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2002 DIGILAW 63 (CAL)

Kurma Rao v. State of West Bengal

2002-01-31

NARAYAN CHANDRA SIL, NURE ALAM CHOWDHURY

body2002
JUDGMENT Sil, J. : These two appeals filed by the same appellant arising out of the same judgment and order of conviction dated 23.8.1994 passed by Sri N. Konar. learned XIII Judge of City Sessions Court, Calcutta convicting the appellant for committing offence under Sections 394/397/302/34 I.P.C. in Sesions Trial No.1/March, 1994 are taken up together for the sake of convenience. 2. The facts of the case in brief is that Mr. Gopendra Nath Dutta, the de facto complainant, a retired Director of Geological Survey of India had been residing in premises No.A/2 Commissiorate Road, Calcutta under Hastings P.S. along with his old wife ands old and ailing mother-in-law who was about 94 years of age. His mother-in-law was physically incapable and used to stay on the first floor of the premises while Mr. Dutta and his wife used to stay on the second floor of the premises. On the fateful day of 19.8.1993 at about 17.30 hours Mr. Dutta along with his friend Shymalesh Bhaduri came back to his house and found the main door bolted from inside. Despite his shouts nobody open the door and then with the help of two local boys who scalled the wall of the house Mr. Dutta got the door opened. Thereafter Mr. Dutta along with his friend Mr. Bhaduri went to the second floor of his house and found his wife Namita aged about 73 years lying in a pool of blood with several injuries. Thereafter Mr. Dutta with the help of his friend took his wife to the drawing room and immediately he went out to bring his family physician. Dr. Mrs. Brahamachari. Mr. Dutta after having sent Dr. Mrs. Brahamachari to his house went to Hastings P.S. and reported the incident to the police which was diarised. Then Mr. Dutta came back to his house and on the advice of Dr. Mrs. Brahamachari with the help police which appeared there in the meantime the injured, Mrs. Dutta was removed to the hospital where she succumbed to her injuries. On search Mr. Dutta found all the almirahs in the bed room and drawing room were opened and it was detected that one Sony Tape-recorder marked T.C.95, some gold ornaments like a pair bungles, one churi, one neck chain, several silver coins, copper coins and medels including one war medel of Tripura were missing from the almirahs. 3. On search Mr. Dutta found all the almirahs in the bed room and drawing room were opened and it was detected that one Sony Tape-recorder marked T.C.95, some gold ornaments like a pair bungles, one churi, one neck chain, several silver coins, copper coins and medels including one war medel of Tripura were missing from the almirahs. 3. The police started a case on the complaint of Mr. Dutta against the unknown persons under Sections 394 and 302 I.P.C. and in course of investigation police had arrested one Dilip Kumar Ram on 20.8.1993 on being identified by their source. Dilip Kumar Ram 'was searched and some stolen articles were recovered from him. Thereafter, the police arrested on Kurma Rao in the night of 20.8.1993 and some stolen articles were recovered from his possession. On being led by Kurma Rao police arrested his another associate Anand Tamang on the same night and some stolen articles were also recovered from him. Police had also recovered the blood stain shirt on being shown by the accused persons and the said blood stain shirt was kept concealed in a manhole of a house under construction just by the side of the house of Mr. Dutta. It was disclosed by the arrested accused persons that the said shirt was worn by Kurma Rao at the time of commission of offence. 4. After completion of investigation police submitted charge-sheet. The case was thereafter committed to the Court of the learned Sessions Judge, City Civil and Sessions Court, Calcutta who in his turn transfer the case to the Court of the learned trial Judge for trial. It appears that the learned trial Judge was pleased to frame charge against the appellants Kurma Rao and Anand Tamang under Section 392 read with Sections 397 and 302 read with Section 34 of the Indian Penal Code. The learned trial Judge had also framed a separate charge against the appellant Kurma Rao and Anand Tamang under Sectiorl 411 of IPC. It appears from the record that the other accused Dilip Ram being a juvenile delinquent was not tried by the Sessions Court and his case is reportedly pending before the juvenile Court. After conclusion of trial the learned trial Judge was pleased to find the appellants guilty for committing offence under Sections 411, 302/34 and 394 read with Section 397. It appears from the record that the other accused Dilip Ram being a juvenile delinquent was not tried by the Sessions Court and his case is reportedly pending before the juvenile Court. After conclusion of trial the learned trial Judge was pleased to find the appellants guilty for committing offence under Sections 411, 302/34 and 394 read with Section 397. The learned trial Judge sentenced both the appellants to suffer rigorous imprisonment for three years for the offence under Section 411 I.P.C. and rigorous imprisonment for five years each and also to pay a fine of Rs. 1,000/- each and in default of payment of such fine .rigorous imprisonment for one year for the offence under Section 394 IPC. The learned trial Judge was further pleased to sentence both the appellants to suffer rigorous imprisonment for seven years for the offence under Section 397 IPC. The learned trial Judge was also pleased to sentence both the appellants to undergo imprisonment for life for the offence under Section 302 read with Section 34 of IPC. The learned trial Judge was pleased to direct all the punishments to run concurrently. 5. It is now incumbent upon us to determine as to whether the learned trial Judge was justified in his decision of conviction and sentence inflicted upon the appellants. 6. Mr. Tewari appearing on behalf of the appellants argues before us that the stolen articles mentioned in the F.I.R. are less in number that what was recovered. He has also drawn our attention to the discrepancy as regards the place of recovery for, it has once come in evidence that the place of recovery was the manhole and thereafter it has been stated that the articles was recovered from under the earth. The learned Advocate for the appellant has raised the question why the medels would be stolen by the appellants particularly when those have got no value to them. Our attention has also been drawn to the inquest report and from the mention of "old scar marks" the learned Advocate for the appellants wants us to believe that those might be caused by the husband of the deceased. It is also pointed out by him that the trial Judge heavily relied on the evidence of the P.Ws. 3, 18, 20 and 22. Mr. It is also pointed out by him that the trial Judge heavily relied on the evidence of the P.Ws. 3, 18, 20 and 22. Mr. Tewari has also drwan our attention to the seizure list, particularly the Exhibits 6, 7 and 8 and tries to impress upon us that there were glaring discrepancies. It is also pointed out by him that the boys who had scalled the wall to open the door have not been examined in the inastant case. Mr. Tewari has also drwan our attention to the date and time put in the seizure list particularly the Exhibits 21, 21/3, 20/3 vis-a-vis the date mentioned in the G.D. (Ext. 10). Mr. Tewari has further argued before us that the entire case stands on-the evidence of the P.W. 3 and as such the same deserves proper scrutiny. According to him, Exhibit 5 should be taken as the F.I.R. which is conspicuously silent as regards the alleged burglary. Mr. Tewari has also pointed out that all the ornaments were recovered from the body of the deceased and thus he tries to impress upon us the absurdity of the involvement of the appellants in the commission of such offence particularly when the appellants instead of taking away the ornaments from the body of the deceased took away, it is alleged, the medels and other things. The learned Advocate for the appellants has referred to a number of case laws in order to substantiate his arguments placed before us. 7. Thus it was, inter alia; held in the case of (1) State of Punjab v. Bhajan Singh & Ors., AIR 1975 SC 258 that suspicion, by itself however strong it may be is not sufficient to take place of proof and warrant a finding of guilt of the accused. It was held in the case of (2) Dahyabhai v. State of Gujarat, AIR 1964 SC 1563 that when there are contradictions between the statements made before the Investigating Officer and the Court, those must be taken as contradictions within the meaning of Section 162 of the Evidence Act and no reliance could be placed on such evidence of the witness. It was held in the case of (3) Hate Singh v. State of Madhya Bharat, AIR 1953 SC 468 that where the facts which the prosecution themselves do not controvert in the witness-box are found to accord with the accused's story, the Court should not overlook it, by drawing presumptions against it. But it is far worse when the Sessions' Judge leads the accused to believe that their version on this point is true and then turns round in the judgment and puts the evidence just the other way round. The learned Advocate for the appellants has also referred to the ratio decided in the case of (4) State of Uttar Pradesh v. Sukhbasi, AIR 1985 SC 1224 where it was observed by the Hon,ble Supreme Court that in a case in which the evidence is of a circumstantial nature, the facts and circumstances from which conclusion of guilt is sought to be drwan by the prosecution must be fully established beyond all reasonable doubt and the facts and circumstances should not only be consistent with the guilt of the accused but they must be entirely incompatible with the innocence of the accused and must exclude every reasonable hypothesis consistent with his innocence. In the said case the Hon'ble Supreme Court found serious infirmities in the prosecution case which create considerable doubt and suspicious about the complicity of the accused in the commission of the crime and alleged recovery of the stolen property made at their instance and hence the Hon'ble Supreme Court held the order of acquittal made by the High Court as proper. It was held in the case of (5) Charan Singh v. State of Haryana. AIR 1971 SC 1554 that the conduct of the witness in running away from the place of occurance even though he was not chased or threatened by anyone of the assailants and his not reporting the incident even to the relatives of either of the two deceased persons was treated as abnormal. The learned Advocate for the appellant has also referred to the ratio decided in the case of (6) Union Territory of Goa v. Beaventura D'Souza & Anr., 1993 Supp. (3) SCC 305. The learned Advocate for the appellant has also referred to the ratio decided in the case of (6) Union Territory of Goa v. Beaventura D'Souza & Anr., 1993 Supp. (3) SCC 305. In the said case it was held that mere failure to give any explanation for possession of stolen articles' would not justify the presumption that the accused had committed the offences under Sections 302, 460, 397 and 411 I.P.C., but it would render the accused guilty for committing offence under Section 411 IPC. The learned Advocate for the appellant has also referred to the ratio decided in the case of (7) Kanhai Mishra v. State of Bihar, 2001 (3) SCC 451 . In the said case the circumstances which had been used against the appellant was that after the alleged occurance he absconded from his house and surrendered in Court only after about a month from the date of alleged occurence. The only evidence on the circumstance is of the investigating officer (P. W. 10) who stated that during the course of investigation he received secret information as to the effect that the appellant was seen fleeing away wearing only undergarments and in order to verify the same, he left the police station along with the armed forces in search of the accused. went to the house of one Mithlesh Jha (husband of the appellant's sister) at village Murli where he was informed that Chandra Mohan Mishra. father of the appellant, had gone there in search of him and he having not found him there, went to the place of other relatives for searching him. The P.W. 10 nowhere stated from whom he received the secret information inasmuch as such information cannot be made a basis to prove the said circumstance for being used against the appellant. The other portion of the evidence of the witness that he learnt at the place of the appellant's brother-in-law, Mithlesh Jha. that his father. Chandra Mohan Mishra had come to the house of Mithlesh Jha and gone to the places of other relatives in search of the appellant could have been proved by examining Mithlesh Jha and Chandra Mohan Mishra who could have been the best persons to prove the said fact, but, for the reasons best known to the prosecution they had been withheld. In such circumstances the Hon'ble Supreme Court was pleased to find that there was no credible material to prove the said circumstance and as such the same cannot be used against the appellant as from his statement recorded under Section 313 of the Code of Criminal Procedure, it would be amply clear that the said circumstance was never put to him and consequently the same cannot be used. The learned Advocate for the appellant has also referred to the decision of Hon'ble Supreme Court made in the case of (8) Bakshish Singh. v. State of Punjab, AIR 1971 SC 2016 in which it was held that in a case resting on the circumstantial evidence, chain of evidence -must be such as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. It was, inter alia, held in the case of (9) Rajesh Govind Jagesha v. State of Maharashtra, 1999 (8) SCC 428 that "motive" in' a criminal case based upon occular testimony of witnesses is not at all relevant. It was also held where the direct evidence regarding the commission of offence is worthy of credence and can be believed, the question of motive becomes more or less academic. "Motive" may be relevant in a case based upon circumstantial evidence only, being one of the circumstances. 8. Mr. Kazi Safiullah appearing on behalf of the prosecution argues before us that it was Dilip Kumar Ram who had unfolded the involvement of the appellants and of himself. He has drawn our attention to the evidence of the P.Ws. 3, 6, 7, 8, 9, 18, 20 and 22 in particular. It is argued by him that the P.W. 3 saw three persons to scale the wall. It is also pointed out that the P.W. 6 who was the Metropolitan Magistrate, Kolkata held the T.I. Parade and the appellants were identified in the said T.I. Parade. The learned public prosecutor has also drawn our attention to the provisions of Section 114 of the Evidence Act, P.Ws. 7 and 8 were the witnesses of the seizure list before whom the recovery of the stolen articles etc. were made, the learned public prosecutor further points out. The learned public prosecutor has also drawn our attention to the provisions of Section 114 of the Evidence Act, P.Ws. 7 and 8 were the witnesses of the seizure list before whom the recovery of the stolen articles etc. were made, the learned public prosecutor further points out. As regards question No. 17 put to the appellant in his examination under Section 313 Cr. P. C. wherein the appellant had complained of assault made on him it is argued by the learned Public Prosecutor that the appellant did not make any complaint to the Magistrate on that score. It is also argued by him that some of the articles mentioned in the FIR were recovered from the possession of the appellant immediately after the occurrence. It is further argued by the learned Public Prosecutor that P.Ws. 18 and 20 are the most independent witnesses and it is not expected in the absence of any motive or animosity that they would tell a lie or falsely implicate the appellants in a case like murder. The learned Public Prosecutor has referred to the ratio decided in the case of (10) Gulab Chand v. State of M. P. AIR 1995 SC 1598 . In the said case stolen articles were recovered from the house of the accused at his instance within 3/4 days of murder and it was also established that some of the ornaments belonging to the deceased were sold by the accused immediately on the next day of murder to the P.W. 12 and those articles were also recovered from the said P.W. 12. There was no plausible explanation for lawful possession of the ornaments of the deceased by the accused immediately after the murder. And in the background of such situation the Hon'ble Supreme Court was pleased to hold that the accused not only committed murder but also committed robbery of the ornaments and such presumption was drawn in view of the Illustration (a) of Section 114 of the Evidence Act. 9. And in the background of such situation the Hon'ble Supreme Court was pleased to hold that the accused not only committed murder but also committed robbery of the ornaments and such presumption was drawn in view of the Illustration (a) of Section 114 of the Evidence Act. 9. Thus, from the different case laws cited by the learned Advocate for the appellant and the learned Public Prosecutor and also in view of the facts and circumstances of the case it is can did that the conviction of the appellant stood only on the circumstantial evidence and in order to arrive at a true determination it is necessary for us to find whether there was seizure of the stolen articles from the appellants immediately after the occurance and whether such seizure, if it is found to have been made from the possession of the appellants leads to the presumption that they had committed murder of the deceased. 10. In the instant case as many as 22 witnesses were examined on behalf of the prosecution before the trial Court. It may be mentioned here that there is no denial of the incident of the murder of the victim. P.W. 2 is the Gopendra Nath Dutta, the defacto-complainant. He got his age recorded as 75. He stated in his examination-in-chief that the ornaments which appeared to be missing initially were subsequently recovered from the body of his wife at hospital and handed over to him. He also stated that on search he found a pair of gold bungle, one gold locket and chain, one sony portable Japanese tape-recorder with black leather cover, old coins, silver and copper coins a Chinese coin, an Iranian coin medel of Tripura, one Indian 10 rupee note of George and many other coins missing. He further stated that the missing coins were kept in the anti-chamber of the second floor building and the missing tape-recorder was kept in an almirah in the bed room. The seized articles namely 7 coins, a locket, a 10 rupee currency note were shown to the P.W. 1 and those were identified by him. The Iranian coin, one coin of Saudi Arab, another coin of George the 5th of U.K., 3 coins of Tibet, another coin of Japan and some other articles were identified by the P.W. 2. It appears from the F.I.R. (Ext.1/3) that one Sony tape-recorder, some gold ornaments. The Iranian coin, one coin of Saudi Arab, another coin of George the 5th of U.K., 3 coins of Tibet, another coin of Japan and some other articles were identified by the P.W. 2. It appears from the F.I.R. (Ext.1/3) that one Sony tape-recorder, some gold ornaments. one choor, one gold neck chain, a few silver coins, medels. copper coins. some foreign coins, medels were missing. 11. In his cross-examination the P.W. 2 stated that although he did not give any list of the missing coins he stated about the same from his memory. P.W. 3, although a chance witness, was known to the P.W.2. It is in his evidence that he found three persons to escape from the dwelling house of the P.W. 2 situated at 4/2, Commissiorate Road, Calcutta. The P.W. 3 identified the accused persons in the T.I. Parade and also on the dock. The P.W. 3 had also identified the another accused in 'Dhuvra Asram. In his cross-examination the P.W. 3 stated that no suspicion came in his of mind to see those three persons escaping from the house of the P.W. 2. It was stated by him in his examination-in-chief that he reported the police officer what he saw on 19.8.93. It is again in his evidence in chief that on 19.8.93 at about 8 p.m. he came to know that the wife of P.W. 2 was murdered. In his cross-examination he stated that the police officer came to the house on 19.8.93. but he did not give the detailed description of the persons whom he found to escape from the house of the P.W. 2. He further stated in his cross-examination that he did not know any persons named G.P. Dutta. but he claimed that since the drawn of his knowledge he know the house of P.W. 2., P.W. 4 is a formal witness and so also the P.W. 5. P.W. 6 is the learned Judicial Magistrate who held the T.I. Parade. One Bhola Singh the P.W. 7 who appears to be an independent witness, stated in his evidence that he found Dilip Kumar Ram detained by the police and the said Dilip Kumar Ram identified another boy and the said boy was searched by the police from whose possession a tape-recorder and some coins kept concealed on his waist were recovered. The P.W. 7 further stated that the currency notes of Rs. The P.W. 7 further stated that the currency notes of Rs. 30/- was also recovered from the possession of that boy. The seized articles were kept in a packet and the P.W. 7 put his signature thereon. The P.W. 7 also signed in his seizure list which was exhibited as Exhibit 4. The said boy was identified by the P.W. 7 in the Court who was, in fact, Kurma Rao from whose possession the articles were recovered. The P.W. 7 had also identified the articles recovered from the possession of Kurma Rao. The P.W. 7 claims to have found the incident of seizure on 20.8.93. The P.W. 7 was a bus conductor but on that day he had no duty, as claimed by him. Sankar Goswami. the P.W. 8 is another seizure witness. He stated in his evidence that on 20.8.93 at about 9.15/9.30 p.m. when he along with P.W. 7 was going towards Hajra he saw a boy held by the police and tied with a rope. The P.W. 8 also found the said boy to lead the police party to a lane and the roped boy pointed out another boy who was sitting in the lane on the stair case with a tape recorder under his shoulder. The said boy was searched by the police and some coins a bunch of key, a pair of bungle and two currency notes of Rs. 20/- and one currency note of Rs. 10/- were recovered from his possession. The P.W. 8 put his signature on the seizure list. The said boy as Kurma Rao was identified on the dock. The P.W. 8 had also identified the articles seized from the possession of Kurma Rao. In his cross-examination the P.W. 8 stated that he resided at 30-Belvadia Road where he was taken by the police. It is admitted by him that his signature did not appear on the labels put on the seized articles. P.W. 9 is a Police Officer. He claims to have gone to the place of occurance immediately after receiving the information and seized some articles therefrom. He seized blood, broken spectacles, 2 wooden legs etc. and prepared the seizure list. He had also seized one wooden "rod" and other articles for which the seizure list was also prepared. P.W. 9 is a Police Officer. He claims to have gone to the place of occurance immediately after receiving the information and seized some articles therefrom. He seized blood, broken spectacles, 2 wooden legs etc. and prepared the seizure list. He had also seized one wooden "rod" and other articles for which the seizure list was also prepared. It further appears from his evidence that they apprehended Dilip Kumar Ram from whom the police party came to know the involvement of the other two accused persons namely Anand Tamang and Kurma Rao of Belvadia Road. Thereafter Dilip led the police party to near Bhavani Bhavan, Alipore wherefrom Kurma Rao was apprehended and on search coins etc. were recovered from the possession of Kurma Rao. Seizure list was prepared. Thereafter, the P.W. 9 went on saying, on being led by Dilip & Kurma Rao and on being identified by them they arrested Anand Tamang from Juville lane under Hastings P.S. On search some articles were recovered from the possession of Anand Tamang and seizure list was prepared. The attention of the P.W. 9 was drawn on the address written on Exts. 6 & 7 and he had clarified that through inadvertence the place was described as 4/1 instead of 4/2 of the Commissiorate Road. The attention of the P.W. 9 was drawn on some overwriting made on exhibit 9. The P.W. 10 is another police personnel and a formal witness and so also the P.W. 11. The P.W. 12 is the Medical Officer who made the post-mortem examination over the dead body of the deceased, Namita Dutta. P.Ws. 13 and 14 are the police officers and the formal witnesses who were declined to be cross-examined by the defence. P.W. 15 is a police constable and a photographer. He is also a formal witness. P.W. 16 is T.V. and V.C.R. mechanic. P.W. 17 was tendered and declined to be cross-examined. P.W. 18 is Gulam Mahiuddin.-He stated in his examination-in-chief that in the night at about 11-45 p.m. on 20.8.93 when he was gossipping along with Md. Ali near the house of Md. Ali police officers brought three accused persons under arrest and they were asked to be witness of seizure. P.W. 17 was tendered and declined to be cross-examined. P.W. 18 is Gulam Mahiuddin.-He stated in his examination-in-chief that in the night at about 11-45 p.m. on 20.8.93 when he was gossipping along with Md. Ali near the house of Md. Ali police officers brought three accused persons under arrest and they were asked to be witness of seizure. The P.W. 18 further stated that thereafter on being asked by the police officer, one of the arrested person Dilip took them and the other two accused persons near a manhole on the ground floor of a building under construction which was situated adjacent to the house of P.W. 2 and disclosed there that the clothings were kept inside the manhole and the other accused Kurma Rao then opened the manhole and took out the clothings from inside the manhole. The clothings were seized in presence of P.W. 18 and Md. Ali and both of them put their signatures on the seizure list (Exts 21/1 and 21/2). The blood stained white shirt was recovered containing mark "K.C." (Material Ext. v). The evidence of the P.W. 18 in examination-In-chief had been confronted in his cross-examination and it is stated by him that he stated to the police officer that the accused Dilip pointed out the manhole and accused Kurrna Rao took out the shirt from the manhole. The P.W. 18 has further stated in his cross-examination that the shirt containing the level bears the; signature of Bhola Singh and the signature was taken in the presence of P.W. 18 and others. It may be pointed out here that Bhola Singh is the P.W. 7 and he is conspicuously silent as regards the recovery of the shirt from the manhole or that he put his signature on the level placed on the blood-stained shirt. P. W. 19 was tendered by the prosecution and declined to be cross-examined by the defence. 12. Md. Ali is the P.W. 20. It appears from his evidence that he was present at the time of seizure of the articles from the house of P.W. 2 immediately after the occurrence and subsequently when the blood-stained shirt was recovered he was also present there. 12. Md. Ali is the P.W. 20. It appears from his evidence that he was present at the time of seizure of the articles from the house of P.W. 2 immediately after the occurrence and subsequently when the blood-stained shirt was recovered he was also present there. It is in his evidence that articles were recovered from the house P.W. 2 on 19.8.93 and on 20.8.93 at about 11.30 p.m. while he was gossipping with others in front of his house he found the police party came up there along with three accused persons. The P.W. 20 was requested by the police to be present at the time of seizure to be made by them and thereafter he along with the P.W. 18 followed the police party and the accused persons. He also stated in his evidence that one of the accused persons pointed out a place wherefrom "removing the earth a shirt was taken out. The shirt was kept concealed in a house which then was under construction." He also stated that the shirt was taken out by the accused Kurma Rao. In his cross-examination the P.W. 20 stated that he is a social worker and his relation with the police is always strain. But, at the same time, he claims that as and when called for, he attends the police station. The statement of the P.W. 20 was confronted in his cross-examination and he stated before the police officer that one of the accused took out the shirt from under the earth. A suggestion was put to this 'witness which was, of course, denied to the effect that he signed the levels of the seizure list at the police station. The defence tried to take the confirmation of the statements of the P.Ws. 18 and 20 from the I.O. and the I.O. as P.W. 22 stated in his cross-examination that the P.W. 18 did not state to him that Dilip Ram pointed out the manhole and Kurma Rao took out the shirt and Md. Ali did not state to him that the levels were prepared in his presence and those were affixed on the seized articles and that he did not state to the I.O. that one of the accused took out the shirt from under the earth: The P.W. 21 is the police officer who initially took up the investigation of the case. Ali did not state to him that the levels were prepared in his presence and those were affixed on the seized articles and that he did not state to the I.O. that one of the accused took out the shirt from under the earth: The P.W. 21 is the police officer who initially took up the investigation of the case. In his cross-examination P.W. 21 stated that the witness Ramesh Chandra Shaw stated to him that he found three boys to escape jumping down from the boundary wall of the house of Gopendra Dutta at 4/2 Commissorate Road. 13. There appears evidence as regards the overlapping of date in the various documents and this might have been caused due to the confusion for adopting and putting of English dates which changes after the mid night of a particular date. The basic feature of this case is that the occurrence took place sometimes on 19.8.1993 and on that day some articles were recovered from the house of the defacto-complainant and thereafter on the following day i.e. on 20.8.93 some other articles were recovered from the possession of the accused persons. Exhibit 4 is the seizure list wherefrom it appears that some stolen articles were recovered from the physical possession of the accused Kurma Rao and the said seizure list was made on 20.8.93 in between 21.50 hours and 22.00 hours. Accused Kurma Rao appears to have put his signature thereon in English with date as 20.8.93. Exhibit 20/3 was prepared on 20.8.93 in between 23.00 hours and 23.25 hours and it appears thereform that some stolen articles were recovered from the possession of other accused/appellant Anand Tamang. The accused Anand Tamang appears to have put his signature in English on the seizure list. Exhibit 21 is another seizure list which appears to have contained the LTI of Dilip Ram and the signature of Kurma Rao and Anand Tamang with date as 20.8.93. It appears from the said siezure list that one blood-stained white colour full sleeve shirt was recovered from inside a manhole of a newly constructed building adjacent to the premises No. 4/2 of Commissorate Road and the said shirt was claimed to have been worn by the accused Kurma Rao at the time of commission of offence. It is also stated in Exhibit 21 that the said shirt was recovered on being led by Kurma Rao. It is also stated in Exhibit 21 that the said shirt was recovered on being led by Kurma Rao. Thus, there appears sharp contradiction in the evidence of the witnesses and also what it appeared in Exhibit 21 as regards the recovery of the blood-stained shirt claimed to have been worn by the accused Kurma Rao at the time of Commission of offence. It may be reiterated that one of the witnesses stated in his evidence that the manhole was pointed out by the other accused Dilip Ram and then Kurma Rao brought out the shirt therefrom and the another witness. P.W. 20 stated in his evidence that the said shirt was recovered from under the earth and Exhibit 21 conspicuously silent as regards the role of Dilip Ram for the recovery of that shirt. That being the position there arises the speculation as to how and at whose instance the said shirt was recovered. But all this speculation has been dispelled when the question of recovery of the shirt was put to the accused Kuma Rao at the time of his examination under Section 313 Cr. P. C. in question No. 17 and in reply he stated that the shirt did not belong to him and he had not gone to show where the shirt was or was not kept. He further stated in reply to that question that Dilip Kumar Ram took out the shirt and showed the same to him and Dilip then told that the said shirt belonged to him (Kurma Rao), but he told that the said shirt did not belong to him for which he was assaulted by the officer-in-charge and then he (Kurma Rao)' said that the shirt belonged to him (Kurma Rao). But to our utter dismay we do not find anything either from the evidence of the witnesses present there at the time of seizure of the said shirt or from the record that the accused Kurma Rao makes any complaint before the learned Judicial Magistrate as regards such assault. The statement of the accused Kurma Rao made under Section 313 of Cr. P. C. goes to suggest and establish that he was present at the time of seizure of the blood-stained shirt which was concealed either under the earth or inside manhole. The statement of the accused Kurma Rao made under Section 313 of Cr. P. C. goes to suggest and establish that he was present at the time of seizure of the blood-stained shirt which was concealed either under the earth or inside manhole. The witnesses who have deposed before the trial Court do not appear to have any animosity against the accused persons and after having taken everything into consideration there appears nothing to be skeptical as regards the evidence of the seizure witnesses despite the contradictions in their evidence. The statement made by the accused Kurma Rao under Section 313 Cr. P. C. simpliciter cannot be the basis of any conclusion but in the instant case we find sufficient evidence as regards the recovery of the blood-stained shirt and both the appellants were present at the time of such recovery. It is really preposterous to conceive that everything was implanted in order to implicate the appellants falsely in the absence of any motive or animosity between the parties or with the witnesses who deposed in this case against the appellants. We do not find also any reason to place any reliance that the defacto-complainant himself had any hand in the murder of his wife who was a lady of 73 years old and the defacto-complainant himself was a person of 75 years. 14. In the case of State of U.P v. Sukhbasi (supra). as referred to by the learned Advocate for the appellants the facts were otherwise altogether as it appeared from the First Information Report that the list of the looted articles was stated be furnished later and there was a recital mentioned in the F.I.R. which reads as below:- "We saw that all the articles were lying scattered in the big room and the small room close-by was locked. Thereupon, all of us searched for the uncle and the aunt in the whole of the house; but they were not found. Thereupon, all of us searched for the uncle and the aunt in the whole of the house; but they were not found. It appears that at some hour during the night bad characters murdered' my uncle and aunt and shut them in the room and have looted away property." In the said case the facts (1) that the accused persons were seen entering into the house of the deceased at about 7.30 p.m. on the fateful evening and were of seen leaving the house later that night by anyone, (2) the accused Sukhbasi and another along with sheo Murti. P.W. 15 were engaged by the deceased as carpenters for the woodwork of his newly remodelled house, (3) on the next morning i.e. on December 26. the accused Sukhbasi and another did not come for work although the other carpenter Sheo Murti, P.W. 15 turned up as usual, (4) the recovery of gold and silver ornaments and cash from the house of Sukhbasi at a distance of 7 miles on December 27 and 28 and the recovery of the gold and silver ornaments from the house of another accused at a distance of 7/10 miles away therefrom and so on and so forth are the foundations. But in the instant case the articles were recovered from the possession of the appellants within a few hours of the occurrence and it has also come in the evidence that the appellants along with another were seen fleeing from the house of the deceased and as such the ratio decided in the case of Sukhbasi (supra), does not appear to have any application in the instant case. Then again the facts in the case of kanhai Mishra (supra). also differ materially from the facts of the instant case inasmuch as the present case does not stand only on the evidence of the Investigating Officer alone. The appellant Kurma Rao while examined under Section 313 Cr. P. C. in connection with the evidence of recovery of the articles and in reply to question No. 13 stated as follows:- "Police had shown the articles and had pointed me out to a child and had told him to say that those articles had been recovered from us." the answer given by him appears to be very mechanical and evasive also. The said appellant in connection with the recovery of the articles from his physical possession and in reply to question No.14 stated that there was nothing with him. The reply of other appellant Anand Tamang is also almost in the same tuning. And none of the appellants have stated anything in their examination under Section 313 Cr. P. C. as to why they have been implicated in this case. 15. Dr. P.B. Das, the P.W. 12 who made the post-mortem examination over the corpse of the deceased Namita Dutta found as many as 13 injuries and out of those 13 injuries one was as old scar mark over abdomen and there were as many as 4 abrasions, 3 bruises and 2 haematomas. The other injuries were one lacerated wound and two crack fractures. The P.W. 12 opined that all the abrasions were non-scabed radish in colour and bruises were of deep red in colour showing evidence of vital reaction. The crack fractures and one lacerated wound found in four head over temporal bone left partial region are the reasons for the death of the deceased and those injuries were antimortem and homicidal in nature, the P.W. 12 further opined. 16. The evidence of the P.W. 12 and several injuries go unmistakeably to suggest that there was scuffle between the deceased and the miscreants. This has made us iffy as to whether the death of the deceased was clearly connected with the act of violence, for, the deceased died in the hospital and there is no clear evidence as to when the injuries were inflicted upon the deceased. We are also not unmindful that the weapons used in the instant case were some wooden logs or rod and we are also conscious of the situation that the miscreants could not take away the ornaments worn by the deceased at the time of commission of heist. Was it that there was a resistance from the old lady and there was a scuffle between her on the one hand and the miscreants on the other and after taking away some articles from the almirah the scuffle started with resistance and in order to make good of their escape the miscreants made the assault which caused the death of the victim? It appears from the examination sheets under Section 313 of Cr. It appears from the examination sheets under Section 313 of Cr. P. C. that the appellant Anand Tamang and the appellant Kurma Rao had got their age recorded as 18 & 19 respectively. Both the appellants are very young in age and the facts and circumstances of this case suggest ineluctably that their motive was to commit robbery in the house of the deceased and in course of resistance there was a scuffle when the appellants hit the deceased with the wooden logs or rod or latch may be the latch meant for closing the door and this had caused the death of the deceased. In the case of (11) Mana Gendal v. Emperor, 32 Cr LJ 1931, 289 the accused during an altercation, struck blows on the head of another with sticks and the latter died. The evidence showed that the death was due to the blows on the head which fractured the skull of the deceased. The accused persons were charged under Section 304 of the I.P.C. but the learned Sessions Judge convicted the accused persons only for the offence of grievous hurt. The High Court at Bombay held that the accused must be deemed to have known that they were likely to cause the death of the victim and were guilty of culpable homicide not amounting to murder and the conviction made by the learned Sessions Judge for grievous hurt was defricated. 17. Thus, considering the facts and circumstances of the case and in view of what has been discussed in the foregoing lines and the age of the appellant it seems to us that the offence committed by the appellant was one under Section 304 Part-I and not under Section 302 I.P.C. 18. In view of what has been discussed in the foregoing lines we do not find any application of the case laws referred to by the learned Advocate for the appellant rather we place reliance on the ratio decided in the case of Gulab Chand (supra). as referred to by the learned Public Prosecutor for our decision to be taken in the instant appeal. as referred to by the learned Public Prosecutor for our decision to be taken in the instant appeal. In the said case, it may be reiterated the stolen articles were recovered within 3/4 days of the murder but in the instant case not only the stolen articles but the blood-stained shirt was recovered immediately after the occurrence that is to sayan the following day of the murder of the deceased. There is no plausible explanation from the side of the appellant as to how those articles were recovered from their possession. 19. But before drawing the conclusion of our judgment we would like to point out here that there are some infirmities in the investigation of the case and the police officers appear to have taken the matter sometimes in a very slip shod manner. The discrepancies as regards the mentioning of date on the G.D. Entry and thereafter on the seizure list and FIR which we have already discussed are due to some confusions and all these do not, however, inspire our any confidence in favour of the acquittal of the appellant. But, what is unfortunate in the instant case is the ignorance of the trial Judge as regards the imposition of punishment and it appears that the trial Judge became oblivious in imposing the fine when it is mandatory. The appeal is therefore allowed in part. The appellant, Kurma Rao is found guilty for committing offence under Section 304 Part-I of I.P.C. and considering his tender age he is sentenced to suffer rigorous imprisonment for 10 years and also to pay a- fine of Rs. 5.000/- and in default he is to undergo rigorous imprisonment for a further term of six months. The judgment and conviction passed by the trial Court is accordingly modified. Chowdhury, J. : I agree.