Decided on August 16,2012



Barin Ghosh, C.J. - (1.) THE death, in the instant case, has taken place inside the house of the appellant. Death is that of the wife of the appellant. The death is by strangulation. The medical report and the view expressed by the medical expert suggest that the strangulation of the victim was caused by rope, which was forced upon the victim. It has been clearly mentioned that the marks found on the victim are not those, which will normally appear in the cases of suicide, but those can be available in case when the rope is forced upon, strangulated and, then, the victim is hung. In that background, there was a duty on the appellant to explain. He did nothing. The First Information Report, lodged by the brother of the victim, merely stated that he suspects that the victim has been done away with by the appellant. In course of evidence tendered before the court below, he stated that he was apprised of the involvement of the appellant with the death by the four year old son of the appellant, begotten through the wedlock of the appellant with the victim. In the cross -examination, he stated that the same was not stated to him, but was stated to the Patwari, who was the Investigating Officer in the instant case. That much discrepancy in the evidence will not absolve the appellant of his legal duty to speak, as was cast in the instant case, by reason of the fact that the death took place inside the house of the appellant, coupled with the medical evidence. Patwari, in the instant case, gave evidence and stated that he recorded statement of the son of the appellant, when the son of the appellant clearly disclosed before him that it was the appellant, who caused the death in the manner as the medical report, later on, confirmed. The son of the appellant was brought as one of the witnesses by the prosecution. After having had asked a few questions, the court below declared that the son of the appellant will not be in a position to give evidence. He was, accordingly, discharged.
(2.) BECAUSE , in the absence of any evidence given by the son of the appellant, there is no direct evidence of involvement of the appellant with the incident in question and since the Patwari / Investigating Officer found an alleged suicidal note from the place of occurrence; it is being urged that the conviction of the appellant is without any evidence. In respect of the suicidal note, PW 1 clearly held out that the same was not in the handwriting of the victim. Because PW 1 stated in examination -in -chief that the handwriting in the suicidal note was that of the appellant and, later, in cross -examination, stated that he does not know whose handwriting was on the suicidal note; it cannot be inferred, nor it can at all be contended, that the alleged suicidal note was in the handwriting of the victim, inasmuch as, appellant made no effort to establish or even assert that the said handwriting was that of his wife. The death, in the instant case, took place in the intervening night of 6th and 7th of October, 2004. The incident took place at the matrimonial home of the victim. There is no just reason why the appellant will not be at his own home at the time when the death took place. No contrary case was also made out by the appellant at the trial. The medical report clearly held out that the death was not inflicted by the victim, but was inflicted on her. In the circumstances, mere denial by the appellant of his involvement with the crime alleged will not suffice. The court has every right, in the circumstances of the case, to draw adverse inference against the appellant. That having been done in the instant case, there is no scope of interference. The appeal, accordingly, fails and the same is dismissed. Let the appellant, who is in jail, serve out the remaining part of the sentence. Let a copy of this order be sent to the court below, along with the Lower Court Records, for compliance.;

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