Sarajendu Deb VsThe State of Tripura

S.C. Das, J.—This criminal appeal is directed against the judgment and order of conviction and sentence dated 23.03.2013 passed by learned Addl. Sessions Judge(Court No. 5), Agartala, West Tripura, in Sessions Trial Case No. 34 of 2012, whereunder, the accused appellant was charged for an offence punishable u/s 302 of IPC and at the conclusion of trial learned Addl. Sessions Judge found the accused guilty of committing offence punishable u/s 304 Part-II of IPC and sentenced him to suffer RI for seven years.

Felt aggrieved, the present appeal is filed.

Heard learned counsel, Mr. B. Majumder for the appellant and learned Addl. P.P., Mr. R.C. Debnath for the State respondent.

Prosecution case in short is that on 09.08.2011 at evening time, about 6.00 pm Sankar Tubit, son of the informant Smt. Santi Tubit(PW2), went out from his house for the house of Kamala Bhil(PW8) with a view to get treatment of his leg through charms and incantations. In the evening, the accused appellant, Sarajendu Deb alias Chanu(aged about 55 years) and the deceased Sankar Tubit, both consumed alcohol in the house of Kamala Bhil and after taking alcohol both left the house of Kamala Bhil at evening time. At about 9.00 pm Sarajendu Deb, the accused went to the house of Santi Tubit and informed her that Sankar Tubit took alcohol and that he tried to take Sankar to his house but Sankar did not return and that he had scuffling with Sankar and Sankar was lying on the road. On that information Santi Tubit and the wife of Sankar, namely Rinki Tubit(PW7) requested accused Sarajendu to accompany them to the place where Sankar was lying but Sarajendu refused to accompany them and left for his house. Sankar Tubit did not return home on that night. It was raining at night and so Santi Tubit and Rinki Tubit could not go out to search out Sankar. It is also the case of the prosecution that Sankar after consuming alcohol sometimes used to stay away from the house in the state of intoxication. On 10.08.2011 in the morning Santi Tubit and Rinki Tubit went out in search of Sankar and they got him lying dead near the house of Kamala Bhil on the pathway leading towards the house of Kamala Bhil from the village road. There was a deep cut injury above the right elbow joint of Sankar Tubit. In the meantime, somebody informed the police over telephone and that information was entered in Lefunga P.S. vide G.D. Entry No. 277 dated 10.08.2011 and PW10 S.I. Siti Kantha Bardhan of Lefunga P.S. left for Bajalghat, the place of occurrence and he started investigation. At that time Santi Tubit(PW2) lodged the FIR in writing written by PW3, Ranjan Roy narrating the fact what had happened on the previous night. Police prepared inquest report over the dead body, seized the bloodstains from the spot and thereafter sent the dead body for postmortem examination.

3.1. In course of investigation, I.O.(PW10) arrested accused Sarajendu Deb and while he was in custody of the police on 13.08.2011 the accused made a disclosure statement that he will be able to hand over the dao by which he inflicted the blow on the right arm of the deceased and the wearing apparel he was wearing at the time of occurrence. He led the police in the presence of PWs. 4, 5 and 9 to his house and handed over the dao with which he alleged to have inflicted the blow on the right arm above elbow joint of the deceased and the shirt and lungi which he was wearing at the time of occurrence. I.O. seized the same by preparing seizure list and the seized dao was proved as Exbt. MO.1 and the lungi and shirt were proved as Exbt. MO.2 series. The alleged recovery of dao and wearing apparels of the accused was video-graphed and still photographs were also taken by PW9 at the instance of the I.O.

3.2. It is also alleged that about 4/5 days before the occurrence, on a day, PW2 Santi Tubit was enjoying television programme in her house and at that time the accused-appellant Sarajendu entered in the house of Santi Tubit and hugged her which was found by Sankar Tubit, son of Santi and there was a quarrel between Sankar and Sarajendu and Sankar assaulted Sarajendu.

3.3. It is the case of the prosecution that Sarajendu alias Chanu along with the deceased, Sankar Tubit consumed alcohol in the house of Kamala Bhil(PW8) at evening time and thereafter both of them came out from the house of Kamala Bhil and, on the way, in the passage, leading towards the house of Kamala Bhil from main road, Sarajendu assaulted Sankar Tubit striking dao blow on the right arm above elbow joint, causing a serious injury and because of excessive bleeding throughout the night Sankar Tubit had died of haemorrhagic shock.

3.4. Prosecution, to prove the charge examined 11(eleven) witnesses and also proved several documents and materials which were reflected in the judgment of the trial Court. After closure of the prosecution evidence, the accused-appellant was examined u/s 313 of CrPC and in his turn he declined to adduce any defence evidence. Defence case is nothing but a bare denial of the prosecution case. No specific defence case pleaded or suggested by the defence.

Admittedly, there is no eyewitness of the occurrence. Prosecution case is based on the circumstantial evidence alone. Circumstantial evidence means communication of facts creating the entire network from which there is no escape for the accused because the facts taken as a whole do not admit any inference except the guilt of the accused.

4.1. The apex Court in the recent case of Dharam Deo Yadav Vs. State of U.P., has observed that circumstantial evidence is evidence of relevant facts from which, one can, by process of reasoning, infer about the existence of facts in issue or factum probandum. Each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. Even when there is no eye-witness to support the criminal charge, but prosecution has been able to establish the chain of circumstances which is complete leading to inference of guilt of accused and circumstances taken collectively are incapable of explanation on any reasonable hypothesis save of guilt sought to be proved, accused may be convicted on the basis of such circumstantial evidence.

4.2. The apex Court in the case of Bodh Raj @ Bodha and Others Vs. State of Jammu and Kashmir, has observed:

"For a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed. There is no doubt that conviction can be based solely on circumstantial evidence but the conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are:

the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ''must'' or ''should'' and not ''may'' be established;

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency;

(4) they should exclude every possible hypothesis except the one to be proved; and

(5) there must be a chain of evidence so compete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

The first circumstance of which the prosecution has lead evidence is that on 09.08.2011 at evening time, about 6.00 pm Sankar Tubit, son of Smt. Santi Tubit(PW2) and husband of Rinki Tubit(PW7) went out of his house for the house of Kamala Bhil(PW8) to get treatment of his leg through charms and incantations. At about 9.00 pm, accused Sarajendu Deb came to the house of Sankar Tubit, i.e. the house of the PWs 2 and 7 and reported them that Sankar had consumed alcohol and that he tried to take Sankar with him to the house from the house of Kamala Bhil but Sankar refused and had a quarrel with him and that Sankar was lying near the house of Kamala Bhil. Both PWs 2 and 7 requested Sarajendu to accompany them to bring back Sankar but Sarajendu refused to accompany them and he left for his house. FIR has been proved as Exbt. 1 which was written by PW3 as per the statement of PW2 Santi Tubit. In the FIR she stated that at about 9.00 pm the accused Sarajendu came to her house after consuming alcohol and informed her that her son Sankar Tubit also consumed alcohol and that he had an altercation and scuffling with Sankar to take him back to his house but could not and he also stated that Sankar was lying on the road. The informant also stated that she requested the accused to accompany her to the place where Sankar was lying but the accused refused to do so and left for his house.

5.1. In her deposition PW2 stated that at about 9.00 pm Chanu(Sarajendu) came to her house and informed her that he requested Sankar Tubit to return home from the house of Kamala Bhil but Sankar refused and Chanu also told her to bring Sankar from the house of Kamala Bhil and thereafter he left for his house. Chanu also told that he had a quarrel with Sankar in the house of Kamala Bhil. She further stated that she requested Chanu to accompany her to bring Sankar but he did not agree and went away.

5.2. PW7, wife of Sankar stated that at about 9.00 pm Sarajendu Deb came to her house and informed them that Sankar Tubit after consuming alcohol was lying near the house of Kamala Bhil and that he tried to bring him to his house but Sankar refused. They requested Sarajendu to accompany them to bring back Sankar but he refused and left for his house.

5.3. The accused in his examination u/s 313 of CrPC in response to question No. 28 which refers to the relevant part of the evidence of PW7 has admitted the fact that on 09.08.2011 at about 9.00 pm he went to the house of Sankar Tubit and informed PW7 that Sankar Tubit was lying near the house of Kamala Bhil after consuming alcohol and that he tried to bring back Sankar but Sankar refused. In response to question No. 2 which refers to the evidence of PW2 in respect of the visit of the accused on that night he simply stated that he had nothing to say.

5.4. The accused therefore admitted the fact that on the night of occurrence at about 9.00 pm he came to the house of the deceased and informed PWs 2 and 7 that Sankar after consuming alcohol was lying near the house of Kamala Bhil on the road. He was also found to have consumed alcohol.

5.5. The fact that the information regarding Sankar was given by the accused on 09.08.2011 at about 9.00 pm to PWs 2 and 7, i.e. the mother and wife of Sankar, has therefore been proved which has not been shaken in the cross-examination of the witnesses or otherwise.

The next circumstance which the prosecution claimed to have proved is that both the accused Sarajendu alias Chanu and the deceased, Sankar consumed alcohol in the house of PW8, Kamala Bhil on the evening of 09.08.2011. Let us first see the evidence of PW8, Kamala Bhil.

6.1. PW8 in her deposition stated that she knew Sankar and Sarajendu alias Chanu of her locality. About a year ago Sankar Tubit died. On the previous afternoon of the death of Sankar, at about 3.00/4.00 pm, Sankar Tubit and Chanu came to her house and they sat in her courtyard under a tree and both of them consumed alcohol and thereafter in the evening both left her house. On the following morning while she went to the field of nearby school she found the dead body of Sankar Tubit lying there. It was in the northern side of school, her house was situated. She also found that the wife and mother of Sankar Tubit were crying there. Her house was situated in the northern direction at about 150/200 cubits from the place where the dead body of Sankar Tubit was lying. On query by the local people about Sankar she told that Sankar returned from her house in the previous afternoon on alive condition.

6.2. PW8 is an illiterate lady. She put her L.T.I. in her statement recorded by the trial Judge. What transpires in her evidence is that Sankar and Chanu both came to her house in the afternoon at about 3.00/4.00 pm and both of them consumed alcohol and thereafter they left together. This part of the evidence of PW8 has not been shaken in cross-examination or otherwise. Postmortem report, i.e. Exbt. 12 shows that in the stomach of the deceased digested scanty amount of food articles with alcohol like smell was found. This corroborates the evidence of PW8 that both Sankar and the accused consumed alcohol in the house of PW8 and thereafter they went out together.

6.3. Learned counsel, Mr. Majumder for the accused appellant has submitted that PWs 2 and 7 have stated that on 09.08.2011 in the evening time, about 6.00 pm, Sankar Tubit went to the house of Kamala Bhil, whereas, PW8 stated that in the afternoon at about 3.00/4.00 pm Sankar and accused Sarajendu alias Chanu consumed alcohol in her house and so both the set of witnesses are in serious contradiction in respect of time is concerned and therefore the evidence of both the set of witnesses is liable to be disbelieved.

6.4. No doubt, PWs 2 and 7 have stated that in the evening at about 6.00 pm Sankar left the house for the house of Kamala Bhil whereas PW8 stated that in the afternoon at about 3.00/4.00 pm both Sankar and Sarajendu consumed alcohol. As I find PWs 2 and 8 are totally illiterate and they put their thumb impression in the deposition sheet. PW7 somehow could write her name. Such rustic village people cannot be expected to have knowledge of exact time. One or two hours this way or that way cannot fall for consideration to through doubt on the story narrated by the witnesses who are rustic village people and who may not be so much concerned like urban people about the exact time. The evening or afternoon for the illiterate village people makes no difference. The time stated by the witnesses mentioning particular hour therefore in the facts and circumstance of this case where the witnesses are illiterate and rustic shall be ignored since the factual aspect is found to be very cogent, specific and authentic.

6.5. From the evidence of PWs 2, 7 and 8 and from the statement of the accused made while examination u/s 313 of CrPC it is evident that the deceased Sankar Tubit was last seen alive with accused and according to the accused himself he left the deceased on the road and thereafter in the following morning the deceased Sankar Tubit was found dead. The circumstance of last seen together has therefore been established with all reasonable certainty and beyond reasonable shadow of doubt.

The next circumstance which the prosecution relied is that the accused made a statement in respect of the weapon of offence by which he inflicted the injury and his wearing apparel which he was wearing at the time of occurrence and the recovery of the same at his instance from his house. Record shows that he was produced under arrest in the Court of Judicial Magistrate, First Class, Agartala on 11.08.2011 and he was remanded to police custody for four days. On 13.08.2011 at about 9.15 am on interrogation by I.O. the accused in the presence of PWs 4, 5 and 9 made a confessional statement about the occurrence and he made the disclosure statement that he will be able to hand over the weapon of offence, i.e. the dao and his wearing apparels and he led the police along with those witnesses to his house and put out the dao which was kept under his cot and also his wearing lungi and shirt and handed over the same to the police officer which the police officer seized in presence of the witnesses.

7.1. The accused in his examination u/s 313 of CrPC in response to question Nos. 17 and 18 which refers to the evidence of PW4 and question Nos. 36 and 37 which refers to the evidence of PW9 and question No. 40 which refers to the evidence of PW10 has admitted the fact that he led the police to his house and also admitted the alleged recovery of dao but he stated that the darogababu brought out the dao from his hut.

7.2. PW4 in his deposition stated that about ten months ago on a day in the morning, a 27th of Sravana(Saturday) he went to Lefunga P.S. at about 8.30 am. He found Sarajendu Deb and darogababu were talking. Darogababu told him to hear Sarajendu as Sarajendu was intending to say something. On question by darogababu Sarajendu confessed in his presence that on 23rd of Sravana he murdered Sankar Tubit by a dao and he also told that he would be able to show the dao which was kept by him in his house. Darogababu requested him to accompany them and accordingly he accompanied darogababu and Sarajendu and some other police personnel and they went to the house of Sarajendu. Some other local persons were also present. One cameraman was also there and they entered in the room of Sarajendu. Sarajendu brought out a dao which was kept just beneath the cot under the bamboo mat. He also brought out a lungi and a shirt from his room and those were seized by darogababu. He identified the dao marked as Exbt. MO.1 and lungi and shirt marked as Exbt. MO.2 series.

7.3. PW5 stated that on 13.08.2011 darogababu with Sarajendu and other local people came to their village at about 9.00 am and on asking by darogababu Sarajendu confessed that he murdered Sankar Tubit by a dao and thereafter Sarajendu went inside the room of his house and brought out a dao from beneath his cot and also brought out one lungi and shirt from his house. One cameraman, namely Shib Charan Bhadra took photographs and video-graphs of the house of Sarajendu. Darogababu, thereafter seized the dao and clothes by preparing seizure list and he signed the seizure list as a witness. He also proved the seized articles marked as Exbt. MO.1 and Exbt. MO.2 series.

7.4. PW9, a photographer cum videographer also narrated the same fact and PW9 video-graphed the entire recovery and proved the cassettes and photographs.

7.5. From the evidence of PWs 4, 5 and 9 as well as from the statement of the accused made u/s 313 of CrPC it is quite evident that the accused led the police and the witnesses to his house and he brought out a dao which was kept beneath the cot of his house and also brought out his wearing apparels which were proved in the case.

7.6. Learned counsel, Mr. Majumder has submitted that I.O. did not record the alleged statement of the accused on the basis of which the alleged recovery was made and so the entire evidence in respect of the alleged discovery is liable to be rejected. In support of his argument he has referred a decision of the Gauhati High Court reported in Subhash Kurmi Vs. State of Assam, wherein the Division Bench of the Gauhati High Court has observed:

"Section 27 of the Evidence Act is in the nature of an exception to the proceeding Sections 25 and 26. There is no such statement placed on record as claimed by the I.O. that the accused made certain statement to the discovery of fact although law does not require recording of such statement made by an accused in police custody but as has been observed by the Calcutta High Court in Panchu Gopal Das Vs. The State, that it is proper for the prosecution if they want to adduce evidence u/s 27 to prove by production of written record only so much of the statement as led to the discovery of the article. An oral statement without corroboration by any written record of any such statement contemporaneously made even if admissible is unsafe to rely on. The learned trial Judge has fallen into a patent error of law in allowing the statement to go on record in a whole hog manner without even considering, much less test, how much and what part of the statement was relevant and which resulted in discovery of a fact, it is only such part of the fact which is admissible u/s 27 of the Evidence Act. While the trial Judge has admitted the whole statement without making any attempt and no such attempt was possible as the police did not prepare any written record of the statement made by the accused. Even then law demand and logic dictates that the trial Court should not have allowed the statement by the accused to go whole hog on record. Such statement per se not inadmissible when brought and at times project the mind of the Court. It is the duty of the trial Court to see that they do not play into the hands of the ingenuity, at time indulged in by the investigating agency. It was for this reason that the apex Court has sounded a word of caution that the Court must guard against the police ingenuity in introducing inadmissible material on record. It is here that the learned trial Judge even while making elaborate reference to other judgment has failed to notice the basic requirement of Section 27."

7.7. Learned Addl. P.P. on the other hand has referred a Full Bench decision of the Gauhati High Court in Rajiv Phukan and Another Vs. The State of Assam, wherein the Full Bench has clearly held that a ''disclosure statement'', to be admissible u/s 27 of the Evidence Act is not statutorily required to be reduced into writing, though prudence demands that such an information should be required into writing in order to enable the Court to know exactly as to what the accused is alleged to have stated and the extent to which the information given by him is admissible.

7.8. In the case of Subhash Kurmi(supra) also the Division Bench has held that law does not require recording of such statement made by accused in police custody but it is proper that if the prosecution wants to adduce evidence u/s 27 of the Evidence Act, the written record of so much of the statement may be produced before the Court.

7.9. The Supreme Court in the case of Bodh Raj(supra) in para 18 of the judgment has observed--

"18. Emphasis was laid as a circumstance on recovery of weapon of assault, on the basis of information given by the accused while in custody. The question is whether the evidence relating to recovery is sufficient to fasten guilt on the accused. Section 27 of the Indian Evidence Act, 1872 (in short ''the Evidence Act'') is by way of proviso to Ss 25 to 26 and a statement even by way of confession made in police custody which distinctly relates to the tact discovered is admissible in evidence against the accused. This position was succinctly dealt with by the this Court in Delhi Administration Vs. Bal Krishan and Others, and Mohmed Inayatullah Vs. The State of Maharashtra, The words "so much of such information" as relates distinctly to the fact thereby discovered, are very important and the whole force of the section concentrates on them. Clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. The ban as imposed by the preceding sections was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. If all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. The object of the provision i.e. S. 27 was to provide for the admission of evidence which but for the existence of the section could not in consequences of the preceding sections, be admitted in evidence. It would appear that under S. 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken into custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him. This information which is otherwise admissible becomes inadmissible under S. 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under S. 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in S. 27 of the Evidence Act is the Doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-in-culpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of Privy Council in AIR 1947 67 (Privy Council) is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. (See State of Maharashtra Vs. Damu Shinde and Others, No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered". But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given."

7.10. In the case at hand, the accused was in police custody at the relevant point of time. He made the disclosure statement in the presence of PWs 4, 5 and 9 as well as the I.O., i.e. PW10. While all those witnesses made categorical statements and it is also admitted by the accused that he led the police and the witnesses to his house and the dao and the wearing apparels of the accused were recovered from his house and seized by I.O. in the presence of witnesses, I find no reason at all to discard the discovery of fact simply because it was not reduced into writing. I am of the opinion that it is not a legal requirement that such statement should be reduced into writing but rule of prudence requires that such a statement on the basis of which a fact has been discovered for guarantee of truth in respect of such leading to discovery should be reduced into writing or otherwise there shall be distinct evidence in respect of information given by the accused. Since there is clear evidence recording the discovery of Exbt. MO.1 and Exbt. MO.2 series at the instance of the accused I find no reason at all to discard the evidence only on the ground that particular statement of the accused was not reduced into writing by the I.O.

The next item of evidence which requires consideration is the report submitted by the State Forensic Science Laboratory(SFSL). The bloodstains of the deceased and the wearing apparels of the accused and the seized dao were sent to the SFSL for examination and report.

8.1. PW6 is a Scientist of the SFSL and the report submitted by him is proved as Exbt. 3. It shows that bloodstains were detected in the wearing apparels of the deceased which were marked as Exbt. 5 to 7. On examination of Exbt. 4, i.e. the bloodstains seized, the report shows that it was ''A'' group. Bloodstains were also found in Exbt. 8 and Exbt. 9, i.e. the dao and shirt of the accused which were recovered at the instance of the accused but the amount of the bloodstain was not much to determine the blood group. This part of the scientific evidence corroborates the other evidence on record. The accused had in his shirt bloodstains and there was bloodstain in the seized dao also but the blood group could not be ascertained.

8.2. Learned counsel, Mr. Majumder referring to the decision of Kansa Behera Vs. State of Orissa, has submitted that if the blood group could not be ascertained mere bloodstains in the seized dao or in the shirt of the accused would not afford an incriminating evidence. In para 11 of the judgment the apex Court has held--

"11. As regards the recovery of a shirt or a dhoti with blood-stains which according to the serologist reports were stained with human blood but there is no evidence in the report of the serologist about the group of the blood and therefore it could not positively be connected with the deceased. In the evidence of the Investigating Officer or in the report, it is not clearly mentioned as to what were the dimensions of the stains of blood. Few small blood-stains on the clothes of a person may even be of his own blood especially if it is a villager putting on these clothes and living in villages. The evidence about the blood group is only conclusive to connect the blood-stains with the deceased. That evidence is absent and in this view of the matter, in our opinion, even this is not a circumstance on the basis of which any inference could be drawn"

8.3. No doubt, determination of blood group would afford a cogent evidence about the blood of the deceased in the seized dao and in the shirt of the accused. In absence of determination of blood group such evidence at least may be taken to consideration as an additional item of evidence to other items of evidence on record since the accused has failed to come out with any explanation whatsoever that for any other reason there was bloodstain in his seized shirt and in the dao seized from his house.

Another incriminating circumstance is the injury found in the person of the deceased. All the witnesses stated that there was a deep cut injury in the right arm of the deceased above elbow joint. PW11 in his deposition stated that on examination of the dead body he found the following injuries--

"1) One incised wound present in the right side arm situated around 4.5 cm. above the right elbow joint involving anterior medial and lateral aspect of arm. measuring 11 cm. in length and 8 cm. in width up to bone deep.

2) Right humerus is seen from outside.

3) Skin are clear cut. Subcutaneous tissue blood vessels and muscles are also clean cut.

4) Direction of the injury was upwards and inwards.

5) Injury is caused by moderately heavy sharp edge weapon."

9.1. In the evidence of eye-witnesses as well as in the evidence of PW11 we find, there was only one injury. Exbt. MO.1 was referred to PW11 at the time of his examination by the prosecution and PW11 stated that the injury found may be caused by Exbt. MO.1. In cross-examination PW11 stated that the sharpness of Exbt. MO.1 was not so much similar as to what he meant by mentioning the words, "heavy sharp edge weapon". The incident occurred on 09.08.2011. Exbt. MO.1 was seized on 13.08.2011. Evidence of PW11 was recorded on 21.01.2013. After such a long lapse of time and iron made dao was likely to have struck with rust and therefore the sharp-edge on the date of recording evidence of PW11 would not visibly present. Though no such explanation was taken from the mouth of the witness it may be easily presumed from the fact which are already brought on record.

The circumstantial evidence led by the prosecution as discussed above is found to be inconsistent to the plea of innocence of the accused and it is only consistent to the hypothesis of guilt of the accused. The circumstances that the accused was found last living with the deceased has been amply proved and therefore I find nothing to disturb the finding of the Court below in respect of the appreciation of evidence is concerned in the given facts and circumstances of the case. The trial Court rightly arrived at a conclusion that the offence committed by the accused comes under the purview of punishment u/s 304 Part-II of IPC and seven years of imprisonment is found to be reasonable and justified in the facts and circumstances of the commission of offence. The appeal therefore stands dismissed.

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