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2009 DIGILAW 168 (CAL)

Shri Lelan Topno v. State

2009-03-02

RUDRENDRA NATH BANERJEE, SUBHRO KAMAL MUKHERJEE

body2009
Judgment : BANERJEE, J. (1) This appeal has been preferred against the judgment dated 30.6.2008 convicting and sentencing the accused Lelan Topno in the Sessions Case No. 29 of 2003 of the Court of learned Sessions Judge, Andaman and Nicobar Islands at Port Blair. (2) The prosecution case briefly stated is as follows : -Smti Phool Kumari, wife of Shri Phoulgens Bara, was living with the accused Mr, Lelan Topno at Purana Thana, Rangat along with her daughter as a tenant under Mrs. V. Basanti. On 2.5.2003, at about 7.00 pm while the said V. Basanti alongwith Phool Kumari were returning home at Purana Thana, after purchasing vegetables from the market, the accused came from the side of paddy field and suddenly took out a small ballam from the back side of his waist and pierced the same to the chest of Phool Kumari. He again with the same sphere gave several other blows in her stomach and other parts of the body. The said V. Basanti then fled away from the spot after the second blow and took shelter in the pan shop of a Tamilwala, who made a telephone call to the Rangat P.S. Police came to the spot along with V. Basanti and found Phool Kumar lying dead. Police recorded the statement of Smti V. Basanti on the basis of which an FIR No. 163 of 2003 dated 2.5.2003 was chalked down at the Rangat P.S. for an offence under Section 302, l.P.C. against the accused Shri Lelan Topno and investigation of the case was started. (3) During investigation, police arrested the accused and recorded his statement under Section 27 of the Evidence Act leading to discovery of the offending weapon and his own wearing apparel which were hung in a tree at Parnasala jungle. During such investigation, the I.O. also got the dead body of the deceased examined by the postmortem doctor at Rangat hospital. Photographs of the dead body and also of the recovery of offending weapon and wearing apparel of the accused were taken. The police also took the controlled earth and the blood stained earth and also sent the same and the wearing apparels and offending weapon to CFSL, Kolkata. Police also examined the witnesses and thereafter submitted charge-sheet for offence under Section 302, l.P.C. against the accused. The police also took the controlled earth and the blood stained earth and also sent the same and the wearing apparels and offending weapon to CFSL, Kolkata. Police also examined the witnesses and thereafter submitted charge-sheet for offence under Section 302, l.P.C. against the accused. Thereafter report of the CFSL was obtained showing that the blood at the weapon and also that blood stained in the wearing apparel of the victim and offending weapon and wearing apparel of the accused all were human blood with group B when it was found that the said offending weapon might have caused such cut marks as present in the blouse and brassiere of the victim. (4) Learned Sessions Judge framed charge for offence under Section 302, I.P.C. against the accused and took cognizance of such offence and examined altogether 11 witnesses including the eye witnesses, V. Basanti (PW-5) and the I.O.(PW-11) of the case. (5) The accused while examined under Section 313 of Cr.P.C. pleaded innocence and claimed the evidence of the prosecution were false. (6) Learned Sessions Judge after hearing the argument of both the sides and upon materials on record found that the prosecution has been successful to prove the charge against the accused beyond all reasonable doubt and suspicion and convicted the accused under Section 302, I.P.C., and ultimately sentenced the accused to suffer imprisonment of life and also to pay fine of Rs. 10,000/-in default to suffer further rigorous imprisonment for two years. (7) Being aggrieved by the decision of the learned Sessions Judge convicting and sentencing him under Section 302, I.P.C., the accused preferred this instant appeal challenging such judgment of conviction. (8) Mr. Krishna Rao, learned Advocate appearing on behalf of the appellant in challenging such judgment of conviction and sentence has strenuously contended that there is practically no evidence of any mens rea of the accused in committing such alleged murder. (9) It has been further contended by Mr. Krishna Rao that although the FIR was lodged on 2.5.2003 but the same reached the concerned Court of Judicial Magistrate, 1 st Class at Mayabunder on 8.5.2003 which is an abnormal delay which gave rise to serious doubt about the prosecution story of the murder. (10) It has been further contended by Mr. Krishna Rao that although the FIR was lodged on 2.5.2003 but the same reached the concerned Court of Judicial Magistrate, 1 st Class at Mayabunder on 8.5.2003 which is an abnormal delay which gave rise to serious doubt about the prosecution story of the murder. (10) It has been further contended by Mr. Krishna Rao that although it is claimed by the prosecution that the blood stained wearing apparel of the accused and the offending weapon were recovered upon the statement recorded by police under Section 27 of Evidence Act, the thali in which those offending articles were kept had not been marked exhibit, which gives rise to serious doubt as to recovery thereof. (11) According to Mr. Krishna Rao, all these aforesaid omissions and contradictions gave rise to serious doubt to involvement of the accused in commission of offence and he should be given the benefit of doubt and should have been acquitted by the learned Sessions Judge. (12) From the plain reading of the lower Court record itself, it appears that the prosecution has examined altogether 11 witnesses including the defacto complainant and the I.O. The complaint was made by the defacto complainant Smti. V. Basanti who made the fardbayan before the police immediately after the occurrence. She has stated on oath that on 2.5.2003 at about 7.00 pm while she was returning home at Purana Thana alongwith Phool Kumari, the deceased, after purchasing vegetables from the market, the Forest Department watchman Shri Guruswamy was also passing through the road towards Rangat Bazar Phool Kumari asked for sukha (tobacco) from her. At that time Shri Lelan Topno came from the side of the paddy field and suddenly he took out his ballam from his waist and pierced into the chest of Phool Kumari. Second blow was given by the accused at the stomach of the said Phool Kumari. After such second blow, she ran away out of fear to a pan shop of one tamil person and from there she telephoned to Rangat P.S disclosing the occurrence and she also requested police to come at the place of occurrence. Thereafter, when she returned to the spot she found that Phool Kumari lying dead and then after five minutes police arrived there and she gave her fardbayan. She identified her signature marked exhibit 3/1. Thereafter, when she returned to the spot she found that Phool Kumari lying dead and then after five minutes police arrived there and she gave her fardbayan. She identified her signature marked exhibit 3/1. She has also disclosed that the accused Lelan Topno was wearing full sleeve shirt and ash coloured pant at the time of attacking Phool Kumari. She identified the offending weapon namely Ballam marked as exhibit -1. During the cross examination she disclosed that she saw Guruswamy from a close distance and she had a talk with him. She has also stated that the pan shop where she rushed after seeing the second blow to Phool Kumari was at a distance of about 100 meters. She has also disclosed that two customers were there in the pan shop. She did not cry out after the first assault but after the second blow she cried out and ran away but none from the pan shop rushed to the place of occurrence. She also did not tell the shopkeeper or the customers of the shop about the occurrence. (13) Such a statement of the defacto complainant before the Court substantially support the case of the prosecution made out in the fardbayan given by her before the police. The entire prosecution story of murder of Phool Kumari rests mainly on the version of this eye witness namely V. Basanti (PW-5). From the deposition of this eye witness, it appears that Guruswamy, a Watchman of Forest Department, could also be present at the time of the occurrence. But, such Guruswamy has not been examined by the I.O. It further appears that at the time of trial, the prosecution made an attempt to bring the said valuable witness Guruswamy before the Court and summons were issued but after the summon was served upon him, he did not attend the Court and subsequently he was found not available in the said office. Somehow his present address in the State of Tamilnadu could be procured but there is no evidence that any sort of warrant was issued against him for procuring his attendance. Thus there might be a failure on the part of the I.O. omitting to examine Guruswamy but it cannot be said that prosecution did not make any attempt to bring that probable eye witness before the Court. Thus there might be a failure on the part of the I.O. omitting to examine Guruswamy but it cannot be said that prosecution did not make any attempt to bring that probable eye witness before the Court. The omission of Court to issue warrant of arrest against the said witness for procuring his attendance cannot be said to be fatal and such omission does not impress us to disbelieve the other evidences including the evidence of eye witness of the occurrence of murder. (14) It has also been argued by Mr. Krishna Rao that neither Kiran Biswas nor any one else residing in the house closed to the place of occurrence have been examined. But it is clear from the evidence of PW-5 that the persons residing in both the houses near the place of occurrence were not at the home at the relevant point of time. They had gone to attend a marriage ceremony elsewhere. There is also no evidence on record that anybody else with the said Guruswamy was present to speak of the occurrence. It also appears from the cross examination of the said PW-5 that while two blows were already given by the accused to the deceased Phool Kumari, the witness, out of fear, rushed to the nearby pan shop of a Tamil person but she did not disclose the occurrence neither to the customers nor to the owner of the pan shop. It is also evident from her cross examination that none from the shop rushed to the place of occurrence after she took shelter at the pan shop. Thus such an argument by Mr. Rao that nobody from the said pan shop was examined by the I.O. or that presence of the customers and owner present at the time and place of occurrence was normal and expected, does not stand. The people, in order to avoid police enquiries, sometimes refrain from proceeding to the actual place of occurrence. (15) The PW-1 Jatru Naik is the father of Phool Kumari, who says that the said Phool Kumari was given marriage with one Shri Phulgens Bara and thereafter the accused about 5-6 years prior to the occurrence took away Phool Kumari and she began to live with the accused. The said Phool Kumari also reported to her father that Shri Lelan Topno the accused used to quarrel with her sometimes. The said Phool Kumari also reported to her father that Shri Lelan Topno the accused used to quarrel with her sometimes. The witness had no knowledge about the occurrence. (16) The PW-2, S. N. Rathore recorded the FIR upon the fardbayan of PW-5. There is nothing in cross examination to disbelieve him. (17) The PW-3 is Dr. M. K. Mahato, Chief Medical Officer of Garacharma PHC who as the Chief Medical Officer of Rangat Hospital held the postmortem examination of the dead body of the victim Phool Kumari. He has described the injuries. He noticed the following injuries over the dead body during such postmortem examination. (a) One penetrating injury starting from upper and lateral part of left breast, penetrating the breast tissue, piercing the left 4th and 5th rib cartilage and injuring the right atrium of the heart. (b) He also found another injury on the lower and medial part of left breast. It traversed obliquely upward 3 cm from the point of entry through the breast tissue and touched the first wound. (c) The doctor also noticed a triangular shaped wound on the dead body on the right hypochendrium of abdomen length of the vertical arm being 3 cm, horizontal arm being 5 cm, 3rd arm being 6 cm and curving margin clear cut depth. Such injury cut the superficial abdominal muscles and pierced the liver. (d) The doctor also showed another injury on the right side of the back of person at the level of 10th and 11th rib horizontal in direction, 4 cm length and 1/2 cm wide, margin clear cut depth, cutting the back muscles and penetrating right pleural cavity and injuring the right lung. (e) He also noticed one L shaped injury on the anterior surface of right lobe of liver. (18) The doctor remarked that the death of accused was due to excessive bleeding due to above mentioned injuries. He prepared postmortem report, exhibit-2. He has further opined that a sharp cutting weapon with penetrating pointing might have been used for causing such injuries. He also identified the Ballam by which such type of injuries might have been caused. - He has also made it clear during the cross examination that he found 10 injuries in the dead body and while stabbing for 3 or 4 times the aforesaid injuries might have been caused. He also identified the Ballam by which such type of injuries might have been caused. - He has also made it clear during the cross examination that he found 10 injuries in the dead body and while stabbing for 3 or 4 times the aforesaid injuries might have been caused. The doctor prepared a rough note at the time of postmortem examination but the same was not produced before the I.O. and we think that such rough note was not very much essential when the postmortem report itself has been duly marked as exhibit. (19) The PW-6, Satish Kumar Singh is a witnesses to the inquest report where he put his signature exhibit 4/1. He also found the dead body of the woman with several bleeding injuries. He has also witnessed to the seizure of blood stained earth and also the controlled earth at the spot. He also speaks of labelling such controlled earth and such seized articles. He was also witness to the seizure of sari, petticoat, brassiere and one slipper from the dead body of the victim. He identified all such articles. (20) This witness was called at the Police station on 3.6.2003 and in his presence police recorded the statement of the accused leading to the discovery of the offending weapon and his wearing apparel which he concealed in the Parnasala jungle. Such statement leading to discovery has been marked as exhibit under the provision of Section 27 of Evidence Act. He has also witnessed the recovery of the bag marked mat exhibit-X containing the shirt of the accused and the offending ballam which were seized in presence of the witness. (21) It has been argued by Mr. Rao as to how this gentleman was chosen by police for being a witness to the statement recorded under Section 27 of Evidence Act leading to discovery of the offending weapon when there were other residents closed to the P.S. (22) The learned Public Prosecutor for the State contends that he being an important person and being a Pradhan of the Gram Panchayat during the year 2002 -2005, Police had choaen such person to be the witness. Such an explanation cannot be ruled out as he was very much important personality of the locality. Police also returned the dead body of the victim to him under a supurdiginama. Such an explanation cannot be ruled out as he was very much important personality of the locality. Police also returned the dead body of the victim to him under a supurdiginama. There is no evidence that any other more important personality was living close to the PS. Presence of such witness at the time of recording of statement of the accused and at the time of recovery of the offending weapon cannot be disbelieved. (23) The PW-7, M. V. Shervin is a professional photographer of the area near Rangat P.S., who took up the photographs of the offending weapon and wearing apparels of the accused, which was hanging in a thali from a tree and there is no reason to disbelieve such evidence of the PW-7. (24) The PW-8 is another witness to the inquest report and also a witness to the seizure of blood stained and controlled earth from the spot. He also identifies the chappal of the victim marked as Mat exhibit -II. He also witnessed the seizure of sari, Lahanga, blouse and brassiere from the dead body of the victim. He also corroborates the prosecution story of handing over the dead body over the victim to the pradhan. He also identifies the said thali Mat exhibit-X. He was cross examined. He has stated that there are several other houses between his house and police station. His house being not closest to the police station, it cannot be said that he was a tutored witness. (25) The PW-9 is Champalies Bara, the daughter of the victim in the wedlock with Phulgens Bara. She did not witness the occurrence. She was also not allowed to see the dead body of her mother as police and another person resisted her to go there. She has stated on oath that while her mother living with the accused, there relationship was bitter and the accused used to beat her mother. Such evidence gives an indication about the bitter relationship between the victim and the accused, which might be a cause or motive of the accused to commit such murder. (26) The PW-10, M.A. Naushad is an Inspector of Police who held a part of the investigation during the absence of the investigator, C.I. Shaukat Hussain. Such evidence gives an indication about the bitter relationship between the victim and the accused, which might be a cause or motive of the accused to commit such murder. (26) The PW-10, M.A. Naushad is an Inspector of Police who held a part of the investigation during the absence of the investigator, C.I. Shaukat Hussain. According to him as the accused was absconding for long time and after conducting a frantic raid he was arrested on 3.6.2003 and on such date he expressed his desire to make a disclosure statement with regard to incriminating weapon and wearing apparels. Accordingly, such statement was recorded by the witness under Section 27 of Evidence Act andsuch statement was marked exhibit 16/3. After such statement, the accused showed the place . where he kept the offending weapon and other articles in a thali. He also speaks of the recovery of such articles. It might be the place of recovery and the P.S were at a distance from the house of the witness but the same does not go to invite disbelief of their evidence relating to the recovery or making of such statement. It is not always necessary for the police to make a witness of the house which is closest to the P.S. The place of recovery was also within a jungle and it was not necessary that the witnesses to such recovery would be from the jungle itself, particularly when there is no evidence that there were houses near the place of recovery. The witness has also stated that the shirt of the accused which was recovered was not ash colour but of bhura colour, as is usually termed by the local people. (27) The PW-11 is another I.O. who took up the initial investigation of the accused and thereafter had to go on duty to Chennai and after resumption of his duty at Rangat, he took up further investigation of the case. He has spoken of the FIR and the prosecution story made in the fardbayan of the victim V. Basanti. He speaks of his preparation of sketch map exhibit-l and preparation of his inquest report of the dead body in presence of three witnesses, Satish Kumar Singh, Malaiswamy and Nirippen Biswas. He also prepared the site plan exhibit-21. He has spoken of the FIR and the prosecution story made in the fardbayan of the victim V. Basanti. He speaks of his preparation of sketch map exhibit-l and preparation of his inquest report of the dead body in presence of three witnesses, Satish Kumar Singh, Malaiswamy and Nirippen Biswas. He also prepared the site plan exhibit-21. He speaks of the seizure of blood stained earth and controlled earth from the spot and also his seizure of blood stained, wearing apparel of the victim and he also identified blood stained stone chips and offending weapon. He also says that during his temporary absence from Rangat P.S the accused was arrested. He also received the CFSL report and submitted a supplementary charge-sheet against the accused Lelan Topno. During his cross examination, it has been disclosed by the witness that only three houses were situated at the close vicinity of the small beetle shop at a distance of 100 yards from the police station. He also stated that only 1 or 2 persons assembled at the spot when he reached the spot after occurrence. But no cross examination have been made to the witness as to how Guruswamy or Kiran Biswas were not examined and cited as witnesses in the charge- sheet. (28) Mr. Rao, learned Advocate appearing for the appellant has contended that when the FIR itself reached the Court on 8.5.2003, although the same was drawn on 2.5.2003. The same violates the provisions of Section 157 of the Code of Criminal Procedure and accordingly, the story of the prosecution made out for the FIR should be disbelieved. (29) It is true that under the provisions of Section 157 of the Code of Criminal Procedure, the original FIR is to be sent immediately to the Court the Judicial Magistrate, 1st Class immediately after the same was drawn up. The delay in sending the same to the Court may invite some exaggeration of the occurrence or deviation from the first information. But from the Court record, it appears that the FIR was sent to the Court of Judicial Magistrate, Mayabunder on the following day after it was drawn up but it might have reached the Court after a few days. But from the Court record, it appears that the FIR was sent to the Court of Judicial Magistrate, Mayabunder on the following day after it was drawn up but it might have reached the Court after a few days. Such delay in receiving the FIR might not be encouraged but such delay by itself doe.s not invite any doubt as to the prosecution version of the occurrence specially on the background that an independent eye witness has been examined and the accused who was absconding for about a month gave a statement before the police leading to discovery of the offending weapon etc. In this connection the law has been is well settled as is found from the decision reported in AIR 2006 SC 887 , (Rabindra Mahto and Anr. v. State of Jharkhand) as referred to by Mr. Mandal, learned Public Prosecutor for the State. In para 18 of the said decision it has been laid down as follows. "There cannot be any manner of doubt that Section 157 of Criminal Procedure Code requires sending of an FIR to the Magistrate forthwith which reaches promptly and without undue delay. The reason is obvious to avoid any possibility of improvement in the prosecution story and also to enable the Magistrate to have a watch on the progress of the investigation. At the same time, this lacuna on the part of the prosecution would not be the sole basis for throwing out the entire prosecution case being fabricated if the prosecution had produced the reliable evidence to prove the guilt of the accused persons. The provisions of Section 157, Cr. P. C. are for the purpose of having a fair trial without there being any chance of fabrication or introduction of the fact at subsequent stage of investigation." (30) After going through the evidence on record, we are of the view that the prosecution has led reliable evidence as to the making of FIR, the veracity of which was not dislodged by the delay in receiving the FIR by the Court. (31) Mr. Rao at one point of his argument has stated that the thali recovered by the I.O. on showing by the accused himself was not identified but it appears that PW-8, a witness of the seizure has already Identified the thali as Mat exhibit-X. Mr. (31) Mr. Rao at one point of his argument has stated that the thali recovered by the I.O. on showing by the accused himself was not identified but it appears that PW-8, a witness of the seizure has already Identified the thali as Mat exhibit-X. Mr. Rao has also pointed out that the statement recorded under Section 27 of the Evidence Act leading to discovery of the offending weapon and the blood stained clothes of the accused being made in the police custody should not be relied upon and the accused cannot be held guilty of such offence upon such statement. If we carefully look into such provisions of law under the Evidence Act, we find that the offending weapon or the stolen articles can be kept concealed by the accused and his statement when supported by the real discovery of the articles cannot be said to be incredible in the eye of law. In this connection, the decision reported in (2001)3 SCC 190 , [(Sanjay Alias Kakav. State (NCT of Delhi)] as cited by Mr. Mandal, may be relied upon. The paragraphs 17.and 18 of the said decision may be tooked into in support of the proposition. The said paragraphs run as follows : - "17. Section 25 mandates that no confession made to a police officer shall be proved as against a person accused on an offence. Similarly Section 26 provides that confession by the accused person while in custody of police cannot be proved against him. However, to the aforesaid rule of Sections 25 and 26 of the Evidence Act, there is an exception carved out by Section 27 providing that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Section 27 is a proviso to Sections 25 and 26. Such statements are generally termed as disclosure statements leading to the discovery of facts which are presumably in the exclusive knowledge of the maker. Section 27 is a proviso to Sections 25 and 26. Such statements are generally termed as disclosure statements leading to the discovery of facts which are presumably in the exclusive knowledge of the maker. Section 27 appears to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly It can be safely allowed to be given in evidence. 18. As the section is alleged to be frequently misused by the police, the Courts are required to be vigilant about its application. The Court must ensure the credibility of evidence by police because this provision is vulnerable to abuse. It does not, however, mean that any statement made in terms of the aforesaid section should be seen with suspicion and it cannot be discarded only on the ground that it was made to a police officer during investigation. The Court has to be cautious that no . effort is made by the prosecution to make out a statement of accused with a simple case of recovery as a case of discovery of fact in order to attract the provisions of Section 27." (32) In the present case, the statement of the accused leading to discovery was taken under the pblice custody but obviously in presence of two independent witnesses. The cross examination of such witnesses and I.O. who recorded such statement could not bring forth any evidence creating any doubt as to genuineness of the statement. Such statement appears to be also true when it is found that the recovery of offending articles have been made following such disclosure of the fact of concealment. The presumption is obviously in favour of exclusive knowledge of the accused about such concealment, and such presumption could not be discarded. (33) Mr. Rao has pointed out that mens rea or the motive to commit such offence is a matter which is to be appreciated from the circumstantial evidences and conduct of the parties. It is very difficult to the prosecution to established mens rea of the accused from his mind by direct proof. We have already gathered from the evidence of the daughter of the victim that the accused had bitter relationship with the victim; he even used to beat her. It is very difficult to the prosecution to established mens rea of the accused from his mind by direct proof. We have already gathered from the evidence of the daughter of the victim that the accused had bitter relationship with the victim; he even used to beat her. Now even if the mens rea is not proved by the prosecution, the same does not falsify the prosecution version of the occurrence, particularly when such occurrence is evident from the statement of independent eye witness supported by the exclusive knowledge of the accused himself as to the concealment of offending weapon and other articles which were recovered on his own showing. (34) Mr. Mandal in answer to such contention of Mr. Rao has cited the decision reported in (1992)3 SCC 43 (Mulakh Raj and Ors. v. Satish Kumar and Ors.). In the said decision, the question was of the mens rea of the husband to kill his wife. In dealing with such questions, the Supreme Court laid down in paragraph 17 of the decision as follows : - "The question then is, who is the author of the murder ? The contention of Sri Lalit is that the respondent had no motive and the High Court found as a fact that the evidence is not sufficient to establish motive. The case is based on circumstantial evidence and motive being absent, the prosecution failed to establish this important link in the chain of circumstances to connect the accused. We find no force in the contention. Undoubtedly in cases of circumstantial evidences motive bears important significance. Motive always locks up in the mind of the accused and some time it is difficult to unlock. People do not act wholly without motive. The failure to discover the motive of an offence does nct signify its non-existence. The failure to prove motive is not fatal as a matter of law. Proof of motive is never an indispensable for conviction. When facts are clear it is immaterial that no motive has been proved. Therefore, absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case." (35) The case in our hand is not only of circumstantial evidence, but is also supported by direct evidence. When facts are clear it is immaterial that no motive has been proved. Therefore, absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case." (35) The case in our hand is not only of circumstantial evidence, but is also supported by direct evidence. (36) Thus, even in case of absence of total proof of the mens rea, the very evidence of the eye witness speaking of committing murder cannot.be brushed aside specially when there is no unexplained lacuna in the prosecution case about its version of the occurrence lacuna in the prosecution care about its version of the occurrence. (37) The C.F.S.L report in respect of blood stains found in the road chips collected, from the saree, petticoat, blouse and brassiere of the victim and the wearing apparels of the accused and the offending ballam all contains the stains of human blood of group-B. It has been further stated in such CFSL report that the said offending weapon could make such cut marks found in the wearing apparels of the victim. There is also no evidence on record that the accused himself suffered any injury during the occurrence. Such report of the CFSL has not been challenged by the defence. (38) The accused was also absconding for about a month from the date of occurrence. He was arrested on June 2, 2003 while the date of occurrence was May 2, 2003. Such conduct of accused is also relevant under Section 8 of the Evidence Act. (39) The defence, by way of cross examination, could not shake the statements of the witnesses and the documentary evidence like statement of the accused leading to discovery and also the report of the experts of CFSL. (40) Accordingly, we find no reason to interfere with the judgment of conviction and sentence passed by the learned trial Court. The offence is heinous one. There is also no scope of interfering with the sentence of life imprisonment and further sentence of fine passed by the learned Court below. (41) The judgment of conviction and sentence passed by the learned Court below is accordingly affirmed and the instant criminal appeal is dismissed. (42) There shall be no order as to costs. . Mukherjee, J. - I agree.