JUDGMENT :

CHITTA RANJAN DASH, J.

1. Both these appeals arise out of the judgment dated 31.07.2009 and order of sentence dated 01.08.2009 passed by Additional Sessions Judge, Fast Track, First Court, Siliguri in Sessions Trial No. 13/07 arising out of Sessions Case No. 23(5)07 convicting both the appellants under Section 302, 201 and 34 IPC and sentencing them thereunder.

2. The spot village is Gyan Jote under Kharibari P.S. in the district of Siliguri. Ranjana Tamang appellant in CRA 653 of 2009 is the widow of deceased Uddiman Tamang. Madan Thakur appellant in CRA 672 of 2009 who is a resident of Arjun Mahal, hamlet of Gyan Jote under Kharibari P.S. is alleged to have extramarital relationship with Ranjana Tamang and both of them are alleged to have committed murder of Uddiman Tamang and buried the dead body in the house of Uddiman Tamang two and half feet below the surface of the room.

2.1. PW-15, the Inspector of Police attached to Kharibari P.S. is the informant. On 05.03.2004 he had come to Arjun Mahal in connection with enquiry into Kharibari P.S. G.D.E. No. 157 dated 04.03.2004 (Exhibit 15) lodged by Madan Thakur. In course of such enquiry, Chandrika Shah (PW-10) informed him (PW-15) that Uddiman Tamang is missing since about three months and she (PW-10) suspects that his (Uddiman’s) wife, Ranjana Tamang and Madan Thakur might have murdered him.

2.2. PW-15 went to the house of Madan Thakur. He was not there. But Ranjana Tamang was there in Madan Thakur’s house. PW-15 enquired from her (Ranjana Tamang) about missing of her husband, Uddiman Tamang and asked her to take him (PW-15) and other police officials accompanying him to the place where Uddiman Tamang (deceased) was residing.

2.3. Ranjana Tamang took them to the spot house. Local villagers also assembled there. On reaching the spot house at Gyan Jote, PW-15 smelt foul odour coming from the room. They entered into the room by opening bamboo door (as described in the FIR about the door of the spot house). They found surface of the floor to be uneven and suspected some foul play. On being interrogated by PW-15, Ranjana Tamang disclosed that she and Madan Thakur murdered Uddiman Tamang and buried his dead body in the room below the earth.

2.4. PW-15 made arrangement for spade etc. from the house of Mangal Bhagat (PW-1). The floor was dug and a dead body was found. PW-15 then informed S.D.O., Siliguri requesting him to send an Executive Magistrate to be present at the time of exhuming the dead body. Accordingly, B.D.O. Naxalbari (PW-14) reached the spot and the dead body was exhumed. The dead body was identified by Ranjana Tamang to be that of her husband Uddiman Tamang. Thereafter PW-15 prepared the written complaint and sent the same to O.C in charge of Kharibari P.S. to lodge FIR against the accused persons under Sections 302, 201 and 34 IPC. The written complaint was sent through constable, Biswajit Das (not examined). PW-15 thereafter directed S.I., Bijoy Tamang, PW-16 to take up investigation of the case.

3. On the basis of the report lodged by PW-15, at first U.D. Case No. 7 of 2004 was registered and thereafter Kharibari P.S. Case No. 18 of 2004 under Sections 302, 201 and 34 IPC was registered. PW-16 on the instruction of PW-15 took up investigation.

3.1. In course of investigation he (PW-16) examined the witnesses, made incriminating seizures including the hammer (the alleged weapon of offence), controlled earth and wearing apparel of the deceased etc. sent the dead body for post-mortem through PW-2 (Constable) and also seized the visra etc. after postmortem on production by PW-2.

3.2. In course of investigation it also came to light that Baburam Tamang, son of Uddiman Tamang at about 3:30 P.M. on 12.12.2003 had lodged GDE No. 448 dated 12.12.2003 regarding missing of his father Uddiman Tamang since about 15 days vide Exhibit-13. It also came to light that on 30.11.2003 on the basis of report of S.I., Srimanta Barman (PW-9), GDE No. 1163 dated 30.11.2003 was registered