IMPORTANT POINT
The judgment establishes that in cases of circumstantial evidence, the absence of a direct witness does not preclude a conviction if the circumstantial evidence is compelling and the accused fails to provide a reasonable explanation for the circumstances surrounding the crime.

JUDGMENT :

Ananda Sen, J.

This appeal is directed against the judgment of conviction dated 22.3.2014 and order of sentence dated 26.3.2014 passed by Sri Sachindra Kumar Pandey, the learned District and Additional Sessions Judge-II, Ghatsila in Session Trial No. 221 of 2013, arising out of Ghatsila P.S Case No. 93/2012, whereby and whereunder, the appellant has been punished to undergo rigorous imprisonment for life and fine of Rs.10,000/-for committing the offence punishable under Section 302 of the Indian Penal Code and rigorous imprisonment for three years and find of Rs.5,000/-under Section 201 of the Indian Penal Code.

2. Learned counsel appearing on behalf of the appellant-convict submitted that P.W.11, who is a child witness is a tutored witness, thus his evidence cannot be relied upon. Since the child was four years old, the Court should have scrutinized his evidence properly with extra caution, more so, when the child was living with the mother of the deceased, there is high probability that the child has been tutored. As per him, P.Ws. 6 (sister of the deceased) and 7 (informant of this case) stated that their statements were recorded at 11:30 p.m in the police picket, but the I.O. of this case, who is P.W. 9, had deposed that the statement of the informant has been recorded at the house at Qr. No. 59/4 in Moubhandar at 9:30 p.m., thus this discrepancy is vital for the prosecution. He further added that the informant had deposed that she had seen finger mark on the throat of the deceased, whereas the Doctor who conducted postmortem, while deposing, has stated that he has not seen any figure mark on the neck of the deceased. He argued that the Investigating Officer has also not seized the broken Cellphone nor obtained the Calls Details Report and nor produced the seized Dupata before the Court nor the same was sent for chemical examination, thus the investigation is not proper. He further submitted that the inquest report was not prepared at the place of occurrence, rather it was prepared on the next day at 7:30 a.m. at HCL Mortuary, Moubhandar, Ghatshila which creates doubt about the case. He also submitted that P.W. 3 has admitted that he has signed the inquest report at 4:30 p.m. As per him, there is nothing on record to suggest that immediately before the death, there was any dispute between the husband and wife i.e. the deceased and no independent person of the locality was produced to give evidence on behalf of the prosecution to prove that the matrimonial relationship was not cordial between the deceased and the appellant. He stated that all the circumstances were not put to the accused while his statement was recorded under Section 313 Cr.P.C., benefit of which should be given to the appellant. The entire case, according to the appellant is based on the circumstantial evidences, but as the chain of circumstances is not complete, it must be held that the prosecution has failed to prove the guilt of the appellant beyond all reasonable doubt. In support of the case of the appellant, he referred the judgment of the Hon’ble Supreme Court reported in the case of (1984) 4 SCC 116 (Sharad Birdhichand Sarda Vs. State of Maharashtra).

3. Counsel appearing on behalf of the State submitted that from the evidence of the informant, it is clear that there was serious dispute between the appellant (the husband) and the wife (the deceased) and the wife was being tortured. In fact, just few hours prior to the occurrence, the appellant told the mother of the deceased (the informant) to take her daughter with her. He further submitted that the medical evidence also corroborates the injury on the deceased and the Doctor has opined that the ligature mark was postmortem in nature. The Doctor also found that the injury on trachea is ante-mortem in nature caused by pressure over the neck and the death was due to asphyxia, as a result of pressure over the neck, which clearly suggests that this is not a case of suicide, which the appella