Bablu Mohammed @ Mobarak Ali And Others vs State Of West Bengal

Sahidullah Munshi, J

These appeals are against the order of conviction dated 30th January, 2009 and sentence dated 02.02.2009 passed by the Additional District & Sessions Judge, Fast Track Court, Gangarampur at Buniadpur, Dakshin Dinajpur convicting the appellant Bablu Mohammed @ Mobarak Ali under Section 302/364/201 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life with fine of Rs.10,000/- in default to suffer further rigorous imprisonment for three years for the offence under Section 302 of the Indian Penal Code and to suffer rigorous imprisonment for life and to pay a fine of Rs.10,000/- in default to suffer rigorous imprisonment for three years for abduction of Bahamoni Mardi with a view to murder for the offence punishable under Section 364 IPC and to suffer rigorous imprisonment for seven years and to pay a fine of Rs.2,000/- in default to suffer rigorous imprisonment for one year for the offence punishable under Section 201 IPC and directing the said Bablu Mohammed @ Mobarak Ali that the aforesaid substantive sentences imposed upon the convict shall run consecutively; convicting Taibul Islam, Majedar Rahaman and Ajijar Rahaman under Section 201/34 IPC and sentencing them to suffer rigorous imprisonment for seven years and to pay a fine of Rs.2,000/- by each of them in default to suffer rigorous imprisonment for one year by each of them for the offence punishable under Section 201/34 IPC.

However, period of detention undergone by the said convicts has been directed to be set off against the sentence of imprisonment under Section 428 Cr.P.C.

Against the judgment and order of conviction and sentence two separate appeals have been filed by Bablu Mohammed @ Mobarak Ali against order of conviction and sentence under the provisions of Sections 302/364/201 of the Indian Penal Code. These appeals being C.R.A. no. 307 of 2009 and other appeal being no. C.R.A. no. 164 of 2009 have been filed by the accused Bablu Mohammed @ Mobarak Ali, Taibul Islam, Majedar Rahaman and Ajijar Rahaman challenging the order of sentence under Section 201 of the Indian Penal Code. Both the appeals are taken up together since they arose from the same P.S. case and self-same complaint.

The present appeals arose from Sessions Case under Sections 364/376/302/201/120B of the Indian Penal Code against accused Bablu Mohammed @ Mobarak Ali, Taibul Islam, Ajijur Rahaman, Ainuddin Ahmed, Ayub Ali, Saifur Rahaman, Ainul Islam and Majedur Rahaman originating from Khusmondi P.S. case no. 26/2003 dated 11.03.2003 corresponding to G.R. no. 100/2003 of the learned Sub-Divisional Judicial Magistrate, Gangarampur at Buniadpur in the district of Dakshin Dinajpur which was initiated on the basis of the complaint lodged by the de facto complainant Sumi Mardi (PW1).

In brief the prosecution case is that one Sumi Mardi/de facto complainant filed a written complaint (Exbt.1) received by the police station on 11.03.2003 stating that her sister (the victim) aged about 26 years was missing since 03.03.2003 (Monday). According to her the victim went to show sapling of boro paddy in the land of Haider Ali in the morning but she did not return home even till late in the evening. On the next day the complainant caused search at Haider's house, asked Haider's mother who said she knew nothing and thereafter, she went to Saifur Rahaman's house, where it was informed that on Monday (03.03.2003) while she was working at about 04.00 pm accused thrashed her and dragged her from the house of Saifur Rahaman where she entered. The victim was dragged from Saifur's house to his own house. When Saifur requested Bablu not to do so, accused threatened him with dire consequences. Bablu being absent at his house, his mother was asked by the complainant (PW1) but she refused to divulge anything. As a result PW1 returned to her own village and informed the villagers of her sister's missing. PW1 searched here and there but in vain, she apprehended that death caused by accused Bablu with the help of other accused persons. Dead body of the victim was concealed. It is mentioned in the written complaint that the appellant was involved in many unsocial activities.

On the basis of such a complaint dated 11.03.2003 police started a case which ultimately, led to G.R. no.100/2003 dated 20th October, 2003 under Section 364/302/201/34 IPC. On the order of learned Sub-Divisional Judicial Magistrate, Buniadpur, passed on 09.09.2004 the case was re-investigated and after completion of fresh investigation charge-sheet bearing charge-sheet no. 86 of 2004 dated 21.12.2004 was submitted under Section 364/376/302/201 IPC against the accused persons. On acceptance of the charge-sheet the learned Sub-Divisional Judicial Magistrate on 24.12.2004, committed the case to the learned Sessions Judge, Dakshin Dinajpur for taking cognizance against the accused/appellant and seven others.

Prosecution has examined as many as 21 witnesses and exhibited relevant documents. On the basis of the evidence of the prosecution witnesses accused persons were examined under Section 313 of the Code of Criminal Procedure and their statements have duly been recorded.

The defence case as it appears from the cross-examination of the prosecution witnesses as well as from the stand taken by the accused persons under Section 313 of the Code of Criminal Procedure is a complete denial of the prosecution case and a plea of innocence has been taken by the defence. Accused persons have not adduced any evidence from their end nor have they produced any document which could be marked exhibit.

Mr. Himanshu De, learned advocate appearing for the appellant has relied on the following decisions:

• Pankaj -Vs. - State of Rajasthan reported in 2016 (4) AICLR 652 (S.C.);

• Alil Mollah and Anr. -Vs. - State of W.B. reported 1996 SCC (Cri) 1028;

• Kanhaiya Lal -Vs. - State of Rajasthan reported in (2014) 4 SCC 715;

• Ashoke Debbarma alias Achak Debbarma -Vs. - State of Tripura reported in (2014) 4 SCC 747;

• Khedu Mohton and Ors. -Vs. - State of Bihar reported in AIR 1971 SC 66;

• Dhananjaya Reddy -Vs. - State of Karnataka reported in 2001 SCC (Cri) 652 &

• Rambraksh @ Jalim -Vs. - State of Chhattisgarh reported in 2016(3) AICLR 417 (S.C.)

Mr. Himanshu De, learned Senior Advocate appearing for the appellant Bablu Mohammed @ Mobarak Ali in C.R.A. no. 307 of 2009 submitted that the very genesis of the prosecution case is in doubt and the statement made by PW1 in her written complaint cannot be believed in absence of any corroboration from her testimony including that of the other witnesses. Mr. De submitted that admittedly, the victim was missing from 03.03.2003 and FIR was lodged on 11.03.2003. The prosecution could not satisfactorily answer as to why there had been a delay of eight days in lodging the complaint. It has been submitted that save and except that the complainant was busy in searching her sister, no logical explanation for the delay caused in filing the complaint could be explained by the prosecution. Therefore, the prosecution case cannot stand having regard to the non-explanation of delay in filing the complaint. Mr. De has relied on a decision in Khedu Mohton and Ors. -Vs. - State of Bihar reported in AIR 1971 SC 66. The case cited is based on a fact where the appellants before the Apex Court were prosecuted before the Munsif Magistrate, 1st Class for dishonestly cutting and removing paddy crops from complainant's land and the appellants unlawfully trespassed into that property and harvested rice crop. Learned Magistrate held the appellants guilty and convicted them. In appeal learned District Judge acquitted the appellants as he felt unable to rely on the prosecution case for three different reasons:

1) He came to the conclusion that the witnesses who spoke about the occurrence are all interested witnesses and it is unsafe to place reliance on their testimony.

2) He came to the conclusion that there was considerable delay in filing the complaint and the delay in question has not been explained by the prosecution and that circumstances throw doubt on the prosecution case.

3) It was held that the non-examination of the police inspector who is said to have come to the place of occurrence at the time of the occurrence and seen some of the appellants harvesting the crop casts further doubt on the prosecution case. The High Court differing from the 1st Appellate Court held that there was no delay in filing the complaint.

Discussing the fact involved in that case the Hon'ble Apex Court held "The delay of about 8 days in filing the complaint in a case of this nature throws a great deal of doubt on the prosecution story. It was the duty of the prosecution to explain the delay satisfactorily. Failure of the prosecution to do so undoubtedly is a circumstance of considerable importance."

While Mr. De submitted that the Hon'ble Apex Court set aside the order passed by the High Court interfering with the order of acquittal, it was the unexplained delay on the basis of which the Hon'ble Apex Court allowed the appeal setting aside the judgment of the High Court. The context on which the discussion came from the Hon'ble Apex Court is not the issue of delay where the delay caused is important to be noted and how the delay would be fatal in a particular fact situation of a case may vary from one case to the other. The order of acquittal passed by the Hon'ble Apex Court is on different context. The Hon'ble Apex Court held that "It must also bear in mind the fact that the appellate judge had found them not guilty. Unless the conclusions reached by him are palpably wrong or based on erroneous view of the law or that his decision is likely to result in grave injustice, the High Court should be reluctant to interfere with his conclusions. If two reasonable conclusions can be reached on the basis of evidence on record then the view in support of the acquittal of the accused should be preferred. The fact that the High Court is inclined to take a different view of the evidence on record is not sufficient to interfere with the order of acquittal." Looking at the fact involved in the said decision that the complainant made a complaint eight days after he appellant trespassed into his land to take away paddy crops, had been considered by the Hon'ble Apex Court to be the delay considered fatal for the prosecution case to be maintained. Such ratio of the decision cannot be made applicable in the present case.

In this case, we find from the evidence that rather the prosecution has been able to explain satisfactorily the delay caused in filing the complaint independent of other fact. If the material disclosed in the complaint show that the delay was caused due to continuous search for the victim lady first at the house of Haider where she was reportedly working as a labourer; at the house of Saifur Rahaman where the victim reportedly entered after being thrashed by the accused; at the house of the accused where PW1 asked his mother about the whereabouts of the victim if she could be able to divulge anything. After returning back to her own village from the house of the accused even she continued search with the help of the villagers and lastly when she apprehended that her sister died she filed the complaint.

In her testimony she deposed "....I narrated the fact to my brother Bishu (PW2) and Sakila (PW9). Then we called the village people and narrated the entire fact to them. Then myself along with the village people came to Faraspur, them I asked Saifur Ali and Taibul about the occurrence. They denied the fact. When we came to our house. Then we began to search for Bahamoni in our relative's house. I informed the fact at the P.S. after seven days of occurrence. The written complaint was written by Biswanath Soren of Khusmondi. The same was written as per my dictation and it was read over and explained to me ..... Subsequently the dead body of Bahamoni was detected under the earth at Monipur Khari. Sweeper recovered the dead body in presence of police, I was then present. After detection of the deadbody, I put my LTI in a paper to police."

It is important to take note of the cross-examination made on behalf of the accused Bablu and Ainuddin where she deposed "Not a fact that I am deposing falsely that Bahamoni Mardi went for harvesting paddy from 7-00 am and she was busy for the entire day. Not a fact that I am deposing falsely that on the next day, I went to the house of Haider. Not a fact that I have no talk with the mother of Haider nor I visited the house of Saifur. Not a fact that on that day I have no talk or discussions with Belani. Not a fact that Belani has not stated to me that on the previous day Bablu took my sister to his house."

This being the deposition of PW1 de facto complainant supported by the statements of PW2 and PW9, we do not find any reason to disbelieve the testimony of PW1.

Mr. De submitted that PW1 says that she came to learn from the mother of Saifur, namely Belani Bibi (PW8). PW8 was examined but she was tendered for cross-examination for the accused persons but they declined. This witness supposedly told PW1 about the murder of the victim. Therefore, according to Mr. De if this witness is not examined the information of death to PW1 and/or commission of murder by the accused/appellant Bablu cannot be proved and this is the missing link in the chain of circumstances. Mr. De submitted that because of such incomplete chain it can be presumed that the prosecution has not been able to prove the offence committed by Bablu Mohammed is concerned. Consequently, it is the submission of Mr. Navnail De that there is no direct evidence against his clients (appellant in C.R.A. no. 164 of 2009) implicating them in the commission of offence under Section 201 of the Indian Penal Code. According to Mr. De his clients are innocent and have been falsely implicated in the commission of offence under Section 201 of the Indian Penal Code. Mr. Navnail De submitted that there may be other grounds for conviction under Section 201 IPC but primarily, if death of the victim by the appellant is not proved and if there is no direct proof that his clients had any role to conceal the dead body to save the appellant, they cannot be convicted under the offence under Section 201 IPC. We will deal with the prosecution case as against the appellants in C.R.A. no. 164 of 2009 later on.

Dealing with the questions raised by Mr. Himanshu De learned senior advocate on the issue of missing link we hold that perhaps this argument cannot stand in view of what has been stated by Dr. Ajijar Rahaman an independent witness (PW6). On a close scrutiny of the evidence of PW5, PW6 and PW7 it is revealed that PW5 went to the house of appellant on the day of occurrence at about 7.30/8.00 pm when PW8 told that she heard one cry from the house of the appellant who took victim to his house then this PW5 went to the house of appellant and found that other inmates of the house were absent. Reaching there this PW5 saw victim who told him about physical torture upon her and also requested this witness to take her to hospital. The victim expressed that she would not survive. This witness further deposed that at the material time "Babul came there and threatened me to leave the place and then I came to my house. On the next day Dr. Ajijar told me that he heard that Bahamoni has expired and she has been cremated in my land. After 10/12 days of this occurrence, her dead body was detected near Monipukurr Khari."

In cross-examination on behalf of the appellant this witness confirmed that he discloses this to the investigating officer and further he was deposing falsely that Belani told him that Babul took Bahamony from his house.

Mr. De relies on a portion of the cross-examination made by appellant where he stated "I was an accused of dacoity case in this Court. I have been acquitted from that case. Except that no case instituted against me. I am an accused of a murder case of a BSF Personnel. Not a fact that I am deposing falsely. Not a fact that I have enmity with accused Babul and so I am deposing falsely against him."

Relying on this part Mr. De submitted that the credibility of the witness is in doubt and he cannot be relied on because he is an accused in a murder case. Mr. De also submitted that there was enmity between this witness and the appellant and that is the reason he deposed against the appellant but in cross-examination by the other accused persons this witness deposed "Not a fact that after death of my father and mother, my daughter and son-in-law claims share of their property and so relation became bitter of our family with the family of accused Babul."

According to him on 03.03.2003 PW6 Ajijar Rahaman a quack doctor on the date of occurrence mentioned in the written complaint, one Ajijur (PW7) called him at about 10.00 pm but he refused to follow him. Then this appellant came and showed him pistol and under the threat compelled him to come out from his house and then followed the appellant and PW7 and thereafter went to the house of the appellant. This witness deposed that Ajijur PW7 was also with Babul and Taibul and Majedar the other accused persons. After reaching Babul's house this witness found the victim lying in the house of appellant on north-east corner. He deposed "I examined her and I expressed my view that she has died. I examined her pulse bit, but I got no response, then I tried for measurement of B.P. but got no response, then I gave cotton on her nose and then I opined that she has been expired and then I left the place. Then Babul told me not to disclose the fact to anyone and threatened me with dire consequence. On the next day I stated this facts to Abubakkar Siddik and Ttaur of Choutiapur. I stated this fact to Ld. Magistrate and the I.O. also."

In cross-examination this witness deposed "I came to Magistrate on 19.03.03. I was brought by police before Ld. Magistrate. Not a fact that I was apprehended by police. Not a fact that I was arrested by police nor that I give such statement before Ld. Magistrate due to pressure of police to save myself. I was taken to P.S. on 19.03.03. Not a fact that I was detained in police custody for two days and I was produced before the Ld. Magistrate for giving statement on 21.03.2003. Not a fact that Ajijar has not come. Not a fact that subsequently Babul has not come. Not a fact that reaching there I saw Bahamoni in the room south-east corner of Babul. Not a fact that Babul called me from my house then accused Ajijar, Jaibul, Majedur were also accompanied Babul. Not a fact that I am deposing falsely."

Then Ajijur Rahaman (PW7) as inquest witness identified his signature on the inquest report. Cross-examination was declined by the defence. Mr. De submitted that evidence of PW6 is not corroborated by PW7. PW6 stated that PW7 called him and thereafter, threatened by appellant. He went to the house of the appellant. This part is not corroborated by the testimony of PW7. Therefore, according to him testimony of PW6 is not reliable.

On a conjoint reading of the testimonies of PW5, PW6 and PW7 we are of the clear view that these three witnesses corroborate each other. The fact has thus revealed from their testimonies is that PW7 called PW6 who is a quack doctor to examine the victim whose dead body was lying in the house of the appellant seen by both PW5 and PW6. Although, defence was allowed to cross-examine PW7 but they declined.

From the examination and cross-examination as also the suggestions made on behalf of the accused persons the testimony of PW5 and PW6 inspires confidence of this Court to place reliance thereon. And if it is relied then it establishes a fact that the victim was taken by the appellant at his house where she died. Before her death she explained her pain due to physical torture at the instance of appellant and thereafter, requested PW5 to take her to hospital for her relief and she succumbed to her injuries which was again confirmed by PW6 who was called by PW7 and PW6 having refused to accompany PW7 to examine the victim. The appellant threatened PW6 with his pistol and under compulsion PW6 went to the house of the appellant and saw the victim in the house of the appellant. Therefore, the evidence of PW5, PW6 establishes a charge of murder against the appellant cannot be ruled out. Statement of PW5 was also recorded by the learned Magistrate under Section 164 of the Code of Criminal Procedure and we find that the same corroborates his testimony.

Simply a person being an accused in a criminal case, there is no law, that he cannot be called as a witness or even if he deposed on box his entire testimony is liable to be vitiated. Rather, law is settled that only that part of the evidence will not be admitted which does not inspire confidence of the Court to be trustworthy.

Again if the above evidence of PW5 and PW6 is tested after being compared with what has been stated by the post-mortem doctor in his evidence further corroboration is available. Report of the post-mortem doctor has been marked as Exbt.8 which showed injuries due to blunt force by blunt weapons. After causing murder the body was buried and it was exhumed from the grave after a period of nine days. The incident took place on 03.03.2003 body recovered on 12.03.2003 and post mortem was held on 14.03.2003.

Even though it is not argued but we are not unmindful of the evidence of PW5 to the extent of his saying that he heard directly from the victim about the physical torture upon her at the house of the appellant and subsequently appellants committed threat to the witness to leave the place and on the next day it was confirmed by PW6 that victim died. This depicts a true picture of death of the victim caused at least by the appellant. The statement of this witness PW5 is at par with that of the dying declaration within the meaning of Section

32 of the Indian Evidence Act. Section 32 of the Indian Evidence Act is set out below:

"S.32:- Cases in which statement of relevant fact by person who is dead or cannot be found, etc ., is relevant.

-Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:-

(1) when it relates to cause of death. -When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.

(2) or is made in course of business. -When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him.

(3) or against interest of maker. -When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages.

(4) or gives opinion as to public right or custom, or matters of general interest. -When the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen.

(5) or relates to existence of relationship. -When the statement relates to the existence of any relationship 25 [by blood, marriage or adoption] between persons as to whose relationship 25 [by blood, marriage or adoption] the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised.

(6) or is made in will or deed relating to family affairs.

-When the statement relates to the existence of any relationship 25 [by blood, marriage or adoption] between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait, or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised.

(7) or in document relating to transaction mentioned in section 13, clause (a). -When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in section 13, clause (a).

(8) or is made by several persons, and expresses feelings relevant to matter in question. -When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question.

Illustrations

(a) The question is, whether A was murdered by B; or A dies of injuries received in a transaction in the course of which she was ravished. The question is, whether she was ravished by B; or The question is, whether A was killed by B under such circumstances that a suit would lie against B by A's widow. Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape, and the actionable wrong under consideration, are relevant facts.

(b) The question is as to the date of A's birth. An entry in the diary of a deceased surgeon, regularly kept in the course of business, stating that, on a given day he attended A's mother and delivered her of a son, is a relevant fact.

(c) The question is, whether A was in Calcutta on a given day. A statement in the diary of a deceased solicitor, regularly kept in the course of business, that, on a given day, the solicitor attended A at a place mentioned, in Calcutta, for the purpose of conferring with him upon specified business, is a relevant fact.

(d) The question is, whether a ship sailed from Bombay harbour on a given day. A letter written by a deceased member of a merchant's firm, by which she was chartered, to their correspondents in London to whom the cargo was consigned, stating that the ship sailed on a given day from Bombay harbour, is a relevant fact.

(e) The question is, whether rent was paid to A for certain land. A letter from A's deceased agent to A, saying that he had received the rent on A's account and held it at A's orders, is a relevant fact.

(f) The question is, whether A and B were legally married. The statement of a deceased clergyman that he married them under such circumstances that the celebration would be a crime, is relevant.

(g) The question is, whether A, a person who cannot be found, wrote a letter on a certain day. The fact that a letter written by him is dated on that day, is relevant.

(h) The question is, what was the cause of the wreck of a ship. A protest made by the Captain, whose attendance cannot be procured, is a relevant fact.

(i) The question is, whether a given road is a public way. A statement by A, a deceased headman of the village, that the road was public, is a relevant fact.

(j) The question is, what was the price of grain on a certain day in a particular market. A statement of the price, made by a deceased banya in the ordinary course of his business is a relevant fact.

(k) The question is, whether A, who is dead, was the father of B. A statement by A that B was his son, is a relevant fact.

(l) The question is, what was the date of the birth of A. A letter from A's deceased father to a friend, announcing the birth of A on a given day, is a relevant fact.

(m) The question is, whether, and when, A and B were married. An entry in a memorandum-book by C, the deceased father of B, of his daughter's marriage with A on a given date, is a relevant fact.

(n) A sues B for a libel expressed in a painted caricature exposed in a shop window. The question is as to the similarity of the caricature and its libellous character. The remarks of a crowd of spectators on these points may be proved."

Sub-Section 1 to Section 32 is relevant for this purpose because the statement has been made by the victim as to the cause of her death to the witness PW5. The circumstances narrated by the victim clearly indicates the cause of her death at the house of appellant and when no suggestion appears to contradict evidence of PW5 which shows that all the inmates of the house left, only the victim was lying there. This is sufficient to implicate the appellant with the death of the victim. Mr. De submitted that although, PW6 took the name of PW7 that he came to call him does not get any support from PW7 yet there is no reason to disbelieve PW5 and PW6 as they are independent witnesses and no apparent enmity has been suggested against the appellant so far PW6 and PW7 are concerned. Prosecution has not given any suggestion to that effect to those witnesses save and except a suggestion was given to PW5 that he was an accused in a criminal proceeding. That ipso facto does not vitiate his entire evidence. Mr. De Submitted that PW1 heard from PW8 about the murder of victim but PW8 was tendered by the prosecution for cross-examination and no cross-examination was held on behalf of the accused. On the basis of such tendering of PW8 for cross-examination Mr. De submitted that chain of circumstances is not complete. We have seen sufficient evidence on record even without PW8. Apart from the evidence of PW8, in our view, the prosecution has been able to prove the case otherwise. The other witnesses are; PW9 the sister of victim, PW10, PW13 & PW14 are seizure witnesses, PW12 is the doctor who examined the accused, PW15 is the sweeper who exhumed the body from the grave, has been declared hostile, PW16 is a seizure witness who is an expert of police photographer and took the snap of the photographs also identified his signature on the seizure list, PW17 is the PM doctor corroborates the testimony of PW18, PW18 is the BDO of Khusmundi in the district of Dakshin Dinajpur, caused the inquest over the dead body of the victim under Section 176 of the Code of Criminal Procedure, identified the inquest report (Exbt.9 under objection), who deposed that the dead body was concealed in the ground and exhumed with the help of sweeper PW15 who was declared hostile, PW19 is the first Investigating Officer who arrested the accused/appellant and others on 13th March, 2003. This witness concluded post-mortem report and filed first charge-sheet on 20th June, 2003 (Exbt.17). PW20 is the 2nd Investigating Officer and submitted 2nd charge-sheet on 21st December, 2004 (Exbt. 20). PW21 is the Civil Judge, Senior Division, who was posted as Judicial Magistrate on 21st March, 2003 recorded statement of witness Dr. Ajijar Rahaman (PW6) under Section 164 of the Code of Criminal Procedure.

So far this witness is concerned Mr. De submitted that due to non-compliance of Section 164(4) Cr.P.C. the evidence of the PW6 has got no evidentiary value.

Mr. De argued that no reliance can be placed on the 164 statement of PW7 inasmuch as the said statement has been recorded not in compliance with the provision of Section 164(4) of the Code of Criminal Procedure. Mr. De argued that since the learned Magistrate did not specifically mention before the witness that his evidence may go against him as required to be mentioned under Clause 4 of Section 164 Cr.P.C., the statement of PW6 recorded under Section 164 of Code of Criminal Procedure should not be considered as evidence. Mr. De, further points out that even it is not written that the confession was voluntarily made, however, such contention cannot be accepted having regard to the fact that in the statement under Section 164 Cr.P.C. the witness read the statement himself and thereafter, put his signature. The statement so recorded by the learned Magistrate was in due compliance of the procedure for recording of examination of accused as prescribed under Section 281 of the Code of Criminal Procedure. Therefore, we are not at all convinced by this submission made by Mr. De that the same is not in compliance with the provisions of Section 164 Cr.P.C. PW21 is the learned Magistrate who deposed before the Court to prove the statement of PW6 recorded under Section 164 Cr.P.C. Such testimony of PW2 does not contradict in any manner. In examination the learned Magistrate (PW21) deposed that PW6 made the statement under Section 164 Cr.P.C. voluntarily and without any influence, he was produced by the Constable Ranjan Kumar Das and after the statement was recorded the witness himself had gone through statement and thereafter put his signature acknowledging the content and consequence thereof. Therefore, this submission of Mr. De also cannot stand.

Mr. Sur, learned advocate appearing for the State relies on the evidence of PW3, PW4, PW5, PW6 and PW7 and submitted that the said witnesses corroborate the prosecution case and it helps to establish that the victim was murdered by the appellant. PW3 is an eye-witness to the incident and she deposed that "I was making plantation in the land of Saifur along with Jhumur (PW4) and Bahamoni was making plantation in the land of Haider. I was in the land from 10.00 am to 4.00 pm. then Babul called her and took with him at 4.00 pm. Then accused Babul took him. Identified accused Babul. I was interrogated by police for two times. The land of Haider is situated on the eastern side land where I was working."

According to Mr. Sur this PW3 identified the accused/appellant on box and she has unambiguously stated in Court that she saw the victim who was making plantation in the land of Haider which is situated just on the eastern side where this eye-witness was working.

Mr. Sur rightly pointed out that the submission made by Mr. De that the theory of last seen could not be established by the prosecution is over turned by virtue of the deposition of this eye-witness who saw her doing plantation in the land of Haider and at the adjoining land of which this witness was also working. This witness also more particularly and definitely asserted that accused Bablu took the victim from the said land where she was working. Although, the defence cross-examined this witness save and except the suggestion that the witness was deposing falsely, no other suggestion with regard to the statement that the victim was taken by the accused from the said land, was given to the witness. Mr. Sur has also rightly pointed out that the evidence of PW3 is duly corroborated by the evidence of PW4, Jhumur whose name has been taken by PW3 during her examination-in-chief stated "I was working alone in the land of Saifur, that was Monday. At about 4:00 pm Babul took her from the land. I cannot say where she was taken. I cannot say how she was taken. Out of fear I have not disclosed this fact to anyone. I have fear for Babul so I was mum. Everybody fears him. After that Bahamoni was traceless i.e. after taking of Babul. Accused Babul is present on dock (identified)". In the cross-examination made on behalf of the accused Babul suggestion was given that Bahamoni was not working in the land of Haider which was refused. Suggestion was also given that accused did not take the victim but same was denied. Therefore, Mr. Sur rightly pointed out that the evidence of PW3 who took the name of PW4, in her turn PW4 has independently corroborated the evidence of PW3. And PW3 corroborates the complaint case on the basis of which prosecution started the case. If the complaint case is taken into consideration after taking into account of the evidence of PW3 and PW4. There is no room to disbelieve that these two witnesses deposed falsely and if their evidence are taken into consideration the same inspires confidence of the Court to hold that the appellant was the accused in this case and he caused death of the victim. Then again if we consider the testimony of PW5, Abu Bakkar Siddik who saw Bahamoni at the house of the appellant and who further saw that intimates of the house were absent and when this testimony of PW5 is compared with the testimony of PW6 an independent witness and quack doctor who examined the deceased to be dead and his testimony discloses that he was called by PW7 Ajijur Rahaman to take the victim and when PW6 refused, he was threatened by the appellant himself by showing pistol and ultimately, PW6 had to go to the house of the appellant where PW6 found the deceased. And he identified the victim to be Bahamoni who was lying dead, who told him about the physical torture which occurred upon her. She also told PW5 to take her to hospital and she expressed that she would not survive. She requested PW5 to make arrangement for medical treatment. The witness PW5 further deposed that at the material time appellant threatened them to leave the place and he accordingly, left the house. PW5 heard from PW6 on the next day that the victim expired. And she had been cremated at the land of PW5. The combined effect of the deposition available on record from the above named witnesses undoubtedly shows that this appellant was guilty of committing the offence under which he has been charged. Those apart the evidence of PW17, the autopsy surgeon, who committed post-mortem upon the deceased Bahamoni also corroborated the complaint case and the evidence of PW1. Submission made by Mr. De with regard to time contradiction on the basis of the PM doctor's report but does not appear to us to be very prominent and serious which can cause any doubt for the prosecution case regarding the death of the victim. Rather we find that the evidence of PW7 corroborated the witness who saw the victim last with the appellant. Particularly, when the post-mortem has been conducted after the body was exhumed from the grave and that too after about 10/12 days from the date of occurrence as stated by PW5 and the PM doctor confirming that the death might have happened 8 to 10 days prior to death when post-mortem was conducted.

Mr. Sur, however, fairly submitted that except PW6 there is nothing incriminating against the appellant to establish the offence under Section 201 IPC so far the appellants in CRA 164 of 2009 is concerned. He further submitted that defence has not taken any plea under Section 313 of the Code of Criminal Procedure while examining the accused. We do not agree with the submission made by Mr. Sur with regard to his submission of taking plea by the defence under Section 313 of the Code of Criminal Procedure. It is the prosecution to prove the offence alleged beyond any reasonable doubt. Therefore, such submission has got no basis. He has also made a submission that under Section 106 of the Evidence Act it is the duty of the appellant to clear out the doubts as to why the victim was found dead in the house of the appellant and this burden lies upon the appellant to discharge that in the death of the victim he has no role. Such burden has not been discharged in our view by the appellant and, therefore, a presumption can be taken against the appellant about the cause of death of the victim.

Mr. Sur has rightly argued that the prosecution has been able to prove the charge brought against the appellant and the conviction so ordered by the learned trial Court is justified. So far the charge under Section 201 against the appellants in CRA 164 of 2009 has not been established by the prosecution and therefore, the appellants are entitled to acquittal. However, all the three accused persons in CRA 164 of 2009, of whom one has died and two are only alive, are entitled to be acquitted from the charge brought against them under Section 201 of IPC.

Relying on Pankaj (supra) Mr. De submitted that when genesis of the prosecution case is doubtful the entire trial should be vitiated. We have already indicated that the genesis in this case is not at all doubtful because sufficient explanation has been given by the complainant and further the prosecution has been able to prove the occurrence of the crime by reliable and trustworthy evidence. The ratio decided in the cited decision is not applicable in the present case.

Decision in Alil Mollah (supra) has been relied on to argue that where conduct of the witness appears to be unnatural, the witness should not be believed. Mr. De submitted that PW6 who is the doctor examined the victim whether died or not did not inform the matter to police and also other persons. PW5 according to Mr. De also did not disclose anything about the commission of the offence to other persons. Therefore these witnesses according to Mr. De are not reliable and their conduct appears to be unnatural. Simply non-disclosure of the fact to other persons cannot be considered to be unnatural. Other attending circumstances are to be considered together. In our opinion, PW6 was threatened by the accused with dire consequences if he disclosed the fact to other persons. PW5 was also apprehensive of the very nature of the accused and therefore, they had to keep mum as according to them, the accused was a very "dangerous person". Therefore, the ratio in this decision is not applicable to our case.

The decision in Kanhaiya Lal (supra) has been relied on by Mr. De to argue that no conviction can be given on the basis of suspicion. A case where the prosecution has relied more on suspicion than on proof then one can understand that such suspicious circumstances may give rise to a question of improbability but where the prosecution has otherwise proved the offence against the accused, there can be o reason to doubt the prosecution case. This decision is also not apposite to the question involved in the present case. The doubts raised by the defence appears to be without any basis and/or does not nullify the evidence on record.

The decision in Ashoke Debbarma alias Achak Debbarma (supra) has been relied on by Mr. De is based on a fact of circumstantial evidence only but the case here is otherwise and ratio in this decision that conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased is not the case here. Here definite proof is available against the appellant. Therefore, conviction passed by the trial Court does not, in our view, appear to be unjustified.

The decision in Khedu Mohton (supra) has already been discussed. Its ratio is not applicable here.

The decision in Dhananjaya Reddy (supra) has been relied on by Mr. De to argue that suspicion, however, strong cannot take the place of truth is also not applicable in the present case, as we have already pointed out while discussing the decision in Kanhaiya Lal (supra).

We are of the firm opinion that the learned trial Court has not convicted the appellant merely on the basis of suspicion and that the prosecution failed to prove its case.

By citing this decision Mr. De has also argued that it is the settled law that when statute requires a thing to be done in a particular manner, it has to be done in that manner only or not at all. This proposition is a settled proposition of law and judicial pronouncement on these principles have been long followed by our judiciary but the case here is completely different. Mr. De sought to argue that learned Magistrate while recording the statement of PW6 has not applied his mind and did not comply with the provisions of Section 164 of Cr.P.C. but we have already pointed out earlier that the witness when signed the statement after going through what he has written and when he says he has understood the contents before signing, question does not arise about the infraction of any part of Section 164 Cr.P.C. while recording the Statement of the witness under Section 164 of the Code of Criminal Procedure. In fact, the witness pointed out that all the formalities required to comply with under Section 281 of Code of Criminal Procedure has been duly followed.

Therefore, we cannot agree with the submission of Mr. De that when law requires a thing to be done in a particular manner, the same is to be done in that particular manner, has not been done in that manner. That apart the proposition which has been accepted by the Hon'ble Apex Court in the aforesaid decision relying on an earlier decided case in State of U.P. -Vs. - Singhara Singh reported in AIR 1964 SC 358 was on the fact that a Magistrate in course of investigation recorded confessional statement without recording such confessional statement under Section 164 of the Code of Criminal Procedure. On this background the Hon'ble Apex Court in State of U.P. (supra) observed as above. But here the situation is totally different and the learned Magistrate (PW21) clarified the position.

The decision in Rambraksh @ Jalim (supra) has been relied on by Mr. DE to argue that theory of last seen becomes an important factor which ought to have been proved by the prosecution. He submitted that the prosecution has to complete the chain of circumstances to bring home the guilt of accused. And according to him if that chain is not completed the same may lead to acquittal of appellant. The decision rather is based on different fact where conviction was awarded against the accused merely on the ground that the accused was last seen with the deceased. Therefore, the Hon'ble Apex Court held that a conviction cannot be based on the only circumstances of last seen together. Here we have a case completely different on fact and it is not the last seen together theory only but other factors are to be considered conjointly and the cumulative outcome of the total evidence is to be taken note of.

Mr. De submitted that there has been 8 days delay and we hold that such delay has been properly explained if not explicitly but by implication. The complainant gave details as to what she did that after she was informed that her sister had gone missing on 3rd March, 2003. It is the settled law that each and every days delay need not be explained in the written complaint nor is it really required to mention every fact in the written complaint which is not an encyclopedia of all the facts connected with the commission of offence as has been settled by judicial pronouncement time and again.

Last submission made by Mr. De is based on the post-mortem report (Exbt.8) being proved by PW7, Mr. De submitted that if the report of the PM Doctor is to be accepted where he said that death occurred 8 to 10 days prior to conduction of post-mortem. Mr. De submitted that if it was 8 days then the date of occurrence would be 6th March, 2003 and if 10 days is accepted then it would be 4th March, 2003. Therefore, in none of the cases the date of occurrence would have a probability of having commenced on 3rd March, 2003. Therefore, according to him, post-mortem report also cannot jusitfy the truthfulness of the complainant. We have already discussed that after death of the victim if she was buried and with the help of the sweeper (PW15) her body was exhumed from the grave and thereafter, sent for post-mortem examination. Therefore, this minor contradiction does not lead to an order of acquittal for the appellant. We have meticulously examined the testimonies of all the witnesses but we have not been able to find out anything which could satisfy this Court that the charge which has been framed against this appellant is otherwise not established. We are of firm opinion that the prosecution has been able to prove its case beyond reasonable doubt against the appellant Bablu Mohammed and therefore, the order of conviction passed by the learned trial Court and the sentence awarded by it against the appellant Bablu Mohammed does not call for any interference. The order of conviction and sentence against appellant in C.R.A. No. 307 of 2009 is hereby confirmed.

Of the three appellants before us in C.R.A. No. 164 of 2009 we are informed that Taibul Islam has already expired on 07.07.2016, the present appeal has been carried by the remaining two appellants namely Majedar Rahaman and Ajijar Rahaman.

So far the charge of concealment of the body of the victim under Section 201 read with Section 34 of the Indian Penal Code against the appellants in C.R.A. No. 164 of 2009 is concerned on a meticulous examination of the evidence, we do not find anything against them abetting the offence committed by those appellants in C.R.A. No. 164 of 2009 nor it be found that these appellants are in any manner involved in the charge of concealing the body either separately or in joint concert.

These appellants, we do not find to be involved in the offence under Section 201/34 of the Indian Penal Code. We therefore, hold that the order of conviction against the appellants in C.R.A. No. 164 of 2009 is without any substance. The appellants Taibul Islam, Majedar Rahaman and Ajijar Rahaman are therefore, entitled to be acquitted of the offence punishable under Section 201/34 of the Indian Penal Code. The order of conviction against these appellants stands set aside. The appeal being C.R.A. No. 164 of 2009 stands allowed.

The Criminal Section is directed to send down the lower Court records together with a copy of the judgment forthwith to the concerned learned trial Court.

Urgent Photostat certified copy, if applied for, be delivered to the learned counsel for the parties, upon compliance with all usual formalities.