Gauhati High Court
Md Nazir Hussain Laskar vs The State Of Assam And Anr on 27 February, 2020
Author: S. Hukato Swu
Bench: S. Hukato Swu
Page No.# 1/31
GAHC010174952015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A. 26/2015
1:MD NAZIR HUSSAIN LASKAR
S/O LATE AFTABUDDIN LASKAR, VILL. GANGANAGAR PT-I, P.S.
KACHUDARAM, DIST. CACHAR, ASSAM.
VERSUS
1:THE STATE OF ASSAM and ANR
2:JADAB SAHA
S/O LATE UPADRA LAL SAHA
R/O VILL. AMBICAPATTY
CHANKURI ROAD
SILCHAR TOWN
P.O. and P.S. SILCHAR
DIST. CACHAR ASSAM
PI
Advocate for the Petitioner : MR.N H LASKAR
Advocate for the Respondent : MS. S. JAHAN, ADDL. P.P., ASSAM
BEFORE
HONOURABLE MR. JUSTICE MIR ALFAZ ALI
HONOURABLE MR. JUSTICE S. HUKATO SWU
JUDGMENT
Date : 27-02-2020 JUDGMENT & ORDER Page No.# 2/31 M.A. Ali, J This appeal is directed against the judgment and order dated 20.11.2014, passed by the learned Sessions Judge, Silchar, Cachar, in Sessions Case No. 102/2013. By the said judgment, the learned Sessions Judge convicted the appellant under Section 302/201 IPC and sentenced him to imprisonment for life and fine of Rs. 50,000/- with default stipulation under Section 302 IPC. The appellant was further sentenced to rigorous imprisonment for seven years and fine of Rs. 10,000/- with default stipulation under Section 201 IPC.
2. Deceased Jayanta Saha was the victim of a ghastly homicidal killing in this case.
3. On 09.03.2013, a missing entry was filed by the father of the victim (PW-2) stating that his son Jayanta Saha (victim) after having gone out of the house with his motorcycle did not return home. During next two days after lodging the missing entry on 10.03.2013, mutilated human body parts wrapped in polythene sheets were found in different parts of the city. Upon recovery of the human body parts and articles like finger ring, bracelet etc., parents and family members of the deceased Jayanta Saha identified the body to be of the victim, Jayanta Saha and thereafter the formal FIR (Ext.8) was lodged on 12.03.2013, on the basis of which, police registered Silchar P.S. Case No. 479/2013 under Section 365/392/302/201/341 IPC. Inquest on the body parts were done by the Executive Magistrate. The police also seized some documents from the house of the deceased, which pointed to the financial dealings between accused and the deceased and thereafter following such clue arrested the accused on 12.03.2013. During interrogation, the accused made a disclosure statement regarding concealment of weapons of the offence and other articles of the deceased in his rented house and pursuant to such disclosure statement, police recovered the alleged weapon of offence and other articles from the rented house of the accused and sent some of the articles including alleged weapon of offence for chemical examination. The motorcycle used by the victim was also recovered from the house of the sister of the accused on being led by him.
Page No.# 3/31
4. The postmortem examination of the body was conducted by PW-1 Dr. Gunajit Das. The autopsy doctor stated, that he carried out the postmortem examination on 12 human body parts, which were identified to be of the victim, Jayanta Saha , male, aged about 32 years. The doctor opined that all the 12 body parts were identical in their complexion, contour, built, morphological structure, status of righor mortis and direction of hairs and anatomical alignment. There was also conglomeration of upper and lower aspect body parts in both the two lots of body parts and the detailed postmortem report of each part of the body is as under:
"Part-I:- Under PMR No. 131/13 consisted of the left thigh being separated by postmortem incised injuries, at the grain and knee-joint exposing the cut ends of Femur both proximately and distally. Complexion of the part is swarthy, built average, shape cylindrical and male type. Rigor morits passed off completely with early decomposition changes in the tissues. Ends of bone found completely developed with no epiphyseal parts. Length of the part found to be 38 cms.
Part-2:- Under PMR No. 132/13 consisted of right thigh of length 38 cm being separated by postmortem incised injury at grain and knee joint exposing the cut ends of femur both proximally and distally. Complexion swarthy, built average, shape cylindrical and male type. Rigor morits passed off completely with early decomposition changes of the tissues, bones completely developed.
Part-3:- Under PMR NO. 133/13 consisted of the right arm being separated from the rest parts of the body by postmortem incised injuries at the shoulder and elbow joint. Complexion swarthy, rigor morits passed off, built average and male type. Tissues show early decomposition changes.
Part-4:- Under PMR No. 134/13 consisted of the left arm being separated from the rest parts of the body by postmortem incised injures at the shoulder and elbow joint. Complexion swarthy, built average and male type. Rigor morits passed off and tissues show early decomposition changes.
Part-5:- Under PMR No. 135/13 consisted of the thorax being separated from the rest parts of the body. An antemortem incised injury at the lower part of the neck level and postmortem injuries at both shoulder joint level. Antemortem blood clot firmly adhered to the margins and floor of the incised injury at neck level. Complexion swarthy, built Page No.# 4/31 average and male type. Nipple present and male type. The part is also separated by an incised injury at the thoracoabdominal junction thereby exposing the lungs and the heart, which along whit the soft tissues show early decomposition changes.
Part-6:- Under PMR No. 136/13 consisted of the left foot being separated from the body by a postmortem incised injury at the lower part of ankle joint. Complexion swarthy, dimension 24x10 cm, characteristics male type, tissues show early decomposition changes.
Part-7:- Under PMR No. 137/13 consisted of the right foot being separated from the body by a postmortem incised injury at the ankle joint. Complexion swarthy dimension 24 X 11 cm, characteristics male type. Tissues show early decomposition changes.
Part-8:- Under PMR No. 138/13 consisted of the right forearm with hand being separated from the body by a postmortem incised injury at the elbow. Complexion swarthy, built average, flat anteroposteriorly. Characteristics male type. Tissues show early decomposition changes.
Part-9:- Under PMR No. 139/13 consisted of the left forearm with hand being separated from the body by an postmortem incised injury at the elbow complexion swarthy, built average, characteristic male type, flat anteroposteriorly, soft tissues show early decomposition changes.
Part-10:- Under PMR No. 140/13 consisted of right leg being separated from rest part of the body postmortem incised injury at the knee and ankle level. Complexion swarthy, built average and male type characteristic. Rigor morits passed off completely. Tissues show early decomposition changes.
Part-11:- Under PMR No. 141/13 consisted of the left leg without foot being separated by postmortem injuries (incised) at the knee and ankle level with length 47 cm. Complexion swarthy, built average with male type characteristics. Rigor morits passed off completely. Tissues show early decomposition changes.
Part-12: Under PMR No. 142/13 consisted of the head being separated from the body by an antemortem incised injury at middle of the neck level. Complexion swarthy, tissues show early decomposition changes. Hairs of the scalp can be pulled easily. In addition to the decapitating incised injuries, the following antemortem injuries also found in the head.
Page No.# 5/31 Injuries:-
(1) Incised injury horizontally placed 12 X 2 cm at upper part of face cutting the nose in the middle going deep into maxillary cavity. (2) Incised injury horizontally placed in the upper lip 10 X 1 cm cutting the lip completely up to the jaw.
(3) Incised injury at the vertex of scalp perpendicular to sagital suture 8 cm long cutting the scalp.
(4) Incised injury of size 8 X 2 cm at the nape of neck horizontally placed cutting scalp and 1st cervical vertebrae.
(5) Incised injury of size 6 X 1 cm horizontally placed 1 cm below injury No. 4."
5. On completion of the investigation charge sheet was laid against the appellant and eventually he stood trial for the offence of murder, kidnapping etc.
6. In course of trial, charges under Section 364/302/404/201 IPC were framed against the appellant, to which, he pleaded not guilty. In order to establish the charges, the prosecution examined as many as 21 witnesses and on completion of the evidence, the accused/appellant was examined under Section 313 CrPC, wherein the appellant took the plea of innocence, however, did not adduce any evidence in his defence. On appreciation of evidence, learned Sessions Judge convicted the appellant under Section 302/201 IPC and awarded sentence as indicated above.
7. We have heard Mr. H.R.A. Choudhury, learned Sr. Counsel, assisted by Mr. Azad Ahmed, learned counsel for the appellant and Ms. S. Jahan, learned Addl. P.P., Assam for the respondents.
8. Mr. H.R.A. Choudhury, learned Sr. Counsel for the appellant strenuously arguing for acquittal of the appellant contended, that the vital circumstance being leading to discovery of the incriminating articles on the basis of disclosure statement of the appellant, upon which, learned trial court heavily relied, to record conviction of the appellant was not proved beyond Page No.# 6/31 reasonable doubt, inasmuch as, the rented house from where the discovery was made, was not in exclusive possession of the appellant. Assailing the impugned judgment, the learned counsel further contended, that there was no link evidence to connect the alleged incriminating article including weapon of offence with the commission of the offence and therefore, the circumstantial evidence considered and relied by the learned trial court were too scanty to connect the present appellant with the commission of the offence.
9. Supporting the conviction and sentence of the appellant, Ms. S. Jahan, learned Addl. P.P. submitted that the evidence brought on record clearly established the complete and unbroken chain, which led to the sole conclusion, that the deceased Jayana Saha was killed by none other than the appellant and therefore, the impugned judgment does not call for any interference.
10. We have considered the submissions made by the learned counsel and also meticulously scrutinized the evidence and materials brought on record.
11. Apparently, there was no direct evidence to the occurrence and the learned Sessions Judge, relying on the circumstantial evidence convicted the appellant. In order to record conviction of the appellant, learned Sessions Judge basically relied on the following circumstances.
1. Human body parts proved to have been recovered from different locations have been proved to belong to the deceased.
2. The death of the deceased was caused on account of multiple incised injuries inflicted upon him by sharp cutting heavy weapon, which were antemortem and homicidal in nature.
3. The incriminating articles including the blood stained dao, i.e., the weapon of offence were recovered from the locked rented accommodation of the accused.
4. The accused made a disclosure statement on the basis of which the recovery Page No.# 7/31 of the incriminating articles were made.
5. The accused person led the police team alongwith other witnesses to the place of recovery i.e., the rented accommodation of the accused.
6. Human blood stain was found on the wall and grill of the flat of the accused which can reasonably by inferred to be that of the deceased.
7. Large number of polythene sheets and had showing preparation for disposal of body parts were also recovered from the rented accommodation of the accused.
8. The black bag containing three chains with blood stain shows to have belonged to the deceased alongwith several other personal articles of the deceased were recovered from the rented accommodation of the accused.
9. The motorcycle belonging to the deceased, on which he had left his house on the day of the incident was recovered from the house of the sister of the accused.
10. Blank documents like cheque, 13" papers, all containing the signatures of the accused were recovered from the house of the deceased for which there is no explanation.
11. The accused was financially indebted to the deceased, providing motive for commission of the crime.
12. The deceased and the accused were in constant touch with each other on the day of occurrence, soon before the deceased went missing.
13. The accused offered false answer to the effect that he did not make any telephone call to deceased Jayanta Saha on that day in his examination under section 313 Cr.P.C.
12. The identification of the body and the homicidal death of the deceased Jayanta Saha has not been controverted by the learned counsel for the appellant. Therefore, the only question is as to who committed the offence or caused the homicidal death of the deceased Jayanata Saha.
Page No.# 8/31
13. Learned counsel for the appellant contended that the oral testimony of the prosecution witnesses with regard to discovery under Section 27 of the Evidence Act was not consistent. The circumstances No. 3, 4, 5, 6, 7 & 8, relied by the trial court have been challenged by the learned counsel for the appellant on the following counts.
(i) The disclosure statement was doubtful;
(ii) Recovery of the incriminating articles including the weapon of offence, on the
basis of disclosure statement has not been proved beyond doubt;
(iii) There was no evidence to link the alleged 'dao' (weapon of offence) seized with the commission of offence and
(iv) The house from where the incriminating articles were recovered was not in exclusive possession of the appellant;
(v) Delay in producing the seized articles and seizure list before the Magistrate.
14. PW-20, the Investigating Officer deposed that he arrested the appellant on 13.03.2013 and after interrogation recorded his statement in presence of one Sri Manna Roy (PW-10) and Shyama Pada Roy, wherein the appellant confessed to have killed the victim. He further stated that in his statement, the appellant also stated that he could show the bag of Jayanta Saha, his document and the 'dao' (a traditional knife use for house hold work) used in the offence etc., which were kept in the room of his rented house. He also proved the said disclosure statement as Ext.57 contained in the statement of the appellant recorded under Section 161 CrPC. The English translation of the relevant portion of the statement was as follows - "I can show to the police the deceased Jayanta Shaha's bag, documents, 'dao' used to kill him etc. in the room of my rented house." The PW-20 further deposed, that on the basis of such disclosure statement marked as Ext.57, he went to the rented house of the appellant along with the appellant and upon entering the rented house, the appellant had shown a nylon bag kept on the concrete shelve in the dining room of the house, where he concealed the dao, polythene bags and bag of the victim with a view to dispose off the same. He also stated that as the shelve was high up on the wall, he brought a bench from the adjoining room and thereafter he himself along with the appellant brought down the bag and opened the same in the 2nd room and certain articles were found. The PW-20, seized the following articles vide Ext. 19 seizure list, which were found in the bag discovered on being led by the appellant.
(1) 18 nos of white colored polythene sheets, length 4 feet and breadth 4 feet/6 Page No.# 9/31 inches.
(2) One white colour bazaar bag (3) One white coloured 50 kg capacity Double Rose Branch empty Ata bag. (4) One plastic 25 kg capacity Sub brand Green Valley Rice Pvt. Ltd. Empty bag (5) One white coloured plastic bag (6) One dao along with butt, length 20 X ½ inches with blood stain (7) Two big size bazaar bag, nylon, mixed coloured (8) One black coloured hand bag, cover with 3 nos of chains with blood stain (9) Three pieces of rub cloths in mixed colour (10) One red-white coloured gamosa (11) One black coloured hand bag in torn condition (12) One calculator (Orpat) (13) 10 nos of expenditure books of victim Jayanta Saha (Debit/Credit) (14) One agent manual book (15) One SBI Pass Book in the name of victim Jayanta Saha vide Account No. 11033076061.
(16) One Axix Bank pass book in the name of victim Jayanta Saha vide Account No. 271010100021119 (17) One driving license in the name of victim Jayanta Saha vide D/L- No.AS-11-20090002432.
(18) 3 nos. of PAN Cards in the name of victim Jayanta Saha.
(19) One identity card in the name of victim Jayanta Saha.
(20) 1 no. of SBI ATM Card of victim Jayanta Saha vide No.
6220180018300006337.
(21) 1 no. Allahabad Bank Debit Card vide No. 421337046100 of victim
Jayanta Saha.
(22) 1 no. Axix Bank Debit Card vide No. 4688059015625384 of victim
Jayanta Saha.
(23) 3 nos. of Basil International Ltd. Product Scheme Card in the name
of Ranjan Suklrabaidya and others."
15. PW-20, further deposed that during visit to the rented house of the appellant on the basis of disclosure statement, he noticed blood stain on the eastern side of the wall and in the iron grill of the window on the northern side, of which he took photographs through the police photographer. He had also drawn sketch map of the room and collected sample of blood stain from the wall as well as from the grill of the window. He also noticed blood stains in the dao.
Page No.# 10/31 He further stated that the blood sample were taken and kept in sealed packet for chemical examination on the same night. He also stated that at about 2.40 AM, he seized one pair of shoes belonging to Jayanta Saha from the place adjacent to the rented house, on being led by accused Nazir Hussain Laskar and the same was seized vide Ext.23 seizure list.
16. PW-11, who was also present at the time of discovery and an witness to the seizure list (Ext.19), testified that he accompanied the police and the accused Nazir Hussain Laskar to his rented house. On reaching the premises, the gate was opened by the landlord/owner of the building (PW-4) and thereafter the appellant led the police personnel to his flat and he along with others followed them. He further stated that the door of the flat was under lock and police broke the lock. Thereafter the appellant entered the room of his flat and switched on the light. Then the police personnel and all other persons including the Magistrate entered the room. The appellant went to the dining room and brought out one bag to the second room. The said bag was opened and a 'dao' and a black bag were recovered from there along with other materials. He further stated that police prepared a list of articles in his presence. He also stated that after seizure of the articles, police searched the room and blood stains were seen on the wall and grill, and the police took sample of such blood stains and thereafter police took the appellant Nazir Hussain Laskar along with Manna Roy and recovered the shoes of the deceased on being shown by the appellant Nazir Hussain Laskar. This witness also identified the articles seized being Material Ext. 18 to Material Ext. 36 while deposing in court. This witness also stated that the 'dao' seized from the rented house of the appellant proved as Material Ext. 23 contained blood stain. During cross examination, it was further confirmed that the black hand bag, which was seized from the rented house of the appellant belongs to Jayanta Saha and he stated to have seen the same with Jayanta Saha while visiting his house.
17. The PW-10 Manna Ray also deposed that he accompanied the police and the appellant to his rented flat, where the appellant brought out a bag from the dinning room and in the said bag, there were a black colour bag of the deceased Jayanta, a 'dao' and some other articles. This witness also identified the articles seized being Material Ext. 18 to Material Ext. 36 from the rented house of the appellant.
Page No.# 11/31
18. PW-4 was the landlord of the appellant. He deposed that on 13.03.2013, at about 11.30 at night, police came to his house and he opened the gate along with his brother-in-law (PW-
9). He also stated to have seen the police along with the appellant Nazir Hussain Laskar and some other persons and all of them went to the 3 rd floor of the building, where the rented flat of Nazir Hussain was located. According to him, after opening the room, police personnel along with Nazir Hussain entered the room and he remained standing on the door and on being asked by police, accused Nazir Hussain Laskar had shown certain things, which the police brought out and in the meantime, he also entered into the room to see as to what was taking place inside the room. He further stated, that on being shown by the appellant, police brought out the articles, of which the Ext.19 seizure list was prepared, and he put his signature therein as witness. During cross examination of this witness, it was elicited that around 35/40 persons including the police personnel were present at the time of recovery. He also stated that the 2 nd room was to the west of the 1 st room and the 3rd room, in which the dao was recovered was to west of the 2nd room. He also stated during cross examination, that the bag was found in the 1st room and the dao was found in the shelves of the 3 rd room. He also stated that the documents were found in a bag in the 1 st room and it was a black bag. He further stated that other bag was found in the 2nd room.
19. PW-9, the brother-in-law of the PW-4, also deposed that police along with Nazir Hussain and others came to the rented premise of Nazir. According to him, the lock of the door was broken and then the accused Nazir entered the room and switched on the light followed by police personnel. Thereafter the other civilians entered the room. Then the accused brought one bag and took out a 'dao' and a black bag from the polythene bag. He also stated regarding the accused making confession before the police. According to him, he noticed blood stains on the dao. He also stated to have seen blood on the black hand bag, and on the wall and the police taking sample of blood. He also witnessed the preparation of the seizure list (Ext.19), in which he put his signature. He also identified the Material Ext. 18 to Material Ext. 36, the articles seized vide Ext.19, while deposing in court. During cross examination, this witness stated, that there were about 30 to 40 police personnel and appellant Nazir Hussian entered the room ahead of the police personnel. He further stated during cross examination, that initially police entered the room followed by other civilians and thereafter he and PW-4 entered the room. It was elicited during his cross examination that one black bag was Page No.# 12/31 recovered from the 2nd room, which was seized vide Ext.19 seizure list. The police also seized another item which was the cover of the previous bag.
20. PW-18, an Additional Deputy Commissioner, who also accompanied the police party at the time of recovery, deposed that Ext.19, seizure list was prepared in his presence. According to him, the accused led the police party to the 3 rd room and pointed to the concrete shelve stating that the dao was there. He also proved the material Ext. 23, the 'dao' seized from the rented premises of the accused.
21. Learned counsel for the appellant contended referring to the oral testimony of PW-4 and other seizure witnesses, that the oral testimony of the witnesses were not consistent, regarding the room of the rented house from which, the articles were seized or recovered, inasmuch as, according to PW-4, as deposed in cross examination, some articles were recovered from the 1st room and some articles were recovered from the 2 nd and 3rd room, whereas, PW-9 stated that the black bag was recovered from the 2 nd room. PW-20, the Investigating Officer has clearly deposed that the appellant after entering the room had shown the nylon bag kept on the concrete shelve in the dining room of his house, where he concealed the dao and other articles. According to him, he along with the accused brought down the bag from the shelve and opened the bag in the 2 nd room. This evidence of PW-20 is also supported by PW-18, the Additional Deputy Commissioner. PW-9 also supported the testimony of PW-20 and PW-18 that the bag was opened in the 2 nd room where the seizure list was prepared. However, during cross examination, PW-4 stated that the bag was found in the 1st room.
22. It is revealed from the oral testimony of PW-4 that the rented flat of the accused had three rooms, two bed rooms and the third one comprised of kitchen and dining hall. PW-20 & PW-18 have categorically stated that the accused had pointed to the bag in the 3 rd room, which was the dining room, wherefrom the bag was brought down to the 2 nd room. Admittedly, there were 30/40 persons, at night in three small rooms and initially PW-9 and PW- 4 did not enter the room. It is also admitted position that the accused entered the room first Page No.# 13/31 followed by police, who pointed to the bag in the 3 rd room on the shelve, wherefrom the bag was brought to the 2nd room. When initially, the PW-4 did not enter the room and the police followed appellant who entered the room first, followed by other civilians and then only the PW-4 & PW-9 entered the room, the inconsistency in the oral testimony of the PW-4 with PW- 20 as pointed out by the learned counsel for the appellant, was of no significance, for the simple reason, that before the PW-4 entered the room, the police, the accused and other civilians had already entered the room and there was a crowd of about 30/40 persons in the room. It was therefore, quite natural, that by the time PW-4 entered the room, the bags might have been brought down from the 3rd room to the 2nd room. The PW-4 himself stated that initially he was standing on the entrance door and later on entered the room to see as to what was going on there. Therefore, in the above facts and circumstances, when the PW-4 did not enter the room along with the accused and police, and he entered the room later on, the inconsistency in his evidence as regards the place, where the bag was recovered from, cannot be said to be irreconcilable or mutually destructive with the other witnesses nor such discrepancy was capable of creating any dent in the discovery evidence. We therefore, see no reason to disbelieve the evidence of PW-20, PW-18, PW-4, PW-9, PW-10 & PW-11 as regard recovery of the 'dao' and other articles including personal belongings of the deceased from the rented house of the accused on the basis of disclosure statement nor, the prosecution evidence as to the recovery of the 'dao' and personal belongs of the deceased and seizure of the same vide Ext.19 from the rented premises of the accused can be viewed with any semblance of doubt. Ext. 19 would show that besides the 'dao' with blood stain, some other articles including personal belongings of the deceased namely Bank passbook, expenditure book, driving license, PAN card, ATM card etc. of the deceased were also discovered from the rented house of the appellant, which were obviously relevant facts and certainly of great significance to establish the link of the appellant with the commission of the offence.
23. Referring to the statement of the accused recorded under Section 161 CrPC containing disclosure statement, the Ext.57, learned counsel for the appellant submitted, that the statement contained five & half pages. However, out of the said five & half pages of the statement, the signature of the accused appears only in the first five pages and there was no signature of the appellant Nazir Hussain Laskar in the last page of the said statement. It was the contention of the learned counsel, Mr. Choudhury, that the signatures of the appellant were obtained on the blank paper and thereafter the statement was prepared and no such Page No.# 14/31 statement was given by the appellant nor the appellant made any disclosure statement or atleast making of any disclosure statement by the appellant was doubtful. It was also contended that no prayer was made for recording judicial confession of the appellant. It may be pointed out that Section 161 of the CrPC does not envisage obtaining of signature in the statement recorded by police, rather, there is a clear bar under Section 162 (1), which provides that no statement made by any person to a police officer in the course of an investigation under Section 161 CrPC, shall, if reduced to writing, be signed by the person making it. Therefore, obtaining the signature of the maker of the statement under Section 161 is not a statutory requirement. No doubt, the last page of the statement did not contain the signature of the appellant. As rightly observed by the learned trial court, that even if it is assumed for the sake of argument, that the signature was obtained in the first 5 pages before hand, there was no difficulty on the part of the police to obtain signature on the last page even later, inasmuch as, evidently the accused was in the custody of the police for long time even after recording the statement. Therefore, mere absence of signature of the appellant in one of the pages of his statement recorded under Section 161 CrPC containing disclosure statement, in our considered view is of no consequence.
24. It was also submitted by the learned counsel for the appellant that PW-18, the Executive Magistrate, who verified the statement (Ext.57) stated in his cross examination, that by the time he arrived police station, the recording of statement was completed. Although, PW-18 stated to have verified the statement of the accused, there was no statutory requirement of recording a statement under Section 161 CrPC in presence of any witness nor there was any requirement of such statement being verified by any Executive Magistrate. Therefore, even if it is assumed for the sake of argument, that at the time of recording statement under Section 161 CrPC and for that matter the disclosure statement made by the accused, there was no witness present, that per-se, would not affect the disclosure statement and the learned trial court, in our considered view, rightly turned down such argument, when such argument was also advanced before the learned trial court. This apart, PW-20 has clearly stated in his evidence about the disclosure statement proved as Ext. 57 and nothing could be brought on record to show that he had any bias or was inimical to the appellant and as such, there is no reason to disbelieve PW-20, inasmuch as, the disclosure statement was confirmed by subsequent recovery. It is to be borne in mind that the admissibility of the disclosure statement under Section 27 of the Evidence Act, by way of exception to Section 25 & 26 is Page No.# 15/31 based on the 'doctrine of confirmation'.
25. A Full Bench of this court in Rajiv Phukan Vs. State of Assam reported in 2009 (2) GLT 414, held that reducing disclosure statement into writing is not mandatory legal requirement. This court held that recording of such statement in writing though, not a statutory requirement, yet, prudence demands, that investigating officer should record at least that part of the statement which is likely to lead to discovery of fact. Non-recording of such statement, however, cannot lead the court to refuse to bring on record or brush aside the statement or the evidence in that regard, though probative value of such statement to depend on facts and circumstances of the case. Though, reducing into writing of the disclosure statement is not mandatory or statutory requirement, however, such exercise of writing the disclosure statement is only a rule of prudence. Be that as it may, when the disclosure statement in the instant case was clearly written in Ext.57 and also deposed by PW-20, the Investigating officer, we find no reason to discard such disclosure statement, which in our considered view was rightly accepted by the learned trial court.
26. Coming to the submission of the learned counsel, Mr. Choudhury regarding the accused not being in exclusive possession of the rented house, that the discovery evidence cannot be relied upon, as the house, from where the discovery was made was not in exclusive possession of the appellant, inasmuch as, the appellant shared the rented house with PW-6, who had also access to the house. True it is, the rented house of the accused, from where the articles including the alleged weapon of offence and other incriminating articles were discovered on the basis of disclosure statement, was shared by the accused/appellant with PW-6, an advocate. The PW-6 stated in his evidence that on 06.03.2013, he found the accused appellant with the deceased in the rented flat and on that day, he went to his native house at Katigora. He also told the appellant that he would return after 7 to 10 days. According to him, on 12.03.2013, he came to the rented house at about 6.30 PM, spent the night and in the next morning i.e. 13.03.2013, he again went to his home at Katigora. He also stated that there were two keys of the room, one was with him and the other one was kept by the appellant Nazir Hussain Laskar. He also stated, that in the dining room there was shelve. According to him on 12.03.2013, in the evening, when he entered the room, there was no electricity and he also stated that he did not see the material Ext.23 (dao) in the flat. It is also in the evidence of Page No.# 16/31 the PW-9 & PW-10 that when the police came to the flat on the night of 13.03.2013, the house was locked and the lock of the door was broken by police. Referring to the evidence of PW-6, that he was sharing the flat with the accused/appellant and he also came to the rented house on 12.03.2013 and spent the night, learned counsel for the appellant contended that, when the rented house was not in exclusive possession of the appellant and besides the appellant, others i.e. atleast PW-6 had access to the room, the possibility of the incriminating articles being kept in the rented house by any person, other than the appellant cannot be ruled out. It was also contended that had the bag containing the incriminating articles been kept by the appellant, the same would have been noticed by the PW-6, when he spend the night on 12.03.2013. Seemingly, the argument advanced by the learned counsel for the appellant appears to be alluring in view of the fact, that besides the appellant, PW-6 was also the occupant of the rented house and admittedly, on the previous night, PW-6 came there and spent the night. The PW-6 also deposed, that he did not notice the bag. It is in the evidence of PW-20 & PW-18 that the articles, including the dao (weapon of offence) seized from the rented premises of the appellant was kept on the shelve in a bag. It is also in the evidence of the PW- 20 that in order to bring down the bag they have to climb up with the help of a bench, which demonstrates that the shelve, from which the articles were recovered pursuant to the disclosure statement was on a considerable height. Therefore, the oral testimony of the PW-6 that he did not notice the bag containing the incriminating articles on the previous night, per- se, shall not render the discovery doubtful, inasmuch as, when the bag was kept on the shelve on a considerable height, it could naturally escape the notice of the PW-6.
27. In order to invoke the provision of Section 27 of the Evidence Act for discovery of the fact, the fact which is discovered pursuant to the disclosure statement of the accused must not be known to police and also must not be ordinarily visible to others, unless pointed out or shown by the accused appellant. Reason is very simple, if the facts stated to have been discovered is found in a place ordinarily visible by any one and not attributable to the exclusive knowledge of the accused, Section 27 of the Evidence Act shall not be attracted. But then, ordinarily visible and accessibility are two different things. A place may be accessible to many people, but certain facts may not be ordinarily visible, despite the place being accessible, if the same is kept hidden or concealed in such place, unless pointed or shown by the person, who had concealed or kept it there. Therefore, what is most important is whether discovery of facts was from a place which is ordinarily visible or not. If it is not ordinarily visible, even the place Page No.# 17/31 is accessible to others, that does not affect the credibility of the discovery, reason being that, even the place is accessible, the article discovered may be concealed and may be within the exclusive knowledge of the accused, which ordinarily may not attract the attention of others. If it is found that the facts discovered was in such a place, which is not ordinarily visible, even if the place is accessible to others, it cannot be said that such facts were not discovered pursuant to the disclosure statement. In the instant case, though the appellant shared the rented house with PW-6 and he had access the house, since the facts discovered from the rented house was not ordinarily visible as is evident from the oral testimony of the witnesses including PW-6 accessibility of the PW-6 in the facts and circumstances of the case could not create any dent in the discovery evidence. This apart, evidently, there were two keys of the rented house, of which one remained with PW-6 and the other with the appellant. Evidently, at the time of discovery, the rented house of appellant which was at the third floor was locked, which was broken by police. Therefore, access of any third party was also ruled out.
28. In State of Himachal Pradesh Vs. Jeet Singh reported in (1999) 4 SCC 370, the Apex Court observed that crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. The Apex Court held in paragraphs-26 & 27 as under:
"26. There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others". It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others. It would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For Example, if the article is buried on the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred its hidden state would remain unhampered. The person who hid it alone knows were it is until he discloses that fact to any other person. Hence the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others.
27. It is now well settled that the discovery of fact referred to in Section 27 of the Evidence Act is not the object recovered but the fact embraces the place from which the object is recovered and the knowledge of the accused as to it. (Pulikuri Kottaya AIR 1947 PC 67). The said ratio has received unreserved approval of this Court in successive decisions. (Jaffar Hussain Dastagir vs. State of Maharashtra (1969 2 SCC 872), K.Chinnaswamy Reddy vs State of Andhra Page No.# 18/31 Pradesh (AIR 1962 SC 1788), Earabhadrappa @ Krishnappa vs. State of Karnataka (1983 2 SCC 330), Shamshul Kanwar vs. State of U.P. (1995 4 SCC
430), State of Rajasthan vs. Bhup Singh 1997 10 SCC 675)."
29. Another important aspect of leading to discovery under Section 27 of the Evidence Act is that the fact discovered as contemplated by Section 27 of the Evidence Act does not necessarily mean the physical object, it also includes the mental faculty or knowledge of the person as well as the place from where it is recovered. Section 3 of the Evidence Act provides that fact means and includes -
(1) anything, state of things, or relation of things, capable of being perceived by the senses;
(2) any mental condition of which any person is conscious.
Illustrations
(a) That there are certain objects arranged in a certain order in a certain place, is a fact,
(b) That a man heard or saw something, is a fact,
(c) That a man said certain words, is a fact,
(d) That a man holds certain opinion, has a certain intention, acts in good faith or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact,
(e) That a man has a certain reputation, is a fact.
30. In State of Maharastra Vs. Damu reported in (2000) 6 SCC 269, the Apex Court observed that "it is now well settled that recovery of an object is not discovery of a fact as envisaged in the section. The decision of Privy Council in Pulukuri Kottayya Vs. Emperor, AIR 1947 PC 67 is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect." In Mohammad Inayatulla Vs. The State of Maharastra (1976) 1 SCC 828 , the Apex Court held as under:
"At one time it was held that the expression "fact discovered" in the section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact (see Sukhan v. Crown,(1) Rex v.
Page No.# 19/31 Ganee) (2). Now it is fairly settled that the expression "fact discovered" includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this (see Palukuri Kotayya and ors. v. Emperor(3), Udai Bhan v. State of Uttar Pradesh.
31. Therefore, fact discovered is not confined to the physical object, it also embraces the knowledge. Therefore, the knowledge of the person who made the disclosure statement, that certain thing is concealed or available at certain place which is not ordinarily visible, and if such articles or things are recovered pursuant to the disclosure statement, discovery of fact includes the article or physical object recovered as well as knowledge of the accused, who made the disclosure statement, that the things would be available in such place. Therefore, if the discovery of fact is made under Section 27 of the Evidence Act consequent upon the disclosure statement of the accused, which are found to be related to the crime and is considered to be an incriminating circumstance against the accused, in the sense that he had concealed the facts, the accused owes an explanation as to how he had the knowledge, that such and such things were available at such and such place. There may be three source of such knowledge, firstly, the accused himself might have concealed the thing, secondly, he might have seen somebody concealed or thirdly, somebody had told him about such concealment. If the accused remained silent as to the disclosure of fact or source of his knowledge, the court cannot be blamed for accepting the first one that he himself concealed the thing and rejecting the second and third possibility.
32. The Apex Court in Sate of Maharastra Vs. Suresh (2000) 1 SCC 471 dealing with similar situations, observed in paragraph-26 of the judgment as under:
"We too countenance three possibilities when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was conceded by himself. One is that he himself would have concealed it Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities me criminal court can presume that it was concealed by the accused himself. This is because accused is the only person who can Offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the presumption is a well justified course to be adopted by the criminal court mat the concealment was made by himself. Such an interpretation is not inconsistent with the principle embodied in Section 27 of the Evidence Act."
Page No.# 20/31
33. It is to be borne in mind that Section 27 of the Evidence Act, which is an exception to the provision of Section 25 & 26, that confession before police is inadmissible, is based on "the doctrine of confirmation by subsequent events". When a statement is made before police inculpatory or exculpatory, and the some fact related to the offence is recovered as a direct consequence of the disclosure statement, such recovery of fact confirms the statement, so made, by the accused and because of such confirmation by subsequent recovery, Section 27 of Evidence Act makes such statement even if inculpatory, admissible in evidence. It must also be borne in mind that the admissibility is strictly confined to the statement 'distinctly' related to the discovery, nothing more nothing less. Thus knowledge of the accused which is also a fact, if confirmed by subsequent recovery of fact related to the case, the same is admissible against the accused, though may be inculpatory.
34. It is in the evidence of the prosecution witnesses, including PW-20that pursuant to the disclosure statement made by the appellant, various articles were recovered which included a 'dao' with blood stain and personal belongings of the deceased from the rented house of the appellant, which were undoubtedly related to the case and the offence involving the death of the deceased. It is also evident that besides the discovery of facts under Section 27 of the Evidence Act, the shoes of the deceased was also recovered on being led by the accused from the vicinity of his residence, which was also a relevant circumstance under Section 8 of the Evidence Act.
35. The Apex Court in Mohammad Inayatulla Vs. State of Maharastra (supra), dealing with the necessary condition for bringing the provision of Section 27 of the Evidence Act into operation observed that "It will be seen that the first condition necessary for bringing this section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The Second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word "distinctly" means "directly", "indubitably", "strictly", "unmistakably". The word has been advisedly used to limit and define the scope of the proveable information. The phrase "distinctly" relates to the fact thereby "discovered" is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is Page No.# 21/31 that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered."
36. In Rajib Phukan (supra), this Court dealt in detailed regarding the necessary ingredients for involving the provision of Section 27 of the Evidence Act and held as under:
"(8) While considering the scope of Section 27, what needs to be borne in mind is that the first condition, which is necessary in order to apply Section 27 is that there must be discovery of a fact, albeit a relevant fact, in consequence of information received from a person, who is accused of an offence. The second condition for application of Section 27 is that the discovery must be deposed to.
This, in turn, means that the factum of discovery has to come on record by way of evidence and not otherwise. The third condition is that at the time of receiving the information, the accused must have been in police custody. The fourth, but, perhaps, the most important condition is that only "so much of the information", as relates 'distinctly' to the 'fact thereby discovered', is admissible. The rest of the information, which an accused person might have given, must be kept excluded. The meaning of the expressions, 'so much of the information', and 'distinctly', have been subject of interpretation of a number of judicial pronouncements. The expression, 'so much of the information', means only that part of the information, supplied by the accused, which is the direct and immediate cause of the discovery.
(11) The word 'distinctly', appearing in Section 27, means 'directly', 'indubitably', 'strictly' and 'unmistakably'. The word has been advisedly used to limit and define the scope of the provable information. The phrase 'distinctly' relates 'to the fact thereby discovered' and is the linchpin of the provision. This phrase refers to that part of the information, supplied by the accused, which is the direct and immediate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement, which may indirectly or remotely relate to the fact discovered. (See Mohd. Inayatulla Vs. State of Maharashtra, reported in AIR 1976 SC 483 ).
(12) It is necessary to point out, at this stage, that a fact discovered is not same as the recovery of an incriminating material or object, such as, a weapon of assault, etc. The Courts have been reminding time and again that the discovery of fact is not to be confused or equated with the recovery of incriminating material object, such as, weapon of assault, etc. The fact discovered embraces the place from where the object was produced/recovered and the knowledge of the accused as regards such subject matter.
(15) No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered"; but the information to get admissibility need not be so truncated as to make it insensible or incomphrehensible. The extent of information, which is sought to be admitted into evidence, must be such as would make the Page No.# 22/31 information understandable to a man of ordinary prudence. Mere statement that the accused led the police and the witness to the place, where he had concealed the articles is not indicative of the information given (see Bodhraj Vs. State of J and K, reported in (2002) 8 SCC 45 ). Section 27 would, therefore, not be attracted to a case, wherein no witness deposes that the accused person, while in the custody of the police, gave information, which, on being acted upon, led to the discovery of a fact."
37. Thus, in order to attract the provision of Section 27 to make any discovery evidence admissible prosecution needs to establish the following essential ingredients, namely, discovery of fact, albeit a relevant fact, in consequence of information received from the accused; secondly, discovery must be deposed to; thirdly, at the time of disclosure statement, the accused must be in police custody and fourthly, so much of information as relates distinctly to the fact thereby discovered is admissible.
38. Evidently, the disclosure statement was made by the appellant in police custody. The disclosure statement, proved by PW-20 clearly shows that the appellant stated that he could show the bag, document and the 'dao' used to kill the deceased, which was kept in the room of his rented house. Out of the above disclosure statement, obviously the confessional part, that the dao used to kill' shall not come within the purview of Section 27 of the Evidence Act. The evidence of the PW-4, PW-9, PW-10, PW-11, PW-18 and PW-20 proved beyond doubt that the facts were recovered as direct consequence of the disclosure statement. In view of the above facts and circumstances, we are of the considered opinion that all the necessary requirement to bring the provisions of Section 27 of the Evidence Act into operation were satisfied and there was no reason to view the discovery evidence under Section 27 of the Evidence Act with any suspicion.
39. Learned counsel for the appellant vehemently argued, placing reliance on a decision of this court in Anil Nath Vs. State of Assam reported in 2018 (1) GLT 579 that even if it is assumed that the 'dao' has been recovered, there is no further evidence to connect the 'dao' with the offence of causing death of the deceased and therefore, such discovery is of no consequence. This court in Anil Naths case (supra) observed that in absence of evidence that the blood stains found in the weapon of offence has been matched with the blood sample of the deceased, it would be unsafe to hold that the weapon was used in the killing of the deceased.
40. It was further contended by the learned counsel that in the FSL report (Ext.24), Page No.# 23/31 originally it was mentioned that the blood stain in the dao, gave negative test for blood, however, later on, the Scientific Officer (PW-12) clarified that there was a bonafide typographical error in the report, where instead of negative, word positive ought to have been typed in the Ext.24. Such anomalies in the report itself makes the scientific evidence suspect, submits Mr. Choudhury. It is in the evidence of PW-20 that he has found blood stain in the dao. PW-9 & PW-11 also deposed that the 'dao' (Ext.23) contained blood stain. PW-12, the Scientific Officer, who examined the dao stated in his evidence, that the blood stained dao heavily rusted with suspected blood was sent for forensic examination, which was marked as Ext. Sero 3138-A, which gave positive test for human blood of AB group. Besides the blood stain found in the dao (Sero 3138-A), PW-12 also examined one black colour torn hand bag with stain of suspected blood, which was marked as Sero 3138-B. Said exhibit, Sero 3138-B also gave positive test for human blood of AB group. Of course, in serial No. 1 of the result of the FSL report, (Ext.24), it was mentioned as negative test for human blood of Group-AB. Serial No. 1 of the chemical examination report, in respect of Ext. Sero 3138/A and 3138/B pertains to the 'dao' and the black colour torn hand bag. However, the Scientific Officer, who was examined as PW-12, has clarified in his evidence, that due to inadvertent typographical error in the result of item No. 1, pertaining to the 'dao' and the torn black colour bag, in place of 'positive', the word negative was typed. He also stated that on examination of the dao (Ext. Sero 3138-A) and the black colour hand bag (Ext. Sero3138-B) human blood of Group-AB was detected. PW-12 also proved the original note prepared at the time of examination of the articles as Ext.25, wherein it was mentioned, that Ext. Sero 3138-A and Sero 3138-B gave positive test for human blood of Group-AB. According to PW-12, when typing out the report from the said note (Ext.25), inadvertently the word 'positive' was typed as 'negative'. We find no anomaly in the above evidence and report of the forensic science laboratory, inasmuch as, if we look at the FSL report (Ext.24), where it has been mentioned that Ext. Sero 3138-A and Ext. Sero 3138-B gave negative test for human blood of Group-AB, we find that it does not make any sense. Had the chemical test given negative test for blood or human blood, there could not be any grouping of the same, reason being that in case of negative test for human blood mentioning the blood group-AB in the report would not make any sense. Only when the test for human blood is found positive, then only the question of group would arise. We are convinced with the explanation given by the PW-12, regarding the inadvertent error cropped up in the typed copy of the FSL report (Ext.24). PW-12 further deposed that he also examined small amount of suspected blood stain stated to be collected from the appellant's Page No.# 24/31 house/wall/grill, marked as Ext. Sero 3138-D and 3138-E, which also gave positive test for human blood, but the group of the blood could not be determined due to insufficient test material. One dirty cut piece of shirt, collected from the body of the deceased containing suspected blood was also sent to FSL, which was marked as Ext. Sero 3138-F, which also gave positive test for human blood, but, its group could not be identified due to wet condition and obnoxious odour. Although, the blood stain found in the 'dao' as well as blood stain which were collected from the grill, walls of the rented house of the accused gave positive test for human blood, matching of blood found in the seized article including the 'dao' collected from the rented premises of the accused could not be possible with the blood group of the deceased, due to wet condition and obnoxious odour of the cut piece of shirt collected from the body of the deceased (Ext. Sero 3138/B).
41. The blood stain found in the 'dao' (alleged weapon of offence) and the black colour hand bag seized from the house of the accused on the basis of disclosure statement as well as the sample of blood collected from the other parts of the house, though, gave positive test for human blood, the same perhaps, may not be sufficient to establish the link of the blood sample with the victim and for that matter with the crime, which seemingly may create a gap in the chain of events. But then fact remains is that besides, the blood stained dao, as well as blood from the wall and grill, etc, police also recovered some personal belongings of the deceased as indicated hereinbefore, from the house of the appellant as a consequence of the disclosure statement made by the appellant. The personal belongings of the victim collected from the house of the accused were one black colour hand bag with three numbers of chain with blood stain, 10 numbers of expenditure book of the victim Jayanata Saha, one SBI passbook in the name of victim Jayanta Saha vide account No. 11033076061 and Axis Bank passbook in the name of victim, Jayanta Saha, one driving license in the name of the victim, Jayanta Saha, three numbers of Pan Card in the name of the victim Jayanta Saha, one Identity Card in the name of Jayanta Saha, one SBI ATM card in the name of Jayanta Saha etc. It is also evident from the testimony of PW-20 and PW-11, that one pair of shoes of the victim, Jayanta Saha was also recovered from the vicinity of the house of the accused on being shown and led by the accused. Though the discovery of the shoes may not come within the purview of Section 27 of the Evidence Act, the same would certainly be a relevant fact under Section 8 of the Evidence Act. All those personal belongings of the victim, which were found along with the blood stained dao recovered from the house of the accused, on the basis of his disclosure statement was sufficient in our considered view to bridge the gap or alleged break in the chain Page No.# 25/31 of events, because no explanation was available from the side of the appellant as to how all those personal belongings of the deceased came to his possession immediately after the death of the victim, who was killed and the body was cut into pieces and thrown in different places.
42. True it is, in a criminal trial, burden is on the prosecution to prove the guilt of the accused beyond reasonable doubt and the accused has a right to remain silent. But when prosecution establishes certain incriminating facts and circumstances attributable to special knowledge of the accused and accused owe an explanation by virtue of Section 106 of the Evidence Act, the accused cannot escape the criminal liability, which such incriminating fact cast on the accused, if he does not explain the circumstances by exercising his right of silence. When all those personal belongings of the victim including the blood stained hand bag along with the incriminating articles like blood stained 'dao' which gave positive test for human blood were recovered as consequence of the disclosure made by the accused, unless the accused offers any explanation as to how those articles came into his possession immediately after brutal killing of the deceased or his source of knowledge about their existence in his possession, the court cannot be blamed for fixing culpability on the appellant.
43. Besides the personal belongings and the blood stained dao, some other articles, being one white coloured 50 kg capacity empty Atta bag, one 25 kg capacity of empty bag, one white colour plastic bag, 18 numbers of white coloured polythene sheets of the size 4 ½ ft. X 4 ft were also recovered. Though, those articles appears to be innocuous, it assumes significance in view of the evidence of the prosecution witnesses PW-19, PW-20 & PW-5 who deposed that some of the body parts which were found in different places were wrapped in polythene sheets and plastic bags of similar type. As rightly held by the learned trial court that collection of such articles in large quantity, which were not usually found in the houses indicated the preparation made by the accused for disposal of the body parts, and therefore those articles seemingly innocuous also goes to link the appellant with the commission of offence as additional link evidence.
44. It was also submitted by the learned counsel for the appellant that the document which were seized from the house of the deceased on 12.03.2013 vide Ext. 16 were not deposited with the police malkhana and the same were deposited to the police malkhana only after the alleged recovery and seizure of the documents and other articles from the rented premises of the accused on 13.03.2013, which also creates a doubt as to the bonafide of the recovery and seizure of the documents and personal belongings of the deceased from the rented house. The Page No.# 26/31 PW-4, PW-9, PW-11, PW-18, PW-20 have clearly deposed about the recovery and seizure of the personal belongings, documents from the rented house of the appellant and such evidence remain totally unshaken. PW-20 in his evidence stated that he conducted search in the house of the deceased on 12.03.2013 and recovered some articles and documents, which were seized vide Ext. 16 and on the next day, the Ext.19 was prepared when the articles were discovered and seized from the rented premises of the appellant on the basis of the disclosure statement made by the accused. It appears that all the articles seized vide Ext. 16 & Ext. 19 were deposited in the malkhana on the same day. Therefore, though the articles seized on 12.03.2013 were also deposited on the next day, such deposit of the seized articles, when seizure has been duly proved by evidence, which remained unshaken, cannot be a reason to suspect the seizure of the incriminating articles or other personal belongings of the deceased pursuant to the disclosure statement made by the accused or on being led by him. It was also submitted by the learned counsel for the appellant that seizure list were produced before the learned CJM belatedly, inasmuch as, immediately after the seizure of the articles on 12.03.2013 & 13.03.2013, the seized articles and seizure list were not produced before the CJM. Learned counsel Mr. Choudhury submitted, that the failure of the Investigating Officer in producing the seized articles and seizure list immediately without delay creates doubt about the bonafide of the seizure vide Ext. 16 and Ext. 19. True it is, there has been certain lapses on the part of the Investigating Officer in depositing the seized articles in the malkhana and production of seizure list and seized articles before the CJM, but such technical irregularity or lapses on the part of the Investigating Officer cannot create any dent in the unshaken evidence of PW-4, PW-9, PW-11, PW-20, PW-18 & PW-10, who deposed convincingly supporting the recovery on the basis of disclosure statement, reason being that credibility of the witness cannot be linked with the technical lapses or fault of the Investigating Officer.
45. The 9th circumstance relied by the learned Sessions Judge was the recovery and seizure of the motorcycle belonging to the deceased on being led by the appellant. PW-20, the Investigating Officer deposed that on the intervening night of 13.3.2013 and 14.03.2013 at about 3.15 AM, he arrived at the house of the sister of the accused on being led by him and he was accompanied by other police personnel and a photographer (PW-17), wherefrom he seized the motorcycle of the victim bearing registration No. AS-11-D/1162 and seized vide Ext.22. The sister of the accused/appellant, from whose house the motorcycle was recovered on being led by the accused was examined as PW-8. The PW-8 though, admitted the fact of accused being taken to her residence by police, she had denied the seizure of the motorcycle Page No.# 27/31 from her residence and this witness was declared hostile by the prosecution. However, the Investigating Officer (PW-20) clearly stated that he had seized the motorcycle bearing registration No. No. AS-11-D/1162, which belonged to the victim vide Ext. 22. The PW-17, who was the police photographer and took the photograph of the motorcycle though, not cited as witness to the seizure list also deposed regarding seizure of the motorcycle and taking photograph thereof. Learned counsel for the appellant has come down heavily on this circumstance of recovery of the motorcycle, stating that there was anomaly in the number of the motorcycle, inasmuch as, in the Ext.14, missing entry, a different number of the vehicle was given. Later on, when the FIR was lodged by PW-2, there also a different number was given, which according to the learned counsel, creates doubt about the seizure of the motorcycle. Further contention of the learned counsel was that no independent witness was present at the time of seizure of the motorcycle vide Ext.22 and therefore, the evidence of the prosecution as adduced by PW-20 regarding seizure of the motorcycle cannot be believed or atleast the alleged seizure of the motorcycle of the accused on being led by the accused was doubtful.
46. PW-2, the father of the victim stated that the victim went out with his motorcycle and in the missing entry also, it was mentioned that the victim went out with the motorcycle and this piece of evidence was not challenged in cross examination. PW-16, the Motor Vehicle Inspector from the office of the District Transport Officer was examined with the relevant register and it was proved that the vehicle bearing registration No. No. AS-11-D/1162 was a Bajaj Motorcycle standing in the name of Jayanta Saha, whereas, the other registration No. AS-11-C/0161, which was allegedly mentioned in the FIR was of a TATA 207 Pickup van, registered in the name of one Manoj Kumar Bayan. It was stated by PW-11 that on 12.03.2013 at night, he along with PW-2, father of the deceased and PW-10 went to the police station where he wrote the FIR and took the signature of PW-2, father of the deceased. From the evidence of PW-16, it was clear that the vehicle seized from the house of PW-8 stood in the name of the victim. Since the other number, which was given in the FIR related to a four wheeler, the same could not be a motorcycle, inasmuch as, evidently, the victim went out with his own motorcycle as deposed by PW-2 and also stated in the missing entry, though, the registration number of the vehicle mentioned therein may not be correct.
47. The FIR was lodged at a stage when PW-2, the father of the victim had already came to know that his only son had been killed and therefore, certainly he was in a state of great shock Page No.# 28/31 and trauma and it might not be possible on his part to remember the exact number of the motorcycle. This apart, the anomaly or confusion if any created in respect of the registration number of the motorcycle was dispelled by the evidence of the PW-16. Evidently, when the motorcycle was recovered from the house of the PW-8, the sister of the accused, where it was kept concealed in the kitchen, no independent witness was present. It is to be noted, that police visited the house of PW-8 at about 3.15 AM at night and as such, absence of any other independent person at that hour of night is understandable. However, PW-20 has categorically stated that the motorcycle was seized vide Ext. 22, on being led by the accused at about 3.15 AM from the house of PW-8. We find no reason to disbelieve the evidence of PW-20, the Investigating Officer. Though, usually an independent witness should be present at the time of seizure, but having regard to the time, when the seizure was made on being led by the accused, absence of any other independent person is quite reasonable. This apart, there is nothing on record to show, that the PW-20 was bias to the accused or he had any animosity with the accused.
48. The Apex Court in 2020 0 Supreme (SC) 1 (Surinder Kumar Vs. State of Punjab), held that merely because the prosecution did not examine any independent witness that would not necessarily lead to conclusion that the accused was falsely implicated and mere fact that the prosecution case is based on evidence of official witness does not mean that the same should not be believed. The evidence of official witnesses cannot be disbelieved merely on account of their official status. The Apex Court in Sumit Tomar Vs. State of Punjab reported in (2013) 1 SCC 395 observed that in absence of any animosity between the accused and the official witness, there is nothing wrong in relying on their testimony and accepting the documents placed for basing conviction. Learned trial court also relied on the decision of Sumit Tomar (supra) to hold that there was no reason for disbelieving the evidence of PW-20 in absence of any animosity between the accused and PW-20. Having regard to the facts and circumstances of the case and more particularly, the time when the motorcycle was recovered on being led by the accused, absence of any independent witness is quite natural and therefore, we find no fault with the recovery of the motorcycle of the deceased on being led by the accused, which was certainly an incriminating circumstances relevant under Section 8 of the Evidence Act adding to the other circumstances proved by the prosecution.
Page No.# 29/31
49. As regards 10th, 11th and 12th circumstances relied by the learned trial court, Mr. Choudhury for the appellant contended that these circumstances do not point to the guilt of the accused nor can these be considered as incriminating circumstances, inasmuch as, the documents recovered from the house of the deceased and seized vide Ext. 16 shows financial relationship of the deceased with various other persons, besides the appellant and that the appellant had also conversation over phone with various other persons besides the deceased. PW-20, the Investigating Officer stated that he conducted a search in the residence of the deceased and seized one cheque book of SBI, Park Road, Silchar in the name of Sri Sandip Chakraborty vide account No. 11033275433, one cheque book of SBI, Park Road, Silchar in the name of accused Nazir Hussain Laskar vide account No. 1133261033 containing 44 pages with signature of the appellant in four numbers of cheques, one product scheme card of Basil International Ltd. in the name of the accused Nazir Hussain Laskar vide account No. 126379, wherein an amount of Rs. 18,000/- was shown to have been deposited upto 30.08.2011, one blank 13 inches paper containing the signature of the accused Nazir Hussain Laskar on revenue stamp along with other documents numbering 10 and seized vide Ext. 16 seizure list in presence of the witnesses demonstrating financial relation of the appellant with the victim. PW-2, father of the deceased also stated that on 12.03.2013 in the afternoon, police came to his house and seized the documents from the almira vide Ext. 16.
50. The PW-10 & PW-11, who were witnesses to the seizure list (Ext.16) also supported the PW-20 as to the seizure of those documents vide Ext. 16 from the house of the deceased. This evidence of PW-20, PW-2, PW-10 & PW-11, remained unshaken, which obviously proved the financial relationship of the accused with the deceased. PW-6 also stated in his evidence that when he visited the rented house, he came to know from the victim about the financial liability of the accused towards the victim. He also stated to have advised the accused to repay back the loan. This apart, the multiple blank cheques, 13 inch blank stamp paper containing signature of the appellant on the revenue stamp and the cheque book of the appellant with signature of the appellant in blank cheques having found in the possession of the accused also gave sufficient indication, that the accused was heavily indebted to the deceased. The testimony of the PW-6 also gave indication that deceased was insisting the appellant to pay back the money. However, the accused in his examination under Section 313 CrPC, even denied his acquaintance with the deceased, which obviously could be considered and the learned trial had also taken note of such false explanation by the accused as additional Page No.# 30/31 incriminating circumstances against the appellant.
51. The prosecution has also proved the CDR to show that on the day of occurrence, the accused/appellant was in constant touch with the victim and there was conversation between the accused and the victim for seven times starting from 10 O'clock till 6 PM and since 8 PM there was no further communication, which was also the probable time of death as per postmortem report. The telephonic conversation of the appellant with the victim as per CDR record on 08.03.2013 for seven times has not been disputed by the learned counsel for the appellant. However, learned counsel for the appellant contended, that the appellant also had conversation with many other persons on the same day as reflected in the CDR and therefore, such conversation of the accused with the victim could not be considered as incriminating circumstances. True it is, when the appellant had acquaintance with the deceased the contact of the victim and conversation with him over phone for 6/7 times in an usual situation could not have any significance or no culpability could have been attributed to such circumstances (circumstance No. 12) in isolation. However, having taking into account all other incriminating circumstances, as indicated above, this was also taken as an additional circumstances by the learned trial court in the chain of events and in our considered view, rightly so, more particularly, when the appellant, in his examination under Section 313 CrPC denied such conversation or denied even his acquaintance with the deceased.
52. The findings of the learned trial court that financial obligation of the appellant to the deceased established by the documents seized vide Ext. 16 and mentioned in the circumstances No. 10 and 11, could be a motive behind the offence also cannot be brushed aside. Though, these two circumstances taken in isolation may not appear to be incriminating, they assume great significance when considered in a chain together with other circumstances and clearly point to the motive of the crime.
53. Having scanned the evidence and the entire facts and circumstances of the case, as indicated above, we are of the considered opinion that the chain of events was completed and as such, we find no reason to defer with the conclusion arrived at by the learned trial court for recording conviction of the appellant under Section 302 IPC and awarding sentence. Being of the above view, we find no merit in this appeal, resultantly the appeal stands dismissed.
Page No.# 31/31
54. Send down the LCR.
JUDGE JUDGE Mkk Comparing Assistant