- (1.) These appeals being C.R.A.556 of 2011 and C.R.A.944 of 2013 have been filed by Sk. Khairul @ Makhan Sk. and Kashmira Begam respectively against the order of conviction and sentence dated 21st May, 2011 and 20th May, 2011 respectively for the offence under Section 302/120B I.P.C. whereby and whereunder the said appellants have been directed to suffer imprisonment for life and to pay fine of Rs.1,000/- in default to suffer simple imprisonment for three months. The case of the prosecution is that Mantu Mondal, fourth brother of Habu Mondal, the defacto complainant aged 29 years resided with his wife and children in Erachia village. He was a day labourer. The daughter and son-in-law of Azijul, the elder brother of the deceased had come to visit the defacto complainant two or three days ago. As there was no sufficient accommodation in the house of the defacto complainant, the daughter and son-in-law of Azijul went at 9 p.m. on 15th September, 2010 to the house of the deceased to sleep. They were given an inner room to sleep in while the deceased, his wife and children slept on the verandah. The wife of the deceased Kashmira, the accused appellant in C.R.A.944 of 2013 at about 10:45 p.m. woke up to feed the child milk and while feeding her child fell asleep. At 11 p.m. her husband woke her up and informed her that some unknown miscreant had stabbed him with a knife in the throat. The deceased thereafter became seriously ill and a hue and cry was raised by the wife, which attracted the neighbouring people and the defacto complainant went to the house of the deceased and found him lying unconscious with bleeding injury.
(2.) Thereafter the deceased was taken to Burdwan hospital where he succumbed to his injuries. An F.I.R. was filed on 16th September, 2010 by Habu Mondal, the brother of the victim and the same was received at 16:05 hours and Bhatar P.S. Case No. 44/10 dated 16th September, 2010 under Section 302 I.P.C. was started. Based on the information received from the hospital U.D. Case 1075 of 2010 was started and an inquest was conducted under Section 174 Cr.P.C. Grievous injuries were found on the neck of the deceased at the time of inquest. On completion of the inquest the body through C/2942 Sanat Sarkar was sent for postmortem examination. Postmortem was started on 16th September, 2010 at 13:40 hours. At the time of postmortem several injuries were found on the body of the victim and the opinion of the doctor was that the death was caused due to stab wound and was anti mortem and homicidal in nature. On registration of the case investigation was initiated and undertaken. On completion of investigation charge-sheet was submitted against the appellants under Sections 302/120B I.P.C. The case was thereafter committed to the Court of Sessions. Charges were framed and read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried. Thereafter, the case was transferred to the Court of Additional Sessions Judge, 4th Court, Burdwan for trial. In all 18 witnesses were examined and documents exhibited. The accused appellants were examined under Section 313 Cr.P.C. No D.W. was adduced. Based on the oral and documentary evidence the order of conviction and sentence was passed. Being aggrieved by the said order of conviction and sentence C.R.A. 556 of 2011 was filed by Sk. Khairul @ Makhan Sk. and C.R.A.994 of 2013 was filed by Kashmira Begam. Counsel for the accused appellants submits that the recovery made under Section 27 of the Evidence Act, cannot be relied on as it was not pursuant to any statement recorded. The I.O. (P.W.18) has nowhere in his evidence stated the nature of information given on the basis of which the recovery was made. In the absence of a statement made so also information imparted by the accused Makhan Sk. the recovery made under Section 27 of the Evidence Act is no recovery in the eye of law and cannot be relied upon. AIR 1993 SC 1469, 2003 (3) SCC 353, 1985 Criminal Law Journal 1807, AIR 1979 SC 1262, AIR 1929 Lahore 344 and For the said proposition reliance is placed on Mangu Singh vs. Dharmendra & Anr,. The wooden 'butt' which was recovered was to match the sharp portion and that it was the offending weapon had also to be proved as is necessary as held in 2014 (14) SCC 609. There is no link between the discovery of the offending weapon and use of such weapon in commission of the crime. P.W.5 has spoken about an illicit relationship between the appellants Makhan Sk. and Kashmira Begam. But in the F.I.R. the defacto complainant has nowhere mentioned of the illicit relation between the two. P.W.1 has in his evidence stated that Kashmira made an extra judicial confession before the para people but the para people have not been examined. P.W.1 is not a trustworthy witness as Alzolam which was administered to the victim was not sent for FSL and the same does not match with the postmortem report. P.W.1 has stated that the knife was found on the bed whereas P.W.8 has stated that the knife was found by the side of the bed, the I.O. (P.W.18) has stated that he found the knife in the verandah. Therefore, the place from where the knife was seized is not certain. Blood found on the knife so also on the clothes were not sent for FSL and the link in a case of circumstantial evidence gets disconnected.
(3.) The offending weapon (Material Exhibit III) was seized in the presence of P.W.1 and P.W.13. P.W.13 has turned hostile and the said seizure was not on the basis of the statement made by the accused Makhan Sk. The seizure list by which the wooden butt was seized has not been proved. Only the signature of P.W.13 has been proved and P.W.13 has turned hostile. Therefore, the seizure is of no importance. The said recovery cannot be relied on as blood on knife did not match with the blood on the clothes and as held in 2008 (3) SCC 2010, benefit of doubt ought to be given to the accused. It has been held in 2015 (11) SCC 174 that in a case of circumstantial evidence each link or event must be extricably linked. In the instant case the chain has been broken by the knife and the clothes not being sent for FSL. The case of the prosecution has proceeded on mere suspicion which has not been proved. It is for the prosecution to prove its case and it is only then that resort can be taken to Section 106 of the Evidence Act as held in the case of Ranjit Singh vs. The State of Punjab. In a case of circumstantial evidence where investigation is defective, the benefit of doubt will go in favour of the accused as held in 2014 (12) SCC 133. For all the said reasons, therefore, the order of conviction and sentence be set aside.;