Bhusan Tripura vs State Of Tripura

By means of this appeal filed under Section 374(2) of the Cr.P.C., the judgment of conviction and order of sentence dated 08.11.2013 delivered in ST 60 (ST/U) of 2012 by the Sessions Judge, South Tripura, Udaipur, as he then was, has been challenged by the convict, hereinafter the appellant. By the said Judgment dated 08.11.2013 the appellant has been convicted under Section 302 for committing murder of his wife Ganga Rani Tripura on 07.07.2011.

The genesis of the prosecution is rooted in the written ejahar filed by Sri Gouranga Biswas, Sub-Inspector of Police and at that time when he was posted at Manubazar Police Station [Exbt.P/1]. It has been revealed in the said ejahar [Exbt.P/1] that on 07.07.2011 the said police officer received one written information from the appellant that his wife Ganga Rani Tripura had committed suicide by hanging. On the basis of the said written information, a case of unnatural death was registered under UD case No.09 of 2009 under Section 174 of the Cr.P.C.

For purpose of inquiry, the said case was endorsed to the said police officer. He visited the place where Ganga Rani Tripura reportedly hanged herself. When he reached the place of occurrence, he found that the body was lying on a wooden cot in the dwelling hut of the victim. After observing the formalities, such as taking photograph etc., the inquest report was prepared in presence of one Deputy Collector and Magistrate [PW-20] on 08.07.2011. Thereafter the dead body of Ganga Rani Tripura was sent for Post Mortem Examination by the doctor in the Manubazar Hospital. In the morgue of the said hospital, Post Mortem Examination was carried out. From the Post Mortem report, the cause of death as appeared is due to asphyxia by manual strangulation which is homicidal in nature. It has been stated in the said ejahar that "............ From the opinion of the said doctors it is transpired that on 07.07.11 at about 1400 hrs. Sri Bhusan Tripura S/o. Lt. Hari Kr. Tripura of Kaladhepa PS MNB killed his wife namely Smti. Ganga Rani Tripura (22) by throttling in his dwelling hut."

Having received the said ejahar [Exbt.P/1], Manubazar PS Case No.43/2011 dated 11.07.2011 under Section 302 of the Cr.P.C. was registered and taken up for investigation. After the investigation was complete, the final police report chargesheeting the appellant was submitted. The case was committed to the Court of the Sessions Judge, South Tripura, Udaipur, as he then was, for trial. On 04.12.2012, against the appellant the charge for committing murder intentionally or knowingly causing the death of his wife Ganga Rani Tripura under Section 302 of the IPC was framed. However, the appellant pleaded not guilty and claimed to be tried.

In order to substantiate the charge, the prosecution adduced as many as 22 witnesses including the Post Mortem doctor [PW-22], the Investigating Officer [PW-21] and father of Ganga Rani Tripura [PW-1]. The prosecution introduced three documentary evidence [Exbt.P/1 to Exbt.P/3] including the inquest report and the Post Mortem report [both are marked as Exbt.P/3].

There is no controversy that after recording the evidence of the prosecution, the appellant was examined under Section 313 of the Cr.P.C. to have his response on the incriminating materials. Thereafter, the Sessions Judge has returned the findings inter alia:

(1) When the injuries found on the neck of the deceased nor on any other part, absence of ligature mark on the neck, small abrasion of varying size and fracture of hyoid bone, in such a case the apex court held that the deceased died of throttling not by hanging. In this regard, a decision of the apex court in Sahebrao Mohan Berad vs. State of Maharashtra reported in (2011)4 SCC 249 has been relied on. (2) The circumstances as proved by the prosecution clearly exclude the hypothesis of innocence. The circumstances which were considered by the trial court are that the appellant used to send the deceased to collect money from her father's house. But the appellant was not satisfied and used to torture his wife [the deceased].

Thus, from the circumstantial evidence, the Sessions Judge drew the inference that the appellant and nobody else could cause death of his wife. Accordingly, the judgment of conviction was returned. Pursuant thereto, the appellant was sentenced to suffer RI for life and to pay a fine of Rs.10,000/- in default of payment of fine, he is to further suffer SI for six months under Section 302 of the IPC. The said judgment and order are under challenge in this appeal.

Mr. D. Bhattacharjee, learned counsel appearing for the appellant having referred to the oral testimonies and the surathal [inquest] report has submitted that it is apparent on the face of the records that inference drawn by the Post Mortem Doctor are grossly unreliable. He has further submitted that in absence of eye witness account each episode forming the chain in the circumstantial evidence has to be verified. But the Sessions Court did not make any such attempt and proceed from the Post Mortem Report [Exbt.3]. Surprisingly, the said Post Mortem Report was made foundation for convicting the appellant. From the account of the Post Mortem Doctor [PW-22], the Sessions Court came to the inference that death was caused by manual strangulation. Such inference cannot be sustained by this court inasmuch as the other evidence which stood to discredit the medical evidence was unceremoniously brushed aside. Even the medical evidence as to the absence of marks of violence of struggle was not given proper weightage. The Sessions Judge has inappropriately relied on a decision of the apex court and out of the context excerpted a part of the observation to fit in the circumstances. In the said report, the apex court had observed about the nature of injuries and the cause of death. It has been observed there the opinion of the doctor who is a competent person to opine about the nature of injuries and the cause of death, for those purposes has substantive evidentiary value.

Mr. Bhattacharjee, learned counsel for the appellant has further submitted that the evidence of PW-1 [Madhu Tripura, father of the deceased] has been analyzed to get the motive against the appellant. But such inference cannot be sustained inasmuch as such inferences are highly farfetched. PW-1 claimed to have seen the injuries on her body but Mr. Bhattacharjee, learned counsel has laid emphasis on the inquest report carried out in presence of a Deputy Collector and Magistrate where no such injury marks were found on the dead body of the wife of the appellant. Mr. Bhattacharjee, learned counsel has pointed out that even the Sessions Judge has observed that no strangulation mark was noticed. Mr. Bhattacharjee, learned counsel has therefore contended that on appreciation of the evidence it would be apparent that the circumstances are so fragile and disjuncted those cannot have a definite tendency to unerringly point towards the guilt of the appellant. The finding of the Sessions Judge that the circumstances, if taken cumulatively should form a chain so complete there is no escape from the conclusion that the appellant has committed the murder of his wife. It is on the record, as Mr. Bhattacharjee, learned counsel has further pointed out that no information of murder was lodged in the police station. Initially, a case of unnatural death was registered and when the doctor opined that the death caused by the manual strangulation, immediately a case under Section 302 was registered. Mr. Bhattacharjee, learned counsel has pointed out to the observation made in the inquest report and laid sufficient emphasis towards the definite description, injury marks or any other marks on the body of the deceased. The following description of corpse has been endorsed by the Deputy Collector and Magistrate, Silachari [PW-20].

"9. Description of the corpse: The corpse was found at the above mentioned place. The body is well nourished. The height is approximately 5 feet 4 Inches. One deep blackish mark was found on the left side of the throat. Slight blood was coming out of the mouth. No other sign of any kind violence or struggle could be found on the body. However to determine the actual cause of death Post Mortem, by doctor may be held at the earliest."

The said inquest was carried out also in presence of a doctor namely Dr. Tushar Majumder.

From the report, it would further appear that during the inquest the appellant, Sri Uttam Tripura, PW-3, Sri Prabhat Ch. Tripura, PW-2 and Smt. Dilipat Tripura were present along with others. Mr. Bhattacharjee, learned counsel has claimed that in the Post Mortem Report the doctor has recorded several marks when the Post Mortem was carried out on 08.07.2011 at about 1145 am but in the inquest report which was carried out on the same day at 8 am there was only one mark [in the same part] on the corpse. The Post Mortem Doctor [PW-22] has recorded the external appearances/wounds/bruises mark of ligature etc. as under:

"(1) Multiple bruise mark at both side of neck. (a) Single oval shaped bruise mark, sized 2 cm X 1.5 cm just below the rt. Jaw, 5 cm away from the midline. (b) One linear bruise mark 1.5 cm X 5 cm in size. In the right side, just below the 1st described mark, oblignely, which is 5 cm inferior from the tip of chin and directed downwards and outwards (c) On left side of throat, one linear bruise mark, 1cm X 2.5cm, directed downwards and outwards, 7cm below left angle of jaw.

(2) Hyoid bone exposed and removed carefully (a) found fractured rt. greater horn and is inward compression type. (b) Muscles attached to hyoid bone e.g. supra hyoid & intra hyoid are contused extensively. (c) Thyroid cartilage is intact. No other external injury marks are found."

A diagram was also produced with the said observation.

Mr. Bhattacharjee, learned counsel has submitted that the difference in the observation as made in the inquest report and the Post Mortem Examination Report was not taken note of by the Sessions Judge. When the case was registered against the appellant on the basis of the said Post Mortem Report, the witnesses who were also present at the time of the inquest procedure did start to take a different position. Finally, Mr. Bhattacharjee, learned counsel has referred to Modi's "Medical Jurisprudence and Toxicology" [24th Edution]. Modi in Chapter-19 has discussed about deaths from asphyxia in the said treaty. While describing the "Ligature Mark", it has been observed as under:

"Ligature mark depends on the nature and position of the ligature used, and the time of suspension of the body after death. If the ligature is soft, and the body be cut down from the ligature immediately after death, there may be no mark. Again, the intervention of a thick and long beard or clothes on the neck may lead to the formation of a slight mark".

Mr. Bhattacharjee, learned counsel has further contended that mere absence of ligature mark cannot prove that death was caused by the manual strangulation. An interesting observation by Modi has been referred by Mr. Bhattacharjee, learned counsel which is as follows:

"The mark varies according to the nature of the material used as a ligature and the period of suspension after death. Sometimes, the pattern of the ligature material is impressed on the skin and characteristic diagonal marks of the strands of the rope are seen. The mark is superficial and broad, if a cloth or a soft rope is used. The wide band of cloth when used as a ligature on bare skin may cause a narrow ligature mark, due to the tension-lines in the stretched cloth. The width of ligature mark on the skin may thus be misleading if nylon, silk or terylene pieces of fabric are used as ligature. It is well defined, narrow and deep, if a firm string is used. The mark is a groove or furrow, the base pale, hard, leathery and parchment-like, and the margins red and congested. It is deepest near the knot. The colour becomes reddish-brown or chocolate brown, if seen after some hours of suspension. Ecchymoses and slight abrasions in the groove are rare, but may be found in some cases, for instance in judicial hanging. Ecchymoses alone have no significance as to whether hanging was caused during life or not, but abrasions with haemorrhage are strongly suggestive of it having taken place during life. It is sometimes possible for an infant to die as a result of constriction on the neck by the umbilical cord during birth but here the mark is usually superficial and not so prominent."

Mr. Bhattachrjee, learned counsel has submitted that in the circumstances the expert evidence cannot assure for greater sense of acceptability. Mr. Bhattacharjee, learned counsel has further submitted that an expert opinion is primarily to assist the court in arriving at the final conclusion but such report is not by itself a conclusive proof. Mr. Bhattacharjee, learned counsel has placed reliance on a decision of the apex court in Tomaso Bruno and another vs. State of Uttar Pradesh reported in (2015) 7 SCC 178 where it has been observed as under:

"40. The courts, normally would look at expert evidence with a greater sense of acceptability, but it is equally true that the courts are not absolutely guided by the report of the experts, especially if such reports are perfunctory and unsustainable. We agree that the purpose of an expert opinion is primarily to assist the court in arriving at a final conclusion but such report is not a conclusive one. This Court is expected to analyse the report, read it in conjunction with the other evidence on record and then form its final opinion as to whether such report is worthy of reliance or not. As discussed earlier, serious doubts arise about the cause of death stated in the post- mortem reports.

Even if we were to accept that the death was due to strangulation which was caused by an object, the non-recovery of alleged object weakens the prosecution case. Furthermore, it has to be pointed out that it has come in evidence that the deceased was a strongly built man and in the circumstances, it is rather strange that no external marks were found on the body which could demonstrate that there had been a struggle. The absence of struggle and the corresponding external injuries is yet another vital aspect which had gone unnoticed by the courts below."

Mr. R. C. Debnath, learned Addl. PP appearing for the state has emphatically submitted that the proposition of law as espoused by Mr. Bhattacharjee, learned counsel for the appellant cannot be accepted as the records of evidence and the opinion of the expert clearly show that the appellant but none has committed the murder of his wife.

Mr. Debnath, learned Addl. PP however has reiterated that ordinarily the expert report has to be utilized with a greater sense of acceptability. According to him, almost in similar circumstances, the apex court in State of Rajasthan vs. Ramesh [judgment and order dated 20.11.2015 delivered in Criminal Appeal No.1526 of 2008] has observed as under:

"14. According to Modi's Medical Jurisprudence and Toxicology (23rd Edition), "ligature mark depends on the nature and position of ligature used, and the time of suspension of the body after death. If the ligature is soft, and the body is cut down from the ligature immediately after the death, there may be no mark......."

'Strangulation' is defined by Modi as "the compression of the neck by a force other than hanging. Weight of the body has nothing to do with strangulation. Ligature strangulation is a violent form of death which results from constricting the neck by means of a ligature or by any other means without suspending the body. When constriction is produced by the pressure of the fingers and palms upon the throat, it is called as throttling. When strangulation is brought about by compressing the throat with a foot, knee, bend of elbow, or some other solid substances, it is known as mugging (strangle hold)." (emphasis supplied)

As to appearances due to asphyxia, Modi says:

"The face is puffy and cyanosed, and marked with petechiae. The eyes are prominent and open. In some cases, they may be closed. The conjunctivae are congested and the pupils are dilated. Petechiae are seen in the eyelids and the conjunctivae. The lips are blue. Bloody foam escapes from the mouth and nostrils, and sometimes, pure blood issues from the mouth, nose and ears, especially if great violence has been used. The tongue is often swollen, bruised, protruding and dark in colour, showing patches of extravasation and occasionally bitten by the teeth. There may be evidence of bruising at the back of the neck. The hands are usually clenched. The genital organs may be congested and there may be discharge of urine, faeces and seminal fluid."

(emphasis supplied)

In 'asphyxia', according to Modi, "ligature is usually situated above the thyroid cartilage, and the effect of its pressing the neck in that situation is to force up the epiglottis and the root of the tongue against the posterior wall of the pharynx. Hence, the floor of the mouth is jammed against its roof, and occludes the air passages,... "

In the light of above, we have examined the observations of PW-8 Dr. Viveka Nand in the autopsy report (Ex. P-12), prepared by him at the time of post mortem examination. We have already quoted above the ante mortem injuries and findings on the neck dissection and also the opinion given by the Medical Officer. At this stage, we think it relevant to mention here the observations made by the Medical Officer (PW-8) as to external appearances mentioned in page one of the post mortem report, which disclose -

"Both eyes were semi open and looked like protruded, on opening eyes are reddish congested, mouth closed, lips and face along with nails show bluish discolouration, abdomen slightly distended, condition of pupils - both dilated".-

(emphasis supplied)

After carefully going through the medico legal evidence on record, we are of the opinion that it was not a case where a view could have been taken that the deceased died of hanging. There was no reason to disagree with the opinion given by PW-8 Dr. Viveka Nand (Ex. P-13) that the deceased had died of asphyxia as a result of pressure over the neck".

Mr. Debnath, learned Addl. PP finally has submitted that there is no reason why the expert opinion as to the cause of death should not be relied. If the expert opinion is read with the other evidence, the chain of circumstances becomes so complete that it discards the hypothesis of innocence.

While appreciating the contentions raised by the learned counsel appearing for the parties, we may recall a decision of the apex court in C. Chenga Reddy and others vs. State of A.P. reported in (1996) 10 SCC 193 where the apex court had the occasion to observe as under:

"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In the present case the courts below have overlooked these settled principles and allowed suspicion to take the place of proof besides relying upon some inadmissible evidence".

In every case based upon the circumstantial evidence, as in this case, the question that needs to be responded is whether the circumstances as relied upon by the prosecution are proved by reliable and cogent evidence and whether all the circumstances so relied have formed a chain so complete so as to rule out the hypothesis of innocence of the accused. It would be additional aid if we read the evidence afresh to appreciate the finding returned by the trial court.

Madhu Tripura, PW-1, who is the father of the deceased has stated that the deceased was married to the appellant. The appellant used to torture her for money and other articles. Even though he gave some money through his daughter Ganga Rani but the appellant was not satisfied and continued to torture. On 07.07.2011 he got 'information'. He rushed to the house of the appellant and he saw her daughter lying on a cot. He has stated in the trial that he saw blood stain in the nose and mouth and also "noticed mark of injuries in different parts of her body". According to him "she was beaten to death". PW-1 has also stated that the police did not take his statement but they assured him that they would investigate the matter. He has admitted that the inquest report was prepared in his presence. He was witness to the seizure of the Orna (stole) of his daughter. In the cross-examination, he has admitted that his daughter requested him to arrange the social marriage with Bhusan but they did not agree and no social marriage was solemnized between Ganga Rani and Bhusan, but he denied that for that reason Ganga Rani [the deceased] committed suicide.

Prabhat Ch. Tripura, PW-2, is the uncle of the deceased. He has stated that before her death she complained of torture on her by her husband for TV and monthly allowance. He has stated further that he saw Ganga Rani lying on the bed when he arrived at the place of occurrence. He also saw some blood on her mouth and nose and noticed injury marks 'all over the body'. This statement is not only against the inquest report but also against the Post Mortem Examination report. However, in cross- examination he has stated that on 07.07.2010 she was married with Bhusan. But he has admitted that his statement was recorded by the IO after 5 days though he was present during the inquest procedure. He denied the suggestion that PW-1 and he conspired to implicate the appellant.

Uttam Tripura, PW-3 was also present during the inquest procedure. According to him, after marriage his sister was subjected to mental and physical torture. His father paid a sum of Rs.2000/- to 3000/-. On 07.07.2011 when he arrived at the place of occurrence he found her sister was lying on a cot and the blood was coming out from her mouth and nose. He admitted that the Orna of his sister was bound on the blade of the ceiling fan. In the examination-in-chief he has stated further, as follows:

"Before one week of her death she came to our house and told us that her husband pressurized her for a social marriage and also for money".

However, in the cross-examination, he has admitted that on 07.07.2011 he did not tell anything about Bhusan. The Investigating Officer did not record his statement. The suggestions as projected in the course of cross-examination were mostly denied by this witness.

Smt. Lalita Tripura, PW-4, is the mother of the deceased. Her statement in the trial is similar to that of PW-1. She has stated that she noticed injury marks, blood clot on the body of the deceased. According to her, as they could not fulfill the demand, her daughter was tortured and ultimately murdered. Regarding the payment when she was confronted it was located that no such statement was available in her previous statement recorded under Section 161 of the Cr.P.C. but again the way the contradiction has been recorded we are constrained to observe that defied the procedure of recording contradiction.

Bishnu Kr. Tripura, PW-5, seized one ceiling fan from the house of the appellant after preparing the seizure list. In the cross-examination, he has made the following statement. "When I went there mother of Bhusan told that the body of Gangarani was brought down after cutting the Urna as she was hanging with the ceiling fan".

Karna Tripura, PW-6, an adjacent neighbour stated that he saw the dead body of Ganga Rani (the deceased) lying on the cot. He also noticed one Orna hanging from the fan. Everybody in the neighbourhood according to him was telling that she committed suicide by hanging. This witness was not declared hostile by the prosecution.

Pranjit Tripura, PW-7, has clearly stated that when he went to the house of Ganga Rani's husband he saw the dead body of Ganga Rani lying on the khat [cot] and also noticed blood stain on her mouth and nose. He did not ask anyone how Ganga Rani died. He was the seizure witness of the ceiling fan. He identified his signature on the seizure list as well as the fan in the trial.

Sri Dhirendra Tripura, PW-8, also stated similarly as of PW-7 but in the cross-examination he has made the following statement which might have some impact on the circumstances. He has stated as under:

"My house is adjacent south to the house of Bhusan. Distance would be 8 to 12 hands. My family consists of 4 members. Mother of Bhusan raised cry and uttered that her daughter-in-law committed suicide by hanging. I saw the dead body in hanging condition. Bhusan came and cut down the Urna cloth. Darogababu came and I told the fact to him as I told to-day."

This witness was also not re-examined or cross- examined by the prosecution.

Manindra Tripura, PW-9, did not state anything of material importance.

Smt. Kanyapati Tripura, PW-10, has categorically stated that Ganga Rani committed suicide by hanging. They went there [the place of occurrence] and saw her dead body lying on the cot. In the cross-examination, she has further stated that her house is adjacent to the house of the appellant.

Sri Benu Kr. Tripura, PW-11, has testified in the trial and made some significant statements both in the examination- in-chief and in the cross-examination which read as under:

"Bhusan is my neighbour. In the year 2011, wife of Bhusan died by hanging. My house is situated at a distance of 1 k.m. I saw the dead body.

[Cross-examination] Gangarani is under pain as her parents did not arrange her marriage".

Sri Dulal Ch. Banik, PW-12, is the scribe who wrote the information for Bhusan Tripura who lodged the same to the police station stating that his wife committed suicide.

Nutan Tripura, PW-13, has stated in the trial that when they visited Ganga Rani's husband's house they saw her dead body lying on the khat. Her orna was hanging from the ceiling fan. Her husband showed him the fan where she hanged herself to commit suicide. He saw black spots on different parts of her body. Those are the marks of injury caused by assault. After marriage Gangarani used to be beaten by her husband for money. Gangarani informed them about such beating. PW-13 is the brother of PW-1. In the cross-examination he has stated that the police officer went after their arrival in the place of occurrence and they talked to the police officer. After 5 months, the Investigating Officer recorded his statement, he admitted in the cross-examination.

Dhanu Mohan Tripura, PW-14, is the uncle of the deceased. He has stated that Ganga Rani used to visit her father's house for collection of money. But at the same time he has stated that he did not know why Ganga Rani collected the money. In the examination-in-chief though he has stated that they suspected that she was murdered but did not explain why they did not inform the same to anyone. Like the other relative witnesses, he has also stated that he noticed the injury marks over the dead body of Ganga Rani. He has admitted that there was no social marriage of the deceased.

Smt. Malati Tripura, PW-15, has categorically stated that the deceased used to be tortured on demand of money by the appellant. PW-15 is the sister of PW-1. She has also stated that they saw the marks of injury over the dead body. Her statement that she noticed the marks of injury over the dead body when confronted by the defence was not found. However, for defective recording of contradiction the defence will not get any benefit out of this.

Gouranga Biswas, PW-16, one Sub-Inspector of police has categorically stated that on 11.07.2011 he lodged the written ejahar before the officer-in-charge of the Manu Bazar PS the moment he came to know of the cause of death. He has narrated how he conducted the investigation and seized the ceiling fan and orna etc. In the cross-examination, he has stated that on 07.07.2011 at 1400 hours the occurrence took place. The most important revelation that he made is as under:

"I took the finger print of accused and sent it for forensic report. Finger print not found in the fan. I did not collect the finger print of the deceased. I did inquest over the dead body. Inquest submitted before SDM, not returned. I cannot say whether only one injury found on the left side of the neck. I collected the inquest report given by SDM. I perused the report. In the report one black spot found in the dead body on the neck. I recorded statement of Madhu, Lalita and Prabhat on 7.7.2011. On that day Madhu Tripura, Bishnu Kr. Tripura did not tell me that Bhusan Tripura assaulted his wife for dowry. I again recorded statement of Madhu Tripura on 11.07.2011. Prabhat Tripura did not tell me that Bhusan demanded and requested him to collect money from his father in law. I recorded statement of Uttam Tripura. Uttam Tripura did not tell me that Ganga Rani used to weep and they paid Rs.2000/-/Rs.3000/-. Lalita Tripura did not tell me that as they could not fulfill the demand, Gangarani was tortured and ultimately murdered. Malati Tripura did not tell me that she noticed marks of injury on the dead body of Gangarani. I have sent the pieces of Orna to the forensic department. Forensic report is not available in the C.D. I have not preserved any part of the dead body as per medical instruction and not sent to forensic."

[Emphasis added]

Surjya Tripura, PW-17, did not state anything of material importance.

Dulal Patari, PW-18, also is a formal witness and did not tell anything of material importance.

Rakhi Chakraborty, PW-19, is a seizure witness of the deceased's wearing apparels and she did not state anything more than that.

Sri Amartya Barman, PW-20, who had conducted the inquest procedure has stated as under:

"Dead body was identified by Bhusan Tripura, Uttam Tripura and others. One blackish mark found on the side of the throat, slight blood on the mouth, no other sign of violence struggle could be found."

He identified the inquest report.

Firoz Miah, PW-21, is the second Investigating Officer as Gouranga Biswas, PW-16, was transferred. He has simply stated that he filed the charge-sheet and he had no other role in the investigation.

Dr. Ranjan Biswas, PW-22, is the medical expert whose statement has been relied by the prosecution heavily. He has stated inter alia as under:

"On examination found multiple bruise mark at throat does not resemble any ligature mark which can be produced by the substance used for. Separate bruise mark at different level of the throat. Inward compression type fracture of right greater horn of hyoid bone. We two doctors conducted P.M. and we opined that cause of death was due to asphyxia by manual strangulation which is homicidal in nature. Death occurred with 24 to 30 hours of P.M. examination."

[Emphasis added]

He has admitted that he has no special degree for conducting the Post-Mortem Examination. He has admitted that the depth of the injury of muscle not mentioned. The most important statement that he has made is as under:

"Except this injuries no other marks of violence found in the body. The distance between the bruise mark under left angle of jaw and the hyoid bone is written 7 c.m. Similar nature of bruise mark on vertical line not found on the right side. In case of hanging by soft Orna or soft silk rope such type of spot may not be caused. The bruise mark on the left side under jaw may be caused by knot."

Having appreciated the statement of PW-22 which is the foundation of the conviction this court is surprised by the way the circumstances are appreciated without taking consideration of obvious improvements and the view inconsistent with the previous record or the established scientific standards. PW-16 has destroyed the credibility of the witnesses namely Madhu Tripura, PW-1, Smt. Lalita Tripura, PW-4, Prabhat Ch. Tripura, PW-2, Uttam Tripura, PW-3, Smt. Malati Tripura, PW-15 by stating that he recorded the statement of all those witnesses on 07.07.2011, the day of occurrence or after but nobody had stated anything against the appellant. Moreover, PW-8 in his cross-examination has clearly stated that he saw the dead body in hanging condition. The appellant came and cut down the orna. He has stated the same to PW-16. All the witnesses who visited the place of occurrence saw the orna hanging from the fan. Moreover, PW-1 stated that she was beaten to death. He found several injuries on the dead body of the deceased. Such statement has been repeated reiterated by all the related witnesses as stated above. Both from the Post Mortem Report, Exbt.P/3, and the inquest report, Exbt.P/3, it has been established that except some bruise marks over the body as mentioned by PW-22, there were no injuries over the entire body of the deceased. These witnesses cannot be relied for any purpose. They failed in their duty to state the truth. They were aggrieved by death of Ganga Rani and being angered by the circumstances they weaved a story to implicate the appellant who lived together with the deceased. Even PW-1 has stated that he did not agree that the deceased should marry the appellant. The part of Modi's observation as relied by Mr. Bhattacharjee, learned counsel for the appellant as well as the observation from Modi as reproduced by the apex court in State of Rajasthan vs. Ramesh (supra), this court is of the view that the observation of the Post Mortem Report does not extend assurance to this court based on which the conviction can be sustained. Moreover, Mr. Bhattacharjee, learned counsel was absolutely right when he had contended that there were two sets of witnesses, one set has stated of the hanging and other alleged of the torture and murder by the appellant. The latter set, as already observed, cannot be relied by the court for obvious reason. They had substantively improved their statement in the trial. What Modi has observed is really significant. The marks of the injury appearing on the neck or its various parts depend on the nature of the ligature. When the ligature, as projected by the appellant, is the orna this kind of injuries (bruises) are a possibility. The other marks do not support the manual strangulation. Moreover, PW-22 has clearly stated that he has no training in conducting post-mortem examination. It is well established that for Post Mortem artefact such injuries are not unlikely inasmuch as 'those injuries' are at variance with the injuries as recorded in the inquest report in presence of an Executive Magistrate and that Executive Magistrate had supported the said report even in the trial. There was no cross-examination from the prosecution. It is by now well settled that if the prosecution does not confront the cross-examination of their witnesses they cannot stall reliance of those witnesses by the defence.

The decisions of the apex court as relied by the trial court in Sahebrao Mohan Berad (supra) and Neerukonda Parabrahma Murthy and another vs. State of A. P. reported in (1997)11 SCC 408 have been applied without reference to the context inasmuch as in Neerukonda Parabrahma Murthy (supra) the apex court has also observed as under:

"It was normally not possible to throttle another adult by a single assailant without causing injury to the assailant himself because the resistance of the deceased would be very forceful with her hands unless she was trussed up or her hands held up by someone else, or at least without causing scratch injuries on her own body. Here, there is no case that the deceased's hands were tied down before the act of throttling was perpetrated. In such a situation, the very fact that the deceased had injuries only on the neck and not on any other part of the body would lead to the irresistible conclusion that more than one assailant would certainly have been involved in the commission of the murder."

In this case, there is no such allegation of participation of more than one assailant. That apart, the only one mark is available on the neck and that might have caused for the ligature [the stole]. In Sahebrao Mohan Berad (supra) what has been decided by the apex court so far the cause of death is concerned the evidence of the expert, here the post mortem doctor, is of high probative value. But so far the execution is concerned, the evidence of the expert may not be much reliable unless it is corroborated by other circumstantial evidence. In Sahebrao Mohan Berad (supra) also the apex court has observed as under:

"True it is that few signs of drowning were found on the dead body in the post-mortem examination and the doctor though cognizant of the same came to the definite conclusion that the deceased died of strangulation. In our opinion, the doctor who examined the deceased and conducted the post- mortem is the only competent person to opine the nature of injuries and the cause of death. It is only in a case, where the opinion is inherently defective, the Court will discard its evidence."

That apart, the episodes of circumstances are not proved beyond reasonable doubt as would be apparent from the above discussion. They are disintegrated and not formed in chain so complete to discard the hypothesis of innocence. Hence, the appellant is entitled to benefit of doubt.

Having held so, the impugned judgment and order are set aside and quashed. The appellant is directed to be set at liberty forthwith, if not wanted in any other case.

In the result, the appeal stands allowed. Transmit the LCRs forthwith.