Decided on March 13,2013

RAJESH Appellant


Barin Ghosh, C.J. - (1.) IN the instant case, the dead body of the wife of the appellant was found in the room, where she used to sleep situate in her matrimonial home. The dead body was sent for post mortem. A First Information Report was filed, where it was alleged that the victim has been murdered by her husband, the appellant; the father -in -law; and the mother -in -law of the victim, i.e. the father and the mother of the appellant. After investigation was completed, a charge -sheet was filed against the appellant alone holding out that he is guilty of commission of an offence punishable under Section 302 of the Indian Penal Code. Accepting the evidence tendered by the prosecution through prosecution witnesses and through documents, the court below has accepted the prosecution case and has sentenced the appellant for murder of his wife punishable under Section 302 of the Indian Penal Code. Appellant has been awarded a sentence of life imprisonment with fine of Rs. 5,000/ -. Appellant is still in custody. Dr. Pradeep Kumar Badel deposed in course of trial as PW6. He had prepared the post mortem report. In the post mortem report, he reported, amongst others, "rupture of larynx and trachea and hyoid bone seen". He did not indicate, whether the ruptures were post mortem or ante mortem. In the post mortem report, he categorically stated that cause of death could not be ascertained and, accordingly, viscera has been preserved for chemical analysis. The fact remains that the viscera, thus preserved, was sent for chemical examination to Forensic Science Laboratory, Agra. The said Laboratory reported that no poisonous substance was found in the viscera. Although 8 witnesses appeared to support the prosecution story, but none of them could establish that the death, in the instant case, was a result of homicide. PW6, while deposing, supported his post mortem report and categorically stated that the cause of death could not be ascertained. With that, he added that ruptures of larynx, trachea and hyoid bone, as was seen by him, could cause the death. He, at the same time, said that the post mortem was done belatedly and, accordingly, many a things could not be ascertained.
(2.) IN the background, the conclusion would be that there was no concrete evidence that it was a case of homicide. If it was not a case of homicide, question of the case becoming a case of murder did never arise. The learned court below, while considering the evidence of PW6, placed reliance upon the opinion given by the said witness in relation to matters noticed by him, but did not take notice of the positive evidence given by the said witness that the cause of death could not be ascertained and, accordingly, concluded the matter on the basis of unconnected opinion and contrary to the evidence on record. We, accordingly, interfere and set aside the judgment under appeal. Let the appellant be released forthwith, if not wanted in any other case. The appeal, accordingly, stands allowed. Let a copy of this judgment be sent to the court below, along with the lower court records, for compliance.;

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