D. Pathak, Actg. C.J.
1. Appellant Jasimuddin Ahmed alias Abdul Waheb was tried under Section 302 read with Section 34 Indian Penal Code along with six other accused persons including Gelo Rashid alias Abdul Rashid for causing the death of Hasen Ali Mondal. After the conclusion of the trial accused Gelo Rashid was convicted under Section 326 Indian Penal Code and sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs. 500/- only, in default to rigorous imprisonment for further six months. The appellant was convicted under Section 302 read with Section 114 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 1000/-, in default to rigorous imprisonment for further one year. This appeal is only by Jasimuddin.
2. The brief narration of the facts for the prosecution is that on 23-8-1971 deceased Hasen Ali Mondal of village Kaimari, who was the President of the Saguanchara Gaon Sabha was returning home along with the appellant Jasimuddin, Secretary of the same Gaon Sabha. In the evening at about 7-30 P. M. while he was going home from Boxirhat he was waylaid and assaulted by some persons at village Choto Guma. Deceased Hasen Ali Mondal ran towards the house of Suleman and fell down. The wife and mother of Suleman came out of their house and saw Hasen Ali Mondal lying dead. They also saw some persons fleeing away of whom Gelo Rashid was recognised as one amongst them. The appellant was found standing near Hasen Ali Mondal. Information was sent to the house of the deceased and his brothers and other relatives came to the place of occurrence. P. W. 11, Jamaluddin Ahmed, cousin of the deceased, lodged an F.I.R. at Gos-saigaon Police Station, where a case under Section 302 Indian Penal Code was registered. Taking up the investigation of the case, police went to the place of occurrence and held inquest over the dead body of the deceased. The dead body was sent to Dhubri Civil Hospital for post mortem examination. During the course of investigation, the police arrested as many as 13 persons of whom 7 including the appellant were charge-sheeted. Police could not arrest four persons who were charged as absconders.
3. The prosecution has examined 15 witnesses including the doctor who held the post-mortem examination. The defence case is one of denial and no evidence was adduced on behalf of the defence. On conclusion of the trial, on the basis of the evidence on record, the appellant as well as Gelo Rashid were convicted and sentenced as aforesaid.
4. The death of Hasen Ali Mondal is not in dispute. P. W. 1 Asiran Bibi, wife of Suleman Seikh, near whose house Hasen Ali Mondal was found lying dead. P. W. 4 Akhiman Bibi, mother of Suleman, p. W. 9 Suleman, P. W. 6. Khastor Seikh, a neighbour of Suleman and other witnesses have testified to the death of Hasen Ali Monda. P. W. 2 Dr. D. N. Sarma. Sub-Divisional Medical and Health Officer. Dhubri held the post-mortem examination on the dead body of Hasen AH Mondal and he found the following injuries:
(1) 16 number of incised wounds of different sizes oh the anterior aspect of the chest wall.
(2) One incised wound 11/2' x 1/2 x 2' on the fight side of the neck.
(3) Two incised pounds -1' x 1/2'x 1/2' x and 1/2' x 1/2' x 1/4' on the left arm.
(4), One incited -wound - 1/2' x 1/2 ' x 1/4' on the right ear.
The doctor found fractures of second and sixth rib on the left side and of 4th, 5th and 7th rib on the right side. Pleura with haemorrhage in plural cavity was found injured, Both the lungs were found injured and there was haemorrhage in the abdominal cavity. The doctor has opined that the injuries were ante-mortem in nature and caused by sharp weapon. In his opinion the death of Hasen Ali Mondal was due to shock and haemorrhage as a result of the injuries sustained.
5. The prosecution case rests mainly on the confessional statement made by the appellant and also some evidence that he was seen during the day going along with the deceased to Boxirhat as well as at the time of occurrence he was found near the dead body by P. Ws. 1 and 4.
6. Mr. A.K. Bhattacharjee, the learned Counsel appearing on behalf of the appellant submits that the confessional statement on which the trial court heavily relied upon was not recorded by a Magistrate competent to record the confessional statement under Section 164 Cr. P.C. His next submission is that the confessional statement was neither true nor voluntary. Therefore, the trial court should not have accepted the confessional statement for the purpose of convicting the appellant. His third submission is that the evidence of P. Ws. l and 4 simply testifies that he was seen near the dead body after the occurrence. The learned Counsel submits that he was not only there near the dead body at the time of occurrence, he was also all along with other members of the family till next day when the dead body was buried. The learned Counsel further submits that all the other accused persons were acquitted on the ground that the confessional statement of the accused could not fasten guilt on them and the appellant is convicted by the help of the provision of Section 114 of the Indian penal Cods. There is no material to show from the evidence on record except the retracted confession of the appellant that he abetted or facilitated the commission of the offence by other accused persons. Even Gelo Rashid against whom there was evidence that he was seen running away from the place of occurrences coupled with the confession of the appellant was only convicted under Section 326 I.P.C. Therefore, to convict the appellant under Section 302/114 I.P.C. on the basis of the same evidence is of giving unequal treatment by the trial Court. Finally, the learned Counsel submits that if the confessional statement is found to be unreliable, then there is nothing upon which the prosecution case can stand and the conviction will be illegal and not warranted by any evidence on record.
7. Mr. C. R. De, the learned Public Prosecutor appearing for the Stale of Assam, submits that the circumstantial evidence is so strong and telling that it corroborates the confessional statement in material particulars which was rightly accepted by the trial court to base the conviction of the appellant.
8. It is not disputed by the defence that the appellant was at the residence of the deceased on the previous night and thereafter they went to Boxirhat on the date of occurrence and while coming back he was accompanying the deceased and was present at the time of the occurrence. Prosecution has relied on this piece of circumstance to show that he was with the deceased at the time of occurrence. Now let us see whether this circumstance is enough to fasten the liability on the appellant.
9. P. W. 1 Asiran Bibi, wife of Suleman has stated that while she was in her kitchen, her mother-in-law heard a sound and she was asked to see what was happening outside. On her coming out of the house with a burning lamp in her hand, she saw 5/7 persons running away, of whom she recognised accused Rashid, She also saw the appellant standing nearby. Her mother-in-law also came out of the house and raised an alarm. They saw the deceased lying dead, It is found in her cross-examination that when the relatives of the deceased including informant Jama-luddin came to the place of occurrence, she reported to them that she could recognise accused Rashid and also saw the appellant standing nearby. P. W, 4 Akhiman Bibi, mother of Suleman has stated that hearing sound outside her house, she asked her daughter-in-law to see what was happening. When her daughter-in-law. P. W, 1, came out of the house, she also followed her and taking the lamp from her daughter-in-law, she saw the deceased Hasen Ali lying injured on the ground. She has stated that she raised an alarm and their neighbors came. It is in her evidence that she also saw the appellant standing nearby.
10. P. W. 6 Khastar Seikh has stated that on the date of occurrence when he went to Boxirhat Bazar, he saw the deceased Hasen and the appellant Jasimuddin sitting in a tea stall of Chand Mohan. He returned home and was taking his tiffin. Soon after, he heard cries and came out of the house. He saw the mother and wife of Suleman, (P. Ws. 1 and 4) and also Hasen lying dead. It is in his evidence that he saw appellant standing nearby. He raised alarm and the neighbours came to the place of occurrence. This witness has further stated that p. W. 1 reported to him that she saw accused Rashid and Moulavi standing nearby. He has denied that the appellant stated to him that when he was answering call of nature, deceased Hasen was suddenly attacked and killed. P. W, 9 Suleman has stated in his evidence that he went to Bazar wherefrom he returned home and his mother and wife reported to him about the occurrence. It was told to him that accused Gelo Rashid was recognised and appellant was seen standing near the deceased, p. W. 8, Chand Mohan Paul has stated that deceased Hasen Ali Mondal and appellant Jasimuddin took tea in his tea stall in the evening on the date of occurrence. In his cross-examination he denied that appellant Jasimuddin stated to him that Hasen was attacked and killed by somebody when appellant was answering call of nature, p. W. 12. Durgamal Mahesri has stated that on the date of occurrence deceased Hasen Mondal and appellant went from his shop soon after he heard hulla that Hasen was slabbed. P. W. 10 Maijuddin has stated that hearing cries he went to the place of occurrence and saw deceased Hasen Mondal lying dead. Informant p. W. 11, Jama-luddin Ahmed, cousin of Hasen has stated that on being informed about the death of Hasten, he went to the place of occurrence and saw Hasen Mondal lying dead and he went to the nearby Chhagulia Police Out-post where he was asked to inform the Police at Gos-saigaon. The witness accordingly arranged a Jeep and went with Akbar to inform the Police at Gossaigaon, and there he lodged the first information report. He has stated that deceased Hasen came with appellant Jasimuddin and another to Dhubri on the date of occurrence and that the appellant stayed in their house on the previous night. In his cross-examination, P. W. U has stated that at first he did not ask anybody about the occurrence and that after his return from Gossaigaon he asked the inmates of P. W. Suleman's house about the occurrence, p. W. 13 Mamud Ali. Mondal brother of deceased Hasen Mondal has stated that on the date of occurrence, Hasen came to Dhubri with the appellant. In the evening, Maijud-din informed them that Hasen Mondal was killed by somebody. Then the witness came to the place of occurrence and saw his brother lying dead with injuries near the house of Suleman. When the witness questioned appellant as to who killed his brother, his reply was that he did not see. This witness has further stated that the wife of Suleman reported that she could recognise accused Rashid.
11. P. W. 11 the informant has stated in his cross-examination that his statement was recorded by Police about 3 or 4 days after the occurrence, may be on the 25th or 26th. He has stated that when the Daroga recorded his statement he told him that he did not know who had killed his cousin and that he had no suspicion over anybody. P. W. 6 has stated that the appellant was there on the night of occurrence and was there till next morning as well.
12. The discussion of the above evidence disclosed that the appellant was at the residence of the deceased the previous night and next morning, that is on the date of occurrence the appellant and the deceased went to Dhubri on some business and returned to Boxirhat in the evening when the occurrence took place.
13. The learned Counsel for the appellant has stated that the appellant was not suspected of the complicity in causing the death of Hasen. He was not even suspected by the Police till 28th. It was only on 28th his statement was recorded under Section 164 as a witness. In his statement he has slated that on the night before the occurrence he went to Hasen's house and stayed there for going to Dhubri as he had the necessity for going to Dhubri for his radio license and other matters. Accordingly on the date of occurrence after their meal, they started for Boxir-hat mounting on an elephant. He has further stated that the appellant as well as the deceased kept the cycle at Pora-mal's shop and came to pan-shop near Chandmal's shop, sat down and took tea there. While they were returning on foot towards the house of the deceased at village Chotogoma which is to the east of P. W. Suleman's house contiguous to Boxirhat about 200 yards away to the east, they found an open place and beside it there was water. Seeing water he went to answer the call of nature and the deceased was waiting for him on the road. While he sat down to relieve himself about 15 yards away on the south of the road, he heard an outcry raised by the deceased 'I am being assaulted'. He looked back and found the deceased running towards the west and 5/7 persons following him. On hearing the outcry raised by the deceased he also raised an outcry. On hearing the alarm 3/4 persons came out and said 'Let us catch hold of that bastard Moulavi too' and came in search of him. Then he hid himself in the jungle. He has further stated that as they were not able to find him out, they again ran after the deceased. Though it was a little dark, he could understand by the voice that accused Gelo Rashid was also present among them. He has further stated that when he came near the deceased he was asking as to who were the persons that assaulted him to which the deceased with much strain gazed at him and said 'I have been stabbed with a dagger by about 6/7 persons,' among whom he could recognise the accused Gelo Rashid and Hasen Molla. Thereafter his voice stopped and died.
14. After the statement made on 28th, he was not suspected but he was arrested only on the 2nd of September and produced before the Magistrate on which date he made his confessional statement.
15. Now from the facts narrated above it is difficult to get any link in the commission of the offence in which the appellant can be said to be involved.
16. The learned Counsel for the appellant submits that the facts disclosed above show that the appellant was all along with the deceased but for a brief spell as he was easing himself, some miscreants attacked the deceased and caused the death. According to the learned Counsel it is not a case that he was last seen together from which an irresistible conclusion can be drawn that he was connected with the murder or abetted in causing the death of Hasen. The learned Counsel refers to a decision of the Supreme Court in Lakhanpal v. State of Madhya Pradesh, reported in AIR 1979 SC 1620 : 1979 Cri LJ 1217' where it has been held that in prosecution for offence of murder the mere fact that the accused and the deceased (the real brother of the accused) were together in the field prior to the occurrence does not by itself lead to irresistible inference that the accused must have murdered the deceased.
17. In this case there is no direct evidence to show that the appellant abetted the commission of the offence. It is merely on the circumstance of the appellant having accompanied the deceased on the date of occurrence, has been sought to be relied upon by the prosecution and on which the trial court placed heavy reliance, It is true that a circumstance also may form the basis of conviction but in order that the circumstantial evidence can be relied upon, it must be consistent with the sole hypothesis of the guilt of the accused.
18. In Shankarlal Gyarasilal Dixit v. State of Maharashtra : 1981CriLJ325 , it has been stated that in a case of circumstantial evidence, the circumstances on which the prosecution relies must be consistent with the sole hypothesis of the guilt of the accused. It is further observed, 'Legal principles are not magic incantations and their importance lies more in their application to a given set of facts than in their recital in the judgment. The simple expectation is that the judgment must show that the finding of guilt, if any, has been reached after a proper and careful evaluation of circumstances in order to determine whether they are compatible with any other reasonable hypothesis.
19. The learned Counsel for the appellant has submitted that in this case the circumstance of the appellant being in company of the deceased, does not irresistibly lead to the inference that he had any hand in abetting or facilitating the murder of the deceased Hasen.
20. The conviction of the appellant is with the help of Section 114 of the I.P.C. Now it is necessary to see whether abetment was made by the appellant. According to Section 107 a person abets the doing of a thing when he instigates any person to do a thing or engages with one or more other persons or persons in any conspiracy for the doing of that thing or intentionally aids, by any act or illegal omission the doing of that thing. In either of the first two cases it is immaterial for the conviction of the abettor whether the person instigated commits the offence or not or the person conspiring together actually carried out the objects of the conspiracy. In case of abetment by aid, a person can be said to abet by aiding only when by the commission of an act he intends to facilitate the commission thereof. Therefore, where a person is charged with abetment by aid of an offence under Section and the person charged with the offence is acquitted on the ground that he had not committed the offence in question, of intentionally aiding by any act or omission the commission of that offence arises. There is no iota of evidence against the appellant that he ever made any conspiracy with the other co-accused for the commission of the offence for which he was charged. The only material that has come up before the Trial Court is his confessional statement. We have already noticed the infirmity as to the confessional statement, taking into consideration his statements made earlier on the 28th of August as well as his confessional statement which was made on the 30th of September after his arrest on 2nd of September. The statement made under Section 164 Cr. P.C. as well as his confessional statement' there is an unbridgeable gap. One is quite at variance with the other. In his examination under Section 313 Cr. P.C. he has stated that he made the statement under Section 164 as was tutored by the Police and he has further stated that the confessional statement was made due to the torture made by the Police, In this circumstance it is difficult to hold without any reasonable doubt that he aided and abetted for the commission of offence by the co-accused. It is not the case of the prosecution that he himself participated in assaulting the deceased.
21. Emphasising the contention that the appellant was given unequal treatment, the learned Counsel for appellant submits that Gelo Rashid was convict-ed under Sections 326/149 I.P.C. only on the basis of the same evidence whereas the appellant has been convicted under Section 302/114 I.P.C. The counsel submits that this is an unfair and unjust treatment, In support of his submission he refers to a decision of the Supreme Court reported in : 1978CriLJ1713 Muthu Naicker v. State of Tamil Nadu where it was held that when charged, members of unlawful assembly under Section 326/149 I.P.C. on which some members were acquitted of their charge, the remaining members would also have to be acquitted of the same charge, The Supreme Court observed that it would not only be unfair but self-contradictory to sustain the conviction of the remaining accused for the offence under Section 326/149 I.P.C. That would be an unequal treatment and, therefore, even though as members of the unlawful assembly they could have been fixed with vicarious liability, in view of the situation obtaining on the finding of the High Court, the Supreme Court has no option but to acquit 1hem for the offence under Section 326/149 I.P.C.
22. It is true that the Court must make an attempt to separate grain from the chaff, the truth from the falsehood yet this can only be possible when the truth is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation the Court will have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, then this principle will not apply.
23. In this contest let us also consider another decision of the Supreme Court in : 1975CriLJ1734 Balaka Singh v. State of punjab. The brief facts were:
24. In appeal, nine accused persons against their conviction and sentence for offence of riot with murder, the High Court acquitted four accused persons because of the omission of their names in the body of the inquest report. The delay in sending copy of the F.I.R. 1o Iiaqua Magistrate also remained unexplained. Prosecution party were inimical to accused. F, I, R. was found to have been written after the inquest report was prepared by the A. S. I. The prosecution witnesses in their parrot like version implicated even the four acquitted accused equally with the other five convicted accused making absolutely no distinction between one and the other.
25. On the above facts the Supreme Court held that the prosecution case against the convicted accused and the acquitted accused was so inextricably mixed up that it was not possible to sever one from the other, Having regard to the partisan and interested prosecution evidence, it was not possible to reject the prosecution case with respect to the four acquitted accused and accept it with respect to the five convicted accused. If the case against the four accused failed, then the entire prosecution would have to be discarded and it would not be possible for Supreme Court to make out a new case to convict the appellants as had been done by the High Court.
26. Now let us consider the confessional statement of the appellant which is the sheet anchor of the prosecution for bringing home the charge against the appellant. The confessional statement was recorded by P, W, 3. Nikhil Ranjan Das, The statement reads as follows:
On 20-8-1971 last I came to the house of Hasen Ali Mondal, the President of the Gaon Sabha to discuss about Pan-chayat matters, At that' very time I told President Hasen Ali that I would go to Dhubri on my personal business. Then Hasen Ali told me that he would also go to Dhubri on next Monday dated 23-8-1971 on his personal matters and he asked me to accompany him to Dhubri that day. I was asked to stay at his residence at night on 22-5-1971. After discussion on 20-S-1971 I started for Baxirhat. I met one Subal Chandra Sutradhar of Naxalites Party at Baxirhat bazar. Then after discussion on other matters he asked me whether I would go to Dhubri or halt. I replied him that I would go to Dhubri on 23-8-1971 along with Hasen Ali Mondal. At the time while I came back after shopping, I found Heramba Debnath Kartik Pandit, Gauranga Rai, Subal Chandra Sutradhar and Gelo Rashid alias Abdul Rashid, all discussing together, Seeing me they called me to them and asked me when I would come back if I would go to Dhubri along with Hasen Ali. I replied I would return that very day. After that I left for house. According to Hasen Ali's advice I came to his residence about 21/2 or 3 P. M. on 22-8-1971. In the afternoon Hasen Ali took me to witness a game at Saukuti. But on our arrival at Baxirhat when we came to know that there would be no play that day we left for bazar. I left Hasen Ali and went to the residence of Raotmal Alo-wal to know about my revenue. After discussion with him while I came out I saw some persons standing at Hatkhola (village bazar place) and when I proceeded to some extent they called me; Then I went to them and found that Heramba Debnath, Chenibasi Sarkar, Khetramohan Bhowmik and Chinta Haran Mondal were the persons who were present there. I was called and told that I would be killed, if I would not obey their orders. When I wanted to know and asked them about their orders they fold me that they were Naxalites and that their party decided to kill Hasen Ali Mondal as he did not allow to enlist their names in the voter list without citizenship certificate and that he had done harm to them in respect of lands. They told that a chance would come today for killing him. I was, then, given directions as to what was to be done on 23-8-1971. They told me that they would keep themselves hide at about 6/7 p. m. at dusk on 23-8-1971 near the house of Suleman Seikh at village Chotogoma and instructed me that I would fein and go to a little away from him to relieve myself. On 23-8-1971 myself and Hasen Ali Mondal according to our previous arrangement started for Dhubri. That day after completion of our works when we came back from Baxirhat at about 4.30 in the afternoon and stepped in the Pupular Pharmacy at that time Kariik and Gouranga came there, informed me by gesticulation from outside that they all were leaving for the place of occurrence. After that when we came in front of Chand Mohan Paul's shop I then saw on the road leading to Baxirhat Motor Station Heramba, Kartik, Chenibasi, Subal. Khetramohan, Chintaharan Man-dal and Gouranga. They then again called me to them, threatened and told that they would kill me and would spare no survival of my progeny unless I would act according to their instructions. During that time Hasen Ali went to the bazar. On his return I left along with him on foot towards the place of occurrence. Soon after our arrival at the place of occurrence, I accordingly sat down to answer call of nature and at that time Heramba and Debnath came from behind and hurt Hasen Ali with a 'ballam' (spear). Hasen being injured ran towards the house of Suleman Seikh, But he has caught and fell to the ground in the courtyard of Suleman and each of them went close to him and hurt him at the chest and other parts of his body with sharp weapons, I remained standing being perplexed. In the meantime other people of the village arrived there at the alarm raised by the children of that house. Then the naxalites, mentioned above, fled away towards the west. After that I went near the dead body of Hasen Ali Mondal and started keeping watch over the same, I disclosed nobody who killed Hasen Ali Mondal out of fear. The statement that I made on 27 and 28-8-1971 in the Court was not of my own accord. The police compelled me to make that statement.
27. The learned Counsel for the appellant at first submits that the confessional statement which has been retracted by the appellant is not only not voluntary but also untrue. He has further submitted that the confessional statement was recorded by P. W. 3, a Second Class Magistrate, who was not specially empowered to record the confessional statement as required under Section 164 of the Cr. P.C. (old which applied to the case). In this connection the learned Counsel refers to a decision of the Supreme Court in State of Uttar Pradesh v. Singhara Singh : 4SCR485 where it was held that - where a second class Magistrate not specially empowered by the State Government to record a statement or confession under Section 164, Criminal procedure Code has purported to record a confession of this accused under Section 164 his oral evidence to prove the confession will be inadmissible. The principle that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that the other methods of performances are necessarily forbidden, applies to judicial officers making a record under Section 164. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted.
28. A similar view was taken by the Supreme Court in Nika Ram v. State of Himachal Pradesh : 1972CriLJ1317 where a Naib-Tahsildar exercising 2nd Class Magisterial powers recorded the confession. In that case it was held as the recording Magistrate was a second class Magistrate not specially empowered in that behalf, the record was inadmissible in evidence at the trial.
29. We have gone through the evidence of P. W. 3, the Magistrate who recorded the confessional statement, He has stated in his cross-examination that he had special power for recording the confessional statement. There is no suggestion or question put to him that the witness was not specially empowered to record the confessional statement. In that view of the matter, we hold that the Magistrate had the power to record the confessional statement.
30. Now the question is whether the confessional statement recorded by P. W. 3 is voluntary and true. The act of recording confession under Section 164, Cr. P.C. is a solemn act, and in discharging his duties under the said section, the Magistrate must take care to see that the requirements of law under Section 164 Cr. P.C. are fully satisfied. It would be necessary in every case to put the questions prescribed by the High Court circular, but the question intended to be put should not be allowed to become a matter of mere mechanical enquiry and no element of casual-ness should be allowed to creep in. The Magistrate should be fully satisfied that the confessional statement which the accused wants to make is in fact, and in substance voluntary. The whole object of putting questions to an accused who offers to confess is to obtain an assurance of the fact that the confession is not caused by any inducement, threat or promise, having reference to the charge against the accused as mentioned in Section 24 of the Evidence Act. The warnings set forth in Section 164 of Cr. P.C. are merely illustrative and not exhaustive. To adjudge voluntariness, two basic factors should be taken note of, namely, first, the existing mental condition of the prisoner. It must be assumed that the prisoner is labouring under mental agony or disorder having arraigned as an accused of a crime, a man in peril undergoing distress and torture, worry and strain is ordinarily not mentally fit person to make a statement to endanger his life and liberty. Secondly, the Magistrate must satisfy the Court by documentary or oral evidence that he had fully exercised his judicial mind to get the real motive or the impelling factor which prompted the prisoner to make the concession.
31. It is well-settled that when prosecution demands conviction of an accused primarily on the basis of his confession, the Court must apply double tests (i) whether the confession is perfectly voluntary, (ii) if so, whether it is true and trustworthy, Satisfaction of the first test is a sine qua non for its admissibility in evidence; and if the confession appears to the court to have been caused by any inducement, threat or promise, such as mentioned in Section 24 of the Evidence Act, it must be excluded and rejected.
32. We have already adverted in the earlier part of the judgment that the appellant was examined under Section 164 Cr. P.C. on 28-8-1971 before he was arrayed as an accused. In the statement he has not mentioned any conspiracy with the other accused so as to abet the commission of the crime or facilitating the other accused to cause the death of the deceased. It is only in the confessional statement that he has stated that it was the other accused persons who approached him and asked him by giving threat in order to facilitate the commission of the offence. He was arrested on 2-9-1971 and next day he was straightway brought from the police lock-up for recording his confessional statement. Ext. 1, the record of the confessional statement does not show what period for reflection was given to the appellant before recording the confessional statement. Neither we find that the recording Magistrate told the appellant that after the recording of the confessional statement, he would not be sent back to the police again. The statement was recorded in such a hurry without giving him proper time for reflection that it becomes difficult to give assurance that the appellant made the statement voluntarily. In his statement under Section 313 Cr. P.C. he has retracted the confessional statement and has stated that he had to make the confessional statement due to the threat and assault made on him by the police. Even in his statement under Section 313 Cr. P.C. he has stated that the statement that was recorded under Section 164 Cr. P.C. of him was also tutored by police. In his confessional statement he has stated that the statement that he made on 27th and 28th in the Court was not made on his own accord. The police compelled him to make that statement.
33. Looking at the entire circumstance that the appellant was not suspected of having any complicity till 28lh when his statement was recorded under Section 164 Cr. P.C. when he did not give any hint that he had some conspiracy with other accused persons for the commission of the offence. It is only in the confessional statement he has stated that the other accused persons asked him to facilitate the commission of the murder of the deceased after giving him threat to his own life. The confessional statement, as we have already stated, was retracted by the appellant-Considering the circumstances that the appellant was straightway brought from police lock-up for recording confession, the voluntariness of the appellant to confess becomes doubtful. If the confessional statement is not voluntary, then it would not be admissible at all. We also find that the statement does not give the ring of truth. Here the entire prosecution case rests on the shaky circumstance and the infirm confessional statement.
34. It is the settled rule of circumstantial evidence that where circumstances are susceptible of two equally possible inferences, the Court should accept that inference which favours the accused rather than an inference which goes in favour of the prosecution. The rule of appreciation of circumstantial evidence is that the circumstances must be of a conclusive nature and tendency so as to be totally inconsistent with his innocence and are not explainable on any other hypothesis except the guilt of the accused.
35. Considering the entire matter and scanning through the evidence on record, we have no manner of doubt that the conviction of the appellant is not sustainable. Accordingly, the conviction and sentence are set aside.
36. In the result, the appeal is allowed. The appellant who is on bail is discharged from his bail bond.
T.C. Das, J.
37. I agree.