PASANG TAMANG Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The Challenge in this appeal is to the judgement and order dated 20.12.2006/21.12.2006 passed by the learned Additional Sessions Judge, 3rd Court, Darjeeling in Sessions Case No. 33 of 2005, (Sessions Trial No. 6 of 2005) thereby convicting the appellants Pasang Tamang and other four others for committing offence punishable under Section 302/34 of IPC and sentencing them to suffer R.I for Life and to pay a fine of Rs. 5000/- each, in default to suffer further imprisonment for one year for the offence under Section 302/34 IPC and to suffer R.I. for 5 years and to pay a fine or Rs. 1000/- each for committing offence under Section 201/34 of the IPC.

(2.) One Rajkumar Ramtel lodged an F.I.R. with Darjeeling Sadar police station on 22.2.2005 stating therein that on that date, at about 5.45, A.M. when he came to open his shop, he found the severed head of Hari Chettri was hanging from the stairs of the public toilet in front of Bhanu Bhakta School and the torso was lying about 15 yards away therefrom at the corner of the way to Balaji Transport. Hari Chettri was a resident of Torikhet, Nepal and working as porter in Darjeeling for last four months and he had no place to reside. On the basis of said F.I.R., Darjeeling Sadar police station case no. 16 of 2005 dated 22.2.2005 under section 302 IPC was registered. In course of investigation, the appellants were apprehended. They allegedly made statements leading to discovery which ultimately led the investigating officer to recover and seize the offending weapons, i.e., draggers (2) and blood stained wearing apparels of Hari Chettri. The investigation ended in a charge-sheet. The appellants were arrayed to face the charges under Sections 302 and 201/34 IPC to which they pleaded not guilty. The learned Trial Court examined as many as 23 witnesses. The F.I.R., rough sketch map with index of the place of occurrence, the post mortem reports, the seizure lists, the inquest report, photograph of the severed head and torso of Hari Hari Chettri, report of forensic department and Serologist were admitted into evidence and marked exhibits on behalf of the prosecution. The wearing apparels of deceased Hari Chettri and two knives were also produced in Court and marked as material exhibits. The learned Trial Court, upon consideration of the oral and documentary evidence adduced on behalf of the prosecution came to a finding that the appellants were the authors of the murder of Hari Chettri and accordingly, recorded the order of their conviction and sentence which is impugned in this appeal.

(3.) Mr. Sekhar Basu, learned Counsel appearing for the appellants contended that the trial Court was completely wrong in relying solely on the alleged statements leading to discovery which were neither reduced in writing nor admitted into evidence. The reference to that effect in the seizure lists, i.e., exhibit 1 and exhibit 2, by no stretch of imagination, can be categorized as " statements leading to discovery" in view of Section 27 of the Evidence Act. In fact, he contended, the exhibit 1 and exhibit 2 do not contain any such statement. Nowhere it has been spelt out within the length and breath of the exhibit 1 and 2 as to what statements were exactly made by the appellants amounting to statements leading to discovery. He contended further that even the recovery and seizure of material exhibit II and III as well as material exhibit I have not at all been established by sufficient and satisfactory evidence. The offending weapons, i.e, material exhibit II and III were not shown to the Autopsy Surgeon for his opinion as to whether the 16 (sixteen) number of Punctured wounds could be caused by such knifes.