P.C. Borooah, J.
1. The appellant Jaladhar Metey was tried along with two others before Shri A. K. Chatterjee, Additional Sessions Judge, Howrah, Against the appellant and the other accused persons there was a charge under Sections 302/34 of the Indian Penal Code that they on or about the 30th of June, 1968 at Narit, police station Amta, district Howrah, committed murder by intentionally causing the death of Netai Chandra Mondal in furtherance of the common intention of all. There was a further charge against the appellant and the other accused persons under Sections 201/34 of the Indian Penal Code that they on the same day and at the same place knowing that , certain offence, namely, murder punishable with death had been contracted had caused certain evidence of the said offence to disappear, namely, the dead body of Netai Chandra Mondal with the intention of screening themselves from legal punishment in furtherance of the common intention of them all.
2. By an order dated the 27th January, 1971 the learned Judge found the appellant guilty of the offence punishable under Section 302/201, I. P. C. and convicted and sentenced him to imprisonment for life under Section 302, I.P.C., but passed no separate sentence under Section 201, I.P.C. The other two accused persons were acquitted of the charges.
3. The prosecution case briefly stated is as follows : One Netai Mondal of village Kamargore within Amta police station was employed as a fitter in Hanuman Jute Mill in Howrah and used to stay at a place near the said jute mill and he used to go to his village home every Sunday, On the 30th June, 1968 which was a Sunday, Netai Mondal, however, did not come home and on the 3rd of July, 1968 parts of a dead body were found on a field of a neighbouring village Narit within the said police station. An information about this find of a dead body was given to the thana by the Upadhaksya of Narit Gram Sabha and on this basis an unnatural death case, being case No. 39 dated 3-7-68 was started. Thereafter on the 10th July, 19(58, an F.I.R. was lodged by Khodanbala, the wife of Netai, on the basis of which Amta P. S. Case No. 7 dated 10-7-60 was started. In course of investigation the appellant Jaladhar Metey, who had a civil litigation with Netai Mondal, was arrested and in pursuance of certain statements made by him to the police officers of Amta police station, a bag containing some articles belonging to Netai Mondal was recovered from a doba. The appellant was produced before a magistrate before whom he confessed that he along with Balai Metey and Ratan Maity, who are the two other accused in this case, had killed Netai Mondal and disposed of the dead body. After completion of investigation charge-sheet was submitted against the appellant and the other two accused persons and after a committal enquiry they were committed to the court of session to stand their trial and the appellant was convicted and sentenced as aforesaid.
4. The appellant pleaded not guilty to the charge and he retracted the confession and stated that he was induced to confess under threat and pro-raises.
5. We have heard Mr. Trivedi, learned Advocate appearing on behalf of the appellant and Mr. Ghosh, learned Advocate appearing on behalf of the State.
6. The learned Judge has based his conviction of the appellant under Section 302, I.P.C. on the confession (Ext, 10) made by the appellant before Shri H. R. Das, P.W. 25 and the recovery of a bag containing some articles of the deceased which was seized on 1.3-7-68 at about 12.45 hours from a doba pursuant to the statement made by the appellant to Sri P. Dutta, P.W. 29.
7. According to P.W. 25 he gave all necessary caution to the appellant before recording the confession and was satisfied that it was voluntary. In the confession which the appellant made, he has stated that he along with the other two accused persons, namely, Balai Metey and Ratan Maity, was sitting together after having drunk wine at the cowshed of Guiran and then at the suggestion of Balai they had gone to the field of Gazipur and were sitting together on a bundh. Two hours later they found Netai returning from Calcutta and proceeding towards his home across the field. As soon as Netai came near them, they clasped him together. The appellant caught hold of his legs, Ratan caught hold by his hands and Balai caught hold of his head and inflicted the knife injury on his throat. Balai took out the cloth and jama from the dead body. Balai. also took out the genji and thereafter Ratan and Balai put the dead body into a sack and tied the opening of the sack with a rope and placed it on the appellant's head. According to Balai's dictation, the appellant kept it under water in a doba near the pan boroj at village Narit, Ratan and Balai helped him in keeping it under water, Netai had some mangoes and vegetables with him in a bag and according to the dictation of Balai he kept under ground Netai's wearing cloth, mangoes and vegetables within the bag in a place at some distance.
8. This confession, even if we consider it to be voluntary and true, does not implicate the appellant in the murder of Netai Chandra Mondal. At most the appellant could have on the basis of the confession been convicted under Section 302/34 of the Indian Penal Code but having regard to the fact that the other two accused persons who were tried along with him on the charge under Section 302/34 of the Indian Penal Code have been acquitted by the learned Judge and when there is no evidence that any other unknown person took part in the murder the appellant cannot be convicted under Section 302 of the Indian Penal Code with the aid of Section 34 of the Code, and as such the appellant must be found not guilty of the charge under Section 302 of the Indian Penal Code.
9. Now coming to the conviction of the appellant under Section 201 of the Indian Penal Code, the appellant in his confession has stated about the carrying of the dead body in a bag and keeping it in a doba. He has also stated in his confession about the taking of some of Netai's clothes along with some mangoes and vegetables and also concealing it. The appellant made a statement to P. W. 29 and led the police to a doba in a field at Narit on 13-7-1968 where in the presence of the witnesses viz., P. W. 11 Mathur Chandra Dalai and P. W. 12 Satish Chandra Khan a bag was brought out by the appellant from the doba and inside the bag were found amongst other articles an old dhuti with thin red border in which there are spots of black and blood at places - one packet of cloth which contained ripe mangoes and which were rotten, one light blue coloured handkerchief and one ring with keys and fitted with chain in which there were some keys. These articles were seized under the seizure list which has been marked Exhibit 3, Further a bag containing genji was also found from the mud in the doba and the genji has been identified by P. W. 1 Khodan Bala as belonging to her husband Netai Chandra Mondal. P, W, 1 has not been cross-examined on this point. P. W. 1 has also identified the dhoti, the bag, the handkerchief and the key rings and chain (Exhibit 2), which were recovered from the doba pursuant to the statement made by the appellant, as belonging to her husband. She has also not been cross-examined on this point. Further one of the keys which was found inside the bag and which was recovered from the doba was the key of the lock of the almirah containing the tools which were allotted to Netai in the Hanuman Jute Mill and another key similarly could open the lock of the room which Netai used to have near his place of work viz. Hanuman Jute Mill. Therefore, there is no manner of doubt that the ring with the keys, dhuti, genji and the handkerchief belonged to the deceased. These were recovered from near the place where some bones and skull of a dead body were recovered. The recovery of these articles also goes to corroborate the confessional statement made by the appellant that they hid the dead body and the clothings of the deceased after taking them from the place where Netai Chandra Mondal had been murdered.
10. Of course, the parts of the dead body which were recovered were sent for post-mortem examination and P.W. 27 Dr. B. C. Banik was of the opinion that the skull and bones which were found belonged to an adult male but he could give no opinion as to the cause of death. The report of the Director of Forensic Science Laboratory to whom the skull and an enlarged photograph of Netai Chandra Mondal were sent for examination was of the opinion that there was a correspondence between the anatomical land marks of the skull and the photograph of the deceased's face when photographically superimposed. He therefore came to the conclusion that the skull in question would have been the skull of the person appearing in the photograph viz. of Netai Chandra Mondal. In the confessional statement as already referred to above the appellant has stated that he and his companions caused the death of Netai Chandra Mondal, and thereafter disposed of his dead body and the wearing apparels. This confessional statement coupled with the recovery of the bag containing the clothings, key chains, and the recovery of the deceased's genji goes to show that the parts of the dead body which were recovered were the dead body of Netai Chandra Mondal. In the circumstances, the appellant has been rightly convicted of the charge under Section 201 of the Indian Penal Code, and we see no reason to interfere with the order of conviction.
11. As regards the sentence we feel that the ends of justice will be met if we sentence the accused appellant to suffer rigorous imprisonment for five years.
12. In the result, this appeal is partly allowed. The order of conviction and sentence passed against the appellant under Section 302 of the Indian Penal Code is set aside but we maintain the order of conviction under Section 201 of the Indian Penal Code and sentence him to rigorous imprisonment for five years.
13. I agree.