Judgement GIRISH CHANDRA GUPTA, J. :- This appeal is directed against a judgment and order dated 28th February, 2000, passed by Sri K. Chakraborty, the learned Additional Sessions Judge, Alipurduar, in Session Case No. 41 of 1997 convicting the appellant under Section 302 of the Indian Penal Code. The learned trial Judge sentenced the accused to suffer life imprisonment as also to pay a fine of Rs. 5,000/- for the offence punishable under Section 302 of the Indian Penal Code and in default to suffer further imprisonment for a period of six months. 2. Briefly stated the case of the prosecution is that on 18th May, 1992, the accused, Krishna Adhikary alias Barman assaulted his elder brother, Khiten Barman, with a dagger. The wife of Khiten Barman intervened. She was dealt a blow on her hand which resulted in a bleeding injury. Khiten took to his heels. Krishna chased him. In order to save his life, Khiten entered into the bed room of Sudhir Babu. Krishna entered into the bedroom of Sudhir Babu and mercilessly killed his brother, Khiten. The head of the victim was almost chopped off though not fully severed. The accused, Krishna, thereafter came back to the house of the victim and beheaded the victim's wife, Menoka, A large number of people had collected. The accused, Krishna Adhikary alias Barman, threatened the onlookers of dire consequences if anyone dared to come near him. The police was informed. The police came shortly thereafter and arrested the accused when he was surrounded by the villagers. The accused was thereafter charged under Section 302 of the Indian Penal Code and the learned trial Judge has found the accused guilty. The accused has now come up in appeal. 3. Before we consider the submission advanced by Mr. Bhatacharyya, the learned counsel, appearing in support of the appeal, we shall briefly examine the evidence on the record. 4. P. W. 5 Abinash Chandra Das, deposed as follows : "On one Monday, it was a Hat day, at about 6/7 years ago, the incident took place at about 3/3.30 p.m. At the relevant time I was sleeping inside my house. Hearing hue and cry from the side of the house of Khiten, I went towards the house of Khiten. I saw Khiten to come in front of his house. His body was stained with blood. Hearing hue and cry from the side of the house of Khiten, I went towards the house of Khiten. I saw Khiten to come in front of his house. His body was stained with blood. I saw Krishna to chase him with a sword. Khiten ran towards the house of Sudhir, Krishna chased him. Both of them entered into the house of Sudhir." P. W. 2, Smt. Susama Roy Dakua, wife of Sudhir Roy Dakua, in whose house the victim had taken shelter and the accused had entered, deposed as follows : "At the relevant time, I was in my kitchen. Hearing the sounds of footsteps, I came out of my kitchen and found that Khiten followed by Krishna entered in my bed room. Krishna had a dagger in his hand. Thereafter, I found them fighting with each other. I saw Krishna to hit Khiten with the dagger on his neck. Khiten fell down on the ground. I saw Krishna came out of the room with the blood stained dagger in his hand and to go towards his house. His body was stained with blood. Seeing that I ran towards the 'Hat' out of fear with my son to inform my husband." 5. P. W.4, the husband of P.W.2, has corroborated the evidence of the P. W. 2. He deposed that his wife, Susama, came to the hat and informed about the murder of Khiten in their house. The P.W.4 thereafter went to his house and found the victim, Khiten, lying dead. 6. P.W.3, Kinkar Das, hearing the hue and cry rushed to the house of Krishna and found wife of Khiten with a bleeding injury. While he was trying to tie up the wound of Menoka, wife of the deceased Khiten, Krishna reappeared. The evidence of the P.W. 3 in this regard is as follows :- "I heard shouting of a female from the side of Khiten's house. Hearing that I rushed towards the house of Khiten and found wife of Khiten was sitting in the field adjacent to their house. I found cut injury on one of her hands. She requested me to tie up that wound with gamcha. While I was about to tie up that wound, Krishna suddenly appeared there with a dragger in his hand from the eastern side. I found his body was smeared with blood. I found cut injury on one of her hands. She requested me to tie up that wound with gamcha. While I was about to tie up that wound, Krishna suddenly appeared there with a dragger in his hand from the eastern side. I found his body was smeared with blood. Seeing him in such a condition, I left the place and went towards the southern side and stood there. Krishna swang dagger towards the wife of Khiten and the dagger hit one of hands. There was axe lying nearby, Krishna picked up that axe and hit Menoka on her neck twice. The head of Menoka was severed from her body. Thereafter, Krishna picked up the dagger and the severed head of Menoka and (torn) towards us that he wound kill if someone ventures come near to him. After showing the severed head to us and after threating us of killing, he dropped the severed head on the field. I left the place thereafter." 7. P.W.5 has corroborated part of the evidence of the P.W.3. He deposed that he had seen the P.W.3 tying up the wound of Menoka which she had received on her hand. 8. The P.W. 4, Sudhir Chandra Roy, the husband of the P.W.2 after seeing the dead body of Khiten in his bed room, rushed to the house of Khiten and what he found there may be reproduced in his own words : "Thereafter, I went towards the house of Khiten and found the body of Khiten's wife and severed head of her were lying on the out of courtyard of their house. I also found Krishna standing in front of his house with a blood stained dagger in his hand. This is Krishna, younger brother of Khiten (identified the accused on dock). Police officials came to the spot for the purpose of investigation." P.W.8, Sushil Chandra Roy Dakua, deposed as follows :- "I saw Krishna standing near his house with a dagger in his hand and threatening of the consequences if anybody ventured to come near to him. I saw the dead body of Khiten's wife lying by the side of the house of Krishna. Her head was completely severed from her body." P.W.6, Bhanu Ram Barman, deposed as follows : "I saw one boy passing along the hat who was shouting "Khitten Oh Khitener Bouke Kete Felchhe". I saw the dead body of Khiten's wife lying by the side of the house of Krishna. Her head was completely severed from her body." P.W.6, Bhanu Ram Barman, deposed as follows : "I saw one boy passing along the hat who was shouting "Khitten Oh Khitener Bouke Kete Felchhe". Hearing that myself and many others rushed to the house of Khiten and found the dead body of the wife of Khiten was lying on the courtyard of Khiten's house. The head was completely severed and was in the hand of Krishna who was standing near the dead body. He had one knife in another hand. I found the body of Krishna was entirely smeared with blood. I went to the house of Sudhir Roy Dakua and from the open window, I saw the dead body of Khiten lying on the floor with a cut throat. I left the place when Police came." 9. In his cross-examination he deposed that the accused, Krishna, was holding the severed head of the wife of Khiten when police arrived there. He dropped it after the police had asked him to do so. 10. P. W. 1, the de facto complainant, has corroborated the evidence of the P. W. 6. He deposed as follows :- "I knew Khiten Barman, since deceased. On 18-5-92 was "Hat Bar". The hat is known as Gobin hat wherein I have a shop. On that date I was in my shop. At about 3.00 p.m. one boy Keshab Ch. Roy Dakua came running towards my shop shouting "Khiten Ke Kete Fello". Hearing that, myself and 2/3 other customers who were present in my shop rushed to the house of Sudhir Ch. Roy. On our way to the house of Sudhir Roy, we met Susama Roy Dakua wife of Sudhir Roy Dakua who was coming towards hat crying. In the house of Sudhir Roy we found the window of his room wide open and we peeped through the window and found the dead body of Khiten Barman lying on the floor of the room. Seeing that, we went towards the house of Krishna Barman situated on the western side of the P. O. and found Krishna Barman standing in front of his house with a blood stained knife in his hand. His body was stained with blood. Seeing that, we went towards the house of Krishna Barman situated on the western side of the P. O. and found Krishna Barman standing in front of his house with a blood stained knife in his hand. His body was stained with blood. We found the dead body of the wife of Khiten lying on the outer courtyard of the house of Krishna Barman. The head of Menoka, wife of Khiten was severed from her body and the head was found beside her body. Many persons like me gathered at the P. O." 11. The P. W. 9, Santosh Das, deposed that Sushil Ch. Roy Dakua, the P. W. 8, came to his house and informed him about the incident of murder and requested him to inform Falakata Police Station. The Falakata P. S. could not be contacted over telephone. The P. W. 9, therefore, informed Madarihat police station over telephone about the incident. 12. The P. W. 12, Home Guard, Aminur Rahaman, attached to Madarihat police station, corroborated the evidence of P. W. 9. He deposed that Mr. Santosh Das, a local R. S. P. leader, had given a message over telephone to Madarihat P. S. after 4 p.m. He deposed that two persons had been killed in the village; Uttar Deogaon within the jurisdiction of Falakata P. S. He also requested the P. W. 12 to convey the information to Falakata P. S. P. W. 12 accordingly conveyed the message to Falakata P. S. through R. T. 13. P. W. 16, Rabindra Nath Chakraborty, the officer-in-charge of Falakata P. S., deposed that at about 5.05 p.m. one Sri Chandra Sekhar Mukherjee, S. I., received the information over wireless through Madarihat P. S. and noted down the message in the G. D. book. The entry has been registered as G. D. E. No. 482 dated 18th May, 1992 which has been marked Ext. 8. The P. W. 16 accordingly accompanied by Sri Chandra Sekhar Mukherjee and the police force went to the place of occurrence. His further evidence in this regard is as follows : "I found a gathering at the P. O. I found a dead body of a beheaded lady lying on the ground. The severed head was lying about 10 feets away from the beheaded body. Jagadish Adhikary handed over me a written F.I.R. on spot. His further evidence in this regard is as follows : "I found a gathering at the P. O. I found a dead body of a beheaded lady lying on the ground. The severed head was lying about 10 feets away from the beheaded body. Jagadish Adhikary handed over me a written F.I.R. on spot. I received the same and sent it to the police station though S. I. Chandra Sekhar Mukherjee for drawing up a formal F. I. R. This is the endorsement on the F. I. R. written and signed by me (marked Ext. ½). The investigation was taken up by me and in course of investigation, I arrested Krishna Barman, who was found sitting in the field surrounded by many persons." 14. Between 18.15 hours and 21.30 hours on 18th May, 1992, the inquest was held over both the dead bodies. The reports have been marked Exhibits 2/d and 2/e. Exhibit 2/e, the inquest report concerning the dead body of Menoka contains the following recital as regards the incident : "It reveals from the facts that on 18-5-92 at about 3.00 p.m., the brother-in-law (husband's younger brother) of the deceased, Krishna Barman quarrelled with her deceased husband Kshiten Barman and chased him with a dagger in his hand in order to kill him (Kshiten). As the deceased tried to resist him (Krishna), he struck her on her hand and chased his elder brother (Kshiten) and killed him in the house of Sudhir Chandra Roy Dakua by cutting his (Kshiten's) neck. And after coming back, he (Krishna) severed the head of his sister-in-law (wife of elder brother) from her body with an axe. The deceased died instantly. Then about a thousand people came there from the nearby market, but none could dare to go near the guilty. It is severing her head with a heavy and sharp weapon that caused her death." 15. P. W. 14, Md. Salamatullah, a member of the Panchayat Samity, deposed that the police seized a knife and an axe stained with blood from the house of the accused, Krishan. P. W. 15, Akhil Barman, has corroborated the evidence of the P. W. 14. 16. The seized articles, namely, the offending weapons, the wearing apparels of the deceased, tuft of hair of the victim, Menoka, and other items were sent to the Forensic Science Laboratory. P. W. 15, Akhil Barman, has corroborated the evidence of the P. W. 14. 16. The seized articles, namely, the offending weapons, the wearing apparels of the deceased, tuft of hair of the victim, Menoka, and other items were sent to the Forensic Science Laboratory. The report furnished by the F. S. L. has been marked as Exhibit 10. From the report of the F. S. L., it appears that the knife seized by the police with a rope tied around had a handle of 8 inches length and the blade was seventeen inches long. It was blood stained. The size of the axe was 7" x 4" with a bamboo handle. The total length of the axe was thirty-five inches. From the F. S. L. report it appears as follows : "Hair collected from the sword marked 'A' and axe marked 'B' and the hair in glass vial marked 'X' were found to be human head origin. Morphologically each of the three sample hair marked 'A', 'B' and 'X' were found to be similar to each other." 17. The Serologist's report being part of Exhibit 10 goes to show that the sword and the rope tied around the sword contained human blood. The blood stain on the other items sent to the Serologist, however, could not be identified because the blood had been disintegrated. The accused during his examination under Section 313 of the Code of Criminal Procedure did not speak a word except reiterating that he was innocent. 17A. Mr. Bhattacharyya, the learned counsel, appearing in support of the appeal, drew our attention to the fact that it appears from the evidence of the P. W. 1 that a boy, namely, Keshab Chandra Roy Dakua, went shouting "Khiten Ke Kete Fello". He submitted that the boy, Keshab, was not examined. From the words uttered by Keshab, it is difficult to follow whether he was an eye-witness or he was making a statement on the basis of any information given to him. 18. We have before us evidence of eyewitnesses who have seen the accused killing Khiten and his wife, Menoka. We have before us the evidence of other witness which project a complete narration as to how did the incident start and how it concluded. Our attention was not drawn to any infirmity in the evidence of any of the witnesses which we have discussed hereinabove. We have before us the evidence of other witness which project a complete narration as to how did the incident start and how it concluded. Our attention was not drawn to any infirmity in the evidence of any of the witnesses which we have discussed hereinabove. The mere fact that Keshab was not examined does not appear to us to be a matter of so great significance that we may be compelled to interfere with the findings recorded by the learned Trial Judge. 19. Before parting with the judgment we would like to notice evidence of the autopsy surgeon, the P. W. 11. The P. W. 11 is Dr. Swaraj Kumar Sen. From his evidence we find that Khiten Barman, aged about 35 years, had sustained the following injuries : "1. Incised injury about 6" x 4" over left deltoid region cut all the muscles. 2. 2" x 1" x 1" incised wound medial seize of the right arm. 3. Incised wound right side of occipital region about 8" x 2" x bone deep and injuries spinal cord open. 4. Incised wound left side of the face 3" x 3" x bone deep. 5. Incised wound left side of occipital region 2" x 5" x bone deep. 6. Multiple abrasion all over the bodies. Hematoma over the skull, Heart - empty." 20. According to Dr. Sen, the death was due to shock and haemorrhage as a result of the injuries indicated above which were ante-mortem and homicidal in nature. 21. According to the evidence of the P. W. 11, the following injuries were suffered by the deceased, Menoka : "1. Extensive lacerated injuries with both bone fracture of left forearm almost amputed-5" x 4". 2. Extensive lacerated injury both bone of right arm 9" x 4" almost amputed. 3. Extensive injury right supra caricular region 5" x 5" deep to chest. 4. Extensive lacerated injury left side of the face about 4" x 3" x bone deep. 5. Beheaded body through survical region. Multiple abrasion over the face." 22. The P. W. 11 opined that the death of Menoka was also due to shock and haemorrhage as a result of the injuries indicated hereinabove. He deposed that injuries found by him on the body of both the victims were caused by heavy sharp cutting weapons. 23. We also have indicated that the weapons used were a sword and an axe. He deposed that injuries found by him on the body of both the victims were caused by heavy sharp cutting weapons. 23. We also have indicated that the weapons used were a sword and an axe. The sword, according to the report of the Serologist, contained human blood. Both the sword and the axe had attached to it pieces of hair which matched with the quality of hair of the deceased, Menoka. 24. From the judgment of the learned trial Judge, we find that he has come to a definite finding as follows : (a) The P. W. 2 witnessed the murder of Khiten; (b) The P. W. 3 witnessed the murder of Menoka; (c) Evidence of both the P. Ws. 2 and 3 is satisfactory; (d) No contradiction of the evidence of the P. W. 3 was taken from the P. W. 16; (e) Both Menoka and Khiten were killed by Krishna. 25. The learned Trial Judge on the basis of his aforesaid findings has convicted the accused and has sentenced him to undergo life imprisonment and to pay fine. 26. After scrutinizing the evidence and hearing Mr. Bhattacharyya, the learned counsel appearing in support of the appeal, and Mr. Goswami, the learned Public Prosecutor, we do not find that there is any scope for any interference. We have, in the circumstances, no other option but to dismiss this appeal. The appeal is, therefore, dismissed. 27. The concerned Department of this Court is directed to send down the Lower Court Records of this case, along with a copy of this judgment, to the learned trial Court forthwith for information and necessary action. 28. Urgent xerox certified copy of this judgment, if applied for, be supplied to the learned Counsel for the parties on compliance of all formalities. 29. KISHORE KUMAR PRASAD, J. :- I agree. Appeal dismissed.