JUDGMENT: Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division Bench of the Calcutta High Court dismissing the appeal filed by the appellant and upholding the conviction for offence punishable under Section 302 of the Indian Penal Code,1860 (in short the `IPC) and sentence of imprisonment for life and fine of Rs.1,000/- with default stipulation.

3. Prosecution version as unfolded during trial is as follows:

Jyotsna (hereinafter referred to as the `deceased) was married to the appellant. They were blessed with a child. Satish Mallick, PW 8 was the father of the deceased and Kulu Mallick, PW 9 was the mother of the deceased. On the fateful day the deceased and the accused were sleeping together i.e. on 5.4.1999. At about 5 O clock on 5.4.1999 Malati Mallick, the elder sister of the deceased reported to the complainant and told him that his elder sister was lying in a pool of blood. Thereafter he went to the bedroom of Jyotsna and found that she was lying dead on a pool of blood and there was a cut mark in the right side of her neck. At that time the accused was not present. Since the accused and the deceased were sleeping together after taking their food, the de-facto complainant concluded that the accused had killed his wife. Matter was reported at the police station. After investigation charge sheet was placed and the accused faced trial. In his cross examination under Section 313 of the Code of Criminal Procedure, 1973 (in short the `Code) the accused took the plea of alibi. Since it was a case of circumstantial evidence the trial court referred to certain circumstances to find the accused guilty. The appellant preferred an appeal before the High Court which as noted above was dismissed.

4. Learned counsel for the appellant with reference to the evidence of witnesses submitted that though 11 circumstances were highlighted to hold the appellant guilty, none of them can really be called to be a circumstance to fasten the guilt on the accused. It was submitted that though the so called last seen aspect was highlighted by the trial court and the High Court, the evidence of the witnesses clearly show that the factual scenario was totally different.

5. Learned counsel for the State on the other hand supported the order of the High Court.

6. The circumstances highlighted by the trial court to find the appellant guilty are as follows: "

(a) The appellant and Jyotsna @Mithila were married to each other.

(b) The couple had a little child.

(c) The appellant used to reside for quite some time in his in-laws house and used to earn his living by plying a rickshaw.

(d) Between the nights of 4/5-4-1999 the dead body of Jyotna was found in her house with her throat slit with profuse bleeding.

(e) There was a recovery of the axe by PW 6 after being led by the appellant from the house of PW 8 along with a blood stained shirt of the appellant on 5.4.1999 at 20.15 hours in the presence of PW 2 Sushil Bhakta and one Muchiram Soren (not examined).

(f) Both the axe and the shirt contained bloodstains

(g) PW 7 Uma kanta Singh sent the same to the Forensic Laboratory for examination.

(h) The report marked as Exh.5 shows that insufficient blood for serological test was detected in the shirt and in the handle of the axe and the serological Test Report shows as the bloodstains on the axe were disintegrated its origin could not be detected.

(i) The seizure List (Exh.2) leading to the recovery of the axe and the shirt of the appellant was also signed by the appellant himself.

(j) The sketch Map (Exh.7) prepared by PW 7 Uma Kanta Singh also shows that the place of occurrence has been described as the house of PW 8.

(k) The Post Mortem Report was marked as Exh.9. However, the doctor was not examined and the same would be admissible for whatever worth it is for."

7. Before analyzing factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committ