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2004 DIGILAW 785 (CAL)

STATE v. MRITUNJAY BISWAS

2004-12-22

ASHIM KUMAR BANERJEE

body2004
BANERJEE, J. ( 1 ) ON 10th May, 2000 one Ramananda was found dead in his house at about 9/9-30 AM in the morning His head was detached from his body. The villagers discovered the dead body and thereafter lodged fir with the local police station. On the day earlier i. e. on May 9, 2000 the accused Mritunjay came to the house of Ramananda and victim in presence of the Prosecution Witness No. 1 advised Mritunjay to stay at night as the road was a forest road and it was not advisable to travel during night. P. W. 1 and one Kalipada met Mritunjay in the evening at the house of Ramananda and they left the place after a while. In the next morning at 9/9-30 AM they discovered the dead body and lodged FIR with the police. While going to the police station they met one tea stall owner being P. W. 7 who stated that the accused Mritunjay took tea from his stall and when he demanded money Mritunjay threatened him with dire consequence and told him that he had finished one and the stall owner would have the same fate if the money was demanded. ( 2 ) NEXT day, i. e. , on 11th May, 2000 Mritunjay surrendered to the police and made confessional statement under Section 164 of the Cr. P. C. ( 3 ) THE local police authority recovered the body from the locale. They also seized one chopper (Dah) with blood stained nearthe dead body. The police authority also found the head detached from the body. They also recovered the wearing appeals of Mritunjay being one baniyan and one lungi from the house of the victim. The police sent the body for post mortem. The police authority also sent the blood samples from the body, the chopper as well as the wearing apparels having blood stains used by Mritunjay. ( 4 ) THE post mortem export suggested that the death was caused by sharp weapon and it was conducted while the victim was asleep and the probable time of death was about 5/6 hours after the meal. ( 5 ) ON the basis of the surrender and statement made under Section 164 Cr. P. C. the police authority charge-sheeted the accused Mritunjay and he faced the trial. ( 6 ) DURING the trial the police produced at least 10 witnesses. ( 5 ) ON the basis of the surrender and statement made under Section 164 Cr. P. C. the police authority charge-sheeted the accused Mritunjay and he faced the trial. ( 6 ) DURING the trial the police produced at least 10 witnesses. The P. W. Nos. 1,2 and 3 are respectively the FIR lodger, the Surpanch and one villager. They all witnessed the discovery of the dead body and seizure by the police p. W. 5 was the witness to the seizure list. P. W. 4 was the son of the victim who was staying at Sitanagar and came after receiving the information of the unfortunate incident. He adduced that his mother was away from the place of occurrence and she stayed with P. W. 4 at his house at Sitanagar as his mother could not return after receiving kerosene oil from the ration shop at Diglipur. The tea stall owner being P. W. 7 also made statement as referred to above. P. W. 6 was the Head constable officiating as SHO on the relevant date while p. W. 10 was the Sub-Inspector who stated that the murder was caused due to quarrel between the victim and the accused due to old enmity. Pertinent to mention, this was a hearsay evidence as the P. W. 10 was told this by one Narayan Nair who also heard it when the P. W. 6 was talking to the accused at the Police Station. Pertinent to mention that P. W. 6 did not corroborate such fact while deposing. ( 7 ) ACCUSED did not examine himself or any other witness in support or his defence. He, however, pleaded not guilty while making statement under Section 313 of Cr. P. C. ( 8 ) THE learned Sessions Judge analysed the evidence and came to a conclusion that since there was no eye witness to the unfortunate incident, it was the duty of the prosecution and prosecution only to prove the circumstantial evidence which would conclusively suggest that the murder was caused by the accused and none else. The learned Sessions Judge also made reference to the fact that the weapon allegedly used for such murder was not examined by the forensic expert and the finger print appearing therein was not tallied with the finger print of the accused. The learned Sessions Judge also made reference to the fact that the weapon allegedly used for such murder was not examined by the forensic expert and the finger print appearing therein was not tallied with the finger print of the accused. The learned Sessions Judge ultimately held that the accused was entitled to have benefit of doubt and passed an order of acquittal. ( 9 ) WE have carefully examined the judgment and order impugned. We have also independently examined the evidence of the witnesses as well as the post mortem report and serological report. On analysis of the evidence both oral and documentary, it would reveal as follows :-facts proved/presumption as against the accused. (I) Prosecution was able to prove the murder. The beheaded body of the victim was found and recovered by the police. Post mortem report suggested that the death was caused due to murder by sharp weapon while the victim was asleep. (II) The weapon was found near the dead body will blood stains. (III) Mritunjay being the accused stayed with the victim and was last seen together at the house of the victim. (IV) The accused Mritunjay surrendered to the police and made facts should have been proved, but not proved/facts in favour of the accused. (I) There was no eye witness to the incident. (ii) Nobody was there save and except the victim and the accused last seen in the house in the evening of 9th May, 2000. (iii) There was no proof that mritunjay stayed at the night in the house of the victim. (iv) The finger print which was relevant evidence was not taken by the police and was not tallied through forensic examination with the finger print of the accused. statement under Section 164 Cr. P. O. (not exhibited ). (v) The blood stained cloths and the blood group of the dead body tallied as pertheserological report and both blood groups were a+. (vi) The accused Mritunjay was last seen on the relevant date i. e. 10th May, 2000 before he was arrested by the police at 6 o'clock in the morning when he took tea from the tea stall and threatened the stall owner with dire consequence and stated that the tea stall owner would have the same fate if he demanded the money as Mritunjay had just finished one. (v) Two material witnesses kalipada and the doctor who conducted the post mortem (Dr. Kajal Anand) were not produced by the prosecution as witnesses. (vi) The reason for murder being the mens rea was totally absent and the prosecution could not bring the same in evidence save and except a mere statement of p. W. 10 as discussed hereinbefore. ( 10 ) IF we balance these two, then we would find that there are more things which are required to be brought in evidence to rope in Mritunjay, specially when there was no eye witness. We are unhesitantly of the opinion that the prosecution failed to do so. Upon a complete reading of the entire evidence, the reports and the judgment of the learned Sessions Judge, one might feel that the accused might be involved in this case but that is not sufficient to rope in the accused and convict him and the learned sessions Judge was right in giving the benefit of doubt to the accused. ( 11 ) HENCE, we are totally in agreement with the well reasoned judgment and order of the learned Sessions Judge and we do not find any scope of interference. ( 12 ) HENCE, the appeal fails and is hereby dismissed. Before parting with, we must record our appreciation to the contribution made by Mr. K. M. B. Jayapal, learned Counsel holding the brief on behalf of Mr. R. S. Saroop, learned Public Prosecutor apparing for the appellant as well as the contribution made by Mr. N. A. Khan, learned counsel engaged by the State on behalf of the respondent. Chowdhury, J. : I agree.