Crl. A./8/2010 of Ranjit Haldar Vs State of Sikkim on 25 November 2011

r i l,,.

THE HIGH COURT 0F SIKKIM : GANGTOK

DATED : 25-11-2011

_CORA_M

HON'BLE THE ACTING CHIEF JUSTICEMR. JUSTICE S. P. WANGDI

Crl.A. No.06 of 2010

(Jail Appeal)

Mamta Mahanto,W/o Late Netai Mahanto,R/o Baro Danga,P.S. Dinahata, Dist. Cooch Behar,West Bengal.

... Appel'ant

versus

State of Sjkkjm,through the Chief Secretary,Government of Sikkim,Gangtok, East Sikkim.

... Respondent

Mr. N. Rai, Legal Aid Counselwith Ms. J\/oti Kharka, Advocate.

For Appellant

Mr. Karma Thinlay Namgya!,Additional rJ.ublic Prosecutor withMr. S. K. t...hettri, Assistant PubllcProsecutc,L Mr. D. K. Siwakoti,Mr. Thinlti.y. Dorjee Bhutia and Ms.Prathana Ghataney, Advocates.

rcjr F`espondent

Crl.A. No.08 of 2010

(Jail Appeal)

Ranjit Haldar,S/o Shri Santi Raiijan ;-1aldar,R/o Chhoto Nachina, Petla,P.S. Dinahata, Disl. Cooch Behar,West Bengal.

... Appe'Iant

versus

State of Sikkim,through the Chief Sc.rrptary,Governmeiit of SiL'l<iiT.iGanglok, East-S'il<.k'iiii.

... i€espondeiit

: Mr. S, S. Hamal, Legal AidCounsel with Mr. Tashi WongdiBhutia, Advocate.Counsel with Mr. Tashi WongdiBhutia, Advocate.

: Mr. Karma Thinlay Namgyal,Additional Public Prosecutor withMr. S. K. Chettri, Assistant PublicProsecutor, Mr. D. K. Siwakoti,Mr. Thinlay Dorjee Bhutia and Ms.Prathana Ghataney, Advocates.Additional Public Prosecutor withMr. S. K. Chettri, Assistant PublicProsecutor, Mr. D. K. Siwakoti,Mr. Thinlay Dorjee Bhutia and Ms.Prathana Ghataney, Advocates.

I ± E2 £ M E lit

Wangdi. ACJ.

These Appeals are taken up together as they ariseout of one charge-sheet and disposed of by a commonI.udgment of the Learned Sessions Judge, SpecialDivision - I, Sikkim at Gangtok dated 29-07-2010 in S.T. Case No.04 of 2010 (hereinafter referred to as the``impugned judgment'').

2//.J The prosecution case, shorn of all detailsrelevant for consideration in this Appeal, is that on 28-12-2004 a FIR was lodged by one Bhola Mahanto, P.W.1of Boro Danga, P.S. Dinhata, P.O. Petla, Dist. CoochBehar, W.B., whereby it was stated that his brotherNetai Mahanto, Carpenter by profession, who had goneto Lachen, North Sikkim, with his wife and two childrenalong with Ran].it Haldar, accused No.1, the appellant inCrl. A. No.08 of 2010 (hereinafter referred to as ``A1''),had been murdered by the said Ranjit Haldar, A1, Paran Mandol (juvenile accused), nephew of Ran].it Haldar, andMamta Mahanto, wife of the deceased, Accused No.2,the appeHant in Crl. A. No.06 of 2010 (hereinafterreferred to as ``A2'') and his body concealed under thewooden floor of their rented house at Rabom, NorthSikkim.

f/./-/ On receipt of the FIR, Chungthang P.S. CaseNo.6(12)2004 dated 28-12-2004 under Sections302/201/34 IPC was registered against the accusedpersons and investigation taken up.

(/-/./-) Upon investigation, it was revealed that Ran].itHaldar, Al also a Carpenter by profession hired by oneGatuk Lachenpa (P.W.6) of North Sikkim, had engagedthe deceased Netai Mahanto and two others as hishelpers. The deceased Netai Mahanto had taken his wifeand two children along with him to the place of workwhere they lived with A1, Ranjit Haldar, together in arented accommodation where eventually, Al and A2developed illicit relationship. Later, in the month ofAugust, 2004, Ranjit Haldar, A1, was engaged in thehouse of one Jamyang Bhutia (P.W.5) at Rabom,Chungthang, North Sikkim, where the deceased NetaiMahanto along with his wife A2 and children also accompanied and again started living in the same rentedaccommodation. The deceased Netai Mahanto gotsuspicious of his wife's infidelity and warned her. A2then informed of this to Al resulting in a conspiracybeing hatched between them to eliminate the deceasedNetai Mahanto. In furtherance to the conspiracy, in thenight of 25-11-2004 Al brought some alcohol andoffered it to deceased, Netai Mahanto and his nephew,Paran Mandol, the juvenile accused, but the deceaseddeclined to have the alcohol and preferred to have some``Chhang'', a local drink, and went to sleep. Al woke upat midnight and picking up a plane ``Randa" (carpentertool) hit the sleeping victim twice with it on his head inthe presence of A2, the wife of the deceased asking herto keep silent. Al then asked his nephew, ParanMandol, the juvenile accused, to get the rope lying inthe house with which he strangulated the unconsciousdeceased to death with the assistance of A2, MamtaMahanto and the juvenile accused Paran Mandol. Theypacked the dead body of the deceased in two gunnybags after tying the body and legs with the ropes. On26-11-2004, Al removed the wooden planks from thefloor of the room with an iron rod (Gaikhurey) takenwith the permission of mason, Ram Bdr. Rai, P.W.7,

from the store room of Jamyang Bhutia, P.W.5, andafter digging a pit measuring about 21/2 ft. x 3 ft. buriedthe dead body concealing it. They then replaced thewooden planks and burnt the rope used by them tostrangulate the deceased in an ``Aungiti" (portable localstove) and placed the ``Gaikhurey" back in the storeroom from where it had been taken. On the next day,i.e., 27-11-2004, the accused persons locked the rentedhouse and left for Lachen accompanied by two childrenof the deceased and stayed in the house of GatukLachenpa, P.W.6 in the rented room there for 4 days.Thereafter, collecting payment of Rs.2,000/-from GatukLachenpa, they went to Pakshek Busty where duringtheir halt A1, on being asked by the other carpentersworking there, informed them that the deceased NetaiMahanto had returned to his native viHage due to somemis-understanding with his wife. After a day's halt atPakshek Busty the accused persons left for their villagein Cooch Behar where Bhola Mahanto, the complainant,P.W.1, the brother of the deceased, enquired from A2about him and their two children. Inability of A2 ingiving a satisfactory explanation got the complainantsuspicious prompting him and other carpenters toproceed for Pakshek Busty taking A2 along with them.

On 28-12-2004, the Area Panchayat, Doma Lepcha,P.W.2, Pakshek Busty, asked A2 about her husband andpersuaded her to state the truth. A2 then confessedabout the entire incident before them resulting in themtaking A2 to Mangan P.S. and then to Chungthang P.S.where Bhola Mahanto lodged his FIR. The disclosurestatement under Section 27 of the Indian Evidence Act,1872, made by A2 led to the recovery of the dead bodyof the deceased Netai Mahanto from under the floor ofthe rented room of the accused at Rabom. AbscondingAl and the ].uvenile Paran Mandol were laterapprehended. The disclosure statement of Al underSection 27 of the Indian Evidence Act, 1872, led to therecovery of the ``Gaikhurey" used for removing thewooden planks and digging pit and the remaining part ofthe rope used for strangulating and tying up the body ofthe vlctim from the place of occurrence. Similarstatement of the juvenile Paran Mandol was alsorecorded.

On completion of the investigation, chargesheet was filed against Al and A2 and t:he accusedParan Mandol, later declared as a juvenile, underSections 302/201/34 IPC.

4. The Learned Sessions Judge, Special Division- I, having found pr/.rna fac;.e case under Sections302/201/34 IPC against Al and A2 framed chargesagainst them to which the accused persons pleaded notguilty and claimed for trial.

5. In order to substantiate their case, theprosecution examined 16 witnesses and on completionof the trial the Learned Trial Court found the accusedpersons guilty of the offences and by the impugnedjudgment convicted and sentenced them.

6fi.) Mr. N. Rai, Learned senior Advocate appearlngas Legal Aid Counsel for the appellant, Mamta Mahanto,A2 in Crl. A. No.6 of 2010, confined his arguments tothe case of A2 alone and submitted that the prosecutionhas failed to prove beyond reasonable doubt that A2 wasguilty of the offence under Sections 302/34 IPC as thecircumstantial evidence, appearing ln the record uponwhich the entire prosecutlon case was based, are suchas to establish that she had no role in t:he death of herhusband, deceased Netai Mahanto. In the first instance,Exhibit 1, the FIR written in the BengaH vernacularcannot be said to have been proved because one Krisha Kanta Burman, who as per the prosecution had helpedthe Investigating Officer in getting Exhibit 1 translated inNepali by rendering oral translation to the scribe KumarTamang, P.W.14, was not examined and no one elsecould read the contents of Exhibit 1 and, that theinvestigation of the case was taken up only on the basisof the translated version of the FIR. By referring to thestatement of P.W.2, Doma Lepcha, it was stated that inher cross-examination, she has clearly deposed that``accused No.2 told me that accused No.1 threatened herthat if she did not catch hold of the nose of herdeceased husband he would kill her also and so out offear she caught hold of the nose of her dead husband"and ``the accused No.2 also told me that after theincident accused No.1 told her that if she dlsclosedabout the incident to anybody he would kill her also".That by these as per Mr. Rai, two facts had clearlyemerged. Firstly, A2 had participated in the murder ofher husband under the threat of Al and that she had notdisclosed about the incidents for fear of her also beingkilled by him. Secondly, her participation in the murderhad no consequence as her husband was already deadwhen she under the threat of Al had held his nose. Thenext contention placed by Mr. Rai was that the case of the prosecution of her having made the disclosurestatement leading t:a t:ne discovery of the dead bodyfrorri the rented house was doubtful as it has come inthe evidence cjf P.W.8, Phucham Bhutia in her cross-examination that ``When the Police came to our house onthe relevant day I did not see the lady accused standingin t:he dock today since 5ht? did not come v\.Jith t.he PoHceto our residence. Wc. were told that she was in thevehicle since our house ls below the road and the vehiclehad been stopped on the road''. This stat:ement as perthe Learned Senior Counsel stands fully corroborated bythe answer given by A2 to question 24 while beinge}.amined under Section 31.3 of the Code of CriminalProcedure, 1973. For conven.ience, question 24 and theanswer thereto by A2 are reproduced below:-

"Q.24 It is furl.her in the evidence of pw 2that tnei.eafter she i-eceived an informatiori fromChunqthai`Ig Police Station that the dead body ofthe d+j`ieased Nitai Mahanta was to be recoveredand tor that p`Irpose her presence was alsorequested and the v`Ji[,ness went to tr`e hc`use ofa Bhutia gentlemen at Rabom, North Sikkimwhere the rlead body of the deceased NltaiMahar`ta was reported to be concealed after hismurder and on reaching the said house she sawPolice personnel, a doctor and a number of co-\Jillagers already assembled there. What have\ ,,.-`u to say?

Ans. I do 'ir,`.t. I(riow ;:is I w,js L'`epr inside thevehlcle.„

(ii) By reFerr.ing to the case. of sardar singh etc.etc. vs. State (Delhi Administration, Delhi) .. 1993CRJ.I,J. ]489, it was submitted that the evidence asregards the participation of A2 in the act of committingmurder being such as indicated above, charge underSections 201/34 IPC also cannot sustain, there being noevidence on the record that she had helped Al inconcealing or causing the evidence of the commission ofthe offence to disappear.

f/././.) It was then submitted that the Learned TrialCourt had committed an error in relying upon thedeals.Ion Of Smt. Basanti vs. State of HimachalPradesh .. AIR 1987 SC 1572 to arr.ive at theconclusion that A2 was guilty of the offence, beingclearly distinguishable on the facts of the present case.As per Mr. Rai, in the case of Smf, Basanf/. (supra)contrary to the present case, the fact of the accusedhaving made the statement under Section 27 of theEvidence Act leading to the recovery of the incriminatingarticles were established. It was then contended thatthe requirement of Section 34 IPC also was not satisfiedagainst A2 as the evidence reveal that criminal act onher part was clearly not in furtherance of the common intention with Al but caused by the fear of Al who hadthreatened her. Mr. Rai, summing up his submission,stated that A2, if at all, could only be held guilty of theoffence under Sections 201/34 IPC but certainly notunder Sections 302/34 IPC and, therefore, prayed foralteration of the charge against her.

7'Mr. S. S. Hamal, Learned Legal Aid Counsel,appearing in Crl. A. No.8 of 2010 on behalf of appellant,Al reiterating the submission of Mr. N. Rai, LearnedSenior Counsel for A2, submitted that from the evidenceof P.W.1, Bhola Mahanto and P.W.14, Kumar Tamangthe FIR, Exhibit 1 was not proved at all. As per him, theprosecution had failed to prove even the disclosurestatements Exhibits 24 and 25 in accordance with law asit has come in the evidence of P.W.6, Gatuk Lachenpa,the witness to the disclosure st:atement .`that Exbt. 24and Exbt. 25 already marked were already prepared inmy absence by the Police and I simply signed therein inExbt. 25 (a) and Exbt. 24 (a). It is true that it was thePolice who opened the room from where material objectM.O. VI, M.O. V were recovered. The room was lockedand it was opened by the Police by using the key. It istrue that I do not know who had removed the dead body

from the P.O. I do not know where from the M.O. VI wasrecovered'' and, ``It is true that I do not rememberwhether accused gave his statement to the Police in mypresence at Rabom in the house of Zamyang Bhutia"and also in the cross-examination of P.W.7, Ram Bdr.Rai, the witness to the recovery of the material evidenceM.O. VI, namely, ``Gaikhurey" (iron tool used by Mason)and M.O. V (a white rope) seized vide Exhibit 27, whenhe stated that ``It is true that nothing was recorded inmy presence. It is true that before I put my signature inExbt. 26 and Exbt. 27 already marked the contents ofthe same were not read over to me and I was simplyasked by the Police to put my signatures in these twoexhibits marked Exbt. 26 (b) and Exbt. 27 (b)respectively without first understanding what thecontents was there in Exbt. 26 and Exbt. 27respectively.'' Such being the nature of the evidence,the entire story of the prosecution of the recoveryhaving being made based upon the disclosure statementof Al becomes doubtful. It was then submitted thateven assuming that the recovery of the dead body is tobe accepted as proved, there is grave doubt as towhether or not it was the body of the deceased NetaiMahanto as there are conflicting evidence as regards the state of the body. As per him, one set of evidenceindicates that the body was found naked while anotherindicates it to be clothed. Finally, relying upon thedecision of Smf. Basanrt. fsupra; it was submitted thatit is now a settled position of law that extra-].udicialconfession of a co-accused cannot be held against theother co-accused and made the basis of his conviction.That even assuming that the extra-judicial confessionwas indeed made by A2 it could never be the basis ofthe conviction of A1. On the above premises, Mr. Hamalsubmitted that since the case of the prosecution wasriddled with doubts the conviction and sentenced passedagainst Al deserved to be set aside.

8f/.) Mr. Karma Thinlay Namgyal, LearnedAdditional Public Prosecutor, on the other handsubmitted that there was no doubt of Al and A2 havingcommitted the offence under Sections 302/201 IPC incommitting the murder of the deceased in furtherance ofthe common intention to do so and causingdisappearance of evidence of the offence as the chain ofcircumstances fully established by the prosecution leadsto the only hypothesis of the gIJilt of the appellants, Aland A2 having committed those offences as (a) the evidence of P.W.5, Jamyang Lepcha, P.W.7, Ram Bdr.Rai and P.W.10, Ganesh Burman fully establishes thatA1, A2 and the deceased were living together; (b) A2gave false and misleading reason to P.W.1, BholaMahanto, for the absence of the deceased in their nativevillage in Cooch Behar when asked by the latter; (c) theextra-judicial confession made by A2 at Pakshek Bustyon being questioned by Doma Lepcha, P.W.2, is clear,categorical and unambiguous; and (d) the extra-].udicialconfession of A2 made to P.W.2 and others at PakshekBusty and the disclosure statements of both Al and A2ultimately led to the recovery of the dead body andseizure of the ``Randa" vide Seizure Memo Exhibit 6 and``Gaikhurey" vide Exhibit 27.

f/-/-) It was submitted that it is in the evidence ofP.W.6, Gatuk Lachenpa, that when he engaged Al henoticed that ``the accused who was otherwise a goodcarpenter had finished the making of my table in hurry.His work was rough and he appeared nervous''. Thatthe plea of A2 being under threat of Al was belied bythe fact that during the entire period when theyproceeded from Cooch Behar for Pakshek Busty Al wasnot with them and, therefore, ordjnarjly she ought to have come out with the truth at that time. As per theAdditional Public Prosecutor, there can be no manner ofdoubt of the involvement of A2 in the entire episodewhich can be inferred from her conduct. Reliance wasplaced by him to the case of Ponnusamt. vs. State ofTamil Nadu .. (2008) 5 SCC 587 more partlcularlv thefollowing:- ``20. This Court in Sfafe ofWaharashfrav.Suresh [(2000)1 SCC 471]opined: (SCC pp.479-80 para 26)

``26. We t:oo countenance threepossibilities when an accused points out theplace where a dead body or an incriminatingmaterial was concealed without stating t:hat itwas concealed by himself. One is that hehimself would have concealed it. Second isthat he would have seen somebody elseconcealing it. And the third is that he wouldhave been told by another person that it wasconcealed there. But if the accused declinesto tell the criminal court that his knowledgeabout the concealment was on account ofone of the last two possibilities the criminalcourt can presume that it was concealed bythe accused himself. This is because theaccused js the only person who can offer theexplanation as to how else he came to knowof such concealment and if he chooses torefrain from telling the court as to how elsehe came to know of it, the presumption is awell-justified course to be adopted by thecriminal court that the concealment wasmade by himself. Such an interpretation isnot inconsistent with the principle embodiedin Section 27 of the Evidence Act:."

21. We have to consider the factualbackground of the present case in the light ofthe relationship between the parties. If hiswife was found missing, ordinarily, thehusband would search for her. If she has died in an um\atural i.:ituation when she was in hiscompany, he is expected to offer anexplanation therefor. Lack of such explanationon the part of the appellant itself would be acircumstantial evidence against him."

//././.J That the extra-judicial confession made by A2to P.W.2, Doma Lepcha, is categorical, clear andunambiguous and that by itself would be sufficient toconvict the accused notwithstanding the fact that thereare sufficient corroborative evidence in support of theextra-I.udicial confession. The case of Stare of U.P. vs.M. K. Anthony .. (1985) 1 SCC 505 was referred to .inthis regard the relevant portion of which is reproducedbelow:

``±5 .,............... However, in Piara Singh v.State of Punjab [(1977) 4 SCC 452], this Courtobserved that the law does not require thatevidence of an extra].udicial confession should inall cases be corroborated. It thus appears thatextra-judicial confession appears to have beentreat:ed as a weak piece of evidence but there isno rule of law nor rule of prudence that itcannot be acted upon unless corroborat:ed. Ifthe evidence about extrajudicial confessioncomes from t:he mouth of witness/witnesseswho appear t:o be unbiased, not even remotelyinimical to the accused, and in respect of whomnothing is brought out which may tend toindicate that he may have a motive forattributing an untruthful statement to theaccused, the words spoken to by the witnessare clear, unambiguous and unmistakablyconvey that the accused is the perpetrator ofthe crime and nothing is omitted by the witnesswhich may militate against it, then aftersub].ecting the evidence of the witness to arigorous test on the touchstone of credibility, ifit passes the test, t:he extrajudicial confessioncan be accepted and can be the basis of aconviction. [n such a situation to go in search of corroboration itself tends to cast a shadow ofdoubt over the evidence. If the evidence ofextra].udicial confession is reliable, trustworthyand beyond reproach the same can be reliedupon and a convjctjon can be founded thereon."

(/.v/ The Learned Additional public prosecutor wenton to submit that the conduct of the accused personswould also be relevant in view of Section 8 of theEvidence Act irrespective of whether or not theappellants had made the statement under Section 27 ofthe Evidence Act, when there is evidence of them havingpointed out to the police officer where the dead bodywas found and on their pointing out the dead body wasexhumed. In support of his contention the case of A. rv.Venkatesh and Another vs. State of Karnataka ..f2005J 7 SCC 7Z4 was referred to and relevant portionof which is reproduced below:

``9. By virtue of Section 8 of the EvidenceAct, the conduct of the accused person isrelevant, if such conduct influences or isinfluenced by any fact in issue or relevant fact.The evidence of the circumstance, simpliciter,that the accused pointed out to the policeofficer, the place where the dead body of thekidnapped boy was found and on their pointingout the body was exhumed, would be admissibleas conduct under Section 8 irrespective of thefact whether the statement made by theaccused contemporaneously with or antecedentto such conduct falls within the purview ofSection27or not as held by this Court•in Prakash Chand v. State (Delhi Admn.) .......... "

ft/J The other decisiolis on the above propositionof law cjt.ed by Mr. .Kai-rna Thinlay Namgyal, AdditlonalPublic Prosecutor, need riot. be (:jted as being repetil.ive,but suffic.e it to observe rhat as per him there wa`€, nodoubt of A2 having made the extra-j.udicjal confessionleading to the lodging of the FIR. of Al and A2 makingstatements uncler Section 27 of the Evidence Act thatled tcj trie exhirmation of t.!ie c]ead body c`r the deceasedanc{ recovery of t[`e weapons of murcier anc! otherincriminating articles from the place of occurrence. Thatthe circumstances stand fully established and form anunbr.eakable chain leading to the only hypothesis of t.heappellarits of haviiig commit:ted the offence of murder ofI.h.`3 deceased Netai Mahanto. The I.earns,.i AdditionalP!jbl!L` Prosecljtor in rep!\,J to the doubt rci,.LT,ed as I.etjardsthe FIR, drew t:he attention of this Court to theen.Jc!r:-,ement Exhibit 29A of P.W.14 who had scribedExhjb!t 29 !`he Nepa!i vcr.s;o`ri c`f Exhibjl 1 (in Bengaii;',whicr, reads as - "Original FIR written in Berig!a vernacularwas translated inrc; Nepali by h'nshna Kanta``/erman and the Same was reduced IntoNepa!i vernacijlar by Kumar Trimang.

/v/.J That this also stands corroborated by theevidence of P.W.4, Phurba Lepcha, husband of P.W.2clearly establishing the factum of the FIR Exhibit 1having been lodged and, therefore, the questions raisedas regards its authenticity could not be sustained.

/vf.7-) The Learned Additional Public Prosecutor inreply to question of identity of the dead body raised byMr. Hamal, submitted that it has come in the evidenceof P.W.3, Rabi Dey who is a Carpenter working inMangan, North Sikkim, that he was one of the witnessesto the recovery of the exhumation of the body andstated that ``1 could prominently notice a swellingtowards the right forehead of the dead body''. This asper the Learned Additional Public Prosecutorcorroborates the statement of the accused personsunder Section 27 of the Evidence Act t:hat Al hit thedeceased twice with ``Randa" on his head.

9//./ Upon hearing the Learned Counsels for theparties, I am inclined to concur with the submissionsmade on behalf of the Learned Additional PublicProsecijtor that from circumstances that appear to befully proved, there can be no doubt that Al and A2 infurtherance to their common intentions committed the murder of the deceased, Netai Mahanto and thereafterconcealed the evidence of such offence. Since theLearned Counsels appearing on behalf of the Appellantshave confined their submissions only on limited aspectsof the prosecution case with the rest being admitted, wemay only deal with those in ser/.af/.in to set the matter atrest'

//./.) On the first point raised on behalf of both theAppellants with regard to the FIR, there is no doubtExhibit 1 is the first written complaint received by theChungthang P.S, and is concededly scribed in theBengali vernacular that could not be read by anyoneelse. However, this gets clarified by the fact that it wasscribed in Nt.:pali by Kumar Tamang, P.W.14, on beingorally translated by one Krishna Kanta Burman. Aspointed out by the Learned Additional Public Prosecutor,there is an endorsement by Kumar Tamang, P.W.14 onthe translated version Exhibit 29 which has beenreproduced above while dealing wit:h the submission ofthe Learned Additional Public Prosecutor. From this,there can be no doubt of Exhibit 1 having been lodgedby the complainant, Bhola Mahanto, P.W.1, and hadbeen acted upon based upon its translated version.

/,.t-/.J On another aspect on the question, I mayaHude to the principle laid down by a Division Bench ofthe Hon'ble Calcutta High Court jn A.W. Khan vs. 7lheState : Am J962 Ca/ 64J where Their Lordshl.ps havealso held that ``the First Information Report is not anindispensable requjsj[e for the investjgatjon of a crimespecially where the accused was committed to sessions,the charge was framed and explajned to him and he wastried on the charge. The lack of First Information Reportin such a case would not and cannot vitiate the trialoutright". In view of the facts in the present case, I amjncljned to concur with the above views and hold thatthe point raised by the Learned Counsels for theAppellants cannot succeed.

//.v/ The next point that was raised on behalf of theA2 is that she had no role to play in the entire episodeand that her sjlence was induced by fear of Al who hadthreatened her. This defence is belied by the fact thatshe did not disclose of the incident to her brother-in-law,the complainant, P.W.1, or anyone else even when shewas alone with them throughout the I.ourney from CoochBehar, West Bengal to Pakshek Busty, North Sikkim, andchose to render her extra-judicial confession only upon being questioned by the Panchayat of the Area, DomaI_epcha, P.W.2. It is also in evidence that after theincident, she had accompaniec! Al to Lachen where thelatter had been en(jaged in the house. of GatukLachenpa,, P.W.6, to make a table where she stayed withhim for 4 days. Nothing had prevented her duilng thisperiod to make a get away and approac.`h t-he lawenforcing agencies. Such condljct on her part unerringlyleads to the reasonable Inference of her havingpart..ici.pated in the commission of the offence willi!it;ly.T!iereforc., the (`{Jiit-ention on this account ajs.:) 5tan`'Jsrejected.

fvj The next is the question as regards tne doubtr,.Fiisec! ori the ilisclosure statement being made by .A?i{=adjng Ilo the recovery of i.h€: de`-3d bc.,iy relyinrj tjpoHl.he evidence of Phucham Bnutia, P`..^/',8 ..A.thosestaterTienl has bet.`n ext.ractt3c} above while dealing withthe sijbrnission of Mr. N, P.ai. Learned Sciiiior Counse; forA2. In lmy `,'iev`.t, the facl ctf A2 having made to thestatemei`:t Linc!f±r' Se.:`tjJri 2T of [ht= Indian Evi(J``.:`nf;i` A: istands well-est:ab!ishetj from the over~``,.ijlielmingevidence appearing tr.`i the contrary. P.W.2, DomeLeDcha, has statecl Fimii`y. .=if suc.h statement having been made by A2 that stands corroborated by the fact that A2had led the police party and the witnesses to t:he placeof occurrence and pointed out the spot where the deadbody had been concealed. We may refer in this regardto the statements of P.Ws 1, 2, 3, 5, 6 and 8 whoremained unshaken while being cross-examined. Thepoint, therefore, stands rejected as being unsustajnable.

/v,-/ The submission of Mr. Hamal on behalf of AIseeking to indicate the deficiency as regards thedisclosure statement:s Exhibits 24 and 25 also cannot besustained. It has been clearly established from theevidence adduced on behalf of the prosecution that thestatements made by Al led to the recovery of the``Gaikhurey'', M.O. VI, a white rope, M.O. V, on himleading the Investigating Officer and the witnesses tothe place where they had been concealed. I do not seeany reason to disregard such evidence and, therefore,reject the contention.

/v/-t.) The question of the doubtful identity of thedead body raised by Mr. Hamal also cannot be acceptedas it has been clearly established by P.W.3, Rabi Deyalso a carpenter, identifying the dead body as that of the deceased, a fact whjch has remai.ned uncontrovertedand undemolished.

fvf.I.I.) Having dealt with the limited contentionsraised on behalf of the AppeHants, I am of the view thatthe circumstances appearing against the accusedpersons are unimpeachable and fuHy established by theprosecution. While concurring with the circumstancesjndjcated by the Learned Additional Public Prosecutor jnhis submission which are not repeated for brevity, I mayadd that the injury on the forehead of the dead body asstated by P.W.3, Rabi Dey, is corroborated by themedical evidence, Exhibit 25 which reads as ``js acombined effect of ante-mortem head injury producedby blunt force and ante-mortem strangulation byligature" apart from the other injuries.

(/.xj The principles of law placed and the decjsjonscited on behalf of the Appellants are well-settled andaccepted but, those are applicable on the facts obtainingin those cases and, jn the facts and circumstances of thepresent case they Clearly do not apply. The case ofsm[. Basant/' (SupraJ referred to by the Learned LegalAid Counsels for the APpellants is clearly distinguishableas in that CIse the disclosure Statement under Section ds 27 of the Indian Evidence Act was made by only one ofthe accused persons and jt was under suchcircumstances that jt was held that conviction of a co-accused could not be based upon the extraLjudjcjalconfession of the other co-accused, Quite distinctly, jnthe case before us both the accused persons have madesuch statements and, for the reasons already indicatedearlier, they having made the statements also standestabljshed. The decision, therefore, js not of anyassistance to the Appellants.

JO. In the result, the Appeals are dismissed.

]]. No order to costs.

12. The records of the Court below be returnedforthwith.

( S. P. Wangdi )Acting Chief Justice25-11-2011

Index : Yes/NoInternet : Yes/No