Judgement GIRISH CHANDRA GUPTA, J. :- This appeal is directed against a judgment dated 30th August 2004 passed by the learned Additional Sessions Judge, Fast Track Court 1, Alipur, South 24 Parganas, in Sessions Trial No. 3(1) of 2003 arising out of Sessions Case No. 5(1) of 2003 convicting the appellants under Sections 302/201 read with section 34 of the Indian Penal Code and an order dated 31st August 2004 by which the appellants were sentenced to imprisonment for life as also to pay a fine of Rs. 4000/- each, in default to suffer further rigorous imprisonment for four months each for the offence punishable under Section 302 read with S. 34 IPC. They were also sentenced to suffer rigorous imprisonment for seven years as also to pay a fine of Rs. 2000/- each, in default to suffer further rigorous imprisonment for two months for the offence punishable under Section 201 read with Section 34 of the IPC. Both the sentences were directed to run concurrently. 2. Briefly stated the prosecution case is as follows :- On 12th July, 2002 dead body of an unknown person, packed in a gunny bag, was recovered at the eastern slope of Circular Canal near Gajnabi bridge, at 7.25 hrs. A G. D. Entry bearing No. 1143, dated 12th July, 2002 of Ultadanga P.S. was recorded which has been marked Ext. 19 and on that basis a case under Sections 302 and 201 read with Section 34 of the Indian Penal Code was started against unknown persons for murder of an unknown male, aged about 35 years. The dead body was subsequently identified as that of Mahesh. The evidence led by the prosecution may now be briefly discussed. 3. On 13th July, 2002 at about 15.30 hrs. post-mortem of the dead body was conducted by Dr. Pal (P.W. 17). A number of lacerated injuries were found on the scalp, cheek, neck and other parts of the body. According to the P.W. 17 "death was due to the effect of asphyxia resulting from compression of neck and ante mortem and homicidal in nature." 4. P.W.5 Jyotsna, wife of the deceased; P.W.7 Aruna, mother-in-law of the deceased; P.W.9 Md. A number of lacerated injuries were found on the scalp, cheek, neck and other parts of the body. According to the P.W. 17 "death was due to the effect of asphyxia resulting from compression of neck and ante mortem and homicidal in nature." 4. P.W.5 Jyotsna, wife of the deceased; P.W.7 Aruna, mother-in-law of the deceased; P.W.9 Md. Abbas, a worker in a tari shop and P.W. 10 Abdua Sattar, Manager of the tari shop, deposed to have seen the victim Mahesh in the company of the accused persons shortly before the dead body of the victim was recovered by the police. Evidence of P.W.5 Jyotsna is as follows :- "On the day just preceding the day of Rathjatra at about 12 O'clock at noon Budha alias Baddy came to our house and called my husband. My husband went out. Outside my father's house, my husband and Buddha alias Baddy were talking. He was demanding money from my husband and on this issue Buddha was expressing his anger during talk. My husband could not give money to Buddha. I asked both my husband and Buddha alias Baddy whether they would take tea. Both refused the offer of tea. Buddha alias Babby told that the matter would be settled in night. He left the place after saying it. My husband came back to the house. On being asked by me my husband told me that I would not understand the matter between him and Buddha. In the night at about 11 p.m. on that day while my parents and husband and myself were taking supper, Buddha and Sanu came to our house and called my husband. My husband was reluctant to go out. When they were persistently asking and pressing my husband to go with them at last my husband had to go out with them though he was not willing to do so. Thereafter my husband did not come back to our house.' 5. A gangee (vest/T-Shirt) by which the legs of the victim were tied was identified by the P.W.5 as the gangee of the appellant Buddheswar. P.W.5 in this regard deposed as follows :- "the gangee was of Budha as I found that gangee on the person of Budha when my husband was called by Budha and Sanu in that night." 6. P.W.7, the mother-in-law of the deceased Mahesh corroborated the evidence of the P.W.5. P.W.5 in this regard deposed as follows :- "the gangee was of Budha as I found that gangee on the person of Budha when my husband was called by Budha and Sanu in that night." 6. P.W.7, the mother-in-law of the deceased Mahesh corroborated the evidence of the P.W.5. She deposed, inter alia, as follows :- "For the last time in the night preceding the date of Rathajatra Budha and Sanu took Mahesh with them from my house at about 11 p.m. At noon of that day Budha came to our house and called in Mahesh outside out house. He was demanding money from Mahesh. I heard altercation going on between them. My daughter Jyotsna asked them whether they would take tea. Both of them-Mahesh and Buddha refused to have tea. When Buddha was leaving the place he was heard saying that he would come at night to settle the matter. On being asked by my daughter as to what Buddha was saying about money Mahesh replied that she would not understand the matter. In the night Buddha and Sanu came to our house when Mahesh was about to have his supper. Mahesh was reluctant to go with them. But at they were insisting on his going out with Sanu, Mahesh was compelled to accompany them. Mahesh had a black colour pant, black-blue colour sando gangee on his body. Buddha was found wearing a gangee/T-shirt of grey and white colour. Sanu had a yellow colour shirt on his person. Both Buddha and Sanu whose names I have mentioned are present today in this Court. (The witness identifies both the accused persons in dock). Mahesh did not come back in last night and thereafter." 7. P.W.9 Md. Abbas, a worker in the tart shop, deposed, inter alia, as follows :- "Last year on the day preceding the day of Rathjatra at about 1 hrs. at night some persons knocked the door of the shop. The Manager woke up and opened the door. Shona, Buddha and Mahesh came into the shop. They demanded money from the Manager. The Manager had a sum of 700/- rupees with him and he handed over the same to Mahesh who was with Buddha and Sanu. Then they went away. Today Buddha and Sanu are present in this Court." 8. The evidence of P.W.9 was corroborated by the evidence of the P.W. 10. They demanded money from the Manager. The Manager had a sum of 700/- rupees with him and he handed over the same to Mahesh who was with Buddha and Sanu. Then they went away. Today Buddha and Sanu are present in this Court." 8. The evidence of P.W.9 was corroborated by the evidence of the P.W. 10. He deposed, inter alia, as follows :- "I knew Mahesh. Mahesh used to visit my shop for drinking tart. For the last time I saw Mahesh with Sonu and Buddha in the night preceding the day of Rathjatra last year. It was the month of July so far as I can recollect. The door of my shop was knocked. I opened the door. I switched on the light. Mahesh asked me to give him money. He insisted on my paying money. Though I told them how could I give him money in that night. He hreatened me. Out of fear I paid Rs. 700/- to Mahesh and I had this money in my cash. Then Mahesh, Sanu and Buddha went away from my shop." 9. P.W. 12 Anil Mishra, a businessman by occupation, who had seen the appellants dragging a gunny bag near Gaznabi bridge deposed, inter alia, as follows :- "On the way when I had reached near Gaznabi bridge I found Sanu and Buddha along with two unknown persons dragging/ pulling a gunny bag containing something near the sign board at Gaznabi bridge. Buddha and Sanu are known to me as they are known as snatures/extortionist in our locality and sometimes they came to us for money. I stopped there and wanted to know what had happened. I asked Buddha and Sanu as to what was the matter. They asked me to go away by saying - "Bhag Tereko Keya Dekna". On 11th August, 2002 Mahesh's brother Tina came to me and he told me that his brother Mahesh had been murdered. He told me that Mahesh's body had been found near Gaznabi bridge. I told him that in the night when I was going by my scooter at about 3.30 a.m. towards R.G. Kar on 11/12th July, I found Buddha and Sanu dragging and pulling a gunny bag near Gaznabi bridge. Today I find Buddha and Sanu in this Court." 10. He told me that Mahesh's body had been found near Gaznabi bridge. I told him that in the night when I was going by my scooter at about 3.30 a.m. towards R.G. Kar on 11/12th July, I found Buddha and Sanu dragging and pulling a gunny bag near Gaznabi bridge. Today I find Buddha and Sanu in this Court." 10. P.W.20 S.I. Upadhyay who recovered and seized the dead body deposed, inter alia, as follows :- "On 12-7-2002 when I was on round I received an information from A.S.I. S.S. Mondal at about 7.25 p.m. that dead body was lying bound in a gunny bag on Eastern Slope of canal near Gaznabi bridge. I rushed to the spot accordingly. I was going there found a gathering. I found a gunny bag there. I then opened the mouth of the gunny bag in presence of two local persons. (Deferred on the prayer of the prosecution) Examination-in-Chief resumed on 16-7-2004. "Then I opened the mouth of gunny bag in presence of Raj Kumar Shaw, Damodar Nag. Thereafter I unfastened the jute strings of plastic covering and discovered an upper portion of the male body aged 35 years, of medium complexion and medium built, wearing a blue-black sleeveless gangee with red stripe gamcha around his neck. On examination I found a deep cut injury on the back side of his head and another on the left cheek, initially it appears that he had no sign of life and that he was murdered. It also occurred to me that he was thrown there hushing up his evidence. I then took the body to R.G. Kar Hospital on a police van. He was examined by the doctor at the hospital and the doctor declared him dead. When I opened the bag in presence of the doctor completely I found that legs of the deceased was tied with a grey-white T-shirt. Doctor told me that he was brought dead. I contacted D. D. Photoghrapher. The photographer took snaps of a dead body there." 11. P.W.3 Raj Kumar Shaw corroborated the evidence of P.W.20. He deposed, inter alia, as follows :- "On 12-7-2002 at about 6.45 a.m. in the morning 1 noticed a crowd-huge gathering near the Gaznabi bridge. I went there. Doctor told me that he was brought dead. I contacted D. D. Photoghrapher. The photographer took snaps of a dead body there." 11. P.W.3 Raj Kumar Shaw corroborated the evidence of P.W.20. He deposed, inter alia, as follows :- "On 12-7-2002 at about 6.45 a.m. in the morning 1 noticed a crowd-huge gathering near the Gaznabi bridge. I went there. After a while one officer of Ultadanga P.S. told that the police opened a gunny bag containing something and asked us whether we would become witness. I agreed to be a witness. Like me another person also agreed to be the witness. Beside the canal on a slope where there was bush near the sign-board of Gaznabi bridge that gunny bag was lying. We found one lying-wrapped with a gunny bag and half portion within a plastic bag. The neck was tied with a "gamcha". The plastic bag was opened by the police. We found the (illegible) portion of the body of an young person with mark of cutting on cheek and other mark of injury on back side of the head. As the police found the body in our presence the police did not open the remaining portion. The body was brought to R. G. Kar Hospital in a police van. We accompanied the police team in that police van. The police kept the body in the hospital." 12. P.W.4 a tea stall owner known as Damodar also corroborated the evidence of the P.W.20. He deposed as follows :- "I own a tea stall near the Gajnabi bridge. On 12th July, 2002 at about 6.30/7.00 a.m. (in between 6.30 and 7.00) I found a gathering near the Gajnabi bridge sign board on a sloping. I rushed there. I found a gunny bag and a white plastic bag in which there was something. The police came there. The police asked us to be witness. The police uncovered half portion of the gunny bag. It was found the mouth of a human body with a gamcha tied around the neck. The body was taken by the police at R.G. Kar hospital. Rajkumar and myself accompanied the police as we (were?) asked by the police to accompany them. We went in a police van." 13. P.W.21 who subsequently took over investigation deposed that he recovered the offending weapon on the basis of disclosure made by the accused Buddheswar. The body was taken by the police at R.G. Kar hospital. Rajkumar and myself accompanied the police as we (were?) asked by the police to accompany them. We went in a police van." 13. P.W.21 who subsequently took over investigation deposed that he recovered the offending weapon on the basis of disclosure made by the accused Buddheswar. The seizure list has been marked Ext. 13/2. P.W. 13 Dulal Sengupta is a witness to the recovery and seizure of the offending weapon. He deposed, inter alia, as follows :- "I found one police vehicle with a sign board-Kolkatta Police D.D. The police vehicle stopped there. One police officer in plain dress introduced himself to me as a police officer and requested me to be a witness. After a little thought I agreed to be a witness. Near me one young person was standing. The police officer requested him to be a witness. I found that at the instance of police officer and other police staff brought down one young man from that police vehicle. That young man was tied with a rope around his waist. That young man was found wearing a gangee and half pant. As led by that young man the other officers and me the witness proceeded to Bagmari park. In the left side i.e. in the east Bagmari park inside there is pumping reservoir under construction. Along that reservoir under construction the young man led us to an old dilapidated room and beside it rubbishes were found and there was a bush. That young man brought out one yellow polythene packet from that bush. The packet was opened and from inside that packet one cream colour pant was found and that pant bore dry blood colour like marks/spots and from the fold of that pant one chopper with dry blood colour spot and one side with sharp edge was also found. The police officer prepared a list after seizure of the article. The police officer signed. He took signatures of that young man i.e. accused, we, the witness signed in that seizure list. Then I came to know that the name of that young man (accused) was Budheswar Pramanik alias Budhe. The officer packed the seized articles and labelled the same. My signature was taken on the label. the officer signed and the accused signed on the label. This is the seizure list. Then I came to know that the name of that young man (accused) was Budheswar Pramanik alias Budhe. The officer packed the seized articles and labelled the same. My signature was taken on the label. the officer signed and the accused signed on the label. This is the seizure list. This is my signature (Ext. 13)." 14. P.W. 14 Gauranga, an acquaintance of the victim Mahesh, deposed that he knew both the appellants and the deceased Mahesh. According to him both the appellants and the deceased were known criminals. P.W. 21 Mr. Banik the Investigating Officer admitted that the deceased Mahesh had criminal background. From the evidence discussed above the following facts appear to have been established. a) The incident of took place on the day preceding the occasion Rathayatra. It has not been disputed before us that the Rathayatra in the year 2002 was held on 12th July 2002. From the evidence of the P.Ws. 5 and 7, it appears that the appellants took away the victim Mahesh from the house of his father-in-law in the presence of his wife and mother-in-law. The evidence of the wife and the mother-in-law of the victim go to show that Mahesh accompanied the appellants reluctantly. b) From the evidence of P.Ws. 9 and 10, it appears that at 1 A.M. on 12th July 2002 the victim accompanied by the appellants broke in upon their shops. They were awaken. The victim demanded money from them. After some hesitation, P.W. 10 paid a sum of Rs. 700/- to the victim. The victim thereafter left accompanied by the appellants. c) At about 3.30 A.M. on 12th July 2002 P.W. 12 Anil Mishra noticed the appellants along with two other unknown persons dragging a gunny bag near the sign board of the Gajnabi Bridge. He is acquainted with the appellants. He asked them as to what the matter was to which the appellants rebuffed him. In the morning a dead body was recovered and seized by the P.W. 20 S.I. Upadhayay in the presence of the P.Ws. 3 and 4. He is acquainted with the appellants. He asked them as to what the matter was to which the appellants rebuffed him. In the morning a dead body was recovered and seized by the P.W. 20 S.I. Upadhayay in the presence of the P.Ws. 3 and 4. d) These facts go to establish that the victim was last seen together in the company of the appellants at about 1 A.M. on 12th July 2002 and his dead body was recovered at around 7 A.M. on 12th July 2002 whereas the appellants were seen dragging a gunny bag near the Ghaznabi bridge at about 3.30 A.M. on 12h July 2002. The evidence of P.W. 12 goes to suggest that it is the appellants who had dumped the dead body of the deceased near the Gajnabi Bridge from where the same was recovered by the P.W. 20. The legs of the deceased were found tied with a gangee. P.W. 5 identified the gangee. She deposed that she had seen this gangee on the person of the Buddheswar when he had taken away her husband on 11th July 2002 at 11 P.M. e) The offending weapon was recovered on the basis of the statement made by the appellant Buddheswar. The relevant portion whereof has been marked Ext. 23. It transpired from the evidence P.W. 20 that the deceased had a gamcha tied to his neck. Apart from the injuries found on the person of the deceased the death, according to the Autopsy Surgeon, was caused due to asphyxia. The circumstance noticed above firmly establish complicity of the appellants. 15. Mr. Mahato, learned Advocate appearing in support of the appeal submitted that a) there is no eye witness; b) there is no explanation as to why the wife and the mother-in-law of the deceased did not even raise their little finger, far from reporting the matter to the police, when the deceased did not come back for more than 20 days nor was any missing information about him lodged. A faint attempt was made by the P.W. 5 to explain this lacuna by alleging that her mother-in-law had gone to the police but her complaint was not entertained. Mr. Mahato submitted that the mother-in-law of the P.W. 5 was not examined. According to him this is a serious lacuna in the case of the prosecution. A faint attempt was made by the P.W. 5 to explain this lacuna by alleging that her mother-in-law had gone to the police but her complaint was not entertained. Mr. Mahato submitted that the mother-in-law of the P.W. 5 was not examined. According to him this is a serious lacuna in the case of the prosecution. He further submitted that the offending weapon allegedly recovered cannot have any nexus with the crime in question because no incise injury was found on the body of the deceased. According to him the evidence of the P.W. 5 and the P.W. 7 is not believable because they have deposed that the gangee recovered by the police was seen in the person of the appellant Buddheswar. Mr. Mahato submitted that it is impossible for anyone to recognize the garment which a criminal was allegedly wearing on the date of the occurrence after such a long time. Mr. Mahato finally submitted that the evidence adduced by the prosecution is weak in nature and the prosecution has not been able to prove the guilt of the accused persons beyond any reasonable doubt. 16. Mr. Goswami, learned Public Prosecutor, submitted that the appellants are and the deceased was a seasoned criminal, The appellant Sanu in his examination under Section 313 Cr. P.C. stated in answer to question No. 6 that he had met Mahesh in the Jail on a number of occasions. The appellant Buddheswar was shown arrested on 20th August 2002 in the present case when he, in fact, had been arrested in connection with some other case. 17. P.W. 20 has deposed that the victim had criminal background. P.W. 14 Gauranga has deposed that the deceased and the accused were comrades in crime. Mr. Goswami submitted that there is no reason to suppose that the family members of the deceased were ignorant of the fact that the victim was a criminal. When he did not come back after he was taken away by the appellants at 11 p.m. on 11th July 2002 it is only probable that the inmates of his father-in-law's house including his wife entertained the belief that he may have been arrested by the police with respect to some criminal matter. He submitted that the relatives of a criminal do not react the same way as an ordinary law abiding citizen or his family members would do. He submitted that the relatives of a criminal do not react the same way as an ordinary law abiding citizen or his family members would do. He submitted that the family members of a criminal would rarely go to the police. He added that there is nothing unusual in the fact that the wife and the mother-in-law of the deceased did not inform the police that Mahesh had not come back. As regards the recovery and seizure of the offending weapon Mr. Goswami submitted that it would appear from the statement of the appellant that the butt of the weapon was used which is corroborated from the fact that the lacerated injuries were found on the body of the deceased. As regards the identification of the gangee of the appellant Buddheswar by the P.Ws. 5 and 7 Mr. Goswami submitted that it is not unusual because the family members of the criminals develop some propensity or abilities which may not be shared by an ordinary person. 18. Considering the submissions made by the learned Advocates appearing for the parties, we are of the view that the evidence laid by the prosecution successfully endures the scrutiny on the touch stone of probability. It cannot be said that the evidence led by the prosecution points to something which is inherently improbable. It has been firmly established that the deceased was seen together in the company of the appellants shortly before his death, The appellats cannot escape their obligations to explain as to what happened to the deceased, while he was in their company. Nothing was suggested on behalf of the defence to create any suspicion that the murder could have been committed by any third party. Both the accused persons after the commission of the crime absconded. The appellant Buddheswar was shown as arrested on 20th August 2002 as already indicated when he had actually been arrested in connection with some other case. The appellant Sany was arrested on 8th December 2002. The appellant Buddheswar in his examination under Section 313, Cr. P.C. stated that he at the relevant point of time was at Daulatabad but no attempt was made on his behalf to adduce any evidence whatsoever in respect thereof. These are the circumstances which lend assurance to the Court as regards the complicity of the appellants. The appellant Buddheswar in his examination under Section 313, Cr. P.C. stated that he at the relevant point of time was at Daulatabad but no attempt was made on his behalf to adduce any evidence whatsoever in respect thereof. These are the circumstances which lend assurance to the Court as regards the complicity of the appellants. From the evidence discussed above it cannot be said that the view taken by the learned Trial Court is an improbable one. 19. We are under the circumstances of the view that there is no scope of any interference. The appeal is, as such, dismissed. The conviction and sentences passed by the learned Trial Court for the offence under Sections 302/201 read with Section 34 of IPC are hereby affirmed. The appellants are in jail, therefore, they are directed to serve out the remaining part of their sentences awarded by the learned Trial Judge. 20. Send a copy of this Judgment to the Superintendent, Correctional Home, where the appellants are now under detention for information and necessary action. 21. Lower Court Records with a copy of the judgment be sent down forthwith to the learned Trial Court for information and necessary action. 22. Urgent xerox certified copy of this judgment, be delivered to the learned Advocates for the parties, if applied for, upon compliance of all formalities. 23. KISHORE KUMAR PRASAD, J. :- I agree. Appeal dismissed.