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2020 DIGILAW 493 (CAL)

Nasir Mallick v. State Of West Bengal

2020-06-17

SAHIDULLAH MUNSHI, SUBHASIS DASGUPTA

body2020
JUDGMENT Sahidullah Munshi, J. - This appeal is against the judgment of conviction and order of sentence passed by the learned Additional Sessions Judge, 3rd Court, Nadia, Krishnagar, in Sessions Trial No. VI(VII) of 2014 arising out of Sessions Case no. 23(2) 2010 convicting the appellant Nasir Mallick and Dadu Sk @ Mani Rahaman Sk under Section 302/34 of Indian Penal Code and sentencing each of them to suffer rigorous imprisonment for life and to pay a fine of Rs. 50,000/- each, in default to suffer further rigorous imprisonment for two years each. 2. The present appeal CRA 319 of 2015 has been heard analogously with CRA 294 of 2015. Both these appeals arose from a common judgment of conviction dated 27.03.2015 and order of sentence dated 30.03.2015. Since the judgment of conviction passed by the trial Court arose from the self-same complaint, it is intended to dispose of both these appeals by common judgment. 3. So far CRA 294 of 2015 is concerned the same has been filed by Mabia Bibi and Atabi Mallick challenging self-same judgment and order of conviction dated 27.03.2015 and order of sentence dated 30.03.2015 passed by the learned Additional Sessions Judge, 3rd Court, Nadia, Krishnagar in Sessions Trial No. Vi(VII) 2004 arising out of Sessions Case no 23(2)2010 convicting the appellants under Section 302/34 of Indian Penal Code and sentencing them to rigorous imprisonment for each and to pay a fine of Rs.50,000/- in default to suffer further rigorous imprisonment for two years and also convicting the said accused Mabia Bibi and Atabi Mallick under Section 376(2)(g) of Indian Penal Code. 4. It may be mentioned that the appellant no.1 (Nasir Mallick) in C.R.A. No. 319 of 2015 was convicted under Section 302/34 of the Indian Penal Code and the appellant no.2 (Dadu Sk) was additionally convicted under Section 376(2)(g) of the Indian Penal Code. 5. Present prosecution case as framed by the State is that on 7.06.2009 after 19.30 hours (7.30 pm) at a place in village Tentulberia within the jurisdiction of Nakashipara police station, district Nadia, accused persons Dadu Sk, Asadul Sk, and Rafikul Mallick committed rape on the victim and also these accused persons in furtherance of their common intention murdered the minor victim the self-same day. Investigation carried on, charge-sheet submitted by police against these accused persons under Section 302/34 of Indian Penal Code. 6. Investigation carried on, charge-sheet submitted by police against these accused persons under Section 302/34 of Indian Penal Code. 6. The accused persons Rafikul Mallick and Asadul Sk being juvenile in conflict with law, faced trial before the Juvenile Justice Board. Trial By the learned Sessions Court proceeded against four accused persons namely, Dadu Sk and Nasir Mallick appellants in CRA 319 of 2015 and Mabia Bibi and Atabi Mallick appellants in CRA 294 of 2015. Charge was framed under Section 302/34 IPC against all four accused persons and additionally charge was framed under Section 376(2)(g) of the Indian Penal Code, against the accused Dadu Sk, charge was read over to the accused persons to which they pleaded not guilty being innocent and have been falsely implicated. 7. In order to prove its case prosecution has examined as many as 16 witnesses on dock. 8. Before scanning the evidence of the witnesses examined by the prosecution it is, perhaps profitable, to take note of certain dates which will come again and again with its sequence. On 07.06.2009 at 7.30 pm one Rafikul Mallick, a near relation of the victim's mother called the victim girl from her house. Neither Rafikul disclosed the reason for his calling nor the mother of the victim did make any quarry to said Rafikul the reason. On the next day that is, 08.06.2009 at or about 10.00 am dead body of the victim girl was found at the jute field of one Sadar Sk of the same village. On being informed police started case no.39 of 2009 dated 08.06.2009. At 11.35 am on 08.06.2009 itself inquest was conducted and investigation commenced on the self same day. Investigation report under Section 164 Criminal Procedure Code discloses that it was conducted by police Officer named Saikat Banerjee and the report was witnessed by PW7 (Takbir Mallick) PW2 (Jalaluddin Halsana) and PW1 (Nizam Mallick). The report has been admitted evidence and marked as Exbt.3, the same day, that is, 08.06.2009 at about 3.35 pm (15.35 hours) written complaint was lodged. On the basis of such written complaint FIR was registered under FIR No.239/09. Record reveals that post-mortem was conducted on 08.06.2009. 9. Fir was lodged against Rafikul Mallick, Asadul Sk, Mabia Bibi under Section 302/34 of Indian Penal Code. On the basis of such written complaint FIR was registered under FIR No.239/09. Record reveals that post-mortem was conducted on 08.06.2009. 9. Fir was lodged against Rafikul Mallick, Asadul Sk, Mabia Bibi under Section 302/34 of Indian Penal Code. After investigation charge-sheet was submitted against Rafikul Mallick, Asadul Sk, Mabia Bibi, Atabi Mallick, Nasir Mallick and Dadu Sk under Section 302/34 of Indian Penal Core. Record reveals that Atabi Mallick and Mabia Bibi were charged under Section 302/34 of Indian Penal Code. Nasir Mallick and Dadu Sk were charged under Section 302/34 of Indian Penal Code. So far Dadu Sk is concerned additional charge was framed on February 12, 2014 under Section 376(2)(g) of the Indian Penal Code. More particularly to say that this additional charge was framed after PW9 and PW10 were examined in Court on March 10, 2014. 10. It is also apparent from the record that Rafikul Mallick and Asadul Sk being juvenile in conflict with law at the time of the incident, they were sent to Juvenile Justice Board for their trial and the present case proceeded before the trial Court against four accused persons namely, Mabia Bibi, Atabi Mallick Dadu Sk and Nasir Mallick. 11. Mr. Arnab Chatterjee learned advocate appearing for the appellant in CRA No. 319 of 2015 and Mr. Dastoor, learned senior - 6 - advocate in support of the appellant in CRA No. 294 of 2015 seriously disputed the impugned judgment of conviction and sentence. They have argued that the trial Court without appreciation of evidence passed the impugned judgment of conviction and sentence. Since both the learned advocates argued against the order of conviction their submissions are being taken into consideration together in both the appeals. 12. Mr. Dastoor, learned advocate appearing for the appellant in CRA No. 294 of 2015 has submitted that the order of sentence and conviction cannot stand at all inasmuch as there are serious discrepancies those are apparent from the judgment of the trial Court. Mr. Dastoor has pointed out that the trial Court has failed to consider the evidence adduced by the prosecution and most of the witnesses what they have deposed in Court, if considered, will destroy the prosecution case. He submitted that the genesis of the case itself is not believable from the complaint which has been lodged and the attempt by the prosecution to establish such complaint. He submitted that the genesis of the case itself is not believable from the complaint which has been lodged and the attempt by the prosecution to establish such complaint. The inter connecting facts are so contradictory it can easily be construed that the prosecution has sought to give a colour to the alleged incident in a way to punish a person according to their choice and has failed to prove the guilt against the appellants beyond any reasonable doubt. Mr. Dastoor and Mr. Chatterjee both submitted that from the chronology of the dates and the deposition of the witnesses produced and examined by the prosecution case; it that the charge which has been framed against the appellants cannot be sustained and on this ground alone the order of conviction should be set aside. Mr. Dastoor, however, submitted that although there are catena of decisions that if the charge is framed not correctly against the accused person meaning thereby if the charge is defective the same alone may lead to setting aside the order of conviction and sentence and may lead to an order of acquittal in favour of the appellants. Mr. Dastoor, however, strenuously argued that this Court would not, on the ground of defective charge, set aside the order of conviction and sentence and would not send the matter back for de novo trial. Mr. Dastoor has relied on various decisions of the Apex Court to establish that order of remand will not meet the ends of justice rather this Court in an appeal against the order of conviction is sufficiently armed to substitute the decision of the trial Court and by an independent reasoned judgment can decide the case once for all. Mr. Dastoor and Mr. Chatterjee both submitted that the prosecution case, even on the basis of post-mortem report cannot stand. According to them if the post-mortem report is to be believed then the alleged occurrence would not have occurred on the date which is mentioned in the FIR. 13. Mr. Dastoor submitted that PM doctor's evidence clearly indicates that the occurrence would have happened not on 7th June but on 6th June and according to him the order of conviction which is based on circumstantial evidence cannot stand at all if such is the clarity of evidence particularly when the prosecution case is clearly in conflict with its own witness, namely, the Autopsy Surgeon. 14. Mr. 14. Mr. Dastoor submitted that PW1 does not at all corroborate the inquest report. He submitted that while PW1 would say that the alleged murder was caused by four persons, surprisingly police started an UD case but no explanation is forthcoming as to why such persons were not named in the FIR. Such an important fact could not have been omitted from the written complaint lodged by the de facto complainant. This serious discrepancy doubts the very genesis of the prosecution case and places it into suspect from which it is the accused who would get benefit. Mr. Dastoor submitted that additional charge was framed after 80 days and there is no explanation why after such a long delay this additional charge was framed. He further submitted that this is not permissible under Section 164 of the Code of Criminal Procedure. Section 164 of the Code of Criminal Procedure is set out below: "S.164. Recording of confessions and statements.- (1) Any Metropolitan Magistrate or 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.] (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. (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) A. B. 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 circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded. (6) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried." 15. Mr. Dastoor submitted that PW14, who is supposedly a star witness, apparently demolished the prosecution case. According to Mr. Dastoor rigour mortis commences after 5 to 6 hours of death and leaves after 24 hours which cannot be concluded from such facts presented by the prosecution witnesses. Mr. Dastoor has also pointed out that there has been an unexplained delay in lodging the FIR. He submitted that even the matter was brought to the Court on 10.06.2009 in contradiction with the provision of law which necessitates to bring within the nearest Magistrate within a period of 24 hours. According to Mr. Dastoor medical evidence does not at all supports the prosecution case. 16. He submitted that even the matter was brought to the Court on 10.06.2009 in contradiction with the provision of law which necessitates to bring within the nearest Magistrate within a period of 24 hours. According to Mr. Dastoor medical evidence does not at all supports the prosecution case. 16. Out of 16 witnesses produced and examined by the prosecution PW1 Nizam Mallick is the father of the victim and he is the FIR maker and a signatory to the inquest. PW2 Jamaluddin Halsana is a relative of both the victim and the accused persons. This PW2 is also the scribe of the written complaint and also a signatory to the inquest. PW3 Alamin Sk, PW4 Pakjan Mallick, PW5 Mojahid Mallick, PW8 Tahajul Mallick and PW11 Doabash Sk are all villagers. However, PW11 was declared hostile.PW6 Mayna Mallick and PW7 Takbir are the uncles of the victim. PW7 is also a signatory to the inquest. PW9 Rasula Bibi is the mother of the victim and PW10 Nazibul Mallick is the brother of the victim. PW12 is SI Bibhas Mondal is the first Investigating Officer. PW13 SI Pradipta Mondal is the second Investigating Officer. PW14 Dr. Kashinath is the Autopsy Surgeon. PW15 S.I. Nanda Dulal Goswami a police witness and PW16 is SI Saikat Banerjee who happens to be the inquest Officer. 17. According to the prosecution case Nizam Mallick PW1 lodged an information with the Officer-in-charge Nakashipara Police station on 7th June, 2009 at about 7.30 pm to the effect that one Rafikul Mallick took his daughter aged about 13 years from his house. The said daughter (victim) did not return home. PW1 went to the house of Atabi Mallick, father of Rafikul to enquire as to what happened in that evening with the victim but he neither found Atabi's family members nor his daughter. On 8th June, 2009 at about 10.00 am that is the very next day dead body of the victim was found on the jute field of one Sadar Sk with her neck moosed with 'Orna'. Body was taken by the police to the police station on the same day. According to the informant's belief that Rafikul, Mabia Bibi and Asadul Sk had killed his daughter in conspiracy with each other. 18. Body was taken by the police to the police station on the same day. According to the informant's belief that Rafikul, Mabia Bibi and Asadul Sk had killed his daughter in conspiracy with each other. 18. Evidence reveals that PW1, PW9 and PW10 together with other villagers including PW2 Jamaluddin Halsana had gone to the spot where the dead body had been identified as that of the victim who is the daughter of PW1 and PW9. It was sought to be pointed out that the girl was called from her house and thereafter might have been strangulated to death and her body was thrown in a jute field where from her body was recovered. PW2 Jamaluddin was sent to police station to lodge an information about the discovery of the dead body of the victim and after reaching Nakashipara police Station he lodged information at about 11.35 am resulting thereby Nakashipara Police station Un-natural Death case no. 39/2009. After such information was received, PW16, Saikat Banerjee who is the Sub-inspector of Police had been deputed to conduct the inquest. Such inquest was conducted at 13.15 hours on 8th June, 2009. Jamaluddin on whose information above mentioned UD case was started was present with PW7 the brother of PW1. According to the prosecution case PW9 and PW10 were also present during inquest and was signatory to the inquest report (marked Exbt.3/1). PW16 who is the inquest Officer recorded on the basis of the information supplied by the witnesses as to cause of death, the victim girl was called from her house and thereafter strangulated to death by moosing around her throat and the body was abandoned in the jute field. No names, however, had been revealed even three hours after the discovery of the body of the victim. It is important to record here that PW12 Sub-inspector Bibhas Mondal the first Investigating Officer in his deposition stated "On 10.6.09 I arrested F.I.R. named accused, Mabiya Bibi and on 15.6.09. S.I. Saikat Banerjee investigated the Nakashipara P.S. U.D. Case No. 39/09 dated 8.6.09 as per the order of the O.C., Nakashipara PS. I collected the related papers of the U.D. Case from him. S.I. Saikat Banerjee investigated the Nakashipara P.S. U.D. Case No. 39/09 dated 8.6.09 as per the order of the O.C., Nakashipara PS. I collected the related papers of the U.D. Case from him. I did not get the complaint lodged in the said U.D. Case." Therefore, it is clear that PW12 claimed not to have received any complaint giving rise to the UD case nor any general diary lodged in connection with such UD case. This gives rise to a suspicion that there was a deliberate attempt to suppress some important documents by the prosecution. Further, even though the dead body was found at about 10.00/10.30 am, no information to the police could be given in three hours before the inquest and more so, nothing could be revealed at the time of conducting inquest. PW1 Nizam Mallick father of the victim allegedly lodged an information at the police station at about 15.35 hours on 8th June, 2009 on the basis of which Nakashipara Police station case no. 239 of 2009 was registered. Here we find an improvement in the FIR over the inquest report so much so that at 7.30 pm on 7th June,2009 Rafikul had taken his daughter from his home and she had not thereafter returned and that it was his belief that Rafikul, his mother, Mabia and Asadul killed his daughter in conspiracy with each other. The FIR had been forwarded to the Court of the learned Chief Judicial Magistrate Nadia Krishnagar forthwith but had only reached the said Court on 10th June, 2009, that is, after about 44 hours and no explanation is forthcoming from the end of the prosecution about such a long delay. 19. Mr. Dastoor learned advocate for the appellant has relied on a decision in (a) Balaka Singh and Ors. Vs. The State of Punjab reported in (1975) 4 SCC 511 ; (b) Ishwar Singh -Vs. - State of UP reported in (1976) 3 SCC 356 . Mr. Dastoor relies upon paragraph 7 in Balaka Singh (supra) and Paragraph 5 in Iswar Singh (supra). Vs. The State of Punjab reported in (1975) 4 SCC 511 ; (b) Ishwar Singh -Vs. - State of UP reported in (1976) 3 SCC 356 . Mr. Dastoor relies upon paragraph 7 in Balaka Singh (supra) and Paragraph 5 in Iswar Singh (supra). Those paragraphs are reproduced below:- "7.- Another finding which demolishes the entire edifice and fabric of the prosecution case is that the F.I.R. itself was not written at 1C P.M. as alleged by the informant Banta Singh but it was written out after the inquest report was prepared by the A.S.I. and after the names of the four accused acquitted by the High Court were inserted in the inquest report. If this is true then the entire case of the prosecution becomes extremely doubtful. The High Court has also derived support from another important circumstance to come to the conclusion that the F.I.R. was not written at 10 P.M. as alleged by the prosecution but after the preparation of the inquest report at about 2.30 A.M. The High Court points out that according to the prosecution the special report reached the Ilaqa Magistrate at 11 A.M. on September 2, 1966 i.e. more than 12 hours after the F.I.R. was lodged at the police station, whereas it should been delivered to the Ilaqa Magistrate during the night or at least in the early morning. Counsel appearing for the appellants submitted that under the High Court Circulars and the Police Rules it was incumbent upon the Inspector who recorded the F.I.R. to send a copy of the F.I.R. to the Ilaqa Magistrate immediately without any loss of time and the delay in sending the F.I.R. has not been properly explained by the prosecution as rightly held by the High Court. It is, therefore, clear that the F.I.R. itself was a belated document and came into existence during the small hours of September 2, 1966. Indeed if this was so, then there was sufficient time for the prosecution party who are undoubtedly inimical to the accused to deliberate and- prepare a false case not only against the four accused who have been acquitted, but against the other five appellants also. Indeed if this was so, then there was sufficient time for the prosecution party who are undoubtedly inimical to the accused to deliberate and- prepare a false case not only against the four accused who have been acquitted, but against the other five appellants also. The High Court also found that the best person to explain the delay in sending the special report to the Ilaqa Magistrate was the Police Constable who had carried the F.I.R. to the Ilaqa Magistrate but that Constable has not been examined by the prosecution. On this point the High Court observed as follows "The delay with which the special report was made available to the Ilaqa Magistrate is indicative of the fact that the first information report did not come into existence probably till about sunrise by when the dead body had already been despatched for the purpose of postmortem examination to Patiala along with the inquest report, so that the Investigating Officer was no longer in a position to make alterations in the body of that report and all that be could do was to add later on the names of the said four appellants to its heading." 5. Mr. Frank Anthony appearing for appellant Ishwar Singh submitted that in affirming the Judgment of the trial Court, the High Court also overlooked certain important aspects of the case that the Sessions Judge had failed to consider. He pointed out that the F.I.R. which is stated to have been lodged at 9.05 A. M. on February 14, 1973 was sent out from the police station the next day, February 15; the time when it was despatched is not stated, but it appears from the record that the Magistrate received it on the morning of February 16. The Court of the Magistrate was nearby, which makes it difficult to understand why the report was sent to him about two days after its stated hour of receipt at the police station. Section 157 of the CrPC, 1898 as well as of 1973 both require the first information report to be sent "forthwith" to the Magistrate competent to take cognizance of the offence. No explanation is offered for this extraordinary delay in sending the report to the Magistrate. This is a circumstance which provides a legitimate basis for suspecting, as Mr. Section 157 of the CrPC, 1898 as well as of 1973 both require the first information report to be sent "forthwith" to the Magistrate competent to take cognizance of the offence. No explanation is offered for this extraordinary delay in sending the report to the Magistrate. This is a circumstance which provides a legitimate basis for suspecting, as Mr. Anthony suggested, that the first information report was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence. In this case the suspicion hardens into a definite possibility when one finds that the case made in Court differs at least in two very important particulars from that narrated in the F.I.R. Mahabir Singh, who lodged the first information report, stated in-Court that he had invited some people to his house to effect a settlement between him and Ishwar Singh, and that he had also sent Ghanshyam to call Ishwar Singh there. The F.I.R. does not mention anything like this. From the F.I.R. it appears as if the accused persons came uninvited to his house, demanded why he had demolished the drain, and started assaulting him and the other persons who were present there. It is also difficult to understand why Mahabir should invite anyone to his house for a settlement, if really Ishwar Singh had permitted him to demolish the drain as he claimed. Further, the F.I.R. does not mention that Mahabir and Satyapal wielded lathis in their defence when attacked and that this resulted in some of the accused getting injured; but that is what both Mahabir (P.W. 1) and Satyapai (P.W. 2) stated in their evidence in Court. These variations relate to vital parts of the prosecution case, and cannot be dismissed as minor discrepancies. In such a case, the evidence of the eye-witnesses "cannot be accepted at its face value", as observed by this Court in Mitter Sain v. State of U.P." 20. Applying the ratio in the two decisions cited by Mr. Dastoor this Court observes that when inquest report clearly contradicted being the FIR or the vise versa, serious doubts arise as to the occurrence of the incident at the instance of these accused persons as they have been sought to be implicated by the prosecution in this case. 21. Applying the ratio in the two decisions cited by Mr. Dastoor this Court observes that when inquest report clearly contradicted being the FIR or the vise versa, serious doubts arise as to the occurrence of the incident at the instance of these accused persons as they have been sought to be implicated by the prosecution in this case. 21. It also gives rise to a suspicion in our mind about the chronology of the incidents as has been sought to be advanced by the prosecution. 22. In our mind a doubt is playing whether FIR itself was written on the basis of the information given by PW1 and whether PW2 Jamaluddin was at all present during the inquest who allegedly signed the inquest report (Exbt.3/2) and because of this suspicion, we hold the accused persons will definitely get benefit of doubt which might lead to a decision of acquittal. 23. Mr. Dastoor has rightly argued that even the delay of forwarding the FIR to the Court of the Magistrate after 44 hours cannot at all be justified from the circumstances available from the evidences on record. It is therefore, reasonable to believe existence of an attempt on the part of the prosecution to introduce improvements and emblishment in order to put up a distorted version of the occurrence which surely gives benefit to the accused persons. 24. Pw1 in his evidence in Court stated "On that date at night I returned to my house and my wife and my son informed me about the above incident. On that night I alone went to the house of Ata Mallick, father of Rafikul Mallick. Myself along with my wife and son searched for my daughter, but did not find out her." This statement before the Court if compared with his written complaint before the police on 8th June, 2009 it appears that the two versions of same person contradicted each other. While in the written complaint PW1 said that he went to the house of Atabi Mallick to inquire about her daughter, in the deposition before the court he does not say so rather we find a different story about his wife and son accompanying him to search for the victim which has not been mentioned in the FIR at all. Which one is correct and to be believed is yet to be searched out. Which one is correct and to be believed is yet to be searched out. What has been sought by PW9 and PW10 is another important factor to be taken note of. PW9 Rasula Bibi, mother of the victim stated "There is a mango garden by the side of the house of Rafikul. At the time of going to the house of Rafikul with torch, my son say Rafikul, Dadu Sk., Asadul Sk were making 'Dhastadhasti' with my daughter. Then those three persons chased my son. Then my son returned to my house and told me to go that place immediately as those three persons has been assaulting my daughter. Then myself along with my son again went to the said mango garden with torch. But on arrival there, I did not find any of those three persons at that time in that mango garden. I also did not find my daughter there." The trial Court relied heavily on the evidence of this PW9 to convict the accused persons when the evidence of PW9 is compared with PW1 there are various missing link and, in fact, it appears that either PW9 stated falsely or it was PW1. Although, PW1 stated that they went together to find out the victim which they failed to do. PW9 said nothing about her husband while they searched the victim. This PW9 when deposed on 10th March, 2014 for the first time name of Dadu Sk appears before the Court. This Dadu Sk has been additionally charged with the offence under Section 376 IPC. We also need to take into account the other portion of the evidence of PW9. After a long time statement of this witness was recorded under Section 164 of the Code of Criminal Procedure, on 29.08.2009. However, the said 164 statement has not been proved and the signatures have been proved as the Magistrate in whose hand writing the statement were recorded was not examined. The notable contradiction and/or embellishment in the statement of PW9 appears in her cross-examination where she says "On the next date in the morning I met my husband in the jute field of Sadar Sk. The notable contradiction and/or embellishment in the statement of PW9 appears in her cross-examination where she says "On the next date in the morning I met my husband in the jute field of Sadar Sk. when I went there to see the dead body of my daughter and before that I did not meet my husband after missing my daughter." This part of her evidence in particular does not corroborate at all to the evidence of FIR maker PW1. Therefore, it is difficult to rely upon the evidence of PW1 and to the evidence of PW9 which has been considered by the trial Court to be star witness in this case and on the basis of which trial Court convicted the accused person including Dadu Sk who has been additionally charged with the offence under Section 376 IPC. This PW9 further stated in Court "On the next date at about 10.30 hours in the jute field of Sadar Sk. This PW9 further stated in Court "On the next date at about 10.30 hours in the jute field of Sadar Sk. I told my husband that on the previous evening my daughter and son were reading together in my room and then Rafikul came to my house and asked my daughter to go to the house of Rafikul as the mother of Rafikul had called her and then he took away my daughter from my house and then she did not return after a considerable period of time and then I asked my son to go the house of Rafikul to make inquiry about my daughter and on the way to the said house of Rafikul my son saw accused Rafikul, Dadu and Asadul making 'Dhastadhasti' with my daughter and then three persons chased my son and he returned to my house and informed me that those three persons had been making 'Dhastadhasti' on my daughter and then myself along with my son went to the said Mango garden, but I did not find those three persons and my daughter and then myself along with my son went to the house of Rafikul, but on arrival there I did not find any persons there and the said house was lying locked and there is a mango garden at the back of the house of Rafikul and we heard sound of human talking from that place and then we went to the mango garden and from distance with the help of torch I saw Atab chased us with a dao and then I found accused Rafikul, Atab, Mabiya, Dadu, Asad and Nashir in that garden and I also found my daughter with her mouth being bound by one 'orna' there and as those accused person chased us, myself along with my son returned to our house." Again she has stated "I did not informed the said incident of the previous evening to my 'Bhasur', Dewar etc. who were present in the said jute field and Sadar Sk. I was present when police held inquest on the dead body of my daughter in the land." 25. This version also appears to be untrue because she was never present when inquest was held. who were present in the said jute field and Sadar Sk. I was present when police held inquest on the dead body of my daughter in the land." 25. This version also appears to be untrue because she was never present when inquest was held. Although PW9 tried to depict a story that her daughter was taken by Rafikul and she did not return in that night but the entire evidence of PW9 if read with the evidence of other witnesses including that of the Autopsy Surgeon, PW1, PW2, a doubt arises in our mind as to the correctness of the story presented by PW9 before the Court. PW10 Nazibul Mallick who is brother of the victim in Court stated on March 10, 2014 who was examined by police after about 80 days so also PW9 was examined after 80 days presented built up story. PW10 stated "Then with the help of torch I found Atab, Nashir, Mabiya, Asadul, Dadu Sk. and Rafukul in the said garden and I also found Nashir, Mabiya, Atab, Dadu, Asadul and Rafijul to pull my sister. We shouted and then Atab chased us. Then we returned to our house out of fear of the said persons. Myself along with my mother searched for the deceased for the entire night and my father also searched separately for my sister. We did not find out my sister after search." PW10 stated that those three persons had chased him and he had to flee away in fear. After this incident of fleeing away from the said garden far from the road near the said garden. Upon returning home he narrated the incident to his mother (PW9) and PW10 thereafter, went to Rafikul Mallick's house where they did not find any person there. They heard human voice from behind the house. PW9 had shown her torch and saw Rafikul, Atab Mallick, Nasir, Mabiya, Dadu Sk. Asadul Sk. holding her daughter and when they shout Atab Mallick had chased them with a 'dao' and they had to flee away in fear. They heard human voice from behind the house. PW9 had shown her torch and saw Rafikul, Atab Mallick, Nasir, Mabiya, Dadu Sk. Asadul Sk. holding her daughter and when they shout Atab Mallick had chased them with a 'dao' and they had to flee away in fear. This story is also exaggerated and it is not believable that while PW9 and PW10 ascertained that the victim being the daughter of PW9 and sister of PW10 was being assaulted by the accused persons which they allegedly saw in their own eyes did not tell it to anyone of the locality particularly when her near relations were present in their respective houses on the same night when the alleged incident had taken place. Because of this situation it is difficult to believe that the incident at all took place on the mango garden on the night before 08.06.2009, that is, the day before the dead body was discovered in the jute field. And more so when this statement of PW9 and PW10 the eye witnesses at the pre-occurrence such being compared with the evidence of Autopsy Surgeon. It is also unbelievable that the said PW9 and PW10 says that in that night PW1 (husband of PW9) was not at home but when this fact was narrated by PW9 at least to her husband on the next day when she made the husband at the jute field it is expected that entire incident what happened on the previous night must have been narrated to PW1 but why there is no reflection to the said incident of 7th June, 2009 in the written complaint made by PW1. 26. Pw9 Rasula Bibi had been examined by the Sub-inspector (PW12) Bibhas Mondal on 8th June, 2009 itself but she did not narrate this incident of 7th June, 2009. PW10 Nazibul Mallick brother of the victim claimed to have gone to the police station and made the statement which has been reduced into writing by the police upon which he had signed but no reflection has been noticed in the FIR, nor was there any recording by the police authority to that effect which could have been the first FIR. 27. Pw13 Sub-Inspector Pradipta Mondal conducted the investigation on 6th August, 2009 heavily after about two months of the occurrence of the alleged incident. 27. Pw13 Sub-Inspector Pradipta Mondal conducted the investigation on 6th August, 2009 heavily after about two months of the occurrence of the alleged incident. He has examined PW9 and PW10 on 28th August, 2009 when this story narrated by said witnesses were revealed and their statements were recorded under Section 164 of the Code of Criminal Procedure. Surprisingly, PW13 the Investigating Officer giving over any plausible explanation as to why PW9 and PW10 was examined for the second time after 80 days. Similarly, prosecution has also failed to furnish any such explanation with regard to the delay in examining these two witnesses. Even though they were very much available in the village; nothing appears from the record that these two witnesses were threatened by anybody or they expressed any fear to disclose anything to the police authority. Why they kept silent for 80 days and no steps were taken by the Investigating Officer. This gave rise with third phase of doubt and also the improvement which was sought to be made by the prosecution over the initial information recorded by the police in the police station. 28. Mr. Dastoor has rightly placed reliance on two decision of the Hon'ble Apex Court (1) Shahid Khan -Vs. - State of Rajasthan, (2016) 4 SCC 96 ; (2) State of Karnataka and Ors. Vs. Venkatesh & Ors, (1992) Supp1 SCC 539 and (3) Alil Mollah -Vs. State of West Bengal, (1996) 5 SCC 369 . Mr. Dastoor has referred to paragraph 20, 3 and 7 respectively in the said three decisions those are reproduced below:- "20. The statements of PW25 Mirza Majid Beg and PW 24 Mohamed Shakir were recorded after 3 days. It is also not known as to how the police came to know that these witnesses saw the occurrence. The delay in recording the statements casts a serious doubt about their being eyewitnesses to the occurrence. It may suggest that the investigating officer was deliberately marking time with a view to decide about the shape to be given to the case and the eyewitnesses to be introduced. The circumstances in this case lend such significance to this delay. PW 25 Mirza Majid Beg and PW24 Mohamed Shakir, in view of their unexplained silence and delayed statement to the police, do not appear to us to be wholly reliable witnesses. The circumstances in this case lend such significance to this delay. PW 25 Mirza Majid Beg and PW24 Mohamed Shakir, in view of their unexplained silence and delayed statement to the police, do not appear to us to be wholly reliable witnesses. There is no corroboration of their evidence from any other independent source either. We find it rather unsafe to rely upon their evidence only to uphold the conviction and sentence of the appellants. The High Court has failed to advert to the contentions raised by the appellants and reappreciate the evidence thereby resulting in miscarriage of justice. In our opinion, the case against the appellants has not been proved beyond reasonable doubt." "3. We have perused the evidence of all the witnesses referred to above. They do not inspire any confidence at all. The denial by PW 23, Madadevamma, of having had any illicit intimacy with the deceased coupled with the fact that PW 15, Cheluvamma, the ace witness of the prosecution, having not disclosed the information at the earliest opportunity to anyone till 10.11.1978, though the alleged murder took place on the night of 8th November 1978, has created serious doubts about the genuineness of the prosecution case. Since, the sub-Inspector admitted that he had not even visited the house of any one of the accusedrespondents on 9.11.1978 to arrest them, the failure of the accused-respondents to appear before the police cannot give rise to any inference of their guilt and therefore the alleged circumstance of absconding was not rightly used by the learned Sessions Judge against the accused-respondents. The conduct of PW 8, Madaiah, PW 14, Javariah, and PW 25, Cheluvaraju, is so unnatural that it would not be safe to place any reliance on their testimony. No explanation, much less a satisfactory one, has been given by the prosecution for their long silence." "7. On his own showing PW.3 was an employee of the deceased. He was present, according to his testimony, when the deceased was assaulted by the appellants. He admits that after committing the crime the appellants and their associates fled away. The witness, however, not only did not raise any alarm when his master was being assaulted, he did not go near his employer even after the assailants had fled away to see the condition in which the employer was after having suffered the assault. He admits that after committing the crime the appellants and their associates fled away. The witness, however, not only did not raise any alarm when his master was being assaulted, he did not go near his employer even after the assailants had fled away to see the condition in which the employer was after having suffered the assault. According to him he got frightened and fled away to his home. He also admitted in his cross--examination that neither at his home nor in the village did he disclose what he had seen in the evening of 4th February, 1982 to any one. Though in the morning of the following day, the witness went to the brick fields of the deceased-employer and many of his co-employees were also present there, he admitted that he did not disclose the occurrence to anyone of them and went on to concede that even to the Manager of the brick-fields he gave the information about the occurrence only 2-3 days after the occurrence. His statement was recorded by the police on the next day in the afternoon. This conduct of the witness that he did not tell anyone about the occurrence till the next day appears to be rather unnatural and creates an impression that he had not witnessed the occurrence. The witness however tried to take shelter on the plea that he was "frightened" and therefore till he appeared before the police, he did not pick up courage to inform anyone either in the village or on the brick-fields regarding the occurrence. This plea does not impress us. From the statement of the investigating officer, PW.12, we find that after having visited the scene of occurrence, he went to the village where the witness resides, on the night of 4th February, 1982 and remained there till 5th February, 1982. It is not understandable why the witness who was in the village did not appear before the investigating officer, when he was camping in the village throughout the night or even the next morning. No explanation whatsoever has been offered by him. PW 3, in view of his unexplained silence, delayed statement to the police and relationship with the deceased, thereof, does not appear to us to be a wholly reliable witness. There is no corroboration of his evidence from any other independent source either. No explanation whatsoever has been offered by him. PW 3, in view of his unexplained silence, delayed statement to the police and relationship with the deceased, thereof, does not appear to us to be a wholly reliable witness. There is no corroboration of his evidence from any other independent source either. In the absence of any corroboration of his testimony we find it rather unsafe to rely upon the evidence of PW.3 only to uphold the conviction and sentence of the appellants. Indeed both the courts below have relied upon the statement of PW.3 and found him to be a reliable witness but unfortunately neither the trial court nor the High Court have adverted to the admissions made by the witness in his crossexamination, which we have noticed above. Though this Court sitting in appeal by special leave does not normally reappreciate the evidence, which has been appreciated by the two courts below unless there are compelling reasons but with a view to satisfy our judicial conscience we have examined the statement of PW.3 critically and are of the opinion that the appreciation of his evidence by both the courts below was not proper as admissions made by him in his cross- examination which materially detracted from his reliability were not at all noticed by the courts below thereby resulting in miscarriage of justice. To perpetuate an error is no virtue but to ractify it is a compulsion of judicial conscience. We find ourselves unable to agree with the findings recorded by the courts below with regard to the reliability of PW3. There is no corroboration of his evidence to connect the appellants with the crime. In our considered view, on the basis of critical analysis of the evidence on the record, we are of the opinion that the case against the appellants has not been proved beyond a reasonable doubt. Consequently, this appeal succeeds and is allowed. The conviction and sentence of the appellants is hereby set aside. The appellants are on bail. Their bail bonds shall stand discharged." 29. Consequently, this appeal succeeds and is allowed. The conviction and sentence of the appellants is hereby set aside. The appellants are on bail. Their bail bonds shall stand discharged." 29. After going through the ratio decided in the said three decisions of the Hon'ble Apex Court we are of the firm view that inasmuch as the three witnesses PW1, PW9 and PW10 presented a built up story which not only contradicted each other but does not corroborate even the written complaint lodged by PW1 and even does not corroborate the investigation of the UD case on the report made by Jamaluddin (PW2). We also do not find any corroboration of the evidence of these witnesses to connect the appellant directly with the crime and in such circumstances the only conclusion the Court should arise is to acquit the appellants from the offences for which they were convicted. Resulting thereby the appeal should succeed and the accused persons should be discharged. 30. We also do not find any explanation forthcoming as to why PW9 and PW10 were examined after a period of 80 days and so also their statements were recorded under Section 164 of the Code of Criminal Procedure after such a long period of delay and lastly the statement under Section 164 has not been proved by examining the learned Magistrate. This is another lane of suspicion through which the appellant gets benefit of doubt and deserves an order of acquittal. More so we cannot believe this story presented by PW9 and PW10 in Court to be true and their trustworthiness is in doubt. Had it been the case that PW9 and PW10 had seen the 'Dhasdhasti' at the time of discovery of the dead body surely PW1 would have been told about the same and PW1 would have narrated the same before the inquest Officer and also in his First Information Report or the written complaint. Such serious infirmity in the FIR, according to Mr. Dastoor affects the probabilities of the prosecution case and such probabilities are to be judged on the adjunct of Section 11 of the Indian Evidence Act to once again justify the veracity of the prosecution case. Mr. Dastoor has rightly rendered proper assistance to the Court by citing a decision in Ram Kumar Pandey -Vs. - State of Madhya Pradesh, (1975) 3 SCC 815 . Mr. Dastoor has rightly rendered proper assistance to the Court by citing a decision in Ram Kumar Pandey -Vs. - State of Madhya Pradesh, (1975) 3 SCC 815 . Paragraph 9 of the said decision is relevant for our purpose and is set out below: "9. No doubt, an F.I.R. is a previous statement which ca, strictly speaking, be only used to corroborate or contradict the maker of it. But, in this case, it had been made by the father of the murdered boy to whom all the important facts of the occurrence, so far as they were known up to 9.15 p.m. on March 23, 1970, were bound to have been communicated. If his daughters had seen the appellant inflicting a blow of Harbinder Singh, the father would certainly have mentioned it in the F.I.R. We think that omissions of such important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case." 31. Law is settled that omission of particular and important fact by the FIR maker in the FIR causes significant defect and may lead to serious discrepancies and doubt in the prosecution case. On perusal of the written complaint and the evidence adduced by the prosecution in Court if it is apparent that the prosecution has either sought to improve the case over the FIR or has suppressed something to hide a fault, it will be proved fatal for the prosecution case and the ratio in Ram Kumar Pandey (supra) is apt in this case. Ratio which is applied in this case and the evidence on the basis of which trial Court passed an order of conviction cannot be sustained. In our view the trial Court has failed to appreciate the evidence and the preponderance of probabilities passed thereon. If the ultimate conclusion is based in exaggerated fact and implies statement of the prosecution witnesses it is difficult for the Court to come to a conclusion that the prosecution has proved its case beyond all reasonable doubts. The doubt when is apparent about the authenticity of the aforesaid witnesses the Court's finding must favour the accused for acquittal. 32. Another important lacuna is apparent in the framing of charges against the accused persons which, although, we have discussed at the beginning but more detailed discussion is necessary on this aspect. 33. The doubt when is apparent about the authenticity of the aforesaid witnesses the Court's finding must favour the accused for acquittal. 32. Another important lacuna is apparent in the framing of charges against the accused persons which, although, we have discussed at the beginning but more detailed discussion is necessary on this aspect. 33. On 20th July, 2010 charge under Section 302/34 IPC had been framed against Asadul Mallick, simplicitor. Nothing was mentioned in the said charge 'beyond along with others'. After surrendering of N Mallick and Dadu Seikh trial Court framed a charge against these two persons on 3rd November, 2011 under Section 302/34 IPC simplicitor, no reference was even made in the charge to 'beyond along with others'. The charges as framed appears to be fundamentally defective and on the basis of such charges conviction could not have been maintained as argued by Mr. Dastoor. He argues that even the said charges cannot be maintained against any of the four appellants. Mr. Chatterjee appearing for the appellant in CRA 319 of 2015 also argued this point and made almost a similar submission before this Court before Mr. Dastoor elaborates his argument. Mr. Dastoor has, however, relied on a decision in Machander Vs. State of Hyderabad,1955 AIR SC 292 paragraph 14 of this report is relevant for our purpose and in the said decision the Hon'ble Court, inter alia, held "Judges and magistrates must realise the importance of the examination under section 342 of the Criminal Procedure Code and this Court has repeatedly warned them of the consequences that might ensue in certain cases. The appellant was arrested in December 1950 and has been on his trial one way and another ever since, that is to say, for over 4 1/2 years. We are not prepared to keep persons who are on trial for their lives under indefinite suspense because trial judges omit to do their duty. Justice is not one-sided." 34. The Hon'ble Apex Court, therefore, refused to remand the case back to the trial Court as the appellants have been on trial for their lives one way or another for four and a half years. The facts of this case is similar to the case at hand and the appellant should get benefit of the ratio decided in the said Machander (supra). 35. Mr. The facts of this case is similar to the case at hand and the appellant should get benefit of the ratio decided in the said Machander (supra). 35. Mr. Dastoor has strenuously argued that the prosecution case is totally demolished if the evidence of the Autopsy Surgeon Dr. Kasinath (PW4) is taken into consideration. This witness adduced by the prosecution does not at all to sustain the FIR lodged by PW1 and the story made thereunder is not at all corroborated by the Autopsy Surgeon. 36. Pw14 found that rigour mortis are absent and it was opined that "death time that more than 24 hours and about 26 hours". Examination had been conducted at 4.15 Pm on 8th June, 2009. If this medical evidence is scrutinized it is apparent that death occurred on 7th June, 2009 between 4.00 am to 4.00 pm. Therefore, the story set up by the prosecution that the victim had been called out by Rafikul at 7.30 pm on 7th June, 2009 does not get support from the PM Doctor. His opinion is based on scientific calculation which in most of the cases has to be accepted unless authenticity of the report of PW14 can be demolished based on scientific reasons. To qualify the situation we may deal with what has been stated by the Autopsy Surgeon. A portion of his statement in Court is set out below. He stated "On examination I found multiple scratch marks on the right side of check multiple scratch marks on the back side of right forearm on middle part, Ligature matrial namely synthetic 'orna' round her neck and I found two rounds of the said 'knot' round the neck and I also found one knot at the back side of neck. 37. I also found horizontal Ligature mark around the neck on the middle part, multiple scratch mark over front of neck. I did not find any injury on secondary sex organs. I found haemotoma on the neck muscle. I did not find any injury on the external genital. I did not find hymen on the dead body. I found haemotoma on forehead. I did not find any injury on skull. I preserved the vaginal swab and handed over to the police constable for examination. As per my opinion the death was due to asphyxia following strangulation and which is antimortem, homicidal in nature. I did not find hymen on the dead body. I found haemotoma on forehead. I did not find any injury on skull. I preserved the vaginal swab and handed over to the police constable for examination. As per my opinion the death was due to asphyxia following strangulation and which is antimortem, homicidal in nature. The time of death was in between 24 Hrs. and 36 Hrs. before holding the P.M. examination. This carbon copy of the P.M. report was prepared and signed by me along with the original by the same carbon process. It is marked on Ext.8." 38. This evidence specifically shows that the Autopsy Surgeon neither found any injury on secondary sex organ nor was it a case at all during examination of this witness that there was any possibility of the victim being raped. the PM report (Exbt.8) is clear expressing the opinion regarding time of death which was between 24 hours and 36 hours before holding post-mortem examination. This part having not been challenged by the prosecution the report becomes sacrosanct and there is no scope to opine otherwise. Time contradiction is serious on the face of Exbt.8 and there is no attempt by the prosecution to explain it away even through the evidence of the Investigation Officers (PW12 and PW13). PM doctor on the question being asked by the Court deposed "In my PM report I did not mention as to whether the victim was raped or not. On perusing the photo of the victim (Ext.1 collectively) and on seeing the style of fixing pant of the victim. I can't say whether the victim was raped and then her pant was fixed on her waist in this fashion." 39. In this regard, however, it is not out of place to mention that the trial Court was also mislead by Exbt.1. The photograph has been allowed to be marked as an exhibit, is not very happy way of admitting a document as per Evidence Act. According to Evidence Act a document which is not admissible in evidence cannot be marked as an exhibit. In this case the photograph has been taken on record without calling for the negative and without getting the person who took this snap examined. Therefore, this part of the evidence cannot be held material for the purpose of any proof. the Trial Court mislead itself in relying upon Exbt.1. 40. Mr. In this case the photograph has been taken on record without calling for the negative and without getting the person who took this snap examined. Therefore, this part of the evidence cannot be held material for the purpose of any proof. the Trial Court mislead itself in relying upon Exbt.1. 40. Mr. Dastoor has relied on the following decisions: Subhash and Anr. -Vs. - State of UP, (1976) AIR SC 1924 ; Purshottam and Anr. -Vs. - State of M.P., (1980) AIR SC 1873 ; Ram Narain -Vs. - State of Punjab, (1975) AIR SC 1727 & Sri Niwas -Vs. Ram Bharosey and Ors., (1994) AIR SC 1539 41. The Principles of law laid down in this decision cited by Mr. Dastoor clearly indicates that the order of conviction passed by the trial Court is contrary to the settled principles of law. relevant paragraphs in the latest decision of the Hon'ble Apex Court in Sri Niwas (supra) being paragraphs 6 and 7 are set out below:- "6. We have perused the medical evidence of PW 5 who conducted autopsy on the dead body of the deceased. The medical officer has found as many as 16 injuries of which injuries Nos. 1, 2, 4, 5, 6, 7 and 8 were all incised wounds. Injuries Nos. 9, 10 and 11 were abrasions. There was only one stab wound, namely, injury No. 3. Injuries Nos. 12 to 16 were gun shot wounds. With reference to injuries Nos. 1 and 2, the medical officer has stated in the postmortem certificate itself that these two injuries, namely, injuries Nos. 1 and 2 had completely cut the trachea, esophagus at its level and nerves and vessels of left-side neck as well as the jugular and carotid blood vessels and nerves parallel to them. Most of the injuries, namely, Nos. 3 to 8 were all above the neck. The nature of the injuries indicates that these injuries could have been caused by a very formidable cutting instrument and not by a knife. The High Court in fact summoned the medical officer and the ballistic expert and examined them who also gave their opinion not consistent with the evidence of the ocular witnesses of the prosecution but stated that these injuries could not have been caused in the manner as spoken to by the prosecution witnesses. 7. The High Court in fact summoned the medical officer and the ballistic expert and examined them who also gave their opinion not consistent with the evidence of the ocular witnesses of the prosecution but stated that these injuries could not have been caused in the manner as spoken to by the prosecution witnesses. 7. We are also of the view that the oral testimony of the witnesses is irreconcilably in conflict with the medical evidence. At any rate, the prosecution has not placed the true picture of the occurrence before the Court without suppressing any part of it. Evidently this has warranted the High Court to give the benefit of doubt to the respondents and allow their appeals. We are in full agreement with the reasons given by the High Court and we do not see any justifiable and compelling reason to interfere with the order of the acquittal. At this juncture, we point out that the State has not preferred any appeal against the order of the acquittal before this Court and the appeal is directed by the complainant who is the son of the deceased." 42. Last but not the least the point urged by Mr. Dastoor is on the irregularity apparent on the face of the judgmnt of the trial Court while considering the examination of the accused persons under Section 313 of the Code of Criminal Procedure. Mr. Dastoor submitted that any circumstance in respect of which an accused has been examined under Section 313 of Cr.P.C. cannot be used against him. Mr. Dastoor is right in making submission because the whole purpose of introducing Section 313 of the Code is to give a chance to the accused to controvert the case made out by the prosecution against him because in a criminal prosecution the accused has been given this only opportunity as the accused is not under any obligation to lead evidence to disprove the stand taken by the prosecution. It is duty of the prosecution to prove the charges against the accused beyond all reasonable doubt. In this case deposition of Autopsy Surgeon (PW14) pointing out the time contradiction about the happening of the occurrence and same having not been put to the appellant, cannot be used against them. This is not only an irregularity but it goes to the root where right of accused to take a plea of innocence gets jeopardized. In this case deposition of Autopsy Surgeon (PW14) pointing out the time contradiction about the happening of the occurrence and same having not been put to the appellant, cannot be used against them. This is not only an irregularity but it goes to the root where right of accused to take a plea of innocence gets jeopardized. Such a right is guaranteed under the Constitution of India and gets defeated by not making it available to the accused. In this regard Mr. Dastoor has rightly cited a decision in the case of Sharad Birdhichand Sarda -Vs. - State of Maharashtra, (1984) 4 SCC 116 . 43. In the said decision the Hon'ble Apex Court clearly held "as this circumstances were not put to the appellant in his statement under Section 313 of the Code of Criminal Procedure the appellant did not have any chance to explain them." This being the settled position of law we do not have hesitation in our mind to hold that the ratio decided in Sharad Birdhichand Sarda (supra) undoubtedly support the defence case and we are bound to hold that prosecution has failed to prove its case beyond reasonable doubt and the Court has also failed to discharge its duty by not complying with what was required under Section 313 of the Code of Criminal Procedure. 44. Mr. Sur learned advocate appearing for the State has seriously contended that evidence adduced by PW9 and the story to be verified before the Court does not inspire confidence of this Court to be believed to be the normal human conduct. 45. Mr. Sur learned advocate appearing for the State has strenuously argued that the trial Court has rightly convicted the accused persons/appellant and there is no inconsistency in the investigating process conducted by the investigating officer. He submitted that the accused persons have been rightly charged under Sections incorporated in the charge-sheet. He submitted that the victim was last seen at the mango garden where PW10 found 'Dhastadhasti' with the accused persons which was reiterated by him to PW9 and subsequently search was made but they could not find it. He submitted that the accused persons have been rightly charged under Sections incorporated in the charge-sheet. He submitted that the victim was last seen at the mango garden where PW10 found 'Dhastadhasti' with the accused persons which was reiterated by him to PW9 and subsequently search was made but they could not find it. He submitted that discovery of the dead body on the next day in the jute field corroborates the evidence of PW10 supported by PW9 that there had been some confrontation between the victim and the accused persons on the night of 7th June in the mango garden and in all probability the victim was murdered on the night of 7th June itself and her body was left at the jute field of the same village. He submitted that there is no break of chain of incidents and prosecution has successfully proved the case beyond all reasonable doubts. Therefore, the order of conviction has to be upheld. 46. This is a case no doubt based on circumstantial evidence the prosecution story is that on 7th June, 2009 the victim was called out of the home by Rafikul, did not return resulting thereby search was conducted. PW10 witnessed Dastadhasti in the mango garden; he was threatened by one of the accused with a dao; he reiterated it to her mother who thereafter accompanied PW10 and conducted a search again because PW1 father of the victim was not at home; neither PW10 nor PW9 informed the incident to any of the neighbours including vasur and dewar of PW9 who could have incidentally helped PW9 to rescue the victim; on the next day on 8th June, 2009 at about 10.00 am some people found the victim lying dead in the jute field. No evidence has been led as to how the murder was committed where could be the possible place of occurrence of murder and if the place where the murder was committed is not same place where her dead body was discovered, it is duty of the prosecution to explain the said place of occurrence where the crime was caused in this case, no attempt was made by the prosecution to establish a link from one incident to the other and there suspicion arises as to the place of occurrence and time of occurrence. While making scrutiny of the evidence we have also noticed that PW9 used a mobile phone for conversation with the relative to inform about the incident on the night of 7th June, 2009 but surprisingly this mobile phone has never brought on record; it was never seized; conversation made through the mobile phone was not brought on record. This is also a serious lacuna on the part of the prosecution and have not been explained by the Investigating Officer in his evidence. 47. It is settled law that the prosecution must stand or fall on its own feet and it cannot derive any strength from the witness of defence. This is trite law and no decision has taken any contrary view. Where various links in chain are in themselves complete, this is a false plea or false defence may be called into aid only to lend assurance to the Court. Before using any other link it has to be proved that all the links in the chain are complete and do not suffer from any infirmity. 48. We fail to understand why PW9 and PW10 who subsequently asserted that the incident of 'dhastadhasti' took place in the mango garden at the night of 7th June, 2009 and thereafter the victim might have been murdered subsequent to which her body was discovered at the jute field on 8th June, 2009, why no reflection is available in the FIR which was lodged after the discovery of the body of the victim in the jute field while it is admitted by PW1, PW9 and PW10 that they all proceeded to the jute field after hearing the news that a dead body was lying there and it cannot be believed that PW9 and PW10 did not tell the story what happened on 7th June to PW1 who is husband of PW9 and father of PW10. If statement made by the PW9 is to be believed it is not understood why after 80 days her 164 statement was recorded. It cannot also be believed why after a delay of 80 days PW10's statement was recorded under Section 164 of Cr.P.C. after about 80 days, although, PW9 was examined by the Investigating Officer on the next day but there had been no disclosure anywhere about the incident in the mango garden. It cannot also be believed why after a delay of 80 days PW10's statement was recorded under Section 164 of Cr.P.C. after about 80 days, although, PW9 was examined by the Investigating Officer on the next day but there had been no disclosure anywhere about the incident in the mango garden. This gives rise to a suspicion about the time of occurrence and place of occurrence which clearly goes against the prosecution. 49. Mr. Chatterjee appearing for the appellants in CRA 319 of 2015 pointed out serious contradiction about the evidence of PW9 and PW10 and the inquest report. He submitted that on the one hand inquest report (Exbt.3) column 3 and the photographs (Exbt.1) establish the fact that the victim was properly dressed including her inner garments but the deposition of the witnesses at the time of further examination is totally contradictory. He submitted that it is a settled position of law that if there is contradiction between oral and documentary evidence, documentary evidence will get priority. The points so raised by Mr. Chatterjee cannot be ruled out but since we are not giving much stress on Exbt.1 and the way photographs have been admitted into evidence we do not consider this submission relevant in the present case. Mr. Chatterjee further submitted that as to why the inquest of the victim girl did not support the version of PW9 and PW10 and has not been properly and clearly explained by the prosecution. According to Mr. Chatterjee it is also not clear why their statement made by PW9 and PW10 has not been corroborated by other relative witnesses. According to Mr. Chatterjee statement of PW9 and PW10 is separate from that of the statement of other witnesses namely PW1, PW2 and PW3, PW4, PW5, PW6, PW7, PW8 and PW11. If according to Mr. Chatterjee, prosecution wants to rely upon the version of PW1, PW2 and PW3, PW4, PW5, PW6, PW7, PW8 and PW11 at the same path they cannot rely upon the version of PW9 and PW10 rather because of the contradiction between some of the prosecution witnesses with that of PW9 and PW10, the evidentiary value gets weakened and the appellants must get an order of acquittal from the charges levelled against them. 50. We, thus hold that the order of conviction is bad in law, the order of sentence is not sustainable and those stands set aside. 50. We, thus hold that the order of conviction is bad in law, the order of sentence is not sustainable and those stands set aside. Appeals stand allowed. Bail bonds furnished by the appellants in C.R.A. 294 of 2015 stands discharged. 51. All concerned are directed to act on a server copy of this judgment and order. 52. The Criminal Section is directed to send down the records to the learned Court below together with a copy of the judgment forthwith to the concerned learned trial Court. 53. The concerned correctional Home is directed to release the appellants forthwith. Department is directed to communicate a copy of this order to the concerned jail authority. 54. Urgent Photostat certified copy, if applied for, be delivered to the learned counsel for the parties, upon compliance with all usual formalities. 55. I agree.