in terms of Section 328 or 329 of the Code of Criminal Procedure before he committed the appellant to the Court of Session by the order dated January 28, 2016. 5.12 At this stage, we must notice the provisions of Section 328 of the Code of Criminal Procedure, to which Mr. Kabir, Learned Counsel, has drawn our attention, in support of his submission as to what the mandatory procedure is in such a case. He submits that his procedure is mandatory and the learned Chief Judicial Magistrate had no option but to follow this procedure. Kabir, Learned Counsel, has drawn our attention, in support of his submission as to what the mandatory procedure is in such a case. He submits that his procedure is mandatory and the learned Chief Judicial Magistrate had no option but to follow this procedure. CODE OF CRIMINAL PROCEDURE, 1973 Section 328 - Procedure in case of accused being lunatic "(1) When a Magistrate holding an inquiry has reason to believe that the person against whom the inquiry is being held is of unsound mind and consequently incapable of making his defence, the Magistrate shall inquire into the fact of such unsoundness of mind and shall cause such person to be examined by the civil surgeon of the district or such other medical officer as the Stale Government may direct, and thereupon shall examine such surgeon or other officer as a witness and shall reduce the examination to writing. (1A) If the civil surgeon finds the accused to be of unsound mind, he shall refer such person to a psychiatrist or clinical psychologist for care, treatment and prognosis of the condition and the psychiatrist or clinical psychologist, as the case may be, shall inform the Magistrate whether the accused is suffering from unsoundness of mind or mental retardation: Provided that if the accused is aggrieved by the information given by the psychiatric or clinical psychologist, as the case may be, to the Magistrate, he may prefer an appeal before the Medical Board which shall consist of:- (a) head of psychiatry unit in the nearest government hospital. (b) a faculty member in psychiatry in the nearest medical college. (2) Pending such examination and inquiry, the Magistrate may deal with such person in accordance with the provisions of section 330. (b) a faculty member in psychiatry in the nearest medical college. (2) Pending such examination and inquiry, the Magistrate may deal with such person in accordance with the provisions of section 330. (3) If such Magistrate is informed that the person referred to in sub-section (1A) is a person of unsound mind, the Magistrate shall further determine whether the unsoundness of mind renders the accused incapable of entering defence and if the accused is found so incapable, the Magistrate shall record a finding to that effect, and shall examine the record of evidence produced by the prosecution and after hearing the advocate of the accused but without questioning the accused, if he finds that no prima facie case is made out against the accused, he shall, instead of postponing the enquiry, discharge the accused and deal with him in the manner provided under section 330: Provided that if the Magistrate finds that a prima facie case is made out against the accused in respect of whom a finding of unsoundness of mind is arrived at, he shall postpone the proceeding for such period, as in the opinion of the psychiatrist or clinical psychologist, is required for the treatment of the accused, and order the accused to be dealt with as provided under section 330. (4) If such Magistrate is informed that the person referred to in sub-section (1A) is a person with mental retardation, the Magistrate shall further determine whether the mental retardation renders the accused incapable of entering defence, and if the accused is found so incapable, the Magistrate shall order closure of the inquiry and deal with the accused in the manner provided under section 330." The words in brackets have been inserted to show introduction by the 2009 amendment. 5.13 Mr. Kabir's submission, very briefly summarized is that once the materials indicated by me in paragraphs 5.3 to 5.11 of this judgment are considered, it will be found that they are matters of record which are part of the LCR. It was the duty of the Learned Chief Judicial Magistrate to apply his mind to them, and indeed, he must have been deemed to have applied his mind to them, since he passed orders extending judicial custody or postponing the date of production of the appellant based on these records. It was the duty of the Learned Chief Judicial Magistrate to apply his mind to them, and indeed, he must have been deemed to have applied his mind to them, since he passed orders extending judicial custody or postponing the date of production of the appellant based on these records. Once he applied his mind to it, he had no alternative but to act in terms of Section 328(1) of the Code of Criminal Procedure. This procedure was binding on him and mandatory. Any other course of proceeding was necessarily forbidden to him. This statutory provision has built-in safeguards such that if on a medical examination information is given to the learned Magistrate that the accused is mentally sound then the accused may appeal against such information to a medical board. In the instant case, the learned Chief Judicial Magistrate, even after knowing about the mental unsoundness of the appellant, chose not to follow the procedure and thereby failed to exercise jurisdiction vested in him by law and in fact, proceeded to commit the appellant to trial by a court of sessions, which he did not have the jurisdiction to do, without complying which such mandatory procedure. Mr. Kabir would submit that this rendered the entire proceeding a nullity, vitiating the entire proceeding. The consequence of a nullity is also a nullity. The entire proceeding therefore, according to him, suffers from procedural ultra vires. He relies upon inter alia, the case of Nazir Ahmed vs. King Emperor, AIR 1936 PC 253 (2) which has been followed even after independence inter alia in the case of Hussein Ghadially vs. State of Gujarat, (2014) 8 SCC 425 at paragraph 21 of the report, and also in the case of State of Rajasthan vs. Mohinuddin Jamal Alvi and Another, (2016) 12 SCC 608 , for the proposition that when power is vested on a creature of a statute under a statute, he must act in the manner prescribed or not at all, and any other mode of proceeding is necessarily forbidden. 5.14 Though Mr. Kabir has relied upon other judgments, of more recent vintage, some of the Hon'ble Supreme Court and some others of the Learned Kerala High Court which have relied upon judgments of the Hon'ble Supreme Court and some other Bench decisions of that Hon'ble Court, the said submissions and the question of law raised by Mr. 5.14 Though Mr. Kabir has relied upon other judgments, of more recent vintage, some of the Hon'ble Supreme Court and some others of the Learned Kerala High Court which have relied upon judgments of the Hon'ble Supreme Court and some other Bench decisions of that Hon'ble Court, the said submissions and the question of law raised by Mr. Kabir depend heavily upon what "cannabis psychosis" means and whether, to a non-medical man like a Chief Judicial Magistrate, they ought to have formed the basis of "a reason to believe" that the appellant was mentally unsound. 5.15 The coordinate bench hearing the matter, had considered this aspect to be of sufficient importance to have directed the filing of two several reports by the psychiatrist concerned, by its orders dated June 14, 2018 and July 3, 2018. The coordinate bench noted, that the doctor who had issued the discharge slip in favour of the appellant is still discharging functions as a consultant psychiatrist in the same hospital. He was asked to give a report as to "whether the term cannabis psychosis with hallucination and depression' is prima facie enough to create a doubt in the mind of a non-medical person as to whether it relates to a person of unsound mind suffering from mental illness." The Order dated July 3, 2018 records that while the report filed in response to the earlier order of this court was clear as to the finding that the accused is now fit to stand trial it did not address the issue for which the report was commissioned by the court. Thus the second report was filed. The first report is dated June 19, 2018. The second report is dated July 4, 2018. They are both so admirably brief, that in the interests of appreciating the reasons for my finding on the point as in paragraph 6.14 above, on which the entire set of submissions advanced by Mr. Kabir relating to nullity, depends, I set out their contents. 5.16 The text of the report dated June 19, 2018:- "Shri Sanil Kumar, S/o Late Bir Bahadur was referred to Consultant Psychiatrist, GB Pant Hospital, Port Blair on 24.09.2015 for examination and treatment suspecting mental illness by Chief Medical Officer District Jail, Port Blair. Patient was admitted in Psychiatric ward on same day i.e. on 24.09.2015 and detail history taking and Mental Status Examination was conducted on him. Patient was admitted in Psychiatric ward on same day i.e. on 24.09.2015 and detail history taking and Mental Status Examination was conducted on him. After repeated interviews, a diagnosis of CANNABIS PSYCHOSIS WITH ALCOHOL DEPENDENCE was arrived at and necessary treatment was instituted. Patient responded to treatment and he was discharged from Psychiatric Ward on 05.10.2015 with advice to follow up in Psychiatric OPD which he has been doing till date. I have examined Shri Sanil Kumar today and in my opinion he is fit to stand trial." (Emphasis supplied by the doctor himself) "The discharge slip issued to Shri Sanil Kumar under-trial was intended to assist him in continuation of treatment and as a referral document in future to follow up and not as a medico legal document to be produced in Court of Law. Still I vouch and vet it. At no point of time in past, this patient was referred to Consultant Psychiatrist to ascertain his fitness to stand trial or otherwise. CANNABIS PSYCHOSIS WITH ALCOHOL DEPENDENCE may arise suspicion in the mind of Hon'ble Judge trying this case especially with a history of admission in Psychiatric Ward and in such circumstances the case ought to have been referred to the Consultant Psychiatrist for any clarification and his fitness to stand trial or otherwise before committing patient to trial." 5.17 The text of the report dated July 4, 2018:- "Hon'ble High Court has raised the following question and I quote as to whether the term CANNABIS PSYCHOSIS with hallucination and Depression is prima facie enough to create a doubt in the mind of non medical person as to whether it relates to a person of unsound mind suffering from mental illness. Answer to this question is YES and NO because the response of non medical common man will depend upon his intelligence, his awareness and knowledge about Psychiatric illness, his general knowledge, his focus and attentiveness at the time of dealing with such a report, when brought to his notice." 5.18 As against the above, the Station House Officer of the concerned police station has affirmed an affidavit on July 30, 2018 that the opinion/report of the doctor in answer to the court's query was "yes and no" (paragraph 14 of the affidavit) and that: "The accused person Mr. Sanil Kumar was normal man at the time of arrest of commission of offence of murder of his wife by strangulation and there was no abnormality detected at the time of recording of his statement. He was also normal man when he was produced before the court of Chief Judicial Magistrate" (at paragraph 5 of the said affidavit). 5.19 Interestingly, the officer who has affirmed this affidavit was not the station house officer at the relevant time between September 2015 and October, 2015. He has affirmed the contents of paragraph 15 of his affidavit as information derived from Mr. Mahesh Kumar the then Station House Officer of Police Station Humfrygunj and Investigating Officer of the Case. However, even he could not allege on oath that he had reason to believe that the accused/Appellant was mentally sound and capable of making his defence as on January 28, 2016 when the Appellant was committed by the Learned Chief Judicial Magistrate to the Court of Sessions for trial. 5.20 I choose to take the two reports together. They clearly show that a person does not have to be a genius or qualified medical practitioner to have suspected that the Appellant was not mentally sound on and from September 24, 2015. Any person of average intelligence and awareness, applying his mind to the discharge slip ought to have suspected as much. A Learned Chief Judicial Magistrate cannot be deemed to have less than average intelligence or awareness. He therefore, had "reason to believe" within the meaning of Section 328(1) of the Code of Criminal Procedure. Having thus answered the question I had framed in paragraph 5.14 above, I must add a few words about the prosecution case including that the first report opines that the Appellant is now fit to stand trial and that the answer to the question posed by the court is "yes and no". The question never was whether on July 4, 2018 the Appellant was ready and fit to stand trial and what his mental state was on July 4, 2018. The question is and has always been, whether the Learned Chief Judicial Magistrate had reason to believe that the Appellant was of unsound mind and consequentially incapable of making his defence as on January 28, 2016 when he was committed to the sessions court. The question is and has always been, whether the Learned Chief Judicial Magistrate had reason to believe that the Appellant was of unsound mind and consequentially incapable of making his defence as on January 28, 2016 when he was committed to the sessions court. The discharge slip, nature of ailment, being cannabis psychosis with alcoholic depression and its continuance though response was shown to treatment, and requirement of continuing medication, all show that he had or ought to have had "reason to believe." So far as the "yes and no" opinion is concerned, with respect to the coordinate bench, the language in the first report of June 19, 2018 was clear enough in the last paragraph for the above finding reached by me to be maintained. In fact, the second report of July 4, 2018, has those equivocal words in the last paragraph only because the doctor did not want to offend either the circuit Bench or the Learned Chief Judicial Magistrate by casting aspersions on the former's understanding and the latter's intelligence. 5.21 Once the above question is answered in favour of Mr. Kabir's client, the consequent question, whether the procedure prescribed in Section 328 of the Code ought to have been followed, answers itself. It is mandatory and ought to have been followed. It was not. Because of the principles of law laid down in the precedents relied upon by Mr. Kabir, as in paragraph 5.13 above, and which bind me, I am constrained to hold that the result of not following such mandatory procedure but in fact, acting contrary to the statutory provisions, rendered the order by which the Learned Chief Judicial Magistrate committed the Appellant to trial by the Sessions Court, into an utter and irretrievable nullity. It did not merely vitiate the proceeding. It permanently stamped the proceedings with an invalidity which no amount of participation in the proceedings could cure. 5.22 In fact in a similar case, where such continuation of medical treatment and psychosis had manifested similar aggressive behavior, the Hon'ble Supreme Court had been pleased to set aside the conviction which the Hon'ble High Court had been pleased to decline to interfere with, on a clear finding that material evidence of a like nature as to the mental condition of the accused had been withheld from the court and/or had not been considered, and it was sufficient as a defence. This is the unreported judgment in the case of Devidas Loka Rathod vs. State of Maharashtra being Criminal Appeal No. 814 of 2017 decided on July 2, 2018. Though my judgment is not based on it, I am fortified by it because it construes what is "reason to believe" and continuation of medical treatment for a mental ailment, if not considered by the court, has been considered to be grave enough to vitiate the trial itself. 6. Now we come to the fourth question which falls for consideration as I have summarized in paragraph 2 of this Judgment. To understand why this question falls for consideration, three matters of record will have to be quoted. The first is the question (and the answer) asked by the Learned Magistrate recording the confessional statement of the Appellant purportedly under Section 164 of the Code. The second is Section 164, particularly sub-section (5) of the Code. The third is a provision of the Constitution of India. 7. The confessional statement recorded by the Learned Magistrate on September 18, 2015 appears at and from page 13 of the Supplementary File of the LCR. At page 15 is the following question:- "22. Have you taken oath" (a) Yes." 8. Section 164 of the Code of Criminal Procedure reads as follows:- "Recording of confessions and statements:- (1) Any Metropolitan Magistrate of Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial: Provided that any confession or statement made under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence: Provided further that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force. (A) where, in any island, there is no Judicial Magistrate for the time being, and the State Government is of opinion that it is necessary and expedient so to do, that Government may, after consulting the High Court, specially empower any Executive Magistrate (not being a police officer), to exercise the powers conferred by sub-section (1) on a Judicial Magistrate, and thereupon references in section 164 to a Judicial Magistrate shall be construed as references to the Executive Magistrate so empowered. Vide Regulation 1 of 1974, See. 5 (w.e.f. 30-3-1974) (2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily. (3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorise the detention of such person in police custody. (4) Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect:- I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him. (Signed) Magistrate (5) Any statement (other than a confession) made under sub-section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstance of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded. (Signed) Magistrate (5) Any statement (other than a confession) made under sub-section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstance of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded. (6) The Magistrate recording confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried." 9. Article 20 of the Constitution of India reads as follows:- "Protection in respect of conviction for offences:- (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, not be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. (2) No person shall be prosecuted and punished for the same offence more than once. (3) No person accused of any offence shall be compelled to be a witness against himself." 10. Mr. Kabir, Learned Advocate, submits that Section 164(5) of the Code clearly provides that an oath can be administered by the Magistrate in case of any statement other than a confession. He says that this is to ensure that Article 20(3) of the Constitution of India is not violated in the name of a magisterial confession. He says that the right under Article 20(3) of the Constitution of India, cannot be waived. Therefore, administering an oath for recording a confession is not merely violation of the procedure prescribed by law, but also a violation of Article 20(3) aforesaid. The administering of the oath in this case, constitutes compulsion of the accused to bear witness against himself. 11. Mr. Mondal, Learned Public Prosecutor submits that since the confession read as a whole, shows that it was voluntary, and without the appellant being pressurized and since as on September 18, 2015, when the confession was recorded, there was no whisper of cannabis psychosis even in the LCR, mere administration of oath does not vitiate the confession. Mere administration of oath, he submits cannot be called "compulsion" and therefore, does not fall foul of Article 20(3) of the Constitution of India. 12. Mere administration of oath, he submits cannot be called "compulsion" and therefore, does not fall foul of Article 20(3) of the Constitution of India. 12. Let us then see, what "oath" has come to mean in the eye of law. I fall back on that trusted tome "Black's Law Dictionary", 10th Edition edited by Bryan A. Garner (Thomson Reuters, 2004) which defines oath as follows:- "Oath: (before 12th century) A solemn declaration, accompanied a swearing to God or a revered person or thing, that one's statement is true or that one will be bound to a promise. The person making the oath implicitly invites punishment if the statement is untrue or the promise is broken. The legal effect of an oath is to subject the person to penalties for perjury if the testimony is false." Since it is the accused to whom such oath has been administered, prior to recording his confessional statement, I think another meaning of oath, should also be considered. This has also been defined in the opus cited, at page 1239, in the following manner:- "Oath ex officio: At common law, an oath under which a person accused of a crime swore to answer questions before an ecclesiastical court.-Also termed oath de veritate dicendait required defendants to agree, under penalties of contempt, to answer questions that would be put to them, and this before they knew what the charges against them were." 13. Seen from that angle, administration of an oath before recording a statement by a magistrate is certainly compelling a person to give evidence against himself. The very fact that the confessional statement is preceded by questions put by the Magistrate advising the appellant that any answer given by him and/or anything stated by him can and shall be used against him shows that the person who is accused of an offence is bearing witness against himself, and the magistrate has first required him to take an oath which under the Code he is not supposed to do. This therefore amounts to a compulsion within the meaning of Article 20(3) of the Constitution of India and I am afraid that I cannot agree with Mr. Mondal that this was merely a technical flaw, which does not detract from the substance of the confession. I must most respectfully differ. This therefore amounts to a compulsion within the meaning of Article 20(3) of the Constitution of India and I am afraid that I cannot agree with Mr. Mondal that this was merely a technical flaw, which does not detract from the substance of the confession. I must most respectfully differ. This flaw has made mince-meat of the constitutional guarantees which are available even to a person who is mentally sound. Here, we are dealing with a person whom the learned Magistrate ought to have had reason to believe, was not mentally sound and not capable by reason thereof, of making his defence. That the right under Article 20(3) of the Constitution of India is available even at stages prior to the trial has long been settled, in the cases of M.P. Sharma vs. Satish Chandra, AIR 1954 SC 300 and Collector of Customs vs. Calcutta Motor Cycle Co. and Others, AIR 1958 Cal 682 . In fact, The Hon'ble Supreme Court has deprecated the practice of recording a confessional statement on oath made by the accused and has held that taking of a statement of an accused on oath is prohibited in the case of Babubhai Udesinh Parmar vs. State of Gujarat, AIR 2007 SC 420 . The so-called confessional statement therefore could not be looked into at all. That the Learned Court below looked into it, vitiates the entire trial and it could not have been looked into at all. The said procedure was so materially irregular and in violation of the rights of the accused Appellant under Part III of the Constitution of India, that it is repugnant to a court of law and the conviction resulting from such trial must be struck down. 14. In the view of the aforesaid, I have no doubt in holding that the committal to the court of sessions by the Learned Chief Judicial Magistrate was so fatally vitiated by procedural ultra vires as contended by the Appellant, that the trial itself and the conviction, are equally procedurally ultra vires and therefore are all nullities and ought not to be allowed to stand. The consequence of a nullity can only be a nullity. The sentence based thereon therefore deserve to be and are quashed and the conviction and the consequent sentence are therefore set aside. 15. The consequence of a nullity can only be a nullity. The sentence based thereon therefore deserve to be and are quashed and the conviction and the consequent sentence are therefore set aside. 15. Now I have to come to the question of what is to be done in respect of the case itself. Ordinarily, the consequences of such a finding in a case where the maximum punishment for the offence is imprisonment for life and in the rarest of rare cases death, the fact that the appellant has undergone the sentence imposed to the extent of three years out of life, would not earn the appellant any virtue or consideration and straightway a remand would have been ordered, to the learned Chief Judicial Magistrate to start anew from the stage of the inquiry under Section 328(1) of the Code. However, Mr. Kabir asks the court to reconsider, and reappraise the evidence. He does so in these terms. 16. Mr. Kabir, submits that in view of the aforesaid this Court may apply its Judicial mind to the materials in record for coming to the conclusion that the appellant would have to be acquitted, if necessary by fresh appraisal of evidence as empowered by the Code to hold that the guilt of the appellant cannot be established beyond reasonable doubt. 17. Mr. Mondal, the Learned Public Prosecutor submits that while he continues to object that there was anything in the demeanor on the face of the records which ought to have made the learned Chief Judicial Magistrate seek the opinion of a psychiatrist, before proceeding further with the inquiry or that that the Appellant had, prior to the appeal and the fortuitous appearance of Mr. Kabir, ever hit upon this ingenuous plea, he has no objection to us going into the materials already on record including the evidence adduced. He submits very fairly and in discharge of the true duty of the prosecution that this is because the appeal is against conviction and the relevant grounds have been taken in the memorandum of appeal and the appellant, as accused, has every right to have the matter decided by this, the last court of fact. 18. He submits very fairly and in discharge of the true duty of the prosecution that this is because the appeal is against conviction and the relevant grounds have been taken in the memorandum of appeal and the appellant, as accused, has every right to have the matter decided by this, the last court of fact. 18. The court therefore, chooses not to let the matter rest by recording only the findings as in paragraph 14 of this judgment in respect of the questions of law formulated in paragraph 2 of this judgment, but proceeds to reappraise the evidence to see whether the guilt of the accused has been proved beyond reasonable doubt. 19. Let us see, what the prosecution case, as I summarize it from the LCR, is as follows:- (a) One Jeevan Krishna Roy, resident of Manjery complained in writing to the police station at Humfreygunj on 16.09.2015 alleging inter alia that his daughter Sharmishta Roy was married to one Sanil Kumar about 15 years back and they were blessed with two daughters. Sanil had executed an agreement for sale in respect of his 500 sq. mtrs of land in favour of one Amal Mazumder of Lamba Lines and was having dispute with Gyan Sharma and Chander Sekhar Gupta. It was also mentioned that on 12.09.2015 his daughter namely Sharmishta came to his house at Manjery and alleged that her husband was wasting money by selling his landed property, and then Sanil also came to his house and quarrelled with his daughter regarding the documents of his landed property and also assaulted her in front of the complainant and his wife. When they threatened to go to the police, the only Sanil begged their pardon. It was further alleged that on 16.09.2015 at about 10:30 am, the complainant came to know that his daughter Sharmishta was murdered and hearing the same, he immediately rushed to the house of his daughter and found her lying dead, and Anil, the brother of Sanil, stated that Sanil had killed Sharmishta Roy by strangulation and went towards Dhanikhari road. (b) There was no direct evidence forthcoming against the appellant whatsoever. The prosecution depended upon circumstantial evidence and the so-called confessional statement recorded by the learned magistrate under Section 164 of the Code. (b) There was no direct evidence forthcoming against the appellant whatsoever. The prosecution depended upon circumstantial evidence and the so-called confessional statement recorded by the learned magistrate under Section 164 of the Code. This latter could not have been relied upon, because of the findings about the same I have recorded at paragraphs 13 and 14 above. Therefore, it becomes imperative for the court to examine the chain of circumstances as made out by the prosecution to support the allegations as in paragraph 19(a) above. 20. The said chain of circumstances as attempted to be made out by the prosecution is as is reproduced below:- (i) Motive - land dealings and sale which the deceased was trying to stop the appellant from entering into, causing enmity of the husband and wife. (ii) Events of 12.09.2015 at the parental home of the deceased including fights, abuse and assault on the deceased by the appellant, which were the precursor to the murder. (iii) Extra-judicial confession of the appellant to his own brother and sister-in-law. (iv) Judicial confession of the appellant before a Learned Magistrate. (v) Conduct of the appellant before the Court including during framing of charge, and in 313 examinations where he sought to admit his guilt before the Court again and again. (vi) Circumstance of homicidal death due to asphyxia caused by manual strangulation. 21. So far as the first two points being 20(i) and 20(ii) are concerned, Mr. Kabir, learned Advocate, took the court through the evidence and materials on record. It becomes evident the complaint on which the first information report was registered is false, manufactured, and not merely embellished or exaggerated once the materials brought on record by the prosecution witnesses are considered. First and foremost from the First Information Report till the end of the trial and the conviction there was no whisper of Section 498A in any aspect of the case, whether the FIR, Chargesheet, Charge framed, or conviction. The situation clearly indicated that there was never any background of any physical or mental torture of abuse of the deceased by the appellant, nor was he ever prosecuted for any such allegations. Rather a brief scrutiny of the evidence will show that even the prosecution witnesses do not support these false stories and manufactured allegations just to send an innocent man to jail. Rather a brief scrutiny of the evidence will show that even the prosecution witnesses do not support these false stories and manufactured allegations just to send an innocent man to jail. I find, that though the complainant waxed eloquent in the First Information Report and tried to make out a case, as evident from the complaint on page 51 of the paper-book, that there was a long history of abuse, quarrels and assault on the deceased by the appellant, that there were issues regarding sale of specific land to specific persons, and disputes were described in detail and that there was a graphic description of assault in front of the complainant and his family and attempts to murder her right then and there in front of them by strangling her neck, such lurid descriptions and even most of the alleged facts are absent from the testimony of the complainant, examined as PW-1 by the prosecution. His deposition shows him to be a government employee and hence reasonably literate and aware of the legalities involved. In Court he tries to support the prosecution but admits in cross examination that on 12.09.2015 he did not hear any sound of quarrel or altercation between the deceased and the appellant, and although he says his daughter was distressed in the morning he admits he did not see any mark of injury on her body. Where then, goes the fantastic tale of brutal assault and attempt to strangle her as alleged in the FIR? More importantly he admits that his son was also there on that night, but he did not talk to his son about the matter. Moreover as far as property disputes go he cannot say the details of the plot or the ownership of the land. All in all this witness has deposed in Court on oath in a manner and as to facts diametrically opposite to the contents of the complaint which he is supposed to have lodged. His testimony does not prove, beyond a reasonable doubt either the guilt of the appellant or even the so-called land dispute or any motive on the part of the appellant. If there be a term "suspicion evidence" his entire evidence could be called hearsay and a tissue of suspicions which ought to have been disbelieved, in the overall circumstances of the case. 22. If there be a term "suspicion evidence" his entire evidence could be called hearsay and a tissue of suspicions which ought to have been disbelieved, in the overall circumstances of the case. 22. PW-7 is the mother of the deceased who also tried to support the prosecution but admitted that prior to deposing in Court, she met the Learned Public Prosecutor in his chamber at Court and the learned PP "described" to her about the case. Strangely enough this witness further says that she has never disclosed about the torture of her daughter to the neighbours. Even going by her statements in chief they are a totally different version from the allegations in the original complaint, no doubt her deposition was assisted by the "description" of the case provided to her on the day of her deposition. Her testimony does not fill me with any sense of confidence. 23. Ironically, the brother of the deceased who supposedly was present on 12.09.2015, is examined as PW-8 and he says absolutely nothing before being tendered by the prosecution. All he can say is that he "heard his brother in law had strangulated his sister." Despite his statement in cross examination that he used to go to his sister's house on many occasions and attend parties and used to talk to her, there is not a whisper form him of torture, abuse, assault or land disputes. 24. PW-10 is the elder daughter of the deceased and accused who was aged 13 years on the date of her deposition. She says her parents were together running a poultry farm and petrol pump at Dhanikari and sometimes they used to quarrel and sometimes they were normal. She does not know the reason of their quarrels. She does not support the story of quarrels on 12.09.2015 or 13.09.2015 and rather says that later on she "came to know" that her father strangulated her mother to death. Very ironically she says in cross that she came to Court for her deposition with her maternal grandfather and uncle prior to which she had talk with her "masi." We hear from her that she is residing with her maternal grandparents and that she learnt from her grandmother that her father owns land and property. Very ironically she says in cross that she came to Court for her deposition with her maternal grandfather and uncle prior to which she had talk with her "masi." We hear from her that she is residing with her maternal grandparents and that she learnt from her grandmother that her father owns land and property. The witness further clarifies that she neither know the reason of quarrel between her parents nor how her mother actually died and has never met her father in jail. Admittedly, she was at an impressionable age, living with her maternal grandparents and she did not have personal knowledge nor deposed that her father killed her mother but only that she came to know it. The testimony of the said daughter neither proves beyond reasonable doubt that the accused killed his wife, nor in fact, any reason why he would do so. The picture of the family which this witness painted, of her own knowledge, is the picture of every married couple-sometimes there are quarrels, sometimes things are normal and it is mostly the parents-in-law who indulge in dark whispers about one of the spouses to the children. I am afraid this does not advance the prosecution case or make any link in the chain which can be believed. 25. The younger daughter of the deceased and appellant is examined as PW-11, aged 12 years on the date of deposition, but she is tendered by the prosecution and adds nothing to the prosecution case. The evidence of the two daughters, PW-10 and PW-11 do not support the prosecution history of abuse, torture and assault and, apart from depicting normal domestic family life, rather indicate the strong possibility of tutoring and implanting the prosecution version in a young, impressionable mind which actually had no direct knowledge of anything material. 26. PW-6 is the sister of Sanil who says she heard that her brother strangulated the deceased. She knows nothing else. PW-9 is the other sister who also says nothing and is tendered by the prosecution. Thus they add nothing to the case of the prosecution far less make out a chain of circumstances which is required in a case for convicting on the basis of circumstantial evidence. 27. PW-4, Pradhan of the Gram Panchayat knows nothing material and makes it clear in cross that he has no personal knowledge of the incident. Thus they add nothing to the case of the prosecution far less make out a chain of circumstances which is required in a case for convicting on the basis of circumstantial evidence. 27. PW-4, Pradhan of the Gram Panchayat knows nothing material and makes it clear in cross that he has no personal knowledge of the incident. He is merely a formal witness who has heard from PW-1. PW-5 is another local person who is a post occurrence witness. Interestingly, PW-5 has an interesting role. She deposes that the PW-3, who is the wife of Anil (PW-2) and the star witness of the prosecution came and met her right after the incident but did not tell her anything beyond the fact the wife of Sanil was not responding. Another local witness is PW-12 who says nothing, but actually contradicts the prosecution version of bad relations between the deceased and the appellant by saying, that Sanil proposed the name of his wife as a candidate for panchayat Pradhan, and the appellant himself was a panchayat member from 2010 to 2015. This version in fact shows a responsible man who supported his wife, even proposed her name for candidacy in the panchayat and was not the devil as the prosecution sought to portray him. 28. The star witnesses of the prosecution are PW-2 (the brother of the appellant) and PW-3 (the sister in law). It is to them the appellant is supposed to have confessed his guilt right after committing the murder, creating the circumstance of extra judicial confession to which I will come later. Suffice it to say that PW-2 says in Court that the relation between the appellant and the deceased was good and he said that he was not at home on that day and he "came to know that his bhabi died" and that "his brother murdered her." This witness was declared hostile but not before he attests to the good relations between the deceased and the appellant. Ironically, his wife, the other star witness is not declared hostile although she says in her examination-in-chief itself that the relation between the appellant and the deceased was good. Thus even the star witnesses of the prosecution do not support any history of torture, abuse, assault or allegations of land disputes. Ironically, his wife, the other star witness is not declared hostile although she says in her examination-in-chief itself that the relation between the appellant and the deceased was good. Thus even the star witnesses of the prosecution do not support any history of torture, abuse, assault or allegations of land disputes. In fact PW-3 only said that the relation between the deceased and appellant was pretty good, there were some quarrels and disputes between them, but she cannot say the reason of quarrel- thus showing a normal domestic life. 29. I would go so far as to say that the motive, that there was a property dispute, as purported to appear from the first information report and the prosecution case and believed by the Learned court below, proceeds on a complete misconception of the evidence and the facts. The properties admittedly did not belong to the deceased, but belong absolutely to the Appellant. If he wanted to sell them or any of them, and his wife was making it difficult by hiding the title deeds, it was child's play for a man who was a member of the Panchayat for five years, to apply for a certified copy of the title deeds or property papers on the allegation that he had lost them, and then effect such transaction on the basis thereof. He did not have to kill anyone to do so. This cannot be a motive which was strong enough to make the court believe that a responsible and established family man would suddenly kill his wife during a so-called quarrel which no one who had deposed had heard. 30. Therefore I am afraid that the links number (i) and (ii) in the chain of circumstances which I have set out in paragraph 20 above, fail. I will now proceed to see whether on these links failing, the entire purported chain also fails even as an illusion, to captivate, or whether it still stands. 31. The next link in the chain is the extra judicial confession, purportedly made by the Appellant to his own brother and sister-in-law, the PW-2 and the PW-3. Allegedly this was made by the appellant right after committing the murder. PW-2 however came to Court to depose that he was not even at home at the relevant time, let alone present to hear confessions of his brother. Allegedly this was made by the appellant right after committing the murder. PW-2 however came to Court to depose that he was not even at home at the relevant time, let alone present to hear confessions of his brother. He only says that he "came to know that his brother murdered his bhabi" but does not mention who he heard it from. Certainly it does not appear that he heard any confession of his brother. He is declared hostile, but that does not prevent him from stating the truth that drives the final nail into the coffin, id est, that he gave his statement before the Learned Magistrate as per the version of the police, being made "as per the direction of the police." This indicates the extent to which the extra judicial confession can at all be relied on as far as the appellant is concerned. PW-3 on the other hand proudly deposed about the confession made to her. However, she unwittingly contradicts he husband, who has stated that he was not at home, by stating that he was at home at that time. Besides, she stated in her examination-in-chief, that the relation between the appellant and the deceased was good. She says that she and her husband rushed to the house of the deceased together, but again she is contradicted by her husband who says otherwise. Most importantly she is contradicted and shown to be a liar by PW-5 who made it clear that this lady PW-3 was alone and who also did not mention PW-2's presence at all. Moreover PW-5 never mentioned anything being told to her by PW-3 who only informed her that "Wife of Sanil is not responding." A witness who allegedly had just heard a confession of murder from the accused, allegedly called another local lady to the spot to see the dead body but admittedly disclosed nothing to local lady thus called nor did the said local lady thus called see PW-2 there. These circumstances do not inspire confidence in the version of PW-3 or the extra judicial confession that she is supposedly reporting. Ironically even if one were to accept her version according to the prosecution case that the appellant made an extra judicial confession to her that is the sole piece of evidence the prosecution can show. These circumstances do not inspire confidence in the version of PW-3 or the extra judicial confession that she is supposedly reporting. Ironically even if one were to accept her version according to the prosecution case that the appellant made an extra judicial confession to her that is the sole piece of evidence the prosecution can show. It is needless to reiterate that the established position of law is that an extra judicial confession is the weakest form of evidence and requires strong corroboration. The evidence of the star witnesses PW-2 and PW-3 leaves us with one hostile, tutored witness (PW-2) one unreliable, uncorroborated, contradicted witness (PW-3). This circumstance therefore also fails, and in fact appears to be a creation of the investigating agency, if not something more sinister to try and frame the appellant, in a totally unfair twist to the tale. 32. So far as the link I have summarized as paragraph 20(iv) is concerned, in view of the findings of this Court relating to the admissibility of the so-called judicial confession (at page 82 of the paper book) as in paragraphs 13 and 14 of this judgment and how it violates Article 20(3) of the Constitution of India as also Section 164(5) of the Code, it cannot be looked into and the Learned Court of Sessions acted beyond its jurisdiction in looking into it, as did the Learned Chief Judicial Magistrate. It can therefore safely be dismissed as something which can be considered in support of proving the guilt of the accused beyond reasonable doubt. 33. So far as the conduct of the appellant is concerned, before the court below and including at the time of framing of the charge and when he was being examined under Section 313 of the Code, as summarized by me in paragraph 20(v) is concerned, I must say that the statement of the accused in pleading guilty and the statement in 313 examination cannot form a circumstance at all. This is for the simple reason that neither of them is substantive evidence according to the established law on this subject. This is for the simple reason that neither of them is substantive evidence according to the established law on this subject. The fact of guilty plea has no value nor does the examination under 313 of the Code carry any weight in light of the basic proposition that the legal advice and guidance to this appellant was woefully inadequate and not proper at all, and that mind of the appellant was one that could not be said to be sound by any stretch of the imagination especially when we see the documents indicating his continued psychiatric disorders and treatment to this day. All else having failed the prosecution certainly cannot rely on non-substantive material which does not constitute evidence to seek a conviction. I will have more to say on the question of inadequate legal representation slightly later on in this judgment. 34. The last circumstance, which I have summarized in paragraph 20(vi) as the circumstance of homicidal death due to asphyxia caused by manual strangulation, I must say that I was troubled by the fact that it was the prosecution case that the person who last saw the deceased as alive was the appellant. Therefore, it was within his special knowledge how the deceased met her death if not by strangulation by him. However, when I asked Mr. Kabir this question, he reminded me that Section 106 of the Indian Evidence Act, 1872 cannot be used in a case where there is no direct evidence about the guilt of a person and only alleged circumstantial evidence is present. If in such case, the accused is asked to prove who else could have killed the deceased, that is equivalent to asking the accused to prove that he is not guilty, which is the burden of the prosecution in a trial for culpable homicide amounting to murder - what the appellant was charged with and convicted of which this court has set aside in paragraph 14 of this judgment. There is no presumption that he is guilty and the burden of proof is still on the prosecution and even the onus has not shifted. 35. Mr. There is no presumption that he is guilty and the burden of proof is still on the prosecution and even the onus has not shifted. 35. Mr. Kabir goes on to submit that in a case where there is no direct evidence and the case relies on circumstantial evidence it is a well-established proposition of law that the chain of circumstances must be complete, it must be proved by such chain that the circumstances point beyond all reasonable doubt, to the conclusive guilt of the accused and a finding that he and he alone could have committed the crime in the manner described by the circumstances. In this case the chain is not so much broken, as nonexistent as he has argued as above. The circumstance sought to be relied on cannot therefore stand for the reasons described and hence must fail. Materials such as post mortem reports, some seized articles like broken bangles and pillow and wearing apparel of the deceased cannot by themselves prove anything apart from the fact that the lady died and that the death was homicidal in nature due to asphyxia caused by manual strangulating as appearing on the post mortem report on page 75 of the paper-book and proved by the post mortem doctor PW-13, Dr. Felicitus. There is no evidence to show who caused such homicidal strangulation. 36. Hence the only circumstance which is actually proved is that the deceased died a homicidal death due to strangulation. In absence of other circumstances pointing unerringly and conclusively to the guilt of the accused it cannot be said beyond all reasonable doubt that the appellant was responsible for this homicidal death. The finding of the Court at page 152 of the paper-book that the confessional statement unerringly points to the guilt of the accused indicates that the aspect of oath being administered in respect of the so-called confessional statement before the Learned Magistrate, in violation of Section 164(5) of the Code and thus in violation of Article 20(3) of the Constitution of India, was completely ignored by the Learned Court below which sought to airbrush this aspect and rely on that sole circumstance to convict. For the reasons given above this is not a curable defect as with other material violations of mandatory procedure. For the reasons given above this is not a curable defect as with other material violations of mandatory procedure. It is an illegality which goes against Part III of the Constitution which cannot be sustained in any form or manner whatsoever. Thus, the circumstance of unnatural, homicidal death means nothing by itself as would be sufficient to incriminate the appellant as the person who committed the crime, beyond reasonable doubt. 37. The argument of Section 106 of the Evidence Act is one that the prosecution has actually not actively canvassed at any stage of the trial or to be fair, even before this court. It has arisen because of a query from this court. However, on the basis of the submissions made before us today, the principle of law may be clarified to the extent that this provision only applies to the facts within the special knowledge of an accused person, once the prosecution has been able to prove the chain of circumstances. Where the prosecution has not been able to prove the circumstances, the prosecution cannot shift the burden to an accused to prove his innocence. The only way in which Section 106 can be applied is for the prosecution to make out its case in entirety, thereby causing the accused to explain the materials proved against him. It cannot be used as a substitute for a prosecution case, for the prosecution to violate the golden rule of presumption of innocence by calling on the accused to prove that he is not guilty by virtue of an explanation regarding facts in his special knowledge, id est, did he kill his wife or not, in this case. Thus, Section 106, as clarified by the Hon'ble Apex Court repeatedly, cannot be utilized as a tool of an ineffective and failed prosecution, to try and make the accused give his own version of events, or calling upon him to prove that he is innocent. Without multiplying precedents, Mr. Thus, Section 106, as clarified by the Hon'ble Apex Court repeatedly, cannot be utilized as a tool of an ineffective and failed prosecution, to try and make the accused give his own version of events, or calling upon him to prove that he is innocent. Without multiplying precedents, Mr. Kabir relies upon the judgment of The Hon'ble Supreme Court in the case of Murlidhar and Others vs. State of Rajasthan, AIR 2005 SC 2345 for such proposition and I respectfully follow the ratio of such decision where it has been stated in no uncertain terms that where the prosecution puts forward a specific and positive case and then fails to prove it, it was not open to the court to fall back on the rule of burden of proof under Section 106 of the Evidence Act, especially when it was not the case of the prosecution at any stage in the trial that from the materials on record Section 106 of the Evidence Act applied. 38. Therefore, it is safe to conclude that it cannot be said that the materials are on record would irresistibly lead to a conclusion that none but the appellant could have committed the offence. Putting it slightly differently, the materials on record brought by the prosecuting agency do not prove that the accused appellant is guilty of the crime he is accused of, beyond reasonable doubt. 39. Before parting with the case, I must also deal with another submission made by Mr. Kabir. He submits that the accused/appellant did not have a fair trial. He had inadequate legal representation. Admittedly he did not have any legal representation nor could pay for his own representation and legal representation was provided to him free of cost by the legal services authority. The law on legal representation of the accused is well elaborated by authorities from after the abolition of the Star Chamber and we have progressed beyond the Tudor courts of justice when Sir Edward Coke was the Attorney General, and the law has been further settled from hoary antiquity by the Hon'ble Courts at least from after the independence of this country. Every accused has the right to a proper defence, which is a basic element of a fair trial. No justice can be said to be done, in a case where the Constitutional and statutory safeguards of having a proper defence counsel are violated. Every accused has the right to a proper defence, which is a basic element of a fair trial. No justice can be said to be done, in a case where the Constitutional and statutory safeguards of having a proper defence counsel are violated. Every accused has the right to be defended by a lawyer of his choice, and if he does not have one, it is the duty of the Court to ensure that a lawyer is provided to him at the expense of the State. This is one of the most basic tenets of our criminal jurisprudence and legal system. Moreover, it has been repeatedly held by the Hon'ble Supreme Court that such representation does not mean a mere token set of appearances by a lawyer, but a full and adequate representation, where proper defence is taken and all points are raised on behalf of the accused, so that he is given a full defence and a proper trial. Anything less than this, results in a mistrial and a failure of justice, with grave prejudice being caused to the accused. In this case, it would appear that the accused did not have counsel representing him from the very beginning. He was therefore ordered to be provided with a lawyer by the District Legal Services Authority, and a lawyer was duly provided to him. The level of advice and assistance provided to the accused during the trial seems to be less than adequate, for the simple reason that extremely vital points were not raised before the Learned Magistrate or the Learned Trial Court, Including points relating to the mental condition of the accused as apparent from the record. Apart from this, vital arguments were not made, and it appears that there was misdirection of the energies of the court-appointed defence counsel. On many occasions the learned counsel provided by the legal services authority simply failed to appear. Many important questions were not asked though they cried out to be so asked, and many important arguments apparent from the face of the record, were not made. On many occasions the learned counsel provided by the legal services authority simply failed to appear. Many important questions were not asked though they cried out to be so asked, and many important arguments apparent from the face of the record, were not made. Reference has been made in the judgment at page 98 to arguments based on dowry death Section 304B of the Indian Penal Code, and Sections 113A/113B of the Evidence Act, which were canvassed by the Learned defence counsel during the trial, none of which has any application whatsoever in the instant case, which is not a case of dowry death in the first place. Moreover, on occasions the learned counsel did not even deign to appear before the trial Court, and at least one witness went without cross examination owing to such absence. 40. This being the case, with the due measure of respect as deserved by the Learned defence counsel being given to him, it cannot possibly be felt that the accused had a proper and adequate defence in the trial, or that he received a fair trial. Therefore in light of the first and second issues raised herein, it would appear that the appellant has faced a trial which was unfair, prejudicial and in violation of established procedures of law. That being the case, the safeguards under the Constitution and the Code of Criminal Procedure stand violated and the trial must be declared as a mistrial. 41. I have considered the rival submissions and have already recorded my findings so far as the questions of law raised in paragraph 2 by way of the discussions so far and what has been expressly decided in paragraphs 13 and 14 of this judgment. While considering the so-called circumstantial evidence from paragraph 18 I have already held at paragraph 38 above, that re-appreciating the evidence, after considering the arguments of both the sides, I have found that the prosecution could not prove the guilt of the accused beyond reasonable doubt. The accused no doubt did not have a fair trial. So far as the question raised ex debito justitiae in paragraph 15 of this judgment, it still requires an answer. 42. What is to be done? The accused no doubt did not have a fair trial. So far as the question raised ex debito justitiae in paragraph 15 of this judgment, it still requires an answer. 42. What is to be done? Where a man has been convicted illegally and in violation of his constitutional safeguards, and the evidence recorded against him does not prove that he is guilty beyond reasonable doubt, will I reward the prosecution for its fault by directing that the accused goes through the torture of another inquiry, another possible committal to sessions, another sessions trial so that the prosecution gets a second round to try and prove what it could not, even on merits, the first time? Do I reward the prosecution with a second chance so that it reaps the benefit of having acted procedurally ultra vires? That would not be justice. That would not even be justice according to the laws. The superior courts of records have never been silent in this country, whether in the winter of autocracy or the summer of majoritarianism, the fall of the patriarchs or the briefest spring of democracy - they have spoken in the same voice of justice declaring fiat justitia ruat caelum. This court would rather choose to let the heavens fall than do injustice according to the laws. 43. In the above facts and circumstances and the discussions above, and my findings at inter alia paragraphs 13, 14 and 38 above, I hold that the materials on record do not warrant the holding of a second trial or even inquiry, and cannot be relied upon to form a chain of circumstances pointing to the guilt of the appellant beyond reasonable doubt and the order dated January 28, 2016 committing the appellant to the court of sessions is set aside, and the trial held by the said court of sessions is also set aside, both as nullities and the consequent conviction and the sentence are set aside and quashed, not merely as a nullity by consequence of the above, but also by re-appreciating the evidence and by acquitting the accused appellant after having given him the benefit of doubt. 44. The appeal is thus allowed. The State shall bear the costs of both the parties. 44. The appeal is thus allowed. The State shall bear the costs of both the parties. Later The Department is directed to communicate a copy of this judgment and order to the Superintendent, District Jail, Prothrapur such that the appellant can be set at liberty within 24 hours from the date of communication of this order.