JUDGMENT

By Court The sole appellant before this Court against the judgment of conviction and sentence under Sections 302, 392 and 397 of the IPC.

2. Informant of the case is the brother of deceased. As per the FIR, on 20.12.2006, at 10.30 in the day time he received information that his brother Dhiren Chandra Mandal was lying in an injured condition by the side of road. When he came there, he found him dead with injuries over his head and neck. The assailants had decamped with his motorcycle. He further stated that about six months back the deceased was assaulted by Karim Khan and one Sher Mohammad Khan and they had threatened him from not treating patients in his area.

3. On the basis of the written report, Nirsa P.S. Case No.309/06 was registered under Sections 302, 394 and 411 of the IPC against unknown. During investigation, the looted motorcycle was seized on the basis of the disclosure statement made by this appellant. Charge sheet was submitted against the appellant and other three co-accused persons who were jointly put on trial for offence under Sections 396, 397 and 412 of the IPC.

4. Altogether 13 witnesses were examined on behalf of prosecution and relevant document including post-mortem examination report, written report and confessional statement of the appellant and seizure list were adduced into evidence and marked as exhibits. Learned trial court held that there was evidence only against this appellant and one Rashid Khan whose case was earlier separated and sent for enquiry by the Juvenile Justice Board. As the complicity of five persons was not proved, therefore, the appellant was acquitted of the charges under Sections 396 of the IPC and was convicted for offence under Sections 392, 397 and 302 of the IPC.

5. Judgment of conviction and sentence has been assailed on the ground that there is no direct eye witness to the incidence and the charge has not been proved on the basis of circumstantial evidence. P.W. 1 has turned hostile whereas P.W. 5, P.W. 6, P.W. 7, P.W. 8, P.W. 9, P.W. 10 and P.W. 11 are all hearsay witnesses. Learned trial court has drawn a presumption under Section 114(a) of the Evidence Act only on the basis of the recovery of looted motorcycle on the disclosure statement of this appellant.

6. Learned counsel on behalf of State has defended the judgment of conviction and sentence. It is argued that considering the nature of offence where the deceased was waylaid, robbed and murdered in cold blood, there cannot be any direct eye witness to the incidence. It will amount to placing unconscionable burden on the prosecution to prove the impossible, by seeking direct eye witness account, where the crime is committed after due planning. There is direct evidence that the appellant was seen fleeing with the motorcycle and on his disclosure statement, the said motorcycle was recovered. No explanation has been offered by the appellant with regard to his knowledge about the fact discovered on his disclosure statement.

7. Homicidal death of the appellant is objectively established by the Autopsy Surgeon (P.W. 13) who has proved the post mortem examination report (Exhibit 7). Bare perusal of the post mortem examination report shows multiple critical injuries on the vital part of the body on head and chest. The death was due to carnio-cerebrum skull injuries caused by heavy cutting weapon. On examination, following ante-mortem external wounds found over the person of the deceased:

I. Incised wound 3" x ½" x brain deep with brain matter coming out over left side of forehead with margin irregular and contused.

II. Incised wound 3¼" x ¼" x muscle deep at the level of 3rd and 4th cervical vertebra with edges irregular and contused.

III. Incised wound 3" x ½" x bone deep over left temporal mastoid part of skull with edges irregular lacerated and contused.

IV. Abrasion 3" x 2" over right side of forehead.

V. Abrasion 1½" x 1" over outer side of right eye.

VI. Abrasion multiple in an area of 1½" x 1" over dorsum of right hand