- (1.) This appeal is directed against the judgment and order of conviction dated October 18, 2006 and sentence dated October 19, 2006 passed by the learned Additional Sessions Judge, Fast Track, 2nd Court, Paschim Medinipur, in Sessions Trial Case No.LVII of April, 2001, convicting him for committing offence under Section 302 of IPC as also sentencing the appellant to suffer rigorous imprisonment for life and pay a fine of Rs.500/- in default to suffer further simple imprisonment for one month. It was further mentioned that the appellant committed murder of his own father Biswanath Murmu. The provisions of law under Section 25 of the Hindu Succession Act should be automatically applicable. He would get set off against the period in custody he had already undergone under Section 428 of Cr.P.C.
(2.) The backdrop of the prosecution case is discussed in a nutshell as follows:- A letter of complaint dated September 14, 1995 was submitted by one Srikanta Murmu (PW 1), who happened to be the brother of the appellant to the Officer-in-Charge, Belpahari Police Station, Medinipur. PW 1 lodged the above complaint on the basis of the information gathered from his mother. According to the above letter of complaint, on September 13, 1995 at about 6 pm in the afternoon the appellant, second brother of the de facto complainant (PW 1) assaulted their father, Biswanath Murmu (victim) on his head with the help of a sharp cutting weapon "Kural" (axe). There had been profused bleeding from the place of injury of the aforesaid father of PW 1, who ultimately breathed his last at about 7 pm on the same date. The place of occurrence of the above incident was the residence of the victim situated at Vill.-Odolchua under Simulpal "Gram Panchayat", District-Medinipur. The above letter of complaint was treated as First Information Report to initiate Belpahari P.S. Case No.20/95 dated September 14, 1995 against the appellant for commission of offence under Section 302 IPC. The above case was handed over for investigation to Anadi Nath Das (PW 12), a Sub-Inspector of police who was posted at Belpahari Police Station, Jhargram, District-Midnapur, at the material point of time. During investigation of the above case PW 12 visited the place of occurrence on September 14, 1995. The place of occurrence was identified by PW 1. He prepared rough sketch map. The weapon of offence (axe) was seized by him from the place of occurrence. Control earth and blood stained earth was collected from the place of occurrence. Seizure lists of the above articles were duly prepared. He also examined witnesses present at the place of occurrence and recorded their statements under Section 161 of Cr.P.C. Inquest report over the dead body of victim was prepared by the PW 12 on September 14, 1995. The dead body of the victim was sent to the Jhargram hospital, District-Paschim Medinipur for post mortem. Dr. R.K. Satpati, Medical Officer of S.D. Hospital, Jhargram at the material point of time, held post mortem examination in respect of the dead body of the victim in connection with U.D. Case No.9 of 1995 dated September 14, 1995.
(3.) According to the post mortem report prepared by the PW 10, the cause of death of the victim was shock and haemorrhage due to injuries mentioned in the above post mortem report which were homicidal and antemortem in nature. Charge dated July 23, 2003 was framed against the appellant for committing offence punishable under Section 302 of IPC. After considering the documentary and oral evidences, the learned Additional Sessions Judge, Fast Track, 2nd Court, Pachim Medinipur passed the impugned judgment and order of conviction and sentence against the appellant. It is submitted by Ms. Meenal Sinha, learned Counsel appearing on behalf of the appellant that the impugned judgment, order of conviction and sentence are not sustainable in law:- (i) The only eyewitness died during pendency of the trial. Her statement which had been recorded under Section 164 of Cr.P.C. should not have been taken into consideration by the learned Court below in view of contradictions of those statements with other evidences. Therefore, the case of the prosecution was based on circumstantial evidence. (ii) The place of occurrence of the incident was not proved. None of the prosecution witness was present at the time of occurrence of the incident. The examination-in-chief of the PW 2 does not speak of the place of occurrence. He was declared hostile and prosecution was permitted to cross-examine him. PW 4 and PW 7 were the local witnesses but they simply saw a covered dead body. (iii) The place of recovery of weapon of offence was not proved beyond doubt. According to the evidence of PW 1 and PW 3, the weapon of offence was recovered from the house of the deceased. But, according to the seizure list, the weapon of offence was recovered from the house of the appellant. Since the house of the accused was not mentioned in the rough sketch map, the place of recovery of weapon of offence could not be ascertained from the same. That apart, FSL report was not collected. (iv) PW 12 come to know from the PW 2 that his father had demanded sell proceeds of the articles sold by the appellant in the market which he refused to give to the deceased. There was an altercation in between the appellant and the deceased before the murder took place. But the above incident of altercation in between the deceased and the appellant was not corroborated with the evidence of any other witness. Therefore, according to Ms. Sinha, there was no scope to punish the appellant under Section 302 of IPC. (v) There was enough time for sending the body of the deceased to a hospital nearby on the date of occurrence of the incident. According to the prosecution case, the incident took place in the afternoon on September 13, 1995. The inquest of the dead body was done on September 14, 1995 at about 9.30 am on the basis of the U.D. case but the FIR was lodged on September 14, 1995 at 08.15 hrs. to initiate Belpahari P.S. case no.20/95 dated September 14, 1995. (vi) There was delay of considerable period of time in informing the police about the incident. (vii) The carbon copy of the post mortem report should not have been taken into consideration by the learned Court below as primary evidence. (viii) Though the weapon of offence, seized control earth and blood stained earth were sent for F.S.L. examination but the report was not collected. (ix) In the charge framed on July 23, 2003, the time and cause of death of the father of the accused was not mentioned. So, it was not sustainable in accordance with the provisions of Section 212 of Cr.P.C. (x) There was a contradiction with regard to the evidence of PW 5 and that of the PW 12. According to PW 5, she heard the shouting of her mother-in-law, the wife of the deceased, with regard to killing her husband by the appellant. But, according to the evidence of the PW 12, it was not disclosed before the PW 12. (xi) The de facto complainant (PW 1) came to know the incident from his mother. Reliance is placed on the statement of the mother recorded under Section 164 of Cr.P.C. She died during the pendency of the case. From the above statement of mother of the appellant no incident of altercation in between the appellant and his deceased father was evident. According to the above evidence, the appellant was drunk at the time of occurrence of the incident. In view of the above there was no scope of convicting the appellant under the provisions of Section 302 of IPC.;