- (1.) IN this Appeal the judgment and order of conviction dated 24th April, 2006 and 25th April, 2006 is under challenge. The said order was passed by the Additional Sessions Judge, 2nd Court, Bankura in Sessions Trial No.7/8/ 2004, arising out of Sessions Case No. 19/1/2004 under Sections 498A and 302 I.P.C.
(2.) THE case of the prosecution is that the accused appellant was married to the victim wife. The accused appellant was addicted to gambling and drinks, which resulted in demand for money by the accused appellant from the victim wife. The mother of the accused appellant would support her. The victim wife was killed by the accused appellant on 18th March, 2002. An F.I.R. was filed by the brother of the victim wife on the same day at 13.35 hours. Prior thereto, a U.D. Case was started at 10.55 hours on the same day and completed at 12.25 hours. It is only thereafter that the F.I.R. was filed and Sonamukhi P.S. Case No.13 dated 18.3.02 was initiated. On completion of inquest, the Constable, being P.W.6, accompanied the body of the victim wife for Post Mortem purposes. The report of the Post Mortem doctor is exhibit -4. What emerges therefrom is that the death of the victim wife was homicidal in nature and was the result of asphyxia due to haemorrhage shock caused by incised wound. A Charge Sheet was submitted and charges framed against the accused appellant under Sections 498A and 302/34 I.P.C. The said charges were read over and explained to the accused persons in Bengali individually when each pleaded not guilty and claimed to be tried. Thereafter, 11 witnesses were examined by the prosecution. The accused appellant along with his parents who were also FIR named accused persons were examined under Section 313 Cr.P.C. On consideration of the oral evidence, so also the documents, the order of conviction was passed against the accused appellant both under Section 498A I.P.C. and 302 I.P.C. Under section 498A I.P.C., the accused appellant was directed to suffer R.I. for 3 years with fine of Rs.3,000/ -, in default, to suffer R.I. for 6 months. Under Section 302 I.P.C., the accused appellant was directed to suffer R.I. for life and to pay a fine of Rs.5,000/ -, in default, R.I. for 1 year. The in -laws of the victim wife were, however, acquitted. It will not be out of place to mention that both the sentences were to run concurrently in case of the accused appellant. Being aggrieved by the said order of conviction, this Appeal has been filed and order sought.
(3.) COUNSEL for the appellant submits that the recovery of the offending weapon, being Mat. exhibit -1 cannot be sustained as the accused appellant had surrendered on 23rd March, 2002. His mother, Milani was granted statutory bail on 20th May, 2002, while the accused appellant and his father were granted statutory bail on 24th June, 2002. The offending weapon was seized in the presence of the accused appellant on 23rd June, 2002. As there is no positive evidence against the accused appellant with regard to the offending weapon recovered on 23rd June, 2002, the prosecution has failed to prove its case, more so, when the questions put under Section 313 Cr.P.C. are defective right from the start. On a reading of the said questions, it will appear that the questions with regard to any incriminating evidence was not put to the accused appellant in his examination under Section 313 Cr.P.C. The doctor, P.W.5 has opined that the death of the victim wife was due to asphyxia and homicidal in nature, the said has not been put in examination under Section 313 Cr.P.C. to the accused appellant. Although a husband and wife are to reside together, but there is no compulsion for a husband and wife to reside together every night in their bed room. P.W.7, mother of the victim wife has stated that the accused appellant would roam about here and there taking liquor. P.W.9 stated that the accused appellant is his cousin. He was declared hostile. P.W.9 is not a trustworthy witness as he has stated that the accused appellant after committing murder of his wife fled away. Therefore, it cannot be said that the accused appellant was in his bed room in the company of the victim wife on the fateful night. In his crossexamination P.W.9 has categorically stated that he did not see the accused appellant fleeing in his 161 statement made to I.O. and as appears from the evidence of the I.O. the statement with regard to fleeing is missing. Therefore, the evidence as regards the accused appellant fleeing from his house is nothing but an embellishment.;