The prosecution case in short are as follows;"On February 15, 1985 at about 8.35 P.M. the complainant Marjina and her brother Hossain Sheikh returned house after their days work and Hossain started playing with his son on the courtyard.At that time, Sefali Sheikh, wife of Gofur Sheikh residing in the next house asked him to come to their house as Gofur was calling him.In response to that the brother of the complainant went there.Sometime thereafter around quarter to nine the complainant was attracted by an alarm raised from the house of Gofur "Chor Chor".When she rushed there and found his brother Hossain Sheikh inside the room of Gofur Sheikh and accused Gofur Sheikh, Sefali Sheikh, Ikramul Sheikh and Johur Sheikh were assaulting him.As soon as she arrived there the accused persons fled away and she found that blood is oozing out from the abdomen of Hossain Sheikh.Out of the four accused persons one of them has assaulted her brother on his abdomen with a knife.Thereafter, her brother was removed to Hospital where he succumbed to his injuries."Form No. J (1) IN THE HIGH COURT AT CALCUTTA Criminal Revisional Jurisdiction Appellate Side Present:The Hon'ble Justice Ashim Kumar Roy C.R.A. No. 467 of 1988 Gofur Sheikh & Ors.Versus The State & Anr.This appeal is directed against an order of conviction under Section 304 Part II, read with Section 34 of the Indian Penal Code and sentence of rigorous imprisonment for three years with fine and default clause.The appellant in the instant appeal along with another were placed on trial before the Learned Additional Sessions Judge, 2nd Court, Nadia, to answer a charges under Sections 302/34 of the Indian Penal Code.After trial while the Learned Sessions Judge acquitted the accused Sefali Sheikh @ Bibi, but convicted the present three appellants under Section 304 Part II read with Section 34 of the Indian Penal Code and sentenced each of them to suffer rigorous imprisonment for three years and to pay a fine of Rs. 2000/- and in default to suffer rigorous imprisonment for six months.Upon a FIR being lodged with the aforesaid allegations a First Information Report under Sections 302/34 of the Indian Penal Code was registered.After completion of investigation police also submitted charge-sheet for the self-same offence.Subsequently, the appellant and another Sefali Sheikh were placed on trial before the Learned Sessions Judge, 2nd Court, Nadia to answer a charge under Sections 302/34 of the Indian Penal Code.In the trial while present three appellants were convicted under Section 304 Part II/ 34 of the Indian Penal Code, the other accused Sefali Sheikh was acquitted.During the trial prosecution in order to establish its case examined as many as 10 witnesses.Out of them P.W. 1, Marjina Bewa, the sister of the deceased, P.W. 2 Momena Bewa, wife of the deceased, P.W. 3 Selina Bibi, sister of the deceased and P.W. 5 Asrajan Bewa, mother of the deceased claimed to be the eye witnesses of the occurrence.While P.W. 4 Kurban Sheikh is a post occurrence witness.P.W. 6 Dr. Bimalendu Tarafdar is the doctor to whom injured Hossain Sheikh, was brought at Santipur General Hospital.P.W. 8 Dr. Swarup Kundu is the Autopsy Surgeon.P.W. 9 is a Judicial Magistrate.P.W. 7 is a police constable and P.W. 10 is the Investigating Officer of the case.In addition to that prosecution has relied on a retracted confessional statement of accused Gofur Sheikh (Exhibit - 4).Heard Mr. Abhijit Basu, the learned advocate appearing on behalf of the appellants as well as Mr. Swapan Kumar Mallick, the learned advocate appearing on behalf of the State.Perused the evidence on record as well as other materials viz. the confessional statement of the accused, First Information Report etc.According to the P.W. 1, the defacto-complainant of the case after arriving at the house of the accused Gofur along with Momena Bewa wife of Hossain and her mother Asrajan, she found that accused Johur was assaulting Hossain with fist and blows, when the accused Sefali, Gofur, Ikramul were present there.She also noticed that blood was oozing out from his abdomen.Thereafter, Hossain was taken to their house and he stated to them that Ikramul hit on his belly by a Kirich.Her allegations that she went to the house of Gofur with Selina, wife of the Hossain Momena and her mother and found accused Johur was assaulting Hossain by fist and blows and Hossain told her that accused Ikramul assaulted him on his abdomen with one Kirich was contradicted during her cross- examination with reference to her allegations made by her in the First Information Report.It appears in the FIR no such allegation was made.According to the P.W. 2 Momena Bewa, the wife of the deceased Hossain when she arrived at the place of occurrence with others she found her husband Hossain Sheikh was standing pressing his abdomen and Ikramul was cleaning a bloodstained knife.In her cross-examination she was contradicted with her allegations that she found Ikramul cleaning a bloodstained knife.It appears from the examination of the Investigating Officer of the case that no such statement was made by her to the police during investigation.The witness has not stated anything about the presence of any of the appellants at the spot except Ikramul.P.W. 3 Selina Bibi stated that as she along with other witnesses reached Gofur's house noticed that Johur was assaulting Hossain with fist and blows catching his collar.She also noticed one injury in the abdomen of Hossain and Hossain told him that wife of Gofur caused such injury.Her allegation that Gofur was assaulting Hossain by fist and blows by catching his collar stand contradicted with reference to her statement before the police.According to the Investigating Officer of the case no such statement was made to him.This witness had not stated about the presence of any other appellants except Johur.P.W. 5 Asrajan Bewa stated in her evidence that having reached the house of Gofur she found that Johur was assaulting Hossain by catching his collar.At the time she noticed that Hossain received a bleeding injury on his abdomen and told her that wife of the Gofur caused such injury.This witness admitted that she was never examined by the police and she not stated anything to the police about the incident as was stated in her chief.This witness also mentioned anything about the presence of Ikramul at the spot.All the witnesses however stated that Hossain went to the house of Gofur on being called by his wife Sefali Sheikh Having carefully perusing the evidence on record I find that the wife of the deceased P.W. 2 Momena Bewa has not made any claim that her husband disclosed who caused the injury.While according to P.W. 1 Marjina Bewa, the deceased Hossain told her that he was assaulted by Ikramul but P.W. 3 Selina Bibi and P.W. 5 Asrajan Bewa both stated that Hossain told them that the injury was caused by Sefali Sheikh, the wife of the Gofur Sheikh.However, Sefali Sheikh has been acquitted in the trial.Since the alleged dying declaration of Hossain Sheikh made to the witnesses as regards to his assailants is contradictory and none of the said witnesses during investigation made disclosure to the police about such dying declaration I am not inclined to act thereupon.It is also to be noted although according to the prosecution case the P.W. 2 Momena Bewa, the wife of the deceased Hossain rushed to the spot together with other witnesses viz. P.W. 1, P.W. 3 and P.W. 5 but she was silent about any disclosure by Hossain.It is well settled a confession without corroboration can very well be acted upon to record conviction but as a rule of prudence court must seek other circumstances to corroborate a confession particularly when the same is retracted although each and every circumstances mentioned in the confessional statement is not required to be corroborated separately and independently but the broad fact of the confession must be corroborated.In the instant case, this court already declined to rely on the evidence of the alleged eye witnesses to the occurrence as their statement stands contradicted on very vital and material points.Moreover, the story spelt out by the appellant Gofur Sheikh in his retracted confession has not been corroborated by any evidence.The appellant Gofur in his confession allegedly claimed to be responsible for causing injuries but claimed that he has not caused such injury with the intention to kill the deceased but he did so when he found that deceased was attempting to rape his wife and being apprehended by him was trying to flee away.None of the witnesses implicated accused Gofur for causing injury on the deceased Hossain.For the reasons stated above, I am of the opinion that prosecution has not been able to prove its case and thus the impugned order of conviction cannot be sustained.In the result appeal succeeds and stands allowed.

Cited provisions: Section 34 in The Indian Penal Code; Section 302 in The Indian Penal Code