Calcutta High Court (Appellete Side)
Sapu Dakua & Anr vs The State Of West Bengal on 29 July, 2019
Author: Jay Sengupta
Bench: Md. Mumtaz Khan, Jay Sengupta
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Appellate Side
Present:
The Hon'ble Justice Md. Mumtaz Khan
And
The Hon'ble Justice Jay Sengupta
C.R.A. 241 of 2005
With
C.R.A. 345 of 2005
With
C.R.A. 379 of 2005
Sapu Dakua & Anr.
Versus
The State of West Bengal
For the appellant : Mr. Sekhar Kumar Basu
Mr. Kallol Mondal
Mr. Krishan Ray
Mr. Amrita Chel ...for the appellant
(CRA 241 of 2005)
Mr. P.S. Bhattacharyya
...for the appellants
(CRA 379 of 2005)
Mr. Joydeep Biswas ...for the appellant
(CRA 345 of 2005)
For the State : Mr. Sudip Ghosh
Mr. Bitosoke Banerjee ...for the State
(CRA 241 of 2005)
Mr. Sudip Ghosh
Mr. Apurba Kumar Datta ...for the State
(CRA 345 of 2005 and
CRA 379 of 2005)
Heard lastly on : 03.07.2019
Judgment on : 29.07.2019
Jay Sengupta, J.
1. These three appeals are directed against the judgment and order of conviction dated 16.03.2005 and sentence dated 18.03.2005 passed by the Learned Special Judge-cum-Additional Sessions Judge, Cooch Behar in Sessions Trial No. 2(6) 02: Sessions Case No. 61/2000, thereby convicting the appellants under Section 302 of the Penal Code and sentencing them to suffer imprisonment for life along with a fine of Rs. 10,000/- each, in default to suffer simple imprisonment for one year. During pendency of the appeals the appellant Sapu Dakua alias Amitabha Dakua passed away and the appeal abated as against him on 04.07.2017.
2. On 06.11.1996 at about 12.05 hours, PW 1 lodged the instant First Information Report with the Mathabhanga Police Station alleging commission of an offence under Section 302 read with Section 120B of the Penal Code against unknown assailants. PW 1 alleged that on 06.11.1996 at about 8.00 hours, PW 9 came in a motor cycle and informed him that PW 1's brother Dilip Sarkar was murdered last night at 1.30 hours in his house by some unknown miscreants. The victim was rushed to a hospital by PWs 2, 3, 8 and 9. PW 1 visited the hospital and found the victim dead. He further alleged that the victim's wife Lakshmi, an appellant, had an affair with one Surendra, another appellant. The victim had objected to this. The wife had earlier given poison to the victim mixed with milk. PW 1 believed that the victim's wife collaborated with the miscreants to murder him. PW 3, the couple's son, who was sleeping by the side of the victim, did not have any clue about what was happening. The victim's wife gave out different versions on different occasions.
3. The investigation commenced. On 06.11.1996 at about 9.35 hours PW 13, the Investigating Officer, held an inquest over the deadbody of the victim in the hospital in the presence of witnesses including PW 9. The right eyeball had come out of the socket. There were marks of grave injuries on the left eye. Blood seeped from the nose. The preliminary investigation revealed that PW 2 saw the victim lying dead on bed in a pool of blood. The miscreants wounded the victim with a firearm. On 06.01.1996 at 15.30 hours PW 15, a doctor, conducted the post- mortem examination over the deadbody of the victim. According to him, the death was caused by a stab injury over the head that destroyed the brain matter. The weapon used was probably circular in diameter. After completion of investigation, a charge sheet was submitted. On 15.09.2000 charges were framed against the four accused under Section 302 read with Section 120B of the Penal Code.
4. During trial, the prosecution examined as many as 17 witnesses to establish its case. The defence case was mainly a denial of the prosecution version.
5. From a careful reading of the evidence on records, it appears that PW 1 was the victim's brother and the de facto complainant of the case. He supported the First Information Report. After lodging of the First Information Report, PW 2 told him that the accused had murdered the victim. PW 3, who was sleeping by the victim's side received stains of blood on him. But, PW 3 did not say anything to PW 1 before lodging the First Information Report. PW 1's mother told him that the accused Lakshmi had earlier tried to serve poison to the victim along with meat. In his cross-examination, PW 1 admitted that he did not personally witness anything illicit between the accused Lakshmi and the accused Surendra. PW 1 was a post-occurrence witness. He saw bloodstains on the 'chaddar' under the cot, the same having percolated through the bed, and also at the entrance. PW 2 was the minor daughter of the victim, aged about 9 years at the date of occurrence. She was an eye-witness to the murder. She identified all the accused in Court. She deposed that they were staying in a big room partitioned into two. At night, the parents went outside. Bulbs were put off. She saw a scuffle near the verandah and the accused pressing her father's mouth. When the victim lost consciousness, the accused put him on the bed. The accused struck the victim at the side of his ear with a sharp cutting weapon. PW 2 saw all these in the light of the kitchen. She could see through the vacant spaces that were there in the bamboo split. She shouted 'baba'. But, the accused Surendra threatened her. Her mother the accused Lakshmi also asked her not to disclose the truth and to say that it was a case of dacoity. PW 2 called her brother. Both shouted and cried. The villagers took the victim to a hospital. She could not tell the truth because of the threats given to her. PW 7, a neighbour, also warned her that if she disclosed the facts, then Lakshmi would go to jail and she would have nowhere to stay. Subsequently, she stated the real facts to the police and also gave a statement under Section 164 of the Code. She deposed that her mother the accused Lakshmi had an illicit affair with the accused Surendra. The victim used to protest. Quarrels took place over this. Earlier, the accused Lakshmi gave poison to the victim, once with milk and then with meat. On the second occasion, a dog died eating such meat. In her cross-examination, she stated that when the police interrogated her on the next morning, PW 2 did not disclose anything. She gave a statement before the Learned Magistrate after 3/4 days. Before that she gave another statement to the police. She admitted that she stayed at PW1's house and met the Investigating Officer a number of times. PW 3 was the victim's son who was aged about 12 years at the date of occurrence. He deposed about quarrels taking place between the couple regarding Surendra. Surendra often used to meet Lakshmi secretly by the side of the house. Once Lakshmi mixed poison in meat and served it to the victim. A dog died after the meat was thrown out and was consumed by it. On the date of occurrence PW 3 was sleeping with his father. Her mother Lakshmi had earlier given him a glass of milk to drink. After the incident PW 2 called him. He saw that the victim was lying with bleeding injuries in his eyes and ears. His wearing apparel was stained with blood. Subsequently, PW 2, his sister and an eye-witness to the murder, disclosed the actual facts to him. At the time of giving his deposition, the accused Lakshmi and Surendra were residing together in the victim's house. He also gave a statement to a Learned Magistrate under Section 164 of the Code. In the cross- examination, he stated that he had made two statements to the police, one on the next day and the other 4/5 days later. His mother Lakshmi asked him not to disclose the incident to others. PW 4 was a quack doctor. At 3.00 hours the victim's daughter PW 2 called him saying that there was a dacoity in the house. He was a post-occurrence witness. He found no signs of dacoity. The victim's wife Lakshmi was wearing earrings. The victim's mother had told him about an illicit relation between Lakshmi and Surendra and Lakshmi's attempt to poison the victim's meat. Subsequently, Lakshmi and Surendra were running the victim's husking mill. PW 5 was a neighbour and a post-occurrence witness. Subsequently the accused Lakshmi and Surendra were staying in the victim's house and were running the victim's husking mill. In the cross-examination he stated that he was a nephew of the accused Surendra. He had filed a civil suit for recovery of possession of a land against the accused Lakshmi. PW 6 was another neighbour and a post-occurrence witness. He saw the victim lying dead on his bed. The accused Lakshmi was sitting there, but she did not say anything. In her cross, she admitted that Lakshmi and some others took the victim to a hospital. PW 7 was the scribe of the First Information Report. He wrote the First Information Report at the Police Station on being asked by the police. PW 8 was a neighbour. At 2.00/2.30 hours he heard cries and went to the place of occurrence. Others were also there. He saw the deadbody with injuries. He was declared hostile after he stated that he did not know about the relation between Lakshmi and Surendra. In his cross-examination, he stated that while sleeping he heard a cry 'dacoit, dacoit'. He informed the police about dacoity. PW 9 was another neighbour. While asleep, he too heard the cries 'dacoit, dacoit'. He went to Falakata on a motor cycle to inform a relative of the victim. PW 9 was also declared hostile after he deposed that he did not know about any relation between Lakshmi and Surendra. But in his cross-examination he admitted that the said Lakshmi and Surendra were running the victim's husking mill. PW 10, a neighbour, did not say much. PW 11, a local rickshaw puller, upon the request of PW 9, carried the deadbody, first to the Police Station and then to the hospital. He saw the eyeball of the victim partly uprooted. PW 12 was an employee of the West Bengal State Electricity Board. The accused Surendra used to work there. PW 12 stated to the police that the said Surendra attended office on 06.11.1996, but was on leave from 07.11.1996 to 15.11.1996 and probably extended that the leave after the murder. In the cross, he admitted that he did not bring the relevant duty roster. PW 13 held the inquest over the deadbody in respect of a UD case. PW 14 was an Investigating Officer of the case. He received the First Information Report at the place of occurrence. He knew the handwriting of the Police Officer who recorded the First Information Report. In the cross- examination, he stated that he arrested Lakshmi on 06.11.1996. He forwarded the victim's son and daughter for recording statements under Section 164 of the Code on 16.03.1999. After the incident, PWs 2 and 3 stayed at PW 1's place. PW 15 was the doctor who conducted the post-mortem examination over the deadbody of the victim. He found several injuries. The right eyeball was uprooted. The injury over the head that destroyed the brain matters resulting in haemorrhage and shock had caused the death. The weapon used was probably heavy and semi circular in diameter. In the cross-examination PW 15 stated that the death could also be accidental. PW 16 was the Learned Magistrate who recorded the statements of PWs 2 and 3 under Section 164 of the Code. PW 17 was the last Investigating Officer. He submitted the charge-sheet.
6. Mr. P.S. Bhattacharyya, Learned Advocate appearing on behalf of the appellant in CRA No. 379 of 2005, submitted as follows. The first GD Entry recorded in respect of the incident was not produced. The recording of the First Information Report is disputed as while PW 7 said that it was written at the Police Station, PW 14, the Investigating Officer deposed that he had received the First Information Report at the place of occurrence. Although in the First Information Report as well as in the inquest report some role of the accused was alluded to, yet the First Information Report was lodged against unknown accused. The prosecution is based mainly on the evidence of PW 2, a child witness. During the entire investigation no indication was given that the son and the daughter knew anything about the evidence. Only at the time of recording of their statements under Section 164 of the Code, after about two years and four months from the date of occurrence, this story came out. There is no indication as to why the statements were recorded after so long. No fear could have persisted in the mind of the two children that would make them wait for so long. After all, on the next day the accused Lakshmi was put behind the bars. In this context, it is significant that as per evidence of witnesses, from the date of occurrence till the recording of the statements under Sections 164 of the Code, the children stayed at the house of PW 1. The Investigating Officer indicated no source of light in the sketch map although PW 2 deposed that she saw the occurrence in the light of a bulb in the kitchen. The investigation was absolutely perfunctory. Blood stained clothes were neither sent to the FSL nor produced in Court. There was no evidence adduced regarding any earlier case of mixing poison in the food of the victim. Even the statement of PW 2 recorded under Section 164 of the Code differed from her evidence in Court on certain aspects. The charge of Section 120B could not be proved. One wonders how could then the appellants be convicted under Section 302 of the Penal Code simpliciter. Reliance was placed on Arbind Singh vs. State of Bihar, 1995 Supp (11) SCC 416 on whether the evidence of a child witness needs corroboration.
7. Mr. Sekhar Kumar Basu, Learned Senior Counsel appearing for the appellant in CRA No. 241 of 2005, submitted as follows. The prosecution failed to prove its case beyond reasonable doubt. As regards the initiation of the First Information Report, as per PW 1, the First Information Report was lodged at the Police Station. But, as per the Investigating Officer PW 14, the First Information Report was received at the place of occurrence. This raises a suspicion. While the charge under Section 120B could not be proved, strangely the conviction was awarded on the charge of Section 302 of the Penal Code simpliciter. It may fairly be contended that the prosecution failed to prove the charge of murder individually against each of the convicts. No wearing apparel was produced in Court. There is hardly any evidence regarding the alleged illicit affair between the accused Lakshmi and the accused Surendra. PW 1 portrayed a rather violent character of the accused Lakshmi and deposed about her illicit relation with the accused Surendra. But in his cross, PW 1 admitted that the issue of illicit relation was mere hearsay. PW 1 stated about the accused Lakshmi administering poison in meat to the victim on one occasion. But, he did not say anything about administering poison in milk. The evidence of PW 2, the most vital witness in this case, is full of material contradictions. She contradicted the Investigating Officer and the records on the question about when she was examined under Section 164 of the Code. While she deposed that she was examined by the Learned Magistrate after about 3/4 days of the incident, the records clearly showed that she was examined after about 2 ½ years of the said incident. It was PW 1's evidence that within a few days after the incident, she disclosed everything to the police. The possibility of tutoring by the relatives on her father's side could not be ruled out in this regard. After all, she was staying at PW 1's house from after the incident. She also admitted to have met the Investigating Officer of the case a number of times. According to PW 2, she was first threatened by the accused Surendra and then by her mother not to disclose the incident. PW 3, quite like PW 2, also underwent such tutoring. He gave out a rather different story as regards poison being administered in meat. PW 2 shouted despite threats. PW 4's evidence created some doubt about PW 3's presence at the spot as the former could not find the latter after the occurrence. PW 8, a neighbour, turned hostile. But, his statement under Section 161 of the Code was not exhibited and as such, seeking contradiction was not complete. Therefore, his cross-examination as regards the issue of dacoity could be relied on. PW 9's evidence that the victim's son and daughter came out crying 'dacoit, dacoit' was also quite significant. It is of utmost importance that the Investigating Officer of the case PW 14 did not mention about the verandah in the sketch map or even try to ascertain any source of light present there. The Investigating Officer did not find the deadbody inside the room. Yet, no material was produced to fix the place of occurrence, nor were articles seized and sent to the FSL. PW 15, the post-mortem doctor admitted that he did not state in the post-mortem report about the death being homicidal. According to him, the death could have even been accidental. Besides, several important aspects like the prior attempts for poisoning, the source of light, the threats by the accused Lakshmi and the medical evidence and the subsequent living together and running of the husking mill by the accused Lakshmi and Surendra were not put to the accused under Section 313 of the Code. Reliance was placed on State of UP vs. Ashok Dixit & Anr., AIR 2000 SC 1066 and on Rajkumar vs. State of Madhya Pradesh, (2014) 5 SCC 353 on that the testimony of a child witness should be carefully evaluated, on Nankauno vs. State of Uttar Pradesh, AIR 2016 SC 447 on the appreciation of evidence in a case of murder and on the State of Madhya Pradesh vs. Ghudan, (2003) 12 SCC 485 on identification during night.
8. Mr. Joydeep Biswas, Learned Advocate appearing on behalf of the appellant in CRA 345 of 2005, adopted the submissions of the Learned Senior Counsel Mr. Basu.
9. Mr. Sudip Ghosh, Learned Advocate appearing on behalf of the State, submitted as follows. PW 2 was the main witness in this case, being the only eye- witness. The incident happened in the dead of night. PWs 2 and 3, the children came out saying 'dacoit, dacoit'. In fact, this was the result of a tutoring done on the hapless children. Later on, the daughter PW 2 divulged the real facts when the effects of threats faded away. Initially there were two threats given to PW 2, a threat of death as given by the accused Surendra immediately after the occurrence and thereafter, an emotional threat given by the mother the accused Lakshmi. It is true that the mother was arrested soon thereafter. So, that part of the threat was gone. But, the threats from Surendra remained in the minds of the children as he was arrested much later, only on 21.03.1999 and quite significantly, the statement under Section 164 of PW 2 was recorded on 16.03.1999. PW 2 must have gathered courage by then and after that the police got activated to arrest the accused Surendra. PW 7, a neighbour, had also warned PW 2 that if she disclosed the true facts then their mother would go to jail and they would have no place to stay. These things might have been in the mind of PW 2. PW 7's warning proves one more thing that PW 2 must have told about the actual facts to PW 7, even before disclosing to the police or before the Learned Magistrate. PW 2 gave a detailed account of the offence. Her deposition that she could see the incident in the light of the verandah is quite above suspicion, especially when juxtaposed with her evidence that the bulb in the bedroom was put off. Had she been tutored, she would have simply lied that the bulb of the bedroom was on. There was no prior enmity that PW 1 had with the accused. Simply because the children were staying in PW 1's house after the incident it cannot be needlessly presumed that they were tutored by the father's family. The description of the place of occurrence by PW 2 only gets corroborated by PW 1. It was quite significant that PW 4 did not find any sign of dacoity in the house. The accused Lakshmi was seen wearing her earrings. PW 4 further deposed that after the incident the accused Lakshmi and Surendra were running the husking mill of the victim. A conviction can be based even on the testimony of a single child witness. Whether to believe it or not would depend on the facts of each case. The decision in Arbind Singh's Case (supra) is distinguishable on facts. Among other things, there the child said a few things against another person whom she could not even recognize. Also the child changed her version time and again. In the present case the medical evidence actually corroborated the ocular version. The motive was an additional factor here. The illicit relation between the two accused as referred to by PWs 1, 2, 3 and 5 and hostile PWs 8 and 9 are significant in this regard. There was also evidence that the two were running the husking mill of the victim after the incident. The opinion of the post- mortem doctor was quite clear. The stabbing had destroyed the brain matter. The weapon used was probably of a circular diameter. As regards the decision reported in Nankauno's Case (supra) relied on by appellants, the same could be distinguished on facts. There the gunshot injury was on the thigh. Here the injury was on the head. Moreover, this was a case of premeditated murder.
10. We heard the submissions of the Learned Advocates for the parties and carefully perused the evidence, the other materials on record and the impugned judgment so as to assess the legality and correctness of the same. Motive:
11. Although motive is not always required to be proved, the existence of it does bolster a prosecution case. In the case at hand according to PWs 1, 2 and 3, the accused Lakshmi, the wife of the victim, had an illicit affair with the accused Surendra. Although PW 1's evidence on this is more in the nature of hearsay, PWs 2 and 3 gave a good account of the problem. In fact, PW 2 set at rest the controversy arising out of the evidence of some other witnesses about whether Lakshmi gave poison to the victim earlier along with milk or with meat or with both. PW 2 clarified that her mother Laxmi tried to poison his father, the victim twice, once by applying the same in milk and on another occasion in meat. The theory of illicit relation gets further substantiated by the evidence of PWs 3, 4, 5 and 9 (though hostile) that after the incident the accused Lakshmi and Surendra were living together and/or were running the victim's husking mill. The accused Laxmi and Surendra did have a motive to murder the victim.
Suspicion as regards the lodging of First Information Report:
12. It is often found that when a cryptic or an incomplete information is lodged with the police, they wait for a more detailed version. In the absence of a cogent and complete first information, there is no harm in treating a more detailed version as a First Information Report. A technical debate on this would lose any significance, especially when it is found that the prosecution case is ultimately based on a good deal of evidence that admittedly did not find any reflection in the said First Information Report. Here, the informant's allegations were substantially based on PW 2's statements who at that point, due to fear, did not disclose the actual facts. Moreover, had there been any attempt to frame all the accused from the beginning, their names would have been specifically taken as the accused in the said First Information Report. A minor purported incongruity about the place of receiving the First Information Report is not much significant here. Thus, we fail to smell any foul play in the registration of the First Information Report.
Eye-witness account:
13. Lakshmi, the nine years old daughter of the victim and the appellant, was the only eye-witness in this case. She gave a detailed account of how her father was murdered. According to her, their family stayed in a big room partitioned into two. On the fateful night the bulbs were put off and the parents went outside. She saw a scuffle near the varandah. The accused were pressing the victim's mouth. When the victim lost consciousness, the accused put him on the bed. Then the accused struck the victim at the side of his ear with a sharp cutting weapon. PW 2 saw all these in the light of the kitchen and through the vacant spaces of a bamboo split that divided the room. Her evidence to this effect could not be shaken in the cross-examination. PW 2's description regarding the assault on the victim also clearly matched with the medical evidence adduced in this case. According to PW 2, immediately after the occurrence she shouted. But, first the accused Surendra threatened her. Then her mother also asked her not to disclose the truth and to say that it was a case of dacoity. Under the influence of such threats, she along with her brother PW 3, when he woke up, cried 'dacoit, dacoit'. Although the accused Lakshmi was arrested soon thereafter. The accused Surendra could be arrested only on 23.03.1999. Therefore, the threats persisted for quite sometime. We do not find anything suspicious in the claim of PW 2 that she did not disclose the actual facts to everyone soon after the occurrence due to fear of threats. Even PW 7, a neighbour, had told PW 2 not to disclose the facts because if their mother was taken to jail, then she would have nowhere to go. This goes to show that the eye-witness PW 2 did disclose about the actual facts earlier, at least before PW 7. A stray mention by her that she gave a statement before the Learned Magistrate only a few days after the incident has to be termed as an inadvertent error and cannot efface her entire evidence as an eye-witness. PW 2's mother Lakshmi was accused of murdering PW 2's father. After the incident, the two accused Lakshmi and Surendra started living in the house of the victim and started running the victim's husking mill. In such circumstances, it was not unusual for the victim's child PW 2 to stay at the house of the paternal uncle PW 1. In the absence of any positive evidence to the contrary, it is not possible to assume that PW 2 must have been tutored by her relatives on the father's side and to such an extent that the same would overpower her emotional attachment to her own mother the accused Lakshmi. The evidence adduced by PW 2 was absolutely cogent and untainted and no credible material could be produced by the defence to assail her credibility as a witness. The decisions relied on behalf of the appellants on the issue of reliance on the testimony of a child witness do not help the defence in any particular manner. The evidence of the child eye-witness was carefully evaluated and was found to be unshaken and believable.
Source of light:
14. PW 2 mentioned that she saw the alleged incident in light present in the kitchen. If she wanted to lie on being tutored or otherwise, she could have easily stated that a light was on in the room itself. After all there was no other witness to contradict her in as much as PW 3 was sleeping at that point. Moreover, one can imagine the Investigating Officer of a case indicating a street light in a sketch map, especially when such street light becomes relevant to the facts of the case. But, requiring him to indicate the source of light inside a regular living room in a sketch map, which might subsequently become relevant, would be too far- fetched. The decision is Ghudan's Case (supra), as relied up by the appellant, is distinguishable from the present facts. There the murder took place in an open space. So, a question arose as to why the source of light was not indicated in the sketch map. Besides, there a doubt arose also because a similarly situated witness could not identify the accused.
The evidence of the other child:
15. PW 3, the other minor child of the victim and the accused Lakshmi, was a post-occurrence witness. He slept through the entire incident and woke up only after PW 2 called him. He found the deadbody of his father by his side. His post- occurrence account clearly corroborated the evidence of PW 2. He was also affected by the threats given by the accused Surendra and Lakshmi. PW 3 deposed about an additional circumstance, which had not been explored by the Investigating Agency. This evidence of his that the accused Lakshmi had served him a glass of milk before he went to sleep that night gives an inkling of the reason for which he might have slept through the entire episode. Other post-occurrence witnesses:
16. The evidence adduced by the other post-occurrence witnesses like PWs 1, 2, 3, 5 and 6 portray a very clear picture of the aftermath. This is corroborative of the evidence of PW 2, the sole eye-witness.
No dacoity:
17. That there was no dacoity is quite clear from the evidence and other materials on record. PW 4 deposed that there was no sign of dacoity in the house of the victim. He saw the appellant Lakshmi sitting there wearing her earrings. The story of dacoity was attempted to be foisted by the accused Lakshmi and Surendra through the helpless children PWs 2 and 3. Even if for argument's sake, one takes into account the cross-examination of the hostile witness PW 8, it speaks only about searching the place pursuant to the cries 'dacoit, dacoit' and does not give any indication that a dacoity had actually taken place on that night.
Medical evidence:
18. PW 15, the doctor who conducted the post-mortem examination over the deadbody of the victim, found several injuries on the deadbody. The right eyeball was uprooted. According to him, the injury over the head that destroyed brain matters resulting in haemorrhage and shock had caused the death. The weapon used was probably heavy and semi circular in diameter. This supported the ocular evidence in ample measure. Any kind of cross-examination of PW 15 on the point whether the death could have been accidental, would be of no help to the accused because the nature of injuries as found on the deadbody coupled with the doctor's evidence indubitably pointed towards the murder of the victim. Subsequent conduct of the accused:
19. The subsequent conduct of the accused Lakshmi and Surendra of living together and of running of the husking mill of the victim are quite significant, especially to indicate the nature of relation that they had. Purported defects in investigation:
20. Non-sending of articles to the FSL or non-production of articles to fix the place of occurrence are not at all fatal to the prosecution case in the facts and circumstances of the instant case. Here there were several independent post- occurrence witnesses who found the deadbody in his house and there was a strong eye-witness to the incident of the murder.
Examination under Section 313 of the Code:
21. The evidence in this case was taken in the presence of the accused. The charges framed also gave a clear idea to the accused about the case. Moreover, from the trend of cross-examination by the defence and from the examination of the accused under Section 313 of the Code, it is clear that the accused had clear knowledge about the charges they were facing and about the incriminating circumstances present against them. As the accused did not suffer any prejudice, the examination under Section 313 of the Code cannot be said to be detremental to the prosecution case.
22. The conviction of the appellants under Section 302 of the Penal Code simpliciter was a serious irregularity on the part of the Learned Trial Court when it was clear that there were sufficient materials to convict all the accused under Section 302 read with Section 34 of the Penal Code.
23. The evidence adduced by the sole eye-witness PW 2, the evidence of the post-occurrence witnesses PWs 1, 2, 3, 4, 5 and 6, the supporting medical evidence and the strong motive behind the murder unerringly point towards the guilt of the accused. The prosecution has been able to prove the case beyond reasonable doubt.
24. In view of the above, we do not find any merit in this appeal. However, we modify the conviction and sentence to the effect that the appellants shall be convicted for committing an offence under Section 302 read with Section 34 of the Penal Code instead of under Section 302 of the Penal Code simpliciter. The sentence awarded shall remain the same.
25. The appeal is accordingly disposed of.
26. A copy of the judgment along with the Lower Court records shall be sent down to the learned Trial Court forthwith by a Special Messenger for information and necessary action.
27. Urgent photostat certified copies of this judgment may be delivered to the learned Advocates for the parties, if applied for, upon compliance of all formalities.
(Jay Sengupta, J) I agree (Md. Mumtaz Khan, J)