- (1.) Leave granted.
(2.) In these appeals challenge is to the judgment of a Division Bench of the Calcutta High Court dismissing the appeal filed by the appellants. Both the appellants were convicted for offence punishable under Sections 302, 201 read with Section 34 of the Indian Penal Code, 1860 (in short the 'IPC'). Three persons were accused of the alleged offences. One of them, i.e. Md. Nayeen @ Raju did not face the trial. Learned Additional Sessions Judge, 1st Court, Alipore, in the district of 24 Parganas (South) in Sessions Trial No.1(1) of 1995 found the appellants guilty, and convicted and sentenced them. Cemetery located at 184, Acharya Jagadish Chandra Bose Road, Calcutta-17 was working in his office at the said premises on 10.2.1994. At about 3 P.M. on that day one Lakshman Singh a Gardner of the cemetery came to Mr. Arland in his office and informed him that a boy aged about 10/12 had come to him earlier and informed him that a dead body was lying on the south east corner of the said cemetery. On getting I such information from Lakshman Singh, Mr. Arland asked Lakshman Singh to go and ascertain as to whether the information of the boy was at all correct. Lakshman Singh left the office and after sometime came back to Mr. Arland and reported that the dead body with a cut mark on the back was lying on its back in a half dug position at the south eastern corner of the cemetery. Having learnt this from Lakshman Singh, Mr. Arland and Lakshman Singh went to the place at which the dead body was lying and found that a person aged about 25/26 years, wearing a blue colored sweater and jeans pantaloon and having gaping wound on the neck was lying at the south east corner of the cemetery. Mr. Arland then called out to the man repeatedly so as to ascertain as to whether the man had any life. But, he did not get any response. Mr. Arland also noticed some quantity of blood on the ground at a distance of about 10 feet to the north of that person lying dead. He could not ascertain the identity of the dead body. Then Mr. Arland came back to his office and informed the Beniapukar police station over phone of the matter being sure that the man was murdered by some unknown persons and was left within the cemetery in a half buried condition. On getting such information from Mr. Arland on phone Beniapukar Police came to the Christian Cemetery within 10 to 15 minutes and Mr. Arland was examined by the police. Mr. Arland gave a statement to the police regarding the said incident and his statement was recorded by the police. Mr. Arland then went through the statement and signed the same. He then went to the spot alongwith two of his employees so as to help in the matter of lifting the dead body from the spot. Mr. Arland then called one Sheo Sagar and another employee so as to help the police. Police then lifted the dead body from the spot with the help of those employees. Police then prepared a report and Mr. Arland signed it. Police also prepared three seizure lists in his presence in regard to many articles like earth stained with blood, some burnt black and greenish plastics stained with blood, some quantity of control earth, one black shoe with one socks inside, one cement slab, one blue jeans and one blue sweater, which the dead body was wearing and another deep brown socks lying under the cement slab. Police found the dead body under the cement slab. The seizure lists as were prepared by the police were signed by Mr. Arland along with other witnesses. Police also labelled the seized articles in presence of Mr. Arland and other witnesses and they also signed such labels. As police left the spot after doing their job, Mr. Arland came back to his office within the cemetery.
(3.) The statement of Mr. Arland as given to the police and recorded by the police was treated by the police as the F.I.R. of the case and Beniapukur police recorded the case No. 32 dated 10.2.1994 u/s 302/201 I.P.C. against unknown persons. S.I. Sahajamal Mondal who went to the spot along with other police personnel on getting the telephonic information of Mr. Arland as shown earlier, took up the investigation of the case under the orders of his superior officers. He also made entries in the General Diary of the police station while leaving for the spot and after coming back to the police station. He sent the original FIR formal F.I.R. and the seizure lists to the court of the Ld. A.C.J.M. Sealdah, along with prayer for keeping the seized articles in the police station malkhana. He also sent necessary requisitions to the Professor Forensic and State Medicine, N.R.S.. Medical College, Calcutta, for holding the post mortem examination of the dead body. He also had been to the said morgue on that day. On 12.2.1994 he sent a requisition to the Plan Making section of Detective Department, Lalbazar asking it to take appropriate steps by coming to the place of occurrence. Thereafter on 17.2.94 the then O/C of Beniapukar Police Station Sashanka Sekhar Dey arrested accused Md. Nadir, brought him to the police station and handed over the accused to S.I. Sahajamal Mondal. S.I. Sahajamal Mondal then interrogated Md. Nadir and pursuant to his statement he recovered some articles being led by Md. Nadir. On 17.2.1994 the accused was taken up by the Detective Department of Calcutta Police for further investigation. After investigation charges were filed. Since the accused persons pleaded innocence they were tried. In order to prove accusations, prosecution examined 34 witnesses. The trial Court noticed that the witnesses could be categorized into six categories. Out of these, witnesses belonging to 2nd and 3rd category had last seen accused and the deceased together. So far as third category is concerned, they deposed to have seen the accused and the deceased at the point of entry. At the time of departure, The accused persons alone came out. The fourth category speaks about the presence of accused persons at the scene of occurrence and category five belongs to recovery. Learned counsel for the appellants submitted that the case rests on circumstantial evidence. The medical evidence on which the prosecution relied falsifred the prosecution case because the doctor found the presence of injuries and, therefore, the presence of body of deceased for three days rules out the prosecution version that the injuries were inflicted on 6.2.1994. It is pointed out that there are several persons working near the scene of occurrence. But for four days the body of the deceased could not be noticed. It is further submitted that scaling of the wall as stated by some witnesses is not probable. So far as the confessional statement by accused Md. Azad is concerned it is stated that no burning was coming. But plea is given that burning was coming. It is submitted that during examination under Section 313 of the Code of Criminal Procedure, 1973 (in short the 'Code') no question was put about PW-24. There would be no question of conspiracy and mere presence cannot lead to inference of guilt of conspiracy. It is pointed out that only one witness speaks out scaling while others did not. With reference to the doctor's evidence it is pointed out that the doctor spoke that there was no alcohol in the lungs and the brain. Therefore, the identification of the accused is of no consequence.;