RAJARSHI BHARADWAJ,J. - (1.) The instant appeal is against the judgment and order of the learned Court of Additional Sessions Judge, Arambagh, Hooghly, dated 31st August, 2012 and 1st September, 2012 in Sessions Case No. 5 of 2007, Session Trial No. 1(5) of 2007 arising out of G.R No. 419/2005 convicting the appellant for the commission of offence punishable under Section 304 of the Indian Penal Code and sentencing him with 7 years of simple imprisonment and with fine of Rs. 5000 in default further simple imprisonment of six months. The instant prosecution case in brief is as follows: On 21st August, 2005 around 10:25 A.M, Sagar Patra, a cultivator and resident of Village Telua, P.S- Arambagh, lodged a written complaint before the Officer in Charge of Arambagh Police Station that at about 7 A.M his wife Purnima Patra went to fetch water from Sure Pukur and while returning she was hit with a spade on her back by Nil Ratan Santra. Immediately after that, his wife unconsciously fell down on road with huge bleeding. Then the Police arrived at the spot and the victim was admitted at Arambagh Hospital and she died afterwards. He also alleged that the accused wanted to establish an illicit relationship with his wife but she refused it. He also added that every night the appellant Nilu used to abuse them after taking alcohol in the cowshed of Subrata Dutta and used to threaten them that he will cause harm to them. On the basis of the written complaint, charge framed against the appellant under Section 304 of the Indian Penal Code and the accused pleaded not guilty.
(2.) Mr. Gautam Banerjee, learned Advocate submits that the prosecution has failed to establish the alleged illicit relationship with the deceased and the statements of P.W 3, P.W 5, P.W 6 and P.W 11 are not reliable. He also adds that though the spade was seized from the spot neither the blood sample nor the blooded spade was sent for forensic examination. Learned Advocate further submits that there is no properly recorded dying declaration by P.W 10, the doctor and not even the accused was satisfactorily examined under Section 313 of the Code of Criminal Procedure by the learned Judge. Thus, the learned Counsel for the appellant prays that the appeal may be allowed by setting aside the impugned judgment of the said Court of Additional Sessions Judge, Arambagh, Hooghly, in Sessions Case No. 5 of 2007, Session Trial No. 1(5) of 2007.
(3.) On the other hand, learned Counsel appearing for the State has pleaded that the evidences of the prosecution is cogent and consistent and the punishment of such brutal act sentenced by the learned Additional Sessions Court, Arambagh, Hooghly to be upheld.;