- (1.) THIS appeal arises out of the judgment and order dated 26th August, 2004 and 27th August, 2004 passed by the Additional Sessions Judge Fast Track Court, Bankura in Sessions Trial No. 7 of 2003 arising out of Sessions Case No. 10 of 2002 whereby and whereunder the appellant was convicted under Section 302 I.P.C and directed to suffer rigorous imprisonment for life and also to pay fine of Rs. 1000/ -, in default to suffer further rigorous imprisonment for three months.
(2.) THE case of the prosecution is that the victim girl was married to the accused appellant and was found dead within the bed room of the appellant. The said incident occurred on 1st October, 1999 and an F.I.R was filed on the same day at 15 -20 hours by P.W. 1, the brother of the victim girl. On the basis of such F.I.R. , Bankura P.S. Case No. 69 of 1999 under Sections 498A/304B/34 I.P.C was initiated. Thereafter, an inquest was held both by the Officer -in -Charge of the concerned police station and by the Magistrate. Such inquest was made in the bed room of the Victim Girl, as will appear from the rough sketch map wherein the place of occurrence has been fixed. . At the time of inquest, the Victim Girl was found wearing only a petticoat with no other garment on her body. A wooden cot was found broken and lay on her neck and the clamps of the wooden portion of the cot was found intact. Thereafter by a challan, the body of the victim girl was sent for postmortem and a report was submitted by P.M. Doctor, who has opined that the death of the victim girl in his opinion was due to manual strangulation, ante mortem and homicidal in nature. Thereafter charge sheet was filed and on the basis of the said charge sheet, charges were framed under Sections 498A and 302/34 I.P.C.
(3.) THE charge as framed was read out and explained to the accused appellant to which he pleaded not guilty and sought to be tried. Thereafter trial commenced and prosecution examined 13 witnesses. The accused appellant was also examined under Section 313 of the Code of Criminal Procedure and on the basis of the oral evidence so also documents proved, the trial court convicted the accused appellant under Section 302 I.P.C to suffer rigorous imprisonment for life and to pay fine of Rs. 1000/ -, in default to suffer further rigorous imprisonment for three months. Being aggrieved by the said order, this appeal has been filed. Counsel for the appellant submits that prosecution has not been able to prove its case. P.W. 1 the F.I.R. maker and brother of the victim girl has specifically stated that he visited his sister and stayed with the victim girl and brother -in -law that fated night. Her body was found in the tank and when the brother reached the tank, he found a crowd assembled there. The body of the victim girl was brought to her matrimonial home. This evidence of P.W. 1 is supported by the evidence of P.W. 2, P.W. 4,(Mother), P.W. 7 and P.W. 8, each of whom has stated that the body was found near a tank. Although this was the specific case of the prosecution witness, no step was taken by the prosecution to prove the same. P.W.13 (scribe) has categorically stated that the F.I.R. was written in the court compound and that he did not recognize any one. There has been no cross - examination on the body being found at the Pukurghat and the house. In the examination under Section 313, no question has also been put as to how the body came to the house. As there is evidence that the body was found in the tank or pond and brought to the house, two views are apparent and in view of 2001(3) CHN 407, the benefit of doubt be given to the appellant. The evidence of P.W. 12, (I.O.) is full of contradictions. At the time of the Magisterial Inquest, the presence of the appellant and his parents will be evident. P.W. 12 in his evidence has categorically stated that on the date of the inquest, he did not find any of the members of the house of the accused persons. This evidence is contrary to the report of the Magisterial Inquest which has been signed by the accused appellant. In examination under Section 313 of the Code of Criminal Procedure the accused appellant has admitted to the body being found in the pond or the death occurring due to fall in the pond. Therefore, the order of conviction cannot be supported and be set aside.;