Sankar Prasad Mitra, J.
1.This appeal has been directed against the judgment dated 6th September, 2000, passed by the learned Additional Sessions Judge, Malda, in Sessions Case No. 25 of 1995, Sessions Trial No. 16 of 1997, whereby the appellant was convicted and sentenced under Section 302 of IPC to suffer rigorous imprisonment for life and to pay a fine of Rs. 2000/- in default to suffer rigorous imprisonment for six months. He was also sentenced under Section 364 of IPC to suffer rigorous imprisonment for seven years. The appellant was further sentenced under Section 201 of IPC to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 1000/- in default to undergo rigorous imprisonment for three months and all the sentences were directed to run concurrently.
2. The crux of the prosecution case is that on 15th March, 1990, one Anil Mardi, P.W. 7 lodged a complaint at Habibpur Police Station being scribed by Susil Kr. Hembram, vide Exhibit 2 series to the effect that his sister Kamala was married with the appellant Chunda Murmu about six years back and since 10th March, 1990 the said sister was not traceable. He searched for his sister but in vain and at the same time he suspected that his sister was murdered by her husband, Chunda, the appellant in collusion with her father-in-law, Charan Murmu and her deadbody was dumped in a place. On the basis of such complaint, P.W. 16, S.I. P.K. Dutta filled in the formal FIR vide Exhibit 6 and took up the investigation of the case as I.O. and started Habibpur P.S. Case No. 17/90 dated 15th March, 1990. The I.O. during investigation visited the P.O., held inquest on the deadbody of the victim in presence of witnesses vide Exhibit 1 series after exhuming the deadbody of the victim from the Kuthi Ghar of Charan Murmu at Village Horegram, P.S. Habibpur in presence of B.D.O. Manas Kr. Mondal, P.W. 15 P.W. 10, Jadu Hembram, P.W. 5, Subhas Soren, P.W. 6, Bishu Hembram, P.W. 8, Jogesh Mondal, Constable No. 171 and other villagers. That apart the I.O. sent the deadbody of the victim under a deadbody chalan to Malda Sadar Hospital, vide Exhibit 4 series through Constable Jogesh Mondal, P.W.8 for P.M. examination which was held by Dr. D. P. Chatterjee, P.W. 14. In the course of investigation the I.O. P.W. 16 also seized some mud-stained hay from the Kuthi Ghar, some earth, diluted earth, one kodal and one tali in presence of witnesses under a seizure list dated 15th March, 1990, vide Exhibit 5 series. That apart the I.O. also seized the wearing apparels of the victim, Kamala i.e. mud-stained green cheek saree, mud-stained green petty-coat, black blouze stained with mud and glass phial with P.M. blood in presence of witnesses vide Exhibit 3 series. P.W. 14, Dr. D.P. Chatterjee, who held P.M. examination on the deadbody of the victim, Kamala, opined that the death was caused due to homicidal throttling. The I.O. also examined the witnesses and on his transfer the case was handed over to P.W. 9, S.I. Amalendu Ghosh who ultimately submitted chargesheet against Chunda Murmu and Charan Murmu under Section 302/364/201/34 of IPC. Since CharanMurmu, father of Chunda Murmu expired during the pendency of the case the Trial Court had framed charges under Section 302/364/201/34 of IPC against Chunda Murmu (appellant).
3. The appellant in answer to the charges pleaded not guilty and claimed to be tried. The defence of the appellant as appearing from the trend of cross-examination as well as his examination under Section 313 of Cr. PC is that he is innocent and that he has been falsely implicated in this case.
4. In this case the prosecution in order to prove the charges has examined as many as 16 witnesses including the I.O., the doctor, who held the P.M. examination and exhibited several documents referred to above. That apart scized articles like mud-stained green check saree, mud-stained green petty-coat, black blouse stained with mud and glass phial with P.M. blood had been materially exhibited as Exhibits I, II, III, IV and V respectively. No defence witness has been adduced by the appellant in support of his defence.
5. In this case none has actually seen Chunda Murmu to kill his wife, Kamala but the learned Trial Judge after considering the circumstantial evidence appeared against him and the testimonies of prosecution witnesses, came to a conclusion that it was the appellant who killed the victim and dumped her deadbody in Kuthi Ghar at village Habibpur belonging to his father Charan Murmu (since expired) and therefore, he found him guilty under Section 302/364/201 of IPC and sentenced him accordingly. In this case the appellant has challenged the findings of the learned Trial Court and urged for setting aside the conviction and sentence imposed upon him.
6. It is for us to consider whether the judgment dated 6th September, 2000 passed by the learned Trial Court should be sustained or not?
7. Mr. P.S. Bhattacharya, learned Advocate appearing on behalf of the appellant drawing our attention to the evidence adduced by the prosecution witnesses submitted that the prosecution case could not prove when the accused/appellant was arrested. It is further submitted by him that if the appellant was arrested on 15th March, 1990 from Palasdanga then why he was produced to the Court of SDJM on 17th March, 1990. According to him, time gap between the arrest of the appellant and his production before Court simply shows that the appellant was not arrested on 15th March, 1990. If that be so, then he would have been produced before the Court of SDJM on 16th March, 1990. In this connection, it is further submitted by him that since the arrest of the appellant Chunda Munnu on 15th March, 1990 is doubtful he had no occasion to make any confessional statement or any statement before police leading to discovery of the deadbody of Kamala from Kuthi Ghar of Charan Murmu. Mr. Bhattacharya further drawing our attention to the statement made by the appellant under Section 313 of the Cr.PC submitted that no question was put to him about the recovery of the deadbody of Kamala from the Kuthi Ghar on his showing. Therefore, the appellant did not get any opportunity to explain the circumstances which highly prejudiced him. It is also submitted by him that there is no evidence that on showing by the appellant the deadbody of the victim (Kamala) was recovered and the B.D.O. P.W. 15 could not identify the appellant and, therefore, the presence of the appellant at this spot is doubtful. Mr. Bhattacharya further submitted that in view of such contradictions, the prosecution's case should not be believed and as such the judgment dated 6th September, 2000 passed by the learned Additional Sessions Judge, Malda, against the appellant should be set aside by this Court.
8. On the contrary, Mr. Susil Mahato, learned Prosecutor appearing on behalf of the State drawing our attention to the testimonies of the prosecution witnesses including the document exhibited in this case, submitted that P.W. 16,I. O., S. I., P.K. Dutta has explained in his evidence that the appellant was arrested from Palasdanga on 15th March, 1990 and he stayed at the P.O. on that day from 15.45 hrs. (3.45 p.m.) till 11.35 a.m. i.e. 11.35 hrs. of the following day i.e. 16th March, 1990 and thereby explained why the appellant was produced before SDJM Court on 17th March, 1990 instead of 16th March, 1990. It is further submitted by him that there are plethora of evidence to show that the appellant who married Kamala picked up quarrel with her for which there was a salish which was not attended by the appellant and his father and the victim Kamala was driven out from his house and she started living with Bishu Murmu. Sometime thereafter the appellant took away Kamala from the house of Bishu with him and since 10th March, 1990 Kamala was found missing. It is also submitted by him that a search was made by the villagers for Kamala and Chunda but in vain and Chunda was also found missing from his house at Horegram and subsequently the appellant was apprehended from Palashdanga on 15th March, 1990 and the appellant made confessional statement and also made a statement before police while in custody. On the basis of such statement as pointed out by him the deadbody of Kamala was exhumed from the Kuthi Ghar of Charan Murmu, father of the appellant. Mr. Mahato also submitted that the body was exhumed with the help of Subhas Soren and Bishnu in presence of B.D.O. and local M.L.A., I.O. and Jogesh Mondal. Therefore, non-identification of the appellant by the B.D.O. will not change the complexion of the case. It is, therefore, submitted by him that the Trial Judge had rightly convicted and sentenced the appellant which should be sustained by this Court.
9. It becomes evidently clear that P.W. 14, Dr. D.P. Chatterjee who held P.M. examination on the deadbody of Kamala at Malda Sadar Hospital on 16th March, 1990 being identified by constable Jogesh Mondal, P.W. 8, opined that the death of the victim was due to homicidal throttling and as a result hyoid bone fractured. So it becomes crystal clear that the death of the victim was unnatural. It, therefore, becomes the question who actually killed the victim. In this case there is no eye-witness to show that the victim was killed by her husband, Chunda Murmu. However, the prosecution in this case tried to establish from the deposition of witnesses that a chain of circumstances has been formed pointing out the appellant as the only person who could kill his wife (Kamala) and dumped her deadbody in the Kuthi Ghar of Charan Murmu with a view to causing disappearance of evidence of murder. Now let us see what are the chain of circumstances which can be relied upon to prove the guilt of the appellant. Let us now scrutinize the evidence on record in order to arrive at a definite conclusion as to the guilt of the accused. It appears from the testimonies of P. W. 2, Saniram Hasda, P.W.3, Sujan Mardi, P.W. 4, Kista Mardi, P.W. 7 Anil Mardi and P. W. 11, Bhavatosh Koley that the appellant married the victim Kamala. P.W. 1 Anil Soren, P.W. 2, P.W. 3, P.W.4, P.W.6, P.W.7 and P.W. 13 Rabiram Kisku most of them are co-villagers have stated in their evidence about the existence of quarrel between Kamala and the appellant. According to P.W. 1 and P.W. 3 for settlement of dispute a salieh was held which was not attended by the appellant and his father and thereafter Kamala was driven out from the appellant's house and she started living with Bishu Murmu, P.W. 6. The oral testimonies of P.W. 1, P.W.2, P.W.6 and P.W. 13 further established that the victim was brought from the house of Bishu by the appellant and sometime thereafter from 10th March, 1990 she was found missing. In this connection, the conduct of Chunda has been highlighted by P.W. 5, Subhas Soren, who affirmed in his evidence that Chunda after bringing Kamala from the house of Bishu in drunken condition rebuked her for free mixing with other men. P.W. 2, P.W.6, P.W.7 and P.W. 13 searched for the appellant and the victim Kamala, but the victim could not be traced out and the appellant was not found in his house since then. It further transpires from the evidence of P.W. 1, P.W.2, P.W.6, P.W.7 that on 15th March, 1990 the appellant was apprehended from Palashdanga and from there he was brought to the Habibpur P.S. on 15th March, 1990. It is further stated by the P.W.I, P.W.2, P.W.6, P.W.7 that in their presence at Habibpur P.S., the appellant confessed that he killed his wife and dumped her deadbody in the Kuthi Ghar. It further transpires that on the basis of statement and showing of the spot by the appellant in presence of P.W.5, P.W.6, P.W.8, P.W.ll, P.W.15 and P.W. 16 the deadbody of the victim Kamala was exhumed from the Kuthi Ghar of Charan at village Horegram and the deadbody of the victim was identified by Chunda in presence of witnesses. In the matter of bringing up the deadbody of Kamala after digging, the help of P.W.5 and P.W.6 was taken by the I.O. and it was done in presence of B.D.O. P.W. 15 and other witnesses. The I.O. prepared inquest report in presence of witnesses vide Exhibit 1 series and he prepared seizure list on 15th March, 1990 in respect of the articles mentioned there vide Exhibit 5 series. The evidence on record further shows that after the P.M. examination of the victim Kamala, her wearing apparels etc. were scized on 18th March, 1990 by the I.O. vide Exhibit 3 series being produced by Jogesh Mondal, Constable No. 171, P.W. 8. The gamut of evidence adduced by the prosecution witnesses has clearly established that after Kamala was taken away from the house of Bishu she was missing since 10th March, 1990 and a search was made to trace Kamala and Chunda by the villagers examined as witnesses referred to above but, they could neither trace Kamala nor they could find Chunda in his house at village Horegram. The fact that the appellant was arrested from Palashdanga on 15th March, 1990 further shows that he was away from his house and absconded for which he cannot avoid culpability. Had he been innocent he would not have absconded. All these circumstances, coupled with the fact that the deadbody of the victim was exhumed from the Kuthi Ghar of Charan was made on the basis of the statement made by Chunda in presence of witnesses referred to above at P.S. who pointed out the said Kuthi Ghar and identified the deadbody of the victim convincingly lend support to the prosecution's case against the appellant. It is clear that this statement was made by the appellant while in custody of police and on his own showing on the basis of his statement the deadbody was recovered. Therefore, under Section 27 of the Evidence Act, it is admissible in evidence.
10. In this connection, we may refer to a decision in the case of Bodhraj alias Dobha and Ors. v. State of jammu & Kashmir reported in 2003 SCC (Cri) 201 wherein the Supreme Court held that the basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information.
11. Further, we find from the decision of Suresh Chandra Bahri v. State of Bihar 1995 Supp. (1) SCC 80: 1995 SCC(Cri) 60, the Supreme Court had also held in similar lines.
12. In an another decision in the case of Anter Singh v. State of Rajasthan reported in 2005 SCC(Cri) 597, the Supreme Court has laid down the requirements of application of Section 27 of said Act which is quoted herein-below:
The various requirements of the section can be summed up as follows:
(1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.
(2) The fact must have been discovered.
(3) The discovery must have been in consequence of some information received from the accused and not by the accused's own act.
(4) The person giving the information must be accused of any offence.
(5) He must be in the custody of a police officer.
(6) The discovery of a fact in consequence of information received from, an accused in custody must be deposed to.
13. In this connection the prosecution has proved the deadbody of the victim was discovered on the basis of a statement made by the appellant while in custody of police and it is the Chunda who had taken away the victim from the house of Bishu and since 10th March, 1990 she was missing and the appellant absconded from the village and subsequently he was arrested from Palashdanga by the police on 15th March, 1990 completes the chain of circumstances pointing out that it is only the appellant who actually killed his wife and dumped her deadbody at Kuthi Ghar belonging to Charan Murmu at Horegram, P.S. Habibpur, District Malda.
14. Learned Advocate Mr. Bhattacharya appearing on behalf of the appellant, however, drawing our attention to the decision reported in 2000(2) CLJ 197, Rabi Murmu v. State of West Bengal as also a decision reported in 1985 Cr. LJ 368, Kaju and Anr. v. State submitted that the appellant should not be convicted under Section 302/201 of IPC as the prosecution could not prove the same by adducing evidence. On the contrary, he submitted that the appellant should be convicted only under Section 364 of IPC. He, therefore, urged that in the circumstances the sentence imposed against the appellant under Section 302/201 of IPC should be set aside but the sentence imposed under Section 364 of IPC should be upheld by this Court.
15. Learned Prosecutor, Mr. Mahato, appearing on behalf of the State submitted before us that the decisions cited by learned Advocate has no manner of application in this case because in this case the prosecution has convincingly proved beyond any shadow of doubt the chain of circumstances pointing out the guilt of the appellant with regard to the charges framed against him. It is, therefore, submitted by him in the circumstances the judgment dated 6th September, 1980 passed by the learned Trial Court should be upheld by this Court.
16. We have gone through the decisions cited by the learned Advocate for the appellant as also the facts of the case including the evidence adduced by the prosecution witnesses and, we are of the view, that the prosecution has convincingly proved beyond any shadow of doubt a complete the chain of circumstances pointing out the guilt of the appellant. Therefore, we find that it is the appellant who committed the offences under Section 302/364/201 of IPC and the decisions cited by the learned Advocate for the appellant are not applicable in this case. Thus, considering the facts and the attending circumstances of the case, we find that the Trial Court had rightly convicted and sentenced the appellant under Section 302/364/201 of IPC and it does not call for any interference by this Court.
17. Accordingly, we find no merit in this appeal and it is dismissed
Amit Talukdar, J.
18. I agree.