GITESH RANJAN BHATTACHARJEE, J. - (1.) Both the Death Reference and the Appeal are being dealt with and disposed of by this judgment as they arise out of the same judgment of the trial Court, namely, Sessions Judge, Cooch Behar passed in Sessions Case No. 79/94. The learned Sessions Judge has by his impugned judgment and order convicted the appellant-accused Sambhu Goala alias Yadav under S. 302, I. P. C. and has sentenced him to death. He has also convicted the accused under S. 201, I. P. C. and has sentenced him to R. I. for seven years for such conviction. It may be mentioned here that the present appellant Sambhu and his mother Sita Goala were tried in the same trial. While the accused Sambhu was charged under Section 498-A, 302/34 and 201/34, I. P. C. his mother, the co-accused was charged under Section 498-A, I. P. C. only. The learned Trial Judge, however, acquitted both the accused persons in respect of the charge framed against them under S. 498-A, I. P. C. But as stated above the accused Sambhu was convicted and sentenced under S. 302 and S. 201, I. P. C. The trial Court has made the death reference for confirmation of death sentence. The accused Sambhu also has preferred the appeal against the conviction and sentence imposed on him by the trial Court.
(2.) The appellant-Sambhu married one Bulbuli alias Anita who was the daughter of the de facto complainant Smt. Sudharani, the informant who lodged the FIR on 21-3-88 at 5 p.m. at Kotowali P. S., Cooch Behar. It is stated by Sudharani in the FIR that her daughter Bulbuli was married in Magh, 1388 B. S. to Sambhu Goala, the appellant herein who was a hawker in trains and who constructed a house on the railway khas land and started living there with his wife. It is also the case in the FIR that Sambhu started torturing Bulbuli after one year of the marriage and suddenly in Chaitra, 1393 B. S. the complainant realised that her daughter and son-in-law Sambhu were missing from their house and they thought that perhaps they had gone somewhere and were waiting for their return and as they did not return even after one year they became suspicious and in the meantime the complainant's another son-in-law Tapan Talapatra informed her about three months back that he came across Sambhu and Sambhu told him that Bulbuli was staying in the house of his Meso, Misirlal Yadav in Gorakhpur. It is further stated in the FIR that as Misirlal used to work at New Bangaigaon, the complainant got in touch with Misirlal and also went to Misirlal's house at Gorakhpur but Bulbuli could not be traced out. It is also stated in the FIR that 'today', that is 21-3-88; the complainant's son-in-law went to Sitalabari Colony at Alipurduar and saw Sambhu, but no trace of Bulbuli was obtained. It is the prosecution case that Sambhu was caught there and taken to Alipurduar P. S. and subsequently police from Kotowali P. S., Cooch Behar went to Alipurduar P. S. and brought the accused Sambhu who confessed that he murdered his wife Bulbuli and buried her under the floor of the hut where he used to live at Cooch Behar, and (as) guided by Sambhu the police party and others went to that hut and on the showing of Sambhu earth of the floor of the hut was dug and a dead body, virtually consisting of only bones and hair without flesh was recovered by such digging of earth alongwith certain other articles including some wearing articles of Bulbuli. On completion of investigation police submitted charge-sheet and accordingly, as we have noted, charge was framed against the accused and trial was held and concluded as stated above.
(3.) We now proceed to discuss the evidence of witnesses. P. W. 1, Sudharani Dutta is the complainant who lodged the FIR. She is the mother of Bulbuli. In her evidence in 1997 she says that her daughter Bulbuli died 10 years back and she was given in marriage to Sambhu Goala about 15 years back. She further says that after marriage Sambhu and her daughter Bulbuli used to live at New Cooch Behar and in the family of Sambhu there used to live his mother, Bulbuli and another man named Goutam who was not related to Sambhu. She says that one year after marriage of Bulbuli with Sambhu she found none in their house. It is submitted on behalf of the appellant that this statement is inconsistent with the FIR version that the complainant realised in Chaitra, 1393, B. S. that Bulbuli and Sambhu were missing from their house. It, however, appears to us that the statement of Sudharani in her evidence that since after one year of the marrigae none was found in their house is the result of some confusion about the lapse of time and this in our opinion has no material bearing on the merit of the prosecution case which, as we will find, is supported by other reliable evidence. P. W. 1 says that they made search at different places for their missing daughter but to no effect and that her second son-in-law Tapan Talapatra who used to reside at Cooch Behar Town met Sambhu and wanted to know about Bulbuli and Sambhu promised to take him to Bulbuli but subsequently Sambhu escaped and did not meet Tapan again and then her another son-in-law Putul Burman got Sambhu at New Alipurduar and Sambhu was brought to Alipurduar P. S. where Sambhu confessed in presence of P. W. 1, her brother Sunil Das, Parasuram Jha, Putul Burman that he had killed Bulbuli and thereafter he buried her under the earth in his bed room at New Cooch Behar. She further says that then police from Cooch Behar town went to Alipurduar and brought Sambhu Goala to his house at New Cooch Behar where he used to reside and Shambhu pointed out a place inside his room and stated that he had buried the dead body of Bulbuli below the earth there. From her evidence it appears that a cot was placed at that spot and there was bed upon the cot. She says that police dug out the place and brought out the dead body of Bulbuli from below the earth. She further says that out of profound grief she left the place as she would be unable to bear the shock. She, however, says that she did not see the dead body of Bulbuli. She says that she reported the occurrence to Kotowali P. S. and Darogabak wrote down her verbal information and read over the same to her and thereafter being satisfied she signed the same. In her cross-examination she says that Sambhu used to live in the house which was at a distance of half bigha from the house of P. W. 1 intervened by four other houses and the distance being only about 15/16 cubits. She further says that Sambhu's house was in front of her house and there were houses around the house of Sambhu. She says that when her daughter was lost and not found on search she reported the matter to Kotowali police and G. D. entry was made. It has been submitted on behalf of the appellant that no such G. D. entry has been produced in the case. In her cross-examination P. W. 1 says that one month after lodging the FIR they came to know that Bulbuli had been murdered and her dead-body had been buried under the earth. It has been criticised by learned Advocate for the appellant that this falsifies the prosecution case itself inasmuch as the prosecution case is that the lodging of the FIR and recovery of the dead-body of Bulbuli by digging earth happened on the same date. In our opinion, in view of the overwhelming and reliable evidence about the date of recovery of the skeleton by digging earth, it is evident from the statement of P. W. 1 that they came to know that Bulbuli had been murdered one month after lodging the FIR is clearly the result of some confusion in the matter. In all probability what she meant to say in that context was that it was one month after lodging of the G. D. entry that they came to know about the fact that Bulbuli was murdered and her body was buried. Be that as it may, there is no doubt that inaccurate statement of P. W. 1 in this respect does not falsify the recovery of the skeleton on 21-3-88. It is suggested on behalf of the defence to P. W. 1 in her cross-examination that there was no dwelling house of Sambhu at Cooch Behar on the railway land and that the house in question belonged to Sambhu's mother. P.W. 1, however, denies that suggestion and says that Sambhu himself constructed that house. In our opinion the question whether the house belonged to Sambhu or Sambhu's mother is not a fact of vital consequence in the matter. The fact remains that there was a hut in which Sambhu used to stay there.;