BIMAL SARDAR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) IN connection with a Sessions Trial held before the learned Additional Sessions Judge, 3rd Court, Nadia, Krishnagar, the appellant Bimal Sardar @ Battery was convicted for committing the offence punishable under section 302 IPC, he was sentenced to death and to pay fine with default clause. In the same trial he was also convicted and punished for committing the offence punishable under section 376(2)(I) IPC and under section 201 IPC and thereunder sentenced to suffer imprisonment for life and rigorous imprisonment for 7 years respectively and to pay fine with default clause.

(2.) WHILE the appellant in a statutory appeal, challenged the order of conviction and sentence, the learned trial court, submitted the Death Reference before this court seeking confirmation of sentence of death. Both the appeal as well as the Death Reference were taken up for hearing together.

(3.) IT is found from the records that during the examination of the appellant under section 313 CrPC, although several alleged incriminating circumstances appearing in the evidence against him and relied upon by the trial court to conclude his guilt, were put to him but one very vital circumstance that is the opinion of the Autopsy Surgeon PW/11, Dr. Ajit Biswas that the death of the victim was due to asphyxia resulting from manual throttling, which was ante -mortem and homicidal in nature was excluded. We further find, this witness (PW/11) was cross -examined at length by the defence and during such cross -examination his evidence that the victim was killed by manual strangulation was challenged from various angles. The trend of cross -examination of this witness clearly indicates that the prosecution case that before her death the victim was sexually violated was also challenged. The trial court examined Dr. Sudhansu Sekhar Jana as a court witness and his evidence was also relied upon, however, no question as regards to the incriminating circumstance available from his evidence was put to the accused in his examination under section 313 CrPC. It appears from the order passed on February 17, 2011 by the Trial Court, the said court witness was examined and after his examination -in -chief, the evidence was closed but nothing reflects therefrom that before closure of the evidence the appellant was given any opportunity to cross -examine the said witness.