- (1.) In the instant appeal the appellant has challenged the judgment of Conviction and order of sentence dated 11.03.2005/15.03.2005 passed by the Learned Additional District & Sessions Judge, Fast Track Court, Howrah in S.T.Case No.391 of 2004 convicting him under Section 302 Indian Penal Code and sentencing him to undergo imprisonment of life and to pay a fine of Rs.1000/ -, in default to undergo rigorous imprisonment for one year for the offence u/s 302 IPC.
(2.) Put in a short frame, the prosecution case runs as under: - On 14.05.2004 in the early morning at about 05.55 hours, the appellant came to Bally P.S. and stated that in the preceeding night (13.05.2004/14.05.2004. he had committed murder of one Shakti Chakraborty of Dilip Colony near Rajchandrapur Railway Station, P.S. Bally out of previous grudge with the help of wooden stick and sickle and kept the dead body of the deceased in a ditch under the railway culvert near to the Rajchandrapur Railway Station. Accordingly, a G.D. Entry being Bally P.S. G.D.Entry No.922 dated 14.05.2004 was recorded. The Duty Officer Mr. Asit Kumar Sau, Addl. I.C., Bally P.S. informed the I.C. Bally P.S. and thereafter, he along with officers and force left P.S. along with appellant to pursue his statement. Reaching at Rajchandrapur Dilip Colony, he contacted with the family members of the deceased and collected independent witnesses and proceeded to the spot i.e. the ditch under the railway culvert adjacent to the cabin towards Dankuni side and with the help of local people brought out the dead body of the deceased which was duly identified by Smt Lakhi Chakraborty, wife of the deceased and others and mark of injuries were found on the dead body. S.I. Anirban Chakraborty held the inquest and prepared report and sent the dead body of the deceased for post mortem examination. Thereafter, on being shown by the appellant, the offending weapons namely the wooden stick in two pieces one of which was stained with blood and a handkerchief said to be belonging to the deceased were recovered from the cultivated land of Mathur Chandra Pal of Basukathi P.S., Bally, District: Howrah and one pair of Hawai Chappal of the deceased being identified by his wife found on the northern side of 'Guyer bandh' and the sickle measuring about 7/8" was brought out from the water of that Bandh by the appellant. The search and recovery of those offending weapons as well as the belongings of the deceased were made in presence of witnesses and were seized under seizure list duly attested by the witnesses and the appellant. After returning to Bally P.S. along with the appellant and the seized articles, Inspector Asit Kumar Sau lodged a suo moto complaint on the basis of which Bally P.S. Case No.127 of 2004 dated 14.05.2004 u/s 302 IPC was registered. That case was investigated into and on completion of investigation; charge sheet was submitted u/s 302 IPC against the present appellant. Thereafter, the case was placed for trial before the Ld. Addl. District & Sessions Judge, Fast Track Court, Howrah who framed charge u/s 302 IPC against the present appellant and after conclusion of the trial, he held the appellant guilty and convicted him as aforesaid. Prosecution examined in all 9 witnesses in its support. Out of those witnesses, P.W.1, Inspector of Police Sri Asit Kumar Sau is the complainant who on receipt of the information from the appellant conducted the search and recovered the dead body of the deceased and the offending weapons and other articles and made seizure under seizure list ; P.W.2 is Balaram BIswas before whom the appellant allegedly made confession. He, however, did not support the prosecution case and he was declared hostile by the prosecution; P.W.3 Madan Bar, P.W.4 Bidyut Dutta and P.W.5 Kartick Samanta are the witnesses to the inquest; P.W.6 Mathur Chandra Bag is a seizure witness; P.W.7 is A.S.I. of police Subodh Chandra Pratihar who received the written complaint from the P.W.1 and registered the case; P.W.8 is Dr. Harekrishna Chandra who held post mortem and P.W.9 S.I. Anirban Chakraborty is the Investigating Officer of the case.
(3.) Mr . Jayanta Narayan Chatterjee, Learned Counsel for the appellant while advancing his argument drew our attention to the following loopholes in the alleged chain of circumstances pin pointing the guilt of the appellant: - a. Prosecution failed to prove that the appellant came to P.S. and gave any statement; b. The alleged F.I.R. in which the appellant admitted the commission of the murder is not at all believable; c. There is no evidence of enmity between the appellant and the deceased or of any motive; d. No member of the family of the deceased was examined nor any witness is there to prove that the appellant had shown the place of recovery; e. No witness has stated that local people brought out the dead body although it is alleged in the FIR; f. No G.D. Entry was seized, produced or exhibited; g. No explanation was assigned as to how the specific P.S. case number e.g. Bally P.S. Case NO.127/04 dated 14.05.2004 was inserted in the inquest report which was prepared at 9.45 hours while the said P.S. case was registered only at 1.45 PM; h. All the witnesses of seizure namely P.W.3, P.W.4, P.W.5 and P.W.6 did not support the prosecution story of presence of the appellant during the alleged search, recovery and seizure of the dead body and the incriminating articles. i. The seized articles were not sealed, labelled or identified by any witness. Also none of the witnesses put his signature on such articles; j. The alleged weapon of offence i.e. the wooden Batten was not sent for FSL examination and report. He thus emphatically contended that the prosecution has miserably failed to establish the chain of circumstances so as to make it complete and unerringly fixing the appellant with the alleged offence of murder of the deceased Sri Shakti Chakraborty. So the conviction cannot be sustained and the appellant is entitled to an order of acquittal by setting aside the impugned judgment and order. He relied on the decisions reported in 1993 SCC (Cri) 1053, 2000. 6 SCC 269, 2001. 6 SCC 181, 2003. 3 SCC 153, 2003. 6 SCC 175, 2003. 5 SCC 499 and 2008. 1 C Cr LR (SC). 862 in support of his contention.;