IMPORTANT POINTS
Non-discharge of burden by accused u/s 106, evidence Act is sufficient to maintain conviction.
When IO investigates de hors FIR, non-examination of translator of FIR becomes irrelevant.
When body is identified as that of deceased, DNA test is not required.

JUDGMENT :

HEMANT GUPTA, J.

1. The present appeals arise out of common judgment dated November 25, 2011, maintaining conviction and sentence on the appellants for causing death of Netai Mohanta.

2. An FIR was lodged by Bhola Mohanta (PW-1), brother of the deceased, on December 28, 2004. The original FIR was lodged in Bengali language (Exh. 1), which was later translated in Nepali language. Bhola Mohanta (PW-1) in his statement has stated that his brother had gone to Rabom Power House at Lachung along with his family with the accused Ranjit Haldar to work as Carpenter. He further stated that his deceased brother, Netai Mohanta, was murdered by accused Ranjit Haldar along with his nephew Puran Bandhu Mondal and Mamta Mohanta, wife of the deceased. He also stated that the body of his deceased brother was buried inside the house at Rabom where they used to stay.

3. On the basis of his statement, the investigations were undertaken by Rinzing Palzor Bhutia (PW-15). He deposed that he availed the services of one Krishna Kanta Burman for translating the contents of FIR, lodged by Bhola Mohanta, from Bengali language to Nepali language. He visited the place of occurrence at the house belonging to one Jamyang Bhutia (PW-5) and prepared rough sketch map and also arranged to take photographs of the place of occurrence. Accused Mamta Mohanta was present at the place of occurrence who was brought by Bhola Mohanta (PW-1). The statement (Exh. 4) of accused Mamta Mohanta was recorded under Section 27 of the Indian Evidence Act, 1872(for short, ‘Act’). On the basis of statement, the dead body of deceased Netai Mohanta concealed underneath the wooden flooring at the place of residence was recovered after the flooring was removed. Dr. S.D. Sharma (PW12), a medical consultant of STNM Hospital, was also present at the time of recovery of dead body. The dead body was found packed in a gunny bag with its opening tied by a rope. The body has not decomposed but dried to certain extent as the weather condition at Rabom being cold. The dead body was identified by Ravi Deb (PW-3). The postmortem report is Exh. 27. The investigating officer took into possession one plane (randa), one local made ‘angethi’, one ‘batali’ (carpenter tool) and a lock. He also took into possession two gunny bags smeared with mud, two pieces of rope of different sizes from the place of occurrence.

4. Learned counsel for the appellants have vehemently argued that the original FIR was recorded in Bengali which was translated in Nepali but prosecution has not examined Krishna Kanta Burman who facilitated translation of the FIR from Bengali to Nepali. The prosecution has examined Kumar Tamang (PW-14) who has written the First Information Report as told by Krishna Kanta Burman. Still further, the FIR was not sent to the Magistrate, therefore, the first version in the FIR is not creditworthy. Since the foundation itself is shaky, the entire prosecution story is doubtful.

5. Learned counsel for the appellants relied upon the judgment in Sudam Charan Dash v. State of Orissa & Anr.((2014) 2 SCC 141) to contend that information to the Magistrate is necessary chain of events in the investigation. It is also argued that there is no evidence that the dead body recovered is that of deceased Netai Mohanta as there was no DNA examination conducted. The statements of witnesses in respect of identification of dead body are discrepant therefore, the prosecution cannot be said to have completed the chain of circumstances so as to convict the appellants.

6. It is also argued by the learned counsel for the appellants that appellants were not residing in the house at the time of recovery of alleged dead body, therefore, the prosecution has failed to prove that the house continued to be in possession of the appellants at the time of recovery of dead body.

7. The prosecution examined Jamyang Bhutia (PW-5) who deposed that he has given two rooms in his house on rent to Ranjit Haldar. He further deposed that he ha