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2016 DIGILAW 585 (CAL)

Amar Mondal v. State of West Bengal

2016-07-27

RAJIV SHARMA, SHIVAKANT PRASAD

body2016
JUDGMENT : Shivakant Prasad, J. 1. This appeal is directed against judgment and order dated 31.07.1992 passed by the learned Additional Sessions Judge, 1st Court, Dakshin Dinajpur at Balurghat in Sessions Case No. 122 of 1989 (Sessions Trial No. 6 of 1991) convicting the accused appellant No. 1 under Sections 302 and 201 of Indian Penal Code and sentencing him to imprisonment for life and to suffer rigorous imprisonment for three years respectively to run simultaneously and convicting the accused-appellant Nos. 2, 3 and 4 under Section 201 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for three years. The brief fact leading to this appeal is that on 22.06.1984 at about 6.30 p.m. Amar Mondal son of Bibhuti Bhusan Mondal inhabitant of Dakshin Roypur adjacent to Patiram BSF Camp took loan for a sum of Rs. 2,000/- from Gopal Sarkar son of Jyotirmoy Sarkar and nephew of the complainant of Patiram for the purpose of business of coconut. Gopal went to the house of Amar for realisation of that money but he did not return home. A missing diary was lodged in the morning of 24.6.1984 at Balurghat police station. It was the impression of the complainant that since Gopal went to the house of Amar Mondal, Gopal was murdered by the anti socials with the help of Amar Mondal. On 24.6.1984 at about 2.30 p.m. the complainant came to know that a dead body was floating at a distance of one K.M. from Chakkashi ghat of river Atreyee. The complainant went to that ghat and indentified the dead body to be that of Gopal Sarkar and he found several injuries on the head, shoulder and on different parts of the body caused by sharp cutting weapon. Due to bad weather, the dead body could not be brought out on that day to the P.S. On 25.6.1984 a specific complaint was lodged with the P.S. by the complainant. It is also stated therein that at the time of leaving the house Gopal had a wrist watch and a Norton cycle along with him worth valuation of Rs. 1,000/-. 2. On the basis of written complaint, Balurghat P.S. Case No. 30 dated 25.6.1984 under Sections 302, 201, 379, 411, IPC was started. On completion of the investigation, I.O. submitted charge-sheet against the accused persons under Sections 302, 201, 379, 411, IPC. 1,000/-. 2. On the basis of written complaint, Balurghat P.S. Case No. 30 dated 25.6.1984 under Sections 302, 201, 379, 411, IPC was started. On completion of the investigation, I.O. submitted charge-sheet against the accused persons under Sections 302, 201, 379, 411, IPC. After the case was committed to the Court of Sessions, charges under Sections 302, 379 of the IPC was framed against the accused Amar Mondal and separate charge under Section 201 was framed against accused Amar Mondal, Bibhuti Bhusan Mondal, Kamal Pahan and Sudev Pahan who abjured the guilt and claimed a trial. 3. To substantiate the charges levelled against the accused persons, prosecution examined as many as 25 (Twenty five) witnesses and also adduced in evidence documents viz. (i) written complaint of P.W.-1 Ext.-1; (ii) seizure list Ext.-2/1 in respect of Ramdao weapon of offence (Mat. Ext.-I) with signature of P.W.-9 as Ext.-2 on seizure list; (iii) seizure list Ext.-3/1 in respect of Norton black colour (used) (Mat. Ext.-II) with signatures of P.W.-11 and P.W.-12 as Ext.-3 and Ext.-5 respectively on seizure list; (iv) seizure list Ext.-4/1 in respect of one pair black coloured used leather sandle (Mat. Ext.-III) with signatures of P.W.-11 and P.W.-12 as Ext.-4 and Ext.-6 respectively on seizure list; (v) seizure list Ext.-7/1 in respect of control earth bearing signature of P.W.-12 as Ext.-7 on the seizure list; (vi) missing diary G.D. Entry No. 1068 dated 24.06.1984 Ext.-9; (vii) seizure list Ext.-10 in respect of one black colour thread (kar), one copper made amulet with black colour thread around the neck and copper ring with signatures of P.W.-17 and P.W.-22 as Ext.-8 and Ext.-12 respectively on the seizure list; (viii) FSL report Ext.-11; (ix) formal FIR Ext.-13; (x) rough sketch map of place of detection of dead body with explanatory index Ext.-14 and (xi) sketch map of P.O. with explanatory index Ext.-15. 4. After the prosecution closed its evidence, the accused persons were examined under Section 313 of the Cr.P.C. to which each of them declined to adduce any defence evidence. The defence case is one of denial of charges which emerges from the trend of cross-examination of prosecution witnesses. 5. 4. After the prosecution closed its evidence, the accused persons were examined under Section 313 of the Cr.P.C. to which each of them declined to adduce any defence evidence. The defence case is one of denial of charges which emerges from the trend of cross-examination of prosecution witnesses. 5. Learned Trial Judge convicted and sentenced the appellants by the impugned judgment which is under challenge before this Court, inter alia, on the grounds that the facts and circumstances of the case does not warrant conviction and sentence on the evidence on record. 6. Mr. Sekhar Bose, learned counsel for the appellant has submitted that the charges as framed against the accused persons were not maintainable and highly prejudicial to the accused appellants and secondly that,-learned Judge erred in holding the trustworthiness and the veracities of the evidences only on the consideration of evidence in examination-in-chief and not on thorough scrutiny of evidences elucidated from their cross-examination and findings of guilty of accused prosecutions were based on uncorroborated evidence of the prosecution witnesses and the statements made in the First Information Report. Learned Judge ought to have disbelieved the story of giving loan of Rs. 2,000/- to the appellant No. 1 and that no identification of the victim was properly made. It is further submitted that the learned Judge should have not taken the evidence of P.W.-25, Sub-Inspector of police in a blind manner and failed to appreciate the evidence of the P.Ws 9, 11 and 12 by arriving at a wrong finding that the weapons were found and seized in their presence by the police personnel. 7. Mr. Bose also submitted that nowhere from the evidence of P.W.-11 it would appear that the recovery of the weapons were made at the instance of the appellants. As such on careful consideration of the evidences of the P.Ws. 9, 11 and 12, the learned Judge should have discarded the evidence of P.W.-25 regarding alleged recovery of weapons at the instance of the appellant No. 1 from the tank. 8. It is further contended that the learned Judge failed to appreciate that the prosecution failed to make out any case regarding common intention for committing the offence as such the conviction and sentence imposed under Section 201 of the Indian Penal Code is bad in law and liable to be set aside. 9. Mr. 8. It is further contended that the learned Judge failed to appreciate that the prosecution failed to make out any case regarding common intention for committing the offence as such the conviction and sentence imposed under Section 201 of the Indian Penal Code is bad in law and liable to be set aside. 9. Mr. Bose pointed out that there is no evidence against the appellant Nos. 2,3 and 4 regarding the offences as alleged to have committed under Section 201 of the Indian Penal Code and that the weapon of murder having not been recovered either at the instance of the appellants or in presence of the witnesses leads to conclude that ingredient of offence under Section 201 of the Indian Penal Code have not at all been proved. 10. It is also contended that since there is no proper identification of the place of occurrence and the time of death of the victim the learned Judge should have not held the appellant No. 1 guilty for the charge under Section 302 of the Indian Penal Code, in absence of proper explanation of the delay for filing the FTR. 11. P.W.-1 Dayamoy Sarkar of Patiram P.S. Balurghat stated in his deposition that Gopal was his nephew and son of his elder brother Jyotirmoy Sarkar, was murdered. 12. According to P.W.-1, on 22.6.1985 Friday, in the evening Gopal went out of his house telling that he was going to Dakshin Raipur in the house of Amar Mondal with whom he had friendship to realise an amount of Rs. 2000/- which Amar Mondal had taken from him as loan for coconut business, but Gopal did not return home in the night of 22.6.1984 and Gopal did not return home even on 23.06.1984. So, P.W.-1 along with Swapan Das son of Kalipada Das lodged a missing diary on 24.06.1984 at about 8.00 a.m. stating that his nephew Gopal was missing since the night of 22.6.1984. P.W.-1 further stated on oath that his sister went to the house of Amar Mondal for four times to enquire about Gopal but Amar had stated that Gopal had not visited his place. On 24.6.1984 at about 1.30/2.00 p.m. one Bijoy Pahan of Chakkashi informed him that a dead body was floating at Chakkashi ghat but the dead body could not be brought out at night due to heavy rain and inclement weather. On 24.6.1984 at about 1.30/2.00 p.m. one Bijoy Pahan of Chakkashi informed him that a dead body was floating at Chakkashi ghat but the dead body could not be brought out at night due to heavy rain and inclement weather. He identified the dead body of his nephew Gopal which was found completely naked. There was a 'tabiz' in the right hand of the dead body and there was a 'kar' of 'bholebaba' around his neck. 13. P.W.-1 stated in his cross-examination that accused persons are the inhabitants of Hariharpur. Accused Bibhuti was the father of the accused Amar and other two accused Sudev and Kamal were the servants of Bibhuti. Accused persons were well-off. He made first eajahar which was submitted by him with the P.S. on 24.06.1984, written by some other person from outside. There was no document in writing to show that his nephew lent Rs. 2,000/- to Amar Mondal. It is reflected from the evidence of P.W.-1 in cross-examination that money was lent to Amar Mondal in 1983 about one year prior to the occurrence. However, he had not seen the transaction of money between them, but he knew that. 14. According to P.W.-1, when he was coming back from his duty he met his nephew on the way who told him that he was going to the house of Amar Mondal to collect money from him as Amar had taken loan from him. The dead body was decomposed and swollen but it could be identified. 15. P.W.-1 further stated that he had enquired from the para people about the whereabouts of his nephew and went to all those houses where his nephew used to go in connection with private tuition and P.W.-1 also learnt that Gopal went to the house of Dr. Kalipada Das for coaching his children and after that he left for the house of Amar as told by the inmates of the house of Kalipada. P.W.-1 also went to the house of Amar. 16. According to P.W.-2 Amal Das on 22.06.1984 he found a dead body at Chakkashighat from a distance but he could not identify the dead body at that time. On the following day at about 1/1.30 p.m. Dayamoy along with other went there to see the dead body. P.W.-1 also went to the house of Amar. 16. According to P.W.-2 Amal Das on 22.06.1984 he found a dead body at Chakkashighat from a distance but he could not identify the dead body at that time. On the following day at about 1/1.30 p.m. Dayamoy along with other went there to see the dead body. The dead body was naked and he also found three/four cut injuries on and around the shoulder and 'tabiz' in the hand of dead body. A boat was hired to reach near Chakkashighat at 3.30 p.m. with the dead body at about 11.30 p.m. and the delay was due to heavy shower. On seeing the dead body Dayamoy and his associates started crying saying that the same was the dead body of Gopal but P.W.-2 could not exactly identify that dead body as the dead body of Gopal as it was decomposed and swollen. 17. P.W.-3 Madhuri Sarkar of Radhikapur P.S. Kaliaganj is the elder sister of deceased of Gopal. Said Gopal had passed B. Com. examination but he was unemployed. According to her, Gopal left house at about 5/5.30 p. saying that he was going to the house of Amar Mondal for realising an amount of Rs. 2,000/- from him but Gopal did not return home. So, his family members were worried about him. On the following day they went in search of him and her pisi, father and some other persons went to the house of Amar Mondal in search of her brother but Amar Mondal told them that Gopal did not go to his house and his family members could not say anything about the whereabouts of Gopal and held threat on them who had been to house of Amar in search of Gopal. 18. P.W.-4 Monoranjan Das heard from Dayamoy that son of his elder brother was murdered and he identified the dead body as that of Gopal. 19. Ramanikanta Das P.W.-5, Sripada Sarkar P.W.-6, Niranjan Kumar Mondal P.W.-7, Rahim Pahan P.W.-10, Gurupada Sarkar P.W-15 were declared hostile by the prosecution. Therefore, prosecution does not want to rely on their evidence. 20. Smt. Mira Biswas P.W.-8 the sister of Jyotirmoy Sarkar, father of the deceased Gopal Sarkar deposed that on 22nd June, 1984 on her enquiry, Gopal told her that he was going to the house of Amar for realising his money of Rs. Therefore, prosecution does not want to rely on their evidence. 20. Smt. Mira Biswas P.W.-8 the sister of Jyotirmoy Sarkar, father of the deceased Gopal Sarkar deposed that on 22nd June, 1984 on her enquiry, Gopal told her that he was going to the house of Amar for realising his money of Rs. 2,000/- which he had paid to Amar for his coconut business. Gopal took the cycle of Kali doctor (since dead) and went to the house of Amar but did not come back home till 10/11 p.m. at night. On the following day in the morning she went to the house of Amar to enquire about Gopal. Bibhuti Mondal father of Amar Mondal told her that Gopal did not go to their house. Then her brother and his friends went in search of Gopal and got information on 23rd June from a person of Paran that a dead body was floating along the river. Nothing was done at night on the very day and on 24th June her brother went to police station and lodged FIR and went to the house of Amar Mondal in search of Gopal but the family members of Amar denied the fact of Gopal's going to their house. On the following day when she got the information that the dead body was brought to the P.S., she went there and found the dead body and identified the dead body of Gopal on seeing 'Maduli' and 'Kar' (amulet). 21. The evidence of Dinesh Chandra Roy P.W.-13 Rickshaw puller reflects that he simply found a dead body floating on the river with a 'kar' (suto) around the neck of the dead body and a 'tabiz' in his hand. 22. Jyotirmoy Sarkar RW.-14 father of the deceased had identified all the accused persons on dock. According to him, Gopal was B.Com. and learnt typing and used to sit with him in his shop and he had also coconut business. Gopal had friendship with Amar and had lent Rs. 2,000/- to Amar for starting coconut business. P.W.-14 deposed that on 22nd June, 1984, Gopal went to the house of Amar by a cycle belong to Kalipada doctor for realising money from Amar but he did not come back home at that night. Even on Saturday Gopal did not come back. Gopal had friendship with Amar and had lent Rs. 2,000/- to Amar for starting coconut business. P.W.-14 deposed that on 22nd June, 1984, Gopal went to the house of Amar by a cycle belong to Kalipada doctor for realising money from Amar but he did not come back home at that night. Even on Saturday Gopal did not come back. On Sunday at dawn he went to the house of Bibhuti Mondal in search of his son and enquired about Amar but he was told that Amar was in a room and Amar came and told him that Gopal did not go to their house. RW.-14 told them that Gopal had gone to their house and also asked them to go out in search of Gopal. According to him, his brother Dayamoy had lodged a missing diary. His sister also went to the house of Bibhuti in search of Gopal and when his brother and others were going to P.S. to lodge a diary, they got information at Paran that a dead body with a 'Kar' around his neck and 'Maduli' in the hand was floating in the river. There was heavy shower in the night. He went to the P.S. and the officer told him not to go to the place as the dead body would be brought to the police station and he was advised to bring two hazack light. On that night the dead body could not be brought out due to heavy shower. His sister stayed at Balurghat at night and he went back to his house. He went to the P.S. in the following morning and found the dead body and identified the same on seeing the face, outward appearance and amulet as that of his son. The dead body was shifted to hospital. 23. Amalendu Sarkar P.W.-16 is of no help to the prosecution as he did not know any occurrence on 22.6.1984. 24. Dilip Kr. Roy P.W.-17 is the Home Guard No. 1103 is a witness to seizure list in respect of articles viz. a copper ring, one 'kar'(suto) and one 'tabiz' made in copper which were seized on production by him on 26.04.1984 at the P.S. vide his signature Ext-8 as a witness to the seizure list. 25. 24. Dilip Kr. Roy P.W.-17 is the Home Guard No. 1103 is a witness to seizure list in respect of articles viz. a copper ring, one 'kar'(suto) and one 'tabiz' made in copper which were seized on production by him on 26.04.1984 at the P.S. vide his signature Ext-8 as a witness to the seizure list. 25. Mohan Bangshi Haider P.W.-18 was S.I. of Police, Balurghat on 24.06.1984 who took note of information regarding missing of Gopal Sarkar on being informed by Dayamoy Sarkar of Patiram at 8.05 a.m. and entered GD. No. 1068 dated 24.06.1984 proved by him as Ext.-9. 26. S.I. M.K. Nag P.W.-19 was ASI of Police Balurghat P.S. on 26.06.1984 who was on duty at 8.15 a.m. and Constable No. 1314 Haribole Sarkar handed over to him one black 'kar', 'tabiz', copper ring to him after postmortem examination which were seized in connection with Balurghat P.S. Case No. 30(6)/84 under Section 302, IPC which was in reference to Balurghat P.S. G.D. Entry No. 1315 dated 26.6.1984 by him under a seizure list in presence of Constable Haribole Sarkar proved as Ext.-10 and also identified those seized articles being 'tabiz', 'kar'(suto), copper ring proved as Mat. Ext.-V collectively. 27. Haribole Sarkar P.W.-22 has stated on oath that uncle of the deceased had identified the dead body to them when on 25.6.1984 he along with S.I. T.K. Sen went to Chakkashighat and found the dead body at that ghat. The dead body along with inquest report with challan were taken by him to hospital and he identified the dead body to doctor in the hospital. One 'kar', one 'tabiz' and one ring were brought to police station and handed over to S.I. M.K. Nag by him who seized the same under the seizure list Ext.-12. He also identified the said articles at Mat. Ext.-V collectively. 28. Dr. D. Saha P.W.-24 held post-mortem examination on the dead body of Gopal Sarkar on 25.6.1984 at 1.00 p.m. and on examination he found the following injuries-- 1. One incised wound 3" x 1/2" x bone deep on the right side of head with clean cut injury to frontal and parietal bone both fractured. 2. One incised wound 4" x 2" x bone deep placed transversely on left side of the head over temporal parietal region with clear cut injury to temporal bone and some portion of the parietal bone was absent. 2. One incised wound 4" x 2" x bone deep placed transversely on left side of the head over temporal parietal region with clear cut injury to temporal bone and some portion of the parietal bone was absent. Fracture extends to frontal and occipital bone. 3. One incised wound 1" x 1/2" x muscle deep over there eminence. 4. One incised wound 3" x 2" x muscle deep on the left forearm. 5. One incised wound 3 1/2" x 1" x muscle deep over left auxiliary region. 6. One incised wound 1 1/2" x 3/4 " x muscle deep over left supra clavicular region. 7. Two incised wound on the right side of the chest measuring 2" x 1 1/2 " and 2 1/2" x 2" x cavity deep near auxiliary region. 8. One incised wound 6" x 3" x cavity deep on the right side of lower abdomen extends region. 9. One incised wound 5" x 2" x muscle deep on the left side of the right thigh upper part. 29. In his opinion the death was due to effect of injuries stated above ante-mortem and homicidal in nature which was sufficient to cause death in the ordinary course of nature and such injuries might be caused by any sharp cutting weapon and by Ramdao (Mat. Ext.-I) which was shown to the doctor at the time of trial. At the examination doctor found one 'tabiz' in the neck of the deceased and one black 'suto' around the waist of the deceased which were sent to the police station through constable who had handed over to him the inquest report and challan. 30. S.I. N.K. Devedi P.W.-25 was O.C. Balurght P.S. on 25.6.1984 when he received a written complaint from Dayamoy Sarkar of Patiram. On the basis of which he started Balurghat P.S. Case No. 30 dated 25.6.1984 under Sections 302/201/379, IPC and filled up formal FIR (Ext.-13.) He took up investigation of the case. At first he held inquest over the dead body of Gopal Sarkar which was prepared by Tapen Sen under his instruction and he sent the dead body to Balurghat hospital for P.M. examination through Constable Haribole Sarkar. Thereafter, he went to place of recovery of dead body along with witnesses. Examined witnesses and visited P.O. He had been to Hariharpur and also to Patiram. Thereafter, he went to place of recovery of dead body along with witnesses. Examined witnesses and visited P.O. He had been to Hariharpur and also to Patiram. He prepared sketch map of the place of detection of dead body with index (Ext.-14.) and also sketch map of the P.O. (Ext.-15.) Thereafter, he arrested the accused persons namely Amar Kumar Mondal, Kamal Pahan and Sudev Pahan. He interrogated the accused persons and recorded their statements and in pursuance of their statements being led by them, he recovered weapon of offence namely Ramdao, stolen cycle and the sandal of the deceased. Ramdao were recovered from a tank which was brought out by the accused Amar Mondal and Sudev Pahan and has been identified as Mat. Ext.-I which was seized under seizure list in presence of the witnesses prepared by him which also bears the signature of accused Amar Mondal, Kamal Pahan and Sudev Pahan. The seizure list was proved by the I.O. as Ext-2/1. P.W.-25 also seized one cycle which was brought out by accused Sudev Pahan from the tank and identified by accused Amar Mondal. The same was seized under separate seizure list Ext.-3/1 in presence of witnesses to which accused persons put their signature and LTI. The said cycle was identified by the I.O. as Mat. Ext.-I in Court. The sandal of the deceased was also brought out by said Sudev on being shown by the accused Amar Mondal from 'ail' (edge) of Plot No. 104 belonging to Bibhuti Mondal and seized under seizure list Ext.-4/1 to which the witnesses and the accused Amar have signed. The accused persons were forwarded to Court on 26.08.1984 for recording their statements under Section 164, Cr.P.C. which appears to have been declined by the accused persons as reflected from the record. I.O. sent the weapon of offence to FSL and received post-mortem report from the hospital. On being transferred from Balurghat P.S. he handed over the case record to S.I. P.C. Das on 02.04.1985. 31. Niranjan Saha P.W.-9 is a witness to seizure list in respect of weapon of offence (Ramdao) who stated that said Ramdao was seized by the police under seizure list in his presence and he proved his signature as Ext.-2. 32. On being transferred from Balurghat P.S. he handed over the case record to S.I. P.C. Das on 02.04.1985. 31. Niranjan Saha P.W.-9 is a witness to seizure list in respect of weapon of offence (Ramdao) who stated that said Ramdao was seized by the police under seizure list in his presence and he proved his signature as Ext.-2. 32. Nilesh Jha PW.-11 is a witness to seizure list in respect of bicycle which was recovered from the pond of Laxmiram Hembram of Raipur on being produced by accused Sudev Pahan and identified by Amar Mondal located at a distance of half kilometre from the house of accused Amar. This witness has proved his signature as Ext.-3 on the seizure list as Ext.-3/1 and also identified cycle as Mat. Ext.-II. He is also a witness to seizure list (Ext.-4/1) in respect of one pair black coloured used leather sandal identified as Mat. Ext.-HI and bears his signature as Ext.-4 on the seizure list. 33. Ram Renu Mukherjee P.W.-12 is also a witness to seizure list Ext.-4/1 in respect of said cycle and sandal to which he has signed as Ext.-6. 34. Mr. Bose placing reliance on a decision in Dhan Raj v. State of Haryana, reported in (2014) 6 SCC 745 : 2014 CrLJ 2778 (SC) adverting to paragraph 11 submitted that the weapon of murder was neither recovered at the instance of the accused persons nor the same was recovered in presence of the witnesses. 35. Paragraph 11 of the cited decision reads as under:- "11. Owing to the later confessional statement of co-accused Sanjay, the appellant-accused were arrested and subsequently on the basis of the disclosure statements of the appellant-accused and corroboration by Shanti Devi (PW 7), wristwatch and the briefcase were recovered. Owing to the interdependence of the above evidence, we will discuss the same together. The prosecution relied on the disclosure statements of the appellant-accused, the subsequent recovery of the briefcase and wristwatch on the basis of the same and the statement of Shanti Devi corroborating that the recovered wristwatch and briefcase belonged to the deceased. After considering the evidence on record, we find that no proper recovery has been made in the present case. The prosecution relied on the disclosure statements of the appellant-accused, the subsequent recovery of the briefcase and wristwatch on the basis of the same and the statement of Shanti Devi corroborating that the recovered wristwatch and briefcase belonged to the deceased. After considering the evidence on record, we find that no proper recovery has been made in the present case. The objects which were recovered were two common articles, not holding much value and it does not seem rational that any accused would keep such incriminating items connecting themselves to a crime with them in their house." 36. We have gone through the decision, in which case recovery was based on second confessional statement of main accused S, appellants who were arrested and subsequently on basis of disclosure statements of appellants B and D, robbed wristwatch and briefcase were recovered. The Hon'ble Apex Court in that set of fact was of the view that even assuming that wife of the deceased had properly corroborated that recovered wristwatch and briefcase belonging to deceased, objects which were recovered were common articles, not holding much value and it does not seem rational that any accused would keep such incriminating items connecting themselves to a crime with them in their house and held that even if recovery of stolen/robbery articles is reliable, even then it does not establish that accused committed murder and only admissible fact which can be inferred is that accused was in possession of stolen goods. Therefore, in our respectful consideration of the above cited decision facts and circumstances of the cited decision is not apposite to the instant case as in this case the weapon of offence was recovered and seized on the disclosure of the accused persons from a pond while they were in police custody. We are mindful of the fact that testimony of the police witness in respect of said recovery on disclosure by the accused persons and seizure of the offending weapon cannot be rejected solely because he was a policeman. 37. Provision of Section 27 do not require that a voluntary statement has to be recorded and signed by its maker or that the thumb impression must be fixed with but in this particular case we find that the accused persons have signed on the seizure list in respect of the recovery of the weapon as led by the accused persons. Provision of Section 27 do not require that a voluntary statement has to be recorded and signed by its maker or that the thumb impression must be fixed with but in this particular case we find that the accused persons have signed on the seizure list in respect of the recovery of the weapon as led by the accused persons. Therefore, it cannot be said that the provision of Section 27 of Evidence Act do not apply in the instant case. 38. It is settled position of law that the Investigating Officer is not obliged to obtain the signature of an accused in any statement attributed to him while preparing the seizure memo for the recovery of any article covered by Section 27 of the Evidence Act. But, if any signature has been obtained by him, there is nothing wrong or illegal about it. Hence, it could not be said that the signatures of the accused in seizure memo would vitiate the evidence regarding the recovery. 39. It is also a principle of law that Section 27 does not lay down that the statement made to a police officer should always be in the presence of independent witnesses. The Court seeks corroboration, in such cases, as a matter of caution and not as a matter of rule. But in cases where the Court is satisfied that the evidence of the police can be independently relied upon, then in such cases there is no prohibition in law that the same cannot be accepted without independent corroboration. Therefore, even if, the evidence of the seizure list witnesses suffer from infirmity, the seizure of the weapon of offence and other articles cannot be doubted. 40. Yet Mr. Bose relies on the authority of Bodh Raj alias Bodha and Ors. v. State of Jammu and Kashmir, 2003 CCrLR(SC) 206 : 2002 CrLJ 4664 (SC) on the aspect of circumstantial evidence and the principle governing such situations wherein it has been held thus-- "HELD: It has been consistently laid down by the Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. The statement which is admissible under Section 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved." 41. Thus, taking into consideration totality of the evidence of I.O. P.W.-25 and P.Ws. 9, 11 and 12, we are of the opinion that the articles were seized on recovery in pursuance of the disclosure made by the accused persons and as led by them while they were in police custody and, therefore, the provision of Section 27 of Evidence Act is well attracted against the accused persons. 42. On a careful consideration of the evidence of RWs 1 to 4 and other evidences on record it is palpably proved beyond doubt that the dead body of Gopal Sarkar was properly identified by the witnesses with slight variation as pointed out by the learned defence Counsel. 43. Next, Mr. Bose submitted that no human blood was found on the alleged weapon of offence as per the serological report and that the accused persons appellants herein cannot be connected with the crime as alleged by the prosecution. To fortify his contention, he referred to a case of Kansa Behera v. State of Orissa, reported in AIR 1987 SC 1507 , wherein it has been held that report of Serologist that clothes were stained with human blood but blood group not indicated. Dimensions of blood-stains on clothes also not given in report. Evidence of blood group is only conclusive to connect blood-stains with accused and as such, no reliance could be placed on the circumstantial evidence that accused and deceased were last seen together before murder. Weapon of offence however recovered from another accused who had grudge against the deceased and who was discharged. In this situation, the Hon'ble Apex Court held that evidence of last seen together is of no consequence. 44. It was observed in paragraph 12 as under- "12. Weapon of offence however recovered from another accused who had grudge against the deceased and who was discharged. In this situation, the Hon'ble Apex Court held that evidence of last seen together is of no consequence. 44. It was observed in paragraph 12 as under- "12. So far as the appellant being with the deceased in the evening is concerned, it is not in dispute. But it is also significant that the instrument of the offence was recovered at the instance of one Jitrai Majhi who has been discharged and under these circumstances therefore the evidence about the appellant having been seen in the evening with the deceased also is of no consequence. It is a settled rule of circumstantial evidence that each one of the circumstances have to be established beyond doubt and all the circumstances put together must lead to the only one inference and that is of the guilt of the accused. As discussed above the only circumstance which could be said to have been established is of his being with the deceased in the evening and on that circumstance of the case where one another accused person from whom an instrument of offence was recovered, who had a grudge against the deceased has been let off." 45. We find from the evidence that ASI Prodyut Das P.W.-20 received the FSL report Ext.-11 on 07.07.1988 which he handed over to SI Gouranga Poddar at the time of his transfer from police station. The FSL report (Ext-11) reflects that on (Ramdao) weapon of offence, blood was detected but the serologist on analysis found the blood stains on the item No. 12 Ramdao scrapings to be disintegrated, therefore, the blood group of the stain on the item noted could not be determined. We have observed on the evidence relating to recovery of the weapon that same was brought out by the accused Amar Mondal from a pond. We are of the view that the ratio of decision in the cited case is not well nigh within the facts and circumstances of the instant case and accordingly hold that the serological report with negative inference is not fatal to the prosecution case because at a considerable period, the blood get disintegrated in natural course. 46. SI Gouranga Poddar P.W.-21 was O.C. Balurghat on 14.7.1988 and he submitted charge-sheet in this case against the accused persons. 47. Mr. 46. SI Gouranga Poddar P.W.-21 was O.C. Balurghat on 14.7.1988 and he submitted charge-sheet in this case against the accused persons. 47. Mr. Bose referring to a decision in case of Raja Ram v. State of Rajasthan, reported in 2005 SCC(Cr) 1050 points out that if the evidence of cross-examination of the hostile prosecution witnesses are taken together then it favours the defence and in particular the witness who did not support the prosecution case as regards the seizure of the incriminating articles and contended that evidence of such witness if relied upon by the defence would bind the prosecution. We have already discussed with regard to the settled principle of law in respect of provision of Section 27 of Evidence Act and held that the provision does not lay down that the statement made to the police officer should always be in the presence of independent witnesses. We are fully satisfied with the prosecution evidence in respect of the recovery of the offending weapon and other articles which corroborated the facts and circumstances of the case and hold that there is no prohibition in law that the evidence of the police officer cannot be accepted without independent corroboration. [See: Proveen Kumar v. State of Karnataka, (2003) 12 SCC 199 (para 21)]. 48. Mr. Bose also referred to a decision reported in AIR 1924 Cal 323 Mamfru Chowdhury v. King Emperor wherein it has been held thus- "That the absence of medical evidence was a serious defect in the case for the prosecution. The evidence must show that the incident alleged happened at the time, in the place and under the precise circumstances narrated on behalf of the prosecution." 49. We have gone through the decision and in the context of the present case we find that the sketch map of the P.O. and of the place of detection of dead body is well proved by the prosecution witnesses. This case is based on circumstantial evidence and the exact date and time of occurrence is not supposed to be known to the FIR maker. 50. In Bodh Raj alias Bodha and Ors., 2002 CrLJ 4664 (SC) (supra), it would be profitable for appreciation of evidence on record by taking into consideration the principles observed in paragraphs 14 and 16 of the cited decision which reads thus-- "14. 50. In Bodh Raj alias Bodha and Ors., 2002 CrLJ 4664 (SC) (supra), it would be profitable for appreciation of evidence on record by taking into consideration the principles observed in paragraphs 14 and 16 of the cited decision which reads thus-- "14. Sir Alfred Wills in his admirable book "Wills" Circumstantial Evidence." (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence:- (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted." "16. In Hanumant Govind Nargundkar Anr. v. State of Madhya Pradesh, AIR 1952 SC 343 , wherein 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 be 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." 51. 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." 51. Relying on the above principle of law the Hon'ble Apex Court held that the last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused bring the author of crime becomes impossible. 52. We have found on appraisal of evidence in entirety that there is no long gap between the deceased last seen by the prosecution witnesses who are the inmates of his family have stated about the deceased going to the house of Amar Mondal; the deposition of the prosecution witnesses about money lent to the accused Amar Mondal by the deceased and to visit his place for realising sum of Rs. 2,000/- lent to the accused Amar Mondal; identification of the dead body of the deceased based on the doctrine of corpus delicti; evidence regarding holding of threat on the inmates of the family of the deceased on their visit to enquire about whereabouts of the deceased; missing diary lodged by uncle of the deceased with the police station; recovery of the offending weapon and other articles and their seizure by the Investigating Officer on being led by the accused persons while in police custody, are all chain of the circumstances which leads to a positive inference that it was the accused Amar Mondal who had committed the crime of murder of the deceased Gopal Sarkar whose dead body was found with fatal injuries as per the Autopsy Surgeon who categorically opined that the deceased died a homicidal death due to the injuries inflicted on him by sharp cutting weapon like Ramdao. 53. As regards submissions that there was no evidence of the offence under Section 201 of IPC as against three other accused persons besides the accused Amar Mondal, we are of the opinion that the evidence of the prosecution witnesses and the documentary evidence being the seizure list as to the recovery of weapons etc. 53. As regards submissions that there was no evidence of the offence under Section 201 of IPC as against three other accused persons besides the accused Amar Mondal, we are of the opinion that the evidence of the prosecution witnesses and the documentary evidence being the seizure list as to the recovery of weapons etc. are the clear circumstances to bring home the offence punishable under Section 201, IPC against the accused persons. 54. In the context of what has been discussed above and giving an anxious consideration of the facts and circumstances of the instant case and the finding of the learned Trial Judge in the impugned judgment, we do not find any ground to interfere into the same as the judgment is not devoid of any merit. 55. In the result, appeal fails and is dismissed. 56. Let the Lower Court Record together with a copy of this judgment be sent down to the learned Trial Court for information and necessary action. 57. Urgent certified photocopy of this judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities. Rajiv Sharma, J. : I agree.