JUDGMENT:- (1). SHRAVAS, Murmu @ Majhi being convicted under Section 304 Part -II.P.C. and sentenced to undergo rigorous imprisonment for 10 years and also to pay fine of Rs. 1,000/- in default to undergo R.I. for six months and Surendra Murmu being convicted under Section 201, I.P.C. and sentenced to undergo R.I. for three years and to pay fine of Rs. 500/-I. D. to undergo R.I. for two months by the learned Additional Sessions judge, Puruiia in Sessions Trial No. 77 of 1985 arising out of Indpur P. S. Case No. 14 dated 25. 08. 1980 preferred this appeal challenging the order of conviction and sentence. (2). BACKGROUND facts of the prosecution case may be briefly stated as follows:-Accused Surendra and Shravan Majhi brothers of Baidyanath majhi were separated from the mess of Baidyanath Majhi and wife of Baidyanath Nilmani Murmu @ Majhi was at her fathers house on 23.08.1980. There was a quarrel over the ration card between baidyanath and his father Sanatan Majhi in the evening on 23.08.1980. In course of that quarrel Baidyanath brought out an axe from his room and attempted to assault his father Sanatan. Shravan snatched away that axe in order to save his father and thereafter Shravan assaulted Baidyanath Majhi with that axe on various parts of his body and Baidyanath met his death due to such injuries. At the dead hours of night Shravan and Surendra carried the dead body of Baidyanath and dropped it in a jungle at Saklahir. On 24.08.1980 the police of Pairachali outpost under Indpur P.S. detected the presence of dead body in that jungle and reported the matter to Indpur P.S. and G.D. Entry No. 671 dated 24.08.1980 was lodged on the basis of this matter. A.S.I. Kartick Roy of Indpur p.S. held the inquest on the dead body by U.D. Case No.15 dated 24.8.1980. The dead body was sent to Bankura Morgue for post-mortem. As per P.M. report the death was due to injuries which were antemortem and homicidal in nature. Thereafter, Indpur P.S. Case 14 dated 28.08.1980 under Sections 302/201 I.P.C. was started, Mr. Ramakanta pati of Indpur P.S. took up the investigation. The I.O. came to know that the deceased was Baidyanath Murmu of Shyampur under P.S. Hura and a specific case at Hura P.S. had been started over that matter, mr. Thereafter, Indpur P.S. Case 14 dated 28.08.1980 under Sections 302/201 I.P.C. was started, Mr. Ramakanta pati of Indpur P.S. took up the investigation. The I.O. came to know that the deceased was Baidyanath Murmu of Shyampur under P.S. Hura and a specific case at Hura P.S. had been started over that matter, mr. Pati handed over all connected papers to O.C. Hura P.S. through s. D.J.M., purulia. (3). DURING investigation by the Police Officer of Hura P. S. one Malati murmu was forwarded to the Court for recording her statement under section 164 Cr. P. C. and due to the transfer of the I.O. the said case was handed over to the other I.O. and the I.O. after completion of investigation submitted the charge-sheet against the accused who were released on bail and stood for trial. (4). LEARNED Additional Sessions Judge, Purulia on perusal of necessary papers placed before him and after hearing both the prosecution and the accused framed the charge under Sections 302/201 I.P.C. against both the accused who pleaded innocent and claimed to be tried. (5). DURING trial the prosecution examined 18 witnesses i.e., Malati murmu (P.W.1), Sri Jabalal Bauri (P.W.2), Patel Majhi (P.W.3), Anil Chandra barui (P.W. 4), Batu Majhi (P.W.5), Sri Sarad Prasad Murmu (P.W.6), nilmoni Murmu (P.W.7), Robilochan Pandey (P.W.8), Sri Madan Mandal (P.W.9), Netai Bauri (P.W.10), Phani Bh. Hato (P.W.11), Biswanath Sah (P.W.12), Haridas Moitra (P.W.13), Paresh Nath Sen (P.W.14), Sri Biren mukherjee (P.W.15), Sri Ramakanta Pati (P.W.16), Sri Kartick Chandra ray (P.W.17), Dr. K. B. Sinha (P.W.18) and one Court witness was examined i.e., Sanatan Goswami (C. W.1). Out of above 18 prosecution witnesses as well as one Court witness P.W.5 was only tendered by the prosecution and P.W.11, P.W.12, P.W.15, P.W.16 and P.W.17 were the police persons. P.W.9 and P.W.10 were the forest guard and Chowkidar. P.W.13 was the Forensic Expert. P.W.14 was the Judicial Magistrate who recorded the statement of witness Malati Murmu i.e., P.W.1. P.W.18 was the doctor who held the post-mortem examination on the dead body. (6). AT the very outset it is to be mentioned that learned Additional sessions Judge convicted the accused Shravan Murmu under Section 302 I.P.C. and also convicted the accused Surendra Murmu under Section 201 I.P.C. (7). SOME papers were marked as exhibits at the time of trial. P.W.18 was the doctor who held the post-mortem examination on the dead body. (6). AT the very outset it is to be mentioned that learned Additional sessions Judge convicted the accused Shravan Murmu under Section 302 I.P.C. and also convicted the accused Surendra Murmu under Section 201 I.P.C. (7). SOME papers were marked as exhibits at the time of trial. Learned additional Sessions Judge as it transpires from the judgment placed his reliance on the postmortem report and also the statement of the witness P.W.1 as well as other witnesses. (8). AFTER elaborate discussion of the oral evidence of the prosecution and after submission of both the prosecution and defence in detail the learned Additional Sessions Judge after accepting the prosecution evidence found the present appellant Shravan Murmu guilty for the offence under Section 304 Part-I I.P.C. and also convicted appellant Surendra murmu under Section 201 I.P.C. and the appellants were convicted and sentenced in accordance with law. (9). APPEARING for the appellant in connection with this appeal learned advocate Mr. Kishore Mukherjee assisted by learned Advocate Mr. Asok biswas contended that there was no explanation from the part of the prosecution for delay in lodging F.I.R. and as a result the F.I.R. was a concocted story only to implicate the accused persons out of grudge. Mr. Mukherjee also contended that there was no explanation from the prosecution why the said F.I.R. was sent to the Court of learned S.D.J.M. after three days from the date of alleged occurrence. (10). MR. Mukherjee contended that there was no eye witness in the alleged occurrence except the evidence of P.W.1 who was placed before the learned Court below to believe the prosecutions case for implicating both the accused with reference to her statement recorded under Section 164 Cr. P.C. Mr. Mukherjee pointed out that P.W.1 was declared as hostile and P.W.1 denied her statement recorded under Section 164 Cr. P.C. It was a concocted story only to implicate the accused. (11). MR. Mukherjee pointed out that P.W.7 who was the wife of deceased Baidyanath did not support the prosecution case as alleged. The evidence of P.W. 8, P.W. 9 and P.W. 10 did not help the prosecution to establish the charge against both the accused as alleged. As a result the prosecution failed to establish the allegation against both the accused beyond reasonable doubt and suspicion. (12). MR. The evidence of P.W. 8, P.W. 9 and P.W. 10 did not help the prosecution to establish the charge against both the accused as alleged. As a result the prosecution failed to establish the allegation against both the accused beyond reasonable doubt and suspicion. (12). MR. Mukherjee also contended that at the time of trial, learned magistrate (P.W. 14) who recorded the statement of P.W.1 was examined and learned Magistrate proved the statement of P.W.1 and that evidence was not sufficient to believe the prosecution case as it was not voluntary statement and as such the appellants are entitled to get acquittal from the alleged charge and as a result the order of conviction passed by learned additional Sessions Judge, Purulia is liable to be set aside. (13). MR. Mukherjee also contended that the entire fact was based on circumstantial evidence but the chain of evidence which was the essential ingredients to prove the circumstantial evidence was not established by the prosecution on the basis of the evidence of the prosecution witnesses and as a result the order of conviction passed by the learned Court below is liable to be set aside. (14). IN support of the contention Mr. Mukherjee cited a case law reported in 1970 Cri. LJ page 403 (Bhulakiram Koiri v. The State ). (15). MR. S. K. Mahato learned Advocate appearing on behalf of the state assisted by learned Advocate Miss Ratna Ghosh pointed out that the evidence of P.W. 1 who was the eye witness to the occurrence though she was declared as hostile was sufficient to believe the prosecution case as alleged and there was no scope to disbelieve the statement of P.W.1 after careful analysis of the evidence and as such there was no illegality in the findings of the learned Court below. (16). MR. Mahato contended that the evidence of the prosecution witnesses proved the involvement of the accused for committing murder of Baidyanath Murmu and for the disappearance of the dead body by the accused which was proved by way of circumstantial evidence. Therefore, learned Additional Sessions Judge rightly convicted the appellants under sections 302/201 I.P.C. and there appears no ground whatsoever to interfere with the order of conviction and sentence. (17). IN support of the contention Mr. Therefore, learned Additional Sessions Judge rightly convicted the appellants under sections 302/201 I.P.C. and there appears no ground whatsoever to interfere with the order of conviction and sentence. (17). IN support of the contention Mr. Mahato cited two case laws reported in 2007 Volume 2 Supreme Court Cases (Cri) 390 (State of M. P. v. Mansingh and Grs.) and 2007 Volume 3 Supreme Court Cases (Cri) 731 (Mallanna and Ors. v. State of Karnataka). (18). WE have considered the submission of learned Advocates Mr. Mukherjee and Mr. Mahato and we have examined the prosecution evidence both oral and documentary. (19). IT is needless to mention that P.W. 18 proved the P. M. report held by Dr. Dhar and opined that the injury on the dead body in the postmortem report with measurement two inches in length was caused by an axe marked as Mat. Exhibit-l and also proved that the injury mentioned in the P. M. report might be caused by the above axe. There was no such specific cross-examination from the part of the appellants at the time of trial to disbelieve the evidence of P.W.18. There is no hesitation to hold about the death of Baidyanath Majhi as homicidal in nature. (20). LET us now consider how far accused Shravan Murmu alias Majhi and Surendra Murmu alias Majhi were involved in the alleged offence for committing murder of Baidyanath Murmu alias Majhi and for disappearance of the dead body. (21). IT is necessary to mention that except the evidence of P.W. 1 there was no eye witness in the alleged occurrence, But in the F.I.R. lodged by the A.S.I. Indpur P.S. on the basis of the G.D. Entry No. 671 dated 24. 08. 1980 the name of the appellants did not transpire but in the statement exhibit-8 made by P.W.1 the name of the appellants transpired about their involvement in the alleged offence. P.W.1 gave the statement to the learned judicial Magistrate (P.W. 14) who recorded her statement (Ext. 8) but P.W. 1 was declared as hostile and totally denied her statement at the time of trial. P.W.1 gave the statement to the learned judicial Magistrate (P.W. 14) who recorded her statement (Ext. 8) but P.W. 1 was declared as hostile and totally denied her statement at the time of trial. If the statement is read out as a whole, it is found that in course of quarrel Baidyanath brought out a small axe and Baidyanath was then intoxicated and he tried to assault Sanatan with the axe but Shravan, the younger brother snatched away that axe and struck Baidyanath with that axe and Baidyanath met his death and thereafter Shravan and Surendra carried the dead body of Baidyanath with the help of a bamboo and disposed the body in the forest. The said statement (Ext. 8) had been made on S/a. before the learned Magistrate and the learned Magistrate (P.W.14) observed all the formalities under Section 164 Cr. P.C. before recording the same. There is nothing to hold that the said statement was made by P.W. 1 under compulsion. In the decision State of M. P. (supra) the Apex court observed that "evidence of witness cannot be discarded merely because their statements were recorded under Section 164 Cr. P.C. " It is needless to mention that Malati was the sister of the appellants as well as deceased and she was suppressing something while deposing before the court. P.W. 2 who was the village chowkidar heard from Sanatan and malati that Shravan and Surendra had murdered Baidyanath. Robi Lochan pandey (P.W. 8), the local Anchal Pradan sent the witness to the forest where the witness found the dead body of Baidyanath and witness noticed injury on the head of Baidyanath and the said witness also heard from malati and Sanatan about the cause of death of Baidyanath. Other witnesses i.e., Patel Majhi (P.W. 3), Ramkanta Pati and others were present when Sanatan and Malati disclosed the incident to him. (22). PATEL Majhi (P.W. 3) who was the uncle of the accused stated that he heard nothing from the wife of Baidyanath Murmu about the cause of death of Baidyanath and the said witness was declared as hostile and the said witness denied the fact during his examination before the Court. The evidence of P.W. 3 did not help the prosecution case. Anil Bauri (P.W. 4) was the witness of the seizure list and he did not state anything. The evidence of P.W. 3 did not help the prosecution case. Anil Bauri (P.W. 4) was the witness of the seizure list and he did not state anything. Bafu majhi (P.W. 5) was only tendered by the prosecution. Sarad Prasad Murmu (P.W. 6) stated that Baidyanath appeared in H. S. examination but he was unsuccessful and he earned his livelihood through private tuition and stayed in a separate mess. He heard from Malati that her brothers had murdered Baidyanath and the accused confessed that they murdered baidyanath and he found the marks of blood coming out from the house of Sanatan upto the village area and he also found the marks of blood in the verandah and Malati brought out an axe from the house and that axe contained mark of blood and the police seized the same. The said evidence of P.W. 6 established the statement of Malati who disclosed about the involvement of the accused for murdering Baidyanath as well as the extra judicial confession made by the accused and some incriminating circumstances i.e. , the presence of blood from the house upto the road as well as on the verandah. The above extra judicial confession corroborated the evidence of other witnesses as well as the materials-on-record and the statement of P.W. 1 under Section 164 Cr. P. C. In the F. I. R. (Ext. 3) it transpires when Chittaranjan Das went to the spot he found Sarada Murmu, patel, Batu and some other witnesses and village Chowkidar who was present at that place and Malati (P.W. 1) disclosed the incident which was in full conformity with the evidence of witnesses and also the statement of P.W. 1 under Section 164 Cr. P. C. Except mere denial there was no such specific cross-examination from the part of the defence to disbelieve the evidence of the above witnesses. Mere denial was not sufficient to disbelieve the evidence of the above witnesses. (23). FROM F.I.R. it is seen that Shravan Murmu brought out the axe and P.W. 1 narrated the incident as she saw the incident of murder of baidyanath by Shravan and Shravan made an extra confession before sarad Prasad Murmu. P.W. 7, the wife of the deceased heard from Malati that Surendra and Shravan murdered Baidyanath and she disclosed the fact before the I.O. what she heard from Malati. P.W. 7, the wife of the deceased heard from Malati that Surendra and Shravan murdered Baidyanath and she disclosed the fact before the I.O. what she heard from Malati. No specific suggestion from the part of the defence was placed upon P.W. 7 to disbelieve her evidence. Robilochan Pandey (P.W. 8) who was Ex-Anchal Pradan stated that he got the information that the dead body was lying at Kendabana forest and he called the Chowkidar Jabalal Bauri and asked to go to the forest and Jabalal informed him about the dead body of Baidyanath and the matter was informed to the P. S. but the said witness did not disclose the name of the assailants. Madan Mondal (P.W. 9) who was the forest guard went to Kendabana forest with Jaba Bauri and identified the dead body of Baidyanath, Netal Bauri (P.W.10) who was the Chowkidar filed a petition at Indpur P. S. Haridas Moitra (P.W. 13) who was the Scientific officer at Forensic Science Laboratory, Calcutta examined the alamats and found the mark of blood on the metal portion of the axe and also found other materials which were produced before him for examination and he sent those exhibits to serologist by his report (Ext. 6) and the report of the serologist (Ext. 7) indicated the presence of human blood on the said alamats i.e., bamboo lathi, lungi, shirt and ganji that were seized from the possession of accused Shravan. There is no hesitation to come to the conclusion about the involvement of Shravan in the alleged murder as it was corroborated with the evidence of the above witnesses. P.W. 14 who was the Judicial Magistrate recorded the statement of Malati Murmu under Section 164 Cr. P.C. In the evidence of P.W. 14 it is clear that there was no specific suggestion from the accused that the statement of Malati was not voluntary. P.W. 15 completed the investigation and submitted the charge-sheet. (24). LEARNED Advocate on behalf of the appellants did not place his submission in support of the private defence. From the statement of Malati under Section 164 Cr. P.C. it is seen that Baidyanath tried to assault sanatan with an axe and Shravan in order to save his father Sanatan snatched away that axe and assaulted Baidyanath. If that was the plea of right of private defence the onus was on the accused to prove the same. From the statement of Malati under Section 164 Cr. P.C. it is seen that Baidyanath tried to assault sanatan with an axe and Shravan in order to save his father Sanatan snatched away that axe and assaulted Baidyanath. If that was the plea of right of private defence the onus was on the accused to prove the same. But the accused failed to bring sufficient light in that respect. From the statement of Malati it cannot be ascertained whether Baidyanath made any further attempt to assault Sanatan or Shravan when the axe was snatched away from his hand. As soon as the axe was snatched away from the hand of Baidyanath there was no weapon in the hand of baidyanath. In the above respect it can be safely said that Shravan exceeded his right of private defence to a great extent. The plea of private defence failed in favour of the appellant. (25). THERE was the charge under Section 201 I.P.C. against Surendra murmu for causing disappearance of the evidence of murder by disposing the dead body of Baidyanath in the forest. In that respect there was no eye witness. Sarad Prasad Murmu (P.W. 6) did not state in his evidence that he heard from Malati that the dead body of Baidyanath had been disposed of by Surendra Murmu in Kendabana forest. Nilmoni Murmu (P.W. 7) stated that she heard from the accused that they disposed of the dead body of Baidyanath in a jungle. There was no cross-examination from the part of the appellants at the time of trial in that respect. Serology as well as forensic report proved that the bamboo contained human blood and this fact proved that Surendra disposed of the dead body of Baidyanath in the jungle. As such the charge under Section 201 I.P.C. was proved. The plea of alibi failed to establish the defence persons. The present case is totally based on circumstantial evidence with reference to the evidence of P.W. 1. Circumstantial evidence means "communication of fact creating net work. There is no scope for the accused because the facts taken as a whole do not admit to any inference except the guilt of the accused. There is a general tendency where prosecution case is based on circumstantial evidence to take into account the fact and circumstances which are not actually borne out of evidence-on-record. " (26). There is no scope for the accused because the facts taken as a whole do not admit to any inference except the guilt of the accused. There is a general tendency where prosecution case is based on circumstantial evidence to take into account the fact and circumstances which are not actually borne out of evidence-on-record. " (26). IN the case law reported in AIR 1957 Supreme Court Page 637 (Sarwan Singh Rattan Singh v. State of Punjab) where the Apex Court held that "in a criminal case mere suspicion, however, strong cannot take place of proof and it was held in the same judgment that even in a case there may be an element of truth in the prosecution story against the accused and considering as a whole, the prosecution story against the accused may be true between may be true and must be true there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted. " (27). IN the present case the chain of circumstances are completed from the evidence of P.W.1, P.W.2, P.W.4, P.W.6, P.W.7, P.W.8, P.W.9, P.W.10, P.W. 13, P.W. 14 and P.W. 18 for the involvement of the appellants for committing murder of Baidyanath and for disappearance of the dead body. (28). LEARNED Trial Court adopted a pragmatic and realistic approach before convicting the accused. In view of the foregoing discussion this court is of the firm view that the prosecution has been able to prove the charge against the accused/appellants under Sections 304 Part-l/201 I.P.C. without any shadow of doubt. (29). IN view of the above discussion we find no merit in the present appeal and we dismiss the same. The judgment and order of conviction passed by the learned Court below is hereby confirmed. (30). OFFICE is directed to send the L. C. R. along with the copy of the judgment and order immediately to the learned Trial Judge. (31). THE appellants are directed to surrender before the learned Court below within one month from the date of this order.