MAIN POINT
Even if recovery of dead body and other articles is under cloud, accused can be convicted on the basis of other circumstances against him.

JUDGMENT

L. NAGESWARA RAO, J.

This Appeal is filed against the judgment dated 22.03.2010 of the High Court of Judicature at Calcutta in Criminal Appeal No.326 of 2005 by which the conviction of the Appellant under Section 302 Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’) and sentence of life imprisonment by the Additional Sessions Judge, Fast Track 2nd Court, Siliguri in Sessions Trial No.03/04 dated 11.02.2005 was confirmed.

2. A decapitated body was found lying in the Chandmuni Tea Estate near Himachal Behar Abasan Project at 13:15 hours on 03.02.2004. On the basis of a written complaint made by Bhupendra Nath Singh (PW-12), the investigation commenced and the Appellant along with Hira Routh and Khogesh Bansfore were arrested.

3. During the course of investigation the statements of accused persons were recorded on 04.02.2004. The accused led the police to Chandmuni Tea Estate area where the cut head was found wrapped with the wearing apparel of the deceased Sambhu Mallick son of late Pandi Mallick of Kuli Para, Siliguri. It was found concealed with soil and dry leaves in a garden drain. The body and the head of the deceased were identified by his relatives. The decapitated body and the cut head were sent for post-mortem to the North Bengal Medical College and Hospital and the seized articles along with wearing apparel of the deceased were sent to the R.F.S.L., Jalpaiguri. The weapon used for the commission of offence was also recovered on the basis of the statement and disclosure made by the accused persons from a concealed place on 08.02.2004.

4. Charges under Sections 302/201/34 IPC were framed against all the three accused persons who pleaded not guilty and claimed to be tried. After a detailed consideration of the entire evidence on record, the Additional Sessions Judge, Fast Track 2nd Court, Siliguri found all the accused persons guilty of committing an offence under Section 302/201/34 IPC and sentenced them to suffer imprisonment for life. The Trial Court relied upon the testimonies of PW-3, PW-4 and PW-5 who are the family members of the deceased – Sambhu Mallick in its detailed discussion of oral evidence. PW-3, the wife of the deceased deposed that her husband was a sweeper by profession and at about 02:00 pm on 02.02.2004 the three accused persons and the father of Dilip Mallick came to their house and asked the deceased to accompany them for cleaning a safety tank. The Appellant took the cycle of deceased Sambhu Mallick and carried him on the cycle. As the deceased did not return home, PW-3 started searching for him in the evening. She went to the house of the Appellant and was informed by the Appellant’s father that her husband and the Appellant went to clean a safety tank. The deceased did not return home that night. She met the Appellant on the next day morning and enquired about her husband. The Appellant asked her to go to Matigara Police Station. PW-3 deposed that she went to the Police Station but did not find him there. On 04.02.2004 she came to know about a beheaded body near Chandmuni Tea Estate area. It was identified to be that of her husband by her mother-in-law and sister-in-law from his wearing apparel. PW-4 and PW-5 are the sister and mother of the deceased respectively who corroborated the evidence of PW-3.

5. The post mortem over the beheaded body and the cut head was conducted by Dr. U.B. Ray Chaudhary (PW-10) at North Bengal Medical College and Hospital. The post mortem report Exh. 11 which was issued by PW-10 shows that there were eight stab injuries on the chest, stomach and other vital parts of the body. It was stated in the post mortem report that proximal and distal part of the neck fitted snugly with each other and that the head and the rest of the body belonged to the same individual. PW-14 was the witness to the seizure list marked as Exh.17 in respect of recovery of an iron made Khukri used in the crime. It was approximately 13 inches in length with a wooden butt and w