JUDGMENT : (Joymalya Bagchi, J.) 1. Appellants have assailed the judgment and order dated 31.01.2001 and 02.04.2001 passed by the learned Additional Sessions Judge 2nd Court, Murshidabad in Sessions Trial No. 8 of August of 2000 arising out of Sessions Serial No. 130 of 2000 convicting the appellants for commission of offence punishable under Sections 302/201/34 of the Indian Penal Code and sentencing them to suffer imprisonment for life for the offence punishable under Sections 302/34 IPC and to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 5,000/- each, in default, to suffer rigorous imprisonment for one year more for the offence punishable under Section 201 IPC; both the sentences to run concurrently. Prosecution case:- 2. Prosecution case, as alleged, against the appellants and one Kalam Sk. is to the effect that one Sufera Khatoon (the deceased) was married to Abdul Kalam on 3rd Jaistha i.e. 18th May 1986. On 28th Sravan i.e. 14th August, 1986, Sufera came to her father-in-law’s house to celebrate Eid. Her husband Kalam was also invited. On 3rd Bhadra i.e. 20th August, 1986 Kalam and his wife left in the evening. Thereafter, Sufera was missing. Her father Abdus Sattar (PW 1) searched for his daughter everywhere but could not find her. 3. He lodged missing diary. On 12th Bhadra i.e. 29th August, 1986 in the morning Raugila Bibi (PW 6) saw a female body floating in the water. The body was identified as that of Sufera. An unnatural death case was initiated. 4. On 16th Bhadra i.e 3rd September, 1986, Baidujjaman (PW 3) and Nurul Seikh (PW 8) disclosed they had seen the couple along with the appellants moving through the road towards the field. They were carrying torch light. On query they stated they were going for a cinema. Thereafter, the villagers assembled and a salish was held. In the salish Kalam as well as the appellants admitted their guilt. On the next day, written complaint was lodged by PW 1 resulting in registration of Bhagawangola Police Station Case no. 02 of 1986 dated 04.09.1986 under sections 302/201/34 IPC. 5. During investigation Moinuddin made an exculpatory confession before the Judicial Magistrate (PW 12) implicating Kalam and Najimuddin in the murder. 6. In conclusion of investigation, charge sheet was filed against the appellants and the said Kalam. 7. 02 of 1986 dated 04.09.1986 under sections 302/201/34 IPC. 5. During investigation Moinuddin made an exculpatory confession before the Judicial Magistrate (PW 12) implicating Kalam and Najimuddin in the murder. 6. In conclusion of investigation, charge sheet was filed against the appellants and the said Kalam. 7. During the pendency of the proceeding Kalam died and charges were framed against the appellants under Sections 302/201/34 IPC. In course of trial, prosecution examined 13 witnesses and exhibited a number of documents to prove its case. Defence of the appellants was one of innocence and false implication. 8. In conclusion of trial, learned trial Judge by the judgment and order dated 31.01.2001 and 02.04.2001 convicted and sentenced the appellants, as aforesaid. 9. PW 1 (Abdus Sattar) is the father of the victim and the de-facto complainant. He stated his daughter was married to Abdul Kalam. After two months he brought her back to his house. In the month of Bhadra, Kamal came to their house. He stayed for the night. In the evening on the next day around 7 P.M. the couple left to see a movie. Thereafter his daughter went missing. Nurul (PW 8) and Baidujjaman (PW 3) stated they had seen his daughter and son-in-law on the road. He lodged general diary. A co-villager (PW 6) noticed the dead body of a lady lying at Bar Pukur. She went there and identified the body. Police brought out the body from the pond. He lodged written complaint scribed by PW 2. He put LTI on the written complaint. 10. PW 3 (Baidujjaman) disclosed one night at 8/9 P.M. Sufera and her husband were going down the road. On enquiry Kalam stated that they were going to see a movie. After sometime he had also seen the appellants. They also stated they were going to see a movie. Subsequently the dead body was recovered. A salish was held and he disclosed these facts in the salish. During cross-examination, he stated he had seen the appellants 2/3 minutes after Kalam and his wife had gone down the road. 11. PW 6 (Raugila Bibi) deposed she saw dead body of a lady wearing a green coloured saree floating in the pond at Bar pukur. She became frightened and called for help. Police came and recovered the body. The body was that of Sufera. 12. 11. PW 6 (Raugila Bibi) deposed she saw dead body of a lady wearing a green coloured saree floating in the pond at Bar pukur. She became frightened and called for help. Police came and recovered the body. The body was that of Sufera. 12. PW 4 (Nurshed Ali), PW 5 (Samsur Ali) and PW 7 (Entaj Sk.) are villagers. They stated the body of the victim was recovered from Bar pukur. Nurul Seikh and Baidujjaman stated they had seen the appellants with the lady. On that day in the evening Abdul Kalam stated he had killed his wife with the help of the appellants. Thereafter the appellants also confessed their guilt. 13. During investigation Moinuddin made a confessional statement before the Judicial Magistrate (PW 12). The Magistrate proved the statement (Ext 9). 14. PW 8 (Nurul Seikh) deposed dead body of a girl was recovered from a pond. He signed the inquest report. He did not depose in Court he had seen the appellants with the couple on the fateful night. 15. PW 9 (Dr. J N Chatterjee) is the post mortem doctor. He deposed on 29.08.1986 he held post mortem over the dead body. He found the body was highly decomposed. He could not opine with regard to the cause of death as the body was highly decomposed. He proved the viscera report. 16. PW 13 (Gopal Ch. Dey) deposed he had gone to the village and lifted the body of Sufera. He prepared inquest report (Ext 2). He conducted investigation over the unnatural death case. 17. PW 10 (Palan Chandra Maity) and PW 11 (Sunil Kumar Paul) are the investigating officers of the case. PW 11 submitted charge sheet. 18. Analysis of the evidence would show that prosecution case is based on circumstantial evidence. Prosecution has relied on the following incriminating circumstances to prove the guilt :- (i) ‘Last seen’ theory; (ii) Extra judicial confession & (iii) Judicial confession of Moinuddin Sk. (i) ‘Last seen’ theory:- 19. PW 3 stated in the evening around 8/9 P.M. he had seen the couple proceeding down the road. When queried they stated they are going to see a movie. 2-3 minutes later appellants were seen going down the same road. They also stated they were going to see a movie. (i) ‘Last seen’ theory:- 19. PW 3 stated in the evening around 8/9 P.M. he had seen the couple proceeding down the road. When queried they stated they are going to see a movie. 2-3 minutes later appellants were seen going down the same road. They also stated they were going to see a movie. Even if the aforesaid version of PW 3 is believed, it does not give an impression that he had seen the appellants with the couple. At its height it shows few minutes after the couple had travelled down the road, appellants were seen travelling down the same road and had claimed they were going to see a movie. 20. As this circumstance is sought to be proved through PW 3, it is incumbent to test whether this witness is unimpeachable and finds support from other materials on record. 21. Father of the victim (PW 1) stated the victim had left her residence with her husband Kalam in the evening of 20.08.1986. Thereafter, she did not return. On the next day, PW1 started searching for his daughter. He stated he enquired from various persons in the village including Baidujjaman (PW 3). Bodiujjaman (PW 3) told PW 1 he had seen the couple travelling down the road in the evening. He did not state that couple was accompanied or followed by the appellants. Thus, PW 1 does not corroborate PW 3 that the latter had seen the appellants follow the couple down the road on the fateful evening. 22. Mr. Sudip Ghosh drew our attention to the FIR where PW 1 claimed that on 16th Bhadra i.e. 02.09.1986, Baidujjaman (PW 3) and Nurul Seikh (PW 8) had disclosed appellants were with the couple on the night of occurrence. But the evidence of PW 1 with regard to the so-called disclosure is otherwise. As discussed earlier, PW 1 stated PW 3 told him he had seen the couple together. He did not mention the appellants. Nurul Seikh (PW 8) is also silent with regard to the ‘last seen’ circumstance in Court. 23. Even the day when PW 3 disclosed this circumstance is unclear. In FIR it is stated four days after the discovery of dead body, PWs 3 and 8 disclosed this circumstance to the de facto complainant, father of the deceased. 24. Nurul Seikh (PW 8) is also silent with regard to the ‘last seen’ circumstance in Court. 23. Even the day when PW 3 disclosed this circumstance is unclear. In FIR it is stated four days after the discovery of dead body, PWs 3 and 8 disclosed this circumstance to the de facto complainant, father of the deceased. 24. Contrary to the case made out in the FIR, PW 3 claimed in Court he disclosed the incident to villagers on the day the dead body was recovered. Prosecution case with regard to the ‘last seen’ theory is in disarray. Baidujjaman’s (PW 3) version does not find corroboration from Nurul Seikh (PW 8). As per FIR, PW 3 disclosed the incident four days after the discovery of the dead body. But in court the de-facto complainant is completely silent with regard to such disclosure to him and PW 3 claims the disclosure was made on the very day the body was recovered. 25. For these reasons, I do not consider it safe to rely on the version of the sole witness PW 3 that the appellants were seen travelling down the same road 2-3 minutes after the couple had gone down that path. ‘Last seen’ theory is based on shaky evidence and cannot be said to have been proved. (ii) Extra Judicial confession:- 26. Another incriminating circumstance is the extra judicial confession made by the appellants. PWs. 4 to 6 are villagers. They deposed the dead body of the victim was recovered on 29.08.1986. On that day, Baidujjaman and Nurul Seikh disclosed they had seen the appellants with the couple. Thereafter a salish was held. Kalam, husband of the victim admitted he had murdered the victim with the help of the appellants. Appellants were summoned to the salish and also admitted their guilt. 27. The aforesaid evidence is not corroborated by the contents of FIR and other attending circumstances. In the FIR, it is stated Baidujjaman and Nurul Seikh disclosed they had seen the appellants with the couple four days after the recovery of the body. Thereafter, salish was held where Kalam and the appellants admitted their guilt. In Court, the maker of the FIR (PW 1) is completely silent with regard to the so-called extra judicial confession. 28. I am conscious that the First Information Report being a previous statement of the complainant may not be used to contradict other witnesses. Thereafter, salish was held where Kalam and the appellants admitted their guilt. In Court, the maker of the FIR (PW 1) is completely silent with regard to the so-called extra judicial confession. 28. I am conscious that the First Information Report being a previous statement of the complainant may not be used to contradict other witnesses. But the evidence of other witnesses with regard to extra judicial confession on the day of recovery of dead body i.e. on 29.08.1986 must be tested on the anvil of broad probabilities and normal human conduct. Had such disclosure been made on the day of recovery, it is inexplicable why the First Information Report came to be registered four days later i.e. on 04.09.1986 stating the so-called confessions were made a day before i.e. on 03.09.1986. This inconsistency strikes at the root of the prosecution case that Kalam and the appellants had made an extra judicial confession on the day of recovery of the dead body. It is also apposite to note that the extra judicial confession is said to have been made in the course of a salish. The salishnama has not been produced in Court to corroborate the deposition of witnesses regarding the salish. 29. In view of the contradictory stances emanating from FIR and the mouths of prosecution witnesses with regard to the date on which the extra judicial confession was made and other attending circumstances like lack of corroboration from PW 1 and non-production of salishnama, I am of the opinion the extra judicial confession of the appellants during salish has not been proved beyond doubt. (iii) Judicial Confession of Moinuddin Sk.:- 30. PW 12 proved the judicial confession (Ext.9) of Moinuddin Sk. Contents of the said confession (Ext.9) show it is an exculpatory one. In the confession Moinuddin Sk. stated Kalam suspected the fidelity of his wife. He approached the appellants to murder her and offered money. Najimuddin Sk. accepted the offer. Thereafter, on the ruse of going for a movie, Kalam took his wife to a field. Kalam and Najimuddin ushed Sufera into the room. Thereafter, Najimuddin raped her and both of them strangulated her with a napkin. When the victim died Najimuddin took her body near the pond. He was asked to bring bricks. Then Najimuddin and Kalam tied bricks to the body and threw her into the pond. Kalam and Najimuddin ushed Sufera into the room. Thereafter, Najimuddin raped her and both of them strangulated her with a napkin. When the victim died Najimuddin took her body near the pond. He was asked to bring bricks. Then Najimuddin and Kalam tied bricks to the body and threw her into the pond. Thereafter, Najimuddin threatened him not to disclose the incident to anyone. 31. A plain reading of Ext.9 would show the confession is an exculpatory one. Moinuddin Sk. has not implicated himself in the murder. He blames Najimuddin and Kalam for the murder. At its height he only admits after the murder he supplied bricks to the co-accused to assist them to sink the body in the pond. The aforesaid statement cannot be treated to be a confession by Moinuddin Sk. with regard to the murder. Exculpatory confession of an accused cannot be used against another. 32. I have already discussed the other incriminating circumstances against the appellants i.e. ‘last seen’ theory and the extra judicial confession have not been proved. In their absence, exculpatory confession of Moinuddin Sk. cannot form the foundation of guilt against the other accused i.e. Najimuddin. The confession to the extent it is exculpatory can be used to convict its maker i.e. Moinuddin Sk. for commission of offence punishable under Section 201 IPC and not murder. 33. In the light of the aforesaid discussion, I acquit Najimuddin Sk. of the charges levelled against him. 34. Accordingly, appellant no.2, Najimuddin Sk., shall be discharged from his bail bond after expiry of six months in terms of Section 437A of the Code of Criminal Procedure. 35. Appellant no.1, Moinuddin Sk., is acquitted of the charge under Section 302 IPC. He is convicted of the charge under Section 201 IPC. 36. With regard to punishment, it appears the appellant has been in custody for about a year. Even if one believes the judicial confession, his role in the occurrence is marginal. Incident occurred four decades ago. 37. Under such circumstances, I modify the sentence imposed upon the appellant viz. Moinuddin Sk. and direct that he shall suffer rigorous imprisonment for the period already undergone and pay a fine of Rs.5000/-, in default, to suffer rigorous imprisonment for one year more. 38. Appeal is allowed to the aforesaid extent. 39. Period of detention suffered by the appellant viz., Moinuddin Sk. Moinuddin Sk. and direct that he shall suffer rigorous imprisonment for the period already undergone and pay a fine of Rs.5000/-, in default, to suffer rigorous imprisonment for one year more. 38. Appeal is allowed to the aforesaid extent. 39. Period of detention suffered by the appellant viz., Moinuddin Sk. during investigation, enquiry and trial shall be set of from the substantive substance imposed upon him in terms of Section 428 of the Code of Criminal Procedure. 40. I express my appreciation for the able assistance rendered by Mr. Bibaswan Bhattacharya, Amicus Curiae in disposing of the appeal. 41. Lower court records along with a copy of this judgment be sent down at once to the learned trial Court for necessary action. 42. Photostat certified copy of this judgment, if applied for, be given to the parties on priority basis on compliance of all formalities. I agree. (AJAY KUMAR GUPTA, J.)