Suman Chel vs The State of West Bengal

Sankar Acharyya, J.—1. This appeal has been preferred by the appellant Suman Chel against the judgment and orders of conviction and sentence dated 16.12.2009 and 17.12.2009 passed by learned Additional Sessions Judge, Fast Track Court, Bankura in Sessions Trial No. 3 (12) 04 arising out of Sessions Case No. 23 (3) 04 under Sections 302/201 of the Indian Penal Code and under Section 25 of the Arms Act.

In the impugned judgment the appellant was convicted and sentenced to suffer rigorous imprisonment for life and to pay fine of Rs. 10,000/- in default to suffer rigorous imprisonment for another one year of the charge under Section 302 of the Indian Penal Code and also sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs. 1000/- in default to suffer rigorous imprisonment for six months more of the charge under Section 201 of the Indian Penal Code and further sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs. 1000/- in default to suffer rigorous imprisonment for another six months of the charge under Section 25 of the Arms Act with an order for running the sentences concurrently and further order regarding disposal of seized articles.

In the petition of appeal inter alia the appellant contended that the findings of the trial Court are based upon misappreciation of evidence on record and that major discrepancies and contradiction in evidence have not been considered and that there is missing link in the chain of circumstances and that prosecution failed to prove motive of the appellant for committing the alleged murder and that impugned judgment is bad in law and fact and liable to be set aside.

The case which was tried in the trial Court was initiated on 02.05.2001 at 00:15 hrs. (12:15 a.m.) in the night at Chhatna Police Station recording statement of informant Smt. Rina Karmakar at Chhatna Bazar as FIR under Section 154 of the Code of Criminal Procedure, 1973 (in short Cr.P.C.) against the appellant. The case, made out in the FIR in substance is that informant''s husband Fatik @ Golok Karmakar used to deal in paddy. Appellant also used to deal in paddy. He had visiting term in the house of Fatik @ Golok. On 28.4.2001 and on 29.4.2001 in the afternoon appellant came to the house of Fatik @ Golok and repeatedly told Fatik @ Golok for going to Chhatna for bringing paddy. Informant used to suspect the appellant. In the morning of 01.05.2001 Fatik took Rs. 52,400/- with him and went from his house of village - Sagrakata under P.S. Barjora for Chhatna to purchase paddy from the appellant expecting his returning home in the noon. Since Fatik did not return home his wife Rina became suspicious and went to Chhatna. She got whispering there that her husband was murdered by the appellant by shooting with fire-arm in his residence at Chhatna and kept the body concealed there.

Police of Chhatna P.S. investigated the case on the aforesaid FIR. During investigation it revealed that the appellant used to reside in a house of his maternal grandfather Late Nilkantha Sen at Chhatna Bazar. In that house just outside the north-facing door of the bed room of appellant dead body of Fatik @ Golok was found under cover of a gunny bag on the floor. A bullet injury was found on the back side of his head. Inquest was done by Police Officer. Photo snaps of the dead body were taken by police. The dead body was sent for post mortem examination and post mortem was held. During post mortem examination one fired bullet was extracted from the head of the deceased and subsequently said bullet and other materials which were handed over by autopsy surgeon were seized by the Investigating Police Officer. Before recording FIR at Chhatna P.S. one telephone call from Bankura P.S. was received on 01.05.2001 at 9:35 p.m. to the effect that one Raju Middya stated at Bankura P.S. that Golok @ Fatik Karmakar of Village - Sagrakata, P.S. Barjora had been murdered at Chhatna Bazar. Said information was diarised and intimation was sent to the house of Fatik @ Golok through Barjora P.S. During investigation police arrested the appellant. At the instance of the appellant police seized one motor cycle having no number plate owned by the appellant and from the dicky of the motor cycle also seized Rs. 9,000/- in a bundle of Rs. 100/- denominations having writing of name and village of informant Rina Karmakar on the note at the top and also on the note at the bottom of the bundle of currency notes. On production of witnesses Pravash Majhi @ Chhata Majhi and Raju Middya in Court their statements were recorded under Section 164 of the Code of Criminal Procedure (in short Cr.P.C.). On the basis of statement of appellant leading to discovery one pipe gun having one cap with fire mark of fired bullet in it and one pillow under which the pipe gun was kept hidden were seized by Investigating Police Officer (in short I.O.). The seized fired bullet and other articles which were supplied by autopsy surgeon were examined in Forensic Science Laboratory. Sanction was obtained from District Magistrate, Bankura for the prosecution against the appellant under Sections 25/27 of the Arms Act, 1959. After completion of investigation charge-sheet was submitted against the appellant.

During trial state prosecution examined sixteen witnesses viz: Rina Karmakar (PW 1), Dinesh Kundu (PW 2), Mohitosh Dutta (PW 3), Madhuri Chowdhuri (PW 4), Narendranath Chowdhury (PW 5), Pravat Majhi (PW 6), Constable Shyamapada Dawn (PW 7), S.I. - Dhirendra Nath Dutta (PW 8), Amir Khan (PW 9), Dr. Subrata Kundu (PW 10), Mathur Daripa (PW 11), Raju Middya (PW 12), Jaharlal Middya (PW 13), Jnanendralal Pal (PW 14), S.I. - Sabyasachi Sengupta (PW 15) and Manoj Mandi (PW 16). Among the said witnesses at the instance of State prosecution the PW 2, PW 5 and PW 11 were declared hostile witnesses. In addition to oral evidence of said sixteen witnesses the prosecution also adduced documentary evidence and produced some materials as exhibits. The appellant as accused was examined under section 313 of the Code of Criminal Procedure. He examined two witnesses viz: Khitindranath Chakraborty (DW 1) and Shyamali Chel (DW 2).

Defence plea of the appellant as disclosed during trial is denial of the allegations and case of the prosecution. The specific defence of the appellant is that the PW 12 had his business terms with the victim Fatik Karmakar and that the victim was murdered by PW 12 and others and that PW 12 was arrested by police and that in order to save the skin of PW 12 the case against the appellant has been made out falsely and that on 01.05.2001 the appellant was not present at Chhatna bazaar. Appellant claimed himself as innocent.

At the time of hearing this appeal Mr. Sanyal, learned counsel for the appellant advanced his arguments that prosecution failed to prove place of occurrence and appellant''s presence at Chhatna on 01.05.2001. He drew our attention to the evidence of PW 2, PW 5 and PW 11 who were declared hostile witnesses of prosecution and the evidence of DW 1 and DW 2 examined by appellant. According to him, the other witnesses, examined by prosecution are not trustworthy. Drawing our attention to evidence of DW 1 Mr. Sanyal argued that the appellant was arrested by police on 02.05.2001 in the early morning from his native village- Hadalnarayanpur under P.S. Patrasayer and not from Chhatna. According to him, the prosecution failed to prove appellant''s any acquaintance with the victim and any paddy business of appellant or of Fatik @ Golok Karmakar. Further arguments of Mr. Sanyal is that prosecution did not make out any case that the appellant and the victim were last seen at Chhatna on 01.05.2001. Drawing our attention to the evidence of PW 15 Mr. Sanyal argued that two firearms were allegedly seized by PW 15 one from the bed room of appellant under a pillow at Chhatna and another from PW 12 Raju Midya but the firearm seized from PW 12 was not examined by Forensic Science Laboratory. Mr. Sanyal claimed that no complete chain of circumstances has been proved by prosecution beyond shadow of doubt in respect of any guilt of the appellant and thus the appellant deserves acquittal. On the other hand, Mr. Banerjee, learned Additional Public Prosecutor for the State argued that during trial prosecution adduced sufficient independent evidence against the appellant and successfully proved its case with a complete chain of circumstances. Regarding arguments of appellant''s side about seizure of more than one firearm Mr. Banerjee argued that nowhere during cross-examination PW 15 told that he seized any firearm from PW 12 but such claim has been made on behalf of appellant by misinterpretation. He claimed that there is no merit in this appeal and the appeal is liable to be dismissed.

Keeping in mind the arguments advanced by learned counsels before us, we like to consider the totality of evidence adduced during trial and the attending circumstances by our independent re-appreciation.

There is no eye-witness of the scene of murder of the victim. The case of the prosecution is founded on circumstantial evidence. Prosecution adduced evidence to prove a series of facts in order to form a complete chain of circumstances so that there is only hypothesis to suggest the appellant and none else is guilty of the charges levelled against the appellant.

It is undisputed fact that Fatik @ Golok Karmakar died due to homicidal death caused by gunshot injury on his head. Said fact has also been proved by autopsy surgeon PW 10 and corroborated by post mortem report (exhibit- 12) read with inquest report (exhibit- 2).

It is unchallenged evidence adduced by prosecution that the dead body of Fatik @ Golok Karmakar was found in a house of Nilkantha Sen, since deceased just outside a room. It has been stated by PW 2 (hostile witness) that he knows Suman Chel (Appellant) who used to reside in the house of Nilkantha Babu on occasions. Such evidence was not challenged during cross-examination of PW 2. Appellant''s mother''s sister who is a daughter of Nilkantha Sen stated that Suman (appellant) used to reside on the ground floor of the house of the father of PW 4 at Chhatna market and that Suman would deal in paddy at Chhatna. During her cross-examination she stated that Suman stayed in the said house occasionally in connection with his business and that his family does not reside there. PW 1, PW 5, PW 9 and PW 11 stated that a dead body was found inside the room of Suman on the floor. PW 15 is the Investigating Police Officer (I.O.). He stated that he found the dead body of Golok Karmakar just outside the bed room of Suman Chel in the house and he held inquest over the dead body. Exhibit- 2 corroborates PW 15. A sketch map was drawn and index was prepared by PW 15 which was marked exhibit- 14. Said exhibit- 14 corroborates PW 15 showing the place just outside door of a room marking with letter "p" stating that the dead body was found from that place. There is minor contradiction between evidence of PW 15 and that of PW 1, PW 5, PW 9 and PW 11 who are witnesses of inquest. Said witnesses described the place of recovery of the dead body from the place inside the bed room of Suman Chel but PW 15 and exhibits 2 and 14 speak that place as just outside that bed room of appellant Suman Chel. During examination of appellant under Section 313 of the Code of Criminal Procedure, 1973 he stated that he resided in that room seldom (Answer NO. 13) but he stated nothing against the question for his explanation about the evidence that one Golok Karmakar was murdered in the room where he used to reside (question No. 13).

Having considered the discussed evidence (Supra) and result of examination of appellant under Section 313, Cr.P.C. we are satisfied to hold and therefore, we hold that prosecution successfully proved that the appellant used to reside in the ground floor of a house of his maternal grandfather Nilkantha Sen, since deceased, at Chhatna Bazaar for his paddy business and dead body of Golok Karmakar (victim) was recovered from his residence at Chhatna bazaar in the night of 1.5.2001 and 2.5.2001. Prosecution has been able to discharge its burden of proving said circumstance.

In the premises, appellant ought to have special knowledge of the reason as to why the dead body of the victim with gunshot injury on head was lying in his residence. Although ordinarily, in a criminal trial burden of proof lies on prosecution only to prove the case beyond reasonable doubt but under the attending circumstances in this case, the appellant cannot be exempted from the burden of giving explanation of his special knowledge in view of the provisions under Section 106 of the Evidence Act. We do not find any plausible explanation of appellant on that matter.

Regarding alleged acquaintance between appellant and the victim the PW 1 firmly stated that her husband used to deal in paddy and Suman Chel (appellant) also used to deal in paddy. According to PW 1, the appellant went to the house of victim on 28.4.2001, 29.4.2001 and 30.4.2001 and the appellant called the victim to Chhatna with Rs. 1,00,000/- for bringing paddy loading two trucks therefrom. During her cross-examination she stood with credibility on such matters. Exhibit- 1 corroborates PW 1 in substance. Although putting suggestion to PW 1 the appellant denied his paddy business but there is no denial against appellant''s aunt''s (PW 4''s) specific evidence that Suman (appellant) would deal in paddy at Chhatna. PW 9 stated in his examination-in-chief that Suman Chel used to deal in paddy residing in the house of Nilkantha Sen. During his cross-examination he stated that he found Suman to keep paddy in his room in connection with his business. Appellant''s mother as DW 2 stated that Suman deals in Til seeds, potato, green chilli etc. and that Suman (was) never engaged in any business in village - Chhatna. Having considered the evidence as a whole on the matter we are satisfied that this appellant had acquaintance with the victim during lifetime of Fatik alias Golok Karmakar in connection with paddy business of both of them. We also believe that relying on the version of appellant said victim Fatik @ Golok started from his house taking Rs. 52,400/- with him in the morning of the fateful date 01.05.2001 from Chhatna to purchase paddy for his business and he did not return alive as alleged in the prosecution case and evidence of PW 1 (wife of victim Fatik alias Golok). In our view the PW 1 is the most competent witness to say about appellant''s visiting to their house and conversation between her husband and the appellant and her husband''s going with Rs. 52,400/- for Chhatna for purchasing paddy on the fateful day as per his earlier conversation with the appellant. It is not expected that in ordinary course there might have knowledge of any independent person about such facts. Therefore, having considered the evidence of PW 1 with due care and caution without insisting for corroboration we have no hesitation to hold and accordingly we hold that prosecution has been able to prove in trial beyond reasonable doubt the facts that appellant called the victim from his house for going to Chhatna with money for purchasing paddy in connection with his business and responding that call the victim went with Rs. 52,400/- from his house in the morning of 1.5.2001 for going to the appellant at Chhatna.

We have already found that in the night of 01.05.2001 and 02.05.2001 dead body of victim Fatik @ Golok with gunshot injury on the backside of his head was recovered from the residence of the appellant at Chhatna bazaar in the house of appellant''s maternal grandfather Late Nilkantha Sen.

Hostile witness PW 2 is a close neighbour of appellant''s residence at Chhatna. According to him the appellant used to keep his new motor cycle in the house of PW 2 and that motor cycle was seized by police during investigation preparing a seizure list. PW 2 is a signatory as witness on that seizure list dated 02.05.2001 (exhibit- 4). During cross-examination by prosecution the PW 2 admitted that he stated before police that on 01.05.2001 the motor cycle of Suman Chel was in their house and that on the previous day Suman Chel had taken out the motor cycle at about 12:00 noon from their house and again kept his motor cycle at about 9/10 p.m. Although exhibit- 4 speaks about seizure of motor cycle and Rs. 9,000/- from dicky of the motor cycle in presence of appellant Suman Chel but PW 2 denied presence of appellant and seizure of money during his cross-examination on behalf of the appellant. From the evidence of PW 2 we find reason to believe that on 30.04.2001 (previous day of the date of occurrence) the appellant travelled with his motor cycle between 12:00 noon to 9:00-10:00 p.m. Significantly we like to mention that according to PW 1 the appellant went their house in the evening on 30.04.2001.

PW 4 is appellant''s mother''s sister. There is no whispering even about any inimical relation between appellant and PW 4. From the deposition of PW 4 it is evident that the appellant''s native home is at Village - Hadalnarayanpur under P.S. Patrasayer but he alone used to reside in the ground floor of the house of his maternal grandfather Nilkantha Sen, since deceased and the appellant used to deal in paddy. PW 5 is the husband of PW 4. He was declared hostile at the instance of prosecution. This PW 5 also stated that in a ground floor room in the two-storied house of his father in law (father of PW 4 and of the mother of appellant) at Chhatna market Suman Chel used to reside and no other person would reside there. According to PW 5, on the next day of 01.05.2001 a dead body was found in the room of Suman Chel and police inspected the dead body of Golok Karmakar. This PW 5 signed as a witness of inquest over that dead body held by police. During his cross-examination by prosecution PW 5 stated in favour of prosecution in substance that on 1.05.2001 he found Suman to go away from the room by a motor cycle. During his cross-examination on behalf of the appellant he corroborated PW 2 stating that Suman used to keep his motor cycle in the room of Dinesh Kundu (PW 2) on the other side of the road opposite to PW 5''s shop room in the building of Nilkantha Sen. He further stated that he found Suman to go away after taking motor cycle from the house of Dinesh Kundu at about 11:30 a.m. or 12:00 noon.

From the evidence of PW 2 we have found that in the night of 30.01.2001 at about 9:00-10:00 p.m. Suman Chel returned to his residence at Chhatna bazaar. According to PW 5 on 01.05.2001 at about 11:30 a.m. or 12:00 noon Suman went away taking motor cycle from the house of PW 2. We do not find reason to disbelieve said facts. As such, we believe that in the night of 30.4.2001 and in the morning of 01.05.2001 appellant Suman Chel was in his residence at Chhatna bazar in the house of his mother''s father Late Nilkantha Sen.

PW 12 is brother of PW 13. According to PW 12, the appellant went to his house on 1.5.2001 in the afternoon. Appellant wanted to get Ambassador car of PW 13 on hire but PW 13 did not give it to appellant. Then PW 12 and the appellant went to play cricket. After the game appellant Suman took PW 12 with him on his motor cycle with assurance that he would arrange an opportunity for PW 12 in an orchestra for working. While they were passing through Bankura PW 12 purchased two sacks on which ''M/S Akinchan Pal'' was written. Then they went to the residence of appellant at Chhatna. Appellant unlocked appellant''s bed room and in that room PW 12 saw one dead body was lying. Then under instruction of appellant the PW 12 kept the dead body inside a sack. PW 12 tried to went away and on the pretence of taking wine PW 12 left the room. PW 12 went to Chhatna railway station and availing a train he went to Bankura. He went to Bankura Police Station and narrated the incidents there. Police of Bankura P.S. made contact with Chhatna P.S. and PW 12 talked with the Officer-in-Charge of Chhatna P.S. over phone. Police brought PW 12 to Chhatna. PW 12 identified the house of the appellant. In the bed room of appellant the dead body in a sack and one firearm were seen by PW 12. This PW 12 made statement before learned Magistrate (PW 3) under Section 164 of the Code of Criminal Procedure which has been marked exhibit- 6. In exhibit- 6 a vivid description of the incidents minute details was recorded. Said statement of PW 12 is in substance corroborative to the examination-in-chief of PW 12. In exhibit- 6 it was not recorded that PW 12 went with appellant to Bankura on a motor cycle and purchased two sacks but his other statements in examination-in-chief are corroborated in substance in exhibit- 6. Some more incidents were narrated by PW 12 before PW 3 as per exhibit- 6. PW 12 also stated before PW 3 in substance that there was conversation at Chhatna between appellant and PW 6 for causing disappearance of a dead body but he (PW 12) did not state such incidents during his examination-in-chief. He also stated before PW 3 that under threat of appellant a false pretence was narrated by PW 12 before a car owner for hiring his car and the car owner agreed to give his car provided arrangement of driver be made and then the appellant and PW 12 searched for PW 6 but they could not find PW 6. These intervening incidents between leave of PW 12 and appellant from cricket ground and going to appellant''s residence have not been stated by PW 12 during his examination-in-chief. It is pertinent to note that statement of PW 12 was recorded by PW 3 on 03.05.2001 and during trial PW 12 was examined in Court on 03.08.2006. During cross-examination contradicting his earlier statement made before the investigating police officer (PW 15) under Section 161 of the Code of Criminal Procedure the PW 12 denied his acquaintance with the victim and his wife. Contradicting himself the PW 12 stated that he first met Suman at Dhaagarai bus stand on Bankura - Burdwan road and he (appellant) did not come to the house of PW 12. Some discrepancies transpire about timings of arrival of PW 12 with appellant at Chhatna and of arrival of PW 12 at Bankura P.S. and then at Chhatna P.S. from Bankura with police which are not accurately at par with the prosecution case but there is no material discrepancy about the incidents alleged by prosecution and stated by PW 12. It appears from the cross-examination of PW 12 that he was detained at Chhatna P.S. for 50-60 hours and he was interrogated by police for several times. However, he did not deviate from his substantive statements during cross-examination about the incidents narrated by him during his examination-in-chief or his examination by PW 3 under Section 164 of the Code of Criminal Procedure. The detention and interrogation indicate sincere investigation to unfold the truth. Having considered the evidence of PW 12 and exhibit- 6 we find reason to believe and we believe that on 01.05.2001 in the afternoon PW 12 and the appellant played cricket and then they went to Chhatna together on a motor cycle and reached the residence of appellant at Chhatna. In the bed room of appellant the PW 12 found a dead body was lying. On their way from play ground to appellant''s residence PW 12 came to learn from appellant that a man was killed by appellant in his room and he was searching for a vehicle for causing disappearance of the dead body but did not succeed. We also believe that under threat of appellant the PW 12 put the dead body inside a sack and fled away therefrom on false pretence. PW 12 went to Bankura P.S. and narrated the incidents there. After making contact by police of Bankura P.S. with Chhatna P.S. over telephone the PW 12 was brought to Chhatna by police in that night and PW 12 identified the house of appellant to police of Chhatna P.S. Entering into the room of appellant with police the PW 12 found the dead body was lying there. Police of Chhatna P.S., detained PW 12 and interrogated him several times. He was not arrested and had not been made accused in the case. From the totality of his evidence read with exhibit- 6 we find some omissions of PW 12 to state during trial which he stated before PW 3 during investigation but such omissions cannot be treated as contradiction. Minor discrepancies appearing in his evidence do not rot the very root of the case of the prosecution against the accused appellant. This PW 12 is a vital witness to prove the circumstances in favour of the prosecution.

PW 13 corroborates PW 12 regarding his ownership of Ambassador car, appellant''s going with PW 12 to PW 13 for hiring the car in the afternoon on 1.05.2001 and refusal by PW 13 to give his car on hire to the appellant.

PW 6 is a truck driver and a man of Chhatna. He stated about paddy business of appellant. According to PW 6, on 1.05.2001 in the night at about 10:30 p.m. appellant went to the house of PW 6 and told him that he had committed a murder in the house of his maternal uncle and asked PW 6 to dispose of the dead body to which PW 6 initially did not believe but later PW 6 asked the appellant to arrange vehicle when the appellant left his house riding on a motor cycle. During his cross-examination nothing revealed to disbelieve his aforesaid evidence. This PW 6 made statement before PW 3 under Section 164 of the Code of Criminal Procedure and said recorded statement has been marked exhibit- 5 in trial. Said exhibit- 5 fully corroborates the PW 6 in substance. From the evidence of PW 6 and exhibit- 5 we are satisfied to believe that on 01.05.2001 in the night at about 10:30 p.m. the appellant went to the house of PW 6 and tried to cause the dead body disappeared from his residence with the help of PW 6 but he could not succeed. We do not find any reason to believe about giving any untrue evidence by PW 6 against appellant.

PW 9 is another man of Chhatna, the locality of appellant. It appears from his evidence that in the night of 01.05.2001 and 2.05.2001 police encircled the house of Nilkantha Sen, since deceased and from that house arrested the appellant in presence of PW 9 when the appellant was trying to flee away. Police seized a pistol which was kept under a pillow of the appellant under a seizure list on which PW 9 signed. Said seizure list has been marked as exhibit- 10 describing the seized firearm as pipe gun. Signature of PW 9 on that seizure list is exhibit- 10/1. PW 9 also stated that one dead body was also in that room and that the upper portion of the dead body was inside a gunny bag and that police also seized the said gunny bag and prepared a seizure list on which PW 9 signed. Said seizure list has been marked exhibit- 11 with signature of PW 9 as exhibit- 11/1. PW 9 also stated his witnessing inquest by police over the dead body and preparation of inquest report in the room of the appellant. The inquest report has been marked exhibit- 2 with signature of PW 9 as exhibit- 2/3. PW 9 also stated his witnessing recovery and seizure of Rs. 9,000/- from the dicky of a motor cycle and that motor cycle of appellant which was kept in the house of PW 2 under seizure list. Said seizure list has been marked exhibit- 4 having signature of PW 9 as exhibit-4/2. During cross-examination of PW 9 it transpired that this PW 9 is a friend of appellant''s maternal uncle Goutam Sen. During cross-examination PW 9 left no room to cast any shadow of doubt against his independent and trustworthy character in connection with the case. Exhibits 2, 4, 10 and 11 strongly corroborate PW 9. Having considered the said evidence we find that in the night of 1.5.2001 and 2.5.2001 the appellant remained present in his residence at Chhatna and when he tried to flee away police arrested him and recovered the dead body of the victim therefrom. On 02.05.2001 police held inquest over the dead body of the victim and seized one gunny bag within which portion of the dead body of the victim was inserted. Police also seized one firearm (pipe gun) which was termed by PW 9 as pistol. On 2.5.2001 police also seized appellant''s motor cycle and Rs. 9,000/- in a bundle of Rs. 100/-denomination which was kept in the dicky of the motor cycle. Exhibit- 4 speaks that on two currency notes on the top and at the bottom name and village of PW 1 was found written by ink.

PW 11 is hostile witness of prosecution. His unchallenged evidence is that the appellant used to reside in the house of Nilkantha Sen and that PW 11 found a dead body of a person inside a sack within the room of the house of Nilkantha Sen. He proved his signatures on inquest report (exhibit- 2/4), seizure list relating to seizure of firearm (exhibit- 10/2) and another seizure list relating to seizure of Rs. 9,000/- from the dicky of motor cycle (exhibit-11/2). During his cross-examination on behalf of prosecution he stated that police seized Rs. 9,000/- from the dicky of the vehicle. During his cross-examination on behalf of the appellant he stated that police did not seize any money in his presence and that police recovered the firearm but that was not shown to him at the time of seizure. In our view, although the PW 11 made statements against seizure as claimed by the prosecution but in fact his evidence appears to us as not convincing to disbelieve seizure of firearm and money at the instance of appellant which has been claimed by prosecution.

PW 1 is the wife of the victim and she saw the dead body of her husband in the next morning of the occurrence at about 7:00-7:30 a.m. on the floor of bed room of Suman Chel (appellant) and the head of the dead body was found inside a gunny bag. As per her deposition, on 01.05.2001 at about 10:00/10:30 p.m. in the night one vehicle from Barjora P.S. came to their house and PW 1 was asked relating to whereabouts of her husband to which she informed that her husband had gone to Chhatna in connection with his business. Then she was taken to Chhatna by that vehicle. In the FIR she did not mention that she was taken to Chhatna by the vehicle of Barjora P.S. In our view it is not a major contradiction when fact remains that in the night of 01.05.2001 PW 1 went to Chhatna from her dwelling house as per FIR and deposition of PW 1 both. Similarly it is also not considered by us as major contradiction relating to knowledge of PW 1 about death of her husband. In FIR PW 1 stated that going to Chhatna she heard whispering that her husband was killed by appellant shooting him. According to the deposition of PW 1 she was told by O.C., Chhatna P.S. that her husband Fatik Karmakar was killed in the house of Suman Chel (appellant herein). PW 1 witnessed the inquest held by police over the dead body of her husband in the following morning. Said fact is substantially corroborated by the inquest report (exhibit- 2), duly proved by the investigating police officer (PW 15). PW 1 described the denominations of the currency notes and bundle of such notes carried by her husband (victim) from house in the morning of the fateful day. She specifically stated that on the first note in the bundle of Rs. 9000/- she had written her name. She proved her signature (exhibit- 3) on the bundle of notes which was seized by PW 15 during investigation. That factum of seizure of the bundle of notes from the dicky of appellant''s motor cycle is sufficiently proved by PW 15 read with seizure list (exhibit- 4) prepared by PW 15. This is a very strong circumstance to prove that on the fateful day the victim went to the appellant from his house taking Rs. 52,400/- with him and his money was taken by the appellant which fact was denied by appellant during trial. Nothing contrary to that strong circumstance is established even by preponderance of probability from the result of cross-examination of PWs, examination of accused under Section 313 of the Code of Criminal Procedure and depositions of two DWs.

PW 15 was the Officer-in-Charge of Chhatna Police Station at the relevant time. He investigated the case. According to PW 15, he received telephonic information from Bankura Police Station at 9:35 p.m. to the effect that PW 12 informed regarding murder of Golok Karmakar by Suman Chel at Chhatna Bazaar. Although the time of reporting by PW 12 at Bankura P.S. is different from the version of PW 15 but substance of facts stated by PW 12 and PW 15 regarding giving of information by PW 12 of the incident of murder committed by the appellant is almost same as stated by PW 15 and recorded in G.D.E. No. 30 dated 01.05.2001 of Chhatna P.S. written in G.D.E. book by PW 15 which has been marked as exhibit- 20, duly proved by PW 15. Be it noted that in exhibit- 20 the factum of the incident of murder of Fatik @ Golok Karmakar of village - Sagrakata was recorded but name of the appellant was not recorded as assailant of the victim. Although it is a lapse on the part of prosecution but in our view it is not fatal to uproot the concrete case of the prosecution. PW 15 stated about his recording the statement of PW 1 at Chhatna and starting Chhatna P.S. case No. 20 dated 02.05.2001 at 12:01 a.m. in the night. He proved the formal FIR as exhibit- 13. He recovered the dead body of Golok Karmakar just outside the bed room of appellant Suman Chel. PW 15 apprehended the appellant and arrested him at about 2:15 a.m. on 02.05.2001 when the appellant was about to leave the house. PW 15 prepared a sketch map with index of the place of occurrence which has been marked exhibit- 14. He seized one piece of blood stained cloth and one improvised one barrel pipe gun with a fired cartridge inside the pipe gun which was kept under the pillow in the bed room of the appellant at his behest under exhibit- 10 seizure list. Such factum of seizure has been corroborated by exhibit- 10 and witnesses of seizure. The seized pipe gun was produced and marked Mat. exhibit- II during trial. Seizure of appellant''s motor cycle and Rs. 9000/- has been proved by PW 15 proving the seizure list as exhibit- 4. The bundle of seized money amounting to Rs. 9000/- was produced and marked Mat. Exhibit- III during trial. Two sacks, used for concealing the dead body and screening the murder of the victim were seized by PW 15 under a seizure list (exhibit- II). Said sacks were produced and marked Mat. Exhibit- I during trial. After post-mortem examination over the dead body of the victim the bullet head which was extracted by the autopsy surgeon from the head of the deceased and the wearing apparels of the deceased were seized by PW 15 by virtue of exhibit- 7. On prayer of PW 15 statements of PW 6 and PW 12 were recorded by PW 3 which have been marked as exhibits 5 and 6 respectively. Seized firearm, blood stained cloth, bullet head, preserved blood of the deceased, empty cartridge and blood stained sacks were sent by PW 15 to FSL issuing a memo (exhibit- 16) through challan (exhibit-17). Ballistic report (exhibit- 18) was collected by PW 15. Since the seized firearm was an unauthorised firearm PW 15 obtained sanction order of District Magistrate, Bankura for submitting charge-sheet against the accused under Sections 25/27 Arms Act also in addition to Sections 302/201 of the Indian Penal Code. Said sanction order has been proved by PW 16 and the same has been marked exhibit- 19. We like to note that drawing our notice to cross-examination of PW 15 it was claimed on behalf of appellant that one metallic pipe gun was also seized by PW 15 from the house of PW 12 but on careful reading we cannot accept such interpretation of the cross-examination of PW 15. We are not satisfied to believe that according to evidence of PW 15 there was recovery or seizure of more than one firearm.

In exhibit- 18, the articles, sent to Forensic Science Laboratory through exhibits- 16 and 17, have been referred to as the seized pipe gun (Mat. exhibit- II) is improvised pistol marking it by letter ''D'', the seized empty fired case of bullet as.303" rifle ammunition, made in Indian Ordnance Factories was found lodged in its chamber marking it by letter ''D 1'' which was extracted from its chamber by mechanical means for examination, seized bullet head as one deformed fired bullet kept inside a sealed glass vial marking it by letter ''B'' and the other seized articles marking by letters ''A'', ''C'' and ''E''. As per exhibit- 18, the ''A'', ''C'' and ''E'' marked articles were referred to Biology Division for necessary examination with request to send its report directly to the competent authority. But no such report of Biology Division was brought as a piece of evidence during trial. However, the report of Senior Scientific Officer (Ballistice) Forensic Science Laboratory, Govt. of West Bengal relating to the articles marked with letters ''D'', ''D 1" and ''B'' is as follows:--

"The improvised pistol marked ''D'' was found designed to fire .303" rifle ammunition. Traces of firing were detected inside it suggesting that it was fired previously.

Weight, dimensional and constructional features of the fired bullet marked B suggested that it was bullet used in a .303" rifle ammunition. Nature of marks present on it and on the empty fired case marked D 1 suggested that each was fired through improvised firearm capable of firing .303" "rifle ammunition.

Test firing : One round .303" rifle ammunition, received here in connection with a separate case B 1/14/1119/01 was loaded in D and fired, thereafter, as test through it.

The test fired bullet and the test fired empty case through D microscopically compared with the fired bullet marked B and the empty fired case marked D 1 respectively in respect of impressions left on them due to firing. It was found that their impressions were identical in each case. Hence, it can be concluded that

i) The improvised pistol marked D was in working order,

ii) The empty fired case marked D 1 was fired through the pistol marked D and

iii) The fired bullet marked B was fired through the pistol marked D."

Having considered the totality of evidence on record we have no hesitation to hold and therefore we hold that prosecution proved beyond reasonable doubt that at the behest of the appellant the investigating police officer (PW 15) recovered a firearm which was kept under pillow in the bed room of appellant and said firearm was used for shooting by use of .303" rifle bullet and that bullet was extracted from the head of the deceased victim Fatik alias Golok Karmakar at the time of post-mortem examination over the dead body held by PW 10.

In summing up the foregoing discussions we find a complete chain of circumstances suggesting only hypothesis that appellant Suman Chel committed the murder shooting Fatik @ Golok Karmakar with unauthorised firearm of appellant on 01.05.2001 in appellant''s residence in the house of his maternal grandfather Late Nilkantha Sen at Chhatna Bazaar with intention to grab the money of the victim. He also did certain acts to disappear the evidence of such incident of murder with intention of screening the offence relating to which capital punishment may also be awarded.

In conclusion, we find no reason to differ with the observations of learned Additional Sessions Judge of the Trial Court made in the impugned judgment of conviction of the appellant of the charges under Sections 302/201 of the Indian Penal Code and under Section 25 of the Arms Act and with the sentence awarded to the appellant. The evidence of DW 1 and DW 2 is not at all convincing to prove the alibi of the accused appellant even by preponderance of probability.

As a result, this appeal fails and is dismissed. The impugned judgment of conviction and sentence is confirmed.

A copy of this judgment along with the LCR be sent to the Trial Court.

Urgent Photostat certified copy of this judgment, if applied for, be given to the parties or their advocates on record promptly observing requisite formalities.

Aniruddha Bose, J.—I agree.