K. Lahiri, J.
1. The appellant is an indigent for which he has received 'free legal aid' during his trial as well as in the appeal before us. The appellant is a peasant. He has been convicted under Section 302, I.P.C. and sentenced to imprisonment for life and to pay a fine of Rs. 100 in default to undergo R. I. for one month more.
2. The Proccution story in short runs thus.
3. On 26-1-75 Bipin Bhumiz went out fishing, never to return. On the following morning he was found dead in a field with four punctured injuries. The first information report was lodged on 27-1-75 at 6-30 p.m. The form of the F.I.R. does not show that it was received at any place other than the police station. However there is a note below the F.I.R. that the ejahar was received at the place of occurrence. The prosecution case is that the accused, for reasons unknown and unexplained, went to P.W. 5 Dhonu Murari in the evening of the date of occurrence and voluntarily made a statement that he had killed 'an old man'. It is alleged, the accused made another 'extra-judicial confession' before the police officer at the police out-post on the 27th morning, where the accused while surrendering stated that he had killed a man with a dao which he had with him. It is alleged by the prosecution that a case was registered on the basis of the General Diary being No. 420 dated 27-1-75 on the strength of the extra-judicial confession made by the accused before the police officer. Interestingly, the prosecution has conveniently omitted to produce the most important record, the General Diary entry, which could have supported the prosecution version about the alleged statement of the accused. The failure of the prosecution to produce 'the General Diary entry' has not been explained. It is further alleged that P.Ws. 1 and 2, Om Prakash Agarwalla and Radheshyam Dutta respectively, followed the accused to the police out-post and overheard the alleged extra-judicial confession. The accused was arrested, the dao seized, the dead body recovered and on completion of investigation a charge-sheet was submitted against the accused under Section 302, I.P.C. He stood his trial before the Court of Session where the prosecution examined as many as 7 witnesses. There is no eyewitness to the occurrence. The learned Sessions Judge found the accused guilty on the basis of the following materials:
(1) The accused made an extra-judicial confession to P.W. 5 Dhonu;
(2) He surrendered to the police with the weapon of the offence, and, confessed before the police officer, and,
(3) Led the police to the place of occurrence in consequence of which the dead body of the victim was recovered.
These are the circumstances or the pillars on which the superstructure of the prosecution story is founded.
4. Now let us examine the strength of the pillars. The most robust column is the extra-judicial confession made to P.W. 5. However, we find the following weak features. First, we note from the evidence of P.W. 5 Dhonu that the accus-ed-appellant had no earthly reason to appear before him and to make such a fatal statement. Secondly, we find that P.W. 5 Dhonu Murari. a resident of the same village to which the other witnesses belong, did not utter a word about the vital confession of the accused to any of the prosecution witnesses examined in connection with the case. It follows that he came up with a story at a very belated stage. Thirdly, he stated that the accused came with the dao and told him that he had killed 'an old man with the dao.' However, we find 4 punctured injuries on different parts of the torso of the deceased and there was not a single incised injury. It clearly depicts that the injuries resulting in death were caused by a pointed weapon and surely not by a dao like weapon. At least a few incised injuries would have been caused had a dao been used as the weapon of assault. Fourthly, we find from the evidence of P.W. 5 that he made the disclosure about the alleged extra-judicial confession two months after the date of occurrence, namely, on 27-3-75. There is absolutely no explanation why the said witness kept within his bosom the most lethal evidence. There was no reason to suppress the vital fact. The learned trial Judge misdirected himself in assuming that the witness did not disclose the fact out of fear overlooking the fact that the accused was arrested and kept in confinement on the 27th Jan. itself and the accused continued to remain in jail custody all along. As such, the finding of the learned Judge that out Of fear P.W. 5 did not disclose 'the fact', cannot be sustained. Further P.W. 5 claimed that he disclosed about 'the confession' to Sita, wife of the deceased, on the morning following the occurrence, Mustt. Sita is alive and she was examined by police. However, the prosecution has not examined her, nor did the prosecution come forward with any plausible reason for her non-examination. Therefore, we draw the natural conclusion that P.W. 5 never uttered a word about the alleged confessional statement to Sita, wife of the deceased, as claimed by him. Further, not a single witness corroborat- ed the version of P.W. 5 Dhonu. We have scrutinised the evidence of P.W. 5 and do not find it to be cogent, reliable and unimpeachable. We find no corroboration of his statement emanating from any quarter whatsoever. His silence for over two months is destructive of the fabric of his testimony. Accordingly, we reject the evidence of the said witness.
5. The next circumstance is that the accused led the police to the place of occurrence and the dead body was recovered in consequence of his statement. The learned Judge committed the fatal error in concluding that it was at the instance of the accused that the dead body was recovered. It is clearly seen from the records that on the following day of the occurrence, early in the morning P.W. 3 Hari Bhumiz, son of the deceased went in search of his father and found him dead in the field. He was the first person to notice the dead body. Only after he had arrived and found the dead body, the police party arrived at the scene. Therefore, discovery of the dead body was by P.W. 3 Hari Bhumiz. As such, the claim of the police about the discovery of dead body at the instance of the accused was not the true version. This apart, we find that the alleged statement of the accused under Section 27. Evidence Act, was neither recorded no proved. Nobody made any statement as to any fact deposed to by the accused in consequence of which information any discovery was made. As such, the essential ingredients of Section 27, Evidence Act, are absent in the instant case. The learned Judge committed a grave error in assuming that merely taking the accused to the place of occurrence where the dead body was lying was enough to bring the case within the purview of Section 27. We are constrained to hold that there is no evidence that the accused led the police to the place of occurrence for discovery of the dead body of the victim. We have perused the ejahar lodged by P.W. 3, which clearly shows that till the lodgment of the ejahar nobody was suspected. According to the prosecution the accused had been taken in a jeep 'as a prisoner' to the place of occurrence and thereafter the ejahar was lodged. Had the story been straight the ejahar should have contained the name of the accused as a suspect. Surprisingly enough the ejahar, on the other hand, runs as follows:
It is presumed that some miscreant killed him by inflicting injuries. It is therefore prayed to take proper steps in respect of this matter after investigation. This is my humble prayer before your honour.
The form of the F.I.R. clearly shows that against Item No. 2, where the name and residence of the accused was to be recorded was noted as 'name is not known'. We hold the story that the accused made a statement leading to the discovery of the dead body to be far from truth. Had the accused been produced as a suspect before the ejahar was lodged at least the name of the accused would have been shown against Entry No. 2 of the Form. We are constrained to hold that when the F.I.R. was lodged the accused was not suspected as the perpetrator of the crime. The entire story of the production and the alleged confessional statement of the accused said to have been made by the accused to the police appears to be shrouded in mystery and clouded; we find it difficult to accept the version. The story was contrived by the prosecution to make out a case against the accused.
6. The next circumstance relied on by the learned Judge was the alleged confessional statement made to P.W. 6. the police officer. A confession made to a police officer is inadmissible in evidence under Section 26, Evidence Act. However, we leave the question aside. Let us examine as to whether the accused made any such confessional statement before the police at the out-post. In the event of making of such a statement the police would have inevitably recorded the statement in the General Diary. It is the prosecution case that a General Diary Entry No. 420 dated 27-1-75 was made. It was not produced. What consequence follows? The natural deduction is that if produced the G. D. Entry would have shown something Which was bound to go against the prosecution. The only conclusion that we can draw is that there was no such entry where the police recorded any such alleged confession. Under these circumstances, we find it difficult to accept the testimony of P.Ws. 1, 2 and 4 about the alleged confessional statement made before P.W. 6, Investigating Officer of the case. It appears from the cross-examination of P.W. 4 that the accused was handcuffed and in police custody when he arrived at the police station. Therefore, the statement which the accused allegedly made was definitely when he was in police custody. As such it was hit by Section 26, Evidence Act. In any view of the matter, we are not impressed with the evidence about the alleged extra-judicial confession said to have been made by the accused to P.W. 6. Sri H. K. Deb, S. I. of Police.
7. Further, although it was alleged by the prosecution that the accused produced the alleged weapon of assault the prosecution made no endeavour to have it chemically examined to establish that there was trace of 'human blood' to bear up its case. The fatal omission was a serious hiatus in the story pictured by the prosecution. The prosecution has failed to establish that the murder was committed with 'the dao' in question,
8. For the foregoing reasons, we find that the conclusions arrived at by the learned Sessions Judge as to the guilt of the accused cannot be sustained. In the result, we set aside the conviction and sentences of the accused and allow the appeal. He shall be set at liberty forthwith unless wanted in connection with any other case.