BIREN MAHANTA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The appeal is directed against the judgment and order dated 30.07.2013 and 31.07.2013 passed by the learned Additional District and Sessions Judge, Fast Track 2nd Court, Alipurduar, Jalpaiguri in connection with Session Trial No. 71 of 2012 arising out of Session Case No. 123 of 2012 convicting the appellant for commission of offence punishable under Sections 302 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Rs. 5,000/-, in default to suffer further rigorous imprisonment for a period of six months more.

(2.) Prosecution case as against the appellant is to the effect that the victim Saraswati was married to the appellant 14 to 15 years ago. The appellant was alcoholic and used to waste his money on gambling and drinking. When the victim asked for household expenses he misbehaved with her and even assaulted her. On 05.02012 at 3.00 a.m. Shankar Adhikary, the brother of the victim received a telephonic call that the appellant had murdered his sister by suffocating her and had thrown her body in the meadow. He went to the matrimonial home of her sister and found her lying dead in the meadow. Under such circumstances, he lodged written complaint with Samuktala Police Station resulting in registration of FIR No. 67 of 2012 dated 05.03.2012 under Sections 498A/302 of the Indian Penal Code. In conclusion of investigation, charge-sheet was filed and the case was committed to the Court of Sessions and transferred to the Court of learned Additional District and Sessions Judge, Fast Track 2nd Court, Alipurduar, Jalpaiguri for trial and disposal. Charges were framed under Sections 498A/302 of the Indian Penal Code. The appellant pleaded not guilty and claimed to be tried. Prosecution examined ten witnesses and exhibited a number of documents. In conclusion of trial the learned Trial Judge by judgment and order dated 30.07.2013 and 31.07.2013 convicted and sentenced the appellant, as aforesaid. By the self-same judgment and order the appellant was, however, acquitted of the charge under Section 498A of the Indian Penal Code. Mr. Mullick, learned Counsel appeared along with Ms. Biswas, learned Counsel for the appellant and submitted that P.W. 2 is the sole eye-witness in the case. He is a minor child and it is unsafe to rely on his evidence to bring home guilt. The body of the victim was recovered from the meadow and hence it cannot be said that the appellant had exclusive access at the time of occurrence. Accordingly, the appeal is liable to be allowed.

(3.) Mr. Maity, learned Additional Public Prosecutor, argued that P.W. 2, the son of the victim, is the eye-witness to the incident. He categorically stated as to how his mother was murdered. Prior to recording his deposition, trial Court had tested his capacity to depose. Autopsy surgeon, P.W. 8, has corroborated the evidence of the ocular witness. Hence, the appeal is liable to be dismissed.