Judgment :- (1.) THIS appeal is directed against a judgment and order dated 15th February 2002 passed by Shri Indrajit chatterjee, learned Additional Sessions Judge, Fast Track Court, diamond Harbour in Sessions Trial No. 9 (10) of 2001 arising out of sessions Case No. 16 (6) of 2001 convicting the appellant under sections 302 and 201 of the Indian Penal Code and sentencing him to suffer imprisonment for life as also to pay a fine of Rs. 5000/-, in default to suffer simple imprisonment for a period of one year for the offence punishable under section 302 of the Indian Penal Code and to suffer rigorous imprisonment for a period of three years for the offence punishable under section 201 of the Indian Penal Code as also to pay a fine of Rs. 2000/-, in default to suffer simple imprisonment for a further period of six months. Both the substantive sentences were directed to run concurrently. The appellant was also charged under section 364 but as against that charge he has been acquitted. (2.) THE case of the prosecution briefly stated is as follows:- Rahaman, son of Rabial Seikh, aged about 25 years, was a tailor. He used to work at Metiabruz. On 25th September 1998 at about 10. 00 to 10. 30 P. M. he was returning home accompanied by Mustafa (P.W. 6), jahangir (P.W. 3), Asmat (P.W. 4) and Sahanabi (P.W. 5). All of them were coming by the same bus. They alighted from the bus at Kalitala bus stoppage. All of them belonged to the same village and were going together. Near the house of Kangal Sardar the accused Sambhu called the victim Rahaman aside on the pretext of some urgent necessity. Rahaman told his companions to go ahead and he would come later. Thereafter, Rahaman did not come back. After a thorough search on 28th September 1998 a complaint was lodged by the P. W. 1 Rabial, father of the victim Rahaman, which was received at 14. 35 hrs. Falta Police station case No. 195 dated 28th September 1998 under section 364 of the Indian Penal Code was started. The accused Sambhu absconded. His house was found under lock and key. On 30th September 1998 he was arrested from village Rania. Pursuant to his statement made to the police, which has been marked ext. 35 hrs. Falta Police station case No. 195 dated 28th September 1998 under section 364 of the Indian Penal Code was started. The accused Sambhu absconded. His house was found under lock and key. On 30th September 1998 he was arrested from village Rania. Pursuant to his statement made to the police, which has been marked ext. 8, a headless, armless, legless dead body of the deceased Rahaman was recovered from a marshy land. The accused Sambhu was charged under sections 302,364 and 201 and has been acquitted of the charge under section 364 of the Indian Penal Code as already indicated. The learned Trial Judge came to the conclusion that the prosecution had been able to prove the following circumstances:- "i) That Rahaman was returning through the village road on 25. 9. 98 with P. Ws. .-3 to P. W. 7 at about 10. 00 to 10. 30 P. M. II) That some persons were waiting on the village road in front of the house of Kangal and Sambhu was one of them. III) That Sambhu called Rahaman and Rahaman went there and from there asked his friends to go home and Rahaman stayed there. IV) Rahaman did not return and was not seen by any person. V) PW-1, 2, Asmat, Jahangir, etc. deposed as to the missing of rahaman and they told what they saw on the previous night and then PW-1 and other witnesses went to Sambhus house and shambhu was not there and his house was under lock and key. VI) Search for Rahaman Sk. continued but he was not found. VII) FIR was lodged on 28. 9. 98 and Shambhu was arrested in the morning of 30. 9. 98 and as per his statement only the trunk of rahamans body was recovered from a ditch at village Kuchagadi which was identified by PW-1 by the belt which Rahaman used to wear since last 6 months. " (3.) BEFORE we consider the submissions advanced by Mr. Dastoor, learned Advocate appearing for the appellant, we would discuss the evidence on record. (4.) JAHANGIR (P. W. 3), Asmat (P. W. 4), Sahanabi (P. W. 5) and Mustafa (P. W. 6), the companions of the victim Rahaman have in their respective evidence deposed that they are the residents of the same village. They were working with the victim Rahaman as tailors. (4.) JAHANGIR (P. W. 3), Asmat (P. W. 4), Sahanabi (P. W. 5) and Mustafa (P. W. 6), the companions of the victim Rahaman have in their respective evidence deposed that they are the residents of the same village. They were working with the victim Rahaman as tailors. On the fateful day they came back by the same bus. They got down at Kalitala More and were together returning to their respective houses. PW 3 however stated that they had alighted at Kuchagadi More. From the sketch map (ext. 7)it appears Kuchagadi is alternatively referred to as Kalitala. (5.) FAZLU (P. W. 7) and Seikh Sarabuddin (p. W. 8) were returning at the same time from Calcutta. They were also on their way to the same village. P. W. 7 Fazlu deposed that near the house of Kangal Sardar 8-10 persons had collected. The accused Sambhu was one of them. According to P. W. 8 Sk. Sarabuddin, 10-12 persons were waiting in front of Kangals house. P. W. 7 enquired of the accused Sambhu as to what the matter was to which Sambhu replied as follows:-"sambhu told me to go to my house. Sambhu further told that one dog had gone mad and they were waiting to kill that dog. Thereafter i returned back to my house. " (6.) P. W. 8 corroborated the aforesaid evidence of the P. W. 7. According to him "they told me that they were there to teach a good lesson to a mad dog and asked me to go back to my house and I returned back to my house. " (7.) P. W. 4 Asmat deposed that when they had reached near the house of Kangal Sardar the accused Sambhu called the victim Rahaman. P. W. 6 mustafa in this regard deposed as follows:- "when we reached near the house of Kangal we found about 8 to 10 persons. We crossed them and proceeded towards our village. Some one of that group called Rahaman from behind and that man asked Rahaman to go to them. Rahaman told that most probably sambhu had given the call. Rahaman told that he will be coming soon and asked us to wait. Rahaman went back and thereafter from there asked us to go back to our house. We returned back. Some one of that group called Rahaman from behind and that man asked Rahaman to go to them. Rahaman told that most probably sambhu had given the call. Rahaman told that he will be coming soon and asked us to wait. Rahaman went back and thereafter from there asked us to go back to our house. We returned back. " Evidence of P. W. 5 Sahanabi in this regard is as follows:- "it was then 10 to 10. 30 P. M. some one called Rahaman from behind. I do not know that voice. Rahaman told that Sambhu was calling him and he asked us to wait for sometime." (8.) P. W. 3 deposed that he did not know who actually had called rahaman from behind on 25th September 1998. However P. W. 2 Ismail deposed that "1 heard from Jahangir, Asmat, Mostafa and another that they along with Rahaman returned from Calcutta and were proceeding towards their house and when they reached Kuchagadi near the house of Kangal then Sambhu called Rahaman. Rahaman went to Sambhu and theafter returned back and told Mostafa and others to go and he will come later. It was then 10 to 10. 30 P. M. " (9.) SIMILARLY P. W. 13 Bahar Ali also corroborated the evidence of the p. W. 2. Evidence of P. W. 13 in this regard is as follows:-"rahaman Sk. was known to me. Before three years he was coming, from Calcutta at about 10 to 10. 30 P. M. through the village road with Jahangir Mostafa and two others. On the next morning they told me at a tea stall that Sambhu called Rahaman when he was returning with them. Rahaman did not return. (10) FROM the evidence discussed above we are firmly of the view that it has been fully established that the victim was called by Sambhu. The victim stayed back. His companions left. The information given by jahangir (P. W. 3), Mostafa (p. W. 6) and Sahanabi (p. W. 5) to the prosecution witnesses No. 2 and 13 on the following day i. e. 26th september 1998 in the morning when everyone was searching rahaman has special value by way of res gestae because it was made before anyone had known that Rahaman was no more and before there was any scope for any concoction. The fact that Sambhu was there among the crowd in front of the house of Kangal Sardar and the fact that the accused Sambhu called Rahaman is directly proved by the evidence of P. Ws. 4 and 7 which is corroborated by the evidence of P. Ws. 2 and 13. (11.) P. W. I deposed that the P. Ws. 3,4,5 and 6 accompanied him to the house of the accused Sambhu but his house was found under lock and key on the following morning. P. W. 9 Sk. Ansar Ali corroborated the evidence of the P. W. 1. He deposed as follows:-"myself P. W. 1 and several villagers went to Sambhus house but sambhu was not there. The house was under lock and key. (12.) ALL the witnesses are agreed on the point that Rahaman did not come back. This is further strengthened by the evidence of P. W. 1, the father of the victim Rahaman which is as follows:- "on the date of the incident he was returning from Calcutta. He was accompanied by Jahangir, Sahanabi, Asmat and Mostafa. When they reached near the house of Kangal it was then 10 P. M. The house of Kangal is about 1 mile from my house. On the next morning those four persons informed me that Sambhu called my son Rahaman and since then he was missing. " (13.) P. W. 13 Bahar Ali deposed that he accompanied by a small boy had gone to the house of the accused Sambhu and found the same under lock and key. (14.) ON 28th September 1998, the F. I. R was lodged by the P. W. I, the father of the victim which was scribed by the P. W. 2 Ismail. P. W. 19, the i. O. deposed that in spite of searches the accused could not be detected. He was ultimately arrested on 30th September 1998 from the village rahia. His evidence is as follows:- "i searched for the accd. on and from 28. 9. 98 to 30. 9. 98. My C. D. is silent as to at what time I went to the house of Sambhu. I could arrest Sambhu as per source information on 30. 9. 98 from village rania. " (15.) THE accused Sambhu, according to the I. O. (P. W. 19) was interrogated. During such interrogation he made a statement which was recorded and has been marked ext. I could arrest Sambhu as per source information on 30. 9. 98 from village rania. " (15.) THE accused Sambhu, according to the I. O. (P. W. 19) was interrogated. During such interrogation he made a statement which was recorded and has been marked ext. 8 and on that basis the dead body of the deceased was recovered. Durmg cross-examination the I. O. was suggested that by inflicting torture in the police custody, the accused sambhu was compelled to make this statement which the I. O. denied. Therefore, the statement made by the accused in police custody is not in dispute. The accused in his examination under section 313 Crpc however denied that he had made any statement. The truncated dead body of the deceased was concealed in a lonely place. It is on the basis of the statement that the dead body could be located. Therefore, the denial of the accused during the examination under section 313 Crpc that he made any statement does not inspire any confidence. (16.) P. W. 18 S. I. D. P. Dey conducted the inquest in the presence of the Officers-in-Charge of the Falta Police Station and Nodakhali Police station as also private witnesses. From the inquest report prepared on 30th September 1998 the following transpires:- "the head-less, arm-less and leg-less body is found floating on its back on the water of the said Anil Mondals pool and it is in a decomposed condition with the skin from the neck to the waist peeled off. The portion of the dead body is turned over and over again in the presence of witnesses whose signatures appear beside this report, with the assistance of the cremator of the Falta Police Station, samser Seikh, and it is found that the head, the entire arms and the legs from the waist are missing, There are decomposition marks and no clothes on the body, A belt is visible on the body. " (17.) P. W. 18 deposed that the father of the deceased identified the dead body by the belt which was on the waist of the body. P. W. 1 has corroborated the same. " (17.) P. W. 18 deposed that the father of the deceased identified the dead body by the belt which was on the waist of the body. P. W. 1 has corroborated the same. The belt was identified by the P. W. I and was marked material exhibit I. In cross-examination, P. W. 1 admitted that there was no special mark of identification on the belt P. W. 13 who was also present during the recovery of the dead body deposed as follows:-"i went down the doba. The body of Rahaman was tied by his belt with one bamboo. I lifted the body only stem (?) of Rahaman was there. The father of Rahaman identified the body by the health of his son. I identified out of guess. " (18.) MR. Dastoor, learned Advocate appearing in support of the appeal submitted that it would appear from the forwarding report that the accused had been arrested from Uttar Sagaria village and not from the village Rania as deposed by the P. W. 19. We are unable to rely on the forwarding report because there is a graphic detail as to how was the murder committed, allegedly given by the accused Sambhu, which is not admissible in evidence. The forwarding report was not prepared by the P. W. 19 nor was the P. W. 19 cross-examined as to the actual place of arrest of the accused. We therefore are not in a position to accept this submission of Mr. Dastoor. Mr. Dastoor strenuously submitted that the evidence led by the prosecution is not in conformity with the forwarding report. We have indicated above the reasons why we cannot allow ourselves to be influenced by the contents of the forwarding report. (19.) NEXT submission advanced by Mr. Dastoor was that the accused appears to have, been forwarded to the Magistrate on 2nd October 1998 whereas he was arrested on 30th September 1998. He submitted that this was an illegality and this goes to cast a serious doubt on the veracity of the case of the prosecution. Not one question with regard to the delay in forwarding the accused to the Court of the learned Magistrate was asked to the I. O. when he was in the box. Law is well settled that for the lapses of investigating agency case of the prosecution cannot be thrown over-board. Not one question with regard to the delay in forwarding the accused to the Court of the learned Magistrate was asked to the I. O. when he was in the box. Law is well settled that for the lapses of investigating agency case of the prosecution cannot be thrown over-board. However, Court shall be circumspect in assessing the evidence. If any authority is needed reference may be made to the judgment in the case of Karnel Singh v. State of M. P. reported in 1995 (5)SCC 518 Para 5. "notwithstanding our unhappiness regarding the nature of investigation, we have to consider whether the evidence on record, even on strict scrutiny, establishes the guilt. In cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. Any investigating officer, in fairness to the prosecutrix as well as the accused, would have recorded the statements of the two witnesses and would have drawn up a proper seizure-memo in regard to the chaddi. That is the reason why we have said that the investigation was slipshod and defective. " (20.) THIRD submission made by Mr. Dastoor was that there was inordinate delay in lodging the written complaint. The victim went missing since the night of 25th September 1998 and the written complaint by the father of the victim was lodged on 28th September 1998 at 14. 35 hrs. There is evidence before us to show that everyone was trying to trace out the victim. The evidence of P. W. I in this regard is very material which is as follows:-"during those two days I searched every house of Jamira but failed to trace out my son. " (21.) MR. Dastoor submitted that it could not be followed why was the father of the victim searching every house of the village Jamira when he already had known that the victim had been abducted by Sambhu, a man of different village. This question in our view, can easily be answered considering the normal human behaviour. No one has suggested that there was any enmity between the accused and the victim. This question in our view, can easily be answered considering the normal human behaviour. No one has suggested that there was any enmity between the accused and the victim. On the contrary, P. W. 4 deposed that there was intimacy between the victim and the accused. Therefore, the father of the victim had no reason to suppose that the accused could have abducted the victim for the purpose of killing. He, therefore, may have entertained the belief that his son was somewhere in the village or that the villagers or any of them could give any clue. (22.) NEXT submission advanced by Mr. Dastoor was that the belt on the bais whereof the body of the deceased was identified does not bear any special mark of identification and therefore it must be a mere guess work that the body was identified as the body of Rahaman. Mr. Dastoor submitted that this has been strengthened by the fact that the P. W. 1 admitted in his cross-examination that he did not perform the last rites of his son Rahaman. Why did the P. W. 1 not perform the last rites of rahaman is a matter known to him. No question in this regard was asked. It is true that he has deposed that he did not perform the last rites of his son. When the belt was shown to him, the P. W. I said that this was the belt which his son was using since six months prior to his disappearance. We therefore, are unable to give any weight to this submission of Mr. Dastoor. (23.) NEXT submission advanced by Mr. Dastoor was that the statement marked ext. 8 was recorded by the police after discovery of the dead body. He tried to demonstrate some inconsistencies in the evidence of the i. O, P. W. 19 and S. I. (P. W. 18). He submitted that Sambhu was arrested within the jurisdiction of Nodakhali Police Station, according to the p. W. 19. He also admitted in his cross-examination that, the accused sambhu. was taken to the Nodakhali Police Station. In his examination-in-chief P. W. 19 deposed that after the accused Sambhu made the statement marked ext. 8 the Officer-in-Charge of Nodakhali police Station was informed. In the examination-in-chief he has stated that the accused was taken back to Falta Police Station at 6. 15 P. M. Mr. was taken to the Nodakhali Police Station. In his examination-in-chief P. W. 19 deposed that after the accused Sambhu made the statement marked ext. 8 the Officer-in-Charge of Nodakhali police Station was informed. In the examination-in-chief he has stated that the accused was taken back to Falta Police Station at 6. 15 P. M. Mr. Dastoor wanted to contend that from the time of arrest at 8. 30 if the accused was in Nodakhali P. S. then where was the statement made. If the accused was taken back to Falta P. S. at 6. 15 P. M. and the body was recovered during the noon, then the statement must have been recorded subsequently. We are unable to accept this submission. The events chronologically were not elicited from the I. O. in his cross examination. It is quite possible that after arresting the accused he was taken to Nodakhali P. S. from where he was taken to Falta P. S. where he made the statement. When such statement was made, the officer-in-Charge of the Nodakhali P. S. was informed. Thereafter the police belonging to both Nodakhali P. S. and Falta P. S. proceeded to the place where the body was kept concealed. The inquest appears to have been made at 12. 30 noon. The accused may have been taken back to falta P. S. at 6. 15 P. M from the place of recovery. The case sought to be made out by Mr. Dastoor does not appear from the evidence of P. W. 19 and we cannot make out a case which is not there on the record. (24.) MR. Dastoor next submitted that P. W. 19 was suggested that the body was recovered because the villagers had complained of a foul smell to which P. W. 19 replied that there was no locality within one and a half kilometer from the place where the body was recovered. Relying on the evidence of P. W. 4, Mr. Dastoor contended that it would appear that the body was recovered from behind a music school. He accordingly submitted that it is not correct to say that the body was concealed in a place where there was no locality. Relying on the evidence of P. W. 4, Mr. Dastoor contended that it would appear that the body was recovered from behind a music school. He accordingly submitted that it is not correct to say that the body was concealed in a place where there was no locality. The sketch map being ext 7 goes to show that the dead body was concealed within the jurisdiction of nodakhalli P. S. It further goes to show that the music school is itself located in a lonely place on the road between Bishallakhhitala and kalitala More/kuchadadi More. The sketch map goes to corroborate the evidence of P. W. 19 that the dead body was recovered from a place where there is no locality. (25.) LASTLY it was submitted by Mr. Dastoor that the evidence adduced by the prosecution is discrepant. Relying on the evidence of P. W. 3 he contended that Jahangir merely stated that one of the persons who had collected near the house Kangal Sardar called Rahaman and he did not know whether he was Sambhu. We already have discussed this point and need not repeat. (26.) BASED on the discussion made hereinabove we are unable to accept the submissions of Mr. Dastoor that the appeal should be allowed. Appeal dismissed.