Arun Kumar Bhattacharya, J.@mdashThe present appeal is directed against the judgment and order of conviction and sentence passed by the Id. Additional Sessions Judge, 1st Court, Dakshin Dinajpur at balurghat in Sessions Case No. 132 of 2002 (Sessions Trial No. 39 of 2002) on 23. 08.2002.
2. Shortly put, the prosecution case is that Madhabi Mahato was a tenant under the defects complainant (P. W. 1) for the last four years at his house at Namabangi, P.S. Balurghat and her husband''s brother accused Naren Mahato used to come to her and stay there. On 04.03.2001 at about 10/11.00 a.m. the accused came to the said tenanted room. At about 12.00 hrs. on hearing a groaning sound from the tenanted room, defacto complainant went there but found the room closed from inside. He came to learn from Bishnu Mahato, young child to madhabi that accused Naren entered into the room taking Madhabi forcibly. On peeping through the window of the room complainant found Madhabi lying dead in a pool of blood on the floor and accused Naren inside. On hearing the shout raised by them the local people came and the matter was reported to the P.S. Police came, recovered the dead body and arrested Naren who confessed before them that he had killed Madhabi with a bolt of the door. Hence, the accused was charged u/s 302 I.P.C.
3. The defence case, as suggested to P.Ws. and as contended by the accused during his examination u/s 313 Code of Criminal Procedure is that no such incident took place. The accused did not commit murder of Madhabi nor he entered into the house on the date of incident nor he confessed his guilt before the complainant and others.
4. Twelve witnesses were examined on behalf of the prosecution while none was examined on behalf of the defence and after considering the facts, circumstances and materials on record, the Id. Court below found the accused guilty u/s 302 I.P.C convicted him thereunder and sentenced him to suffer imprisonment for life.
5. Being aggrieved by and dissatisfied with the said order of conviction and sentence, the accused has preferred the present appeal.
6. All that now requires to be considered is whether the Id. Court below was justified in passing the above order of conviction and sentence.
7. The vital witnesses in this case are P.Ws. 1, 2, 4 to 6, 9, 11 and 12, others being formal.
8. P.W. 1 Apurba Ranjan Sen (defacto complainant) on hearing a sound from the tenanted room of Madhabi on 04.03.2001 (wrongly type as 03.04.201) at about 11/11.30 a.m. asked Bishnu Mahato, son of Madhabi, to enquire about the said sound and when he in reply reported that the door was closed, they called Madhabi and getting no response, they dashed the door. He and neighboured on peeping through the window found Madhabi lying on her bed in injured condition and Naren standing in one side of the room. Somebody informed the matter to P.S. over phone. Police arrived and asked Naren to open the door and when Naren opened the door, on query by the police he confessed before them in presence of police that he murdered Madhabi by hitting her with "Dasha" (bolt). They including the police found the dead body of Madhabi with injuries on head and police then arrested Naren. He lodged an F.I.R. (Ext. 1) Which was scribed by Tapas Kumar Das (P.W. 3) according to his instruction, with the police. The police held inquest over the dead body of the victim, seized the said bolt and other articles from the room in their presence. The above evidence in Material particulars is corroborated by P.Ws. 2, 3, 5, 6, 7, 9 and 11. P.W. 2 Sabitri Sen, wife of P.W. 1, found accused Naren to enter into the tenanted room of Madhabi on the date of incident on 04.03.2001 at about 10/10. 30 a.m. At about 12.00 hrs. on hearing a groaning sound from the room of Madhabi they asked the son of Madhabi to enquire about his mother and in reply he informed that his father took her mother inside the room and the door was closed. They knocked the door but did not get any response and then on peeping through the window of the room they found Madhabi in injured condition with bleeding lying on the bad and Naren Mahato loitering inside the room. Neighbourers came and somebody informed the matter to police over phone. Police came to the spot and on being asked by police and other persons present the accused opened the door and confessed before them that he murdered Madhabi with the help of "Dasha" (bolt) (Mat Ext. I (coll.) She found bleeding injuris on the head of Madhabi. Inquest was held over the dead body of the victim in presence of her. Though in her cross-examination she deposed that since many persons came to her house after the incident, she felt uneasy and went to the house of Biswajit Chowdhury and she heard everything but did not see when public, police and other persons came to her house which is a bit deviation from her above evidence-in-chief, it does not affect the main part of her above evidence that on hearing a groaning sound from the tenanted room of Madhabi, they asked the son of Madhabi to enquire about his mother and on his information that his father took her mother inside the room and the door was closed, they knocked the door and getting no response they peeped through the window of the room and found Madhabi in injured condition with bleeding lying on bed and Naren loitering inside the room. P.W. 3 Tapas Kumar Das who scribed the FIR (Ext. 1), found the police to bring out the dead body of Madhabi from her room and accused arrested by police. P.W. 5 Rakhal Chandra Dey, a neighbourer, oh hearing a hue and cry came to the house of P.W. I on the date of occurrence at about 12.00 hrs. and on peeping through the window of the room of Madhabi, found Madhabi in injured condition with bleeding lying on a cot and the accused Naren inside the room. The accused confessed his guilt saying that he murdered his wife Madhabi with a ''Dasha'' (bolt) in presence of him, P.W. 1, police and others. He is a withness to the inquest as also seizure of three pieces of bolt (Mat Ext. I (Coll.). Similar is the evidence of P.W. 6 Rubi Dey, sister of P.W. 5. P.W. 9 constable Prafulla Das being accompanied by S.I. Ashis Deb (P.W. 11) had been to the P.O. on or 03, 2001, found the accused inside the room closed from inside, the accused to open the door of the room and to confess his guilt saying that he murdered a lady followed by his arrest and bringing him to Balurghat P.S. P.W. 10 S.I. Jogendra Mohan Changder started Balurghat P.S. case No. 83/2001 dated 04.03.2001 against the accused Naren Mahato on the basis of the FIR (Ext. 1) lodged by P.W. 1 and endorsed the case to S.I. Ashis Kumar Deb for investigation. P.W. 11 S.I. Ashis Kumar Deb on being requested by the duty officer A. S.I.M. Rahamat on 04.03.2001 to attend the case at Namabangi in the house of Apurba Ranjan Sen (P.W. 1) as he received a telephonic message from one Rubi Dey intimating that a tenant, Madhabi Mahato was murdered by her husband which was recorded in the GD, went to the spot at about 12/12.30 p.m. with S.I. Ganesh Sharma and home guard Pradip Bhowmick (P.W. 8), found, a gathering there, entered into the house of P.W. 1, found the door of the tenanted room of Madhabi Mahato closed from inside but the northern side of the room was open. Through the said, window he found a lady lying inside the room in bleeding condition and the accused loitering in the said room. After call for several times, the accused opened the door and came out from the room. He detained him in presence of public. P.W. 1 identified the said man as husband of Madhabi and his name as Naren Mahato. The accused confessed before him and other persons that he came to the tenanted room of her wife Madhabi from his native village on that date i.e. 04.03.2001 and he assaulted Madhabi with a wooden bit of that room after altercation with his wife P.W. 1 handed over a written complaint (Ext. 1) which was forwarded by him to Balurghat P.S. for starting a ease against the accused. On the basis of the said FIR, Balurghat P.S. Case No. 83/2001 dated 04.03.2001 u/s 302 I.P.C. was started against the accused by O.C. He arrested the accused, held inquest over the dead body of the victim in presence of witnesses, made arrangements for sending the dead body to hospital morgue for PM examination, seized three pieces of wooden bolt (Mar Ext. 1 (coll.) one bati (Ext. II) with a wooden handle in presence of accused and witnesses under a Section (Ext. 3/2), prepared a rough sketch map with index of the P.O. (Ext. 7), also seized the wearing apparels of the victim being produced by P.W. 8 Pradip Bhowmick on 05.03.2001 under another Section list (Ext. 6), forwarded the accused to the Court on 05.03.2001, examined witnesses, collected PM report and made over the case diary to O.C., Balurghat P.S. on account of his transfer. P.W. 8 carried the dead body of the victim and identified the same before the doctor at the time of PM examination. P.W. 4 Dr. R.N. Bhangia, M.O. of Balurghat District Hospital, on holding PM examination over the dead body of the victim on 05.03.2001 at about 14.25 hrs. found (1) deep laceration on pina of right ear, (2) laceration of 3"�2" �1/2" over right cheek and shaft of right mandible with fracture shaft of mandible, (3) superficial laceration with fracture of bridge of nose, (4) deep laceration on outer angle of right eye with ecchymosis on right eye-lid with rupture of right globe, (5) depressed fracture of right frontal bone 3" � 2" with deglobing of scalp in that area, (6) lacerated injury 5" � 2" " over the vault of skull, (7) signs of intracerebral haemorrhage over the right frontal parietal lobe and opined that death was due to haemorrhage and shock as a result of above noted injuries which were ante mortem and homicidal in nature and that the injuries on the head might have been caused due to hit with a piece of wood (Mat Ext. I (coll.)) for which the said wood might have been broken into pieces. P.W. 7 on hearing about the murder of Madhabi on 04.03.2001 found a person, who, as he came to learn, committed murder of Madhabi, was being escorted by police. He, however, failed to identify the accused. P.W. 12 S.I. Uday Sankar Mondal on taking up further investigation of the case on 24.07.2001 and finding on perusal of the CD that witnesses have already been examined and PM report had been collected, submitted charge-sheet against the accused u/s 302 IPC.
9. It will appear from the above that there is no direct evidence and the case rests upon circumstantial evidence alone, the circumstance being last seen together.
10. When a case rests entirely on circumstantial evidence, such evidence must satisfy three tests. First the circumstances from which an inference of guilt is to be drawn must be cogently and firmly established; secondly those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. Thirdly, the circumstances taken collectively 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.
11. In the present case, that P.W. 2 found the accused Naren to enter into the tenanted room of Madhabi on the date of incident at about 10/10.30 a.m., as deposed by her, there is no denial of it in her cross-examination. It is the evidence of both P.Ws. 1 and 2 that on hearing a groaning sound from the tenanted room of Madhabi, they asked Bishnu Mahato, son of madhabi to enquire and when he informed that the door was closed, they called Madhabi from outside and on getting no response they dashed the door and thereafter on peeping through the window of the room found Madhabi lying on cot with bleeding injury and the accused inside the room which was also seen by P. Ws. 5, 6, 9 and 11. It is the further evidence of P.W. 1 that on being informed about the matter by somebody over phone, the police came and on being asked by the police the accused opened the door which is buttressed by the testimony of P.Ws. 2, 9 and 11. P.W. 11 forwarded the FIR (Ext. 1) made over by P.W. 1 to him to the P.S. which is at a distance of about 2 km. (Ext. 6), for starting a case and accordingly Balurghat P.S. case No. 83/2001 dated 04.03.2001 u/s 302 I.P.C. was started against the accused at about 13.45 hrs. P.W. 4 on holding PM examination over the dead body of the victim found as many as aforesaid 7 injuries and opined that death was due to haemorrhage and shock as a result of those injuries ante mortem and homicidal in nature and that the said injuries on the head might have been caused by hitting with a piece of wood (Mat Ext. I) which broke into pieces on a hard object. No infirmity could be elicited from their cross-examination. No animus of those witnesses against the accused having been made out, it improbabilises the hypothesis of their false implication of the accused. Ordinarily the fact that the accused and deceased were last found together and failure of accused to explain the death is a strong circumstances pointing to murder by the accused. The cases of
12. As regards extra judicial confession made by the accused in presence of the witnesses that he committed murder of Madhabi with "Dasha" (bolt) of the door, as deposed by P.Ws. 1, 2, 5, 6, 9 and 11, though the same appears to be voluntary, it is inadmissible in evidence as it was made in presence of the police officer and as such his hit u/s 25 of the Evidence Act. The Phrase "accused of any offence" as occurring in Article 20(3) of the Constitution has been held to mean a person against whom a formal accusation relating to the commission of an offence has been levelled, as was held in the case of
13. Though the Prosecution is not to prove motive as it is known only to accused, as was held in the case of State of Haryana v. Sher singh, in a case where only circumstantial evidence is available, at the outset, one normally starts looking for the motive and opportunity to commit the crime. In the present case, the evidence of P.W. 1 reveals that the accused used to visit the tenanted room of the victim at an interval of 10/15 days and used to stay there for 2/3 days and off and on there was quarrel between them which leads to suggest a strained relation between them and it might have prompted the accused to commit the crime out of grudge. Motives of men are often subjective, submerged and unamenable to easy proof that the Court has to go without clear evidence whereon of other clinching evidence exists. Men do not act wholly without motive and failure to discover the motive of the offence does not signify the non-existence of the crime nor proof of motive is ever an indispensable factor foe conviction, as was held in the case of Ashok Kumar (Supra).
14. In the light of the above discussion, there being no infirmity with the decision of he Ld. Court below, the appeal be dismissed. The order of conviction and sentence passed by the Ld. Court below is hereby confirmed.
15. Alamats, if any, be destroyed after the period of appeal is over.
16. Let a copy of this judgment along with the LCR be sent down at once to the Ld. Court below.
Debi Prasad Sengupta J.
17. I agree.
