16. If the statement was not made before the police officer at once or at least shortly after the event when a reasonable opportunity for making it presents itself, there is every possibility of fabrication of extraneous facts. The object of introducing this provision is that, the statement shall be made at a time, when the mind of the witness is still so connected with the events as to make it probable that his description of them then would be accurate. If, however, time for reflection passes between the event and making of the statement subsequently, it not only can be of very little value, but be actually dangerous, as such, statements can be easily brought into being. The factor of time mentioned in Section 157 is very important to serve as a safeguard against fabrication of false evidence. It follows, therefore, that the statement made at or about the time when the occurrence took place may be proved and used to corroborate the testimony of a witness and statements made long after the occurrence cannot be used as corroboration as it does not exclude the chance of false implication of the innocence person.
17. In this case apart from taking the plea of alibi, the defence, came up with a specific plea by giving suggestions to the witnesses that during the life time of Nilufar Rashid, Suraiya Chowdhury (PW 6) was divorced by her husband and that after the death of Nilufar, a proposal was given to the respondent to marry her but the respondent turned down the proposal and as a result, the informant instituted the case out of vengeance. This plea of defence cannot be said to be without any basis in view of this delay in instituting the case. Over and above, PWs 2, 3, 4, 5, 6 and other witnesses admitted that in the earlier case instituted by the respondent, they did not make any statement to the police. If the respondent was really responsible for the cause of death, certainly these witnesses would have made statement to the police implicating him but they preferred not to disclose the alleged real fact which they had stated after about two years.
18. Now turning to the second confessional statement of Belal, PW 1 in his cross-examination admitted that he went to see Belal in jail with Belal’s father. He repeated similar statement voluntarily. This raised suspicion about the voluntariness of the second statement of Belal made on 12th August, 1994, inasmuch as, he made this statement after the informant met him in custody with his father. There was no plausible explanation on the part of the prosecution why co-accused made-a different story after he met the informant in jail. This fact strengthened the defence plea that the respondent was implicated falsely by introducing a concocted story as he refused to marry PW 6. In his second statement, Belal resiled from his earlier stand and imputed the entire blame upon the respondent. This fact raises a reasonable suspicion that this statement was procured from Belal by inducement with a view to shifting the responsibility of the murder upon the respondent.
19. Section 24 of the Evidence Act provides that a confession made by the accused voluntarily against him of the facts stated. The word voluntary used in respect of means a confession not caused by inducement, threat or promise. There can be no reason on the part or the informant to meet the accused in jail other than for a particular object. The prosecution has not explained the reason. This statement can at best be treated as retraction of the earlier confession but in no case can it be treated as a voluntary confession. In view of what is stated above, the trial court is not justified in relying upon the second statement on the ground that this statement corroborates the injuries. The High Court Division, in the premises, is perfectly justified in discarding this statement.
20. From the facts discussed above, it is abundantly clear that the second story introduced by the prosecution is an embellishment and if we consider the defence case as disclosed from the suggestions given to the witnesses and the witnesses deposed in support of its case, it cannot be said that it has no basis at all. Over and above, since the High Court Division has given the respondent the benefit of doubt after assessment of the evidence, this Division is slow to interfere with the findings of fact arrived at by the appellate court particularly in a case of acquittal. If the finding reached by the appellate court while acquitting the accused cannot be said to be unreasonable, this Division should not disturb it even if it were possible to reach a different conclusion on the basis of the materials on record. It has been held in State of Uttar Pradesh vs Ram Kishun, AIR 1976 SC 2304, ‘It is well settled that in an appeal against acquittal this Court is slow to interfere with the decision of the High Court even though it has interfered with the conviction by the trial court, where the same is reached after a proper appreciation of the entire evidence. The possibility that it may just be reasonably feasible for this court to take a different view of the evidence from that of the High Court Division is not the test in an appeal against acquittal’.
21. The consistent views of the superior court of this sub-continent is that in reversing an order of acquittal, the appellate court should be slow and circumspect to disturb a finding of fact but if it is of the opinion that the finding of fact is wrong and not borne out by the evidence, there is no limitation on its power to interfere with the order of acquittal. An accused starts with a presumption of innocence when he is put up for trial and this presumption of acquittal should not be lightly interfered with by this Division “because, if two views of the matter are possible, a view favourable to the accused should be taken. The presumption of innocence has to be kept in mind especially when the accused has been acquitted by the appellate court after examination of the entire evidence. On perusal of the judgment of the High Court Division, it cannot be said that its findings in giving the respondent the benefit of doubt are erroneous or based upon misreading of the evidence on record. Rather, they are sound and based on proper appreciation of the evidence on record. We find no illegality in the judgment of the High Court Division which calls for our interference. The appeal is, therefore, dismissed.
