Surai Murmu vs The State Of West Bengal & Ors

This appeal is directed against the judgment and order of conviction dated

October 18, 2006 and sentence dated October 19, 2006 passed by the learned

Additional Sessions Judge, Fast Track, 2nd Court, Paschim Medinipur, in

Sessions Trial Case No.LVII of April, 2001, convicting him for committing offence

under Section 302 of IPC as also sentencing the appellant to suffer rigorous

imprisonment for life and pay a fine of Rs.500/- in default to suffer further

simple imprisonment for one month. It was further mentioned that the appellant committed murder of his own father Biswanath Murmu. The provisions of law

under Section 25 of the Hindu Succession Act should be automatically

applicable. He would get set off against the period in custody he had already

undergone under Section 428 of Cr.P.C.

The backdrop of the prosecution case is discussed in a nutshell as follows:-

A letter of complaint dated September 14, 1995 was submitted by one

Srikanta Murmu (PW 1), who happened to be the brother of the appellant to the

Officer-in-Charge, Belpahari Police Station, Medinipur. PW 1 lodged the above

complaint on the basis of the information gathered from his mother. According

to the above letter of complaint, on September 13, 1995 at about 6 pm in the

afternoon the appellant, second brother of the de facto complainant (PW 1)

assaulted their father, Biswanath Murmu (victim) on his head with the help of a

sharp cutting weapon "Kural" (axe). There had been profused bleeding from the

place of injury of the aforesaid father of PW 1, who ultimately breathed his last at

about 7 pm on the same date. The place of occurrence of the above incident was

the residence of the victim situated at Vill.-Odolchua under Simulpal "Gram

Panchayat", District-Medinipur. The above letter of complaint was treated as

First Information Report to initiate Belpahari P.S. Case No.20/95 dated

September 14, 1995 against the appellant for commission of offence under

Section 302 IPC. The above case was handed over for investigation to Anadi Nath

Das (PW 12), a Sub-Inspector of police who was posted at Belpahari Police

Station, Jhargram, District-Midnapur, at the material point of time.

During investigation of the above case PW 12 visited the place of occurrence on September 14, 1995. The place of occurrence was identified by

PW 1. He prepared rough sketch map. The weapon of offence (axe) was seized by

him from the place of occurrence. Control earth and blood stained earth was

collected from the place of occurrence. Seizure lists of the above articles were

duly prepared. He also examined witnesses present at the place of occurrence

and recorded their statements under Section 161 of Cr.P.C.

Inquest report over the dead body of victim was prepared by the PW 12 on

September 14, 1995. The dead body of the victim was sent to the Jhargram

hospital, District-Paschim Medinipur for post mortem.

Dr. R.K. Satpati, Medical Officer of S.D. Hospital, Jhargram at the material

point of time, held post mortem examination in respect of the dead body of the

victim in connection with U.D. Case No.9 of 1995 dated September 14, 1995.

According to the post mortem report prepared by the PW 10, the cause of death

of the victim was shock and haemorrhage due to injuries mentioned in the above

post mortem report which were homicidal and antemortem in nature.

Charge dated July 23, 2003 was framed against the appellant for

committing offence punishable under Section 302 of IPC. After considering the

documentary and oral evidences, the learned Additional Sessions Judge, Fast

Track, 2nd Court, Pachim Medinipur passed the impugned judgment and order of

conviction and sentence against the appellant.

It is submitted by Ms. Meenal Sinha, learned Counsel appearing on behalf

of the appellant that the impugned judgment, order of conviction and sentence

are not sustainable in law:-

(i) The only eyewitness died during pendency of the trial. Her statement

which had been recorded under Section 164 of Cr.P.C. should not

have been taken into consideration by the learned Court below in

view of contradictions of those statements with other evidences.

Therefore, the case of the prosecution was based on circumstantial

evidence.

(ii) The place of occurrence of the incident was not proved. None of the

prosecution witness was present at the time of occurrence of the

incident. The examination-in-chief of the PW 2 does not speak of the

place of occurrence. He was declared hostile and prosecution was

permitted to cross-examine him. PW 4 and PW 7 were the local

witnesses but they simply saw a covered dead body.

(iii) The place of recovery of weapon of offence was not proved beyond

doubt. According to the evidence of PW 1 and PW 3, the weapon of

offence was recovered from the house of the deceased. But,

according to the seizure list, the weapon of offence was recovered

from the house of the appellant. Since the house of the accused was

not mentioned in the rough sketch map, the place of recovery of

weapon of offence could not be ascertained from the same. That

apart, FSL report was not collected.

(iv) PW 12 come to know from the PW 2 that his father had demanded

sell proceeds of the articles sold by the appellant in the market which

he refused to give to the deceased. There was an altercation in between the appellant and the deceased before the murder took

place. But the above incident of altercation in between the deceased

and the appellant was not corroborated with the evidence of any

other witness. Therefore, according to Ms. Sinha, there was no scope

to punish the appellant under Section 302 of IPC.

(v) There was enough time for sending the body of the deceased to a

hospital nearby on the date of occurrence of the incident. According

to the prosecution case, the incident took place in the afternoon on

September 13, 1995. The inquest of the dead body was done on

September 14, 1995 at about 9.30 am on the basis of the U.D. case

but the FIR was lodged on September 14, 1995 at 08.15 hrs. to

initiate Belpahari P.S. case no.20/95 dated September 14, 1995.

(vi) There was delay of considerable period of time in informing the police

about the incident.

(vii) The carbon copy of the post mortem report should not have been

taken into consideration by the learned Court below as primary

evidence.

(viii) Though the weapon of offence, seized control earth and blood stained

earth were sent for F.S.L. examination but the report was not

collected.

(ix) In the charge framed on July 23, 2003, the time and cause of death

of the father of the accused was not mentioned. So, it was not

sustainable in accordance with the provisions of Section 212 of Cr.P.C.

(x) There was a contradiction with regard to the evidence of PW 5 and

that of the PW 12. According to PW 5, she heard the shouting of her

mother-in-law, the wife of the deceased, with regard to killing her

husband by the appellant. But, according to the evidence of the PW

12, it was not disclosed before the PW 12.

(xi) The de facto complainant (PW 1) came to know the incident from his

mother. Reliance is placed on the statement of the mother recorded

under Section 164 of Cr.P.C. She died during the pendency of the

case. From the above statement of mother of the appellant no

incident of altercation in between the appellant and his deceased

father was evident. According to the above evidence, the appellant

was drunk at the time of occurrence of the incident. In view of the

above there was no scope of convicting the appellant under the

provisions of Section 302 of IPC.

Ms. Meenal Sinha relied upon the decisions of Arjun Biswas vs. State of

Assam, reported in 2005 CriLJ 554, Sashi Jena vs. Khadal Swain & Anr.,

reported in 2004(3) R.C.R. (Criminal) 338, Main Pal vs. State of Haryana,

reported in 2010 AIR (SC) 3292, Ajay Singh vs. State of Maharashtra, reported

in AIR 2007 SC 2188, Ashok Kumar Chaudhary & Ors. vs. State of Bihar,

reported in AIR 2008 SC 2436, Rajeevan & Ors. vs. State of Kerala, reported

in AIR 2003 SC 1813, Sarwan Singh Rattan Singh vs. State of Punjab, reported

in 1957 AIR (SC) 637, Jagtar Singh vs. State of Punjab, reported in AIR 1983 SC 463, in support of her above submissions.

According to Mr. Suman De, the learned Counsel appearing on behalf of

the State respondent, the mother of the appellant was an eyewitness. Her

statement was also recorded under Section 164 of Cr.P.C. but her evidence could

not be collected as prosecution witness due to her death during the pendency of

the case. Therefore, the presumption was in favour of the validity of her above

statement in accordance with the provisions of Section 80 of the Indian Evidence

Act. According to him, considering the area where the commission of offence

took place, the delay in informing the police about the incident was not

unreasonable. It is also submitted by Mr. De, that the guilt of the appellant was

proved on the basis of documentary and oral evidence including the statement of

the eyewitness (mother of the appellant) recorded under Section 164 of Cr.P.C.

According to him, the place of occurrence of the incident was identified by

PW 1 on the basis of the information obtained from his mother. She was the

eyewitness. It was corroborated by the evidences of PW 2, PW 4, PW 5 and PW 6.

According to the learned Counsel appearing for the State respondents the

weapon of office was recovered and seized from the house of the deceased. On

the basis of the evidence of PW 1, he had handed over the weapon of offence to

the Investigating Officer of the case (PW 12). According to the evidence of PW 6,

the appellant left the weapon of offence at the place of occurrence, the production

of the report of the forensic laboratory was not necessary.

It is submitted by the learned Counsel appearing on behalf of the State

that the motive of the appellant for committing the offence was proved from the statement of the PW 2 before PW 12 in course of investigation that the deceased

demanded sale proceeds of the vegetables sold in the market by the appellant

and there was an altercation in between the deceased and the appellant as a

consequence thereof immediately before the commission of offence by the

appellant. According to the evidence adduced by PW 6, he caught hold of the

appellant at the place of occurrence but he fled away. He also found the

deceased had fallen on the ground with an injury of his head causing profused

bleeding. According to him, the conduct of the appellant was in favour of the

commission of offence. He was absconding from the date of offence.

Subsequently, he was arrested on October 4, 1995 from the house of Fakir

Hembram in his presence P.P. Samanta (Assistant Sub Inspector of Police),

Sudhir Mohato (Home Guard) and Murali Chowdhury (Home Guard) were also

present there.

According to him, there was no scope of sending the body of the deceased

in the hospital in view of the fact that the deceased succumbed on the place of

occurrence.

It is also submitted by Mr. De, that the period of delay in informing police

authority was not unreasonable taking into consideration the location of the

house of the victim as also the time of occurrence.

It was submitted by him that a carbon copy of documentary evidence

prepared in the same mechanical process of the original one is acceptable as

primary evidence. According to him, in the instant case, no objection was raised

with regard to the production of carbon copy of the post mortem report in the trial. Therefore, there was no illegality in relying upon the above post mortem

report at the time of passing the impugned judgment.

According to Mr. De, the commission of offence was proved taking into

consideration the weapon of offence with blood stain on it, amongst other

evidences, and the post mortem report. Therefore, failure of collection of the

report of FSL for production of the same before the learned Court below would

not change fate of the trial.

It was finally submitted by him that the discrepancies pointed out on

behalf of the appellant were minor in nature and though the questions put to the

appellant in course of recording the statement under Section 313 of Cr.P.C. were

lengthy, the appellant was not prejudiced in any way.

We have heard the learned Counsels appearing for the respective parties

and we have considered the facts and circumstances of this case to examine the

propriety of the impugned judgment, order of conviction and sentence carefully.

The statements made by witnesses under Section 164 of Cr.P.C. could be

used for the purpose of corroboration or contradiction of the statements of those

witnesses in Court. In the decision of R. Shaji vs. State of Kerala, reported in

(2013) 14 SCC 266, it is observed in the event the defence has no opportunity to

cross-examine the witnesses whose statements are recorded under Section 164 of

Cr.P.C., such statements cannot be treated as substantive evidence and the

relevant portion of the above decision is quoted below:-

"28. Section 157 of the Evidence Act makes it clear that a statement recorded under Section 164 CrPC can be relied upon for the purpose of corroborating statements made by witnesses in the committal court or even to contradict the same. As the defence had no opportunity to cross-examine the witnesses whose statements are recorded under Section 164 CrPC, such statements cannot be treated as substantive evidence."

We find in this case that the widow of the deceased, who happened to be

mother of PW 1 (de facto complainant), informed the PW 1 that the appellant had

committed murder of the deceased. Her statement had been also recorded under

Section 164 of Cr.P.C., but she breathed her last before adducing evidence in the

trial. The learned Court below did not take into consideration that the learned

Magistrate who had recorded the above statement under Section 164 of Cr.P.C.,

was not examined as a prosecution witness.

In view of the above the commission of offence by the appellant is to be

examined on the basis of circumstantial evidences only. But the learned Court

below failed to appreciate that the PW 2 deposed in course of his examination-in-

chief that he could not say the cause of death of the deceased. No statement was

made by the above witness in course of his examination-in-chief with regard to

place of occurrence of the incident. Thereafter, he was declared hostile and the

prosecution was permitted to cross-examine the above witness.

We find substance in the submissions made by Ms. Meenal Sinha, learned

advocate appearing on behalf of the appellant that the place of occurrence of the

incident could not be proved on the basis of the evidences of PW 4 and PW 7.

Both of them saw the dead body under reference which had been covered/packed

before their arrival.

Regarding place of recovery of the weapon of offence, it is the settled

proposition of law that where an accused person is awarded conviction under

Section 302 of IPC on the basis of the circumstantial evidences, the Trial Court has to scrutinise the circumstantial pieces of evidence in a very careful, cautious

and meticulous way. Reference may be made to the decision of Chandran @

Surendran & Anr. vs. State of Kerala, reported in 1991 Supp (1) SCC 39 and the

relevant portion of the above decision is quoted below:-

"19. On a careful scrutiny of the evidence with regard to the recoveries of Mos 1 to 3, we are least impressed with the version of the prosecution that these recoveries clinchingly establish the guilt of the first appellant. Be it noticed that none of the recoveries was made in pursuance of any statement of the second appellant."

With regard to the place of recovery of the weapon of offence, according to

the evidences of PW 1 and PW 3, it was recovered from the house of the deceased.

According to seizure list, the weapon of offence was recovered from the house of

the appellant but taking into consideration the evidence of PW 1, we find that the

appellant was a resident of the house of deceased, who happened to be the father

of the appellant. Therefore, in absence of any discrepancy with regard to the

residence of the appellant, the same may identify in either way by the PW 1 and

PW 2. But, according to PW 6, the appellant left the weapon of offence at the

place of occurrence. According to deposition of PW 1, the Investigating Officer,

had collected the weapon of offence from the place of occurrence. According to

the deposition of the PW 1 in course of cross-examination, he handed over the

weapon of offence to PW 2. In view of the above discrepancy, the place of

recovery of the weapon of offence was doubtful. The learned Court below did not

take into consideration the above discrepancy.

According to the settled proposition of law that in order to prove commission of offence by assaulting the victim consequent upon a quarrel which

was of trivial nature with motive, it could be proved in a trial that the appellant

assaulted the victim with a knowledge that he was, likely to cause an injury

which was likely to cause death. Or in other words absence of pre- meditation

and malice and knowledge on the cause of death is the pre-condition of

convicting an accused under Section 302 of IPC. The above proposition of law

was decided by the Hon'ble Supreme Court in a number of cases. One of such

decision is that of Jagtar Singh vs. State of Punjab, reported in AIR 1983 SC 463

and the relevant portion of the above decision is quoted below:-

"8. The next question is what offence the appellant is shown to have committed? In a trivial quarrel the appellant weilded a weapon like a knife. The incident occurred around 1.45 noon. The quarrel was of a trivial nature even in such a trivial quarrel the appellant weilded a weapon like a knife and landed a blow in the chest. In these circumstances, it is a knowledge that inference that the appellant at least could be imputed with a knowledge that he was, likely to cause an injury which was likely to cause death. Therefore, the appellant is shown to have committed an offence under Section 304, Part II of the I.P.C. and a sentence of imprisonment for 5 years will meet the ends of Justice.

9. Accordingly this appeal is partly allowed. The conviction of the appellant for an offence under Section 302 I.P.C. and sentence of imprisonment for life are set aside. Appellant is convicted for having committed an offence under Section 304, Part II of the Indian Penal Code and he is sentenced to suffer R.I. for 5 years. Conviction of the appellant for an offence under Section 304 and the sentence imposed for the same are confirmed. Both the substantive sentences are directed to run concurrently."

Considering the deposition of PW 1 that he had been informed by his

mother that the appellant was in a drunken state and absence of any incident of

altercation there was discrepancy with regard to the question of pre-meditation of

the appellant as deposed by the PW 2 and PW 4. The deposition of PW 1 that

there was quarrel between accused and other family members created further discrepancy regarding pre-meditation of the appellant. The learned Court below

did not take into consideration the above discrepancy in the impugned judgment

as also convicting the appellant under Section 302 and sentencing him to suffer

rigorous imprisonment for life as also to pay fine.

According to the settled principle of law delay in lodging FIR is not

necessarily fatal to the case of the prosecution the Court has to consider the

effect of such delay taking into consideration the facts and circumstances of the

case in the light of the totality of evidences. In the decision of Kanhaiya Lal &

Ors. vs. State of Rajasthan, reported in (2013 5 SCC 655, the Hon'ble Supreme

Court took into consideration the facts and circumstances where mere delay in

lodging the FIR was not fatal to the case of prosecution. The relevant portions of

the above decision is quoted below:-

"12. Admittedly, there is no direct evidence connecting the appellants with the offence. No identification parade seems to have been conducted although PW 33 has deposed that he requested for an identification parade. Further, there is no evidence about the movement of these appellants near the scene either before or after the occurrence. Therefore, the inference of guilt of the appellants is to be drawn from circumstantial evidence only. It is needless to emphasise that those circumstances should be of definite tendency pointing towards the guilt of the appellants and in their totality must unerringly lead to the conclusion that the offence was committed by the appellants and none else. The circumstantial evidence adduced by the prosecution in the instant case is two fold:

(1) The recovery of Mos 1 to 3 said to have been made in pursuance of the statement of the first accused tot he police. (2) The evidence of PW 30, the Fingerprint Expert to the effect that the finger impressions found on the two glass pieces seized from the scene of the occurrence were found on comparison and examination as those of appellants 1 and 2.

13. As the appellants are awarded the extreme penalty of law only on the above two pieces of evidences, we have to scrutinise these two circumstantial pieces of evidence in a very careful, cautions and meticulous way and see whether this evidence can be accepted and acted upon to mulct these appellants with this dastardly crime. The fact that these two murders which are cruel and revolting had been perpetrated in a very shocking nature should not be allowed in any way to influence the mind of the court while examining the alleged involvement of the appellants. it is worthwhile to recall an observation of this Court in Datar Singh v. State of Punjab articulating that (SCC p. 275, para 3) "Courts of justice cannot be swayed by sentiment or prejudice against a person accused of the very reprehensible crime ...."

14. . . . . .

15. . . . . .

16. . . . . .

17. . . . . .

18. . . . . .

19. Thus, whether the delay creates a dent in the prosecution story and ushers in suspicion has to be gathered by scrutinising the explanation offered for the delay in the light of the totality of the facts and circumstances. Greater degree of care and caution is required on the part of the court to appreciate the evidence to satisfy itself relating to the explanation of the factum of delay. In Kilakkatha Rarambath Sas v. State of Kerala it has been observed (SCC p.557, para 20) that when an FIR has been lodged belatedly, an inference can rightly follow that the prosecution story may not be true but equally on the other side, if it is found that there is no delay in the recording of the FIR, it does not mean that the prosecution story stands immeasurably strengthened."

In this case the date and time of occurrence of the incident was September

13, 1995 at 19.00 hrs. (after sunset). It was reported to the police on the next

date, i.e. on September 14, 1995 at 8.15 hrs (after sunrise). Considering the

facts and circumstances in totality including the location of the residence, time of

arrival of the PW 1 (de facto complainant) at 20.00 hrs. on that date, we are of

the opinion that the time gap in between the occurrence of incident and lodging

complaint to the police station was not unreasonable. We need not interfere with

the impugned judgment on the above ground.

Under the provisions of sub-section (1) of Section 212 of Cr.P.C. contained

particulars as to time, place and person should be incorporated in the charge framed in a trial. The provisions of Section 212 of Cr.P.C. a charge should

contain such particulars as to the time and place of the alleged offence amongst

others but, according to Section 215 of Cr.P.C. no error in stating either the

offence or the particulars required to be stated in the charge, and no omission to

state the offence or those particulars, should be regarded at any stage of the case

as material, unless the accused in fact misled by such error or omission, and it

has occasioned a failure of justice.

With regard to the question of considering the failure of producing FSL

report as a missing link on the basis of which the chain of circumstances may be

presumed to be broken, it is the settled proposition of law that an accused

cannot be allowed to take the benefit of the above circumstances to claim that

the recovery of weapon of offence was doubtful and in addition thereto the non-

matching of blood groups was to be treated as a lacunae and not an independent

factor deciding the case. The above interpretation of the principle of law is

available in the decision of Sunil Clifford Daniel vs. State of Punjab, reported in

(2012) 11 SCC 205. The relevant portions of the above decision are quoted

below:-

"45. In John Pandian v. State this Court held: (SCC p. 153, para 57) "57. . . . The discovery appears to be credible. It has been accepted by both the courts below and we find no reason to discard it. This is apart from the fact that this weapon was sent to the forensic science laboratory (FSL) and it has been found stained with human blood. Though the blood group could not be ascertained, as the results were inconclusive, the accused had to give some explanation as to how the human blood came on this weapon. He gave none. This discovery would very positively further the prosecution case."

(emphasis added)

46. In view of the above, the Court finds it impossible to accept the submission that, in the absence of the report regarding the origin of the blood, the accused cannot be convicted, upon an observation that it is only because of lapse of time that the classification of the blood cannot be determined. Therefore, no advantage can be conferred upon the accused, to enable him to claim any benefit, and the report of disintegration of blood, etc. cannot be termed as a missing link, on the basis of which, the chain of circumstances may be presumed to be broken."

It appears from the deposition of PW 12 that though the viscera of the

victim and wearing apparels, blood stain, hair and offending weapon were sent to

FSL for examination, he could not collect the report of the same in spite of his

best effort. In view of the settled proposition of law we do not find substance with

regard to the submissions made on behalf of the appellant. Therefore, we are not

inclined to accept the submissions of the learned Counsel appearing on behalf of

the appellant that the fact of failure on the part of the respondents to collect the

report of FSL examination alone could vitiate the trial without taking the entire

evidences, both oral and documentary, as a whole.

With regard to the question of acceptability of carbon copy of the opinion of

expert as primary evidence in a trial, the provisions of Section 45 and 62

(Explanation 2) of the Indian Evidence Act, are relevant. Those provisions are

quoted below:-

"45. Opinions of experts. - When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting or finger impressions, the opinion upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts."

"62. Primary evidence - Primary evidence means the document itself produced for the inspection of the Court.

Explanation 1. - Where a document is executed in several parts, each part is primary evidence of the document;

Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.

Explanation 2. - Where a number of documents are all made by one uniform process, as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original."

The interpretation of the provisions of Section 32 and 62 (Explanation 2) of

the Indian Evidence Act, 1872, has been made by the Hon'ble Supreme Court in

the decision of Prithi Chand vs. State of Himachal Pradesh, reported in (1989)1

SCC 432, and the relevant portion of the above decision is quoted below:-

"4. The prosecutrix was examined by Dr. C.S. Vedwa, who had issued the medical certificate, Ext. P-E dated 16-6-1979. The medical certificate shows that the prosecutrix had not developed secondary sex characters, auxiliary and public hair were absent and there were abrasions of 3? x 1/8"

and 2? x 1/8" on the lumber region. She also found signs of inflammation around the vulva; the vagina was bleeding, the hymen was absent with the edges torn and there was tenderness all around. The hymen was bleeding on touch and the vagina admitted one finger with difficulty. The girl's salwar was bloodstained. It was taken in a sealed packed along with two slides and swabs. Unfortunately, this lady doctor who had delivered a child was not available for giving evidence as she had proceeded on long leave. The learned Sessions Judge felt that it would not be possible to secure her presence without undue delay, and therefore, permitted the prosecution to prove the certificate through PW 2 Dr. Kapila, who was conversant with her handwriting and signature, he having worked with her for about two years. He stated that the carbon copy of the certificate Ext. P-E as prepared by Dr. Vedwa by one process and bear her signature. The learned Counsel for the appellant contended that this certificate was inadmissible in evidence since the prosecution has failed to prove that the original certificate was lost and not available. Section 32 of the Evidence Act provides that when a statement, written or verbal, is made by a person in the discharge of professional duty whose attendance cannot be procured without an amount of delay, the same is relevant and admissible in evidence. Besides, since the carbon copy was made by one uniform process the same was primary evidence within the meaning of Explanation 2 to Section 62 of the Evidence Act. Therefore the medical certificate Ext. P-E was clearly admissible in evidence. That apart, there is strong, reliable and dependable evidence of the prosecution witnesses which clearly proves that the prosecutrix was raped by the appellant."

(Emphasis supplied)

After considering the proposition of law, we are of the opinion that the above principle is applicable in respect of interpretation of the provisions of

Sections 45 and 62 (Explanation 2) of the Indian Evidence Act.

In consideration of the facts and circumstances of this case, we find that

post mortem examination of the dead body under reference was held by PW 10 in

course of discharging his official function of the hospital concerned. According to

his deposition, he had prepared above post mortem report in carbon process with

original content his signature with official seal (Exbt.-4) as a whole. In view of

the above we are not inclined to interfere with the impugned judgment on the

above ground.

In view of the discussions and observations made hereinabove, we find that

the commission of offence was not proved taking into consideration any

eyewitness as discussed hereinabove. The statements made by the mother of the

appellant under Section 164 of Cr.P.C. was not proved. The prosecution was

under obligation to prove the commission of offence of the appellant on the basis

of the circumstantial evidence as discussed hereinabove. The learned Court

below was in error in arriving at a conclusion with regard to the recovery of the

weapon of offence and the place of such recovery thereof. The learned Court

below was in error in arriving at a conclusion of commission of offence by the

appellant with a motive behind it. Therefore, our intervention in respect of the

impugned judgment and order of conviction as also sentence is required for the

reason that the impugned judgment, order of conviction and sentence cannot be

sustained in law and the same are quashed and set aside.

Therefore, the impugned judgment, order of conviction as also sentence are quashed and set aside.

This appeal is allowed. The appellant is directed to be set at liberty

forthwith, unless wanted in connection with any other case.

Let the Lower Court's records be sent back expeditiously.

Urgent photostat certified copy of this judgment, if applied for, be given to

the parties, on priority basis.

I agree. ( Debasish Kar Gupta, J.)

(Md. Mumtaz Khan, J.)