Sadhu Barman vs The State of West Bengal

Indira Banerjee, J.—This appeal is against a judgment dated 10th August, 2006, passed by the Additional District and Sessions Judge, Fast Track Court, Dinhata, in Sessions Trial No. 13/June/2003 corresponding to Sessions Case No. 12/2002 arising out of Dinhata Police Station Case No. 37/01 dated 22.02.2001, whereby the accused appellant has been found guilty and convicted of murder and of causing disappearance of evidence under Sections 302/201 of the Indian Penal Code and an order of sentence dated 11th August, 2006 whereby the accused appellant has been sentenced to suffer rigorous imprisonment for life and to pay fine of Rs. 10,000/-, in default whereof he is to suffer further rigorous imprisonment for three years, for offence under Section 302 of the Indian Penal Code, and to suffer rigorous imprisonment for five years and fine of Rs. 3,000/- in default whereof he is to suffer rigorous imprisonment for further one year, for offence under Section 201 of the Indian Penal Code. The sentences were to run concurrently.

Sometime in April 2000, Fulti Barman, who was nineteen years old, got married to the accused appellant. At the time of her marriage with the accused appellant, both her parents were dead, and she lived with her maternal uncle, Rajani Kanta Bakshi, who is the de facto complainant. Unfortunately, the marriage was not a happy one and it soon soured.

On or about 17th February, 2001, Fulti''s maternal uncle Rajani Kanta Bakshi, the de facto complainant, was informed by the accused appellant that Fulti was missing from her matrimonial home. Thereafter, the de facto complainant Rajani Kanta Bakshi, maternal uncle of Fulti and other relatives and acquaintances started searching for Fulti, but they could not find her anywhere.

From the tenor of the evidence of the relatives of Fulti, who deposed as Prosecution Witnesses, it appears that after their futile search for Fulti, they started suspecting the involvement of the accused appellant, in her disappearance, and started questioning the appellant. Some of the relatives of Fulti, who have deposed in Court as Prosecution Witnesses, have said that there were inconsistencies in the answers of the accused appellant to questions put to him by different persons enquiring exactly where Fulti had gone. The accused appellant once said, she had gone to visit a relative, and later said that she had gone to a ''Kabiraj'' to get an amulet and/or ''tabeez''. The accused appellant claimed that he did not know where Fulti had gone.

A ''Salisi'' was held in the house of the accused appellant''s aunt Baccha Buri, with whom the accused appellant lived, but he refused to divulge what exactly had happened, on the plea of ignorance. Later, on or about 23rd February, 2001, relatives of Fulti, other respectable persons and villagers gathered, in the house of Lalit Chandra Ray, Ex Prodhan. The accused appellant who also came there was subjected to a spate of questions.

Under the pressure of incessant questioning, the accused appellant started faltering, and his facial expression started revealing his guilt. The accused appellant, thereafter, went to a separate room with Lalit Chandra Roy and confessed that he had murdered his wife by strangulating her and had hidden her dead body in a field behind his house.

The said Lalit Chandra Ray, Ex Prodhan, took the accused appellant to Bhetaguri Police Camp and he informed the Dinhata Police Station over the telephone. Police Officers from the Dinhata Police Station came to the Bhetaguri Police camp. The Block Development Officer, Dinhata also came there.

The police interrogated the accused appellant, whereupon the accused appellant confessed that he had buried the body underneath a field behind his aunt Baccha Buri''s house at Ruer Kuthi, where he lived.

On the basis of the statement made by the accused appellant, the police went to the said field behind Baccha Buri''s house at Ruer Kuthi, along with the accused appellant and the Block Development Officer and recovered the dead body from the spot pointed out by the accused appellant, after digging the field. The dead body was identified inter alia by Samir Bakshi, cousin of the deceased, Fulti.

The Block Development Officer, Dinhata-I, District Coochbehar, prepared an Inquest Report of the dead body under Section 174 of the Criminal Procedure Code. It appears that the inquest was carried out on 22nd February, 2001, between 12.30p.m. to 02:15 p.m. From the inquest report it appears that the body of the deceased was buried under the ground, under a water logged paddy field. It was dug out from a depth of 2 ft. The body which was brought out in slanting position, was highly decomposed. The face was full of blood and in decomposed condition. The eyes were closed and the mouth slightly open. The Block Development Officer found white wrinkles on both palms. Blood was seen around the neck and there was a gaping cut injury on the throat, which was covered with mud. The belly was swollen and the lower portion of the body covered with cherry coloured sari, printed with yellow and black coloured spots.

Another Inquest Report was prepared by the Investigating Officer, Sub-inspector, J.K. Tamang. He also noted that the dead body was highly decomposed, and rigor mortis had set in. The face was swollen and deformed, and both the eyes were closed. He also noted that there was cut injury on the throat, covered with mud.

In course of investigation, the Investigating Officer examined various witnesses. After completion of investigation charge-sheet was filed, charging the appellant and one Nilima Barman, widow of a cousin of the accused appellant, with intentionally causing the death of Fulti, in furtherance of common intention and thereby committing offence under Section 302/34 of the Indian Penal Code and also of causing disappearance of evidence in furtherance of common intention, thereby committing offence punishable under Sections 201/34 of the Indian Penal Code. The accused appellant and the accused, Nilima Barman pleaded not guilty.

In course of trial in the Sessions Court, the Prosecution examined 15 witnesses, whose evidence is summarized hereinafter. The first Prosecution Witness, Gobinda Barman deposed that he had drafted the First Information Report under the instructions of the de facto complainant, Rajani Kanta Bakshi, maternal uncle of the deceased, Fulti. He identified his signature in the FIR, which was tendered as Exhibit 1/1.

The Prosecution Witness No. 2 is the de facto complainant, Rajani Kanta Bakshi. He deposed that on 17th February, 2001 the accused appellant, Sadhu Barman, informed him that the deceased Fulti had gone missing. Thereafter, the de facto complainant along with others started searching for the deceased in the houses of different relatives. However, they were unable to trace the deceased Fulti. On the same day, the de facto complainant lodged a missing diary at the Dinhata Police Station.

The de facto complainant deposed that, since his niece ''Fulti'' could not be traced out, a Salish was held at the house of ''Bachha Buri'' where the accused appellant used to stay. The accused appellant did not admit his involvement in the disappearance of Fulti.

This deponent further deposed that on 22nd February, 2001, he went to Ex. Pradhan, Lalit Chandra Roy''s house along with his son, to discuss Fulti''s disappearance. About 10 minutes later the accused appellant Sadhu Barman came to Lalit Chandra Roy''s house, after which several questions were put to him about how Fulti disappeared.

According to this witness, the accused appellant was, later, separately questioned by the Ex Pradhan, Lalit Chandra Roy, whereupon he confessed that he had killed the deceased, Fulti, by strangulating her and had hidden her dead body underneath the ''china field''. He had also confessed that he had struck the deceased with a "Kodal", that is spade. After the accused appellant confessed his guilt, Lalit Chandra Roy, Gobinda Barman and Krishna Kanta Roy, took the accused appellant to the Bhetaguri Police out post. The Dinhata police station was informed over phone, after which police from Dinhata Police Station arrested the accused appellant, and interrogated him. Thereafter, the police, accompanied by the Block Development Officer of Dinhata, took the accused appellant to the field in question.

The de facto complainant deposed that, after the accused appellant showed the spot, where he had buried the dead body of the deceased Fulti, to the police, a sweeper was called and he pulled out the dead body from the said spot, from under the ground. A bag was also dug out from the same place. The bag contained some articles and a sari used by the deceased Fulti.

The de facto complainant further deposed that the police officer seized those articles and prepared a seizure list, which the de facto complainant signed as witness. The de facto complainant identified his signature in the seizure list, which was marked Exhibit 2/1. The de facto complainant stated that he, thereafter, filed a detailed FIR, which was drafted by Gobinda Barman as per his instructions. He identified his signature in the FIR. The de facto complainant also deposed that the relationship between the deceased Fulti and the accused appellant was bitter.

The third Prosecution Witness, Samir Bakshi, deposed that he knew Fulti Barman, that is, the deceased, as well as the accused appellant. He deposed that the deceased Fulti was his cousin sister. On receiving information that Fulti could not be found, he searched for her along with others, but she wasn''t found.

The deponent deposed that a meeting was convened, which yielded no result and three days after the meeting, he along with others, went to the house of Ex. Pradhan, Lalit Chandra Roy. The accused appellant also came to the Ex. Pradhan, Lalit Chandra Roy''s house, whereupon this deponent and others requested Lalit Chandra Roy to question the accused appellant about how the deceased, Fulti went missing.

This deponent stated that this deponent, his father, that is, the de facto complainant, his maternal uncle Krishna Kanta Roy, and Gobinda Barman, who drafted the FIR had all assembled at Lalit Chandra Roy''s house. Lalit Chandra Roy took the accused appellant to a separate place and the accused appellant confessed that he had killed the deceased, Fulti by strangulating her. Thereafter, they took the accused appellant to Bhetaguri Police Camp and from there Lalit Chandra Roy rang up Dinhata Police Station.

This deponent stated that on receipt of information a police party arrived from Dinhata Police Station along with the Block Development Officer, Dinhata and they took the accused Sadhu Barman to the ''china field'', to the spot shown by the accused appellant, where he had concealed his wife''s dead body. A spade was brought and a sweeper dug out the earth and pulled out the dead body of the deceased, Fulti from the spot shown by the accused appellant.

This deponent deposed that he recognized the dead body, which was of his sister, Fulti. The dead body was in a decomposed condition. A bag containing several articles was also found from underneath the field. The police seized the said articles under a seizure list, which was duly signed by him as witness. He identified his signature on the seizure list which was marked Exhibit 2/2.

It is true that this deponent could not say exactly what articles were there inside the bag that was dug out, though he identified the bag. It is, however, only natural that one who had to see the dead body of his cousin sister, with whom he had lived in the same house, dug out from underneath a field, in such tragic circumstances, would not notice other insignificant things.

In cross-examination this witness confirmed that he was present at the time when the dead body was dug out and also at the time of Inquest. He also confirmed that he had identified the body of the deceased Fulti, his cousin sister, to the police officer. He deposed that the dead body had been hidden at the center of the field of ''Bachha Buri'', which was submerged in two to three inches deep water. This deponent also deposed that to unearth the dead body the water from the field had to be drained out, after which, the sweeper dug out the body. This witness confirmed that he had signed the Inquest Report prepared by the Block Development Officer, as well as the Inquest Report prepared by the Investigating Officer, as witness.

The Fourth Prosecution Witness, Hemananda Barman deposed that the deceased, Fulti, was his wife''s cousin. About 5 years ago, she got married to the accused appellant. Initially, the relationship between the deceased, Fulti and the accused appellant had been good but the relationship soured gradually. This deponent deposed that his family received information of the disappearance of the deceased, Fulti from her matrimonial home after which a futile search was made to trace her out. Thereafter, a meeting was held at the house of Bachha Buri but there was no break through. Ultimately, the relatives of the deceased, Fulti and others met at the house of the Ex. Pradhan, Lalit Chandra Roy to discuss further steps for recovering of Fulti. After some time, the accused appellant arrived at the house of Lalit Chandra Roy.

This deponent, however, admitted that he was not there at the house of Lalit Chandra Roy, and what he had deposed was based on what he had heard from the de facto complainant. This deponent deposed that, at Lalit Roy''s house, the accused appellant confessed that he had killed the deceased by strangulating her and had hidden her underneath the ground. He was taken to the Bhetaguri Police camp and the Dinhata Police Station was informed. Thereafter, a Police party came from Dinhata Police Station along with the Block Development Officer, Dinhata. They interrogated the accused appellant and on the basis of what he had said, they took the accused appellant to the field which he had shown the police. The accused appellant showed the police the place where he had buried the deceased, Fulti.

This deponent deposed that he was present at the spot, and he actually saw the accused appellant showing the police the spot where he had buried the deceased, after which, water was drained out from the field, a spade was brought and a sweeper dragged out the dead body of Fulti as also a bag containing certain used articles and garments of Fulti. The articles were seized by the police, who made out a seizure list. This witness identified the bag which had been dug out. He also confirmed that he had signed the seizure list as witness and he identified his signatures. In cross-examination, this witness stated that after the dead body was dug out, he had confirmed that it was the dead body of the accused, Fulti, on being questioned by a Police Officer.

The Prosecution Witness No. 5, Dharani Barman deposed that he used to know Fulti Barman of his village. She had got married to the accused appellant. He identified the accused appellant and the accused, Nilima Barman in Court.

In his evidence, this deponent confirmed that he had seen the dead body of the deceased, Fulti at the back of the house of Bachha Buri where the accused appellant resided. This deponent stated that after they heard that Fulti was missing, they questioned the accused appellant to be first told that the deceased, Fulti had gone to her relative''s house, and later to be told that the deceased, Fulti had gone to a ''Kabiraj'' to bring an amulet (''tabeez''). Three days later, they gathered at the Ex. Pradhan, Lalit Chandra Roy''s house, where this deponent was also present. The accused appellant confessed to having murdered the deceased, Fulti before Lalit Chandra Roy. Thereafter, the accused appellant was taken to the Bhetaguri Police Camp and the Dinhata Police Station was informed. The police arrived along with the Block Development Officer. This deponent categorically stated that the accused appellant showed the police and the B.D.O the place where he had hidden the body of the deceased, Fulti after killing her and the body was recovered from that place in his presence. He also deposed that a bag was recovered from underneath the field along with the body. The bag contained garments of the deceased, Fulti.

The Prosecution Witness No. 6, Rajani Barman deposed that he knew the accused appellant. He deposed that about 4 years ago the deceased, Fulti, had been killed by the accused appellant who hid her body underneath a field behind his house. Initially, after the disappearance of Fulti Barman, the accused appellant had told everyone that his wife had gone to a ''Kabiraj'' and to other places but later when he was interrogated, he broke down and he confessed that he had killed his wife and hidden her dead body behind his house.

This deponent further deposed that Lalit Chandra Roy, to whom the accused appellant made the confession, took him to the Bhetaguri Police camp. Police Officers from Dinhata Police Station and the Block Development Officer, Dinhata arrived at the Bhetaguri Police camp after which the accused appellant showed the police the place where he had hidden the dead body of the deceased, Fulti under the ground and the dead body was recovered from the place shown by the accused appellant himself. According to this witness, he saw the accused appellant showing the police the place where he had hidden the dead body and he witnessed the recovery of the dead body from that spot from a distance of about 5 to 7 ft. He also identified the bag containing wearing apparel, utensils and other articles of Fulti which had been dug out along with the dead body.

In cross-examination, this witness confirmed that he went to the spot to see the dead body of the deceased, Fulti, being dug out. He stated that he had heard from Lalit Chandra Roy that the accused had confessed to murdering his wife.

The accused appellant No. 7, Ajim Ali Hossen, deposed that he was a rickshaw puller who resided near Dinhata Police Station. He carried dead bodies to the hospital etc. under orders of the police. He deposed that about 4 years ago he had dug out the body of a lady at Ruer Kuthi village, along with a bag containing some garments, under orders of the police. He deposed that he had taken the dead body in his rickshaw van to the Cooch Behar, M.J.N. Hospital and after completion of post mortem examination, he had taken the dead body back to the Police Station. He deposed that as per custom, he had put his left thumb impression as a witness on the seizure list. He said that because the incident had occurred some time back, it was not possible for him to distinguish from the sarees shown to him, the particular one which was on the dead body, at the time at which the dead body was unearthed.

The Prosecution Witness No. 8, Jagadish Chandra Barman, a retired school teacher, deposed that he used to know the deceased, Fulti and her husband, the accused appellant. He identified the accused appellant in Court. This witness deposed that he had heard that Fulti was missing, from his neighbour Rajani Kanta Bakshi, that is, the de facto complainant, and he started searching for her. He deposed that he advised the family members of the deceased, Fulti to interrogate the accused appellant and ask him to explain how the deceased, Fulti went missing. This witness deposed that he advised Rajani Kanta Bakshi, the de facto complainant to put pressure on the accused appellant. This deponent stated that the de facto complainant had told him that the accused appellant had told the de facto complainant that his wife had gone to a Kabiraj to get a ''tabeez''. This witness deposed that he advised Rajani Kanta Bakshi to lodge a missing diary with the Police Station which he did. This witness stated that he heard from the de facto complainant, Rajani, that the accused appellant had confessed that he had killed the deceased, Fulti and hidden her dead body underneath a field at the back of his house.

This deponent deposed that he had gone to the Bhetaguri Police camp on the same day on which the accused appellant had been taken there by Lalit Chandra Roy and others. Lalit Chandra Roy informed the Police Station over phone after which a Police Officer came to the Bhetaguri Police camp along with the BDO at about 11 A.M. Thereafter, the accused appellant was taken by the police to the place of occurrence. This witness deposed that he also went to the place of occurrence. He stated that he was the Upa-Pradhan then. There, as shown by the accused appellant, the police dug out the dead body with the help of a sweeper. He stated that the same sweeper had deposed in Court before him earlier in the day.

The Prosecution Witness No. 9, Abdul Jabbar, a constable posted at Dinhata Police Station had made arrangements for transportation of the dead body, which he had collected at Ruer Kuthi, to Coochbehar MJN Hospital via Dinhata Police Station by rickshaw van and for its transportation back to Dinhata Police Station, by the same rickshaw van, after completion of post mortem.

The Prosecution Witness No. 10, Dhirendra Nath Bose, posted at Dinhata Police Station on 22nd February, 2001 as an NVF was a witness to the seizure list under which the Investigating Officer had seized the wearing apparel of the dead body of the deceased. He confirmed that he had signed on the seizure list as witness. He identified his signature on the seizure list. He stated that the sari was seized by the Investigating Officer after the dead body was brought back after post mortem.

The Prosecution Witness No. 11, Dr. V. Kumar is the doctor who conducted the post mortem examination of the dead body of the deceased, Fulti. He deposed that on examination, he had found the body was decomposed and swollen with sand particles all over the body. He further deposed that he found sharp cut injury transversely about 3 inches over the supra sternal notch, cutting the arteries, muscles and the trachea. There was an old blood clot over the injury.

This witness opined that the cause of death was due to shock and haemorrhage, following the above injuries mentioned in the post mortem report, which were ante mortem and homicidal in nature. He identified the report prepared and signed by him and a carbon copy thereof. In cross-examination, he deposed that in case of partially decomposed corpses, the body can be identified or recognized, which is not possible in case of highly decomposed bodies.

The Prosecution Witness No. 12, Augustine Lepcha was the Block Development Officer, Dinhata who conducted the inquest of the body of the deceased, Fulti. He identified his Inquest Report. He also confirmed that there were witnesses during the inquest.

An important witness in this case, is the Prosecution Witness No. 13, Lalit Chandra Roy, Ex-Pradhan, before whom the accused appellant, as per the prosecution case, confessed his guilt. This witness (PW 13) deposed that on 22nd February, 2001, in the morning, several villagers and respected persons assembled at his house. The accused appellant also came to his house. This deponent stated that he asked the accused appellant to speak the truth and disclose what exactly had happened. The local people also told the accused appellant to come out with the truth.

This deponent stated that he, thereafter, noticed changes in the facial expression of the accused appellant, which made him suspicious and so he further questioned the accused appellant. As per the evidence of this deponent, the accused appellant ultimately requested this deponent to go to a separate room along with him so that he could divulge the truth. Thereafter, in another room, the accused appellant confessed to this witness that he had killed the deceased, Fulti and had buried her dead body under the earth in a field behind his house. According to this witness (PW 13) after the accused appellant confessed his guilt before him, he sent the accused appellant to the Bhetaguri Police camp along with Gopal Barman, Krishna Kanta Roy and others and he himself followed. They took the accused appellant to the police camp. On arrival at the Bhetaguri Police camp, this deponent rang up Dinhata Police Station, after which the Police Officers arrived from Dinhata Police Station along with the BDO, Mr. Augustine Lepcha.

The Prosecution Witness No. 13, further deposed that the police men interrogated the accused appellant, whereupon the accused appellant admitted his guilt before them. Thereafter, the Police Officers asked the accused appellant to show the spot where the dead body had been kept hidden. This deponent stated that the police, along with others, including this deponent, went to the area at the back of the house of the accused appellant, that is, the house of his aunt Baccha Buri, with whom he lived. He further stated that the accused appellant showed the exact spot where he had buried the dead body of Fulti. The dead body was dug out from the spot shown by the accused appellant, under the direction of the police and the BDO. This deponent deposed that he could recognize the dead body as that of the deceased, Fulti, whom he had known.

The Investigating Officer, J.N. Tamang, who deposed as Prosecution Witness No. 14, stated that the Officer-in-Charge, Dinhata Police Station had received a FIR from Rajani Kanta Bakshi at about 14:30 Hrs on 22nd February, 2001 and registered Dinhata Police Station Case No. 37 of 2001 under Sections 302 and 201 of the Indian Penal Code against the accused appellant. The Officer-in-Charge entrusted this deponent with the task of investigation of that case. This deponent identified the formal FIR which was marked as Exhibit 7. This deponent also identified the endorsement of the Officer-in-Charge with his signature.

The Investigating Officer stated that on 22nd February, 2001, in the morning, the duty officer of Dinhata Police Station, Sub-Inspector P. Pradhan, received information over telephone from Head Constable Arjun Chandra Sarkar of the Bhetaguri Police Camp, pursuant to which G.D. Entry No. 1089/01 dated 22nd February, 2001 was recorded.

The police station was informed that the Anchal Pradhan of Ruer Kuthi had handed over the accused appellant to Bhetaguri Police Camp stating that the accused appellant had confessed to Lalit Chandra Roy and others that he had murdered his wife Fulti and buried her under the ground at a paddy field belonging to Baccha Buri.

This deponent stated that he along with the Officer-in-Charge, B.K. Chetri, Sub-Inspector M. Rahaman, the Circle Inspector, Dinhata and others left for the Bhetaguri Police Camp with a police force. On reaching Bhetaguri Police Camp they saw the accused appellant and apprehended him and the Circle Inspector, Dinhata examined him and interrogated him on the instruction of Officer-in-Charge, Dinhata Police Station.

This deponent arrested the accused appellant after examination and interrogation and he recorded his statement under Section 161 of the Criminal Procedure Code. He identified the said statement which was duly signed by him. This deponent deposed that the accused appellant had made a statement confessing how he had killed his wife, Fulti, and buried her under the ground, pursuant to which the police went to the spot and recovered the body. The dead body was recovered exactly from that place, that is, the paddy field behind the house of Baccha Buri.

This deponent deposed that a sweeper named Ajim Ali dug out the dead body in a highly decomposed form. He stated that he had prepared the inquest report and sent the report to Coochbihar MJN Hospital for post mortem examination. He identified the inquest report. He also identified the sketch of the place of occurrence prepared and signed by him. He also stated that he had seized articles found with the dead body beneath the ground under a Seizure List. He identified the Seizure List.

This witness stated that he had later arrested the other accused Nilima Barman. He further stated that he had examined available witnesses under Section 161 of the Criminal Procedure Code.

The Investigating Officer, at the conclusion of investigation, had submitted charge sheet against both the accused, that is, the accused appellant and the accused Nilima Barman, charging them of offences under Sections 302 and 201 of the Indian Penal Code.

In cross-examination, the Investigating Officer stated that the Police reached Bhetaguri Police Camp at about 9.30 am. The police went to Bhetaguri on the basis of receipt of information of commission of a crime. At that time there was no diary recorded. He stated that as per the order of the Officer-in-Charge he took up the initial inquiry at 11.45 am. He recorded the statement of the accused appellant under Section 161 of the Criminal Procedure Code at the Bhetaguri Police Camp. The formal investigation started at 14.30 hrs., after receipt of the FIR from the de facto complainant.

In cross-examination he also admitted that he did not take the dead body for DNA test to ascertain the identification of the dead body. He categorically denied that he had conducted the investigation perfunctorily. He denied that the dead body was not that of Fulti. He also categorically denied the suggestion that no dead body was recovered.

The Prosecution Witness No. 15, Monibhuson Roy only brought a certified copy of the GD No. 1089 dated 22nd February, 2001. He stated that the GD was written by Sub-Inspector, P. Pradhan, the then duty officer at Dinhata. He identified the handwriting of the said duty officer. His evidence is not of much importance.

The accused appellant Sadhu Barman and the accused Nilima Barman were examined under Section 313 of the Indian Penal Code. They denied all the allegations and pleaded innocence. The accused appellant has also given evidence in Court. He stated that his elder aunt Bachha Buri, who was eighty years old and single, resided at Ruer Kuthi. He stated that he used to live with his aunt at her house as she did not have any son. Her son had died and her three daughters were unmarried. The accused appellant deposed that his aunt had promised him some landed property, but no landed property was given to him. His aunt had arranged his marriage with the deceased, Fulti, whose parents were not alive. He deposed that Buddheswar and Maheswar were brothers of Fulti. They all lived at the house of their maternal uncle Rajani Bakshi, father of Samir Bakshi, that is, the de facto complainant.

The accused appellant deposed that his marriage had been held at the house of the de facto complainant. After marriage he started living at the house of his aunt Bachha Buri. He stated that the de facto complainant often took the deceased, Fulti to his home, where she used to stay for two weeks and sometimes even for a month.

He deposed that on 19th Magh, 1407, which was a Friday, the de facto complainant took Fulti to his home. He stated that he had good terms with the de facto complainant. The de facto complainant had advised him to get landed property of Bachha Buri transferred in his name or in the name of Fulti, but he had expressed his unwillingness to do so.

The accused appellant deposed that Fulti was to return to her matrimonial home after three days, but she did not do so. The accused appellant claimed that he went to the house of the de facto complainant, to look for Fulti, but she was not there. The accused appellant alleged that the de facto complainant had told him that Fulti had gone to the house of another relative and would go back to her matrimonial home from there.

The accused appellant stated that he searched the house of his father for his wife, but did not find her. He searched for her everywhere, but could not find her. After 20 days, the de facto complainant, Rajani Bakshi, Lalit Chandra Roy, Gobinda, Hema and others came to his aunt''s house at about 10 a.m. and started beating him with fists and blows, bamboo sticks and ''lathi'' and took him to Bhetaguri Police Camp, where he was handed over to police, who also assaulted him.

The accused appellant stated that a police party from Dinhata arrived at the aforesaid police camp at about 11 a.m. and started beating him. He alleged that he was handcuffed and roped, continuously beaten and taken in a police car to Ruer Kuthi, that is the residence of Baccha Buri. He was posted under a tree with two policemen and the police car went to some unknown place. The police returned four hours later and started beating him and took him to Dinhata Police Station and thereafter to Dinhata Court. During all this time, the police did not take his signature on any paper. He stated that after release on bail, he went to the house of his aunt Bachha Buri. She told him to go away as Rajani Bakshi, the de facto complainant had taken two bighas of land from her, in the names of the two brothers of Fulti.

In cross-examination, the accused appellant stated that he did not complain to the Magistrate or any one else about having been beaten by the villagers or by the police of the Bhetaguri Police Camp or of Dinhata. He also admitted that he did not lodge any complaint that his wife had gone missing.

The second Defence Witness, Ram Bhola Barman, father of the accused appellant deposed that 15 days prior to his arrest by the police, the accused appellant had come to his house in search of his wife but she was not there.

By the judgment and order under appeal, the Additional Sessions Judge, 1st Track Court, Dinhata held the accused appellant guilty and convicted him under Section 302/201 of the Indian Penal Code for committing murder of his wife, Fulti and causing disappearance of evidence by concealing her dead body, to screen himself from punishment. The other accused, Nilima Barman was found not guilty of the charges levelled against her, acquitted, released from her bail bonds and set free. The accused appellant was sentenced to suffer imprisonment for life with fine of Rs. 10,000/- and in default, further rigorous imprisonment of 3 years for offence under Section 302 of the Indian Penal Code and rigorous imprisonment of 5 years along with fine of Rs. 3,000/- and in default, further rigorous imprisonment for 1 year for offence under Section 201 of the Indian Penal Code. The punishments were to run concurrently. Being purportedly aggrieved by the said judgment and order, the accused appellant has filed this appeal.

Mr. Ganguly strenuously argued that there was no cogent evidence on the basis of which it could be proved, beyond reasonable doubt that the accused appellant had murdered his wife, or had destroyed evidence of such murder, by burying her dead body underneath a field, as alleged by the prosecution.

Mr. Ganguly submitted that the accused appellant had given evidence as defence Witness No. 1 and he had also been examined under Section 313 of the Indian Penal Code. The accused appellant had categorically denied the allegations levelled against him. Mr. Ganguly submitted that the accused appellant had categorically denied having made any statement to the police or to Lalit Chandra Ray, Ex Prodhan or to anyone else confessing that he had murdered his wife. He had denied that any dead body had been dug out, on the basis of any confessional statement made by him.

Mr. Ganguly emphatically argued that the prosecution had not been able to prove that the dead body claimed to have been recovered from Ruer Kuthi village from the field behind Baccha Buri''s house was that of the deceased, Fulti. There can be no doubt that in a criminal case, the accused has to be proved guilty beyond all reasonable doubt, as argued by Mr. Subir Ganguly appearing on behalf of the accused appellant. As held by the Supreme Court in Sangili Alias Sanganathan Vs. State of Tamil Nadu Represented by Inspector of Police reported in (2015) 1 C.Cr.LR (SC) 269 cited by Mr. Ganguly, there can be no doubt that where prosecution case rests on circumstantial evidence, the chain of evidence must be completed and point out to the culpability of the accused. The suspicion, however, strong, cannot be a substitute for proof, as held by the Supreme Court in Vijay Thakur Vs. State of Himachal Pradesh, (2014) AIRSCW 5625 .

The question is whether the accused appellant could have been held guilty of offences under Sections 302 and 201 of the Indian Penal Code, beyond all reasonable doubt, on the basis of the evidence adduced on behalf of the prosecution.

To substantiate his argument that the dead body could not have been identified, Mr. Ganguly referred to the cross examination of the Investigating Officer, Mr. J.N. Tamang (PW13) and in particular, to his admission that he had not got any D.N.A test conducted to ascertain the identity of the dead body.

Mr. Ganguly submitted that the two inquest reports of the dead body, prepared by the Block Development Officer, Dinhata and the Investigating Officer respectively showed that the body was highly decomposed. Mr. Ganguly argued that the body being highly decomposed, the same could not have, in the absence of any D.N.A test, been identified as that of the deceased, Fulti.

Mr. Ganguly, referred to the evidence of the Investigating Officer (PW 14) in cross-examination, where he stated that decomposed meant ''pacha gala''. This, according to Mr. Ganguly, showed that the dead body that had been recovered, was decomposed beyond recognition.

In support of his submission, Mr. Ganguly also referred to the evidence in cross-examination of the post mortem doctor, Dr. V. Kumar, (PW 11) stating that in case of partially decomposed corpses the body could be identified or recognized, which was not possible in case of highly decomposed bodies. Mr. Ganguly, argued that the body in this case was highly decomposed, as would appear from the inquest reports referred to above.

Mr. Ganguly submitted that, if the body itself was incapable of recognition, there could be no question of conviction of the accused appellant for murder. There is no proof that the wife of the accused appellant, Fulti Burman, is in fact dead. She might still be alive. Only a DNA test could have confirmed if the dead body was that of the accused appellant''s wife Fulti Burman, and this was not done.

Mr. Ganguly, argued that the conviction of the accused appellant is entirely based on alleged extra judicial confessions allegedly made by the accused appellant which were inadmissible in evidence.

Mr. Ganguly, argued that the Sessions Court erred in relying on the evidence of the Prosecution Witnesses, which was fraught with inconsistencies and contradictions. In any case, most of the Prosecution Witnesses were interested witnesses who were trying to falsely implicate the accused appellant with ulterior intent.

Mr. Ganguly, argued that the evidence of the accused appellant revealed that the relatives of Fulti Burman including the de facto complainant were trying to extort property from Baccha Buri and the entire exercise of implicating the accused appellant is nothing but an endeavour to extort property from the accused appellant and/or his aunt Baccha Buri.

There is ample evidence, including the evidence of the independent witness, Lalit Chandra Roy, Ex-Pradhan, which establishes beyond any iota of doubt that the dead body was dug out from the spot shown by the accused appellant, underneath a field, behind the house of Baccha Buri, where the accused appellant lived. The Prosecution Witness Nos. 2, 3, 4, 5, 6 and 8 have all confirmed that they had seen the body of the deceased being dug out from the spot shown by the accused appellant.

The submission made on behalf of the accused appellant that the dead body recovered from the field at the back of the residence of the accused appellant was not identifiable and could not have been identified, is apparently unsustainable. The Prosecution Witness No. 3, Samir Bakshi, cousin of the deceased, Fulti (her maternal uncle''s son), with whom the deceased lived in the same house, till her marriage, which was about 8/9 months before her death, had identified the dead body as that of his cousin sister.

Mr. Ganguly, argued that the evidence of Prosecution Witness No. 3, Samir Bakshi, who claimed to have recognized and identified the dead body of the deceased Fulti was of no significance as he had not been examined by the police under Section 161 of the Criminal Procedure Code. In support of his submission, Mr. Ganguly cited Vimal Suresh Kamble Vs. Chaluverapinake Apal S.P. and Another, AIR 2003 SC 818 : (2003) CriLJ 910 : (2003) 1 JT 122 : (2003) 1 SCALE 69 : (2003) 3 SCC 175 : (2003) 1 UJ 571 : (2003) AIRSCW 253 : (2003) 1 Supreme 256 .

A judgement is precedent for the issue of law that is decided. The judgement of the Supreme Court in Vimal Suresh Kamble (supra) is not an authority for the proposition that the evidence of a witness who had not been examined in course of investigation can never be taken into account.

In Vimal Suresh Kamble (supra) the Supreme Court, in consideration of the evidence of the various witnesses, arrived at the conclusion that the evidence of the prosecutrix in that case, could not safely be relied upon to base a conviction. After arriving at the finding that the evidence of PW 5, in that case, Constable Ganga Ram, was of no significance and also appeared to be untrue, the Supreme Court made a passing observation that this witness had been confronted with his statement made before the police in course of investigation, but the only fact sought to be proved through this witness, had not been stated by him in his statement made before the police. The judgment is distinguishable on facts.

In this case, it appears that the Prosecution Witness No. 3, Samir Bakshi had not been examined at all under Section 161 of the Criminal Procedure Code. In Alamgir Vs. State (NCT, Delhi), AIR 2003 SC 282 : (2003) 95 CLT 579 : (2003) CriLJ 456 : (2002) 9 JT 347 : (2003) 1 SCC 21 cited on behalf of the prosecution, the Supreme Court in effect held that evidence of a witness which is otherwise creditworthy and acceptable should not be rejected only because of omission of the police to record some of his statements under Section 161 of the Criminal Procedure Code. Any irregularity or even illegality in investigation ought not to be treated as a ground to reject the prosecution case as held by the Supreme Court in State of Rajasthan Vs. Kishore, (1996) 2 AD 283 : AIR 1996 SC 3035 : (1996) CriLJ 2003 : (1996) 1 Crimes 156 : (1996) 2 JT 595 : (1996) 2 SCALE 462 : (1996) 8 SCC 217 : (1996) 2 SCR 1103 .

Lalit Chandra Roy, an independent witness (PW13) also deposed that he knew the decease Fulti, and that he had recognized the dead body as that of the deceased, Fulti. There are at least two other witnesses, namely PW4 and PW5, who recognized the dead body of Fulti. The opinion of the post mortem doctor (PW 11) with regard to whether highly decomposed corpses could be recognized or not, cannot be construed as evidence to the effect that the dead body which had been recovered was not identifiable. In fact, this witness was neither asked whether the particular body on which he performed post mortem examination was recognizable, nor had he stated that the body was not recognizable.

The Inquest Reports also do not state that the body was totally decomposed or decomposed beyond recognition. On the other hand, the description of the dead body in the Inquest Report as also the post mortem report, and in particular, the identification of injury marks, suggest that the dead body was not decomposed beyond recognition.

The post mortem doctor (PW11) deposed that the dead body on which he performed the post mortem examination was decomposed and swollen. In cross-examination, obviously in reply to a specific question put by the cross-examining council, he answered that a partially decomposed body can be identified or recognized, which is not possible in case of highly decomposed bodies. A sentence in cross-examination, cannot be read in isolation. The sentence of this deponent that a partially decomposed body can be identified or recognized, which is not possible in case of highly decomposed body has to be read in the context of the rest of his evidence as also other evidence on record.

The degree of decomposition, as perceived by different persons, who handled the dead body, is relative and what is perceived by a lay person as highly decomposed may not be perceived by a medical expert as highly decomposed, to be beyond recognition.

First of all, in his examination, the PW11 said that he found the body was decomposed and swollen. He did not say that the body was totally decomposed. He did not also say that the body was decomposed beyond recognition. His assertion in cross-examination has to be understood in the context of what he had earlier stated.

At least 3 witnesses namely, Witness Nos. 3, 4 and 13, who were present at the time when the body of the deceased was dug out, clearly deposed that they were able to identify the body. None of this three witnesses were cross-examined as to whether the body was at all recognizable.

A careful perusal of the post mortem report along with the deposition of this witness indicates that the body was not decomposed beyond recognition. Nowhere in his evidence has the PW11 stated that the body was highly decomposed. The post mortem doctor did not state that the body was beyond recognition.

A lot of emphasis has been placed by Mr. Ganguly on a sentence in the deposition of the Investigating Officer (PW14) that decomposed means "pocha gola". However, this deponent was not cross-examined in this point. There was neither any suggestion to this deponent that the body was beyond recognition and he never stated anywhere that the body was beyond recognition.

In State of Gujarat Vs. Kishanbhai etc., (2014) AIRSCW 557 : (2014) 1 JT 508 : (2014) 1 SCALE 177 : (2014) 5 SCC 108 cited by Mr. Ganguly the Supreme Court deprecated the lapses in the investigation in that particular case observing that:-

"12.7.5 There has now been a great advancement in scientific investigation on the instant aspect of the matter. The investigating agency ought to have sought DNA profiling of the blood samples, which would have given a clear picture whether or not the blood of the victim Gomi was, in fact on the clothes of the respondent-accused Kishanbhai. This scientific investigation would have unquestionably determined whether or not the respondent-accused was linked with the crime. Additionally, DNA profiling of the blood found on the knife used in the commission of the crime (which the respondent-accused Kishanbhai had allegedly stolen from Dineshbhai Karsanbhai Thakore, PW 6), would have uncontrovertibly determined, whether or not the said knife had been used for severing the legs of the victim Gomi, to remove her anklets.

12.7.6 In spite of so much advancement in the field of forensic science, the investigating agency seriously erred in not carrying out an effective investigation to genuinely determine the culpability of the respondent-accused Kishanbhai.

There can be no doubt that scientific investigation should be carried out wherever necessary, to unearth a crime. However, the failure of the investigating officer to have a DNA test done has not vitiated the conviction, in view of the clinching evidence in this case, of eyewitnesses in whose presence the dead body was dug out.

It is well settled that conviction can be based on the evidence of relatives, if the evidence is otherwise creditworthy and acceptable. Minor discrepancies would not render the entire evidence unacceptable. It is for the Court to sift the chaff from the corn and find out the truth from the testimony of the evidence as held by the Supreme Court in Leela Ram (Dead) Through Duli Chand Vs. State of Haryana and Another, AIR 1999 SC 3717 : (1999) 8 JT 274 : (1999) 6 SCALE 477 : (1999) 9 SCC 525 : (1999) 3 SCR 435 Supp : (1999) AIRSCW 3756 : (1999) 8 Supreme 631 .

When the case of the prosecution rests on extra judicial confessions, the Court has, undoubtedly, to be extremely cautious, to ascertain whether any such extra judicial confession had in fact been made. However, where the Court is, on the basis of the evidence on record, satisfied that the accused did confess to his crime. There is no reason why the extra judicial confession should not be admissible in evidence.

Furthermore, as rightly argued on behalf of the prosecution, statement under Section 161 of the Criminal Procedure Code made by an accused might be relied upon in evidence, when such statement leads to recovery. In the instant case, there is ample evidence, including the evidence of a neutral independent witness, ie. Lalit Chandra Roy, which establishes beyond any iota of doubt that the dead body of the deceased, Fulti was recovered from the field behind the house of the accused appellant, from the spot shown to the police by the accused appellant.

The Prosecution Witness Nos. 2, 3, 4, 5, 6 and 8 all deposed that the dead body of the deceased was dug out in their presence from the spot shown by the accused appellant. The Investigating Officer (PW4) has proved the statement of the accused appellant, as recorded by him, which led to the recovery of the dead body of the deceased.

The evidence given by the accused appellant (DW1) and his father (DW2) does not inspire the confidence of this Court. The DW2 deposed that his son, that is, the accused appellant, had gone to his residence to look for his wife. The DW2 probably made an incorrect statement just to save his son from stringent punishment for murder of his wife. Alternatively, the accused appellant may deliberately have gone to his father''s house, pretending to look for his wife, just to avoid suspicion on himself.

The evidence of the accused appellant, stating that Baccha Buri had told him that she had to part with two bighas of land, which were transferred to the brothers of the deceased, Fulti, to save the accused appellant from stringent punishment, is unsupported by any documentary evidence. The defence did not examine Baccha Buri.

The accused appellant did not lodge any complaint with the police after his wife went missing. For the first time in Court, in course of trial, the accused appellant deposed that he had physically been tortured by the de facto complainant, Lalit Chandra Roy and others. He, however, did not lodge any police complaint against any of these persons. The evidence on record reveals that a large number of people had gathered at the Bhetaguri Police camp and later at Ruer Kuthi when the dead body of the deceased, Fulti was being dug out. Many independent witnesses were also present there. No one has given evidence of any torture on the accused appellant at the Bhetaguri Police camp or at the back of his aunt''s house at Ruer Kuthi.

The accused appellant has not made out any case of personal enmity with the Ex-Pradhan, Lalit Chandra Roy or any of the other independent witnesses for which they would falsely implicate the accused appellant. The evidence of the relatives also appears to this Court to be creditworthy and admissible in evidence.

We are of the view that the prosecution has established the guilt of the accused appellant beyond reasonable doubt. There is no infirmity in the judgment and/or order under appeal that calls for interference.

For the reasons discussed above, the appeal is dismissed and the judgment and order of the Sessions Court convicting the accused appellant of offences under Section 302 and 221 of the Indian Penal Code is affirmed. The order of sentence imposed on the accused appellant is also affirmed.

Photostat certified copy of this judgment, if applied for, be supplied to the parties expeditiously, subject to compliance with the requisite formalities.

Sahidullah Munshi, J.

I agree.