The prosecution must prove its case beyond doubt, and it cannot rely on the weakness of the defence version to prove its case.

JUDGMENT :

(Joymalya Bagchi, J.) :

1. Appellant has assailed judgment and order dated 24.4.2018 and 25.4.2018 passed by the learned Additional Sessions Judge, 3rd Court, Tamluk, Purba Medinipur convicting the appellant for commission of offence under section 302/201 IPC and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Rs. 20,000/-, default, to suffer simple imprisonment for one year for the offence punishable under section 302 IPC and to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 5,000/-, in default, to suffer simple imprisonment for three months more for the offence punishable under section 201 IPC. Both the sentences shall run concurrently.

2. Prosecution case, as alleged against the appellant is to the effect that on 30.01.2010 around 11 p.m., the appellant brought his wife Bulti Gantait to Moyna BPHC. She was examined by Dr. Ashok Kr. Maity (PW8). Upon examination Dr. Maity found that Bulti had already died. He intimated the Officer-in-Charge Moyna PS resulting in registration of Moyna P.S UD case no. 4/10 dated 31.1.10.

3. SI Nirmal Kr Majhi, the then Officer-in-Charge, Moyna P.S handed over the investigation of the unnatural death case to SI P K Sarkar (PW 16). PW16 held inquest over the dead body. Magisterial inquest was held by PW11, the then BDO Moyna. Thereafter, body was sent for autopsy examination. PW 14 autopsy surgeon deposed he held post mortem examination over the body on 31.1.2010 and 1.2.2010. However, no post mortem report was submitted for three years. Finally, on 24.10.2013 post mortem report was received by post at the police station. Post mortem report revealed the victim housewife had died due to combined effects of smothering and neck compression, ante mortem and homicidal in nature.

4. Pursuant thereto, Officer in charge, Moyna PS, SI Raja Mukherjee PW1 lodged suo motu FIR against the appellant and other in-laws namely Tapas Gantait (father-in-law), Smt. Jhampirani Gantait (mother-in-law) and Khukurani Gantait (sister-in-law) under sections 498A/302/201 IPC.

5. In conclusion of investigation, charge sheet was filed and charges were framed against the appellant and co-accused under sections 201/302/498A/34 of the IPC. In course of trial, prosecution examined 17 witnesses and exhibited a number of documents. Defence of the accused persons was one of innocence and false implication. In conclusion of trial, learned trial Judge by judgment convicted and sentenced the appellant, as aforesaid. By the self-same judgment, co-accused were acquitted.

6. Mr. De, learned Senior Advocate for the appellant submits there is no direct evidence that the appellant had murdered his wife. On the other hand, he had taken his wife to the hospital where she was declared dead. Appellant informed that it was a case of poisoning. No viscera report was produced by the prosecution to rule out death by poisoning. No complaint was lodged from any quarter alleging cruelty or ill-treatment upon the housewife. Evidence of PWs 5 and 6 mother and uncle of the victim lady with regard to torture is an afterthought and was rightly disbelieved by the trial court which acquitted the appellant of the charge under section 498A of the IPC. Prosecution case of murder solely rests on the opinion of post mortem doctor PW14. He prepared post mortem report after three years of the incident. Hence, his opinion is highly suspected and cannot form the basis of conviction. Moreover, notings in the post mortem report with regard to injuries on the face and mouth have neither been corroborated by the inquest report prepared by PWs 11 and 16 nor by PW8, the doctor who first examined the victim and declared her dead. No injuries were found on the neck though it was opined that one of the causes of homicidal death was neck compression. Trial Judge failed to take into consideration the prosecution case of homicidal death and illegally shifted the onus on the appellant to prove that the death was due to