ORDER

A.K. Patnaik, J.:-

This is an appeal against the judgment dated 28.07.2006 of the Division Bench of the Calcutta High Court in Criminal Appeal No. 397 of 1988.

2. The facts verybriefly are that Madhabi Patra @ Khendi got married to Joydeb Patra, the Appellant No. 1 herein. Through the marriage she got a daughter. She again became pregnant and when she was carrying the pregnancy for nine months, a ceremonial function called 'Sadh' was arranged on 18th Baisak, 1393 B.S. After taking food, Madhabi fell ill and her condition deteriorated quickly and she died late in the night. According to the prosecution, Madhabi (the deceased) had died because poison was administered to her with the food by the appellants. Accordingly, after investigation, a charge- sheet was filed and the Appellant No. 1 and his father, brother (appellant No. 2), sister (appellant No. 3) and mother (appellant No. 4) were tried and convicted under Section 302/34, I.P.C. The accused persons filed Criminal Appeal No. 397 of 1988 before the High Court of Calcutta but by the impugned judgment, the High Court maintained the conviction of the appellants.

3. We are told that the father of the Appellant No. 1 died when the appeal was pending before the High Court and appellant No. 3 died during the pendency of the appeal before this Court.

4. We have heard learned counsel for the appellants and learned counsel for the State at length and we find that the conviction of the appellants is solely based on the evidence of PW 12 who conducted the postmortem on the body of the deceased that the death was due to poisoning. The Trial Court and the High Court have taken a view that as the deceased died on account of poisoning, onus was on the appellants to show that the deceased did not die on account of homicide but suicide. We also find on a reading of the lengthy judgments of the Trial Court as well as the High Court that the explanation given by the accused persons before the Courts explaining their suspicious conduct has been rejected by the two Courts as not believable and it has been ultimately held that the appellants were guilty of the offence under Section 302 read with Section 34, IPC.

5. On a perusal of the evidence, however, we find that in the Inquest Report (Ext. B) prepared on 03.05.1986 (the date on which the deceased died) it is stated that though the relatives of the deceased stated that she has taken poison, no froth was seen on the nostril and mouth of the deceased. The postmortem report (Ext. P 2) prepared on 4.5.1986 by PW 12 does not state the cause of death of the deceased. PW 12 has stated in the postmortem report:

“Opinion as to the cause of death is kept reserved pending to receipt of C.E.'s report on the preserved viscera.”

Thus PW 12 has not been able to reach a conclusion about the cause of death of the deceased when he examined the dead body of the deceased one day after the death of the deceased and has instead preferred to await the report of the Chemical Examiner of the Forensic Science Laboratory, Government of West Bengal. The report of the Senior Chemical Examiner, Forensic Science Laboratory, Government of West Bengal finds place in the record of the Trial Court. This report states that the glass jar contained a stomach with its contents, portion of liver, gall bladder, kidneys and spleen said to be of Madhabi Patra and the test tube contained some salt solution said to be a sample preservative used in the above viscera. The report states the following result of the examination:

“No poison could be detected in the viscera said to be of Khendi @ Madhabi Patra.”

6. After reading the postmortem Report (Ext. P 2) and the report of the Senior Chemical Examiner, Forensic Science Laboratory, Government of West Bengal, we are of the considered opinion that there was no evidence to show that the death of the deceased was caused by administering poison. Nonetheless, an effort was made by the prosecution at the time of examination of PW 12 in Cou