01. This is an appeal by the convict, hereinafter referred to as the appellant, from the judgment and order of conviction and sentence dated 07.07.2014 delivered in Case No.S.T. (T-1) 30 of 2014 by the Additional Sessions Judge, Court No.2, West Tripura, Agartala. By the said judgment the appellant has been convicted under Section 302 of the IPC and sentenced in pursuance thereof, to suffer imprisonment for life and to pay a fine of Rs.5,000/- (five thousand) with default stipulation.
02. By the written complaint dated 30.10.2013 [Exbt.1] one Bishnupada Das (PW-1) had revealed to the Officer-in- Charge, Ranirbazar Police Station, West Tripura, Agartala that his elder brother namely Gurupada Das went to look after his rubber garden and paddy field at Lembucherra and there he had found that the appellant was sowing banana saplings over his elder brothers land along with his mother namely Putulrani Saha. When Gurupada (the deceased) asked why the appellant was sowing the saplings in his land, they broke out a quarrel between them. One Ramesh Majumder informed the informants younger sister namely Namita Das (Debnath) about the said quarrel and the informants younger sister proceeded with haste towards that place, but when she was proceeding towards this place she found the appellant with dao in his hand was coming out of the land of his elder brother pushing a bicycle forward along with his mother, Putulrani Saha. The informants sister asked Putulrani about their elder brother but she told that she did not know anything. When the informants sister with her two sons searched for their elder brother they found that his body was lying in a well beside the land. They immediately informed the police. The police came and lifted the body. The informant has further revealed that over the body there were marks of injuries caused by sharp cutting weapon on injuries. There were injuries on the face and the forehead. The appellant according to the informant had killed his elder brother by hacking and threw the body in the well having been aided by his mother Putulrani Saha. Even it has been stated that Nitai Saha, the cousin of the appellant was also involved the said incident.
03. On the basis of the said complaint, Ranirbazar P.S. Case No.57 of 2013 was registered under Section 302/201/34 of the IPC was registered and taken up for investigation. On completion of the investigation the police report was filed under Section 302 and 201 of the IPC. The police papers were committed to the court of the Sessions Judge, West Tripura, Agartala, but in the course of time the said case, registered as S.T. (T-1) 30 of 2014, was transferred to the court of the Addl. Sessions Judge, West Tripura, Agartala, Court No.2. On taking cognizance in due course, the charge was framed under Section 302 and 201 of the IPC. But the appellant pleaded innocence and claimed to be tried in accordance with law.
04. The prosecution in order to substantiate the charge adduced as many as 20(twenty) witnesses and introduced 14(fourteen) documents including the inter-divisional report [Exbt.7], post-mortem report [Exbt.10] and report of viscera [Exbt.11] etc. On recording the prosecution evidence, the appellant was examined under Section 313 of the Cr.P.C when he reiterated his plea of innocence by describing incriminating evidence as surfaced on the record of evidence as falsified against him. Thereafter, having appreciated the arguments placed by the learned counsel for the prosecution and the defence and by the impugned judgment, the trial court returned the finding of conviction under Section 302 and 201 of the IPC. To return the said judgment of conviction, the trial court has distinctly observed as follows:
"The entire circumstantial evidence which as proved by the prosecution if chained together lead to a definite conclusion unerringly pointing to the guilt of the accused Bhajan Saha and there is no other hypothesis than that of the guilt of the accused."
05. Mr. R. Datta, learned counsel has made a robust attempt to demonstrate before this court that the appreciation of the circumstantial evidence has turned out to be grossly erroneous. According to him, no chain could be established by the prosecution by the circumstantial episodes to establish to the hilt that it is none but the appellant has committed the said offence. Mr. Datta, learned counsel has further submitted that to substantiate the prosecution case, the prosecution has used the evidence of leading to discovery inasmuch as the dao which was believed to be used in the commission of offence was recovered from a jute bag from the house of the appellant, on discovery by the appellant and on production of the same to the Police Officer who seized the said dao.
06. Mr. R. Datta, learned counsel has submitted that there is no evidence also that the said dao was used to murder the elder brother of the informant. He has further stated that even though the blood stained earth and the said weapon of offence were seized on the very day of the occurrence, but those were sent to the Forensic Science Laboratory so belatedly that the integrity of the samples can be questioned and hence the forensic report is of no value. He has further submitted that there is a serious discrepancy between the first disclosure about the offence as disclosed by way of written complaint [Exbt.1] and the oral evidence that has been led in the trial. He has submitted that in the trial PW-2 (Ramesh Majumder) who is an independent witness has given a version which is completely inconsistent to the version of PW-1. According to Mr. Datta, learned counsel, PW-1 has stated in the trial that PW-2 (Ramesh Majumder) on seeing the hot altercation went to the house of his sister Namita Das and informed her about the said matter. Namita immediately rushed to the paddy land with her two sons, namely Suman Das and Prakash Das who were quite grown up at the point of time and saw the appellant fleeing away from the paddy land carrying one dao and a spade in his hand. The mother of the appellant was found standing by the side of the paddy land when his sister inquired about her brother, she replied that she was unaware of.
07. PW-2 has stated differently. He has stated in the trial as follows:
"On 30.10.2013 at about 12-30 hrs. I was returning to my home and on the way I noticed that accused Bhajan was planting banana plant on the land of Gurupada Das. On the way I again found Gurupada Das was proceeding towards his land. I informed him about the incident and thereafter I went to my house, and informed one Namita Das the sister of Gurupada Das. At about 2/2-30 p.m. I came to know that Gurupada was murdered and accordingly I went to the paddy land when Namita was telling that she saw accused Bhajan Saha is killing her brother. The place of occurrence (paddy land) was at a distance of 2/3 cubits from the deep well."
He identified the appellant in the dock. No meaningful cross-examination has been carried out except to dig out that the distance between the rubber garden and the house of the PW-2 is of k.m.
08. Mr. Datta, learned counsel has further submitted that the seizure made by the investigating officer is completely illegal and the samples were not sealed for protecting their integrity. Mr. Datta, learned counsel has submitted that PW-3 Namita Das (Debnath) has stated in the trial that PW-2 informed her that he saw there was a hot altercation between her brother and the appellant. Having received the said information she rushed to the paddy field but before she could reach to that place she noticed the appellant rushing out from that place carrying one dao and a spade on his hand. When she asked about his brother he did not give any reply. Even appearing on the paddy field she could not find out her brother and on a rigorous search she found his body in a well. No meaningful cross-examination has been made. But he has stated in the cross-examination the well from where the corpus of her brother was recovered was an abandoned well. The suggestion as projected to discredit her examination-in-chief was denied by PW-3.
09. Mr. Datta, learned counsel has mostly basing on that evidence, submitted that this evidence cannot be relied for returning the finding of conviction. He has relied on a few decisions in support of his contention as made in the course of hearing. He has relied on a decision of the apex court on credibility of discovery under Section 27 of the Evidence Act in Sattatiya alias Satish Rajanna Kartalla v. State of Maharashtra reported in (2008) 3 SCC 210. It has been held there as follows:
"The next thing which is to be seen is whether the evidence relating to the recovery of clothes of the appellant and the half blade, allegedly used for commission of crime, is credible and could be relied on for proving the charge of culpable homicide against the appellant. In this context, it is important to note that the prosecution did not produce any document containing the recording of statement allegedly made by the appellant expressing his desire to facilitate recovery of the clothes and half blade. The prosecution case that the accused volunteered to give information and took the police for recovery of the clothes, half blade and purchase of handkerchief is highly suspect. It has not been explained as to why the appellant gave information in piecemeal on three dates i.e. 3.10.1994, 5.10.1994 and 6.10.1994. Room No.45 of "Ganesh Bhuvan" from which the clothes are said to have been recovered was found to be unlocked premises which could be accessed by any one. The prosecution could not explain as to how the room allegedly belonging to the appellant could be without any lock. The absence of any habitation in the room also cast serious doubt on the genuineness and bonafides of recovery of clothes. The recovery of half blade from the road side beneath the wooden board in front of "Ganesh Bhuvan" is also not convincing. Undisputedly, the place from which half blade is said to have been recovered is an open place and everybody had access to the site from where the blade is said to have been recovered. It is, therefore, difficult to believe the prosecution theory regarding recovery of the half blade. The credibility of the evidence relating to recovery is substantially dented by the fact that even though as per the Chemical Examiners Report the blood stains found on the shirt, pant and half blade were those of human blood, the same could not be linked with the blood of the deceased. Unfortunately, the learned Additional Sessions Judge and High Court overlooked this serious lacuna in the prosecution story and concluded that the presence of human blood stains on the cloths of the accused and half blade were sufficient to link him with the murder." [Emphasis added]
10. In Sattatiya (supra) the half blade was recovered from the roadside from beneath a wooden board and the apex court, as the said half blade was recovered from an open place where everybody had an access did not believe that recovery inasmuch as it has been observed that the credibility of the evidence relating to recovery was substantially dented by the fact that even though as per the Chemical Examiners Report the blood stains found on the shirt, pant and half blade were those of human blood and the same could not be linked with the blood of the deceased.
11. Mr. Datta, learned counsel has relied on a decision of the apex court in Navaneethakrishnan v. State by Inspector of Police reported in AIR 2018 SC 2027. The said decision has been pressed on the same aspect on discovery of the fact. Having referred to Section-27 of the Indian Evidence Act which incorporates the theory of confirmation by subsequent facts i.e. the statements made in custody are admissible to the extent that they can be proved by the subsequent discovery of facts. It is quite possible that the content of the custodial statements could directly lead to the subsequent discovery of relevant facts rather than their discovery through independent means. Section 27 of the Evidence Act provides as follows:
"How much of information received from Accused may be proved. Provided that, when any fact is deposed to as discovered in consequence of information received from a person Accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
12. The said provision permits the derivative use of custodial statements in the ordinary course of events. There is no automatic presumption that the custodial statements have been extracted through compulsion. In short, there is no requirement of additional diligence akin to the administration of Miranda warnings. However, in the circumstances, where it is shown that a person was indeed compelled to make statements while in custody, relying on such testimony as well as its derivative use will offend Article 20(3). In this perspective, in Navaneethakrishnan (supra) the apex court having due reference to this previous decisions has observed as follows:
"20) In this view, the information given by an accused person to a police officer leading to the discovery of a fact which may or may not prove incriminatory has been made admissible under Section 27 of the Evidence Act, 1872. Further, in Selvi (AIR 2010 SC 1974) (supra), this Court held as under:
264. In light of these conclusions, we hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted in accordance with Section 27 of the Evidence Act, 1872.
21) In Madhu v. State of Kerala (2012) 2 SCC 399, this Court while discussing the mandate of Section 27 of the Evidence Act held as under:
49. As an exception, Section 27 of the Evidence Act provides that a confessional statement made to a police officer or while an accused is in police custody, can be proved against him, if the same leads to the discovery of an unknown fact. The rationale of Sections 25 and 26 of the Evidence Act is, that police may procure a confession by coercion or threat. The exception postulated under Section 27 of the Evidence Act is applicable only if the confessional statement leads to the discovery of some new fact. The relevance under the exception postulated by Section 27 aforesaid, is limited " as relates distinctly to the fact thereby discovered.". The rationale behind Section 27 of the Evidence Act is, that the facts in question would have remained unknown but for the disclosure of the same by the accused. The discovery of facts itself, therefore, substantiates the truth of the confessional statement. And since it is truth that a court must endeavour to search, Section 27 aforesaid has been incorporated as an exception to the mandate contained in Sections 25 and 26 of the Evidence Act.
22) Section 27 of the Evidence Act is applicable only if the confessional statement leads to the discovery of some new fact. The relevance is limited as relates distinctly to the fact thereby discovered. In the case at hand, the Yashika Camera which was recovered at the instance of Accused No. 3 was not identified by the father as well as the mother of the deceased. In fact, the prosecution is unable to prove that the said camera actually belongs to the deceased-John Bosco. Though the mobile phone is recovered from A-1, but there is no evidence on record establishing the fact that the cell phone belongs to the deceased-John Bosco or to PW-8 as the same was not purchased in their name. Further, the prosecution failed to examine the person on whose name the cell phone was purchased to show that it originally belongs to PW-8 to prove the theory of PW-8 that he had purchased and given it to the deceased John-Bosco. Further, the material objects, viz., Nokia phone and Motor Bike do not have any bearing on the case itself. The Nokia phone was recovered from Accused No. 1 and it is not the case that it was used for the commission of crime and similarly the motor cycle so recovered was of the father of Accused No. 3 and no evidence has been adduced or produced by the prosecution as to how these objects have a bearing on the case. In fact, none of the witnesses have identified the camera or stated the belongings of John Bosco. The said statements are inadmissible in spite of the mandate contained in Section 27 for the simple reason that it cannot be stated to have resulted in the discovery of some new fact. The material objects which the police is claimed to have recovered from the accused may well have been planted by the police. Hence, in the absence of any connecting link between the crime and the things recovered, there recovery on the behest of accused will not have any material bearing on the facts of the case." [Emphasis added]
13. The very scheme of the Evidence Act makes the provision of Section 27 a proviso to Sections 25 and 26. This court in Amrit Choudhury v. State of Tripura reported in (2018) 1 TLR 550 as deliberated on the said aspect of law reiterated the Navaneethakrishnan (supra) by making distinction between the voluntary disclosure and a disclosure under compulsion. The reference has been made to State of Karnataka v. David Razario and Anr. reported in 2002 Crl. LJ. 4127 where the apex court had occasion to observe as under:
"The first question is whether the evidence relating to recovery is sufficient to fasten guilt on the accused. Section 27 of the Evidence Act is by way of proviso to Sections 25 to 26 and a statement even by way of confession made in police custody which distinctly relates to the fact discovered is admissible in evidence against the accused. This position was succinctly dealt with by this Court in Delhi Admn. v. Balakrishan (AIR 1972 SC 3) and Md. Inayatullah v. State of Maharashtra (AIR 1976 SC 483). The words "so much of such information" as relates distinctly to the fact thereby discovered are very important and the whole force of the section concentrates on them. Clearly the extent to the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. The ban as imposed by the preceding sections was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. If all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect. The object of the provision i.e. Section 27 was to provide for the admission of evidence which but for the existence of the section could not in consequences of the preceding sections, be admitted in evidence. It would appear that under Section 27 as it stands in order to render the evidence leading to discovery of any fact admissible, the information must come from any accused in custody of the police. The requirement of police custody is productive of extremely anomalous results and may lead to the exclusion of much valuable evidence in cases where a person, who is subsequently taken into custody and becomes an accused, after committing a crime meets a police officer or voluntarily goes to him or to the police station and states the circumstances of the crime which lead to the discovery of the dead body, weapon or any other material fact, in consequence of the information thus received from him. This information which is otherwise admissible becomes inadmissible under Section 27 if the information did not come from a person in the custody of a police officer or did come from a person not in the custody of a police officer. The statement which is admissible under Section 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information. It is now well settled that recovery of an object is not discovery of fact envisaged in the section. Decision of Privy Council in Palukuri Kotayya v. Emperor (AIR 1947 PC 67), is the most quoted authority for supporting the interpretation that the "fact discovered" envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. [See State of Maharashtra v. Danu Gopinath Shirde and Ors. (2000) Cri LJ 2301]. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered". But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Mere statement that the accused led the police and the witnesses to the place where he had concealed the articles is not indicative of the information given." [Emphasis added]
14. Another decision of this court in Nirmal Deb v. State of Tripura (the judgment and order dated 17.03.2016 delivered in CRL A (J) No.15 of 2014) has been relied. But the law there in has been decided fundamentally placing reliance on David Razario (supra) and hence this court would not make any elaborate reference of the said decision. More so, the relevant part of the said decision has been extracted before.
15. Mr. Datta, learned counsel appearing for the appellant has thereafter submitted that the delay in sending the weapon that was recovered from the residence of the appellant creates doubt in the authenticity of the process. Mr. Datta, learned counsel has further pointed out that by the seizure list dated 30.10.2013 [Exbt.9], on the following day of occurrence, one sharp cutting dao was seized from possession of the appellant, at the time of his arrest. The said dao was sent to Tripura State Forensic Laboratory, Narsingarh on 09.12.2013 as it transpires from the inter divisional report [Exbt.7].
16. Mr. Datta, learned counsel appearing for the appellant has referred a decision of the apex court in Amarjit Singh @ Babbu v. State of Punjab reported in 1995 Supp (3) SCC 217 where the apex court while on a different aspect, in respect of the delay in testing the weapon and regarding the sealing of the weapon at the spot has made the following observations:
"47. In Amarjit Singh @ Babbu v. State of Punjab, 1995 (Suppl.) 3 SCC 217, the Apex Court has held:
5. According to the learned counsel though this weapon was seized on 27-6-1990 but was tested by PW 4 only on 28-8- 1990 i.e. after about 2 months and there is absolutely no explanation for the delay in testing the weapon. The second infirmity pointed out by the learned counsel is that PW 3 after seizing the weapon never sealed the weapon at the spot. The third infirmity pointed out is that the Sub-Inspector of Police instead of sealing the weapon handed over it to one Chhabra Chunilal who had not been examined and who according to PW 3 used to visit the police station. The fourth infirmity is that Exs. P-2 and P-3 admittedly have not been sent to the armoury.
48. In the case on hand, from the report of the Sr. Scientific Officer, PW11 dated 17.12.2004 it appears that they received seized articles vide forwarding letter dated 27.08.2004 (Exbt-8 Series) while the incident occurred on 26/27.07.2004 at 0015 hrs and the dao & lungi were seized on 05.08.2004. In his examination-in-chief, he has not stated why he submitted the Page 21 of 23 report to the Director but he said that on the basis of the report the Director prepared his report dated 17.12.2004. The investigating officer has not shown any reason why the device was sent for testing the seized articles after a month. Further, there is no explanation for the delay caused in testing the weapon dao. The test report was prepared on 17.12.2004. Another serious infirmity, according to us, is that there is no evidence from PW15 that the articles were sealed at the spot."
Amarjit Singh (supra) does not lay any procedural principle as such, but it indicates to the aspects, which might surface material in accepting the authenticity of the forensic report, if it is established that after seizure of the weapon of offence, that was not sealed properly and in a belated stage, that was sent for the forensic test.
17. Mr. Datta, learned counsel has finally submitted that if the entire evidence is read cumulatively a prudent person will not believe that the appellant has committed murder inasmuch as the evidence is visited by serious missing links by snapping the chain that has been sought to be made complete by the prosecution.
18. From the other side, Mr. A. Roy Barman, learned Addl. P.P. appearing for the state has submitted that true it is that there is no direct evidence. But by linking the episodes of the circumstances the chain has been made complete and that chain demolishes the hypothesis of innocence of the appellant. Moreover, the objection as raised by the appellant was never put for comment by the relevant witnesses. Even no witness has stated whether the weapon of the offence, the spade and the sharp cutting dao at the time of their seizure was put under any sealed cover. Even no question was projected to the Forensic Science expert from the Forensic Science Laboratory as regard how they had received the material object which was sent to them for forensic examination. Mr. Roy Barman, learned Addl. P.P. has further submitted that the forensic scientists has categorically stated that the blood sample available in the sharp cutting dao and in the soil that was collected from the place of occurrence and the blood sample collected from the dead body did match and on examination, it was found that the blood group in all those samples was of the same group.
19. Having appreciated the submissions made by the learned counsel for the parties it will be apposite to visit the evidence recorded in the evidence both oral and documentary.
20. PW-1, Bishnupada Das who lodged the information [Exbt.1] has stated in the trial that Ramesh Majumder (PW-2) on seeing the hot altercation between the deceased and the appellant reported his sister namely Namita Das. Namita immediately rushed to the paddy land along with her two sons, Suman and Prakash. When they were entering into the paddy field they saw the appellant, Bhajan was rushing out from the paddy land carrying one dao and spade in his hand. Even the mother of Bhajan was found standing by the side of the paddy land. She started searching her brother and found to her dismay that his body was lying in a deep well beside the paddy land. Immediately, Namita informed the police. The police came to the spot and recovered the dead body of Gurupada Das (the deceased) from the deep well. PW-1 has further stated that he informed the occurrence by means of the complaint [Exbt.1]. He was also witness to the inquest procedure and signed on the report [Exbt.2]. No effective cross-examination has been done on the fact that he had revealed. However PW-2 did not support the part of the narrative he had communicated to PW-1.
21. PW-2, Ramesh Majumder has stated that on 30.10.2013 at about 12.30 hrs. when he was returning to his home he noticed the appellant was planting banana plant on the land of Gurupada Das. He had found Gurupada Das proceeding towards his land. PW-2 had informed the deceased about the appellant who was planting banana sapling. At about 2/2-30 p.m. he came to know that Gurupada had been murdered. When he went to the paddy land, Namita, the sister of the deceased told him that the appellant had killed her brother. No effective cross-examination could be made to the benefit of the defence plea.
22. PW-3, Namita Das (Debnath), the sister of the deceased has given her narrative in the trial. She has stated that one Ramesh Majumder came to her house and informed that there was hot altercation going on between her brother and Bhajan Saha. When she was about to enter into the paddy land, the appellant was found rushing out carrying one dao and spade on his hand. When she inquired Bhajan about her brother he did not give any reply. Later on, the body of her brother was recovered from a deep well. This witness has given one fact while describing that on 27.05.2014, the appellant came to her house and threatened not to depose in the court otherwise she would be killed like Gurupada. In the cross-examination when the suggestion was made to PW-3 that Ramesh Majumder (PW-2) did not inform her about any hot altercation nor did she notice any mark of injury on her brother, the witness had squarely denied the content and purpose.
23. PW-4, Papu Sutradhar is the witness to the seizure of one spade from a tilla land by preparing the seizure list [Exbt.3/1] He has not revealed anything in the cross-examination, but one important statement he has made is that he was not present in the tilla land when the spade was recovered.
24. PW-5, Braja Gopal Das, a police Constable, was the witness of seizure of the blood sample. He was the seizure witness of the blood sample of the deceased collected by the Medical Officer at Ranirbazar PHC in his presence.
25. PW-6, Mirtunjoy Reang has stated in the trial that on 11.11.2013 at about 1.40 hrs., the Police Officer seized the blood sample in a gauge from the accused. He identified his signature on Exbt.4/2. There is no cross-examination as such. But the witness are denial to the suggestion that no seizure was made.
26. PW-7, Rana Kishore Jamatia, a witness to seizure of some earth on preparing the seizure list [Exbt.5]. PW-8, Jagadish Debnath had witnessed the seizure of viscera and wearing apparels of the deceased. He has stated nothing material except admitting the seizure list [Exbt.6].
27. PW-9, Dr. Sabyasachi Nath, Forensic Expert working in the Toxicology Division of the State Forensic Science Laboratory had carried out the examination of blood stain detected on the exhibits marked by the Forensic Science Laboratory as D, E, F, G, H, I, J and K. He has stated that blood group of exhibits marked G and K could be determined as O group. Blood group of exhibit marked as F could be determined as O group. Blood group of exhibit marked as D was inconclusive. Blood group of exhibits marked as E could not be determined. The report [Exbt.7] has shown Exbt.D as the blood sample of the deceased whereas Exbt.E is the wearing apparels of the deceased. However, Exbt.F is the sample of blood of the accused, which has been determined in the process to be the blood group O. Exbt. G is the metal dao with wooden handle. Exbt.K is the sample of blood of the deceased from which the blood group O was determined. This description has been dilated by reading together the deposition of PW-9 with the inter divisional report [Exbt.7]. There was no cross-examination of PW-9.
28. PW-10, Gupta Kanda was the witness of recovery of the spade from the jungle at a distance of 40/50 metres from the deep well. He was also witness to the seizure of banana plants which was alleged to have been planted by the appellant. He identified his signature on the seizure list [Exbt.8]. There was no challenge in the cross-examination in respect of the recovery of the spade from a jungle as stated.
29. PW-11, Nityananda Debnath has stated in the trial that he saw the accused. On being brought by the police he had recovered a spade from the jungle at a distance of 40/50 metres from the deep well. Thereafter the said recovered spade was seized by the police in his presence and he signed in the seizure list [Exbt.3]. He was also witness to the seizure of the banana plants. There was no cross-examination of any consequence.
30. PW-12, Gourkrishna Debnath accompanied PW-3 in searching the deceased and after the said search they discovered the body of the deceased in the well. Immediately the police was informed and in his presence and in the inquest report he he had put his signature [Exbt.2]. He is witness to the inquest procedure. In the cross-examination, he has stated that he informed the police from his cell phone. Nothing more has been revealed in the cross-examination which can fortify in defence case.
31. PW-13, Ranjit Bhowmik is the seizure witness of the sharp cutting dao which was kept in one bag. He had signed the seizure list [Exbt.9]. In the cross-examination he has stated that such type of dao is available in the market. But his testimony could not be dented by the defence.
32. PW-14, Tinku Das is the another witness of seizure of the sharp cutting dao from possession of the appellant which was kept in one bag. He has identified his signature in the seizure list [Exbt.9]. He has also stated that the similar type of dao can be had from the local market.
33. PW-15, Dr. Ranjit Kumar Das had led the post-mortem examination as the Head of the Department of Forensic Science and Toxicology. PW-15 along with Dr. Prasenjit Das had conducted the said post-mortem examination of the deceased Gurupada Das. On examination they found the following ante mortem injuries on the body of the deceased and those are noted in the post-mortem report, as under:
1. 01 incised would measuring 6 cm X 0.9 cm X cranial cavity is present obliquely over the left side of forehead the laterated end of which is situated 4.5 cm above the outer canthus of left eye and medial end is 1.8 cm left to llabella and cutting through the scalp, frontal bone, underlying meninges and frontal lobe of left cerebral hemisphere. The incised would on the left frontal lobe is measuring 3 cm X 0.2 cm X 2 cm.
2. 01 incised would measuring 4 cm X 0.8 cm X 1 cm is present obliquely over left side of upper part of face which is situated 4 cm from midline and 1.4 cm below the outer canthus of left eye.
3. 01 incised wound measuring 3.5 cm X 0.3 cm X 1.5 cm is present on upper tip which is situated 01 cm lateral to midline and 02 cm below the left ala of nose.
4. 01 incised would measuring 05 cm X 0.9 cm X 0.5 cm is present on lower border of left jaw. Its medial end is 05 cm away from midline and lateral end is touching the anste of Mndible.
The cause of death in my opinion was head injury which was caused by the impact of moderately heavy sharp cutting weapon. However, Viscera has been preserved to rule out associated poisoning.
PW-15 has categorically stated that injury No.1 is sufficient enough to cause death in ordinary course of nature.
34. PW-16, Suman Kumar Chakraborty is another forensic expert who on examination, excluded presence of common organo phosphorous, Organo Chloro and Carbamative group of pesticides and benzodiazetines group of drug and eithyl alchohol. The report [Exbt.11] has been brought in the evidence. The suggestion that the deceased consumed alcohol was however not borne in the record.
35. PW-17, Dr. Ajitesh Paul is another forensic expert working the Tripura State Forensic Science Laboratory. On 09.12.2013 he received the sample, the recovered spade and [metallic blade with wooden handle] with soil-stain, marked as Exbt.6. Exbt.6 is the spade with wooden handle and metallic blade. PW-17 also examined one soil sample weighing about 326 grams Exbt.L, in connection with said case-Ranirbazar P.S. Case No.57 of 2013. On examination of trace of the soil, it was found that the spade with the wooden handle and metallic blade having soil stain. The result of the physical examination has been recorded in the report [Exbt.12]. The suggestion that was made that proper examination was not carried out, has been squarely denied by PW-17.
36. PW-18, Panna Lal Sen was the Officer-in-Charge in the relevant time and having received the information from one Gourkrishna Debnath recorded the said police case which was later on investigated. On termination of investigation, the police report was filed on the basis of the materials collected during the investigation. The complaint [Exbt.1] was received by him and on his direction investigation had started.
37. PW-19, Sri Malin Debbarma was the Police Officer who seized the viscera and wearing apparels of the deceased [Exbt.6/2].
38. PW-20, Jayanta Malakar was a Sub-Inspector of Police. PW-20 investigated the case, visited the place of occurrence and prepared the hand sketch map. He has stated that he carried out the investigation. In the course of the investigation, he prepared the site map, recovered the spade and the sharp cutting dao, seized the soil from the place of occurrence. After collecting the reports from the Forensic Science Laboratory in particular, the final police report was filed by PW-20. In the cross-examination, the defence could not derive any advantage to fortify their case. On the contrary, in respect of the vital part of the statement made in the examination-in-chief, there had been no cross-examination. Even the suggestion that was made that the dao was not seized from possession of the accused has been denied.
39. There is no dispute that there were several injuries including injuries that are stated to be ante mortem injury in the post-mortem report. Those injuries caused death of the deceased. It is pertinent to lay that in the appeal three fundamental questions in the form of objections have been raised by the appellant. Those are:
(i) Whether the circumstances are so conclusive with the innocence of the appellant is completely excluded?
(ii) Whether the seizure of sharp cutting dao carried the stain of blood falling in the O group had matched with the blood group of accused. Whether any definite conclusion can be drawn that these weapons were used by the appellant for killing the deceased whose blood group is found to be O group.
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Finally, whether the PW-2 who speaks of the first episode in the chain is a trustworthy witness or not? 40. Having regard to the materials as referred or discussed above, this court is of the view that the episodes if laid would complete a chain showing that it is the appellant and none but appellant had committed the murder of the deceased with deliberate intention. At this juncture, for purpose of making a reference to circumstantial evidence, this court would refer to a decision of the apex court in Padala Veera Reddy v. State of Andhra Pradesh and Ors. reported in 1989 Supp (2) SCC 706 where the apex court had occasion to observe as follows: "10. x x x x x x x x x x x x x x x (1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." 41. On appreciating the evidence, this court is of the view that PW-2 has clearly stated that he found the appellant planting the banana plants on the land of the deceased (Gurupada Das). He also saw Gurupada Das proceeding towards his land. He informed Namita, the sister of Gurupada. That part as well has not been cross-examined and in no manner, that was challenged. Later on, he however came to know that Gurupada was murdered. PW-3 had immediately rushed to the place of occurrence and when she was approaching the paddy field of the deceased she saw the appellant was rushing out from the paddy land belonging to the deceased carrying dao and spade in his hand. Dao was used for causing his injuries on many parts of the body of the deceased. That apart, blood falling O group was detected on the metallic part of the dao [Exbt.G] and the blood sample of the deceased was also of group-O. It is a riddle that the appellant has also the same blood group. But there is no defence plea that in the dao, the blood stain that was located for certain reasons was of the appellant. 42. By not taking such stand, the appellant cannot have any benefit out of the forensic result. Further, the soil seized from the place of occurrence had the blood stain. The blood stain was present in the spade, when that was seized. On examination by the SFSL found the blood group of the blood in the soil and the stain available in the spade belonged to the same blood group O. Therefore, when certain facts are established by evidence, the other facts, based on those foundations, can be presumed under Section 114 of the Evidence Act. Those episodes made it abundantly clear that it is the appellant and the appellant alone has committed the murder of the deceased inasmuch as PW-2 saw the appellant planting banana saplings on the land of the deceased and he had also seen the deceased was approaching towards his land. There was hardly any gap to probabilise the presence of any other assailant. On information from PW-2, when PW-3 rushed to the place of occurrence, she saw the appellant with sharp cutting dao and the spade in his hand was rushing out from the paddy land of the deceased. Thus the last seen together and the subsequent circumstances are compatible with the result of the forensic reports. If the testimonies, forensic science laboratory reports and the statements of witnesses are read cumulatively, it would emerge crystal clear that it is the appellant and the appellant only who had committed the murder of the informants brother and as such this court is of the view that the appellant has failed to make out any case for interference. Hence, the impugned judgment and order of conviction and sentence are affirmed. 43. In the result this appeal stands dismissed. The appellant shall serve out the remaining part of the imprisonment in terms of the order of sentence dated 07.07.2014. Send down the LCRs forthwith.