Judgment :- (1.) THIS appeal directed against a judgement dated 15th December, 1999 passed by the learned Additional Sessions judge, Nadia, 2nd Court, Krishnagar in Sessions Trial No. 1 (November)of 1999 arising out of Sessions Case No. 5 (10) of 1999 convicting the appellant under section 364 of Indian Penal Code and an order dated 16th december, 1999 by which the convict was sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 5,000/-, in default to suffer further simple imprisonment for a period of one year. (2.) THE facts and circumstances of the case briefly stated are that on 2nd March, 1999 at about 9. 00 A. M. in the morning the appellant Ganesh ghosh took away Ombar alias Ombar Ali on the pretext of an urgent piece of business. Omar thereafter did not come back. His beheaded deadbody was recovered on 4th March, 1999 from the field of Gira Burman where the inquest was held. The inquest report goes to show that the beheaded deadbody was lying at a distance of 5-6 cubits where the severed head of the deceased was lying. The accused Ganesh was charged under section 364 of the Indian Penal Code. He claimed to be tried. He was tried, convicted and sentenced. He came up in appeal before this Court. (3.) FROM the evidence of the P. W. 1, Wajir Mondal, a younger brother of the deceased Ombar it appears that on 17th Phalgoon, which was a day of holi festival, the accused called at the house of the victim and took him away on the pretext of an urgent piece of business. When the victim did not come back searches were conducted. The P. W. 1 went to the house of the accused Ganesh which was found under lock and key. On a second attempt by the P. W. 1 to find out Ganesh, the former met with the same result. The P. W. 1 came across a rumour that a deadbody was lying in field at Tegharia. The P. W. 1 went in search of the deadbody which was soon thereafter discovered. (4.) THE P. W. 2, Osman, another brother of the victim corroborated the evidence of P.W. 1. He added that all the brothers including the victim used to reside in the same house at village Hatra. The P. W. 1 went in search of the deadbody which was soon thereafter discovered. (4.) THE P. W. 2, Osman, another brother of the victim corroborated the evidence of P.W. 1. He added that all the brothers including the victim used to reside in the same house at village Hatra. (5.) THE P. W. 3, the widow of the victim, has corroborated the evidence of P. Ws. 1 and 2. Her evidence was, however, contradicted by the investigating Officer, who deposed, that she had told him during her examination under section 161 of the Cr PC that she at the material point of time was at her fathers house and that she had been to the house of Ganesh where she met her husband and also had talks with both the victim and the accused Ganesh. (6.) P. W. 4, Mujibar Dafadar, an independent witness deposed as follows:- "i saw one Ombar and Ganesh Ghosh to pass and cross one public passage at about 9.00 A. M. of 17th Falgoon last. Since then I did not see Ombar as alive. I saw Ombar as dead on the following Thursday. At about 9.30 A. M. I came to learn from one woman of Tegharia that ombar was lying as dead. His body was beheaded. Daroga came to the p. O. on that Thursday at about 2.00 P. M. Witness identifies his signature on the inquest report marked as (Exbt. 2/1). Accused ganesh is present on the dock (idfd.)." There is no significant cross-examination of this witness, the P. W. 4. (7.) BASED on the evidence discussed above, we are of the view that the fact that the victim Ombar was last seen together in the company of the accused Ganesh has been well established. (8.) THE P. W. 7, Dr. Ajit Kumar Biswas, who conjointly conducted the post mortem on 5th March, 1999 along with Dr. Baidy deposed to have found extensive injuries particulars whereof together with their opinion are as follows: "on examination we found the following injuries over the said bodies:-1. Head was completely separated from the neck at the level of cervical vertibrad No. 3 and 4 which was also cut sharply and completely. 2. Head was disfigured due to deposition of soft tissues, eye balls, tongue etc. 3. Mandible was cut sharply in the mid line sat the position of chin. 4. Head was completely separated from the neck at the level of cervical vertibrad No. 3 and 4 which was also cut sharply and completely. 2. Head was disfigured due to deposition of soft tissues, eye balls, tongue etc. 3. Mandible was cut sharply in the mid line sat the position of chin. 4. A sharp cut injury was also found at upper jaw transversely and obliquely extended upto the nose on right side. 5. Scalp hair at the occipital region was cut sharply and transversely. 6. Brain matter was partly expelled out through the foramen magrum. 7. Superficial muscles and skin over the anterior part of whole of the chest was missing - possibly due to eating by any wild animals like jackals. 8. Abdominal viscera also with anterior abdominal wall was missing possibly due to eating by any wild animal like jackals. Heart and lungs also missing. 9. Penis and scrotum shows intact but decomposed. Foreskin of penis found circumscised. 10. Both thighs and both legs are intact but decomposed with formation of multiple postmortem blister. Both arms and formation of multiple postmortem blister. Both arms and forearms are also intact and decomposed. In our opinion death was due to shock and haemorrhage as a result of sharp cut injuries on neck and face which were ante-mortem and homicidal in nature. This report was written by Dr. Haridas Baidya and it bears the signature of myself as well as Dr. Baidya. This report be marked as ext. 3. The said injuries were sufficient to cause death as because the said deadbody was beheaded. " There is hardly any cross-examination of this witness. (9.) THE P. W. 11, the Investigating Officer, deposed that inspite of extensive searches he could not arrest the accused Ganesh. The accused continued to abscond for a very long time and was ultimately arrested on 20th August, 1999. The evidence of the P. W. 11, in this regard, is as follows :-"on 12. 3. 99 I had searched for Ganesh Ghosh, but I could not find him at his house. That on 21. 4. 99 again searched for Ganesh Ghosh, but I also could not find him at his house. I collected the Post Mortem report from the hospital on 28. 5. 99. On that date I had searched for the said accused, but I could not find him out. That on 19. 7. That on 21. 4. 99 again searched for Ganesh Ghosh, but I also could not find him at his house. I collected the Post Mortem report from the hospital on 28. 5. 99. On that date I had searched for the said accused, but I could not find him out. That on 19. 7. 99 and 16. 7. 99 I again searched for the said Ganesh Ghosh but I could not find him out. That on 20. 8. 99, I had arrested the accused Ganesh ghosh from Village Mota. " (10.) THE accused during his examination under section 313 except for repeating the word innocent did not utter a word. We have dependable evidence before us to show that the victim was last seen together in the company of the accused. Therefore, the fact that the accused owed a duty to explain as to what happened to the victim so long as he was in his company cannot be denied but the fact remains that no such explanation was given by the accused during his examination under section 313. The learned Trial Judge has held as follows: "i have reasons to believe and hold beyond all shadow of doubts that the accused Ganesh Ghosh had committed the said offence amounting to abducting or kidnapping said deceased Ombar alias omar in order to murder him with a pre-arranged plan or before thought idea by his intuition by intentionally causing the murder of said Ombar at the field at Tegharia. Thus, the said accused is found guilty of the charge under section 364 of IPC and he should be convicted there under in pursuance of section 235 (2) of Cr PC in accordance of law on the following day. " (11.) MR. Das, the learned Advocate, appearing in support of the appeal contended that there is no eye-witness nor is there any ocular evidence to show that the victim was murdered by the appellant. It may be pointed out that we have evidence of eye-witnesses to show that the victim was taken away by the appellant on the day of holi festival which was 17th Phalgoon. The victim, thereafter, did not come back. His beheaded deadbody was recovered from a field in the vicinity of village Mota where the accused resided. Upon searches being made neither the victim nor the appellant could be traced. The victim, thereafter, did not come back. His beheaded deadbody was recovered from a field in the vicinity of village Mota where the accused resided. Upon searches being made neither the victim nor the appellant could be traced. As a matter of fact, the house of the appellant was found under the lock and key before and after the deadbody of the victim was recovered. The accused continued to abscond for about five months. No explanation has come forth from the accused as regards any of the circumstances staring against him. From the circumstantial evidence laid by the prosecution the inevitable conclusion, which one can draw, is that none except the accused is the killer. (12.) THERE is, as such, no scope for any interference. The appeal is dismissed. (13.) WE are told that the appellant has already served out the sentence and has also paid the fine in respect whereof we express no opinion. Let a copy of the judgement and the lower Court records be sent down to the learned Trial Court forthwith for information and necessary action. Urgent xerox certified copy of this judgement, if applied for, be delivered to the learned Advocates, for the parties, on compliance with all requisite formalities. Appeal dismissed.