JUDGMENT

Joymalya Bagchi, J. - appeals have been preferred against the self-same judgment and order dated 20.12.2013 and 21.12.2013 passed by the learned Additional Sessions Judge, Fast Track, 2nd Court, Lalbagh, Murshidabad convicting the appellant for commission of offence punishable under Sections 302 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Rs.3,000/-, in default, to suffer rigorous imprisonment for six months more.

2. As Criminal Appeal No. 119 of 2014 is prior in point of time, we hold Criminal Appeal No. 469 of 2014 is not maintainable and is accordingly dismissed. Criminal Appeal No. 119 of 2014 is taken up for hearing and disposed of on merits.

3. Prosecution case against the appellant is as follows:-

4. On 17.5.2011, the victim Dibarani Mondal, a young widow had gone to Lalbagh Hospital along with his brother Madhusudan Mondal (P.W.2) for treatment. They left their residence at 7.00 A.M. Dibarani was treated by Dr. Bibhash Mukherjee at the hospital who prescribed medicines. After purchasing medicines, Dibarani and Madhusudan came to the house of their relation Chhidam Mondal at village Amaipara under Jiaganj Police Station around 2.00 P.M. They had food and left for their residence around 4.00 P.M. On their way, an unknown person started following them in a bi-cycle near a bridge over river Bhairab at village Ranitala. When they reached Char Bathanpara village, the unknown person suggested they could take a route through the open field which would be shorter. On his suggestion, Dibarani and her brother took the route through the open field. The said person followed them. After some time, he assaulted Madhusudan who left the spot in his bi-cycle out of fear. Madhusudan saw the unknown person drag his sister into the field.

5. He rushed to his house and informed his parents. His parents and other villagers searched for Dibarani. They found her lying dead in the jute field. She had a black spot around her neck and her clothes were dishevelled. Police came to the spot and body of Dibarani was removed to the hospital. Tulshi Mondal (P.W.1), father of the victim lodged written complaint resulting in registration of Raninagar P. S. Case No. 283 of 2011 dated 17.05.2011 under Sections 376/302 of the Indian Penal Code. Inquest and post mortem were held over the body of the victim. In course of investigation, appellant was arrested. He was identified by P.W.2 during test identification parade. Charge sheet was filed against him and charges were framed under Sections 376/302 IPC. Appellant pleaded not guilty and claimed to be tried. In course of trial, prosecution examined 12 witnesses and exhibited a number of documents. Defence of the appellant was one of innocence and false implication. In conclusion of trial, the trial Judge by the impugned judgment and order dated 20.12.2013 and 21.12.2013 convicted and sentenced the appellant, as aforesaid.

6. Ms. Sabana Hasin, learned Advocate for the appellant submits there is no eye-witness to the incident. P.W.2, a 13 year old boy, had not named the appellant. He had described the miscreant as a 35 year old man but the appellant was barely out of his teens at the time of occurrence. There is possibility appellant was shown to P.W.2 prior to T.I. Parade examination. Hence, identification of the appellant by P.W.2 is unreliable. Relying on the cross-examination of the post mortem doctor (P.W.9), she submits the doctor opined death occurred 36/48 hours prior to the post mortem examination which was held around 2.00 P.M on 18.05.2011. Although P.W.2 claimed they had lunch around 2.00 P.M. and the incident occurred five hours later around 7.30 P.M., post mortem doctor found food in the stomach of the deceased and opined death was one hour after taking food. Opinion of the doctor regarding time of death completely demolishes the prosecution case. Offence of rape had not been proved and motive to commit crime has not been established