- (1.) THIS appeal is directed against a judgment passed in sessions Trial No. 72/03 on 10th December, 2003 convicting the appellants under Sections 302/34 and 201/34 of the Indian Penal Code and a further order dated 11th December, 2003 sentencing the appellants to suffer life imprisonment as also to pay a fine of Rs. 10,000/- each, in default to suffer further simple imprisonment for one year for commission of offence punishable under Section 302/34 and further sentencing them to suffer rigorous imprisonment for 7 years as also to pay a fine of Rs. 10,000/- each, in default to suffer rigorous imprisonment for one year for commission of offence under section 201/34 of the Indian Penal Code. The charges framed againstthe appellants are as follows:- "first-That in the night of 1 st/2nd day of January, 2001 on the under constructed roof (2nd Floor) of Pannalal Nunia of Bally Durgapur near State Bank of India, Durgapur Branch under P. S. Bally, Dist. Howrah in furtherance of your common intention did commit murder by intentionally of knowingly causing the death of Raj Kumar Thakur and thereby committed an offence punishable under Section 302/34 of the Indian Penal Code and within my cognizance. Secondly-That you in the aforesaid night and at the aforesaid place, in furtherance of your common intention having reason to believe that an offence like murder punishable to death or life imprisonment, committed by you, did cause certain evidence to disappear by way of hiding the dead body of Raj Kumar Thakur under bricks at the under constructed roof (2nd Floor) of the house of Pannalal Nunia with an intention of screening yourself from the legal punishment of murder and thereby committed an offence punishable under Section 201/34 of the Indian Penal Code and within my cognizance. "
(2.) THE learned Trial Judge formulated as many as 15 points for determination. Point Nos. 9'and 10 formulated by the learned Trial Judge are as follows:- "did the circumstances clearly denote that the accused persons in furtherance of common intention committed culpable homicide amounting to murder by causing the death of the deceased- Raj Kumar on 1/2-1-01 in the three storied building of Pannalal Nunia? did the accused persons in furtherance of common intention hide the dead body of deceased- Raj Kumar on the stack of bricks situated in the roof of a constructed building of Pannalal Nunia in order to cause disappearance of the evidence of offence of murder on the night of 1/2-1-01?"
(3.) THERE is no evidence on the record to show as to when did Raj kumar die. According to the case of the prosecution appearing from the f. I. R. Suresh a minor, aged about 6 years smelt a stench in the 2nd floor of an under construction building, belonging to the complainant Pannalal. Suresh is the son of Pannalal. He reported the matter to his mother Arati. Arati went to the 2nd floor along with Suresh and smelt a stench. She informed the matter to her husband Pannalal. He went upstairs and tried to ascertain the source of stench. Some bricks were lying in the room adjacent to the staircase of the 2nd floor. The stench appeared stronger to him in that room. Upon close scrutiny he noticed legs of a human being in the stack. He immediately informed the matter to the police station and the Panchayat Officer. Police came and recovered a dead body of an unknown person after removing the bricks. The dead body was found in a sitting position leaning against the wall with bent knees and the neck tied with knots made up of jute thread and a muffler engulfing his neck. The tongue was protruding out with face decomposed. In the F. I. R. it is alleged that someone killed him and had hidden the dead body. The complainant is a resident of an adjacent hut. The complainant (P. W. 1) deposed that there were 12 rooms in the building fully tenanted. But no one complained of any foul smell or any stench. P. W. 5 working in an office situate in the concerned building deposed that he did not get any foul smell before he actually went to the 2nd floor room on 9th January, 2001 after the matter became public.;