J.M. Srivastava, J.:-

This appeal is directed against the judgment and order dated 30.7.88 passed by the learned Additional Sessions Judge, West Tripura, whereby the appellant was convicted under Section 302/201 IPC and sentenced to R. I. for life and seven years respectively.

2. Briefly, the prosecution case was that Pankhi Rai Debbarma went to Padma Bill market to sell paddy on 29.11.84 but did not return home. Dilip Debbarma his son and some others had made search but could not find him. Dilip Debbarma and some others found by the side of the road in the jungle a nylon bag and tukri which Pankhi Rai Debbarma had carried to market and also found blood there. The matter was reported to police, at P. S. Kalyanpur on 4.12.84 where a general Diary entry was made and S. I. late R.K. Dutta took up investigation'. On suspicion due to some enmity, the appellant was taken into custody and as a result of information furnished, by him on 5.12.84 the dead body of Pankhi Rai Debbarma was discovered' from a well in jungle at the instance of accused appellant. He performed inquest over the dead body and sent it for post mortem examination. Investigating Officer R. K. Dutta inte­rrogated the witnesses and collected some blood stained earth, seized the bag and tukri. Investigation completed, charge sheet aga­inst the appellant and three others, was submitted.

3. At the trial before the learned Additional Sessions Judge, the accused pleaded not guilty. The prosecution in support of the charge examined two witnesses including PW-12 Dr. Pranbandhu Barma who had conducted post mortem examination on the dead body of Pankhi Rai Debbarma and PW-11 Mihir Kanti Das who conducted the investigation after the death of S. I. R. K. Dutta. The defence did not produce any evidence. On consideration of the evidence, the learned trial court held that the evidences of motive due to enmity and the statement made by the accused appellant before the invest­igating Officer admissible under Section 27 of the Indian Evidence Act, established the charge under Section 302 IPC against the app­ellant, who was accordingly convicted and sentenced as noted earlier. The other three accused were acquitted.

4. In appeal, Sri B. Das, learned senior Advocate appearing as amicus curiae assisted by Mr. A. Bhattacharjee, has submitted that there was hardly any evidence on record against the appellant to justify the findings of the learned trial court and hence in the absence of any evidence, the accused appellant was entitled to acquittal.

5. Sri M. Majumdar learned P. P., on the other hand, has justified the finding of the learned trial court.

6. We have considered the submissions for the parties and the evidence on record. We find that the only evidence available against the appellant was the statement which led' to the recovery of the dead body of the deceased Pankhi Rai Debbarma from a well in the jungle and some evidence of motive due to enmity. The other prosecution evidence of the witnesses related inter-alia to recovery of nylon bag', tukri from the jungle, recovery of the dead body from the well, seizure of articles, etc.

7. The FIR (Ext. P/12) in the case was lodged by late S.I.R. K. Das on 7. 12. 84. In our opinion, it cannot be considered as FIR, for the reasons that on the basis of the G. D. entry on 4. 12. 84 about the missing report of deceased Pankhi Rai Debbarma, the police had already commenced investigation, had taken the accused appellant in custody, the body of the deceased had been recovered, the material objects like the nylon bag, tukri, etc. had been seized and as such investigation having had already advanced, in our opi­nion, it shall not be proper to consider Ext. P/12 as first Information Report. As a matter of fact, it was the police version, dressed up as FIR and was not available as evidence for any purpose at all. We are, therefore, quite clear that Ext. P/12 cannot be conside­red as First Information Report under Section 154 of the Code of Criminal Proce

Click Here to Read the rest of this document