I.N.Hore, J. - (1.) The instant appeal is directed against the judgment and order dated 31st May, 1966 passed by a learned Additional Sessions Judge, Midnapur in Sessions Trial No. 26 of September, 1983 convicting appellant Guru Prasad Gurupada Mishra under Sections 302 /34 and 201 /34 of the Indian Penal Code and sentencing him to imprisonment for life and to rigorous imprisonment for 3 years respectively with a direction that the sentences would run concurrently. Two other accused persons Jagmohan Adhikari Khokan and Milan Acharjya were acquitted of both the charges under Section 302/34 and 20 1/34 of the Indian Penal Code.
(2.) Briefly stated, the prosecution case is as under: Mohini Mishra of village Sudampur, P.S. Moina, District Midnapur was a music teacher. He was a married man living with his wife and cousin in his house at Sudampur. Appellant Guruprasad Mishra and PW Banibrata were pupils of Guruprasad Who used to live with him in his house. Accused Milan Acharjya is the Bharabhai (sister-in-laws husband) of the deceased. The other accused Jagamoban is a close friend of Milan. Both these friends used to visit the house of Mobini Mohan and Milan picked-up intimacy with Manju and Alpana who are the wife and cousin of Mohini Mohan respectively. A few days before the occurrence, Mohini Mohan protested against the conduct of these two friends and at this Milan threatened him with dire consequences. They gave a large sum of money to appellant Guru-pada and with his help killed Mohini Mohan with an axe on the night of 3.7.81 while Mohini Mohan and Gurupada only were inside the house - Thereafter, they secreted the evidence of murder, packing the dead body in a gunny bag and thre wing it in, river Chandia about 100 cubits away from the house of the deceased. On enquiries by Makhanlal Mishra, the younger brother of the deceased (PW 3), Banibrata Das (PW 5) and others the appellant told them that some unknown persons had taken Mohini Mohan to Calcutta in a taxi. On 6.7.81 the appellant, however, made a confession to PW 12 Amal Kumar Maity and PW 9 Sukdev Jana that he along with two unknown persons killed Mohini Mohan and put his dead body in a gunny bag and threw it in, river Chandia, Sukdev then informed Anchal Prodhan PW 18 Ashoke Taru Hera. At first PW 18 did not take it seriously but when the gunny bag with the dead body was found floting on 7.7.81 and bad odour was coming out from it; PW 18 sent a written information to the Police Station. PW 1 A.S.I. Sarat Chandra Sarkar, on receipt of the said information, started a U.D. case and visited village Sodampur. The gunny bag containing the dead body was brought on the shore and the dead body of Mohini Mohan was recovered. PW 1 held inquest and sent the dead body to the morgue, PW 1 drew up a suo moto First Information Report on the basis of which, a police case was started. PW 20 S.I. B.B. Salla took up investigation of the case and after completion of the investigation submitted charge sheet-against the appellant and others which in due course ended in the committal of the case to the Court of Session. 3. The defence case was one of denial simpliciter. 4. In order to bring home the charges to the accused the prosecution examined 20 witness, while the defence examined none.
(3.) The murder of Mohini Mohan is not disputed before us and has also been proved by overwhelming evidence. The evidence of PW5. 1, 2, 3, 5, 6 and 18 shows that on 7.7.81 the dead body of Mohini Mohan Wills recovered from river Chandia by PW 1. It was wrapped up in a gunny bag which wall floating on the river PW 1 held inquest. There were marks of injuries on the neck, face and nose. PW 15 Dr. H.K. Roy the then S.D.M.O. Tamluk, who held the postmortem examination on the dead body of Mohini Mohan Mishra found the following injuries: 1 One incised gaping wound 6 x 4 x vertebral bone deep on the back of upper part of the neck: 2 One incised wound 4 x 3 x bone deep on the scapular region. In the opinion of the doctor, death was due to shock and haemorrhage due to the cut injury on the neck described above which was antemortem and homicidal in nature. According to the doctor, the two injuries were sufficient to cause instantaneous death. There is, therefore, no doubt that the deceased was brutally murdered and the dead body was wrapped up in a gunny bag and thrown in the river Chandia with the object of causing disappearance of the evidence of murder in order to screen the offender from legal punishment. 6. The next question, and the crucial one, is whether the appellant was responsible for the death of the deceased and causing disappearance of the evidence of murder. 7. There is no direct evidence of any eyewitness in this case. The prosecution case rests upon extra-judicial confession, since retracted, and circumstantial evidence. Let us first consider the alleged extra judicial confession, According to the prosecution, the appellant made two extra judicial confessions - the first before PW 12 Amal Kumar Maity and the second before PW 9 Sukdev lana. PW 12 Amal Kumar Maity was a student of the deceaood and he used to 12 to the house of the deceased toT take lessons in music on every Sunday on payment of a remuneration of that- per month. His evidence does to show that on Sunday, 21st Ashar corresponding to 5.7.81 he went to the house or the deceased at of about 11.00 A.M. At that time appellant Gurupada used to stay in the house of the deceased. On his queries, Gurupada told him that the deceased bad gone to Calcutta. He stayed in the house of the deceased with Gurupada on that night. Next day (6.7.81) he had lunch cooked by Gurupada in the house of the deceased. After lunch when he was about to leave the hone of the deceased for his village between 1.30 P.M;