Tarapada Bauri vs State

Jitendra Nath Chaudhuri, J.—Criminal Appeal No. 370 of 1979 arises out of sessions Trial No. 20 of 1979 (Sessions Case No. 275/1977) held by the Learned Additional Sessions Judge, 3rd Court, Burdwan. In the said trial, the appellant was found guilty of the offence u/s 302 of I.P.C. and sentenced to imprisonment for life, and also to sentence of a fine of Rs. 200/-, in default, to original imprisonment for six months. He was also convicted u/s 201 I.P.C. and sentenced to rigorous imprisonment for seven years and also to a fine of Rs..200/-, in default, rigorous imprisonment for six months. Both the sentences were ordered to run concurrently. The accused, Tarapada Bauri, was charged under section, 302 of.I.P.C. for murdering his wife Sefali Bauri sometime in between 6th January and 8th January,. (1977 22nd Pons to 24th Rous, 1383 B.S.) at Ajhapur, District Burdwan. He was also charged u/s 201 I.P.C. for causing evidence of the said offence to disappear, by concealing the dead body of his wife with shrubs and also concealing a Katan within the mud and water of an irrigation channel, at Ajhapur, during the period mentioned hereinbefore, with the intention of screening himself from legal punishment, knowing that the murder of his wife had been committed.

The prosecution case, in brief, is as follows:

From the morning of 7.1.77, Sefali Bauri, wife, of the accused was found missing from the accused''s house at Ajhapur, P.S. Jamalpur. In the evening of 8.1.77 some of the "local cowherd boys detected some marks of blood, broken churis and some other articles besides a raised portion of the ground covered with leaves of parbles and wild creepers at a field known as "Bhinchikurer Math", within Ajhapur, which they reported to the villagers. On 9.1.77 the informant in this case,_ Narayan Bauri (P.W.1) along with the Chowkidar and other villagers went to the said place, which was then dug up and the body of Sefali, his sister-in-law was recognised by P.W.1. The accused is the younger full brother of P.W.1. Thereafter, P.W. 1 along with the Chowkidar went to the Jamalpur Police Station and lodged the First Information Report in this case (Ext.9/1). Thereafter, on the basis of the said F.I.R. after drawing up of the formal F.I.R. (Ext.9) the present case being Jamalpur P.S. Case No. 15 dated 9.1.77 was started. P.W. 18-S.I. N. C. Das, the investigating officer in this case thereafter took up investigation and visited "Bhinchikurer Math" along with P.W. 1., held an inquest over the dead body, seized some alamats near the body, as well as some blood-strained earth with control and sent the dead body for post-mortem examination. He prepared a sketch map of the locale with index (Ext. 10) and requisitioned the service of a Photographer. He examined a number of witnesses. The accused was arrested on 12.1.77 by P.W. 15, by S.I. Satya Ghosh Hazra, the Officer-in-charge Jamalpur P.S., at about 2.20 A.M. at Kasirampur. On the statement of the accused, and led by the accused a Katari was produced by the accused being recovered by from the bed of Gopal Dighi tank, Ajhapur in presence of witness. A confessional statement of the accused u/s 164 -Cr.P.C. (Ext.6) was recorded by P.W.17, the teamed S.D.J.M., Burdwan on 13.1.77. P.W.18 in course, of investigation seized some wearing apparels of the accused, other alamedas and also obtained his nail cuttings. The seized articles were sent to Forensic Science Laboratory for chemical examination. On completion of investigation a charge sheet was submitted on 2 5.8.77 against the present accused.

The prosecution examined 18 witnesses. The defence did not examine any witness. The defence case, as can be gathered from the cross examination and the answers in the examination of the accused u/s 313 Cr.P.C. was that he had been falsely implicated. According to the defence, the accused had been forced to make, a confessional statement under threat by the police and that he did not bring out any Katari from Gopal Dighi Tank.

P.W.7 Paresh Bauri, a resident of Ajhapur, deposed that along with some cowherd boys, he went to graze cows in a field known as "Binchikurer Math". He noticed the cows to smell something in the field, and they appeared to be disturbed. When he went to ascertain why they were disturbed, he noticed some blood, some heirs and one Shankha lying there. Thereafter, he returned'' and reported what he had found to the villagers. In cross examination, he stated that at about 3 P.M''. he found the articles abovementioned and at about 4 P.M. he reported to the villagers about what he had found. The villagers in a body thereafter, went to see for themselves. His village is about two miles from the field where the said articles were found.

P.W.6 Gopal Bauri, a day labourer- also resides in the bank land of Thakur Pukur at Ajahapur, in the same village as P.W.7 P.W.6''s house is about 10/12 cubit from the house of the accused. The accused used to work at Calcutta, and was married to Sefali. Sefali used to occasionally work as a day labourer and used to reside in the house of the accused. He got an engagement for Sefali to work in the house of Kalipada Laha at Adampur for a few days. He himself worked in the same house. Since Thursday in the month of Poush about the two years ago (the witness deposed on the 30th May, 1979) Sefali was missing from her house. He went to her father''s place on Saturday next, but did not find her. Her dead body was found at "Banchikurer Math". P.W.7 reported that her body was lying in that field. Thereafter, the Darogababu brought the accused to the village. P.W.6, along with the accused and others accompanied Darogababu to Gopal Dighi and from a corner of the bank of the said tank the accused produced one Katari as he could see from a distance. P.W.6 was behind the accused and the Daroga and he did not hear the accused to say anything to the Daroga. Darogababu disclosed that the accused brought but this Katari. On being shown Ext. I the witness'' deposed that a weapon of similar nature was produced on that occasion. He found some red marks on the Katari on that occasion. A seizure list was prepared by the police on that occasion after the seizure of the said Katari and the witness put his left thumb impression on such list. The accused used to address the witness as "DA-DA" by village courtesy.

In cross examination, he stated that he and P.W.1 (Narayan Bauri), were made to stand at a distance and after sometime Darogababu brought one Katari and stated about the recovery of such weapon. The Katari was full of quagmire. The witness told about this occurence to some of the villagers.

P.W.5 Sm. Gouri Bauri is a resident of Ajhapur, beside Thakur Pukur. The accused is her nephew (husband''s sister''s son). The accused who was married to Sefali used to work at Calcutta. About two years ago on a Thursday in the month of, Pous (the witness deposed on 30th May, 1.979) she went to collect some rice in the house of the accused. Sefali was preparing some rice in the house of the Acad. Sefali was preparing food. When the witness went to ask for rice, at that time some one crossed her by the door of that house, whereupon he asked Sefali as to who that person was, and was told by her "it is your nephew". She thereafter; took the rice and went away. On the. next day, at about 12 noon on her, return from work she did not find Sefali in the house, since then, Sefali was missing.

In cross examination, who stated that she had no talk with any body over, the incident. The accused did not have good relation with his brothers and they were not on speaking terms with, each other. She further deposed "1 came back after taking rice Bouma and (sic) no talks with her thereafter. (Then SAYS) ONLY took (sic) and had no talks with her". Sefali used to reside in her house alone, while the accused used to work at Calcutta. Her house being a bit away from the house of Sefali, she could not say whether anubody else visited Sefali.

P.W.1 Narayan Bauri, the informant in this case, is the elder brother of the accused. He is a resident of Ajhapur. The accused used to live in a house which the accused had built beside his house. The accused lived there with his wife Sefali. The accused was vendor of flowers at Calcutta and seldom used to come to his house. P.W.6 of the locality was requested by the accused to look after Sefali during his absence. Sefali used to work in the house of P.W.3 of Adampur. In the month of Pous, on a Thursday about two years ago (the witness deposed on the 28th May, 1979) Sefali returned back home and arranged for cooking and took her meal. Before he went to bed he saw Sefali closing the door of her house from inside. On returning from work on Friday he did not find Sefali in her house, the door of which, was lying ajar. He did not find her on search. P.W.6 went to search for her in her father''s place at Kasirampur, but did not find her there. On Saturday evening the cowherd boys reported having seen some blood-stained articles near the land where the witness drew parble. The next morning, he along with Chowkidar Mahananda went to that place in "Benchikurer Math" and noticed blood marks and some raised up ground covered with leaves of purble creepers. On the place being dug up he recognised the dead body of his sister-in-law Sefali. Thereafter, he along with the Chowkidar went to the police station and lodged the F.I.R. Thereafter, with the police he went to the place where Sefali''s body was found. On his stating that thereafter he did not go anywhere else along with the accused and the police, the witness was declared hostile by the prosecution and was permitted to be cross examined by the prosecution.

In cross examination by the prosecution he denied having stated before the I.O. that when P.W.5 went to borrow rice from Sefali, on being asked by P.W.5, Sefali disclosed that P.W.5''s nephew covering himself with a white chadder had just crossed her when she entered the room. P.W. 18. the I.O. of the case, provided the said contradiction. He admitted that he along with Darogababu, P.W.3, the accused and one Shyam Mondal went to the north eastern corner of Gopal Dighi at Ajhapur about 2/3 days after the discovery of Sefali''s body. The accused brought out a Katari from the northeast corner of the bed of the Dighi. The Katari when produced was stained with mud and blood marks. He admitted that the Katari, Ext. I appeared to be like the one produced by the accused on that occasion. The police after sezing the Katari prepared a seizure list and he put his left thumb impression on the said list. He denied that as his own brother was involved he was not disclosing the faces clearly.

In cross examination by the defence he stated that he was an illiterate person. The accused was a vendor of flowers at Calcutta and mostly resided there. P.W.6 who was the Bhasur of Sefali used to visit her house as her guardian. Sefali who was quite good looking used to reside alone in the house The witness was not on talking terms with her. While the Darogababu took the accused, himself and other to the bank of the tank he kept at a distance from the accused with whom the Daroga was engaged in talking. Darogababu brought out a Katari after some time. He did not see the Katari before it was brought by the Daroga from the bed of Gopal Dighi.

P.W. 3, Kalipada Laha is a resident of Adampur. P.W.6 was his labourer. P.W.6 engaged the wife of the accused for cultivation work in his house on daily wages for a day or two. She worked for the last time on 22nd Pous, 1385 B.S.I., and left his house in the afternoon of the 22nd Pous. On 25th Pous he was called by the Daragobabu and along with him, P.W.I, P.W.6, the accused and one Shyamapada Mondal all went to the bank of Gopal Dighi. "Darogababu asked Tarapada to produce the weapon with which he killed his wife. Tarapada brought out the Katari from the bed of Gopal Dighi in our village. Darogababu seized such Katari by preparing a seizure list in our presence". On being shown Ext. I (Katari) the witness stated that some weapon of the similar nature was produced, but he could not say it this particular weapon was produced since he saw it'' from a distance. He identified the signature in the said seizure list (marked Ext.1/2).

In cross examination, he stated that P. W. I, P.W.6 and Shyampada were made to stand a bit away while the Darogababu took the accused Tarapada to the site where from the Katari was recovered. After sometime the Darogababu brought out one Katari and told them that this weapon was recovered.

P. W. 2, Ramani Ranjan Mitra, a resident of Ajhapur, saw the dead body of Sefali after it was already dug out at "Banchikurer Math". P.W.I identified the dead body to be that of the wife of his brother Tarapada. He found multiple injuries on her person and recognised the dead body to be that of Sefali, wife of the accused. He notice some pieces of broken Choories and blood, and dried up leaves of parble leaves lying beside the dead body. The police seized the articles lying there, and he signed the seizure list. Cross examination was declined.

P. W. 4 a police officer, attached to the Photographic Cell, Burdwan D.I.B., on requisition took photographs of the dead body of Sefali. P.W.8 Sadhan Bauri, is a resident of Ajhapur and resides in the bank land of Thakurpukur. He deposed that Sefali, the wife of the accused could not be traced from Friday in the month of Pous about two and a half years ago (the witness deposed on the 30th May, 1979). P.W.6 went in search of her at her father''s place, but she was not traced there. On Saturday cowherds found.some broken Choories, some hairs and some blood lying at Benchikurer Math and reported the same to the villagers, on the next morning, P.W.1., the Chowkidar and the witness went to the spot in question and found a dead body after removing some leaves of parble trees a raised site nearby. He could identify the body to be that of Sefali. P.W.1 and the Chowkidar went to inform the police asking them to keep watch on the body. Thereafter, Darogababu came, held an inquest over the dead body and seized the articles lying there. In cross examination, he stated that the police arrested P.W.I on the date when the body was recovered. The witness''s house is intervened by a pond from the house of the accused. P.W.6''s house to visit the accused''s house. He denied that the villagers suspected Sefali''s relation with R.W.6.

P. W. 10 Nirmai Sarkar, is an agent of India Steam Laundry having his shop at 67/5/1, Strand Bank Road, Calcutta. He knew the accused for a long time as working in a flower market at Jagannath Ghat Road. The accused used to have his clothes washed in his laundry for a long time. On 7.1.77 the accused gave one Terry Cotton Pant and Shirt for washing, as would, appear from the carbon copy of the cash memo, the original of which was made over the accused. While giving the marks of the laundry upon the clother so received, he found blood marks on the Terry Cotton shirt of the accused. The police seized those clothes under a seizure list which he signed. The witness identified the shirt in question in court. He made a statement before a Magistrate at Burdwan u/s 164 Cr.P.C. and was also examined by the I.O.

In cross examination, he stated that he recorded the name of the customer as Tarapada only. Tarapada also gave one lady''s chadder for washing, but he could not remember if there were any marks of blood on that chadder. Both the shirt'' and pant given by the accused for washing, were washed before the police officer seized the same. He denied that he did not see marks of blood, and that the shirt was not given washing by the accused. He denied that he had deposed as a witness tutored by the police. The accused was giving his clothes for washing at his laundry for 21/2 to 3 years before this occurrence. After 7.1.77 he did not give clothes for washing in his shop.

P. W. 16, Bhim Ch. Mondal is a resident of Basuli Danga, P.S. Diamond Harbour. About 21/2 year prior to June, 1979 (the witness deposed on 12th June, 1979) he used to work in a shop of Sunil Mukherjee under the old Howrah Bridge. The accused Tarapada also worked in the same shop and both of them used to put up in the shop after working hours, at that time the accused took Rs. 2/- from him and left the shop at about 2/2.30 P.M. stating that he would go to the cinema. He did not return to the shop that bight, but came back at 7/7.30 A.M. next morning and asked the witness to bring a soap and after he brought the soap the accused started washing his clothes. About 4/5 days latter a police officer came to the shop and examined him.

In cross examination, he stated that he had no other place to reside in Calcutta besides the said shop room, at that time. He denied that he did not sleep in the shop room on the relevant night, a contradiction was brought on record by the defence that he stated to the I.O. that he did not sleep in that shop that night since he was alone. He denied that.he had deposed falsely about the accuser''s taking Rs. 2/- from him. The witness had given up the job about one year ago. He denied the suggestion that he did not sleep in the shop room on the relevant night but that the accused Tarapada slept there.

P. W. 11 was the driver of a private jeep at the time when he deposed in May, 1979 and ''previous to that, was a home guard. The nail cuttings and clothes of the. accused were seized in his presence by the police under two seizure lists (Exts.4 and 4/1) which he signed.'' He identified the loongi, genji and under pant, being the wearing apparels of the accused seized on that occasion (Ext. 11 collectively). Cross examination was declined.

P. W. 12 a constable bearing No. C/1614 of Jamalpur P.S. at the relevant time, identified the dead body of Sefali to P.W.9 who held the post-mortem examination in connection with this case, in cross examination he denied that he did not identify the dead body to the doctor.

P. W. 9 - Dr. S. L. Bhattacharjee, was the Medical Officer attached to B. C. Hospital, Medical College, Burdwan at the relevant time. On 10.1.77 at 2.10 P.M. he held the post-mortom examination on the body of Sefali Bauri, Hindu female aged 19 years of Ajhapur, Thakurpukur, Jamalpur P.S. On being brought and identified by constable No.C/1614 and another constable No.C/1266 with reference to Jamalpur P.S. Case No. 5 dated 9.1.77 (which is the present case). He detected the following injuries on. her person:

1) Two insides wounds in the scalp, 3" xl/2" and 3"x 1/2"x 1/2" over the main parietal region obliquely placed.

2) One incised wound over the dorsum in between the scapulae obliquity placed - 2"x1/2".

3) Most part of the leg(right side) and upper part of chest mussel and neck kidnapped by wild animals. Hyoid Doses broken left side. Seminal discharges at vagina with matting of pubic hair detected. Multiple hemorrhagic spot seen. The body was decomposed.

The death, was due to throttling, manual strangulation, ante-mortem and homicidal in nature. The incised injuries described may be caused by sharp cutting weapon like the Katuri shown to him in court. Fracture of hyoid bones and conjectures of both the lungs leads him to opine about strangulation and throttling. Seminal discharge might have been due to cohabitation with a male person. The dead body was found quite identifiable. In cross examination, only one question was put in answer to which, the witness replied "it is a fact that the body was identified by the constable before me".

P. W. 17 Sri D. Chakraborty, as S.D.J.M., Burdwan on 13.1.77 recorded the confessional'' statement of the accused u/s 164 Cr.P.C. (Ext.6). When he deposed in June, 1979 he was the additional Sessions Judge, Assansol. On 13.1.77 the accused was produced at 10.30 a.m. When he examined the accused and found him willing to; make a confessional statement in this case. He sent the accused to Burdwan Jail with a direction that he be produced at 3 P.M. on that date for the purpose of recording the statement. He gave the necessary caution to the accused that he was not bound to make a confession and that if he did so his statement might be used against him as evidence and he may even be sentenced to death, so that he should think whether he would make any confession. He told the accused that he was a Magistrate and that the accused would not be remanded to Police Custody if he refused to make any confessional statement. On that date at 3 P.M. the accused Tarapada Bauri was again produced before him from Burdwan Jail. He again reminded the accused about the effect of making any confessional statement. He kept the accused in his chamber in charge of his orderly peon to give the accused time for further reflection. No outsider or police was allowed to enter his chamber. Thereafter, at 4.30 P.M. after putting the preliminary questions mentioned in Ext.6 and being of the view that the accused was willing to make a voluntary statement, he recorded the confessional statement of the accused (Ext.6). The said statement was read-over to the accused who admitted the correctness thereof and put his L.I.T. on each page of the statement. The witness appended a necessary certificate after recording the confessional statement.

He also recorded on the same date a statement u/s 164 Cr.P.C. of P.W..10, Nirmal Sarkar. On 15.1.77 he also recorded a statement u/s 164 Cr.P.C. of one Sunil Mukherji.

In cross examination, he stated that he verified from the police report and also from the accused that he was produced from the jail custody at 3 P.M.. on 13.1.77. He denied that the statement of the accused was not voluntarily made. No police personnel was visible from his chamber when his statement was recorded.

P. W. 13 is a formal witness who took over charge of the case from the I.O., P.W. 18, on his transfer. He made over charge of the case to P.W.14, and himself took no part in the investigation. Cross examination was declined P.W. 14 submitted the charge sheet in this case on 15.8.77. after completion of investigation. Cross examination was declined.

P. W. 15, Satyabrata Ghosh Hazra, the C.I. (Sadar), Malda, at the time when he deposed, was the O.C. Jamalpur on 9.1.77. He seized the full-pant the shirt from the shop of P.W. 10 and a cash memo receipt (copy) standing in the name of the accused. He arrested the accused at Kasirampur at the house of his father-in-Law on 12.1.77. at 2.20 A.M. He met the I.O. (P.W.18) and was present when the I.O. recorded the statement of the accused u/s 161 Cr.P.C, wherein the accused stated that he would produce the Dao from the bed of Gopal Dighi, Ajhapur. He accompanied P.W. 18 and force to the spot on the bed on the north-eastern corner of Gopal Dighi as led by the accused, where from the accused produced the Dao (Ext III). In cross examination he denied that the real culprit was not implicated in this case.

No question was. put in cross examination to this witnesses at all relating to his evidence against the accused as noted above.

P. W. 18 S.I. N. C. Das, is the first investigating officer of this case. On 9.1.77 at about 11.30 A.M. he recorded the F.I.R. verbally lodged by;;P.W.1 at the Jamalpur police station (Ext 9/II). He drew up. the forma F.I.R. on the basis of the said F.I.R. and started the present case Formal F.I.R. marked as (Ext.9). He took up investigation and held an inquest over the deadbody in presence of witness at Berv-chikurer Math, Ajhapur. He sezied one blood stained Satranchi, one broken choori of red colour, one broken piece of Sakha in iron cord, some hair some dried up leaves of parbles and some white cush grass with which the body was covered He also seized some blood stained blouze, a blood-stained (torn) printed saree; one sky colour petticoat with blood stains, one tailsmen, one necklace of steel and one aluminium ear ring under two seizure lists (Exts.1/3 and 1/4 respectively). He identified the wearing apparels in court (Ext. IV collectively). He send the body for'' post-mortorn examination escorted by P.W. 12 and another constable No. C/1266. He prepared'' a rough sketch map of the local with index (Ext. 10). He requisitioned the services of photographer and examined witness. The accused, after being arrested by P. W.15 on 12.1.77 made a statement in consequence of which a Katari was recovered from Gopal Dighi, as led by the accused. The same was recovered in the presence of witnesses and the seizure list was drawn up He identified the Katari being (Ext. III). He forwarded the accused for recording his confessional statement Thereafter, he seized one under-wear, one half sieve net genji, a fungi and some nail cuttings of the accused under two seizure lists (Exts. v/3 and 4/4). On 14.1.77 he seized a lady''s chaddar from the laundry of P.W. 10 with the connected receipt under a seizure list (Ext.3/1). He identified the chaddar (Ext.VI). He collected the post-mortem report and submitted a prayer for recording the statements of P.W. 10 and one Sunil Mukherji u/s 164 Cr.P.C. He sent the seized alamats for examination by the Forensic Science Laboratory. On his transfer, on 6.2.77 he made over charge of investigation to P.W. 13.

In cross examination, he denied that the F.I.R. was not recorded as per dictation of the deponent or that the same was not read over to the deponent. He denied that the accused was assaulted severely and them produced in Court. He denied that he tutored the accused to make a confessional statement or that the accused was forced to make such a confession under threat by the police. In cross examination, he further stated that "the seizure list was prepared after the Katari was recovered. The Katari was produced by the accused. The accused made a statement and in fact, led to the recovery of the Katari from the spot himself". He did not arrest any other person besides the accused in connection with this case. He denied that he did truthfully record the statements of the witness u/s 161 Cr.P.C. He denied that the accused was arrested at Kashirampur on 10.1.77 by the O.C. of the police station.

In his examination u/s 313 Cr.P.C. he stated. that although it was true that the Darogababu took him to the north-eastern bank of Gopal Dighi, he did not bring out any Katari (chopper). He denied that he had come to his house as deposed to by P.W.5. He denied that he did not return at night to the shop room as deposed to by P.W.16, but stated that he was there in the shop room on that night in question. He denied further that he took any money from P.W.16 or that he asked for any soap from P.W. 16. He stated, "I washed my own articles with my own soap". With regard to the confessional statement made be fore P.W.17 he stated, "Darogababu beat me severely and tutored me to confess the guilt and further said that if I did not say accordingly he would beat me again. I was compelled to make that statement out of fear".

Mr. Chakrobarty, learned Advocate for the accused has submitted that the evidence in this case was insufficient to bring home the charge-leveled again the (sic) with regard to the recovery of the Katari is not consistent. With regard to the confessional statement of the accused, recorded by P.W.17, he has submitted that since the accused has retracted the same the Court should only rely upon the same if it was satisfied that the confession was in fact, voluntary, true and received corroboration from other evidence. He has further submitted that an adverse inference u/s 114(g) of the evidence Act should be drawn against the prosecution for the non-examination of Sunil Mukherji.

Mr. Mukherji, learned Advocate appearing on behalf of the State, has submitted that the retraction of the confession is a belated one and the said statement received sufficient corroboration from other evidence and circumstances. He has submitted that the recovery of the Katari from the tank in consequence of the statement of the accused and his act of leading the police to that place, speak volumes.

In his confessional statement (Ext.6) the accused has very clearly stated that he killed his wife Sefali, with the help of a Katari, since he was absolutely certain that she had been unfaithful to him, having had sexual intercourse with his step brother. Suddenly on returning to his village residence on "7th Pous last" he became Certain that Sefali had just had sexual intercourse with his step brother, whom he saw coming out of the house. Next day he had his Katari sharpened and kept it in his house. He went to Calcutta. He came back from Calcutta after a few days on "last Thursday". He had left his place of work in Calcutta on the plea of witnessing a cinema show. That night, he woke up Sefali in the early hours of the morning on the pretext of taking her to her father who he had told Sefali falsely, was seriously ill. He set out with her on the pretext of taking her to her father and on the way he struck. her with the chopper, which he had carried with him concealed. She fell down unconscious. He lifted her on his shoulder and when they reached "Banchikurer Math" he laid her down on the ground. He found Sefali gazing at him and he struck her with the help of the chopper, and Sefali died. He then covered the deadbody of Sefali with parble creepers, grass etc. Then, he kept the Katari hidden inside the water of Gopal Dighi. He washed his hand and feet at the Railway Station and reached Calcutta by train. At his place in Calcutta he washed the blood stains off his wearing apparels. After a fews days a person came to him from his father-in-law''s house and informed him about the murder of Sefali. Then, he went to his father-in-laws house. The O.C. of the police station came in a jeep and took him to the police station from his father-in-law''s house. In Ext.6 the accused stated that I confessed everything and I brought the Katari from the pond and gave it to the Darogababu".

Human blood was detected on the saree, saya and blouse of the deceased, as well as the earth seized from the place where Sepall''s body was found. The Katari in question, the loongi and the nail cuttings of the accused contained blood stains, which were disintegrated and their origin could not be determined by the Serologist and Chemical Examiner to the Government of India.

We have carefully considered the confessional statement of the accused (Ext.6). We are fully satisfied that the said confession of the accused was both voluntary and true. We are satisfied that the learned Magistrate (P.W. 17)'' appropriately questioned the accused to satisfy himself that the confession was voluntary and true. The retraction of the confession is a belated one, the retraction being at the sessions trial. No complaint regarding any coercion, threat or any inducement was filed before any authority at any prior point of time.

It has been held by the Supreme Court in the case reported in Ram Chander Prasad Sharma Vs. State of Bihar and Another, , that a conviction based on retracted confession without corroboration is not illegal. In paragraph ii of the said judgment the Supreme Court has observed as follows :

In Pyaralal Bhargav v. The State of Rajasthan, AIR 1963 SC 1994 this Court, while pointing out that ordinarily corroboration is required, it is not a rule of law, but only a "rule of prudence. It is also said that it is not an inflexible rule or practice or prudence that in no circumstances such a conviction can be based without corrobotion on a retracted confession.

It is clear that the facts stated in the confession of the accused (Ext6) are by themselves sufficient for upholding the conviction of the accused u/s 302 and 201 IPC. In this case the said confession receives ample corroboration from the evidence already discussed, which, in our view, is also reliable. Further, even if we are to exclude the said confession (Ext.6) wholly from our consideration, the circumstantial evidence on record is sufficient for upholding the conviction of the accused, both u/s 302 and 201 IPC.

The evidence of P.W.5 makes it clear that the accused wanted to conceal the fact that he had come to his village residence very shortly before Sefali was found missing. The evidence of P.W. 16 shows that the accused did not return to the shop on the night mentioned-" by the witness. On coming back next morning the accused washed his clothes with soap and sater. He has deposed, as already noted hereinbefore, that the accused had left on the pretext of going to a cinema after taking Rs. 2/-. P.W. 10 has deposed that he found blood mark spots on the terry-cotton shirt of the accused given to him for washing by the accused.

The fact that the Katari in question was recovered from Gopal Dighi, the police having been led to the place of recovery by the accused, has been deposed by P.Ws.1, 3, 6, 15 and 18. In this case, the evidence of the said live witness reliably show that it was the accused who led the police to the particular place where the Katari had been kept concealed. Even though P.W.15 and P.W.18 stated in their evidence that the accused led the police and produced the Katari from the spot himself. No suggestion that this was not so, was given to them in cross examination. The confession of the accused (Ext.6) received full corroboration from the evidence of these five witnesses regarding the recovery of the Katari, on being produced by the accused, after the accused had led the police to the place of recovery. P.W.1 has admitted in cross examination by the learned assistant Public Prosecutor (after he was declared hostile) that "1 along with the Darogababu, Kalipada Laha, Shyam Mondal went to the north-east corner of Gopal Dighi at Ajhapur about 2/3 days after the occurrence. Tarapada was also with us and he brought out a Katari from the north-east corner of the bed of such Dighi". In the case of Sat Paul v. Delhi Administration, 1979 (1) SCC 727 the Supreme Court has clearly laid down that when a witness is cross examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law; be treated as washed off the record altogether. It is for the judge of facts to consider in each case, whether as a result of such cross examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. We do not find that as a result of his cross examination by the prosecution, P.W.I stands so thoroughly discredited that no part of his testimony can be believed.

The deceased Sefali was last seen in her house while the accused was there, as deposed to by P.W.5, who stated "when I went to ask for rice from her, at that time some one.crossed me by the door of their house. I asked Bowma who was that person. Bowma told me that it is your nephew". From the confessional statement of the accused (Ext.6) it is clear that the accused had come back to his village home with the definite plan of murdering his wife. The aforesaid statement of- the deceased to P.W.5 is admissible u/s 32 sub-section (1) of the Evidence Act since it relates to the circumstances of the transaction which resulted in her death. Moreover from both in the cases reported in Goloke Behari Takal and Others Vs. Emperor, which is a decision of the Division Bench and Allijan Munshi Vs. State, which is also the decision of a Division Bench, it is clear that it has been held that Section 32 of the evidence Act is not a complete code relating to the admissibility of statement made by persons who are dead. We may point out that illustration (a) to Section 6 (the "by-standers", may not be alive at the time of the trial). Illustration (3 and K) to Section 8, and illustration (i) to section 14 of the Evidence Act, go to show that.

The plea of alibi taken by the accused in one of his answer, in his examination u/s 313 Cr.P.C. and in the suggestion in cross examination of P.W.16 has not been proved on the balance of probabilities by the accused. u/s 103 of the Evidence Act, and in particular under illustration (a) thereof the onus of proof of the alibi lies on the accused.

The accused in this case, as the evidence shows, after murdering his wife concealed her dead body. The provocation in this case given by the deceased''s conduct in having an adulterous relationship with the accused step brother was certainly grave but. not sudden. The accused even after he came to realise with certainly that his wife was being unfaithful to him waited and very carefully planned her murder. We are satisfied on the materials on record that the prosecution has succeeded in proving beyond all reasonable doubt the charges u/s 302 and 201 I.P.C. against the accused. We accordingly uphold the conviction and sentences both u/s 302 and Section 201 I.P.C, and affirm the judgment and order of the Trial. Court. This appeal is dismissed.

Gobindra Chandra Chatterji, J.

I agree.