ORDER :

Goutam Bhaduri, J.

1. This present appeal is against the impugned judgment of conviction and order of sentence dated 23.07.2021 passed by the Second Additional Sessions Judge, Ramanujganj in Sessions Trial No.97/2018, whereby the appellant has been convicted and sentenced as below:-

2. The prosecution case, in brief, is that a report was lodged by Sanjay Palhe, PW-1 in the Police Station that on 03.06.2018, his wife-Phulmaniya, the deceased, went for bath along with her son Aman at canal named Sarpdaha at 7 AM and his son came back and informed that the neighbour Roshan Bek, the appellant herein drowned his mother by throttling, resultantly, the mother died. Thereafter, the appellant fled away. Husband of the deceased thereafter came at the spot and found that his wife was dead. It was further stated in the report that the appellant-accused has committed eve teasing with Phulmaniya, the deceased, for which, panchayat was also convened in the village. Thereafter, on 02.06.2018, the appellant wanted to talk with Phulmaniya, having refused subsequently, this act was done. Merg intimation was lodged and dead body was subjected to postmortem and in the postmortem report, death was shown by throttling and drowning. In continuation of investigation, statement of witnesses were recorded and FSL report was also obtained. After completion of entire investigation, charge sheet was filed under Section 302 of the IPC. During the course of trial, the appellant abjured his guilt and claimed to be tried. The prosecution examined as many as 14 witnesses and after evaluating the evidence, convicted the appellant as aforesaid. Hence, this appeal.

3. Learned counsel for the appellant would submit that the conviction of the appellant is solely based on the statement of Aman (PW-2), son of the deceased, which would show that he has not disclosed this fact to anyone, except his father, therefore, major contradiction exists. It is further submitted that the eye-witness has turned hostile, therefore, the statement cannot be believed. It is also submitted that the FSL report whereby bone and water was examined, which is vague and only positive report was submitted which would not lead the guilt to be proved. It is also submitted that so-called eyewitnesses, Nadhira (PW-5) and Phulbasiya (PW-6) have also not supported the case of the prosecution, therefore, the learned trial Court only on the basis of presumption, convicted and sentenced the appellant as aforesaid and the instant appeal deserves to be allowed.

4. Per contra, learned counsel for the State would submit that the postmortem report of the deceased would show that the death was caused due to drowning and asphyxia. It is further submitted that the external examination of the dead body proves that the tongue was protruded which leads to prove cause of death. It is also submitted that there is an eye-witness of the incident i.e. Aman (PW-2), son of the deceased, therefore, the quality of the evidence of Aman, PW-2 cannot be discarded and the conviction of the appellant is well merited and does not call for any interference.

5. We have heard learned counsel for the parties and perused the record carefully.

6. The merg intimation (Ex.P-1) in this case was lodged on 03.06.2018 i.e. on the date of incident at about 09.30 AM. The incident was stated to be at 7 AM. Merg intimation was lodged by Sanjay Palhe, (PW-1), the husband of the deceased. Report of the merg intimation would show that it was disclosed by his son-Aman, who went along withhis mother to take bath in the canal named “Sarpdaha”. It was informed by his son that the appellant-accused caught hold of her neck, drowned his mother in the canal water till she died. The