JUDGMENT :

MEENAKSHI MADAN RAI, J.

1. This common Judgment disposes of both Appeals which impugn the Judgment, dated 21.07.2017, being Sessions Trial Case No.09 of 2015 of the Court of the Sessions Judge, West Sikkim, at Gyalshing. In Criminal Appeal No.24 of 2017, the Appellants No.1, 2, 3 and 4 were the accused persons No.2, 3, 4 and 5 respectively before the learned trial Court, (hereinafter referred to as “A2,” “A3,” “A4,” and “A5”). In Criminal Appeal No.23 of 2017 the Appellant was the accused No.1 before the learned trial Court and shall be referred to as “A1” herein.

2. Relying upon the alleged confessional statement of A1 being Exhibit 30 and circumstantial evidence, the Learned trial Court found A1, A2, A3 and A4 guilty of the offence under Section 302 and Section 120B of the Indian Penal Code, 1860 (for short, “IPC”) both read with Section 34 IPC. A5 was found guilty of the offence under Section 201 IPC. A1 to A4 were convicted and sentenced to suffer imprisonment for life under Section 302 IPC and to pay fine of Rs.50,000/- (Rupees fifty thousand) only, each. Under Section 120B IPC, A1 to A4 were sentenced to undergo life imprisonment and to pay fine of Rs.50,000/- (Rupees fifty thousand) only, each. The sentences of imprisonment were ordered to run concurrently. A5 was sentenced to undergo rigorous imprisonment under Section 201 IPC for a term of four years and to pay fine of Rs.50,000/-, (Rupees fifty thousand) only, with a default clause of imprisonment.

3. Assailing this finding, in Criminal Appeal No.24 of 2017, learned Senior Counsel for A2 to A5 advanced the argument that their conviction is based entirely on the purported confessional statement of A1 a co-accused, under Section 164 of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”), Exhibit 30. However, this statement is in the first instance inadmissible in evidence as A1 was administered oath prior to the recording of his statement. Towards this end, reliance was placed on Suren Rai v. State of Sikkim, SLR (2018) Sikkim 108. That, assuming that the statement of A1 is admissible, it cannot be relied on to convict another accused, the statement having been made by an accused himself. In this context, the observation in Nathu v. The State of Uttar Pradesh, AIR 1956 SC 56 and Haricharan Kurmi v. State of Bihar, AIR 1964 SC 1184 was pressed into service where it was held inter alia that the confession of a co-accused cannot be treated as substantive evidence. A1, in his statement has unequivocally stated that he is innocent, thereby decimating the value of the purported confessional statement. That, the impugned Judgment however erroneously held that the statement of A1 was a confession which is an incorrect finding and the Prosecution cannot rely on the statement to foist the offence on the Appellants. Besides, the learned Magistrate who recorded Exhibit 30, ought to have recorded it only as a statement, in view of its exculpatory nature. That, A1 had asserted that the statement was tutored thereby exposing its falsity and rendering it inconsequential to the Prosecution case, strength on this count was drawn from Aghnoo Nagesia v. State of Bihar, AIR 1966 SC 119. That, no other evidence collated by the Prosecution establishes the guilt of A2 to A5 in the offence. That, by mustering the call records of A1 and the deceased Rekha Tiwari, an attempt was made by the Investigating Officer (for short, “I.O.”) to establish that A1 being familiar with the deceased had called her on her cell phone thereby enabling and facilitating the Appellants to commit the alleged offence, as she heeded to his request and came out of her house. Towards this end, the Prosecution relied on Exhibit 44 wherein the exact tower location of A1 and the deceased were sought to be verified from the mobile number of the I.O., which in itself is a preposterous proposition besides failing to establish mens rea. That, A1 in Exhibit 30, had stated that A4 had used a „khukuri’ (a sharp edge