Sahadeb Dalui and Another vs State of West Bengal

Tapash Mookherjee, J.—The present Criminal Appeal is against the judgment and order dated 20.01.2007 and 22.01.2007 passed by the learned Additional District and Sessions Judge, 14th Court at Alipore in Sessions Trial Case No. 1 (6) 2004 convicting the Appellants of the charges u/s 394 and u/s 302/34 of the Indian Penal Code and sentencing the Appellants to suffer R.I. for 10 years each and to pay fine of Rs. 5,000.00 (rupees five thousand only) each I.D. to R.I. for 6 months more for the offence u/s 394 I.P.C. and to suffer life imprisonment each and to pay fine of Rs. 10,000.00 (rupees ten thousand only) each I.D. to suffer R.I. for 1 year more for the offence u/s 302 I.P.C. Both the sentence is to run concurrently.

The facts leading to the appeal, briefly stated, are as follows:-

One Sachin Barua a retired Government employee used to reside alone in a room in the premises No. 31/B Christopher Road, Calcutta. His wife predeceased him. On 04.08.2003 some local people noticed stinking smell coming out of the room where the said Sachin Barua used to reside. The door was found under lock and key from outside. One Anil Banerjee of the locality reported the matter to the local Police Station over telephone at 8.45 p.m. Having received such information S.I. Animesh Howladar of Tangra P.S. along with some other police personnel rushed to the spot and found the information correct. After going to the house, S.I. Animesh Howladar peeped inside the room opening a window and found the decomposed dead body of Sachin Barua lying on a cot inside the room, covered by mosquito net and quilt. S.I. Animesh Howladar with the help of others broke open the padlocks on the door and a grill gate and entered inside the room. As the gates were under lock and key from outside it was suspected that somebody had killed Sachin Barua and thereafter left the place after keeping the entrance doors of the room under padlocks from outside. After completion of some pre-enquiry acts the dead body had been removed to N.R.S. Hospital and thereafter, S.I. Animesh Howladar after return to the P.S. submitted a written F.I.R. narrating the aforesaid facts. On the basis of such F.I.R. Tangra P.S. case No. 201 of 2003 had been registered describing the offender to be ''unknown''. The case was endorsed to S.I. Sandip Ganguly for investigation. During investigation it came into light that the present Appellants namely Bulbuli alias Chaitali Dalui and her husband Sahadeb Dalui committed the murder of Sachin Barua, took away cash and other valuable articles from the house and left the place keeping the doors in the house under lock and key from outside. So, charge sheet u/s 394 I.P.C. and u/s 302/34 I.P.C. had been submitted against both the Appellants.

After submission of charge sheet the case had been committed to the Court of the learned Sessions Judge, South 24 Parganas and from there the case had been transferred to the Court of learned Additional Sessions Judge, 14th Court at Alipore. Considering the materials collected during investigation charges u/s 394 I. P.C. and u/s 302/34 I.P.C. had been framed against the Appellants. The Appellants denied the charges and claimed trial.

Plea of innocence and false implication was the only defence case of the Appellants.

Prosecution examined as many as 27 witnesses. Prosecution proved some documents and produced some materials which had been admitted in evidence.

One of the Appellants examined himself as a defence witness.

Partha Dey (P.W.-1) was a Police Constable attached to the Plan Making Section of D.D. Lalbazar at the relevant time. He stated in his evidence that on 09.08.2003 he accompanied S.I. Sandip Ganguly of Tangra P.S. to the premises No. 31/B Christopher Road, Calcutta and as per the direction of S.I. Ganguly, he prepared a rough hand sketch map of the said premises on the basis of which he had prepared a final plan subsequently. He proved all those plans prepared by him and all those plans had been admitted in evidence.

Pradip Pal (P.W.-2) was also a Police Constable attached to the Photography Section of D.D. Lalbazar at the relevant time. He stated in his evidence that on 05.08.2003 as per the verbal order of his superior he had gone to the premises No. 31/B Christopher Road, Calcutta, P.S. Tangra where he met S.I. Animesh Howladar of Tangra P.S. and as per the direction of S.I. Howladar he had taken 5 photographs of the said premises and of the dead body of an old man. He identified those 5 photographs with negatives.

One Jayanta Banerjee (P.W.-3) a resident of premises No. 31/B Christopher Road, Calcutta, was an employee of the Drug Control Office. Sri Banerjee stated that Late Sachin Barua of 31/B Christopher Road, Calcutta was known to him since long and that Sachin Barua was murdered. Sri Banerjee further stated that the deceased Sachin Barua after the death of his wife continued staying in the premises No. 31/B Christopher Road, Calcutta and his maid servant named Bulbuli alias Chaitali Dalui, who happens to be an Appellant in the case used to reside also in the same house with her child and that the husband of the said maid servant, namely Sahadeb Dalui, who is the other Appellant in the case used to visit the house occasionally and that the deceased used to treat the Appellants as his grand-children. Sri Banerjee added further that in the month of June, 2003 he purchased a kit bag for the deceased on request by the deceased.

P.W.-3 stated further that after return from the office on 04.08.2003 he came to know from some local people that a stinking smell was coming out from inside the residence of the deceased and immediately after getting such information he rushed to the house and found the grill gate and the door of the house under lock and key and that he and some of the persons of the locality accompanying him reported the incidence to the local Police Station over telephone. P.W.-3 stated further that after getting information Police came to the house of the deceased at about 8.50 p.m. and on instruction of the Police he had gone to N.R.S. Hospital with the dead body, and identified the dead body in the Hospital.

P.W.-3 also stated that in the morning of 01.08.03 at about 7/7.30 a.m. he found the Appellants leaving the place with two bags and their child and that on his asking the Appellant Bulbuli alias Chaitali Dalui replied that they were going to Panskura to meet her ailing mother-in-law then admitted in a Hospital at Panskura and that her master Sachin Babu had gone to Sachin Babu''s native village. P.W.-3 added further that he noticed a shadow of fear in the faces of both the Appellants while he was talking to the Appellants. P.W.-3 identified a kit bag, which, according to him, had been purchased by him for the deceased and subsequently watched by him being taken away by the Appellants.

Ashok Adhikary (P.W.-4) resides close to the house of the deceased and he used to call the deceased as ''Dadu''. P.W.-4 stated that the deceased used to work at Alipore Registry Office and the deceased voluntarily retired from his service after the death of deceased''s wife and that he used to sleep in the house of the deceased after the death of the deceased''s wife up to April, 2003. P.W.-4 stated further that the Appellant Bulbuli alias Chaitali Dalui used to work as a maid servant in the house of the deceased since April, 2003 and stay in the house. P.W.-4 stated further that in the night of the 31.07.2003, being called by the deceased he visited the house of the deceased and the deceased told him that the deceased received some money from his Office which the deceased wanted to put in the deceased''s Post Office Account on the next day and that on the next date when he had gone to the house of the deceased he found the Appellant Sahadeb locking the entrance gates in the house of the deceased and the Appellant Bulbuli alias Chaitali Dalui standing by the side of her husband Sahadeb. P.W.-4 also stated that he found two bags loaded with articles lying on the floor by the side of the Appellants and on asking by him the Appellant Bulbuli alias Chaitali Dalui informed that the deceased had gone outside for some days at the very dawn on that day and that they were going to Panskura Hospital to meet her mother-in-law. P.W.-4 stated further that on 04.08.2003 he came to know about the death of the deceased and that Police came and removed the dead body of the deceased from the room where the deceased used to reside in. P.W.-4 stated further that subsequently on 06.09.2003 the Appellant Sahadeb brought out a bunch of keys from a hidden place in the tile shade of the veranda opposite to the bed room of the deceased and handed over those keys to the Police. He added further that Police seized those keys in his presence and he signed on the seizure list as well as on the labels pasted on the seized articles.

Tarak Dutta (P.W.-5) is a newspaper vender and he used to sell newspaper to the deceased for about 20 years as claimed by him and he stated that he delivered newspaper in the house of the deceased on 01.08.2003, 02.08.2003 and 03.08.2003 by throwing newspapers in the house in usual course. However, during his cross examination he clarified that he did not deliver any newspaper in the house of the deceased on 02.08.2003 and he found the newspaper dated 01.08.2003 lying on the floor. P.W.-5 stated further that on that on 04.08.2003 while delivering the newspaper in the same way he got a stinking smell from inside the house and subsequently on 05.08.2003 he came to know from the local people that Sachin Babu had died. P.W.-5 identified the Appellant Bulbuli alias Chaitali Dalui as the maid servant in the house of the deceased.

Bimal Kanti Barua (P.W.-6) is a supplier of Homoeopathy Medicines. The deceased was a friend of his father as claimed by him. P.W.-6 stated that on 04.08.2003 having received some information he along with his brother and sister-in-law rushed to the house of the deceased where they found Police as well as a gathering of the local people. He stated further that in their presence Police had opened the lock of the grill gate as well as, of the wooden door of the house of the deceased and entered inside the room where they found the dead body of the deceased Sachin Babu in decomposed condition lying on a cot. P.W.-6 stated further that Police took necessary steps for the removal of the dead body and the Police seized some articles from the house on two dates, at first on 04.08.2003 and thereafter on 08.08.2003 and that on both those dates he signed on the seizure lists and the labels pasted on the seized articles.

Sakti Acharya (P.W.-7) was only tendered for cross examination and his cross examination was declined.

Tarak Nath Malakar (P.W.-8) was the landlord where the Appellants used to stay at the relevant time as claimed by Sri Malakar. Sri Malakar stated that on 29.08.2003 police came in his house and entered the room where the Appellants had been residing in and in his presence as well as in presence of one Soumen Basu the Appellant Bulbuli alias Chaitali Dalui brought out a bag from beneath the cot in which an amount of Rs. 63,800.00 (rupees sixty three thousand eight hundred only) in cash, some documents and garments were found. Sri Malakar stated further that all those articles along with the bag had been seized by the police in his presence and he signed on the seizure list and the labels pasted in the seized articles. Sri Malakar proved his signatures and identified the articles allegedly seized in his presence.

Dr. Prabhas Chandra Chakraborty (P.W.-9) held post mortem examination over the dead body of the deceased Sachin Barua. Dr. Chakraborty described the injuries and other conditions he found in the dead body and according to him death was due to effects of smothering anti mortem and homicidal in nature. He proved the P.M. report prepared and submitted by him. Sri Chakraborty subsequently submitted another report in which he opined that the time of death of the deceased was 96 hours to 120 hours prior to P.M. Examination which took place at 1.00 p.m. on 05.08.2003. So, according to him the time of death was any time in between 1.00 p.m. on 31.07.2003 and 1.00 p.m. on 01.08.2003.

Tapan Kumar Roy (P.W.-10) was a Police Constable who identified the dead body of the deceased during P.M. Examination.

Debabrata Das (P.W.-11) a staff of the District Registrar Office, South 24 Parganas produced the acquaintance Roll of their Office.

Tapan Kumar Mukhopadhay (P.W.-12) was the Deputy Inspector General (Registration), Range-I at the relevant time. He was posted as a District Registrar, Alipore on 28.07.2003. He issued a letter to the Police Authority furnishing certain information regarding the payments made to the deceased who was an employee of that Office. He proved the said letter and an entry in the acquaintance Roll of their Office.

Biswanath Mondal (P.W.-13) was only tendered for cross examination and defence declined to cross examine him.

Biplab Kumar Majumdar (P.W.-14) was a Government Examiner of questioned documents attached to C.I.D., West Bengal. He had examined the hand writing and signature in some documents sent to his Office by the Investigating Agency during the investigation and after examination he expressed his opinion in writing. He proved the said writing.

Anima Das (P.W.-15) was also tendered only for cross examination and her cross examination was declined by the defence.

Susanta Giri (P.W.-16) was a friend of the Appellant Sahadeb. He stated that once he asked for a loan of Rs. 30,000.00 (rupees thirty thousand only) from Sahadeb which had not been given by the Appellant Sahadeb instantly. Subsequently on 11.08.2003 the Appellant Sahadeb paid him Rs. 30,000.00 (rupees thirty thousand only) as a loan and a document in connection with that loan transaction had been executed between them, which, he proved during his evidence. He subsequently returned the said amount of Rs. 30,000.00 (rupees thirty thousand only) to the Police which had been seized by the Police through a seizure list as claimed by him. Learned Advocate for the Respondent raised a point as to why P.W.-16 had returned the loan amount to the Police. P.W.-16 himself stated that he returned the loan amount to the Police as directed by the Police. Moreover, no question had been put to S.I. Amit Rakshit who accepted the return of the loan amount from P.W.-16. So the point is irrelevant.

Sanjib Karak (P.W.-17) was only tendered for cross examination and during his cross examination he stated nothing important.

Dilip Kumar Thakur (P.W.-18) was a witness to the inquest and he proved his signature on the inquest report.

Dr. Asit Baran Ghosh (P.W.-19) was posted as an Emergency Medical Officer at N.R.S. Medical College and Hospital on 04.08.2003 and the dead body of the deceased was taken before him in the Hospital and he confirmed the death.

Sankar Ghosh (P.W.-20) was a manufacturer of bag having a small shop at Ramrajatala and the Appellant Sahadeb worked under him up to 30.07.2003, as claimed by him.

S.I. Sushil Choudhory (P.W.-21) performed Inquest over the dead body and he proved the Inquest report.

Prabir Lodh (P.W.-22) used to collect rent from the deceased on behalf of the landlord as claimed. He stated that the Appellant Bulbuli alias Chaitali Dalui used to work as a maid servant of the deceased and used to reside in the house of the deceased.

S.I. Jugal Kishor Dha (P.W.-23) was posted at Homicide Squad, D.D. Lalbazar. He stated that on 23.09.2003 he went to Panskura as per the order of his superior and instruction of S.I. Amit Rakshit as well, to enquire whether Sudhamoni Dalui, the mother-in-law of the Appellant Bulbuli alias Chaitali Dalui, was admitted in any Hospital or Nursing Home there within certain period. He stated further that he made a thorough enquiry and found that there was no State Hospital at Panskura and no such person was admitted in any Private Nursing Home at Panskura, in between 30.07.2003 and 29.08.2003 mother-in-law.

S.I. Animesh Howladar (P.W.-24) was posted at Tangra P.S. at the relevant time. On 04.08.2003 at about 8.45 p.m. he received an information over telephone that a stinking smell was coming out from inside a room in the premises at 31/B Christopher Road and after getting such information he along with his force rushed to the spot immediately after intimation to his superior and causing an entry in the G.D. Book in the P.S., as claimed by him. He stated further that having reached the spot he along with some local people gathering on the spot, verified the matter and found a dead body in decomposed condition lying inside a room locked from outside in the aforesaid premises. He added further that he broke open the locks, removed the dead body to the N.R.S. Medical College and Hospital and seized the broken padlock and some other articles found inside the room in presence of the witnesses and after completion of such preliminary acts he returned to the Police Station and submitted a suo motu complaint narrating the incidence. He also added that the photographer of D.D., Lalbazar came to the spot and as per his instruction took several photographs of the P.O. He recorded also statements of some witnesses as claimed by him.

S.I., Partha Pratim Banik (P.W.-25) was posted at Homicide Squad, D.D., Lalbazar at the relevant time. He stated that on 29.08.2003 having received an information from his source that the Appellant Bulbuli alias Chaitali Dalui was traced out in a place at Garden Reach Road, he rushed to the spot along with S.I., A. Ahmed, after observing all the official formalities. S.I. Banik, stated further that having been identified by his source he arrested the Appellant Bulbuli alias Chaitali Dalui with the help of a lady Constable accompanying him and thereafter they went to the house of the Appellant Bulbuli alias Chaitali Dalui and found the Appellant Sahadeb inside the room. S.I. Banik added further that the Appellant Bulbuli alias Chaitali Dalui had shown a kit bag having inscription "hours" lying beneath a cot and opening the bag they found bundles of currency notes amounting to Rs. 63,800.00 (rupees sixty three thousand eight hundred only) in total, some documents and garments, which had been instantly seized in presence of the witnesses. S.I. Banik proved the seizure list the labels pasted on it that the kit bag and other articles thus seized.

S.I. Sandip Ganguly (P.W.-26) was posted at Tangra P.S. at the relevant time and he registered the case on 05.08.2003 in the P.S. on the basis of a written complaint submitted by S.I. Animesh Howladar (P.W.-24). S.I. Ganguly stated further that as per the order of the O.C. of the P.S. he took up the investigation of the case and he narrated in detail as to what had been done by him during investigation. S.I. Ganguly added that investigation of the case had been subsequently handed over to D.D. Lalbazar.

S.I. Amit Rakshit (P.W.-27) was posted at Homicide Squad D.D., Lalbazar at the relevant time and he took over the further investigation of the case on 29.08.2003 as claimed by him. He narrated the acts done by him during investigation. S.I. Rakshit stated that he obtained specimen of signatures and writing of Sushanta Giri and the Appellant Sahadeb and sent them to the hand writing expert to verify the genuineness of a document of loan transaction between the said Sushanta Giri and the Appellant Sahadeb. S.I. Rakshit further stated that he obtained the return of Rs. 30,000.00 (rupees thirty thousand only) from Sushanta Giri which Sushanta Giri took as a loan from the Appellant Sahadeb.

S.I. Rakshit stated further that he interrogated and recorded the statement of the accused Sahadeb and took him to the P.O. on 06.09.2003 called for two neutral persons and went to the P.O. and at the P.O. the Appellant Sahadeb led them to an unused veranda in front of an unused room under lock and key and brought out four keys in a ring from a concealed place which was between the 1st row and 2nd row of the tiles of the roof. Sri Rakshit claimed further that he seized those keys on the spot in presence of the witnesses and prepared a seizure list to that effect. He proved the seizure list, his signatures on the labels and identified the seized keys. He also proved the discovery statement of the Appellant Sahadeb Dolui.

S.I. Rakshit added further that he had sent the seized padlocks and keys to the Forensic Department and that he collected report from the Office where the deceased used to work regarding the payments to the deceased prior to the death of the deceased. Sri Rakshit also narrated other acts regarding the investigation done by him and he ultimately submitted charge sheet in the case after completion of the investigation.

The Appellant Sahadeb Dolui examined himself as a Defence witness (D.W.-1). He stated in his evidence that he had landed properties which he transferred to different persons at different point of time and he proved the documents of those transfers. He also proved the demand notices served on him from a Bank. He claimed further that he has a leather bag business and a power tiller. During his evidence, his basic claim was that he had good source of income and the cash recovered from his house was his own money earned from different sources.

Learned Advocate for the Appellants pointed out that many of the facts stated by the witnesses during evidence are not found in the F.I.R. So, there may be manipulation, exaggeration etc. in respect of the facts stated by the witnesses. Learned P.P. opposed the view. It is not mandatory to include each and every set of facts in the F.I.R. That apart in the present case the F.I.R. had been filed not by any of the witnesses of the locality but by a Police Officer, i.e., S.I. Animesh Howladar (P.W.-24) and S.I. Animesh Howladar narrated in the F.I.R. what he saw after reaching the spot and what he did thereafter. So, I find no force in the aforesaid contention of the learned Advocate for the Appellants.

Learned Advocate for the Appellants also raised a point as to how is it possible that a man is killed in his house and nobody in the locality knew it for 3/4 days. The deceased was an old man and residing alone in the premises and the Appellants killed the deceased silently and thereafter left the place by putting padlocks in the entrance gates of the house as alleged by the prosecution. In such situation it is not possible for any person of the locality to know anything about the murder instantly or immediately after the murder.

Sachin Barua was a retired Government employee. His wife predeceased him and they had no child. So, he used to reside alone in a room at the premises No. 31/B Christopher Road, and he was known to local people. On 04.08.2003 some local people noticed that the room of Sachin Barua was locked from outside and a stinking smell coming out from inside the room. A person of the locality reported the incident to the Tangra Police Station over telephone after which a police team came to the spot to verify the facts. The said Police team being accompanied by some local people went to the spot and found the information correct. The leader of the Police team with the assistance of the local people broke upon the padlocks in the doors and having entered inside the room they found the decomposed dead body of Sachin Barua lying on his cot covered with some bedding articles. The dead body was immediately removed to the N.R.S. Medical College and Hospital. The post mortem examination revealed that the death of Sachin Barua was not a natural death but a Homicidal death caused by smothering. There is no serious dispute to the aforesaid facts.

It is the prosecution case that the Appellant Bulbuli alias Chaitali Dalui used to work as a maid servant and stay with her child in the house of the deceased and her husband, i.e., the Appellant Sahadeb used to visit the house occasionally. It is the further case of the prosecution that it was the Appellants who killed Sachin Barua out of greed and as such after killing Sachin Barua the Appellants together took away a huge amount of cash which was in the house and other valuable articles and left the place never to return thereafter.

To establish their case, prosecution have tried to prove a chain of events before and after the death of the deceased.

P.W.-3 and 4 are the neighbours of the deceased. Both of them stated that after the death of his wife the deceased used to live alone in his residence at 31/B Christopher Road and the Appellant Bulbuli alias Chaitali Dalui used to work as a maid servant and stay in the house of the deceased and the husband of the Appellant Bulbuli alias Chaitali Dalui, i.e., the other Appellant namely Sahadeb Dalui used to visit the house of the deceased occasionally. The facts have not been denied or disputed by the Appellants. On the contrary both the Appellants during their examinations u/s 313 Cr.P.C. clearly admitted the facts.

Admittedly the Appellant Bulbuli alias Chaitali Dalui used to work in the house of the deceased and she used to stay also there and her husband, i.e., the Appellant Sahadeb used to come to the house to meet her. P.W.-3 a close neighbour of the deceased stated in his evidence that on 01.08.2003 at about 7/7.30 a.m. he found both the Appellants in the street close to the house of the deceased, with two bags and leaving the place. He further added that on his asking the Appellant Bulbuli alias Chaitali Dalui stated that the deceased had gone to his native place and as such they were going to Panskura to see her ailing mother-in-law, admitted in a Hospital there.

P.W.-4 was also a close neighbour of the deceased. He stated that he had intimacy with the deceased and he used to treat the deceased as his grandfather. He stated further that in the evening of 31.07.2003 he went to the house of the deceased on call by the deceased and the deceased disclosed to him that the deceased wanted to deposit some cash which he received as a retrial benefit, in a Post Office, on the following morning and hence he again went to the house of the deceased on the following morning, i.e., on 01.08.2003. He stated further that on 01.08.2003 when he went to the house of the deceased in the morning at about 7/7.30 a.m. he found the Appellant Sahadeb putting padlocks in the entrance gates in the house of the deceased and that he also found the Appellant Bulbuli alias Chaitali Dalui with the Appellant Sahadeb on the spot and two kit bags loaded with the articles lying on the floor. P.W.-4 also stated that on his query as to where the deceased had gone the Appellant Bulbuli alias Chaitali Dalui replied that the deceased had gone somewhere outside for some days and that they were going to Panskura to meet her mother-in-law admitted in a Hospital there.

As discussed above P.W.-3 and 4 strongly corroborated each other on the point that the Appellants left the house of the deceased in the morning of 01.08.2003 after locking the gates in the house from outside. Learned Advocate for the Appellant raised a point as to how two different persons could meet another person at two different places at the same time. It has been mentioned above that P.W.-3 and 4 stated that they found the Appellants leaving the house of the deceased sometime between 7/7.30 a.m. and neither of them mentioned any specific time of such meeting. In fact, it was not possible also for them to mention the exact time and as such the aforesaid contention of the learned Advocate for the Appellant deserves no serious weightage. Be that as it may, save and except bare denial the defence have nothing to contradict the aforesaid evidence of P.W.-3 and 4. As mentioned earlier, while leaving the house of the deceased in the morning of 01.08.2003 the Appellant Bulbuli alias Chaitali Dalui informed P.W.-3 and 4 that they were going to Panskura to meet her ailing mother-in-law admitted in a Hospital at Panskura. P.W.-23 a Police Officer (not the I.O. of the case) stated that as per an instruction from his superior he had gone to Panskura and on enquiry there, he came to know that there was no Government Hospital at Panskura and that no woman in the name of Sudhamoni Dalui, i.e., the mother-in-law of the Appellant Bulbuli alias Chaitali Dalui was admitted in any Nursing Home at Panskura in between 30.07.2003 to 29.08.2003. Here also bare denial was the only defence case.

From the foregoing discussion it is firmly established that in the morning of 01.08.2003 both the Appellants had left the house of the deceased with two loaded kit bags with them, after putting padlocks in the entrance gates in the house of the deceased and while leaving the place the Appellants offered false excuses for their leaving the house of the deceased before the two neighbours of the deceased whom the Appellants met at the time of leaving the place. It should be noted here that within a very short period after the Appellants'' leaving the place the decomposed dead body of the deceased was recovered from the housed of the deceased and the house was found under lock and key from outside.

P.W.-5 a newspaper vendor, stated in his examination in chief that he used to sell newspaper to the deceased and he delivered newspaper in the house of the deceased for the last time on 01.08.2003. During his cross examination he further clarified that he had gone to the house of the deceased on 02.08.2003 also but as he found the newspaper dated 01.08.2003 still lying unattended, he stopped supplying newspaper in the house of the deceased.

Deceased''s dead body had been recovered and sent to the N.R.S. Medical College and Hospital on 04.08.2003/05.08.2003 and Post Mortem Examination of the dead body was performed on 05.08.2003 as stated by the Autopsy Surgeon (P.W.-9). P.W.-9 further clarified that the P.M. Examination was done at 1.00 P.M. On 05.08.2003 and according to him the death took place 96 to 120 hours before the P.M. Examination. P.W.-9 further added that the death took place 4 to 6 hours before the last meal. From those opinions of the Autopsy Surgeon it is found that the time of the death of the deceased was in between of 1.00 p.m. on 31.07.2003 and 1.00 p.m. on 01.08.2003.

It has been held earlier that in the morning of 01.08.2003 the Appellants had put padlocks in the front gates of the house of the Appellant and left the place offerings false excuses to the neighbours. And on 04.08.2003 the decomposed dead body of the deceased was recovered breaking open the padlocks in the front gates in the house which were put by the Appellants as stated by P.W.-3 and P.W.-4. This is definitely a serious circumstances going against the Appellants.

The Appellant Bulbuli alias Chaitali Dalui had been working as a maid servant and residing in the house of the Appellant. But after 01.08.2003 neither the Appellant Bulbuli alias Chaitali Dalui nor her husband Sahadeb was ever found anywhere near to the house of the deceased. In fact, both of them had been arrested from a house at Howrah a few months after the death of the deceased. It was the onus of the defence to explain as to why the Appellant Bulbuli alias Chaitali Dalui and her husband suddenly disappeared from the house of the deceased and never returned thereafter. This is another situation which speaks volumes against the Appellants.

S.I. Animesh Howladar (P.W.-24) stated that in the night of 04.08.2003 having received an information over telephone he along with other policemen from Tangra P.S. went to the house of the deceased at 31/B Christopher Road and found the house of the deceased under lock and key from outside. He stated further that in presence of the local people he broke open the padlocks in the entrance doors in the house and found the decomposed dead body of the deceased lying on a cot inside the house. P.W.-3, 5 and 6 also stated that the house of the deceased was found locked from outside and P.W.-6 stated further that the Police had broken open the padlocks and recovered the dead body of the deceased. P.W.-3 mentioned many names of the local people who had gathered outside the house of the deceased before the arrival of the Police and thereafter also. But all of them have not been examined in the case and according to the learned Advocate for the Appellants non-examination of all those witnesses is a weakness in the prosecution case. It is never the quantity but the quality of the witnesses which have to be always taken into account. So the aforesaid contention of the learned Advocate for the Appellant is not acceptable.

The I.O. of the case, i.e., P.W.-27 stated that on 06.09.2003 he interrogated and recorded a statement of the Appellant Sahadeb on the basis of which he took Sahadeb to the house of the deceased, called some local persons and in presence of all of them the Appellant Sahadeb brought out four keys in a ring from a hidden place, i.e., from between two rows of tiles over an unused veranda in front of some unused rooms. The discovery statement allegedly recorded has been proved and marked Exhibit-23. I.O. stated further that he had seized those keys discovered under a seizure list in presence of the witnesses and kept those keys inside an envelope under proper labelling. During his evidence I.O. identified also those keys. According to the I.O. the aforesaid discovery and seizure of keys had been done in presence of two local witnesses namely Md. Sarfuddin alias Suraj and one Ashok Adhikary. The said Ashok Adhikary has been examined as P.W.-4. He stated that on 06.09.2003, in his presence, the Appellant Sahadeb brought out a bunch of keys from the veranda with a tiled shed opposite to the room of the deceased and the Appellant Sahadeb handed over those keys to the Police present on the spot. P.W.-4 during his evidence identified his signature on the seizure list and on the label pasted on an envelope in which the keys after recovery had been kept. The aforesaid seizure list with the discovery statement of the Appellant Sahadeb has been marked Exhibit-4. It bears the signatures of the witness, i.e., P.W.-4. The signature of the Appellant Sahadeb does appear also in the said document.

According to the learned Advocate for the Appellants the discovery statement of the Appellant and the alleged discovery of the keys with the aid of such statement were not done as per the provisions of law. He raised a question as to why the alleged discovery statement by the Appellant Sahadeb was long after his arrest. The argument has no force as the discovery statement by the Appellant Sahadeb was within a reasonable and short period after his arrest. Be that as it may, both the P.W.-27 and P.W.-4 stated that the Appellant Sahadeb himself brought out the bunches of keys from a hidden place. That apart no illegality is found in the seizure list with the discovery statement (Exhibit-4). A recent decision reported in Bharati Tamang Vs. Union of India (UOI) and Others, . cited by the learned Public Prosecutor is relied on the point. In the decision, it has been clearly laid down that evidence obtained even by illegal search is also admissible and the sole test for admissibility is the relevancy of the evidence. In the present case, the evidence on the recovery of the keys is definitely relevant and as such admissible in evidence.

I.O. (P.W.-27) had stated that after seizure he sent the seized locks, keys hammers etc. to F.S.L. for examination under Memo. No. 3101/DD/HM, dated 28.10.2003. The report of the F.S.L. has been marked Exhibit-27 and it is found from the report that the padlocks found in the entrance gates in the house of the deceased and broke open by the Police could be operated by the keys brought out by the Appellant Sahadeb discussed earlier.

So, from the evidence discussed above it is found that the keys of the padlocks put in the entrance gates in the house of the deceased had been recovered from a hidden place and handed over to the Police by the Appellant Sahadeb himself. This is also a clinching circumstance against the Appellants.

Next comes the question of motive behind the murder. According to the prosecution, the deceased was a retired Government Employee and the deceased received a good amount in cash on account of Leave Encashment just a few days before his murder and that the receipt had deceased that money in his house. It was the further case of the prosecution that the Appellants killed the deceased to take away the aforesaid money.

During investigation police enquired in the office of the deceased regarding the payment of any money to the deceased immediately before the death of the deceased.

P.W.-12 was the Deputy Registrar, Alipore, at the relevant time, from where the deceased retired. P.W.-12 stated that the deceased received from his office a sum of Rs. 85,600.00 (rupees eighty five thousand six hundred only) in cash on 28.07.2003. P.W.-12 proved the relevant entry in the Acquaintance Roll (Exhibit-11). In column No. 2 of Exhibit-11 a cheque number is mentioned against the bill number. The signature of the deceased does appear also in the document but the term ''cash'' is not mentioned anywhere in the document. Learned Advocate for the Appellants emphatically argued that the document, i.e., Exhibit-11 does prove that the deceased received the value of Leave Encashment by cheque only and not in cash as claimed by the prosecution, and it is not proved that the cheque had been encashed and as such the prosecution''s case of the Appellants taking away the said cash has no meaning.

P.W.-12 was the Head of the Office and he stated that the deceased received the value of Leave Encashment in cash only and during cross examination he clarified that the cheque mentioned in Exhibit-11 was a cheque issued in favour of the District Registrar and not in favour of the deceased. It is true that the aforesaid fact is not found mentioned in Exhibit-11. But the clarification given by P.W.-12 should be accepted as correct as because P.W.-12 being the Head of the Office is supposed to know the finance rules and accounting methods followed in his office. It is to be noted here further that S.I. Amit Rakshit (P.W.-27) who investigated the case stated that during investigation he had verified that the cheque in question had not been deposited in the account of the deceased at State Bank of India.

P.W.-4 in his evidence stated that in the night of 31.07.2003 he met the deceased and the deceased told him that the deceased wanted to deposit the cash which he received from his Office, in the Post Office on the next date. So, the evidence of P.W.-12 and P.W.-4 considered together it is proved that the deceased received Rs. 85,600.00 (rupees eighty five thousand six hundred only) in cash from his Office on 28.07.2003 (Exhibit-11), i.e., a few days before the murder of the deceased. The police made a thorough inventory of the articles inside the house of the deceased but could not trace out the money in the house of the deceased. It should be mentioned here that S.I. Amit Rakshit (P.W.-27) stated that during his investigation in the case he had verified that the cash received by the deceased from Office a few days prior to his death had not been deposited in any of the accounts of the deceased in State Bank of India, Pottery Branch.

It has been mentioned earlier that after the murder of the deceased the Appellant Bulbuli alias Chaitali Dalui who used to work as a maid servant and reside in the house of the deceased disappeared furnishing false information to the neighbours who found her in the locality for the last time and the Appellant Bulbuli alias Chaitali Dalui was never found in the locality at any point of time thereafter.

P.W.-25 was posted at Homicide Section D.D., Lalbazar at the relevant time. He stated that on 29.08.2003 having received an information from his source rushed to Garden Reach Road, Howrah and on identification by his source intercepted the Appellant Bulbuli alias Chaitali Dalui on the road and arrested her. P.W.-25 stated further that he along with some local people went to the residence of the Appellant Bulbuli alias Chaitali Dalui and found the Appellant Sahadeb in that residence. P.W.-25 stated further that the accused Bulbuli alias Chaitali Dalui had shown them a kit bag having an inscription ''hours'' which he took out from underneath a bed and opening the bag they found an amount of Rs. 63,800.00 (rupees sixty thousand eight hundred only) in cash along with some papers and garments etc. P.W.-25 further added that he seized all those articles recovered in the house of the Appellants and prepared a seizure list in presence of the witnesses.

P.W.-8 was the landlord of the Appellants he stated that on 29.08.2003 Police arrested the Appellants and in their presence the Appellant Bulbuli alias Chaitali Dalui took out a bag from below a cot and handed over the bag to the Police from which the Police recovered an amount of Rs. 63,800.00 (rupees sixty three thousand eight hundred only) in cash and some garments and papers. P.W.-8 proved his signature on that seizure list and identified the articles those seized by P.W.-25 in his presence. So, P.W.-8 fully supported P.W.-25 on the point.

P.W.-3 stated that once he had purchased a kit bag for the deceased on request by the deceased and he identified the kit bag (Mat Exhibit-2) seized from the house of the Appellants to be that kit bag which he purchased for the deceased. Learned Advocate for the Appellants argued that the bag in question is a common item which is available in the market and so such identification by P.W.-2 bears no value. In the bag in question there was an inscription by which it can be identified. Moreover, P.W.-3 had no special cause to tell lie against the Appellants.

It is the prosecution case that the cash recovered from the house of the Appellants was the money received by the deceased from his Office and subsequently taken away by the Appellants after murder. On the other hand learned Advocate for the Appellants submitted that according to the prosecution case the deceased received from his Office a sum of Rs. 85,600.00 (rupees eighty five thousand six hundred only) but the cash allegedly found in the house of the Appellants was only Rs. 63,400.00 (rupees sixty three thousand four hundred only). He further argued that the Appellants gave a loan of Rs. 30,000.00 (rupees thirty thousand only) to one Sushanta Giri. So, the said amount of Rs. 30,000.00 (rupees thirty thousand only) added with the amount of Rs. 63,400.00 (rupees sixty three thousand four hundred only) allegedly recovered from the house of the Appellants don''t match with the amount allegedly received by the deceased from his Office. We find no force in such contention, because mathematical match is not of any serious importance in the case. It is also not wise to think that the deceased kept the money intact in a place or that the Appellants kept the money allegedly taken away from the house of the deceased intact in their home.

The Appellants during trial took up a specific case in their defence in respect of the money recovered from the house of the Appellants.

Appellants admitted that a sum of Rs. 63,400.00 (rupees sixty three thousand four hundred only) had been recovered from their house but it was the specific case of the Appellants that the money was their own money kept in their house. To show their financial strength the Appellants proved some deeds of transfer (Marked Exhibit A, A1 and A2).

Out of those three deeds a deed (Exhibit-A) was a deed of sale showing sale of 24 4/5 decimal of land by the Appellant Sahadeb with one other at a price of Rs. 24,800.00 (rupees twenty four thousand eight hundred only) the deed was executed in the year 2000. Exhibit-A/1 was a deed of gift executed by the Appellant Sahadeb and one other without any consideration. Exhibit A/2 was a deed of sale by which the Appellant Sahadeb sold away some quantum of land at a price of Rs. 14,000.00 (rupees fourteen thousand only) both the sale deeds were executed in the year 2000 and by the sale deed marked Exhibit-A the Appellant Sahadeb received his share being Rs. 12,400.00 (rupees twelve thousand four hundred only) only. So by those transactions the Appellant Sahadeb received only Rs. 26,400.00 (rupees twenty six thousand four hundred only) in total and that two in the year 2000. It cannot be, therefore, said that in the year 2003 the Appellants had a sound financial capacity. Had it been so the Appellant Bulbuli alias Chaitali Dolui did not require to work as a maid servant in the house of the deceased at a different place. The landlord of the Appellants, i.e., P.W.-8 stated that the Appellants never paid the house rent regularly. From the Exhibit B and B/1 which are the documents filed by the Appellants themselves, it is further found that the Appellants had taken loan from Mallabhum Gramin Bank, Hour Branch which the Appellants failed to pay in spite of repeated demand notices.

Appellant Sahadeb deposed as a defence witness (D.W.-1) and during his evidence he claimed to have a business of leather bag and a power tiller. But the Appellant failed to produce any document to substantiate any of those claims. On the other hand P.W.-20 stated that the Appellant Sahadeb used to work under him on contract basis only from May 2003 up to July 2003 only. P.W.-20 added further that on 16.08.2003 the Appellant Sahadeb again came to him for a job.

So, from the foregoing discussion it is clear that the financial condition of the Appellants was never sound as claimed by the Appellants.

P.W.-16 is well known to the Appellant Sahadeb. P.W.-16 stated that once he asked for a loan of Rs. 30,000.00 (rupees thirty thousand only) from the Appellant Sahadeb but Sahadeb did not pay at that time. Subsequently, on 11.08.2003 the Appellant Sahadeb himself expressed his willingness to pay the aforesaid amount as loan and accordingly the loan was paid and a hand note was executed by P.W.-16 and the Appellant Sahadeb. The original document of such loan transaction had been produced by P.W.-16 (Mat. Exhibit-XXI/1) and its carbon copy had been also seized from the house of the Appellants. Specimen hand writing and signatures of both the Appellants Sahadeb and P.W.-16 had been sent to the hand writing expert who opined that the document was genuine (Exhibit-13). The Appellant Sahadeb during his examination u/s 313 Cr.P.C. (Question No. 37) clearly admitted that he had paid the loan to P.W.-16 as claimed by P.W.-16.

As discussed earlier, the Appellants were not persons with resources at the relevant time. In fact, the Appellant Bulbuli alias Chaitali Dolui used to work as a maid servant in the house of the deceased and the Appellant Sahadeb took loan from a Bank and demand notice for the repayment of those loans had been issued. P.W.-16 stated that at the first instance the Appellant Sahadeb did not pay him the loan asked for but subsequently on 11.08.2003, i.e., within a few days after the death of the deceased the Appellant Sahadeb himself offered to pay the loan and in fact he paid the loan on that day to the P.W.-16. It was a view of the learned Advocate for the Appellants that the story of the loan transaction was absurd as how P.W.-16 had been spotted by the Investigating Agency has not been explained. Be that as it may the Appellant Sahadeb during his examination u/s 313 Cr.P.C. admitted in clear language that he had paid a sum of Rs. 30,000.00 (rupees thirty thousand only) as a loan to P.W.-16.

According to P.W.-16 he had returned the aforesaid amount of loan subsequently to the Police as demanded. Learned Advocate for the Appellants raised a question as to why Police demanded the repayment of the loan amount or as to why P.W.-16 returned the money to the Police taking loan from other sources. The points are of no importance especially when the Appellant Sahadeb himself admitted having paid the loan. Source of such huge amount has not been explained by the Appellant. It is also, therefore, a clinching evidence against the Appellants.

Admittedly there is no eyewitness of the alleged murder. So prosecution have tried to prove some circumstances to prove their case as a whole. The circumstances thus proved are as follows:

a) That the deceased Sachin Barua an old man used to reside in his house at 31/B Christopher Road alone as he was a widower and without any issue.

b) That the Appellant Bulbuli alias Chaitali Dalui used to work as a maid servant and stay in the house of the deceased with her child and her husband, i.e., the other Appellant Sahadeb used to visit the house occasionally.

c) The deceased received a considerable sum in cash from his Office on account of retiral benefit and the said cash was kept inside the house by the deceased.

d) That the deceased requested one of his intimate neighbours on 31.07.2003 to come in the following morning to accompany the deceased to deposit the aforesaid cash in the account of the deceased in a Post Office.

e) That the neighbour of the deceased who was requested by the deceased to come to the house of the deceased went to the house of the deceased as requested, in the morning of 01.08.2003 and he found the Appellants putting padlocks in the entrance gates in the house of the deceased and leaving the place with two bags. Another close neighbour of the deceased also found the Appellants leaving the locality with two kit bags loaded with articles.

f) While leaving the house of the deceased and the locality the Appellants were found by two neighbours and on asking by them the Appellant Bulbuli alias Chaitali Dalui disclosed that they were going to Panskura to meet her ailing mother-in-law admitted in a Hospital there. In an enquiry by the Police, it was found that such information was totally false.

g) The Appellant Bulbuli alias Chaitali Dalui had been working as a maid servant and residing in the house of the deceased, but after her leaving the house of the deceased in the morning of 01.08.2003 the Appellants disappeared and never returned in the house of the deceased or in the locality not even to enquire about the deceased, although the deceased used to treat them as grand-children.

h) That in the night of 04.08.2003 on an information by a neighbourer of the deceased, Police came to the house of the deceased, broke upon two padlocks found in the entrance gates of the house and found the decomposed dead body of the deceased lying in the cot of the deceased covered by some bedding items like mosquito net quilt etc. and the dead body was immediately removed to the N.R.S. Medical College and Hospital. The money received by the deceased from his Office 2/3 days before the death of the deceased was not found in the house of the deceased by Police on search.

i) That on Post Mortem Examination the cause of death of the deceased was found to be Homicidal by smothering ante-mortem in nature and the time of death as opined by the Autopsy Surgeon was sometime in between 1.00 p.m. on 31.07.2003 and 1.00 p.m. on 01.08.2003.

j) A few months after the incident both the Appellants had been arrested from their house in a place at Howrah and a huge amount in cash had been recovered from a kit bag kept beneath the cot and the kit bag has been identified by a witness to be the bag purchased by him for the deceased.

k) Within a few days after the death of the deceased the Appellant gave a loan of Rs. 30,000.00 (rupees thirty thousand only) to one of his friends, although the Appellant failed to give such loan to the witness earlier.

l) The Appellants by defence evidence tried to prove that they had the financial capacity to keep an amount of Rs. 63,400.00 (rupees sixty three thousand four hundred only) to keep in home and pay loan of Rs. 30,000.00 (rupees thirty thousand only) to a witness. But the Appellants miserably failed to prove their claims.

m) The Appellant Sahadeb led the Police to discover the keys of the padlocks found in the entrance gates in the house of the deceased from a hidden place inside the house of the deceased.

n) The motive behind the murder was the greed for the money kept in the house of the deceased which has been proved.

All the fourteen circumstances mentioned above have been firmly proved by the prosecution in the case.

In a Criminal trial the defence has generally no burden to prove their innocence and it is the prosecution who has to prove there is a case against the accused beyond all doubts. But in some circumstances the defence has to prove certain facts which are exclusively in their knowledge. The defence has also to explain if and when some unusual conduct on the part of the accused persons is found on the record.

As discussed earlier in detail, the Appellants while leaving the house of the deceased furnished false information to the neighbours in respect of the reasons for their leaving the house of the deceased. Not only that the Appellants after leaving the house of the deceased disappeared from the locality and never returned thereafter. The Appellants had no explanation whatsoever regarding such unusual conduct on their part. This is definitely also a circumstances which strengthens the prosecution case to a great extent.

As mentioned earlier the defence has generally no burden to disprove any fact proved by the prosecution or any other circumstances relating to the offence alleged. But if the defence takes as a burden on their own shoulder to prove certain facts in support of their innocence, the onus has to be discharged by the defence.

In the present case an amount of Rs. 63,400.00 (rupees sixty three thousand four hundred only) in cash had been recovered from the house of the Appellants and it has also been proved as well as admitted by the Appellants that the Appellants had given loan of a sum of Rs. 30,000.00 (rupees thirty thousand only) to a witness just a few days after the death of the deceased. The Appellants by adducing oral as well as documentary evidence tried to make out a case that they had the financial capacity to keep such a huge amount in cash in their house or to give a loan mentioned above, but the Appellants miserably failed to prove such claim. Such failure is obviously an additional link in the prosecution case.

So, from what has been discussed above it is found that the facts proved by the prosecution by different relevant circumstances do form a complete chain like mathematical certainty leaving not even the slightest scope for the Appellants to escape from the liability of the murder of the deceased.

Learned Advocate for the Appellants have cited some decisions of the Hon''ble Apex Court which are now required to be noted.

(2012) 3 SCC (Cri) 146, Sahadevan and another Vs. State of Tamil Nadu, . In this case extra judicial confession and its evidentiary value, hearsay evidence, last seen together theory have been dealt with. But no such point is involved in the present case.

Sampath Kumar Vs. Inspector of Police, Krishnagiri, . In this case inconsistent versions discrepancies and contradictions in evidence have been dealt with. In the present case no major contradictions in the statements of the witnesses has been pointed out, nor any inconsistency or absurdity is found in any of the statements of the witnesses. Motive has been proved in the case. So, this judgment has no application in the present case.

Aftab Ahmad Anasari Vs. State of Uttaranchal, . In this case it has been held that suspicion, however, strong cannot take the place of legal proof. It has been further held in this case that combined effect of all the circumstances proved in a case should be considered and the circumstances proved should exclude every hypothesis except the guilt of the accused. In the present case prosecution has proved their case beyond all doubts by substantial evidence as laid down in this judgment by the Hon''ble Apex Court.

Sunil Rai @ Paua and Others Vs. Union Territory, Chandigarh, . In the present case, the theory of last seen together, extra judicial confession its value, are found discussed, but no such point is involved in the present case as mentioned earlier.

Santosh Kumar Singh Vs. State thr. CBI, . In this case punishment for the offence of murder and rape has been discussed and focused, laboratory test of blood samples, DNA tests and the value of the expert''s evidence on the above mentioned subjects have also been discussed. None of the aforesaid points being involved in the present case, the judgment is of no use for the prosecution. On the contrary Para 41 and Para 42 of the judgment lend support to the prosecution case.

Sharad Birdhichand Sarda Vs. State of Maharashtra, . In this judgment, the only point relevant in the present case, is the principles for conviction on the basis of substantial evidence and the facts proved in the present case satisfy the criteria stated in the judgment.

So, none of the decisions cited by the learned Advocate for the Appellants come to any help to the Appellants.

The last point raised by the learned Advocate for the Appellants was that the charge u/s 394 I.P.C. has not been properly framed as no property of the robbery or manner of the commission of robbery has been described in detail. According to the learned Public Prosecutor such details are not necessary in law. Charges have been framed in the case u/s 211(1)(2) Cr.P.C. and the offences in both the charges have been described by names. So, further details were not necessary. That apart, the Appellants have not been prejudiced in any way due to the omission of the description of the property of robbery in the charge u/s 394 I.P.C.

To conclude, in the present case the prosecution has proved a compact and complete chain of circumstances against the Appellants which leads to the only conclusion that the Appellants committed the murder in question and no other alternative hypothesis whatsoever can be inferred from any of those circumstances.

So, the Prosecution has successfully proved their cases beyond all reasonable doubts against the Appellants. Learned Trial Court has, therefore, rightly found the Appellants guilty of the charges u/s 394, 302/34 I.P.C. The punishments ordered are also not disproportionate. No interference in the judgment and order of the Trial Court is, therefore, called for. The appeal is accordingly dismissed and the judgment and orders dated 20.01.2007 and 22.01.2007 passed by the learned Additional District and Sessions Judge, 14th Court at Alipore in Sessions Trial Case No. 1 (6) 2004 are hereby affirmed.

Urgent certified photocopy of this judgment, if applied for, be supplied to the learned Advocates for the parties upon compliance of all formalities.