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2019 DIGILAW 989 (GAU)

Padmabati Mardi @ Padmamoti v. State of Assam

2019-09-04

M.R.PATHAK, SANJAY KUMAR MEDHI

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JUDGMENT : Manash Ranjan Pathak, J. 1. This appeal from jail is by the accused appellant Smt. Padmamati Mardi @ Padmabati being aggrieved with the judgment and order of conviction and sentence dated 04.08.2017, passed by learned Sessions Judge, Kokrajhar in Sessions Case No. 19/2017 whereby she has been convicted under Section 302 IPC and sentenced to undergo Rigorous Imprisonment for life with fine of Rs. 5,000/- in default of payment of the same, to undergo further Simple Imprisonment for 3 (three) months for committing the murder of Phulmani Mardi (Pulo Mardi), her sister. 2. The prosecution case is that the informant Ram Mardi, PW-2, on 23.10.2016 lodged a written ejahar (Exhibit-1) before the Gurufela Police Out Post of Kokrajhar district, stating that on 22.10.2016 around 08:00 in the morning, when his sisters, Smt. Padmamati Mardi @ Padmabati and Phulmani Mardi were consuming liquor together in the house of the former, both the sisters started quarrelling, during which the younger sister Smt. Padmabati Mardi, inflicted a dao blow on the head of the elder sister Phulmoni Mardi and also cut her hand with it. The informant also stated that said Phulmoni Mardi, who was about 65 years old, ran to his house to save herself, but she died after some time on reaching his house. Said ejahar of the informant was recorded as Gurufela Out Post GD Entry No. 414 dated 23.10.2016 and forwarded to the Officer-in-Charge of Kachugaon Police Station, wherein the same was registered as Kachugaon Police Station Case No. 72/2016, corresponding to GR (GPR) No. 655/2016 under Section 302 IPC, against the accused appellant. Accordingly, the case was set in motion. 3. Said ejahar of the informant was recorded as Gurufela Out Post GD Entry No. 414 dated 23.10.2016 and forwarded to the Officer-in-Charge of Kachugaon Police Station, wherein the same was registered as Kachugaon Police Station Case No. 72/2016, corresponding to GR (GPR) No. 655/2016 under Section 302 IPC, against the accused appellant. Accordingly, the case was set in motion. 3. The Investigating Officer of the case visited village No. 1 Lalpur, recovered the accused Smt. Padmamati Mardi @ Padmabati from the house of one Dinesh Hasda (PW-5), wherein she was found tied with a rope by public and was handed over to him on his visit, retrieved the dead-body of the deceased from the house of one Lal Mardi, visited the place of occurrence at village No. 2 Lalpur, drawn its sketch map (Exhibit-3), seized one Boro dao vide Seizure List Exhibit-1 (MR No. 52/16), recorded the statements of the witnesses acquainted with the facts of the case under Section 161 Cr.P.C. brought the dead-body to the Gurufela Outpost and also the accused, conducted the inquest on the dead-body on 23.10.2016 at 11:00 am and prepared the Inquest Report, sent the dead-body of the deceased to R.N.B. Civil Hospital, Kokrajhar for its post mortem examination, collected the Post Mortem Report of the deceased Phulmoni Mardi dated 23.10.2016 (Exhibit-2) and on completion of the investigation of the case, filed the Charge Sheet vide No. 51/2016 on 31.12.2016 (Exhibit-4) against the accused under Section 302 IPC. 4. Section 302 IPC being a Sessions triable offence, the learned Sub-Divisional Judicial Magistrate (M), Gossaigaon by its order dated 09.02.2017 committed the said GR (GPR) No. 655/2016 to the Court of learned Sessions Judge, Kokrajhar, wherein it was registered and numbered as Sessions Case No. 19/2017. The learned Trial Judge on 10.03.2017 framed the formal charge under Sections 302 IPC against the accused appellant for committing murder of Pulo Mardi (Phulmoni Mardi) on 22.10.2016 at 08:00 am and the charges were read over and explained to her, to which she pleaded not guilty and claimed to be tried. Accordingly, the trial of the case began. 5. To prove the guilt of the accused, prosecution examined 9 (nine) witnesses, including the informant, the Autopsy Doctor and the concerned Investigating Officer of the case. Accordingly, the trial of the case began. 5. To prove the guilt of the accused, prosecution examined 9 (nine) witnesses, including the informant, the Autopsy Doctor and the concerned Investigating Officer of the case. After the conclusion of recording of evidence of the prosecution witnesses, the learned Trial Court recorded accused/appellant's statements under Section 313 Cr.P.C. Though, no evidence was adduced from the side of defence, but the prosecution witnesses were cross examined. After conclusion of the trial, finding the guilt of the accused appellant being proved, the learned Trial Judge, by the impugned judgment dated 04.08.2017 convicted and sentenced her as aforesaid, giving rise to this appeal. 6. Heard Mr. Bhaskar Nath, learned Amicus Curiae for the accused appellant and Ms. Bornali Bhuyan, learned Additional Public Prosecutor, Assam for the State. 7. Mr. Nath on behalf of the accused appellant submitted that there is no eye witness to the incident and the entire case of the prosecution rests on circumstantial evidence. He also submitted that the prosecution failed to prove the chain of events so as to prove the guilt of the accused of committing the murder of her sister Phulmoni Mardi on the date of occurrence i.e. on the morning of 22.10.2016, as alleged. 8. He further submitted that the learned Trial Judge during examination of the accused under Section 313 Cr.P.C. did not make any specific query with regard to the leading to the discovery of the dao, alleged weapon of offence, from the roof top of her house and that in the absence of any such specific query made under Section 313 Cr.P.C. the learned Trial Court committed wrong in convicting the appellant under Section 302 IPC, sentencing her for life. 9. For those reasons, Mr. Nath, learned Amicus Curiae submits that the impugned judgment of conviction and sentence dated 04.08.2017 being bad in law, needs interference of this Court and to set aside and quash the same, thereby acquitting the accused appellant accordingly from the charge under Section 302 IPC. 10. In support of his argument, Mr. 9. For those reasons, Mr. Nath, learned Amicus Curiae submits that the impugned judgment of conviction and sentence dated 04.08.2017 being bad in law, needs interference of this Court and to set aside and quash the same, thereby acquitting the accused appellant accordingly from the charge under Section 302 IPC. 10. In support of his argument, Mr. Nath, learned Amicus Curiae has placed reliance on the judgments of the Hon'ble Apex Court as well as of this Court and another High Court, which are Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 , State of M.P. vs. Nisar, (2007) 5 SCC 658 , Niranjan Panja vs. State of West Bengal, (2010) 6 SCC 525 , Sk. Yusuf vs. State of West Bengal, (2011) 11 SCC 754 , Beda Kanta Phukan vs. State of Assam, (1991) 2 GLR 52, Ramen Saikia vs. State of Assam, (1997) 1 GLT 516, State of Assam vs. Sahabuddin and Others, (2001) 1 GLT 479, Sahidul Khan vs. State of Assam, (2012) 3 GLR 747 and Prakash Sen vs. The State, (1988) Cri. L.J. 1275. 11. On the other hand, Ms. Bornali Bhuyan, learned Additional Public Prosecutor, Assam appearing for the State submits that on scrutiny of the evidence adduced by the prosecution, going through the exhibits, including the post mortem examination report of the deceased, the recovery of dao, i.e. the weapon of the offence at her instance, its seizure report and considering the entire matter, the learned Trial Court, by the impugned judgment dated 04.08.2017, rightly convicted the accused appellant under Section 302 IPC for committing murder of the deceased Phulmoni Mardi @ Pulo Mardi on 22.10.2016 and accordingly sentenced her, which does not call for any interference. 12. Ms. Bhuyan also submitted that when the accused appellant was brought to her notice about the incriminating circumstances while recording her statement under Section 313 Cr.P.C. that PW-1 made an accusation against her that she killed the deceased, PW-2, in his evidence deposed that there was a quarrel between her and the deceased before she inflicted the cut injury on the deceased and that PW-3 in his evidence deposed that it is she who killed the deceased by dao and ran away after the incident and that the villagers apprehended her, she did not offer any explanation to those queries. Ms. Ms. Bhuyan submits that the accused should have explained as to how the deceased sustained injury while she was with the accused, also about the quarrel between both of them and further regarding her running away from the place of occurrence after committing the crime. Non explanation of all these acquisitions and queries by her, Ms. Bhuyan submits that a strong circumstance evolves regarding the involvement of the accused appellant in the alleged commission of the offence. 13. Ms. Bhuyan therefore submits that though there is no eye witness to the incident, but the prosecution could prove the guilt of the accused appellant by completing the chain of circumstantial evidence beyond all reasonable doubt. In support of her arguments Ms. Bhuyan, learned Additional Public Prosecutor placed reliance on the judgment of the Hon'ble Apex Court in the case of Trimukh Maroti Kirkan vs. State of Maharashtra, (2016) 10 SCC 681. 14. Considered the submissions advanced by the learned counsel for the parties as well as the judgments cited by them. 15. PW-8, Dr. Malenkar Phukan, the autopsy doctor who conducted the post mortem examination of the deceased on 23.12.2016 at RNB Civil Hospital, Kokrajhar, deposed that on police requisition of Gurufela Police Out Post GD Entry No. 404 dated 22.10.2016, he conducted the post mortem examination of the deceased Phulmoni Mardi (Phulo Mardi) on her proper identification, who was about 56 years old and he found the following injuries on her person:- (i) deep incised wound on the forehead extending laterally (left) to temporal and occipital region 5" x 2" x 2" clotted blood seen, (ii) incised wound on dorsum aspect of right hand 3" x 1" x1 " in size and (iii) incised wound on the back near right and below scapular region 4" x 1" x 1" in size. PW-8 during the post mortem examination of the deceased also found fracture of temporal and left occipital bones, where grey manlier came out of the wound and her lungs and heart were found to be congested. PW-8, the autopsy Doctor opined that the death of the deceased was due to shock and haemorrhage as a result of multiple injuries caused by sharp and heavy weapon. 16. PW-8, the autopsy Doctor opined that the death of the deceased was due to shock and haemorrhage as a result of multiple injuries caused by sharp and heavy weapon. 16. During his cross examination by the defence, PW-8 stated that the injuries found on the person of the deceased were ante-mortem in nature and that the death of the said deceased might have been caused due to internal injuries, but he did not see any internal injury, but as he did not record it in the post mortem examination report of the deceased. 17. Said evidence of the autopsy Doctor, PW-8 clarifies that the death of the deceased was homicidal in nature. Let us now examine the evidence adduced by the Investigating Officer of the case; the informant, who is the brother of the deceased and other witnesses who had alleged the involvement of the accused appellant in the prosecution case, except the evidence of the hearsay witnesses to the incident, so as to determine the guilt of the accused appellant in committing the murder of the deceased as alleged. 18. PW-1, Sri Rabin Hembrom @ Hemo, a resident of village No. 1 Lalpur deposed before the Trial Court that both the accused and the deceased were sisters, both of them quarrelled in the house of the accused and after getting the cut injuries in the residence of her sister, said Pulo Mardi left the house of the accused, who died of bleeding in the residence of Ram Mardi, (PW-2, informant). He deposed that he saw the dead-body of the deceased and that the incident occurred at around 8 am. He also deposed that the accused Padmabati was brought from other village and she told them that she had cut Pulo Mardi by dao and killed her and that the matter was informed to police. Said PW-1 further deposed that the dead-body of the deceased Pulo Mardi was kept in the residence of Ram Mardi (PW-2) and when police came, they took away her dead-body for post mortem examination. PW-1 went ahead deposing that he saw the dao, it was the accused who showed it, which was kept in the roof and it was the accused who led to its discovery from the roof and that police seized the dao vide seizure list to which he was the signatory and that police arrested the accused. 19. PW-1 went ahead deposing that he saw the dao, it was the accused who showed it, which was kept in the roof and it was the accused who led to its discovery from the roof and that police seized the dao vide seizure list to which he was the signatory and that police arrested the accused. 19. However, during his cross-examination by the defence, the said PW-1 stated that Pulo Mardi was from their village, he neither saw the quarrel nor the incident between the accused and the deceased, that there was hue and cry after the incident and that police came at night after the incident. During his cross-examination said PW-1 reiterated that the dao was recovered from the roof and that the accused indicated the place and it is the villagers who recovered the dao; but he stated that he did not see the recovery, police took his signature in a blank paper and that the he did not see the dao in the Court. 20. From the evidence of PW-1 it is clear that he did not see the incident, did not see the quarrel between the accused and the deceased and further, he did not see the recovery and police took his signature in a blank paper. 21. PW-2, Ram Mardi a resident of village No. 1 Lalpur deposed that the accused and the deceased were his sisters and that the deceased served in the house of the accused where she used to stay during day and night. He also deposed that in the quarrel that broke out between his said two sisters, the accused gave cut injuries to the other sister Pulo Mardi, who ran away to his house after getting cut injuries and that she died due to excessive bleeding. PW-1 stated that as he was busy in his cultivation site, he was not present (at the time of incident). He deposed that after giving cut injury, the accused ran away and police brought her to the village. He also deposed that the accused confessed her guilt before the public saying that she killed the deceased by dao and that police visited the place of occurrence. He deposed that after giving cut injury, the accused ran away and police brought her to the village. He also deposed that the accused confessed her guilt before the public saying that she killed the deceased by dao and that police visited the place of occurrence. He further deposed that the accused had shown the dao and the place where it was kept and public recovered it in her presence and he was present at that time and thereafter he lodged the FIR before police on the next day. 22. During his cross-examination said PW-2, Ram Mardi stated that accused is his elder sister and the deceased was his own sister and that he was away for his work when the incident occurred. In his cross examination, PW-2 also stated that his wife was at his residence and the villagers told him about the incident and that the deceased served in the house of the accused. He also stated that his house is at a distance from the house of the accused and that nobody saw the incident. During his cross-examination, PW-2 stated that police came to the place of occurrence at night and took his signature on a blank paper. 23. From the evidence of PW-2 it is clear that he also did not see the incident as he was busy in his cultivation site, there is a distance between his house and that of the accused and that the police took his signature on a blank paper. 24. PW-3, Munchi Murmu, a resident of village No. 1 Lalpur, is a seizure witness, who deposed before the Trial Court that he heard the incident on the next day. He also stated that he was in the meeting where the accused confessed her guilt that she had cut the deceased by dao on her head and hand. He further deposed that the accused kept the dao in the roof of her house and that police took away the accused, the dao and the deceased. In his cross examination by the defence, PW-3 stated that he did not see the incident, he was not there during the recovery, villagers informed him about the incident, but he saw the dao and that police took his signature on a blank paper. 25. It is seen that PW-3 is a hearsay witness, who neither saw the incident nor saw the recovery. 26. 25. It is seen that PW-3 is a hearsay witness, who neither saw the incident nor saw the recovery. 26. PW-4, Babulal Mardi, also a resident of village No. 1 Lalpur, is another seizure witness, who deposed before the Trial Court that it is he who informed the police about the incident and that he only heard about it. He also deposed that the accused killed her sister Phulmoni and when he visited the place of occurrence, he found Phulmoni dead. He also deposed that the accused ran away after committing the crime and they (public) caught her and that the accused confessed her guilt saying that she had killed Phulmoni by a dao and she led them to recover it from the place where the same was kept hidden and that it was seized in their presence. He also deposed that he is the signatory to the said seizure and that the dead-body along with the accused were brought to the police station. 27. In his cross examination by the defence said PW-4 stated that he did not see the incident and only saw the dead-body of Phulmoni, who was lying dead in the residence of Hopna (PW-7) and that he did not see the recovery of the dao from the place, where it was hidden and that police took his signature on a blank paper. 28. We have observed that the PW-4 is also a hearsay witness, who did not see the incident also did not see the recovery of the dao. But he saw the dead-body of Phulmoni only, who was lying dead in the residence of Hopna (PW-7). 29. PW-5 Dinesh Hasda, PW-6 Esak Saren and PW-7 Hopna Hembram are all hearsay witnesses who did not see the incident as well as the recovery and therefore, we do not think it necessary to elaborate their evidence that were recorded by the learned Trial Court. 30. PW-9, Mantu Ram Barman, the Investigating Officer of the case deposed before the Trial Court that while investigating the case he visited the place of occurrence, prepared its sketch map vide Exhibit-3 that contains his signature Exhibit-3(1), recorded the statements of the witnesses, retrieved the dead-body, sent it for post-mortem examination, collected the post-mortem report, filed the charge sheet in the case (Exhibit-4) against the accused under Section 302 IPC to face the trial. 31. 31. During his cross-examination by the defence said PW-9 stated that he visited Lalpur village on the endorsement of the case and found that the dead-body was lying at the residence of Lal Mardi. He also stated that before the accused was handed over to him, public kept her in the residence of Dinesh Hasda (PW-5), tied with rope and that he recorded the statement of the witnesses at the place of occurrence, but he did not obtain their signatures. 32. From the evidence of PW-9, Investigating Officer of the case we have noticed that the dead-body of the deceased Phulmoni was found in the residence of Lal Mardi, whereas PW-1, Sri Rabin Hembrom @ Hemo, stated that the deceased died in the residence of PW-2, Ram Mardi. PW-2, Ram Mardi stated that his sister Pulo Mardi ran away to his house after getting cut injuries and she died due to excessive bleeding. Said Lal Mardi is neither a named witness in the charge sheet, Exhibit-4, nor he was examined by the prosecution. PW-4 Babulal Mardi, an independent witness, in his examination-in-chief stated that he visited the place of occurrence and found Phulmoni dead and in his cross-examination, said PW-4 stated that he saw the dead-body at the residence of Hapna (PW-7). From the depositions of the prosecution witnesses as recorded by the Trial Court we have seen that PWs. 1,2,3 and 4 are from village No. 1 Lalpur, whereas PW-5 is from village Lakshiguri. As per Exhibit-3, the Sketch Map discloses Village Lalpur No. 2 as the place of occurrence. In the charge sheet, Exhibit-4 PWs. 2,3 and 4 were shown to be the resident of village No. 1 Lalpur; PWs. 1, 5 and 6 were shown to be the resident of village No. 2 Lalpur and PW-7 (Hapna Hembram) was shown to be a resident of village No. 3 Lalpur. From 313 Cr.P.C. statement of the accused it is seen that she hails from village No. 2 Lalpur and that the PW-2, Ram Mardi deposed before the Trial Court that there is distance between his house (No. 1 Lalpur village) and that of the accused (No. 2 Lalpur village). From the above we have found that the evidence adduced by the prosecution discloses contradiction regarding the place of occurrence of the incident and the place of recovery of the dead-body of the deceased Phulmoni. 33. From the above we have found that the evidence adduced by the prosecution discloses contradiction regarding the place of occurrence of the incident and the place of recovery of the dead-body of the deceased Phulmoni. 33. We have observed that the learned Trial Court while convicting the accused appellant considered that the dao that was allegedly to have used in giving fatal injury to the deceased was recovered at the instance of the accused. Section 27 of the Indian Evidence Act, 1872 relates to amount of information received from an accused that may be proved against the said accused, which reads as follows:- "27. How much of information received from accused may be proved. Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved." 34. In the case of Mohd. Inayatullah vs. State of Maharashtra, (1976) 1 SCC 828 with regard to the condition necessary for operation of Section 27 of the Evidence Act, Hon'ble Supreme Court observed that: "The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered." 35. In the case of Udai Bhan vs. State of U.P. (1962) AIR SC 1116, the Hon'ble Supreme Court have held that: "the expression "fact discovered" includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to the same." 36. Referring all the decisions of the Hon'ble Supreme Court, their Lordships in the case of Anter Singh vs. State of Rajasthan, (2004) 10 SCC 657 have summed up the various requirements of Section 27 of the Evidence Act which are as follows:- (1) The fact of which evidence is sought to be given must be relevant to the issue. Referring all the decisions of the Hon'ble Supreme Court, their Lordships in the case of Anter Singh vs. State of Rajasthan, (2004) 10 SCC 657 have summed up the various requirements of Section 27 of the Evidence Act which are as follows:- (1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible. (2) The fact must have been discovered. (3) The discovery must have been in consequence of some information received from the accused and not by the accused's own act. (4) The person giving the information must be accused of any offence. (5) He must be in the custody of a police officer. (6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to. (7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible. 37. With regard to the doctrine of confirmation of Section 27 of the Evidence Act, the Hon'ble Supreme Court in the case of State of Karnataka vs. David Rozario, (2002) 7 SCC 728 observed that: "the basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information." 38. In the case of Selvi vs. State of Karnataka, (2010) 7 SCC 263 the Hon'ble Supreme Court have observed that: "Section 27 of the Evidence Act incorporating the "theory of confirmation by subsequent facts" i.e. statements made in custody are admissible to the extent that they can be proved by the subsequent discovery of facts. In the case of Selvi vs. State of Karnataka, (2010) 7 SCC 263 the Hon'ble Supreme Court have observed that: "Section 27 of the Evidence Act incorporating the "theory of confirmation by subsequent facts" i.e. statements made in custody are admissible to the extent that they can be proved by the subsequent discovery of facts. It is quite possible that the content of the custodial statements could directly lead to the subsequent discovery of relevant facts rather than their discovery through independent means. Hence such statements could also be described as those which "furnish a link in the chain of evidence" needed for a successful prosecution." 39. It is already noted that PWs. 1, 3 and 4 did not see the recovery of the dao. PW-2 stated that accused showed the place where the dao was kept and public recovered it in her presence. From the Exhibit-1 (M.R. No. 552/2016), seizure list of a Boro Dao (Iron) that is approximately 11 inches long with handle, we have noticed that dao was seized from the possession of the accused at the place of occurrence. Records of the case reveal that the accused was arrested on 23.10.2016 at 08:00 pm. However, in his deposition before the Trial Court, the PW-9, Investigating Officer of the case neither stated as to when police took custody of the accused nor he deposed that after taking of her custody, the accused stated before police about the dao, alleged weapon of offence used in the crime. Said PW-9 also did not state that the accused led the police party to the place from where the dao seized in the case was discovered and nor he stated that the seized dao was recovered at the instance of the accused. We have noticed that the evidence adduced by the PWs. 1, 2, 3 and 4 in that regard has not been corroborated by the PW-9, Investigating Officer of the case. It is also not the case of prosecution that as per the confession made by the accused while she was in police custody, the dao, alleged weapon of offence was recovered from the roof of her house. 40. 1, 2, 3 and 4 in that regard has not been corroborated by the PW-9, Investigating Officer of the case. It is also not the case of prosecution that as per the confession made by the accused while she was in police custody, the dao, alleged weapon of offence was recovered from the roof of her house. 40. Considering the above as well as the Exhibit-1 seizure list noted above, we are of the view that it cannot be assumed that the information, if any, alleged to have been given by the accused leading to the discovery of seized dao in the case in hand, can be accepted to be valid and in our opinion the prosecution has failed to prove such information, given by the accused in conformity with the provisions of Section 27 of the Indian Evidence Act, 1872. 41. We have also seen that the learned Trial Court while convicting the accused appellant considered her subsequent conduct regarding her running away from the place of occurrence after committing the crime and considered her said subsequent act as remarkable in the case. The Trial Court also observed that the villagers brought the accused, tied her with rope and handed her over to the police and that said Court, from all these, came to the view such conduct and act has force of law to decide the case in convicting the accused. 42. Section 24 of the Indian Evidence Act specifies that any such confession caused by inducement, threat or promise is irrelevant in a criminal proceeding and it reads as follows:- "24. Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding - A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him." 43. A three Judges Bench of the Hon'ble Supreme Court in the case of Aher Raja Khima vs. State of Saurashtra, (1956) AIR SC 217 have held that: "Now the law is clear that a confession cannot be used against an accused person unless the Court is satisfied that it was voluntary and at that stage the question whether it is true or false does not arise. It is abhorrent to our notions of justice and fair play, and is also dangerous, to allow a man to be convicted on the strength of a confession unless it is made voluntarily and unless he realises that anything he says may be used against him; and any attempt by a person in authority to bully a person into making a confession or any threat or coercion would at once invalidate it if the fear was still operating on his mind at the time he makes the confession and if it would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him." 44. With regard to the conduct of the accused, the Hon'ble Apex Court in the case of Dinesh Borthakur vs. State of Assam, (2008) 5 SCC 697 have held that: "conduct or reaction after the incident cannot be a ground for arriving at a conclusion that the accused is guilty for commission of the crime where formation of other opinion is possible." 45. We have seen that PWs. 1, 2, 3 and 4 in their evidence deposed that the accused ran away after committing the crime and also stated that when the accused was apprehended, she confessed her guilt before public. PW-1 stated that they brought the accused from other village and she told them that she had cut Pulo Mardi with dao to kill her. PW-2 stated that the accused ran away after giving cut injury, she confessed her guilt before public that she killed Pulo Mardi and that police brought her to the village. PW-3 stated that he was in a meeting where the accused confessed her guilt. PW-4 stated that accused ran away after committing the offence and she confessed her guilt. PW-2 stated that the accused ran away after giving cut injury, she confessed her guilt before public that she killed Pulo Mardi and that police brought her to the village. PW-3 stated that he was in a meeting where the accused confessed her guilt. PW-4 stated that accused ran away after committing the offence and she confessed her guilt. PW-9, the Investigating Officer in his cross examination stated that the accused was kept in the house of Dinesh Hasda (PW-5), where she was tied with a rope and public handed over her to him. But PW-9 did not depose that the accused admitted her guilt before public. 46. It is already noted above that in their depositions before the Trial Court PWs. 1, 2, 3 and 4 stated that they are from village No. 1 Lalpur, whereas PW-5 stated that he is from village Lakshiguri. In the charge sheet, Exhibit-4 PWs. 2, 3 and 4 were shown to be from village No. 1 Lalpur, whereas PWs. 1 and 5 were shown to be from village No. 2 Lalpur. PW- 5, Dinesh Hasda in his cross examination stated that he did not see the incident and he heard about it after a day. Said PW-5, neither in his examination-in-chief nor in cross examination stated of keeping the accused in his house, tied with rope. Moreover, from the perusal of the record of the case, we have noticed that the accused was arrested on 23.10.2016 at 08:00 pm and after her arrest, when the accused was produced before the doctor for her medical examination on 24.10.2016, she was found with stitched wound on her left leg, wrapped with bandage. 47. From the above we found that the evidence led by the prosecution uncovered the contradiction as to when and where the accused was apprehended and from where (which village) she was brought to the place of occurrence. The Investigating Officer of the case did not corroborate regarding any such confession made by the accused about her guilt. It is in evidence that the accused was tied with rope having stitched wound on her left leg wrapped with bandage as found by the doctor while examining her after her arrest. The Investigating Officer of the case did not corroborate regarding any such confession made by the accused about her guilt. It is in evidence that the accused was tied with rope having stitched wound on her left leg wrapped with bandage as found by the doctor while examining her after her arrest. In the aforesaid backdrop, we are of the opinion that prosecution failed to prove that such confession, if any, made before public by the accused, to be voluntary, rather it appears to us to have been made by the accused under threat, which have no evidentiary value in a criminal proceeding. 48. It is noted above that none of the PWs. 1, 2, 3 and 4 saw the incident and they were hearsay/reported witnesses regarding the injuries on the deceased and about her death. It is also seen from the evidence led by prosecution that the accused used to live at village No. 2 Lalpur and as per PW-9, the I.O. of the case, the deceased was found at village No. 3 Lalpur in the house of Hapna, PW-7. Moreover, PW-2, informant and brother of the deceased deposed that there is a distance between his house and that of the accused and there is no evidence by the prosecution regarding the distance between the house of the accused and that of the PW-2. Prosecution also did not adduce any evidence regarding the fact as to how the deceased after getting 3 (three) grave cut injuries on her forehead, incised wound on dorsum aspect of her right hand and incised wound on the back of her near right and below scapular, allegedly given by the accused, could have ran with such injuries from the house of the accused at Village No. 2 Lalpur to village No. 3, Lalpur, which itself creates doubts in the mind of the Court, in absence of any proved evidence. Moreover, if the evidence of the PWs. 1, 2, 3 and 4 are to be accepted then the case in hand would not come under Section 302 IPC, as the prosecution tried to establish that prior to the incident both the sisters were consuming liquor and during that a quarrel broke out between them, where the accused inflicted cut injuries on her other sister, who died of those injuries. As such, the submissions of Ms. B. Bhuyan, learned Additional Public Prosecutor is not tenable. 49. As such, the submissions of Ms. B. Bhuyan, learned Additional Public Prosecutor is not tenable. 49. There is no eye witness to the incident and the entire case of the prosecution rests on circumstantial evidence, where the prosecution has to prove the chain of circumstantial evidence as complete. 50. With regard to the proof of circumstantial evidence there is catena of decisions by the Hon'ble Apex Court as well as by this Court. Referring all the decisions of the Hon'ble Apex Court, passed earlier, a three Judges Bench of the Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 have held that: "Before a case against an accused can be said to be fully established so as to convict the said accused on the proof of circumstantial evidence, the Court must be satisfied with the following 5 conditions: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved. (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. In the said Judgment, their Lordships have held those five golden principles, as the panchsheel of the proof of a case based on circumstantial evidence. The Hon'ble Apex Court in the said case of Sharad Birdhichand Sarda (supra) also held that the prosecution must stand or fall on its own legs. 51. It is settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. 52. It is well settled that unless the circumstances appearing against the accused is put to him/her in his/her examination under Section 313 Cr.P.C. the same cannot be used against the accused. 52. It is well settled that unless the circumstances appearing against the accused is put to him/her in his/her examination under Section 313 Cr.P.C. the same cannot be used against the accused. It is seen that in the present case no such question was raised to the accused appellant during recording of her statement under Section 313 Cr.P.C. regarding leading to the discovery of the dao, alleged weapon of offence, used in committing the crime. 53. The cardinal principle of criminal jurisprudence is that a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. 54. In the case of Kali Ram vs. State of H.P. (1973) 2 SCC 808 the Hon'ble Apex Court have held that: "Another golden thread which runs through the web of the administration of justice in criminal cases, is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence." 55. From the discussions made herein above, we have found that the prosecution failed to link the chain of circumstantial evidence regarding committing of the offence by the accused appellant of murdering her sister, the deceased Phulmoni Mardi @ Phulo Mardi and the prosecution failed to prove the guilt of the accused beyond all reasonable doubt. Moreover, on a careful examination of the evidence in this case, we are satisfied that the circumstances disclose "strong and compelling reasons" to set aside the conviction. 56. Accordingly, this appeal is allowed and the appellant is acquitted. The impugned order conviction and sentence dated 04.08.2017 passed by learned Sessions Judge, Kokrajhar in Sessions Case No. 19/2017, arising out of GR (GPR) No. 655/2016, corresponding to Kachugaon Police Station Case No. 72/2016, convicting the accused appellant Smt. Padmamati Mardi @ Padmabati under Section 302 IPC and sentenced to undergo Rigorous Imprisonment for life with fine of Rs. 5,000/- are hereby set aside and quashed. 57. 5,000/- are hereby set aside and quashed. 57. As a result, we direct the Superintendent of District Jail, Kokrajhar as well as its authorities to release Smt. Padmamati Mardi @ Padmabati, who is serving the sentence in Sessions Case No. 19/2017, forthwith. 58. From the perusal of the records, we did not find anyone as dependent of the deceased Phulmoni Mardi @ Phulo Mardi, who suffered loss or injury as a result of the crime requiring his/her rehabilitation. As such, we do not consider to grant any victim compensation under Section 357A of the Cr.P.C. 59. We appreciate the assistance rendered by both, Mr. Bhaskar Nath, learned Amicus Curiae as well as Ms. Bornali Bhuyan, learned Additional Public Prosecutor, Assam in adjudicating this appeal. We direct the State Legal Services Authority, Assam at Guwahati to pay a remuneration of Rs. 7,500/- (Rupees Seven Thousand Five Hundred) only to Mr. Bhaskar Nath, learned Amicus Curiaeon on raising a bill. 60. Registry shall send back the LCR to the Court of learned Sessions Judge, Kokrajhar along with a copy of this judgment. Registry shall also furnish a copy of this judgment to the appellant Padmamati Mardi @ Padmabati.