Pintu Ruidas vs The State of West Bengal

Aniruddha Bose, J.—1. One Sunil Ruidas died in his own residence in the early hours of 12th January 2007. This was an unnatural death. The appellant before us has been convicted for committing the offence of murder of Sunil (the deceased) by the Additional Sessions Judge, 4th Court, Pashim Medinipur in Sessions Trial No. XXXV/April/07. Sunil was his own brother-in-law, being the husband of his deceased sister. At the time of commission of the offence, the appellant was facing the charge of committing murder of his own wife, i.e., sister of the deceased, and was on bail. The prosecution version of the case which has been broadly accepted by the Trial Court is that after being released on bail, the appellant, Pintu Ruidas had reestablished contact with Sunil and wanted him to withdraw the case against him. It is not clear from evidence in what manner Pintu wanted such withdrawal to be effected, but evidence is there that Pintu was pressing Sunil to do so. On the preceding night, Sunil and Pintu had reached the residence of the former in drunken condition. Sunil told his father (Sasthi Ruidas) that Pintu had confessed his guilt and he was remorseful and requested for withdrawal of the case. To that proposal Sasthi did not agree. Pintu, however, stayed back in the family residence of Sunil on that night and occupied a room with Sunil on the first floor of the house, after taking meal. Sasthi heard a groaning sound at about 3 A.M., originating from the first floor and when he went to the room in which Sunil and Pintu were spending the night, he found Pintu sitting on the chest of Sunil and strangulating Sunil with a mufflar around his neck. The said room has been described by the mother of the deceased, who deposed as PW 2 and some to her witnesses as "kothaghar". Thereafter, Sasthi forcibly removed Pintu from the chest of Sunil, after which Sunil''s mother and wife raised alarm and people from the neighbouring area arrived and detained Sunil. The matter was reported to the police station in the morning. In the inquest report, there is reference to a case bearing No. 3/07. This number, it appears to us, refers to the number of a case relating to Unnatural Death (UD). On the basis of the written complaint, formal F.I.R. was registered as Garbeta P.S. Case No. 4/07 dated 12th January 2007, and investigation started. This case number is also reflected in the inquest report (Ext "2"). Police came to the house of Sunil, held inquest over the dead body and Pintu was arrested.

After completion of investigation and submission of charge-sheet, the case was committed and charge was framed under Section 302 of the Indian Penal Code, 1860. In course of trial, prosecution altogether examined 18 witnesses. PW 1 was Sasthi Ruidas. On the basis of his written complaint, formal F.I.R. was drawn. PW 3 was one Barun Dey, a neighbour of the family of Sunil, who was the scribe of the written complaint. PW 1 has deposed as eye-witness of the assault on Sunil, whereas PW 2 (Kalpana Ruidas), mother of the deceased, has stated in his evidence that she had reached the room in which the incident occurred, following her husband. PW 6 (Kalosona Ruidas), PW 7 (Nemai Ruidas), PW 8 (Bapi Ruidas), PW 10 (Haradhan Ruidas), PW 11 (Khokon Ruidas), PW 12 (Arun Ruidas), PW 14 (Chandi Ruidas), PW 15 (Purnima Ruidas), PW 16 (Sankar Ruidas) are all post-occurrence witnesses. Among them PW 6, PW 7, PW 14, PW 15 and PW 16 are relatives of the deceased. PW 13 (Rinku Ruidas) is the widow of the deceased. She could not depose as she broke down when called to depose, and was released by the Court without being examined. PW 15 has stated on oath that PW 13 (Rinku Ruidas) was suffering from depression and PW 16, Shankar Ruidas has also corroborated in his deposition the mental state of PW 13. One Bhaskar Nandy has deposed as PW 9. He has stated that he runs a decorating business and Sunil used to work under him in such business. He has further deposed that he had seen Pintu speaking to Sunil on two occasions while he was working under him, and that Sunil had discussed the matter of withdrawal of the case while he advised Sunil to do things according to law. PW 4, Sukumar Mondal is a police witness, who conducted inquest. PW 17, Gopal Bharmachari is also a police witness who accompanied the dead body to the morgue. The last witness who deposed on behalf of the prosecution was Sanjib Chakraborty, the Investigating Officer. PW 5 was one Samar Sinha Das, the autopsy surgeon.

The post mortem report, marked exhibit ''3'' records the following external injuries on the body of the deceased:--

"ONE LIGATURE MARK 15"X 1 1/2 PL. TRANSEVERSELY & LOW DOWN ON NECK & LIGATURE MARK WAS CONTINEOUS. LIGATURE MARK WAS 1 1/4" BELOW ANGLE OF MANDIBLE ON EACH SIDE & OVER THE THYROID CARTILAGE IN FRONT & 3/4" ABOVE SUPRASTERNAL NOTCH IN FORNT & 3" BELOW EXERTERNAL OCCIPITAL PROTUBERANCE ON BACK OF NECK. LIGATURE MARK WAS ABRADED, FURROWED, PURCHMENTISED & CONDENSED AT PLACES. CONTUSION PRESENT ABOVE & BELOW THE LIGATURE MARK O/D. EXTENSIVE EXTRAVASATION OF BLOOD INTO THE TISSUE OF FRONT OF NECK- MEASURE 7"X4". FRACTURE OF THYROID CARTILAGE WITH EXTRAVASATION OF BLOOD IN & AROUND. ABRASION WAS FRESH & NON-SCABBED. INJURY SHOWED EVIDENCE OF VITAL REACTION. NO OTHER INJURY COULD BE DETECTED EVEN ON CAREFUL DISSECTION & EXAMINATION UNDER A HAND LENS."

The opinion of Suman Singha Das, the autopsy surgeon (PW 5) on the cause of death has been recorded in the post mortem report as:--

"Due to:-- DEATH WAS DUE TO THE EFFECTS OF STRANGULATION BY LIGATURE - AS NOTED ABOVE ANTEMORTEM & HOMICIDAL IN NATURE"

The PW 5 has proved the post mortem report and in his deposition reiterated the cause of death and the nature of external injuries, which was disclosed in the post-mortem report. Two seizure lists were made exhibits, one pertaining to seizure of a bottle green (bile coloured) mufflar (scarf) marked exhibit ''8'' and the other pertaining to certain wearing apparels of the deceased, and the carbon copy of this seizure list has been marked exhibit ''5''. So far as this appeal is concerned, exhibit ''8'' is of importance, as according to the prosecution, this is the object which was used to strangulate the victim. PW 12 (Arun Ruidas) and PW 7, (Gautam Ruidas) are witnesses of this seizure. The appellant/accused did not examine any witness from his side. In his examination under Section 313 of the Code of Criminal Procedure, 1973 he has denied the entire set of allegations, which was put to him in a summary form. As regards his place of arrest, he stated that he had been arrested from home. His case is that he never went to the place of occurrence. The Trial Court, on considering the evidence found the appellant guilty of the offence he was charged with and sentenced him to imprisonment for life and to pay fine of Rs. 2,000/- in default of which further two months rigorous imprisonment was sentenced.

Mr. Bakshi, learned Advocate for the appellant has prayed for setting aside the judgment under appeal and invalidation of conviction and sentence awarded to the appellant on the ground of there being several inconsistencies or discrepancies in the prosecution case. The points urged by him mainly relate to identifying the location from which the appellant was arrested. On behalf of the appellant, stress was laid on the fact that almost all the local witnesses stated that police had arrived at the place of occurrence between 7 A.M. and 8 A.M. whereas the time of receiving the complaint in the police station is recorded in the F.I.R. as 08.15 hrs. Moreover, he submitted that there was no evidence to show on whose information case No. 3/07 was started. Case is also sought to be made out that the death was caused by self-inflicted injury. He wanted us not to rely on the inquest report as the carbon copy of the same has been made exhibit and not the original. Lastly, it was submitted on behalf of the appellant that while the Trial Court put questions to him under Section 313 of the 1973 Code, he was never cautioned to the effect that any statement made by him in response to such examination could be used against him and he had the right not to answer those questions. The whole object of examination under the aforesaid provision was not explained to him. He further submitted that there was substantial delay in sending the copy of the F.I.R. to the learned Magistrate. The endorsement of the Chief Judicial Magistrate, Paschim Medinipur, on the F.I.R., which is exhibit ''6'', is 25th January 2007, whereas the F.I.R. was registered on 12th January, 2007.

On the question of deposition of the witnesses on arrival time of police personnel to the place of occurrence, Mr. Bakshi took us through the deposition of PW 2, being the mother of the deceased. In her examination-in-chief she stated that at about 6.30 to 7 A.M. after receiving information police had come to their house and arrested the appellant Pintu from the Kothaghar. PW 10, who is a co-villager also stated that police came to the house of Sasthi at about 7.30 A.M. PW 11 also gave the same time-band, i.e., 7.30 and 8.00 A.M. while speaking of arrival time of police personnel. PW 15, Chandi Ruidas, brother of the deceased stated that he had reached the place of occurrence at 7-7.30 A.M. and police appeared after lapse of 15-20 minutes. PW 18, who is the Investigating Officer in his examination-in-chief stood by the prosecution version about receiving information at 08.15 hours and stated in his cross-examination that he had reached the place of occurrence at 8.35 hours. Based on this time variance appearing in the depositions of different witnesses, Mr. Bakshi argued that the prosecution story would have to be disbelieved. According, to Mr. Bakshi, version of the aforesaid prosecution witnesses who have described the time of arrival of police between 7.00 and 8.00 A.M ought to be believed as those witnesses have not been declared hostile by the prosecution and their depositions are binding on prosecution. If this time is found to be the time of arrival of police, then the F.I.R. would have to be disbelieved and the entire prosecution case would fail. In this regard he relied on the decision of the Supreme Court in the cases of Raja Ram v. State of Rajasthan [(2005)5 SCC 272] and Mukhtiar Ahmed Ansari v. State [, 2005(5) SCC 258]. These two authorities have been cited for the proposition that if prosecution witnesses are not declared hostile, their evidence would become binding on the prosecution.

The next point which was urged by Mr. Bakshi is on delay in sending the F.I.R. to the Magistrate. On the impact of delayed sending of F.I.R. he has primarily relied on the judgment of the Supreme Court in the case Mehraj Singh v. State of U.P. [(1994) SCC 5 188] as also two other authorities, being the cases of Arjun Marik v. State of Bihar [, (1994) SCC-Supl 2 372] and Thanedar Singh v. State of Madhya Pradesh [, (2002)1 SCC 487]. In the case of Mehraj Singh (supra) the implication of delayed sending of an F.I.R. has been discussed and it has been held in this judgment:--

"FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 Cr.P.C., is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante-timed to give it the colour of a promptly lodged FIR."

The other two authorities on this point also affirm the same proposition of law.

It was urged by Mr. Bakshi, while assailing the judgment under appeal that in the inquest report there is no reference to the accused. There are two witnesses to the inquest being PW 1 and PW 7, and there is no recordal in the inquest report of naming Pintu. The PW 1 is the F.I.R. maker, and in his written complaint had named Pintu as the assailant and PW 7 in his examination-in-chief has stated, inter alia:--

"I came to learn from villagers and Sasthi the father of Sunil that Sunil had been murdered by Pintu and as such I went to Kotharghar and found that Sunil was lying in that Kothaghar and villagers were there detaining Pintu."

The impugned judgment has also been assailed by the appellant on the ground of there being inconsistency in evidence about the place from where Pintu was detained. In his examination under Section 313 of the 1973 Code, referring to his place of arrest, the following question was put to the appellant and the answer of the appellant to that question is also reproduced:--

"10. In the evidences of PWs-the witness No. 18- the investigating Police Officer has stated in his evidence that after getting written complaint in the morning at about 08.15 AM on 12.01.07, he went to the house of the incident took place and saw the dead body of Sunil Ruidas lying in the Room (kothaghar) where incident took place and also say you standing in that Room (Kothathar) and then arrest you on the spot. Have you anything to say?

Ans: Arrested me from home. Rest all false."

PW 1 in his cross-examination stated that villagers along with him had detained the accused in the room in which the incident is alleged to had had occurred, and stated:--

"Villagers and we detained the accused in that room where my son was murdered by him.

Villagers appeared at my house just after 15 minutes from the time of my call.

After detaining the accused we went to P.S alongwith him and handed over it to P.S to police officer."

The PW 2 also deposed that her husband (her husband) and the villagers went to the police station along with the dead body and Pintu. PW 7, PW 8, PW 10, PW 11, PW 12, PW 14, PW 15, PW 16 (in cross-examination), as also PW 18 being the Investigating Officer on the other hand had deposed that Pintu was arrested from the house of Sasthi. As regards exact location of the house from where Pintu was arrested, the Investigating Officer stated that Pintu was found standing in the courtyard of the house, "gheraoed" by local people and he was arrested from there. Mr. Bakshi sought to raise doubt in our mind as regards the exact place of arrest, to demolish the prosecution version of the case.

On the point of the appellant not being cautioned about the implication of examination under Section 313 of the Code, Mr. Bakshi referred to a judgment of the Madras High Court in the case of Kannammal v. Unknown (, AIR 1926 Madras 570) in which a similar provision under Section 342 of the Code of Criminal Procedure prevailing at that point of time was examined. It was observed in that judgment that there should be provision in law for giving caution to the accused. In paragraph 8 of the judgment, it has been observed:--

"It seems to us that it would be a salutary amendment of the Indian Law if it were; not compulsory to put in such a statement. If there were any danger of prosecutors unfairly keeping back a statement that helped the accused, the Judge is there to insist on its being put in. Further, we think it is extremely desirable that some such form of caution as is prescribed by 11 and 12 Vic. Ch. 42 Section 18 should be introduced into the Code of Criminal Procedure. The, form in which this woman was invited to make a statement by the Committing Magistrate in this case was as follows:

You have heard all the statements of the prosecution witnesses; you have heard, read, all the records filed in Court on the side of the prosecution. What explanation do you offer for it."

The appellant, in answer to question 14 in his examination, had stated that he would produce witnesses, but he examined no witness from his side in the trial.

Mr. Bakshi also relied on the decision of the Supreme Court in the case of Keya Mukherjee v. Magma Leasing Ltd. [, 2008(8) SCC 447]. In this judgment the importance of examination of an accused under Section 313 of the Code has been outlined. This judgment has been relied upon by Mr. Bakshi in support of the proposition that circumstances about which the accused was not asked to explain cannot be used against him or taken into account to find an accused guilty.

The other point on which Mr. Bakshi argued was that there was no proper identification of the mufflar and a similar mufflar would be easily available in the market.

On the question of delay in sending the F.I.R to the Magistrate, we have been taken through the records of the proceeding by Mr. Banerjee, learned Additional Public Prosecutor. We find from the file carrying the No. G.R-50/07 that on 12th January 2007 itself the accused was brought under arrest before the learned Chief Judicial Magistrate, Paschim Medinipur. There is recordal in the order-sheet to the effect that the concerned Magistrate had seen the F.I.R. along with written complaint memo of arrest, inspection memo and one seizure list. This being materials available on record we do not think the endorsement of receipt on 25th January 2007 was correctly made. Moreover, in the inquest report there is reference to the UD case No. 3/07 as also Garbeta P.S. case No. 4/07, which is the case number the F.I.R. was registered as. On the basis of these materials, Mr. Banerjee''s submission is that the F.I.R. was sent to the Magistrate on the day of arrest of the accused itself, but endorsement on the F.I.R. might have had been made at a later date. This appears to be reasonable explanation on the part of the prosecution, and we accept this explanation. In such circumstances the ratio of the decisions of the Supreme Court in the cases of Mehraj Singh (supra), Thanedar Singh (supra) and Arjun Marik (supra) do not aid the appellant''s case. Moreover, the F.I.R. and the written complainant have been proved by the maker of the F.I.R. (PW 1), the scribe thereof (PW 3) as also the PW 18 who was the officer-in-charge of the police station at the material point of time. It is a fact the source of information for starting the UD case (3/07) has not come in evidence, but that factor cannot altogether negate the prosecution case, having regard to existence of contemporaneous materials showing lodging of the complaint on 12th January 2007, registration of the F.I.R. on that date and production of the accused-appellant before the Magistrate on the same day.

We shall now deal with the question of inconsistency in depositions of various prosecution witnesses about time of arrival of police at the place of occurrence. The PW 4 made the inquest has stated that he had made enquiry in respect of the UD case No. 3 of 2007 and went to the house of Sasthi Ruidas at about 8.45 A.M. The local witnesses, both relatives and co-villagers have described the time as between 7 and 8 A.M. This reference to time, in our opinion also does not make a major dent into the prosecution case. People in rural area are generally not expected to keep precise record of time. The time given by the witnesses relate to morning hours and the witnesses have given a time-band, not precise time of arrival of police. Such variation of time between one and one-and half hours do not generate a deep-enough faultline in the prosecution case which would render the entire prosecution story false.

So far as the inquest report is concerned, this is a carbon copy. But the appellant has not argued that this was marked exhibit with objection. The PW 4, the inquest officer has proved the same, and stated in his evidence that it was carbon processed form of the original. Thus we do not find any reason to doubt the inquest report. It is a fact that the assailant or accused has not been named in the inquest report, but that factor alone cannot exculpate the appellant, and is not fatal to the finding of guilt by the Trial Court. Overall picture of the prosecution version would have to be assessed while considering the appellant''s case. This omission may be a minor flaw at the time of investigation, and cannot override the finding of guilt by the Trial Court on the basis of evidence.

The Trial Court primarily relied on witness account for holding the appellant guilty of the offence alleged. The PW 1 has deposed as an eyewitness and the only point on which there is an element of inconsistency in his deposition is the place from which the appellant was arrested. The Trial Court found such discrepancy to originate from his disturbed mental state, a finding which we approve of. The PW 2 who had followed her husband to the place of occurrence has deposed having seen and heard hot exchange of words between PW 1 and the appellant, with his son lying dead in the room. The PW 2 stated in her evidence that at about 6.30-7 after receipt of information police had come to their house and arrested Pintu from kothaghar. She, however, also stated in her examination-in-chief:--

"My husband and villagers also went to PS along with dead body and pintu"

This inconsistency also can be ascribed to her disturbed mental state. A mother, whose son has just been killed, cannot be expected to keep a frame-by-frame account of subsequent events, and some element of confusion in describing subsequent events is bound to be there in her deposition.

The PW 6, brother of PW 1 and also a resident of the same house was next person to have entered into the room where the incident occurred, as per his deposition. He found Sunil lying dead and the appellant standing there. From the depositions of the other local witnesses, it transpires that it was thereafter the villagers had come. PW 1 has deposed that his wife (PW 2) and bouma (daughter-in-law) had raised alarm, which brought the local residents, some of whom are also his relatives to the place of occurrence. His daughter-in-law, Rinku Ruidas who was produced as a prosecution witness (13) was unable to depose for her unstable mental condition and she was released without being examined. We do not find any reason to disbelieve PW 1 in respect of his statement that PW 2 and his daughter-in-law had raised the alarm. In fact PW 2 herself has stated that such alarm was raised. The PW 7 has corroborated there being hue and cry and has deposed that he had rushed to the house of PW 1 on hearing such hue and cry. When he reached the specific room, he has stated that in his examination-in-chief, Sunil was lying and the villagers had detained Pintu. The same version has been given by PW 8, PW 10 and PW 11. The time of occurrence of the incident, all the aforesaid prosecution witnesses uniformly stated to be 3/3.30 hours. The non-official witnesses have described the date of occurrence to be 27th Pous (as per bengali calendar), but on this aspect, no point has been raised on behalf of the appellant and no argument was raised in that respect. PW 1 has stated that 3 A.M. was the time when he heard the groaning sound, which is corroborated by PW 2 and PW 15. The PW 7, who is a relative of the deceased and also a resident of the same village heard the hue and cry around the same time. PW 10 deposed having heard "hue and cry" in deep night hours. PW 11, also a relative of the deceased and a co-villager deposed having heard hue and cry coming from the house of Sasthi. Each of these witnesses who had reached the room in which the incident occurred had reached Sasthi''s house within a short span of time from occurrence of incident and their depositions establish a chain of sequence beginning from PW 1 hearing groaning sound, ending with arrival of police and arrest of Pintu. PW 2, PW 6, PW 7, PW 8, PW 10, PW 14, PW 15, and PW 16 have identified Pintu from the witness box. That factor, by itself is not of great significance in this appeal because Pintu as Son-in-law of Sasthi must have had been known to them. None of these witnesses have not been shaken by cross-examination to resile from their version of incident.

On behalf of the appellant, doubt was sought to be raised on the prosecution case about the exact location in the house from where Pintu was arrested. PW 2 has deposed that Pintu was kept detained by the villagers and was arrested from the "Kothagar" implying the room in which the incident had occurred. PW 7 has corroborated that Pintu has confined in the "Kothaghar" by the villagers, but has not stated exactly from which spot police had arrested him. PW 8 again has stated Pintu was arrested from the "Kothaghar". PW 18, the Investigating Officer on the other hand has deposed that on his arrival to the residence of the deceased, he found Pintu standing being gheraoed by local people within the courtyard of the place of occurrence and he arrested him and prepared the arrest memo. This again, in our opinion is a minor discrepancy, as witnesses have uniformly described that Pintu was arrested from the house of the deceased, where initially Pintu had remained detained. Now within a house, there can be minor variation on the part of the inmates or neighbour in describing the specific room from which Pintu was arrested, struck with a tragedy of this dimension.

Argument was also advanced about the identity of the mufflar, and submission was made on behalf of the appellant that the seized mufflar ought not to be accepted by us to be the strangulating material. PW 1 is a witness to the seizure of the mufflar. In their depositions, PW 1 and PW 2 identified the same, being Material Exhibit I, and deposed that the same was tied to Sunil''s body. PW 7 has also identified it. PW 10, PW 11, PW 12 have stated in their evidence of having seen the mufflar, and in particular PW 11 and PW 12 have both deposed that the police had seized the mufflar. PW 18 in his examination-in-chief has deposed that he had seized the bottle-green coloured mufflar from possession of the appellant. Learned counsel for the appellant sought to raise doubt on identification of the mufflar on the basis that such mufflar would be available in the market. Suggestion was given to the PW 2 that such muffflar was available in the market, to which she concurred. PW 7 in his cross-examination has said that he would not be able to distinguish the same if that mufflar is mixed with other similar types of mufflar. PW 18 in his cross-examination admitted that in the seizure list he did not mention the mufflar had stripes. But the statements of these witnesses in their cross-examination on this point, in our opinion, do not negate the factum of seizure. "Journey" of the mufflar from the place of occurrence to the Trial Court has been established at every stage, by different witnesses and we find no reason to disbelieve these witnesses. The autopsy surgeon (PW 5) has proved in his deposition that death of Sunil was due to the effect of strangulation by ligature and such type of injuries can be caused by tying a mufflar to the neck. As regards the possibility of self-inflicted injury, this has been negated by the PW 5. In his evidence, he has stated:--

"It is fact that if any person takes bed wearings muffler round his neck due such fixation of muffler around the neck. There is/was no question of ligature or fracture or extravasations of blood over from of neck etc." (quoted verbatim)

The Trial Court while examining the accused under 313 of the Code of Criminal Procedure did not caution him about the consequence of answering to the questions. This in our opinion is an irregularity, but not a fatal one. In the judgment under appeal we find the only answer which has been referred to in some detail is response of the appellant or accused to question 10, which we have reproduced in the earlier part of this judgment. It is recorded in the judgment that the learned Additional Public Prosecutor submitted that the accused had admitted that he was arrested from the house, which means he was arrested from the house of Sasthi Ruidas. This inference may not be true, and in all likelihood the appellant meant he had been arrested from his own home. But this answer of the appellant is not the foundation of the judgment of the Trial Court. The learned Trial Judge has convicted the accused primarily on the basis of eye-witness account. The appellant has not suffered any prejudice on not being put on alert before his examination under Section 313 of the Code.

The witness account in this case is clear and on the question of involvement of Pintu in causing death of Sunil, there is no gap in describing the chain of events emerging from the depositions of different witnesses, starting with PW 1. He reached the place of occurrence first, and saw Pintu sitting on the chest of Sunil. PW 2 found Pintu exchanging hot words with PW 1, and Sunil was lying without any expression. Next person from amongst the witnesses who reached the spot of occurrence (the kothaghar) was PW 6 who saw Sunil lying dead and Pintu standing there. PW 6 and PW 7 both have deposed that villagers had reached the spot and had detained Pintu.

The discrepancies pointed out on behalf of the appellant could have had impact on outcome of the trial if the prosecution case was based on circumstantial evidence. But that is not the manner in which prosecution has established the guilt of the accused. We do not find any reason to disbelieve the witnesses who have deposed on behalf of prosecution. Though some of the witnesses are relatives, having regard to the time and place of occurrence, presence of an independent witness is not to be expected. In any event, co-villagers cannot be branded as partisan witnesses, when there is a very high degree of corroboration. Motive for murder has transpired from depositions of PW 1, PW 2 and PW 9.

For these reasons, we dismiss the appeal. We have found no error in the judgment of the First Court. The judgment of conviction and order of sentence, which is under appeal before us is sustained.

Let the Lower Court Records be sent down forthwith along with a copy of this judgment. A copy of this judgment shall also be made available to the appellant by the First Court forthwith.

Urgent Photostat certified copy of this order be given to the parties expeditiously, if applied for.

Sankar Acharyya, J.—I agree.