The court held that the prosecution had established the guilt of the appellant beyond reasonable doubt based on the victim's testimony, the medical evidence, and the seizure of the weapon, and that the discrepancies in the testimony of the prosecution witnesses were minor and did not impact their reliability.

JUDGMENT

Debangsu Basak, J. - The appellant has preferred an appeal against the judgement and order of conviction dated March 18, 2021 passed by the learned Sessions Judge, Birbhum in Sessions Trial No. 11 of 2019 arising out of Sessions Case No. 24 of 2019.

2. By the impugned judgement and order of conviction dated March 18, 2021, the learned trial judge has convicted the appellant under Section 326 of the Indian Penal Code, 1860 and sentenced the appellant to undergo rigorous imprisonment for 10 years along with a fine of Rs. 10,000 in default to undergo simple imprisonment for further 6 months for commission of the offence punishable under Section 326 of the Indian Penal Code, 1860.

3. The prosecution had alleged before the trial Court, against the appellant that, the appellant married the victim on July 3, 2005 according to Muslim Shariat law and that they were living as husband-and-wife. The appellant had subjected his wife to physical and mental torture by severely assaulting her while being in a drunken condition and on October 4, 2018 at about 5 AM the appellant had assaulted his wife with a sharp cutting tool on both her hands, legs nose, ear and neck at random, inflicting serious injuries and causing grievous hurt with the intention of murdering her.

4. Charges had been framed as against the appellant on July 16, 2019 under Sections 498A/326/307 of the Indian Penal Code, 1860. The appellant had claimed to be innocent and was tried. At the trial, the prosecution had examined 10 witnesses and tendered documentary and material evidence. On the conclusion of the evidence on the part of the prosecution, the appellant had been examined under Section 313 of the Criminal Procedure Code where the appellant claimed to be innocent and falsely implicated.

5. Learned advocate appearing for the appellant has submitted that, there were contradictions in the testimonies of the prosecution witnesses. He has drawn the attention of the Court to the evidence of PW 2 who is the injured witness and the evidence of the medical officer being PW 5 treating PW 2 at the material point of time. He has contended that, the discrepancies are major and fatal to the case of the prosecution.

6. Learned advocate appearing for the appellant has submitted that, two vital witnesses were not examined by the prosecution. He has referred to the materials in the paper book and submitted that, non-examination of such material witnesses were fatal to the case of the prosecution.

7. Learned advocate appearing for the appellant has submitted that, pictures which were marked as exhibits at the trial did not have the requisite certificate under Section 65B of the Evidence Act. Consequently, such the pictures could not have been admitted in evidence.

8. Learned advocate appearing for the appellant has submitted that, the allegation as against the appellant was that, the appellant assaulted his wife with a sharp cutting tool. Such sharp cutting tool and the wearing apparels were not sent by the prosecution for forensic examination. In absence of such forensic examination, the benefit of doubt should be afforded to the appellant in view of the fact that, the prosecution had failed to bring forth the best evidence available.

9. Learned advocate appearing for the state has submitted that, the evidence of the victim being PW 2, the doctor treating the victim being PW 5 and PW 6 were of vital importance. He has submitted that, the doctor who attended to the victim stated that, on October 4, 2018, the victim disclosed to him the history of assault by the appellant. He has referred to the list of injuries found on the victim.

10. Learned advocate appearing for the state has submitted that, PW 6 was another doctor and who examined the victim on October 30, 2018 and treated her for her bone and tendon injury. According to him the testimony of the 2 doctors and the medical papers had corroborated the version of the victim being PW 2.

11. Learned advocate appearing for the state has subm