JUDGMENT
Kalidas Mukherjee, J.
1. This appeal arises out of the judgment of conviction and sentence recorded by the Additional Sessions Judge, 1st Court, Bankura in Sessions Case No. 7 of July, 1988 corresponding to Sessions Trial No. 1 of March, 1990, convicting the appellants herein under Section 302/34 of the I.P.C. and sentencing each of them to suffer R.I. for life.
2. One Ramkrishna Singha lodged complaint with Raipur P.S. alleging that he married Amala Rani Singha, (widow), the eldest daughter of Tarit Kanti Singha on 7-2-1986 at Mahamaya Mandir at Raiptir in presence of priest and other witnesses. The marriage was held on consent of both the parties. On the next day i.e. on 8-2-1986 in the morning he and his wife came to the house at Chuagara and in the afternoon the brothers of his wife namely Shyamsunder Sinha, Subodh Chandra Singha and Subul Chandra Singha sons of Tarit Kanti Singha of Chuagara came and uttering abusive words, threatened to kill them. In this connection, he lodged a diary with the Raipur P.S. on the next day i.e. 9-2-86.
On 11 -2-86 at about 10 a.m. his wife went to Kangsabati Canal on the Southern side of his house for having her bath. At that time the informant was standing in the eastern side of his house and was talking to Bharat Chandra Mahato. After some time an alarm was raised and from some distance he saw that his wife Amala Rani was lying on the field of Harihar Singha situated in the Southern bank of Kangsabati canal and further saw that Sandhya and Dipali caught hold of Amala Rani. Subodh was armed with an axe. Shyamsunder was armed with lathi and Subul had a chopper in his hand. Subodh, Shyamsundar and Subul assaulted Amala with the weapons held by them. On being assaulted Amala became restless lying on the ground and then expired. After lodging of the F.I.R. the investigation was started and after completion of investigation the charge-sheet was submitted under Section 302/34 of the I.P.C.
3. The learned trial Judge upon consideration of the materials on record framed charge under Section 302/34 of the I.P.C. against the appellants herein to which they pleaded not guilty and claimed trial.
In the trial the prosecution examined as many as 17 witnesses including the informant, some witnesses of the neighbourhood, the Autopsy Surgeon and the I.O. After completion of trial the learned trial Judge passed the impugned judgment of conviction and sentence.
4. Learned P.P. Mr. Ashimesh Goswami has submitted that in the instant case there was marriage between P.W.1 and the deceased, and the fact that P.W. 1 being a widower married a widow, it gave rise to severe protest from the side of the accused persons as the deceased was the daughter of the family of the accused persons. Mr. Goswami has contended that keeping this fact in view, the evidence of the P.Ws. has to be scrutinised. It is the contention of Mr. Goswami that P.W. 1 and P.W.4 are the eyewitnesses from whose evidence it is crystal clear that Subodh’s family was involved behind the commission of the murder and it was Subodh who dealt the fatal blow and, as such, Subodh’s conviction and sentence should be sustained. As regards the place of occurrence Mr. Goswami contended that whatever might be the distance between the place where P.W.1 stood and the place of occurrence there is no ground to doubt the ocular version of the prosecution case. Mr. Goswami also put emphasis on the lodging of the G.D. which disclosed that the appellants gave out threat to P.W. 1.
The learned defence counsel Ms. Gomes has submitted that the prosecution could not prove motive behind the alleged murder as there is no evidence that P.W. I is the husband of the deceased and the priest did not at all support the alleged marriage. It is her contention that the evidence is contradictory about the place of occurrence and the P.W.1 and P.W.4 who are said to have seen the occurrence, they allegedly saw the occurrence from a distance of about 1 k.m. Ms. Gomes has further contended that there is contradictory evidence as to the weapon used and the seizure of the weapon and the evidence of the Autopsy Surgeon. In view of such inherent improbabilities Ms. Gomes submitted that order of conviction and sentence against the appellants cannot be sustained.
5. As regards the alleged marriage between P.W.1 and Amala Rani the priest P.W. 10 could not say if he had performed the marriage of anybody on 7-2-86. In the F.I.R. it has been stated that the marriage was held on consent of both parties. But P.W.2 Prafulla Mahato has stated that the members of the family of Amala’s father had no consent in the marriage and that Arnala married against the will of her brothers. We find that the alleged solemnization of marriage of P.W. 1 with Amala does not require our consideration because the prosecution has to prove beyond reasonable doubt that the appellants inflicted the assault on Amala and caused her death, as set-forth in the F.I.R. So we are to dwell on the merits of the prosecution case.
6. So far as the alleged place of occurrence is concerned, it is in the F.I.R. that the informant saw his wife lying in the field of Harihar Singha situated on the northern bank of Kangsabati canal. P.W.6 Kartik Singha has stated in cross-examination that to the north of village road there are jungle plots at a distance of about one mile and Police seized blood stained earth from the jungle plots. It is also in his evidence that the dead body was lying in the jungle not visible from out side. In view of the aforesaid discrepancy as to the location of the place of occurrence, it is clear that the prosecution has filed to prove the place of occurrence.
7. Regarding the ocular version of the prosecution case, Mr. Goswami has relied on the evidence of P.W.1 and P.W.4. The learned trial Judge also relied on the evidence of those P.Ws. P.W.3, P.W.5 and P.W. 11 were declared hostile. It is in the F.I.R that the informant (P.W. 1) was standing on the eastern side of his house and was talking to Bharat Chandra Mahato and on hearing the alarm he saw that his wife Amala Rani was lying on the field of Harihar Singha situated on the northern bank of canal. In the cross-examination P.W. 1 has stated that there is a village pathway on the north of his house and he was standing on that pathway when he heard the alarm of his wife. It is in his evidence that the place of occurrence was at a distance of 1/2 a k.m. from the place where he stood on the village pathway.
P.W.6 has stated that Kangsabati Canal is at a distance of one mile from village pathway where the house of P.W. 1 is situated and there are many houses between the road and the canal. Harihar Singha on whose land the dead body was allegedly lying has been examined as P.W.9. It is in his evidence that the place where the dead body was lying was on the north of the canal and the land adjacent to the canal belongs to him. He has stated further that plot No. 682 of that Mouza is on the north in the forest jungle, at a distance of one k.m. from the village road. It is therefore, clear that the alleged occurrence took place at a distance of 1 k.m. away from the house of P.W. 1, intervened by houses for which it can reasonably be said that it was not possible for P.W. 1 and P.W.4 to visualize the alleged infliction of assault upon Amala and this is an inherent improbability in the prosecution case.
8. As submitted by Ms. Gomes there is also discrepancy between the weapon allegedly used and the seizure of such weapons. In the F.I.R. it has been alleged that the accused persons had axe, lathi and chopper. P.W.1 in his evidence stated that Subodh was assaulting with axe, Shyamsundar was posing to assault with lathi and Subul was making gesture. P.W.4 has stated Subul had a katari and assaulted Amala with Katari. Thereafter P.W.4 has stated that Subul had an axe in his hand. The seizure witness P.W.7 has stated that Police recovered one axe from the house of accused and the handle of the axe was detached but the blade of the axe had got bloodstains. P.W.8 has staled that the accused persons produced axe from their ‘ghar’ and it was bloodstained. The seizure list has been marked as exhibit 3 wherefrom it appears that an axe was seized with wooden butt. So it is clear that there is serious discrepancy between the weapon used and the recovery of the weapon as per the seizure list. The most striking feature in this regard is that there is no report of F.S.L. as to the stains of blood or controlled earth. In the facts of the instant case the examination of the stains of blood assumes much importance and the non-examination thereof raises strong suspicion as to the veracity of the prosecution case. Mr. Goswami has submitted that the G.D. was lodged by the informant which goes to show that the appellants gave out threat to the informant and this fact of giving out threat points at the involvement of the accused persons in the commission of the alleged murder. It appears that the G.D. entry has been marked as exhibit 5 which shows that the informant only informed that the appellants threatened him with dire consequences in connection with old family dispute. This G.D. entry does not necessarily refer to the marriage between the P.W.1 and the deceased, and does not lend any support to the contention of Mr. Goswami that because of the marriage between P.W. 1 and Amala Rani, the accused persons got enraged and thereby gave out threats and thereafter committed the alleged murder. We find that the G.D. entry does not in any way come in the aid of the prosecution in proving the guilt of the appellants in commission of the alleged murder.
9. The Autopsy Surgeon P.W. 16 has found six injuries on the dead body. These are as follows:
i) One incised gaping wound 31/2″ x 11/2 bone placed more or less transversely over upper part of left side of neck. Interior end of the wound is l1/2″ to the left of the mid-line. On dissection it was seen to have cut across the skin, fascia, muscles of the part including left sterno-mastoid muscle, then cuts the blood vessel including external and internal cartoid arteries, external and internal jugular veins and finally ends by cutting the body of thyroid cervical vertebra through and through together the spinal chord.
ii) One incised wound 11/2″ x 3/4″ into muscle placed transversely over the left side of the neck at the junction of middle 1 /3rd with lower 1/3 of the neck.
On dissection it was seen to have cut through the skin, fascia, superficial muscle as well as superficial blood vessels.
iii) One incised wound 21/2″ x 11/2″ x bone placed slightly obliquely over upper part of the right side of the neck. The lower and the right end of the wound is 2″ to the right of midline whereas the upper and posterior ends is 4.2″ to the right.
On dissection it was seen to have cut through skin, fascia, muscles of the part including right sterno mastoid, blood vessels including external and internal jugular vein and finally ends by cutting through the body of the 4th cervical vertebra including spinal chord.
iv) Incised wound 21/2 x 1″ muscle placed slightly obliquely over anterior aspect of right shoulder.
v) Incised wound 1 1/2 x 3/4″ x muscle over the fronto lateral aspect of upper 1/3 of the right arm.
vi) Incised wound 2″ x 1/2 x muscle over the fronto medical aspect of middle 1/3rd of the right arm.
P.W. 16 has stated in cross-examination that injury Nos. 1 and 3 may not be caused by heavy sharp cutting weapon but must be caused by sharp cutting weapon. We are to bear-in-mind that axe is a heavy weapon which according to the testimony of P.W.16 might not have been used. It is also in his evidence that if katari has straight cutting end, such injuries might be caused but that is not possible if the edge is curved. We all know that katari is a curved weapon and as per the opinion of the autopsy Surgeon, injury Nos. 1 and 3 were not possible by means of katari. In the F.I.R. there is mention of axe, katari, chopper and lathi. P.W. 16 has further opined that injuries No. 1 and 3 might be caused after fall in a lying position and the rest in standing position and that no such injury Nos. 1 and 3 are likely to be caused by the axe without handle (material exhibit 1 shown to the witness) as the force required could not be thrust. From the evidence of P.W. 16 it is clear that the ocular version is at variance with the medical evidence. When there is such grave discrepancy as to the weapon used, and the injuries as found by the Autopsy Surgeon, it is bound to tell upon the veracity of the prosecution case.
10. After going through the impugned judgment passed by the learned trial Court, we find that the judgment of conviction and sentence is not at all based on sound reasoning rather we are constrained to hold that the learned trial Judge failed to appreciate the evidence from its proper perspective and jumped upon a conclusion. We find that there are not only serious contradictions in material particulars but also inherent improbability for which the prosecution evidence is not worthy of credence.
We hold that the prosecution has miserably failed to bring home the charge against the appellants and we, therefore, find merit in the appeal. The appeal is, therefore, allowed. The impugned judgment of conviction and sentence is set aside. The appellants are acquitted of the charge. They are discharged from respective bail bonds.
11. Let a copy of this judgment along with the L.C.R. be sent to the learned trial Court immediately.
12. Urgent Xerox certified copy, if applied for, be handed over to the parties as early as possible.
Alok Kumar Basu, J.
13. I agree.