GIRISH CHANDRA GUPTA - (1.) THIS appeal is directed against a judgment dated 31st January, 2008 passed by the learned Additional Sessions Judge, 3rd Court, Purulia in Sessions Case No. 97 of 2007 corresponding to Sessions Trial No. 10 of 2007 arising out of G/R Case No. 612 of 1997 in connection with Jhalda P.S. Case No. 71 of 1997 by which the learned trial Judge held the appellant guilty of an offence punishable under Section 302 of the Indian Penal Code and by an order dated 1st February, 2008 sentenced him to rigorous imprisonment for life as also to pay a fine of Rs. 10,000/-, in default of payment of fine to undergo further rigorous imprisonment for a period of 2 years.
(2.) THE case of the prosecution briefly stated is that on 30th June, 1997 at about 7O clock in the morning Muchuk Singh, a cousin of the accused, was chased by the latter and was mercilessly hacked to death by a tangi in the courtyard of the defacto complaint (P.W.1) in presence of the mother and the Jethima of the defacto complaint for unknown reasons. THE written complaint was lodged at about 12.30 hrs. THE distance between the place of occurrence and the Jhalda P.S was about 14 Kms. THE inquest was held at about 14.45 hrs. on 30th June,1997. THE inquest report is ext. 2 wherein it is indicated that the victim Muchuk Singh was killed due to family disputes. In the written complaint besides indicating that the mother and the jethima of the defacto complainant were the witnesses to the incident it was also indicated that Monbodh Mahato had seen the accused escaping with a tangi in his hand. THE mother of the defacto complainant died before the trial commenced. THErefore, the only witness according to the F.I.R., available at the time of trial was the Jathima of the defacto complainant and the said Monbodh Mahato. THE Jethima in her deposition adduced on 7th August, 2007 deposed that she was 100 years old. According to her when the incident took place besides her no one else was present. When she came to give evidence she was practically blind. She claimed that at the time when the incident took place she had her eyesight. She did not however answer the question put to her in the crossexamination as to when was she interrogated by the police. She admitted that when the police interrogated her she could not see well. Mr. Kapor, learned Senior Advocate and former Additional Solicitor General appearing as the amicus curae to represent the indigent appellant submitted that the evidence adduced by the P.W.2 was far from satisfactory and could not be relied upon. According to him the witness was blind even on the date of the incident. She admitted during her cross-examination that she could not see well when she was interrogated by the police. The interrogation is likely to have taken place immediately after the incident or at the highest within a matter of months. Mr. Kapor contended that her blindness is further established by the fact that during her examination-in-chief she did not claim to have witnessed the incident. The evidence adduced by this witness during her examination-in chief reads as follows :- Muchuk Singh was my debar. He is no more. He was cut down and murdered by accused Chhutu. The murder took place on the 15th Ashar, on a Monday. I was then in my house. No one else was then in my house. It was then about 7 a.m. I have practically lost my vision at present, due to cataract. I had my vision at the relevant time. I am about 100 years old. {The witness is very old and aged and is clearly infirm). I can see very little due to cataract. The only other witness who according to the written complaint had seen the accused escaping from the place of occurrence with a tangi in his hand is Monobodh Mahato (P.W.4) who in his examination-in-chief deposed as follows: - I am resident of vill. U-hatu, under P.s. Jhalda. I knew Muchuk Singh, of my village. He is no more. Muchuk Singh was cut down and murdered by accused Chhutu Singh, who is present in Court today, (identified), about ten years ago, in the month of Ashar. Mr. Kapor contended that the case of the prosecution appearing from the written complaint was not supported by the P.W.4.
(3.) BESIDES, the eye witnesses the case of the prosecution rests upon an alleged discovery of the offending weapon and an alleged extra-judicial confession. The offending weapon, it is alleged, was discovered by the police on the basis of statement made by the accused. The alleged statement allegedly made by the accused was not recorded nor was any such writing produced or exhibited in Court. Therefore, the only thing available to the court is the seizure list (ext.5) which appears to have been witnessed by two independent witnesses namely Charan Singh Thakur and Netai Kalindi. The said Netai Kalindi was not examined and the said Charan Singh Thakur (P.W.5) admitted in his crossexamination that the tangi was seized, early in the evening of the relevant day, but I cannot say the date of the seizure, nor can I specify the time of seizure, more accurately. I was not present at the scene, at the moment the tangi was recovered. The alleged confession according to the P.W.5 was made by the accused at the time of recovery of the offending weapon. Mr. Kapor contended that the alleged recovery and the alleged extra-judicial confession are all figments of imagination of the police which is firmly established by the admission of the P.W.5 that he was not present at the time of recovery of the alleged offending weapon. The only other witness to the seizure was not examined. The offending weapon was not even produced in Court nor was the same shown to the autopsy surgeon. The last witness to be examined was the I.O. himself. He admitted that he did not obtain opinion of the autopsy surgeon as to whether the death of the victim could have been caused by that tangi. The tangi was never sent to the Forensic Science Laboratory. The Tangi, as a matter of fact, was produced in Court only when the last witness that is the I.O himself was examined. The I.O. further admitted during his cross-examination that It is not noted in the C.D., that the seized Tangi was duly entered in the thana Malkhana register. The Tangi produced in Court, does not have any Malkhana register No. embossed on it.;