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Gauhati High Court · body

2010 DIGILAW 411 (GAU)

Prangopal Roy v. State of Tripura

2010-06-07

C.R.SARMA, I.A.ANSARI

body2010
JUDGMENT C.R. Sarma, J. 1. By judgment and order, dated 4.8.04, passed in Sessions Case No. 32 (WT/A)/2001, learned Sessions Judge, West Tripura, Agartala convicted the Appellants under Section 302 of the Indian Penal Code (for short, the 'IPC') and sentenced them, for their conviction under Section 302 IPC, to suffer rigorous imprisonment for life and pay fine of Rs. 10,000/- each and, in default of payment of fine, suffer simple imprisonment for a further period of two months. It was directed that, if the fine was realised, the same should be paid to the wife of the deceased by way of compensation. 2. In a nutshell, the Appellants faced trial in the following backdrop: Sri Mati Banik (hereinafter called the 'deceased'), who in the evening of 5th October, 1998, went to attend a party (picnic) in the house of Sri Rabi Das (P.W. 4), did not return home and his dead body, with bleeding injuries, was found, on the next morning at 10 a.m., in the paddy field, belonging to one Sri Krishna Das. After recovery of the dead body, the brother of the deceased, as the informant (P.W. 1), lodged a written Ejahar with the OC. Jirania Police Station, which was registered as Jirania PS Case No. 138 of 1998 under Section 302 IPC. Upon registration of the said case, police launched investigation into the matter, visited the place of occurrence, prepared the inquest report in respect of the dead body of the deceased, arranged autopsy of the same and recorded the statement of the witnesses. During the investigation, it was unfolded that on the previous day i.e. on 5.10.98, a quarrel had taken place between Sri Ajit Roy (one of the accused), Sri Prangopal Choudhury (Appellant), the deceased and his nephew, Sri Sibu Banik (P.W. 8) regarding payment of money to the P.W. 8 by Sri Dula Saha (P.W. 9), a rickshaw puller, who was engaged to carry banana by Sri Mathura Roy i.e. the father of Sri Ajit Roy and Sri Prangopal Roy, who, participating in the said quarrel, threatened the deceased with dire consequences. In the night of 5th October, on the occasion of Laxmi Puja, a picnic party was arranged in the house of Sri Rabindra Das (P.W. 4) and according to Sri Rabindra Das and his wife, Smt. Sita Rani Das (P.W. 3), the deceased, Nirmal Banik, Shankar Banik, Kishore Banik, Badal Chakraborty (Appellant), Nirmal Das, Ajit Roy (accused) and Sudhir Pal participated in the said picnic and they took meat and liquor. After the end of the party, the wife of the host i.e. P.W. 4 was threatened by Ajit asking her to close the door but she, through her window, could notice that Ajit was taking the deceased towards the west. Shri Jaharlal Das (P.W. 15), who was returning home after attending Laxmi Puja in the house of Sri Uttam Banik (P.W. 20), found the Appellants and accused Sri Ajit (since absconder) taking the deceased with them, around 12/12.30 a.m., by the southern side of the land of Sri Krishna Das. On being asked by P.W. 15, the said persons, who were taking the deceased, told him that as the deceased had consumed excessive quantity of liquor, they were taking the deceased to the latter's house. But the deceased, neither returned home, nor he was handed over to the members of the family of the deceased. On the next morning, the dead body of the deceased, with injuries on it, was found lying in the paddy field of Sri Krishna Das, aforesaid. Upon receipt of a telephonic information, police rushed to the place of occurrence and found the deceased lying there. In the place of occurrence, police received a written complaint from Sri Rabi Banik (P.W. 1). Accordingly, police registered a case and launched investigation in to the matter. During investigation, the Investigating Officer (P.W. 21) prepared inquest report, got the autopsy done in respect of the dead body, prepared sketch map, recorded the statement of the witnesses and seized some blood stained earth, one chappal, one blood stained vest from the place of occurrence. 3. At the close of the investigation, police submitted chargesheet against the Appellants and Sri Ajit Roy under Section 302 read with Section 34 IPC. The accused Ajit Roy was shown as absconder. 4. 3. At the close of the investigation, police submitted chargesheet against the Appellants and Sri Ajit Roy under Section 302 read with Section 34 IPC. The accused Ajit Roy was shown as absconder. 4. The offence being exclusively triable by the Court of Sessions, the learned Sessions Judge framed charge under Section 302 IPC, which was read over and explained to the Appellants and they pleaded not guilty thereto. In support of their case, the prosecution examined as many as 21 witnesses. Accused persons (Appellants) were examined under Section 313 Code of Criminal Procedure and, in their examination aforesaid, they denied to have committed the offence, alleged to have been committed by them. The case of the defence was of total denial. No evidence was adduced by the defence. However, in his statement made under Section 313 Code of Criminal Procedure, the Appellant, Sri Badal Chakraborty, admitted that, on the night of Laxmi Puja, he had participated in the picnic, arranged in the house of Sri Rabindra Das (P.W. 4), and that the deceased, accused Ajit Roy and Ors. also attended the same. The facts that the deceased was murdered and that his dead body was found on the next morning in the paddy field were also admitted by both the Appellants. Having found the accused-Appellants guilty of the charge framed against them, the learned Sessions Judge convicted them and passed the sentence as mentioned hereinabove. 5. We have patiently heard Mr. A.K. Bhowmik, learned senior Counsel assisted by Mr. S. Ghosh, learned Counsel appearing on behalf of the Appellants, and Mr. D. Sarkar, learned Public Prosecutor along with Mr. R.C. Debnath, learned Special Public Prosecutor, appearing on behalf of the State. We have also carefully gone through the materials on record. 6. Appearing on behalf of the Appellants, Mr. Bhowmik, learned senior Counsel, submits that, in the present case, there being no eye witness and direct evidence, the prosecution failed to establish that the Appellants had murdered the deceased. It is submitted that the circumstantial evidence, revealed by the evidence on record, does not form a complete chain inspiring confidence to believe, beyond all reasonable doubt, that none other than the Appellants had murdered the deceased. It is submitted that the circumstantial evidence, revealed by the evidence on record, does not form a complete chain inspiring confidence to believe, beyond all reasonable doubt, that none other than the Appellants had murdered the deceased. It is also submitted that the examination of the prosecution witnesses, more particularly, P.W. 15 and P.W. 20, after considerable delay, by the Investigating Officer, raises doubt about the veracity of their evidence and that if the evidence of P.W. 15 is excluded or disbelieved, then, there remains no substantive evidence against the Appellants, to hold them guilty of the offence alleged against them. The learned senior Counsel further submitted that, the learned trial Judge, committed error by recording conviction without sufficient, cogent and reliable evidence on record. According to the learned senior Counsel, the learned trial Judge ought not to have convicted and sentenced the Appellants and as such, they are entitled to be acquitted. 7. Controverting the submissions, advanced on behalf of the Appellants, Mr. D. Sarkar, learned Public Prosecutor, submits that this case is based on the direct evidence of P.W. 3 and P.W. 15 and the circumstantial evidence surfaced from the evidence on record. The learned Public Prosecutor further submits that there are sufficient materials on record to substantiate, beyond all reasonable doubt, that on the previous day, a quarrel had taken place between the Appellants and the deceased and that there was enmity between the deceased and the Appellants regarding extending financial assistance and that in the party (picnic) arranged in the house of P.W. 4, the deceased and the Appellants, namely, Sri Badal Chakraborty and Ajit Roy, had participated. It is also pointed out that after the said party, the wife of P.W. 4 i.e. P.W. 3 saw the accused Ajit taking the deceased towards the western side and P.W. 15 also, around midnight, found the Appellants and accused Ajit Roy (since absconder) taking the deceased with them, who, on being asked by the said witness, replied that, as the deceased had consumed excessive liquor, they were taking him to his house. According to the learned Public Prosecutor, the deceased was last seen in the company of the Appellants around midnight and the dead body of the deceased was found on the following morning. According to the learned Public Prosecutor, the deceased was last seen in the company of the Appellants around midnight and the dead body of the deceased was found on the following morning. In view of the above, it is submitted that, applying the last seen theory and the proximity of the time factor, it can be safely inferred that none other than the Appellants had committed the murder. Mr. R.C. Debnath, learned Special Public Prosecutor, also joined the learned Public Prosecutor and submitted that, though there was delay in examination of P.W. 15 and P.W. 20, no explanation having been sought for from the Investigating Officer regarding the said delay, the defence cannot seek any benefit from such delay. The learned Counsel, appearing for the State, further contended that the entire facts and circumstances of this case coupled with the evidence of P.W. 3 and P.W. 15 safely lead to the irresistible conclusion that the Appellants were involved in committing the murder. The conviction of the Appellants, therefore, submits the learned Special Public Prosecutor, needs no interference. In support of his contention, the learned Special Public Prosecutor has placed reliance on the decisions of the Supreme Court in State of U.P. v. Satish reported in (2005) 3 SCC 114 and State of W.B. v. Mir Mohammad Omar and Ors. reported in (2000) 8 SCC 382 . 8. In the light of the rival submissions, indicated above, we feel it appropriate to turn to the evidence of the prosecution witnesses to examine the correctness of the findings of the learned trial Judge. 9. Mr. Rabi Banik, a brother of the deceased, who lodged the FIR, deposed as P.W. 1. He stated that the relation between the Appellants and the deceased was not good. According to this witness, in the morning of Laxmi Puja, in front of the house of Ajit, Prangopal and Mathura Roy, while Sri Dulal Saha (P.W. 9), a rickshaw puller, was loading banana, are altercation had taken place between P.W. 9 and Sibu Banik (P.W. 8), who was the son of P.W. 1, regarding non-payment of money by P.W. 8, which was due to Sibu Banik. In the said altercation, according to this witness, Ajit, Prangopal (both accused) and their father, Mathura, got involved and the accused persons had threatened the deceased, with dire consequences and his brother, Babul Banik (P.W. 2), who went there to take side in favour of P.W. 8. He further stated that, after his arrival at his residence from the market at about 7 p.m., he could know that his brother i.e. the deceased, had gone to attend a picnic party in the house of Rabindra Das (P.W. 4) he was informed that the accused Badal and Ajit also participated in the said picnic. He further stated that, on the same night at about 11-30 p.m., the mother of the deceased, finding Badal Chakraborty passing by their house, asked him the whereabouts of the deceased and on being so asked, accused Badal Chakraborty replied that the deceased would be sent home after the picnic. P.W. 1 further stated that the deceased did not return home that night and, on the next morning, his dead body was found in the paddy field of one Krishna Das. According to this witness, the dead body of the deceased bore marks of injuries. He exhibited the FIR, lodged by him, as Exbt. 1 and the Inquest report prepared by the I.O. as Exbt. P/2. In his cross-examination, P.W. 1 denied the suggestion that no altercation had taken place regarding payment of money by Dulal Saha and that no threat was given by the accused Ajit and Ors. However, no suggestion was put to this witness denying his statement that, on being asked by the mother of the deceased regarding whereabouts of the deceased, accused Badal Chakraborty had replied that he would be sent after the picnic. Rather, in his cross-examination, this witness has confirmed that he heard his mother asking the said accused about the deceased. Therefore, though this witness was duly cross-examined on behalf of the defence, his evidence regarding the assurance given by the accused Badal Chakraborty, to the mother of the deceased, at about 11.30 p.m., that the deceased would be sent home after the picnic, remained uncontroverted and his evidence, regarding the participation of the said accused persons and the deceased, in the picnic party, on the fateful night, could not be demolished. 10. P.W. 2 Mr. 10. P.W. 2 Mr. Babul Banik, who was the brother of P.W. 1 and the deceased, in tune with the evidence of P.W. 1, stated about the strained relationship between the deceased and the accused persons. He supported P.W. 1's evidence regarding the altercation, which took place between the deceased and the accused persons with regard to payment of money by Dulal Saha (P.W. 9) to Sibu Banik (P.W. 8). He also stated that he came to know that accused Badal Chakraborty and Ajit Roy also joined the picnic party, which was attended by the deceased. He clearly stated that, at about 11 to 11.30 p.m., on the said night, he noticed Badal Chakraborty going towards the house of Prangopal (Appellant No. 1). He clarified that Prangopal Roy was also known as Panu Saha. In his cross-examination, this witness denied the suggestion that accused Ajit Roy (since absconder), Prangopal Roy and Mathura Roy did not threaten the deceased with dire consequences. During the cross-examination of this witness, made on behalf of the defence, no question was asked regarding his statement that at about 11/11.30 p.m., he noticed Badal Chakraborty going towards the house of Prangopal and also about the participation of the deceased, accused Ajit and Badal Chakraborty in the said picnic party. 11. Sri Sibu Banik, the son of the P.W. 1, deposing as P.W. 8, stated that, on 5.10.98 at about 7 a.m., finding Dulal Saha (P.W. 9), a rickshaw puller, loading banana from the house of Mathura Roy, he demanded Dulal Saha to clear his dues for which an altercation had taken place between him and Dulal Saha. According to this witness, hearing about this altercation, Babul Banik (P.W. 2) and the deceased also arrived there for his rescue and at that point of time, accused Prangopal and Ajit had threatened the deceased and Babul Banik with dire consequences. This witness further stated that his uncle i.e. the deceased did not return home that night and the next morning. According to this witness, on being asked, P.W. 3, i.e., wife of Rabindra Das (P.W. 4) told him that accused Ajit and Badal Chakraborty had taken the deceased to their house at about 12 O'clock at night. In his cross-examination, P.W. 8 denied the suggestion that the accused Prangopal and Ajit did not participate in the said altercation and that they did not threaten his uncle. In his cross-examination, P.W. 8 denied the suggestion that the accused Prangopal and Ajit did not participate in the said altercation and that they did not threaten his uncle. He also denied the suggestion that the wife of Rabindra Das i.e. P.W. 3 did not tell him about taking of the deceased by the accused persons. In his cross-examination, P.W. 8 stated that at the time of the said altercation, some of the villagers including Swapan Paul and Ors. assembled there. 12. Mr. Swapan Paul, who deposed as P.W. 7, supporting the evidence of P.W. 8, stated about the participation of the accused persons, namely, Ajit Roy and Prangopal Roy in the altercation aforesaid. He further stated that in the said quarrel, the deceased also appeared and took the side of his nephew i.e. P.W. 8. 13. Sri Dulal Saha, a rickshaw puller, deposing as P.W. 9, corroborated the evidence of P.W. 8 regarding the quarrel, which took place as regards payment of money by him to P.W. 8. He further stated that the altercation had also taken place between Mathura Roy and P.W. 8 and that the sons of Mathura Roy, namely, Prangopal and Ajit also appeared there and then they had threatened P.W. 8. According to this witness, the deceased and his brother, Babul Banik (P.W. 2), also participated in the said quarrel. He supported the contention of P.W. 8 regarding the threat given by accused Ajit and Prangopal. In his cross-examination, this witness denied the suggestion that the accused persons did not threaten the deceased. 14. In view of the above, P.W. 7 and P.W. 9, who were the independent witnesses, supported the evidence of P.W. 8 and P.W. 2 regarding the altercation/quarrel, followed by the threat given by the accused persons. Though the said witnesses were duly cross-examined, on behalf of the defence, no contradiction could be elicited to render their evidence unbelievable. In view of the said corroboration noticed in the evidence of P.Ws. 2, 7, 8 and 9, it stood established that, in the morning of Laxmi Puja, an altercation had taken place involving P.W. 8, P.W. 9, the accused persons, namely, Prangopal and Ajit, and their father, Mathura Roy, the deceased and P.W. 8 and that, consequent upon the said quarrel, the accused had threatened the deceased with dire consequences. 2, 7, 8 and 9, it stood established that, in the morning of Laxmi Puja, an altercation had taken place involving P.W. 8, P.W. 9, the accused persons, namely, Prangopal and Ajit, and their father, Mathura Roy, the deceased and P.W. 8 and that, consequent upon the said quarrel, the accused had threatened the deceased with dire consequences. That apart, the evidence of P.W. 1 and P.W. 2 that the relation between the deceased and the accused persons became strained, remained uncontroverted. 15. P.W. 3, wife of Rabindra Das (P.W. 4), stated that, on the night of Laxmi Puja, a picnic party was arranged in their house and that the deceased and the Appellants, Badal Chakraborty alias Badal Das, accused Ajit Roy and Ors. participated in the said picnic, in which they took meat and liquor. This witness stated that the invitees, namely, Badal and Shankar took Nirmal Das to his house after the party and that Shankar and Sudhir stayed in their house (P.W. 3) along with her husband. According to this witness, after the departure of Badal, the deceased and accused Ajit Roy remained there. She further stated, that Ajit (since absconder), who did not consume liquor, threatened her to close the door and that, she, through the window, could see Ajit taking the deceased towards the west. She, on the next morning, came to know from the mother of the deceased that the deceased had not returned home that night. This witness was duly cross-examined on behalf of the defence. She denied the suggestion that she did not see, through the window, Ajit Roy taking the deceased. She also denied the suggestion that she and her husband used to get financial assistance from the deceased and as such she had given false evidence, on being tutored by the brother of the deceased. Though this witness was duly cross-examined on behalf of the defence, except putting the said suggestion, which was denied by her, no contradiction could be elicited to discredit her evidence that she had seen accused Ajit taking away the deceased with him after the end of the picnic party. 16. Close on the heals of the evidence of P.W. 3, her husband, namely, Sri Rabindra Das, deposing as P.W. 4, stated about arranging the said picnic party in his house. He clearly stated that the deceased, accused Badal Chakraborty and Ajit Roy, along with Ors. 16. Close on the heals of the evidence of P.W. 3, her husband, namely, Sri Rabindra Das, deposing as P.W. 4, stated about arranging the said picnic party in his house. He clearly stated that the deceased, accused Badal Chakraborty and Ajit Roy, along with Ors. participated in the said picnic party and that at about 10 p.m., due to taking of excessive liquor, he had fallen asleep. He further stated that, on the next morning, the dead body of the deceased was found in the paddy field of Krishna Das. According to this witness, his wife i.e. P.W. 3, on the next morning, told him that on the night of the picnic, accused Ajit had threatened her to close the door and that she had seen Ajit taking the deceased towards the western side. No suggestion was put to this witness indicating that he was not informed by his wife in the said manner. Therefore, we find sufficient corroboration in the evidence of P.W. 3 and P.W. 4 to believe that in the picnic, arranged by the P.W. 4, the deceased and the accused, namely, Badal Chakraborty and Ajit Roy also participated and at the end of the picnic party, Ajit had taken the deceased towards western side. Admittedly, on the next morning, the dead body of the deceased was found lying in the field. From the above discussed evidence, it is found that the deceased was last seen in the company of Ajit. Therefore, it stood established that the deceased was last seen with accused Ajit and that the Appellant, Badal Chakraborty, also participated in the said party. 17. Sri Sudhir Chandra Debnath, who deposed as P.W. 5, stated about finding of the dead body of the deceased on the next morning. He was a witness to seizure of a chappal and some blood stained earth by the I.O. He came to know about the deceased attending the picnic party in the house of P.W. 4, along with accused Ajit and Ors. He stated that he was told by the wife of P.W. 4 that Ajit had taken the deceased towards the western side. Though this witness was duly cross-examined on behalf of the defence, no suggestion was put to him denying his evidence that the wife of the P.W. 4 had told him about taking of the deceased by the accused Ajit. Though this witness was duly cross-examined on behalf of the defence, no suggestion was put to him denying his evidence that the wife of the P.W. 4 had told him about taking of the deceased by the accused Ajit. This witness had no personal knowledge about the said picnic party and the presence of the accused persons therein. 18. Mr. Harendra Debnath, deposing as P.W. 6, also stated about finding of the dead body, in injured condition, on the next morning. 19. Mr. Kishore Banik, who also attended the said picnic party, deposing as P.W. 10, stated about the presence of deceased, accused Badal Chakraborty, Ajit Roy and Ors. in the said party. He stated that, at about 10-30 p.m., he left the picnic party leaving therein the deceased, Shankar Banik, accused Ajit Roy and Badal Chakraborty, Sudhir Pal, Rabindra Das (P.W. 4) and Nirmal Das and, in the next morning, he came to know that the deceased did not reach home that night. 20. Mr. Sadesh Banik, deposing as P.W. 11, stated about recovery of the dead body and the preparation of the Inquest Report. He was a signatory to the Inquest Report. He identified his signature thereon as Exbt. P/2.2. 21. Smt. Iti Banik, wife of the deceased, deposing as P.W. 12, stated that, on the fateful night, her husband had gone to the house of Rabindra Das (P.W. 4) to attend the picnic party and that he did not return home on that night. According to P.W. 12, at about 11 p.m., finding Badal Chakraborty (Appellant No. 2) going by the road of their house, her mother-in-law had enquired from him the whereabouts of her husband, to which he replied that he would make her (P.W. 12's) son reach home. She denied the suggestion that her mother-in-law did not ask Badal Chakraborty anything on that night. 22. Mr. Nirmal Das, who also participated in the said picnic, deposing as P.W. 13, stated that the deceased, the accused Ajit, Badal along with Ors. had participated in the said picnic party, wherein they had taken meat and wine. He stated that, at about 10/10-30 p.m., Shankar Das and Badal Chakraborty had escorted him to his house and that they told him that they would, again, go back to the house of Rabindra Das. This evidence of P.W. 13 lends sufficient corroboration in favour of the evidence of P.W. 3. He stated that, at about 10/10-30 p.m., Shankar Das and Badal Chakraborty had escorted him to his house and that they told him that they would, again, go back to the house of Rabindra Das. This evidence of P.W. 13 lends sufficient corroboration in favour of the evidence of P.W. 3. Because P.W. 3, in her evidence, clearly stated that Badal Chakraborty and Shandar Das had escorted Nirmal Das (P.W. 13) to his house and that Badal Chakraborty and Shankar Das had returned to her house. 23. P.W. 14, Sri Gopal Sarkar, Sl of Police, stated that, on 6.10.98, Sl Dhruba Banik (P.W. 21) reached Joynagar after making a GD Entry, being GD Entry No. 194 dated 6.10.98 and that Sl Banik had sent a written FIR, which was received at the police station at 12.30 a.m. From the evidence of this witness, it appears that Sl Dhruba Banik, who was the I.O. of this case, had proceeded to the place of occurrence, upon receipt of a message regarding murder of a person at Joynagar village i.e. prior to receipt of the written information, which was exhibited as FIR Exbt. 1. P.W. 1, who lodged the Exbt. P/1, stated that, after the recovery of dead body, he returned to the house of the Pradhan, who, telephonically, informed the Police and that on receipt of such information, police visited the place of recovery of the dead body. Hence, it is found that the said telephonic message had moved the machinery of investigation. Therefore, the said message, which was recorded as G.D. Entry, was the first information report received by the police and not the Exbt. P/1. 24. Mr. Jaharlal Das, the star witness of this case, deposing as P.W. 15, stated that, on the night of Laxmi Puja, at about 12 O' clock/12.30 A.M., while he was returning from the house of Uttam Banik, after attending an invitation in connection with Laxmi Puja, he found, on the road, accused Panu i.e. Prangopal, Badal Chakraborty and Ajit Roy taking the deceased. According to this witness, on being asked as to what had happened to the deceased, the accused-persons replied that the deceased had consumed excessive quantity of liquor and as such, they were taking him to his house. He further stated that he saw them by the southern side of the land of Krishna Das. According to this witness, on being asked as to what had happened to the deceased, the accused-persons replied that the deceased had consumed excessive quantity of liquor and as such, they were taking him to his house. He further stated that he saw them by the southern side of the land of Krishna Das. Fact remains that the dead body of the deceased was found in the paddy field of Krishna Das. According to this witness, on the next day, at about 12 noon, he came to know that the dead body of the deceased was found in the paddy field of Krishna Das. He further stated that he had also informed the matter to Uttam Das. This witness was duly cross-examined on behalf of the defence. He denied the suggestion that, on that night, he did not visit the house of Uttam Das. He stated that he was interrogated by the I.O. after about 3 days of the occurrence. He denied the suggestion that he did not see the deceased with the Appellants. This witness clearly stated that the deceased was known to him for about 10 to 15 years. Though this witness was duly cross-examined on behalf of the defence, nothing could be elicited from his evidence to make us disbelieve his evidence. 25. Mr. Uttam Banik, deposing as P.W. 20, stated that he organised a Laxmi Puja in the year 1998 and that the P.W. 15, who was his friend, had attended the Laxmi Puja at his house at about 10 p.m. He further stated that his said friend i.e. P.W. 15 left his house at about 12 O'clock at night. According this witness, after about 2 to 3 days, the said Jaharlal Das had visited his shop and informed him that on the night of Laxmi Puja, while returning home, near the house of Rabindra Das (P.W. 4), he found Prangopal Roy, Ajit Roy and Badal Chakraborty taking the deceased and that, on being asked by him, they had told him that, as the deceased had taken excessive alcohol, they were escorting him to his house. In his cross-examination, this witness stated that he was examined by the I.O. after about two months, although he was all along present at his house situated at Joynagar. He denied the suggestion that he did not come to know about the occurrence from P.W. 15. In his cross-examination, this witness stated that he was examined by the I.O. after about two months, although he was all along present at his house situated at Joynagar. He denied the suggestion that he did not come to know about the occurrence from P.W. 15. Though this witness was duly cross-examined by the defence, nothing could be elicited to render his evidence unbelievable. 26. A careful scrutiny of the evidence of P.W. 15 and P.W. 20 indicates that there are sufficient corroboration in their evidence to believe, that P.W. 15 had seen the Appellants taking the deceased with them on the midnight of the previous day by the southern side of the land of Sri Krishna Das and that on the following morning, the dead body of the deceased was found, in injured condition, in the paddy field of Krishna Das. P.W. 15 clearly stated that he met the deceased and the accused persons near the land of Krishna Das. Therefore, in the absence of any contradiction on material point, it stood clearly established, from the evidence of P.W. 15 and P.W. 20, that the deceased was last seen with the Appellants. The evidence of P.W. 3 i.e. the wife of the P.W. 4 also lends support in favour of the evidence of P.W. 15. 27. Mr. Dipak Bose, deposing as P.W. 16, stated about recovery of the dead body of the deceased on 6.10.98. According to this witness he got the information at about 10 a.m. He was the scribe of the FIR, lodged by the P.W. 1. He stated that he had written the same on being dictated by the P.W. 1, He exhibited the same as Exbt. 1 and signature thereon on Exbt. 2/3. 28. Mr. Nithananda Karmakar, who was a constable of police, deposing as P.W. 17, stated that the I.O. had prepared the Inquest Report in respect of the dead body and that on being directed, he had removed the dead body to the hospital for post mortem examination. 29. Mr. Milan Banik, who was the elder brother of the deceased, deposing as P.W. 18, stated about the recovery of the dead body of his brother in the paddy field of Krishna Das. 29. Mr. Milan Banik, who was the elder brother of the deceased, deposing as P.W. 18, stated about the recovery of the dead body of his brother in the paddy field of Krishna Das. This witness stated that, on enquiry, he was told, by the wife of the P.W. 4, that as the deceased had become drunk in the said picnic party, the accused Ajit Roy had taken him home. 30. Dr. P.K. Das, who was examined as P.W. 19, stated that Dr. P.K. Deb had performed the post mortem examination. He exhibited the post mortem examination report as Exbt. P/6. 31. S.I. Dhruba Banik, i.e. the Investigating Officer, was examined as P.W. 21. He was duly cross-examined, on behalf of the defence. From his evidence, it is found that, before receipt of the said written FIR (Exbt. 1), he received a telephonic information about the murder of a person at Joynagar village and on the basis of such information, after making the GD Entry, he visited the place of occurrence and started investigation into the matter. Therefore, the telephonic information, on the basis of which the investigating agency had moved into action, was the first information received in this case. The Exbt. 1, lodged by P.W. 1, after the arrival of the police can, at best, be treated as a statement under Section 161, Code of Criminal Procedure No contradiction, in respect of the evidence of the prosecution witnesses, was proved through I.O. Even the I.O. was not asked to explain as to why there was delay in the examination of some of the witnesses, more particularly, P.W. 15 (examined after about 3 days) and P.W. 20 (examined after about two months). 32. The learned senior Counsel, appearing for the Appellants, has submitted that the I.O. examined the vital witnesses i.e. P.W. 15 and P.W. 20 after considerable delay and that such delay raises doubt about the veracity of the evidence of the said witnesses for which their evidence cannot inspire confidence. 32. The learned senior Counsel, appearing for the Appellants, has submitted that the I.O. examined the vital witnesses i.e. P.W. 15 and P.W. 20 after considerable delay and that such delay raises doubt about the veracity of the evidence of the said witnesses for which their evidence cannot inspire confidence. Strongly contesting the said argument, advanced by the learned senior counsel appearing for the Appellants, the learned Special Public Prosecutor, referring to the decision in the case of State of U.P. v. Satish (supra), submitted that in spite of such delay, in the absence of inviting an explanation from the Investigating Officer (P.W. 21) regarding cause of delayed examination of witnesses, no adverse inference can be drawn against the credibility of such witnesses. Section 161 of the Code of Criminal Procedure, while empowering a police officer, making an investigation, under Chapter-XII of the Code of Criminal Procedure, to examine persons acquainted with the facts and circumstances of a case, does not prescribe any statutory period within which, a person, be he a witness or accused shall be examined. However, for speedy and fair trial, and to rule out the possibility of embellishment of concoction, the witnesses should be examined under Section 161, Code of Criminal Procedure without any delay, unless prevented by any reasonable cause. In the case of Satish (supra), the Supreme Court observed thus: As regards delayed examination of certain witnesses, this Court in several decisions has held that unless the investigating officer is categorically asked as to why there was delay in examination of the witnesses the defence cannot gain any advantage therefrom. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness the prosecution version become suspect. In view of the principle laid down by the Supreme Court in the case of Satish (supra), a Court can't refuse to accept the evidence of a witness only on the ground of delayed examination of such witness by the I.O. unless the I.O. is questioned in this regard, giving him opportunity to explain the cause of such delay, if any. 33. In our present case, as revealed from the record, P.W. 15 was examined after about 2/3 days, while P.W. 20 was examined after about two months. 33. In our present case, as revealed from the record, P.W. 15 was examined after about 2/3 days, while P.W. 20 was examined after about two months. The defence, though, duly cross examined the Investigating Officer (P.W. 21), did not ask him anything as to why there was delay in examination of the said witnesses. Had the I.O. been asked about the cause of such delay, he could have advanced some explanation. In the event of failure of the I.O. to satisfactorily explain the cause of delay, in spite of being asked for, adverse inference could have been drawn. But the defence, having failed to ask the I.O. regarding the cause of delay, cannot gain any benefit from the delayed examination of the P.W. Nos. 15 and 20. Therefore, we find no force in the contention of the learned senior Counsel regarding the delayed examination of P.W. Nos. 15 and 20 and to extend any benefit to the Appellants on this Count. 34. The unimpeccable evidence of P.W. 4 and P.W. 15 fortify the last seen theory as discussed above. The evidence of P.W. 3 that she had seen accused Ajit (since absconder) taking the deceased from her house after the party, that too threatening her to close the door, and the evidence of P.W. 15 that he had seen the Appellants and Ajit taking the deceased, at around midnight could not be demolished by the defence. Fact remains that the dead body of the deceased was found, on the following morning, in the paddy field of Shri Krishna Das. It is pertinent to note that P.W. 15, on the previous midnight, had found the deceased and the said persons by the southern side of the land of Krishna Das. Therefore, the finding of the dead body of the deceased in the land of Krishna Das, on the following morning, lead to the inference, in the absence of any other contrary evidence, that the deceased, before his death was last seen in the custody of the accused persons. Therefore, the finding of the dead body of the deceased in the land of Krishna Das, on the following morning, lead to the inference, in the absence of any other contrary evidence, that the deceased, before his death was last seen in the custody of the accused persons. There is nothing on record to find that, during the intervening period i.e. from the time when P.W. 15 had seen the deceased with the Appellants and the finding of the dead body on the next morning, the deceased had either gone somewhere leaving the company of the Appellants or that he had fallen in the custody of some other person to the exclusion of the said Appellants and Ajit. Therefore, it can be safely concluded that the deceased was last seen i.e., prior to the latter's death, in the company of the Appellants and Ajit (since absconder). 35. From the evidence on record, as discussed above, the following circumstantial evidence have surfaced: 1. In the morning of 5th October, 1998 an altercation had taken place regarding payment of money to P.W. 8 and in the said altercation, the deceased was threatened by Ajit Roy and Prangopal Roy. 2. In the evening of 5th October, 1998, the deceased, the Appellant, Badal Chakraborty and accused Ajit Roy attended a picnic party, arranged in the house of P.Ws. 3 and 4, and they enjoyed the same till midnight After the said party, accused Ajit had asked P.W. 3 to close the door of the house and P.W. 3 saw Ajit taking the deceased towards the western side. 4. At about 11 p.m., Appellant, Badal Chakraborty, was found going by the side of the house of the deceased and, on being asked by the mother of the deceased about the whereabouts of her son, the said Appellant replied that he (deceased) would be sent home. 5. P.W. 15, on the same night, at about 12/12.30 O'clock at night while returning home after attending the Laxmi Puja in the house of Uttam Banik, found the Appellants and Ajit taking the deceased and on being asked by him as to why the deceased was being taken by them, the Appellants had replied that, as the deceased had consumed excessive quantity of liquor, they were taking him to his house. This witness found the deceased in the company of the Appellants and Ajit (since absconder) on the southern side of the land of Krishna Das. From the above, it transpires that all the events of the said circumstances have formed a complete chain of events, commencing from the very point when an altercation as aforesaid between the deceased, with the Appellants and Ajit had taken place till the dead body was found in the paddy field of Krishna Das. The chain of events lead to the lone and only conclusion that the deceased lost his life at the hands of the Appellants in the company of Ajit (since absconder). The evidence added by the prosecution is only consistent with the guilt of the Appellants and inconsistent with their innocence. 6. On the next morning, the dead body of the deceased, with injuries, was found lying in the paddy land of the Krishna Das. 36. It is settled law that conviction can be based on the basis of circumstantial evidence if the same is found to be reliable and conclusively pointing to the guilty of the accused person, to the exclusion of the hypothesis regarding his/their innocence. The circumstances from which inferences as to the guilt of the accused can be drawn should be proved beyond all reasonable doubt and the same should conclusively connect the accused with the alleged crime. 37. In the case of Bhagat Ram v. State of Punjab reported in AIR 1954 SC 21, it has been laid down that, where the case depends upon the conclusion drawn from circumstances, the cumulative effect of the circumstances must be such as to negate the innocence of the accused and bring home the offences beyond any reasonable doubt. The Apex Court in the case of State of U.P. v. Satish (supra) referred to the following observation made by the Supreme Court in the case of C. Chenga Reddy v. State of A.P. reported in (1996) 10 SCC 193 : 21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. 38. The Apex Court in the case of Padala Veera Reddy v. State of A.P. reported in 1989 Supp. (2) SCC 705, laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (SCC pp. 710-11, Para 10) 10. (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused: (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. 39. In the case of Hanumant Govind Nargundkar v. State of M.P. reported in AIR 1952 SC 343 it was observed thus: It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. 40. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. 40. In the case of Sharad Birdhichand Sarda v. State of Maharashtra reported in AIR 1984 SC 1622 , while dealing with circumstantial evidence, the Supreme Court laid down that the following conditions precedent must be fully established before conviction could be based on circumstantial evidence. The conditions are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 41. In the light of the above principles of law, laid down by the Supreme Court, with regard to proving of the charge on the basis of circumstantial evidence, we are required to examine if the circumstantial evidence, emerging from the evidence on record, in our present case, are sufficient to safely conclude that the Appellants had caused the death or the deceased. 42. Carefully scrutinizing the entire evidence on record as discussed above and the events, which followed right from the time of altercation, which took place between P.W. 8 and P.W. 9 in the morning, till the finding of the dead body of the deceased on the next morning, it is found that it has been fully and consistently established, that the deceased was threatened, in the morning by the Appellant Prangopal and accused Ajit (since absconder) along with Ors., that the deceased, Appellant Badal Chakraborty and accused Ajit along with Ors. had participated in the picnic, arranged in the house of P.W. 3 and P.W. 4, and after the said picnic party, at midnight, the Appellants and Ajit were found taking the deceased with them on the pretext that as the deceased had consumed excessive quantity of alcohol, they would be escorting him to the latter's house. On the following morning, the dead body of the deceased was found lying in the paddy field of Sri Krishna Das i.e. near the place, where P.W. 15 had found the deceased in the company of the Appellants and Ajit on the previous night. There is nothing on record to find that the deceased had fallen in the company of any person other than the said Appellants and Sri Ajit (since absconder) after P.W. 15 had seen them around midnight. As the Appellants were found taking the deceased to the latter's house, it was their duty to safely take him to his house and handing over to the members of his family. But, there is nothing on record to find that the said accused persons had taken the deceased to the latter's house. Rather, the dead body of the deceased was found lying in the field of Krishna Das with injuries on it. Therefore, there is sufficient force in favour of the prosecution version that, prior to his death, the deceased was in the company of the Appellants. 43. In view of the above circumstances, the burden shifts to the Appellants to explain as to what had actually happened to the deceased after they were found taking the deceased with them and as to how he sustained the injuries and met with death. No explanation has been advanced by the defence to exclude the involvement of the Appellants and no explanation in this regard is discernable from the materials on record. As the deceased was found dead, after he was last seen with the Appellants, inference can be safely drawn that the Appellants were responsible in killing the deceased. Such inference could have been refuted if the accused would have told the Court as to what had happened to the deceased after he was last seen in their company/custody. Failure to discharge this burden leads to the drawing of adverse inference against the Appellants. 44. In the case of State of W.B. v. Mir Mohammad Omar and Ors. Such inference could have been refuted if the accused would have told the Court as to what had happened to the deceased after he was last seen in their company/custody. Failure to discharge this burden leads to the drawing of adverse inference against the Appellants. 44. In the case of State of W.B. v. Mir Mohammad Omar and Ors. reported in (2000) 8 SCC 382 , the Apex Court dealt with a case of abduction and murder. In the said case, deceased Mahesh was abducted by the accused persons and subsequently he was found dead. The trial Judge convicted them under Section 364 read with Section 34 IPC but not for murder. The acquittal of the accused persons of the charge of murder, was challenged before the High Court. A Division Bench of the Calcutta High Court rejected the State's appeal against the acquittal in the murder and reduced the sentence to a short term. The State as well as the convicted persons filed appeals before the Supreme Court. The appeal filed by the State was against the acquittal in the murder charge, while the convicted persons challenged the conviction recorded against them. The Supreme Court, while allowing the appeal, preferred by the State, and maintaining the conviction under Sections 364/34 IPC, convicted the Appellant-accused of the offence under Section 302 read with Section 34 too and imposed on each of them a sentence of imprisonment for life. In the above referred case, Apex Court observed: The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the Court exercised a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the Court to presume the existence of any fact which it thinks likely to have happened. In that process the Court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case. When it is proved to the satisfaction of the Court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the Court to draw the presumption that the accused have murdered him. Such inference can be disrupted if the accused would tell the Court what else happened to Mahesh at least until he was in their custody. 45. Referring to the decision held in the case of Shambhu Nath Mehra v. State of Ajmer reported in AIR 1956 SC 404 , the Apex Court quoted in the State of W.B. v. Mir Mohammad Omar (supra), the following observation made in the case of Sambhu Nath Mehra (supra): This lays down the general rule that in criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish facts which are 'especially' within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word 'especially' stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. 46. The word 'especially' stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. 46. In the backdrop of the above principle of law, laid down by Hon'ble Apex Court and the observation made therein, we find that, in our present case, after the end of picnic party held in the house of P.W. 3 and P.W. 4, the deceased was last seen in the company of the Appellants and Sri Ajit. Finding the deceased in the company of the Appellants and Ajit (since absconder), near the place, where his dead body was found on the next morning and, on being asked by P.W. 15, the Appellants had told P.W. 15 that they were taking the deceased to his house as the latter was drunk. On the next morning, the dead body of the deceased was found in the field, which was quite near the place, where the deceased along with the Appellants had been found by P.W. 15 on the previous midnight. 47. In view of the above circumstances, as there is nothing on record to find that the deceased had fallen in the company/custody of some other person, the Appellants knew as to what had happened to the deceased. In the absence of any explanation from the Appellants considering the proximity of the time within which the victim sustained the fatal injuries and the proximity of the place within which the dead body was found, coupled with the unshaken evidence of P.W. 15, inference can be safely drawn that the Appellants had the knowledge as to how and in what circumstances the deceased had sustained the fatal injuries. The threat given to the deceased by Appellant Badal and accused Ajit (since absconder), following the altercation which took place in the morning and the existing enmity fortifies the involvement of the said persons in the death of the deceased. From the above evidence on record, it transpires that the deceased was murdered within a short time after he was seen in the company/custody of the Appellants. The Appellants claimed that they were taking the deceased to his house as the latter was unable to go due to excessive taking of liquor. It stood established that the deceased did not return home, after he was seen with the Appellants and Sri Ajit (since absconder). The Appellants claimed that they were taking the deceased to his house as the latter was unable to go due to excessive taking of liquor. It stood established that the deceased did not return home, after he was seen with the Appellants and Sri Ajit (since absconder). It is, therefore, quite reasonable to draw inference that the Appellants had participated in the murder of the deceased. 48. If any individual, in the custody or company of Ors., sustains any injury or harm to his person, or if death is caused to such a person, then, the person, having the company/custody of the injured or deceased person, is primarily answerable for such injury, harm or death. Such person is required to explain the circumstances whereunder the victim sustained injury or death. Failure to put forward satisfactory explanation, establishing innocence of such person/custodian, will lead to, in the absence of anything showing the contrary draw inference that the person in whose company/custody the victim/deceased was last seen had been the perpetrator of the offence. 49. In the light of the above materials on record, we are of the considered view that, it has been fully established that the deceased was last seen in the company/custody of the Appellants and accused Ajit (since absconder), following which his dead body was found in the nearby the field i.e. the place, where, he was last seen with the said persons. The above stated series of events and the facts established by the prosecution are found to be so complete and reliable as not to leave any reasonable ground consistent with the innocence of the Appellants. The facts, established by the prosecution, are found to be consistent with the hypothesis of the guilt of the Appellants to the exclusion of any other hypothesis consistent with their innocence. Therefore, in view of what has been stated above, we conclude that, in all human probability, the murder of the deceased was caused by the Appellants. Upon analysis of the entire evidence on record and in the backdrop of the principles of law highlighted above, we are of the inevitable conclusion that the prosecution could establish its accusation, brought against the Appellants, beyond all reasonable doubt. Upon analysis of the entire evidence on record and in the backdrop of the principles of law highlighted above, we are of the inevitable conclusion that the prosecution could establish its accusation, brought against the Appellants, beyond all reasonable doubt. Therefore, we are of the considered view that the learned trial Judge committed no illegality by holding the Appellants guilty of the offence under Section 302, IPC and recording their conviction and sentence as aforesaid. 50. For the reasons discussed above, we find no merit in this appeal. Therefore, the appeal stands dismissed. 51. The conviction and sentence passed in the impugned judgment and order are upheld and affirmed. 52. Send down the lower Court records. Appeal dismissed.