In a murder case, the court must consider both aggravating and mitigating circumstances before imposing a sentence. The death sentence should be imposed only in the rarest of rare cases.

JUDGMENT

Joymalya Bagchi, J.

1. Appellant was convicted for murdering of his wife and sentenced to death and to pay a fine of Rs.10,000/-, in default, to suffer imprisonment for three months.

2. Being aggrieved by the aforesaid judgment and order, he has preferred the instant appeal. Reference has also been made to confirm the death sentence.

3. Prosecution case as levelled against the appellant is to the effect that he had married Namita Hazra thirty years ago. They had two sons viz., Palash and Kalosona aged about 26 and 24 years respectively. On 30.06.2007 at about 9.00 A.M. appellant had gone to the market. He returned around 10.30 A.M. with a boy viz., Bikash Das (PW3) of Bhagason village. Appellant handed over a table fan to him. After Bikash left, a quarrel ensued between appellant and Namita over the issue of giving the table fan to Bikash. Incidentally, a day before Bimal Ghosh, brother of Namita had come to her matrimonial home. He pacified the couple. Namita went upstairs while the appellant started watching television with his brother-in-law, Bimal. Around 11.10 A.M. appellant went upstairs. A few minutes later, Bimal heard the sound of a table fan falling. He rushed upstairs and found his sister lying with bleeding injuries on the bed. Appellant was standing with a bogida (Scimitar) in his hand. He was wearing only an under pant and had blood stains on his body. Bimal raised hue and cry. Appellant fled away from there. Bimal chased him but realising his sister was in precarious condition went upstairs. Unfortunately, his sister had died. After some time, Palash, elder son of the couple returned home. Then Bimal went to the police station and lodged first information report resulting in registration of Monteswar Police Station Case No.51 of 2007 dated 30.06.2007 under Section 302 of the Indian Penal Code.

4. In the course of investigation, the weapon of offence was seized. Appellant was arrested and charge sheet was filed. Charge was framed under Section 302 of the Indian Penal Code. Appellant pleaded not guilty and claimed to be tried.

5. In the course of trial, prosecution examined 16 witnesses and exhibited a number of documents. Defence of the appellant was one of innocence and false implication. In conclusion of trial, trial Judge by the impugned judgment and order dated 04.01.2018 and 05.01.2018 convicted the appellant for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to death.

6. Mr. Malay Bhattacharyya with Mr. Subhrojyoti Ghosh, learned Advocates for the appellant argued none of the witnesses had seen the incident. Presence of PW1 at the residence of the appellant is unlikely. He is an interested witness. PWs5 and 7 are post occurrence witnesses. FSL report does not confirm the presence of human blood on the weapon of offence i.e. bogida (Scimitar). Hence, prosecution case has not been proved. Imposition of death sentence is wholly disproportionate and not justified in the factual matrix of the case.

7. On the other hand, Mr. Partha Pratim Das, learned Advocate for the State submits PW1 was present in the house when the incident occurred. Hearing hue and cry, he went upstairs and saw the appellant standing with a bogida (Scimitar). He had bloodstains on his body. Soon thereafter, he fled. His deposition is corroborated by PWs5 and 7, who are nieces of the appellant. He further submitted neighbours i.e. PWs8 and 9 corroborated the prosecution case. Soon after the incident, appellant rushed to the residence of PW9 with bloodstains. PW9 saw the appellant at koltala (beside a tap). Thereafter, the appellant fled away from the village. He was seen by PW13. Appellant had snatched a gamcha from him. PW11, post mortem doctor proved the post mortem report. Extensive sharp cutting injuries were found on the head and neck of the deceased which corroborated the prosecution case. Conviction and sentence of the appellant is to be upheld.

8. PWs1, 5 and 7 are the most vital witnesses.

9. Bimal