- (1.) This appeal arises from the order of conviction and sentence dated 17th May, 2006 and 18th May, 2006 passed by the Additional District and Sessions Judge, Fast Track, 1st Court, Contai, Purba Medinipur in Sessions Trial No. XIV/August/04 whereby and whereunder the accused appellant was convicted and sentenced to suffer rigorous imprisonment for life and pay fine of Rs. 1,000/-, in default, to suffer rigorous imprisonment for three months for the offence punishable under Section 302 IPC and to suffer rigorous imprisonment for three years and pay fine of Rs.1,000/- in default rigorous imprisonment for three months for the offence under Section 201 I.P.C. Both the sentences were to run concurrently.
(2.) The case of the prosecution is that the accused appellant on 28th April, 2004 came to his house and found the victim girl washing utensils. He asked the victim girl to give him lunch and the said request went unheeded. In fact, when the victim girl virtually denied to serve him lunch, he then hit her head with a brick as a result of which she fell in the tank. He went out of the house and on return he found the dead body of the victim girl floating in the tank. He then took her out from the tank water and laid her on the varandah. She had already died and in the night he placed the dead body of the victim girl inside the septic tank and put lid thereon. Subsequent thereto he consumed poison and was removed to the BPHC at Mugberia. He made a statement to PW-2, doctor and it was on basis thereof that PW-2 filed a complaint on 30th April, 2004 at 9-35 hours. On basis thereof Bhupatinagar P.S. Case No. 19/04 dated 30.4. 2004 under Sections 302/201 IPC was started. It is only after the filing of the said FIR that the body of the victim lady was recovered and inquest made at 11-00 hours. Thereafter the body was sent for postmortem purposes and the said postmortem was conducted at 16-00 hours on 30th April, 2004. On completion of investigation, charge sheet was submitted and the matter committed to the Court of Sessions. Thereafter it was transferred to the Court of the Additional District & Sessions Judge, Fast Track, 1st Court, Contai who framed charge under Section 302/201 IPC and read out and explained the charge to the accused/appellant who pleaded not guilty and sought to be tried. In all at trial prosecution examined 20 witnesses. The accused/appellant was examined under Section 313 Cr.P.C. and on consideration of oral and documentary evidence, the order of sentence was passed. Being aggrieved by the said order, this appeal has been filed.
(3.) The case of the accused appellant is that the FIR so also inquest are anti-timed as from the postmortem report it will appear that the body was decomposed and the injuries could not be identified. Nonetheless, the inquest report is in great detail. Both the inquest and the postmortem were conducted on the same date within a few hours and the body could not have decomposed after the inquest was made. The filing of the FIR at 9-35 hours has also been disputed. Habu Maity, the dom who removed the body of the victim lady from the septic tank has not been examined. At the time of inquest, two injuries were found: one on the middle of the head and another on the right side of the head. The injury on the middle of the head was caused by some heavy object. The said injuries should have found mention in the postmortem report but no injury mark has been mentioned by the postmortem doctor. The witnesses at the time of inquest were four in number. Jiban Krishna Mal, one of the inquest witnesses has not been examined and P.W.3 so also P.W.14 though not witness to the inquest have signed the inquest report. P.W.1 is the brother who has been declared hostile. He was a witness to the inquest but could not prove the inquest report. He also has not supported removal of the body from the septic tank. He found the body lying in front of the house and there is no mention by him of the injuries mentioned in the inquest report. P.W.2 is the de facto complainant and he has not certified physical and mental capacity of the accused appellant at the time of recording Exhibit-4 which according to him was in his presence so also in the presence of P.W.6 and P.W.8. The said document though signed by the accused appellant has not been attested by anyone and the bed head ticket was not retained by the I.O. but kept in the of Jimma of PW.2. This is a defect in investigation. The conscious condition of the accused appellant finds no mention in Exhibit-4 nor has it been corroborated in the bed head ticket by P.W.6. It was on 29th April, 2004 that the accused appellant was admitted to the hospital. The I.O. did not examine any witness, therefore, words cannot be put to them. The inquest being a manufactured document is in doubt and the I.O. proceeded with investigation with a pre-conceived notion. The postmortem report is not conclusive. Gourchand Maity brought the accused appellant to the BPHC but he was not examined. The recording in the FIR is contrary to the substantive evidence of P.W.-2 as he did not mention the keeping of the dead body of the victim lady in the septic tank. P.W.3 is an interested witness and he came to know from one Lal Mohan Dhara who has not been examined. The evidence of P.W. 3 is contrary to that of P.W.1 and, therefore, ought not to be believed. P.W.3 is nothing but a tutored witness. P.W.4 has been declared hostile and he has not stated anything of much importance. P.W.5 has stated that one Kartik and Tapas reported the consumption of poison by the accused appellant. Both Kartik and Tapas have not been examined. The neighbours of the accused appellant have also not been examined. So also Buddhadeb Maiti from whom for the first time P.W.5 heard of the murder of the victim lady. The time when the police received the information is in doubt. P.W.13-nurse, has not been declared hostile and therefore her evidence must be accepted. She has categorically stated that P.W.6 reduced in writing the statement of the accused appellant in his duty room where the accused appellant was not present.;