SUMAN LUGUN @ MUNDA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This criminal appeal arose against the judgment and order of conviction dated 19th May, 2005 delivered by learned Additional Sessions Judge, Fast Track 1st Court, Alipore in Sessions Case no. 60 of 2005 (Sessions Trial No. 25 of 2005) sentencing the appellant Suman Lugun @ Munda to suffer life imprisonment with fine as mentioned therein for the offence under Section 302 of the Indian Penal Code.

(2.) The appellant before us is represented by his own learned Counsel Mr. Partha Sarathi Bhattacharya. Heard Mr. Bhattacharya representing the appellant, who is lying in jail. At the very outset Mr. Bhattacharya brought to our notice by handing over the detention slip issued by the Superintendent, Jalpaiguri Central Correctional Home that the appellant has already undergone with the imprisonment for a period of twelve years one month. Mr. Bhattacharya argued that the prosecution failed to prove the charge against the appellant beyond all reasonable doubt. Submitted, there was no eyewitness of the alleged incident of murder, even there was no evidence as to how the alleged offending weapon was recovered. The evidence was also doubtful as to what weapon actually was used as the offending weapon, what was the description of such weapon so allegedly recovered, the evidence also was discrepant as to wherefrom it was recovered. Further argued that even a forensic report would be of no assistance to the prosecution, since there was no matching report between the blood group of the deceased and the human blood, if any, appeared on the recovered weapon. Further submitted that the merit of the prosecution case was dependant on the evidence of P.W.2, before whom the appellant allegedly only made extra judicial confession but also said P.W.2 disclosed said fact by making statement before the learned Magistrate under section 164 of the Code of Criminal Procedure, 1973 implicating the appellant as the offender of the day. During course of argument, Mr. Bhattacharya criticized the propriety and sanctity of the observation of the learned Sessions Judge deciding for the conviction on the basis of the evidence so adduced ignoring the fact that P.W.2, who had made the alleged statement under section 164 of the Code of Criminal Procedure, 1973 by remaining detention in Police Station for three nights previous to the date of making those statements before learned Magistrate. Submitting thereby, there being no direct evidence, last seen theory having been established, there being no evidence completing chain of circumstance, the impugned judgment cannot sustain both in fact and in law. Mr. Bhattacharya therefore prays to set aside the judgment of conviction and to allow the appeal in setting the appellant free of the charge.

(3.) Mr. Saibal Bapuli, learned Additional Public Prosecutor for the State supported the judgment of conviction. Submitted, the merit of the prosecution case virtually was dependent upon the evidence of P.W.2. couple with his statement made voluntarily before the learned Magistrate under section 164 of the Code of Criminal Procedure, 1973 and when through those statements the implication of the appellant has come out beyond all reasonable doubt and when also leading to the statement of the appellant the offending weapon was recovered by the Investigating Officer, the appeal should be dismissed affirming the judgment of conviction.