Crl.A. 16/2007 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY HON’BLE MR. JUSTICE U.B.SAHA Amitava Roy, J The appellants seek redress against the judgment and order dated 26.10.2006 passed by the learned Sessions Judge, Barpeta in Sessions Case No. 1 20/04. Thereby they have been convicted under Section 302/201/34 IPC and have be en sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 2,000/-, in default, to suffer rigorous imprisonment for one year each for the o ffence under Section 302 IPC. Following their conviction under Section 201 IPC, they have been sentenced to undergo rigorous imprisonment for a period of three years with a fine of Rs. 500/- each. Both the sentences were, however, ordered t o run concurrently. 2. We have heard Mr A Hai, learned counsel for the appellants and M r Z Kamar, learned Public Prosecutor, Assam. 3. By the FIR dated 12.10.2003 lodged by one Muzibor Rahman, P.W.1, the Officer-in-Charge of Kalgachia Police Out Post was informed that at about 4 p.m. on the previous day i.e. 11.10.2003 his minor nephew Babul Ali had gone mi ssing taking a cycle from home and that thereafter on the next day i.e. 12.10.20 03 at about 2 p.m. his dead body was found in the land of Wahed Ali at Mini Siml a ’Char’. The informant in the FIR expressed his suspicion against the accused/ appellants to be the culprits. That the cycle of the deceased was found near the reed beds of the house of Islam Ali was also mentioned. On the basis of the afo resaid FIR, Kalgachia Outpost made GD Entry No. 197 dated 12.10.2003, whereafter , Sorbhog P.S. Case No. 254/2003 under Section 302/201/34 IPC was registered. Ch argesheet was submitted on the completion of the investigation against the accus ed/ appellants under the aforementioned sections of law. They having denied the charge when framed also under Section 302/201/34 IPC, trial was conducted. The p rosecution examined nine witnesses including the Investigating Officer and the d octor who had performed the post mortem on the dead body. The statements of both the accused/ appellants were recorded thereafter under Section 313 Cr.P.C. in c ourse whereof they adopted the plea of total denial to the charge. They did not adduce any evidence in defence. Their conviction and sentence followed. 4. Mr Hai has urged that there being no eye witness to the incident , the conviction of the accused/ appellants is wholly based on suspicion and, th erefore, ought to be set aside in the interest of justice. According to Mr Hai, the circumstantial evidence sought to be relied upon by the prosecution was not unimpeachable to rule out any possible hypothesis of innocence of the accused/ a ppellants and, thus, the impugned judgment and order needs interference in the i nstant appeal. 5. Mr Kamar, on the other hand, has argued that the evidence of P.W .1, P.W.2, P.W.5 and P.W.7 when read with that of P.W.6, the medical witness pro ves the prosecution case beyond all reasonable doubt and, therefore, the convict ion and sentence of the accused/ appellant ought not to be interfered with. 6. In the above setting it is necessary, in order to appropriately appreciate the arguments advanced, to briefly sketch the evidence on record. P.W .1. Muzibor Rahman, the informant stated that on the day previous to the date of occurrence there was a quarrel between the deceased and the accused/ appellants pertaining to an immovable property. He deposed that on the date of the occurre nce the mother of the deceased disclosed to him that he (deceased) had been call ed away by the accused/ appellant Asgar from his house. As the deceased did not return, all of them searched for him and eventually detected his dead body near the house of the accused/ appellant Mainuddin in the midst of a jungle. This wit ness also stated about the presence of the accused/ appellants at the time of re covery of the dead body and that on seeing the party in search, they fled from t he scene. In cross-examination, this witness stated that at that point of time, amongst others, Ismile Hussain, Abdul Hamid, Hussain Ali, Jakir Hussain, Amzad Ali and Samsul Haque were also present. 7. P.W.2, Abdul Hamid stated that he had heard that on the date of the occurrence the accused/ appellant Asgar had called away the deceased from hi s house by stating that his (deceased) cow had damaged his (accused/appellant As gar) cultivation. He claimed to be a member of the party which had gone out in s earch of deceased Babul. The search continued in the night of the occurrence and on the next day the dead body of Babul was found near the house of accused/appe llant Mainuddin. He reiterated that at that point of time the accused/appellants fled away from the scene. This witness in his cross-examination stated inter al ia that the deceased and the accused/appellants were of equal age and were stude nts. He also stated to have heard that on the day prior to the occurrence there was an altercation between the accused/ appellant Asgar and the deceased. 8. P.W.3, Ismile Hussain deposed that the mother of the deceased on the date of the occurrence had come to his house in search for him and on seein g his (deceased) cycle thereat asked him to bring back the cycle to home, which he did. This witness stated that at about 9/9.30 in the morning of the next day the dead body of Babul was recovered and on hearing commotion from the site he r eached there. He, however, candidly expressed that he was not aware as to who ha d killed Babul. 9. P.W.4, Hussain Ali, a neighbour of the deceased stated that in t he evening of the date of occurrence the father of the deceased had come to him in search for his son. He stated that though search was conducted, the whereabou ts of Babul were not traceable. The witness stated that in the next morning he h eard hue and cry and on reaching the place from where the same had been coming, he found the dead body of Babul. He stated to have heard that as the cultivation of the accused/ appellants had been damaged by the cattle of Babul they had qua rreled with the latter. 10. P.W.5, Abdul Baten is the father of the deceased. He stated that on his return from the market on the date of the occurrence he was informed by his wife (P.W.7) that their son had been called away from home by the accused/ a ppellants and that thereafter he had not returned. The witness stated that thoug h he along with others searched for Babul he was not to be found on that day and that on the next day from the midst of the jungle his dead body was recovered. This witness stated that at that point of time he saw the accused/ appellants ty ing the dead body like a bundle and on seeing that sight he became senseless. In cross-examination, this witness stated that when he saw the accused/ appellants tying the dead body there were other persons with him. He denied the suggestion that this fact had not been disclosed by him to the police in course of the inv estigation. 11. P.W.6, Dr. Tilok Pathak noticed the following injuries on the de ad body: A male body of 14 years, rigor mortis present. Eyes closed. Mouth slightly open , not decomposed. Both knee dislocated and fracture exposing the fracture bones outside. Muscles are lacerated. Multiple fracture on the right femur bone. Multi ple fracture of the right humerous bone and radius and ulna. Muscles are lacerat ed. Ante-mortem blood clots found in and around injured tissues. All the injures are ante-mortem in nature. Ante-mortem blood clots were found in and around injured tissues. . According to this witness, the injuries as above were caused by a blunt heavy force and were ante-mortem. He proved the post mortem report, Exhi bit-3 and also stated that the death had occurred due to shock and haemorrhage a s a result of the injuries sustained. This witness was not cross-examined. 12. P.W.7, Mustt. Firoja Khatoon, the mother of the deceased reitera ted the evidence of her husband (P.W.5) in all essential particulars. Apart from mentioning that the cycle of her deceased son was found near the house of one I smile (P.W.3), she testified that thereafter she along with her husband and othe rs searched for Babul the whole night without any result. According to this witn ess, at about 9.30/10 in the next morning her husband (P.W.5) saw both the accus ed/ appellants carrying something and that seeing that sight he (P.W.5) became u nconscious. She also stated that the accused/ appellants then ran away from the place, whereafter, village people apprehended accused/appellant Asgar and handed him over to the police. 13. The evidence of P.W.8, Amzad Ali is not of much relevance. P.W.9 , Rejendra Mohan Singh, the Investigating Officer proved the FIR (Exhibit-1) as well as the inquest report (Exhibit-4). He also proved the seizure of the cycle of the deceased from his house vide Exbihit-2. Neither this witness was cross-ex amined on the material aspects of the incident and/or the charge, nor was he con fronted with the omissions made by P.W.5 and P.W.7 in course of their statements recorded under Section 161 Cr.P.C. 14. We have carefully examined the materials on record and have as w ell analyzed the arguments advanced. Admittedly, there is no eye witness to the incident. Be that as it may, P.W.1, P.W.2, P.W.5 and P.W.7 have corroborated eac h other to the effect that on the previous day to that of the occurrence, there was a quarrel between the accused/ appellants and the deceased in connection wit h some immovable property and that on the next day in the afternoon the accused/ appellant Asgar Ali had called away the deceased from his home, whereafter, he did not return. The dead body was, on the next day of the occurrence i.e. 13.10. 2003, recovered from a jungle located adjacent to the house of the accused/ appe llant Mainuddin. These witnesses were members of the party who had gone in searc h of the deceased and have consistently deposed that when the dead body was reco vered the accused/ appellants were found present nearby and that they on seeing the search party fled from the scene. Though P.W.5 and P.W.7 have additionally s tated that at the time of recovery of the dead body the accused/ appellants were found handling the same trying to bundle it, P.W.1 and P.W.2 did not state abou t the same. The defence though while cross-examining P.W.5 had suggested that th is piece of her testimony had not been mentioned before the police in her statem ent recorded under Section 161 Cr.P.C., it abstained from proving such omission on the basis of the Case Diary through the Investigating Officer. This incrimina ting piece of evidence of P.W.5 and P.W.7 vis-à-vis the accused/ appellants, the refore, has not been contradicted on the basis of the Case Diary and, thus, is a vailable for this Court for analysis and acceptance if found deserving. P.W.1 in particular had indicated presence, amongst others, of Ismile Hussain P.W.3; Abd ul Hamid, P.W.2; Hussain Ali, P.W.4 and Amzad, P.W.8 at the time when the dead body was recovered. 15. The evidence of P.W.1, P.W.2, P.W.5 and P.W.7 taken together, in our view, demonstrates a continuous chain of circumstances unmistakably pointin g towards the accused/ appellants to be the persons involved in the offence with which they have been charged. Though the weapon of assault has not been recover ed, the incriminating circumstances in succession, in our opinion, do not permit a conclusion in favour of the accused/ appellants. 16. Having regard to the totality of the evidence on record as notic ed hereinabove, we are of the unhesitant opinion that the impugned judgment and order does not warrant interference in the appeal. The same is upheld. 17. The appeal fails and is dismissed.