Form No. J(1)

IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION

Present :

The Hon’ble Justice Rajasekhar Mantha

And

The Hon’ble Justice Rai Chattopadhyay

CRA 719 of 2016

With

CRAN 2 of 2026

Manindra Nath Mishri

v.

The State of West Bengal & Anr

For the Appellant : Mr. Sekhar Kumar Basu, Ld. Sr. Adv.

Mr. Antarikhya Basu,

Miss Madhumita Basak

For the State : Mr. Debasish Roy, ld. P.P.,

Mr. Suman De,

Ms. Trisha Rakshit.

Hearing concluded on: May 7

th, 2026.

Judgment on : May 11

th, 2026.

Rajasekhar Mantha, J.:

1. The subject appeal is directed against the judgment of conviction

dated December 5

th

, 2016 and order of sentence dated December 6

th

,

2016 passed by the Additional Sessions Judge, Fast Track Court,

Haldia Purba Medinipur in Sessions Trial No. 89 of 2014. The

appellant was convicted under sections 302 and 498A, IPC.

2. For the commission of the offence under Section 302, IPC, the

appellant was sentenced to a rigorous imprisonment for life and pay a

fine of Rs. 10,000/-. In default, to further undergo a rigorous

imprisonment for 6 months.

3. For the offence under Section 498A, IPC, he was sentenced to rigorous

imprisonment for 2 years and pay a fine of Rs 10 000/-. In default, he

was to further undergo a rigorous imprisonment for 6 months. The

50% of the fine amount, if realized, was directed to be paid to PW 1,

the father of the victim.

THE PROSECUTION CASE AND EVIDENCE ON RECORD

4. The husband of the victim strangulated the latter to death at her

matrimonial home. The victim failed to bring money from her parental

home. Prior to the death of the victim, the appellant used to torture

her since she protested against the extra-marital affairs of the

appellant. The appellant was the permanent employee of the India Oil

Corporation.

5. On June 6

th

, 2013, around 7 A.M., the appellant informed PW 1, the

father of the victim, over the telephone that the victim had

committed suicide. PW 1 reached the PO and found that the victim is

lying dead on the floor. He found a napkin is hanging over the ceiling

fan.

6. PW 1 came to learn from his grandson, PW 10, that the appellant, on

the last night, had taken the victim to a separate room, drew them out

(children of the victim), and mercilessly beat the victim. The victim

was crying for help, which, however, stopped after some time.

7. Based on the above, PW 1 lodged the complaint dated June 7

th, 2013.

It culminated into the FIR no. 75 of 2013 dated June 7

th, 2013, under

Section 498A and 302 of the IPC, lodged by Haldia PS, Purba

Medinipur.

8. The inquest on the body of the victim and PO was conducted on June

6, 2013, by PW 8, the ASI of the said Haldia PS. The inquest report

recorded that the appellant found the victim hanging from the ceiling

fan. The victim hanged herself by a napkin. It found one black bent

mark on the throat of the victim. The victim was found wearinga

sanitary pad. A black coloured T-shirt and white pyjama were lying

near the body of the victim kept on the floor.

9. The inquest report indicates that the witnesses present at the PO have

stated that the victim has committed suicide. PW 1, the father of the

victim, was an inquest witness.

10. Post mortem was conducted on June 6

th

, 2013, by PW 12. He

has deposed that the death was caused by violent asphyxia. The death

is most likely homicidal. Some scratch marks were found on the right

ear. Hydroid bone was, however, found unbroken.

11. Investigation was completed and charge sheet was filed.

Charges were framed under Sec. 498A and 302 of the IPC on

December 10

th, 2014 against the appellant. The trial commenced.

12. PW 1 was the father of the victim. He lodged the said

complaint dated June 7, 2013 with the Haldia PS. He confirmed the

case of the prosecution as narrated in his complaint. There are

however some minor omissions in his evidence recorded during the

trial.

13. In his complaint, he stated that the appellant had informed him

that the victim had committed suicide. During the trial, he, however,

has deposed that he received information that the victim had

committed suicide. He did not name the person from whom he

received the said information.

14. In his complaint, PW 1has stated that when he reached the

PO, PW 10, his grandson, told him that the appellant had mercilessly

beaten the victim after locking her in a separate room in the night of

June 5

th, 2013 i.e. one day prior to the fateful day on June 6

th, 2013,

when the dead body of the victim was found lying on the floor and one

ghamcha (towel) was hanging from ceiling fan. During the trial, PW 1

has, however, deposed that PW 10 has simply told him that there was

an altercation between the victim and appellant.

15. PW 1 has deposed that he used to frequently visit the victim at

her matrimonial house. In fact, he deposed that on 5

th

, June 2013,

the day before the incident, he had lunch at the matrimonial house of

the victim.

16. PW 1 also deposed that he gave Rs 8.5 lakhs to the appellant at

time of the victim’s marriage in addition to the other ornaments and

accessories. He has deposed that the appellant used to physically and

mentally torture the victim on the failure of the victim to bring a

further sum of Rs 2.5 lakhs from PW 1. PW 1 has deposed that his

salary was Rs 8,000 to 10,000. He has deposed that he was an

employee of the Excise department, State of West Bengal.

17. PW 1 further deposed that the said torture of the appellant

increased when the victim opposed the extramarital relations of the

appellant with other women. PW 1 has deposed that he was aware of

such affairs. He, however, do not know the name of such women with

whom the appellant had such relations.

18. PW 1 has deposed that upon his arrival at the PO, one Uma

Patra, PW 3, has told him that she heard the hue and cry of the

victim. During trial, PW 3 has, however, deposed that she simply

heard a hue and cry. She did not name whose hue and cry it was. He

denied the suggestion that the victim was sentimental, which led her

to commit suicide. He confirmed that he was an inquest witness.

During investigation, he was however not examined by the police

19. PW 2 was the housemaid in the victim’s matrimonial home.

She has deposed that on the fateful day, she came to work and found

the door of the house closed. She opened the door and saw that the

victim was lying unconscious. She tried to wake up the victim on the

assumption that the victim is asleep. The victim, however, did not

respond. PW 2 then realized that the victim had died, and thus she

raised a hue and cry.

20. In cross-examination by the defence, PW 2 has deposed that the

appellant was not present at the house, when she arrived. She denied

the suggestion that the appellant was sleeping with the children in the

other room at that time. PW 2, however, in her statement to the police

has stated that after realizing that the victim has died, she rushed to

the other room of the house and alerted the appellant, who was

sleeping with his minor daughter and son, PW 10.

21. PW 3 was Uma Patra, the neighbour of the victim . The

appellant and husband of PW 3 were colleagues at the Indian Oil

Corporation. She has deposed that on June 6

th

, 2013, she heard a

hue and cry emanating from the house of the victim. She did not

name the person whose hue and cry it was. She rushed to the house

of the victim and saw her lying on the floor. PW 3's house was one

house after that of the victim’s.

22. PW 4 was the brother of the victim . He confirmed that the

appellant had extramarital affairs with other women. He knew the

names of such women. He, however, did not disclose the identity and

whereabouts of such women to the police during interrogation.

23. PW 4 has deposed that victim came to learn of such extra

marital affairs after 6-7 months of her marriage. The victim also came

back to her parental house. PW 1 advised the victim not go back to

her matrimonial home. However, after persuasion from well-wishers

and family friends, the victim went back to her matrimonial home. The

dispute between the appellant and victim however persisted, and the

victim frequently used to come back to her parental home after each

three-four months.

24. PW 4has deposed that the appellant used to torture the victim

for unable bring money from her parental house. He used to visit the

matrimonial house of the victim. The appellant never misbehaved with

him during such visits. PW 4 has deposed that PW 1 invested money

for building a house for the appellant.

25. PW 5 was another neighbour of the victim . The children of

the victim and the son of PW 5 used to study in the same school. She

used to visit the house of the victim on her way back to home from the

said school. The victim also visited the house of PW 5 to collect school

notes.

26. PW 5 has deposed that on the fateful day, she received the news

of the death of the victim. She arrived at the house of the victim and

heard that the latter had committed suicide. She did not enter in the

said house. She was declared hostile by prosecution. In cross

examination by the prosecution, PW 5 has denied that she and the

victim were good friends. She denied that the victim ever confided in

her that the appellant used to torture and had extra-marital relations

with other women. She denied that the victim had ever shown her any

bruise inflicted by the appellant.

27. PW 5 denied having gone with the victim to the function,

organised by Indian Oil Corporation on June 5

th

, 2013, the day before

the incident. PW 13, the IO of the case, has however confirmed that

PW 5in her statement to the police has stated that the victim has told

her that the appellant used to torture the victim when the latter

protested against the extra-marital affairs of the former.

28. PW 6 was the husband of PW 5. He was the office colleague of

the appellant. PW 6 and PW 5 used to reside in the same building

where the appellant and the victim resided. PW 6 knew the victim. He

has deposed that he had seen the victim visiting their house. He has,

however, deposed that he did not know whether the victim and her

wife, PW 5, were friends. He has deposed along the lines of PW 5. He

was declared hostile by the prosecution.

29. In cross examination by the prosecution, PW 6denied the

suggestion that the victim had ever confided to his wife, PW 5, that

the appellant had illicit relations with the other women. He has,

however, deposed that whenever the victim sought his help, he had

tried to help her. PW 13, the IO of the case, has confirmed that PW 6

has stated to the police that the victim has told him that the appellant

used to torture the victim when the latter protested against the extra-

marital affairs of the former.

30. PW 7 was another neighbour of the victim. She was the

acquaintance of the victim. The daughter of PW 7 and the son of the

victim used to study in the same school. Upon receiving news of the

death of the victim, she arrived at the doorstep of the victim. She

however did not enter the victim's house. She was declared hostile by

the prosecution.

31. In cross examination by the prosecution, PW 7 denied the

suggestion that the victim had confided in her that the appellant had

any illicit relations with other women. She deposed along the lines of

other neighbours, PW 5 and PW 6. PW 13, the IO of the case, has

confirmed that PW 6 has stated to the police that the victim has told

her that the appellant used to torture the victim when the latter

protested against the extra-marital affairs of the former.

32. PW 8 was the inquest officer.

33. PW 9 was one constable of the Haldia PS. He has deposed

that he brought down the dead body of the deceased hanging from the

ceiling fan. He was declared hostile by the prosecution. In cross

examination, he has deposed that he did not reveal to the police that

he has brought down the dead body of the victim. He accompanied PW

8 to the PO for conducting the inquest.

34. PW 10 was the minor son born from the marriage between

the victim and appellant. He was about 9 years when he deposed in

the trial. His evidence indicates that the trial judge has put questions

to him to assess his ability to depose in the Court. The questions and

the answers given thereto are, however, not recorded by the Trial

Court.

35. The purpose of recording the said questions and answers is to

enable the appellate Court to examine whether the trial Court has

correctly assessed the capability of the minor witness to depose.

36. In the absence of such a recording by the Trial Court, the

appellate Court may not ipso facto discard the evidence. The Court

ought to consider the tenor and flow of the evidence tendered by the

minor witness, and find due corroboration.

37. PW 10 has deposed that he studied in the second standard at

the time of the victim’s death. He has deposed that he has come to the

trial Court to state the events relating to his mother’s death. PW 10,

therefore, was conscious of the purpose for which he was present in

the Court.

38. The statement of PW 10 about the death of his mother was

recorded under section 164, CRPC. PW 11, a judicial magistrate,

has ascertained the capability of PW 10 to truthfully state the facts.

The capability of PW 10 to truthfully depose was thus judicially

examined by PW 11. This inspires confidence in the mind of this Court

that PW 10 was indeed capable of deposing in the trial.

39. PW 10 has deposed that on June 5

th, 2013, the victim took PW

10 and his sister to a function organised by the India Oil Corporation.

They returned home at 10:00 P.M. PW 10 went to take a bath. The

appellant also arrived at that time. PW 10 was asked to have his

dinner. He then saw that the victim and appellant, quarrelling. PW

10, his sister, and the appellant thereafter retired to bed for the day.

40. PW 10 has deposed that on the fateful day i.e. June 6

th

, 2013,

he woke up around 8:00 to 9:00 A.M. He did not find his father, the

appellant, on the bed, where they slept on the night of June 5

th, 2013.

PW 10 saw a gathering at the house. He however did not see his

father, the appellant, in the gathering. He was thereafter taken to the

house of his Jethimaa (Aunt). He was not allowed to see his mother.

PW 10 has deposed that he was taken to the magistrate and the Trial

Court by his Jethimaa. After the death of the victim, he resided with

his Jethimaa.

41. PW 10 has deposed that the victim used to rebuke the appellant

and children. The victim also used to rebuke her own father, brother

and his wife, the victim’s sister in law. On the contrary, PW 10 has

deposed that the appellant loved him and his family. He used to take

the victim and children for social outings. He has deposed that the

appellant never assaulted the victim.

42. PW 11 was the Judicial Magistrate. He recorded the statement

of PW 10 under Section 164, CRPC. He gave a certificate of fitness

that PW 10 is capable of truthfully stating the facts. PW 11 has

deposed that during examination of PW 10 under Section 164, CRPC,

PW 10 did not state that he, his sister and the appellant together

retired to bed on the night of June 5

th, 2013. PW 10 also stated to the

magistrate that he saw the appellant in the gathering assembled at

the PO to see his mother.

43. PW 12 was the post-mortem doctor . He has deposed that the

death of the victim is most likely homicidal. It may not have been

caused by hanging. The injuries found on the dead body of the victim

are as follows:-

On examination: Average built of deceased, rigor mortis present, sub

conjunctional haemorrhage's detected on both eyes, cyanosed both lips,

over tip off nose & nail beds both hands detected, bleeding and scratch

marks detected on right pinna (ear lobule) mild swelling on back of

right occipital region of scalp detected) no dribbling marks of saliva

from angle of mouth orifice) no stool detected around peri-anal

region, bleeding from vaginal orifices detected.

Marks of ligature on neck 1) One ligature mark at anterior aspect of

neck detected 2) horizontal and almost complete around neck 3) no

elongation of neck detected 4) base of ligature mark found reddish

& not hard 5) few ill-defined abrasions on neck detected 6) On

dissection: Soft tissue contused, 7) intact thyroid and cricoid cartilages,

8)no bleeding from mouth orifice and nostril detected 9) hyoid found

intact and unbroken.

Stomach: approximate 150 ml, bile stained material with few

undigested food particles detected , fishy odour, no granules

detected, small intestine found congested with gaseous materials with

few undigested food material detected,…

PM diagnosis: Death may be due to ante mortem asphyxial death due

to violent asphyxia resulting from constriction of neck with ligature or

by other means of constricting force, not being the weight of body

and vagal inhibition, cerebral apoplexy and cerebral anemia with

resultant obstruction of air passages and instantaneous death

Upon shown the viscera report death is ante-mortem in nature and

Asphyxial death 2) mostly homicidal with findings as noted at PM

examination report elaborately resulting from constriction of neck with

ligature like constricting force with vagal inhibition and cerebral

apoplexy…In my opinion this death may not cause due to hanging.

44. PW 13 was the Investigating officer of the case. He has

deposed that he has not investigated as to who brought the victim

down from the ceiling fan. He did not seize the gamcha, which may

have been used in the death of the victim.

45. PW 13 has confirmed that PW 5, 6, and 7 have stated during

police interrogation that the victim had confided in them that the

appellant had extramarital affairs with the other woman. The victim

was beaten by the appellant when the latter protested against such

affairs. The victim showed them the injuries on her person caused by

the appellant. PW 5, 6, and 7 have stated to PW 13 that the appellant

may have killed the victim

46. PW 13 has deposed PW 7 stated that she, the victim, and the

victim's family attended a function organised by Indian Oil

Corporation on June 5

th, 2013. PW 13 has deposed that PW 2, the

housemaid, told him during interrogation that the appellant was

found sleeping with the children after she arrived at the PO and

realised that the victim had died.

47. The appellant was examined under section 313 of the CRPC.

The appellant stated that he was part of gathering assembled in the

morning of June 6

th

, 2013 to see the dead body of the victim. He was

with the Police. He confirmed that the PW 10, and his minor daughter

are residing with him. He was granted bail after 54 days from the date

of his arrest. The appellant/ defence has examined 7 witnesses.

48. DW 1 was the owner of the jewellery shop at the fancy

market, Haldia. The appellant purchased a gold ring from his shop.

The memo receipt in this regard is memo no. 824 dated November 18,

2006. The gold ring costed Rs 4,453/-. In cross-examination, DW 1

has clarified that he does not have accounts and documents as

regards the said cash memo.

49. DW 2 was an employee of a wrist watch shop. In trial, he

produced two purchase receipts for one gent’s wrist watch of Rs 1,

695/- and a lady's wrist watch of Rs 1, 895/-. The said receipts were

issued in name of the appellant.

50. DW 3 was the owner of the jewellery shop, Radhashyam

Mahapravu Jeweller. He produced two purchase receipts issued in

name of the appellant. The first one relates to the purchase of the

Mangalsutra (auspicious thread) at Rs 20, 346/-and the second one

relates to an ear ring at Rs 2, 050/-.

51. DW 4 runs a jewellery shop . He produced the following

purchase receipts issued in name of the appellant:-

i) Receipt dated 13.03.05 for bronze and gold Churi

(bangles) at Rs Rs.5,065/.

ii) Receipt dated 08.07.05 for a hand sanka (conch shell

bangles) fitted with gold at Rs.1, 669/-.

iii) Receipt dated 08.12.06 for an ear ring at Rs.4,952/-

iv) Receipt dated 07.11.07 for a small ear ring of Rs.2,339/-

v) Receipt dated 22.07.08 for one hand sanka fitted with

gold on consideration of handing over of old gold by the

appellant having market value of Rs.3,674/-

vi) Receipt dated 12.09.08 for an ear ring at Rs 12, 071/-.

vii) Receipt dated 18.04.10 for one Mantasa (hand-wear

ornament for women) at Rs.45, 779/.

viii) Receipt dated 12.09.10 for a zodiac power ring at

Rs.1,500/-

ix) Receipt dated 26.08.11 for one chain at Rs.48, 181/- on

payment of Rs11,879/- . The balance sum was paid by

handing over old gold ornaments by the appellant.

52. DW 5 was the branch manager of the Indian Oil Corporation ,

Haldia. The appellant was the employee thereof. In trial, he has

produced the account statement of the appellant maintained with the

State bank for credit of salary. The account statement was from

March 7

th, 2008 to December 8

th, 2010.

53. DW 6 was the administrative officer at the Indian Oil

Corporation, Haldia. He has deposed that the appellant was the

permanent employee thereof. He produced the letter dated February

22

nd, 2001 sanctioning a loan of Rs44, 303/- for purchase of a two-

wheeler, in favour of the appellant.

54. DW 7 was the deputy manager at the Indian Oil

Corporation, Haldia. He has produced the following letters in the

trial-

i. Letter issued for the service year of the appellant, 2001 to

2002. The said letter stated that the appellant availed her

earned leave for visiting Andaman with his wife.

ii. In 2003 2004, the appellant encashed the leave from

June 13

th, 2004 to June 17

th, 2004.

iii. Next, the appellant availed the leave for 16 days from

October 21

st, 2007, to November 6

th, 2007, for visiting

Chennai and Kanyakumari with his wife.

iv. From 2014 to 2017, the appellant availed several

financial assistance from the employer.

55. Based on the above, the Ld. Trial Court convicted the

appellant and sentenced as sated above. The trial court held that

the medical evidence has established that the victim died of

strangulation. The oral evidence has established that the appellant

and children were with the victim in the night of June 5

th, 2013. The

appellant and victim had a quarrel at that night. The appellant thus

was the only person at the PO who had capability to strangulate the

victim to death. The appellant had thus killed the victim. He did so

to silence the victim who protested against her alleged extra-marital

affair.

ANALYSIS OF THIS COURT

56. Mr. Sekhar Basu, Ld. Senior Advocate, assisted by Mr.

Antarikhya Basu, Ld. Advocate, has first argued that the police did

not examine the complainant, PW 1, during investigation. The scribe

of the said complaint was also not examined during trial. Thus, the

complaint of the PW1 is suspect. This is fatal to the prosecution case.

57. Ld. Senior Advocate has, however, not demonstrated any

illegality or serious defects in the investigation caused by the non-

examination of PW 1and the scribe of the said complaint. He was

further unable to demonstrate any prejudice caused to the appellant.

The appellant has not confronted the IO of the case, PW 13with the

aspect of non-examination of PW 1. The said argument therefore falls

flat before it could take off.

58. The complaint of PW 1 to the police must be deemed to be the

statement recorded by the police. It is the investigative prerogative of

the police as to whether the complainant needs to be interrogated

during investigation.

59. A complainant is ordinarily interrogated when his complaint is

found contradictory and may be unbelievable to the statements of

other witnesses recorded and evidence collected during investigation.

Ld. Senior Counsel for the appellant could not demonstrate that the

complaint of PW 1 is contradictory to the other evidence on record. In

the trial, PW 1 has confirmed the contents of the complaint. The non-

examination of PW1 during the investigation is thus not fatal to the

prosecution’s case.

60. From another point of view, it may be noted that since PW 1 was

not interrogated during police investigation, there was no chance of

PW 1 being tutored by the Police. The same may add authenticity to

the evidence tendered by PW1 in the trial.

61. Mr. Basu has next argued that the inquest report did not name

the appellant as the accused. The FIR named him so. Thus, the

appellant has been falsely roped in the FIR. Our attention has been

drawn to the list of the inquest witness. PW 1, the father of the victim,

signed on the inquest report as an inquest witness. Reliance is placed

on the decisions in Mobarak Sk. @ Mobarak Hossain and Ors v.

State of UP and Ors reported in (2011) SCC Online Cal 190 ,

Thanedar Singh v. state of M.P. reported in (2002) 1 SCC 487, and

Meheraj Singh v. State of UP with Kalu v. State of UP and Ors,

reported in (1994) 5 SCC 188.

62. The ratio of the aforesaid decisions is two fold- First, when FIR

is lodged prior to the commencement of the inquest proceedings, the

latter should ordinarily refer to the piece of information, recorded in

the FIR. Thus, it was held that ordinarily when an FIR (lodged prior to

the conduction of inquest) has named the accused persons, the

inquest officer (conducted post-lodging of the FIR) is expected to

equally name them.

63. In the present case, the inquest proceedings commenced prior

to the lodging of the FIR i.e. the inquest commenced on June 6

th, 2013

from 09:45 A.M and ended on 11.05 A.M. and the FIR came to be

lodged thereafter on June 7

th

, 2013 at 12.55 P.M. Thus, the inquest

officer did not have the first information report before him during

conduction of the inquest. PW 1 did not take name of the appellant

before the inquest officer as the appellant was his son in law.

64. The second line of ratio thereof is that an adverse inference will

be drawn against the State when it has manufactured the time and

date of the lodging of the FIR to cover up the delay, committed by the

police to lodge the same. In the present case, there is no such

allegation. Thus, the aforesaid decisions are not applicable the present

case.

65. PW 1 and PW 4 are the father and brother of the victim

respectively. They have collectively deposed that the appellant used to

torture the victim when the latter protested against the former's

extramarital affair. Such evidence is, however, hearsay since PW 1

and PW 4 have heard the same from the victim. The said evidence

thus needs to find corroboration from the other prosecution witnesses.

66. The neighbours of the victim, PWs 5, 6, and 7 have stated

before the Police that the victim had confided in them about the said

extramarital affair of the appellant and the latter was beaten by the

former when she protested.

67. In course of trial, the said witnesses, however, have deposed

that the victim never told them about the said torture and

extramarital affair. What is, however, significant is that none of the

PWs 5, 6, and 7 has deposed that they were coerced by the police to

accuse the appellant of the said torture and extramarital affair in

their statement to the police.

68. On the contrary, PWs 5, 6, and 7 have deposed that they

knew the victim. They have deposed that their children and that of

the victim studied in the same school. The victim used to visit their

respective houses and vice- versa. The purpose of such visits was

the exchange of school-related information between the parents of

minor children. Thus, it cannot be ruled that the victim had

confided in them about the disturbance in the marital life of the

appellant and victim.

69. PW 6 was the office colleague of the appellant. In that

connection, PW 5, the wife of PW 6, came to know the victim. They

lived in the same quarters allotted by the employer.PW 5, being the

wife of the office colleague of the husband of the victim, was a

reliable witness, that the victim disclosed the condition of her

relationship with the appellant. She has done so since PW 5 could

persuade PW 6 to make the appellant understand about restoration

of peace in married life of the victim and appellant.

70. PW 6 has stated to the Police that he has tried to mediate

between the appellant and victim regarding the said torture on the

victim by the appellant and the latter's extramarital affair. PW 6 has

however denied the same in the trial. Notwithstanding the said

retraction, PW 6 has deposed that the victim has sought his help.

He has tried to help her to the extent possible. This clearly indicates

that the victim has revealed something about the appellant to PW 6,

which persuaded PW 6 to help out the victim

71. The relationship between the victim and said prosecution

witness therefore has been clearly established. Significantly, each of

PWs 5, 6, and 7 arrived at the house of the victim upon receiving

news of the death of the victim. During the trial however, they have

deposed that they did not enter the house of the victim. Clearly,

therefore, the said PWs have tried to distance themselves from the

death of the victim, where one of their own, namely the appellant, is

the accused.

72. The statement given to the police by the said witnesses that

the victim had revealed to them that the appellant used to torture

the victim when the latter protested against the extramarital affair of

the appellant thus cannot be ruled out. The evidence of PW 5, 6, 7

to the extent that the victim had never confided to them about the

same stands clearly contradicted by the statements made by them

under Section 161, CRPC.

73. In view of the above, this court is of the view that the

prosecution has been able to establish that the victim told the said

prosecution witnesses, PWs 5, 6, and 7 that the appellant indulged

in extramarital affairs and when she protested against the same, the

appellant tortured her.

74. PW 10, the minor son of the victim and appellant, has

deposed that the victim used to rebuke the appellant, her father and

brother.

75. PW 10 has deposed that his mother incessantly quarrelled

with the appellant. The evidence of PW 10 has also established that

the relationship between the appellant and victim was not cordial

and was rather sour. The motive of the appellant to end the life of

the victim, or abetment of suicide by the victim thus, cannot be

ruled out. This is the first link in the chain of circumstances

76. The second link in the chain of circumstances is the fateful

night of June 5

th, 2013. The victim was found dead in the early

morning of June 6

th, 2013.

77. PW 10 has deposed that the victim and children including PW

10 attended a function organised by the Indian Oil Corporation on

June 5

th

, 2013. They reached home around 10:00 P.M.PW 10 was

asked by the victim to have dinner. His father also reached home at

that time. PW 10 then saw that the victim and appellant were

quarrelling with each other Thus, the appellant and victim indeed

had a quarrel in the night of June 5

th, 2013.

78. PW 10told his maternal grandfather, PW 1, that the appellant

had mercilessly beaten the victim the previous night, when PW 1

arrived at the PO in the morning of June 6

th, 2013. This is stated in

the complaint of PW 1 to the police.

79. PW 1, however, has deposed in trial that PW 10 has told him

that the victim and appellant had an altercation the previous night.

Thus, in the trial, neither PW 1 nor PW 10 has described the exact

nature of the altercation between the appellant and victim on the

night of June 5

th

, 2013.

80. From a plain reading of the evidence of PW 1 and PW 10

along with the complaint of PW 1 to the police, it is however clear

that the appellant and victim had quarrelled with each other on the

night of June 5

th, 2013. The said quarrel may have escalated to a

physical altercation. The post mortem report of the victim has in fact

found some scratch marks on the right ear of the victim.

81. PW 10 has deposed that his father never assaulted his

mother. The appellant instead was on the receiving end of the

rebuke of her mother. In essence, PW 10 has deposed about the

good conduct of the appellant towards the victim. The said evidence

must be appreciated from the life of PW 10 after the death of his

mother.

82. After death of the victim, PW 10 and his sister resided with

family of the appellant. Initially, PW 10 was taken by his Jethimaa

(wife of the brother of the appellant) to her house after dead body of

the victim was discovered at the victim’s matrimonial house in the

morning of June 6

th, 2013. PW 10 has deposed that he was not

allowed to see his mother by the said Jethimaa.

83. The defence evidence that the appellant bought gold

ornaments from the defence witnesses does not establish that he

had given them to his wife or pampered. The defence has not sought

discovery or production of the same from the family of the victim or

their witnesses. On the contrary the evidence on record clearly

shows that the appellant had several extra-marital affairs. The

possibility of the appellant giving such ornaments to his paramours

cannot be ruled out.

84. The appellant in his examination under section 313, CRPC

has deposed that he was granted bail on 54

th

day of his arrest. The

appellant upon the release started residing with his son, PW 10, and

minor daughter. PW 10 aged about 9 years at the time of trial. It is

but natural that they would depose in favour of their father.

85. The prosecution, therefore, has been able to establish that the

appellant had a quarrel with the victim in the night of the 5

th June,

2013.

86. The third link in the chain of circumstances is that the PO

had four inmates in the night of June 5

th

, 2013. The two of them

were minor children of 2 and 7 years of age. Thus, they could not

murder the victim. The other two were the victim and appellant.

Thus, the person who had the physical capability and motive to kill

the victim was her husband. The appellant has not denied his

presence at the PO in the night of June 5

th, 2013.

87. The decision in M. Nageshwar Rao v. State of A.P reported in

(2011) 2 SCC 188, cited by Mr Basu, is also not applicable to the

present case, since the prosecution has proved the case beyond

reasonable doubt. A reasonable inference clearly flows from the

evidence on record, which the appellant has also not disputed, that

the appellant resided with the victim on that fateful night. Thus, the

decisions in Md. Anowar Hussainv. State of Assam reported in

(2022) 19 SCC 264 and Shambhu Nath Mehra v. State of Ajmer,

reported in AIR (1956) SC 404, cited by the appellant, therefore, in

fact support the prosecution case that the victim was with the

appellant under the same roof on that fateful night.

88. The victim died in the night of 5

th

June, 2013 after having her

dinner. In this regard, the post-mortem report of the victim has

found undigested food in the stomach of the victim. The digestive

system of the victim therefore did not get the required time to

complete the digestion. PW 10 has deposed that the victim and

family reached home from the function at 10:00. P.M. of June 5

th,

2013. PW 10 was asked to have his dinner. Thus, it can be easily

inferred that the victim also had dinner around that time.

89. Thus, the prosecution has been able to establish that the

victim died in the night of June 5

th

, 2013. What now remains to be

examined as to whether the death of the victim was homicidal or

suicidal.

90. The conduct of the appellant in the morning of June 6

th, 2013

needs to be examined before we discuss the medical evidence. The

said conduct is fourth link in the chain of circumstances.

91. PW 2 was the housemaid at the matrimonial home of the

victim. She has deposed that that she arrived around 7-8 A.M. in

the morning of June 6

th, 2013. She found the door closed. Upon

opening the door, she found the victim is lying on the floor and a

ghamcha (towel) is hanging from the ceiling fan. PW 1 has also

deposed about the said ghamcha hanging from the ceiling fan.

92. PW 2 initially thought the victim is asleep. Later she realized

that the victim has died. Thus, PW 2 upon her arrival around 7 to

8A.M. in the morning of June 6

th

, 2013 found that the victim dead.

93. PW 2 upon realizing that the victim is dead went to the next

room of the house, which is adjacent to the PO. She has stated to

the police that she found that the appellant is sleeping with the

children in that room. PW 2, however, in trial has denied that she

found the appellant sleeping with children.

94. PW 10, the minor son of the victim and appellant, has

deposed that he woke up around 8-9 A.M. i.e. in and around when

PW 2 arrived at the PO. PW 10 has deposed he has also not found

his father sleeping with him and his sister. Thus, the appellant was

awake by the time PW 2 arrived at the PO and PW 10 woke up. The

aforesaid conduct of the appellant indicates that he was aware

before everyone as to what transpired in the next room, the PO.

95. The fourth link in the chain of circumstances is the post-

mortem report of the victim. The last seen theory has already put

the appellant at the PO in the night of June 5

th, 2013. What now

remains to be seen that whether the death of the victim was due to

hanging or strangulation.

96. In Javed Abdul Rajjaq Shaikh v. State of Maharashtra,

reported in (2019) 10 SCC 778, the Court alluded to the difference

between hanging and strangulation as follows:-

28. The differences between hanging and strangulation have been

highlighted by Modi on Medical Jurisprudence and Toxicology, 25th Edn.,

as follows:

Hanging

Strangulation

1. Most suicidal.

1.

Mostly homicidal.

2. Face—Usual pale and petechiae rare.

2. Face—Congested, livid and

marked with petechiae.

3. Saliva—Dribbling out of mouth down

on the chin and chest.

3. Saliva—No such

dribbling.

4. Neck—Stretched and elongated in

fresh bodies.

4. Neck—Not so

5. External signs of asphyxia usually not

well marked.

5. External signs of asphyxia,

very well marked (minimal if

death due to vasovagal and

carotid sinus effect)

6.

Ligature mark—Oblique, non-continuous

placed high up in the neck between the

chin and the larynx, the base of the groove

or furrow being hard, yellow and

parchment-like.

6. Ligature mark—Horizontal

or transverse continuous,

round the neck, low down in

the neck below the thyroid,

the base of the groove or

furrow being soft and

reddish.

7. Abrasions and ecchymoses round about

the edges of the ligature mark, rare.

7. Abrasions and ecchymoses

round about the edges of

the ligature mark, common.

8.

Subcutaneous tissues Under the mark—

White, hard and glistening.

8. Subcutaneous tissues under

the mark—Ecchymosed.

8.

9. Injury to the muscles of neck—Rare.

9. Injury to the muscles of the

neck—Common.

10. Carotid arteries, internal coats ruptured

in

10. Carotid arteries, internal

coats ordinarily ruptured.

11. Fracture of the larynx and trachea—Very

rare and may be found that too in judicial

hanging.

11. Fracture of the larynx,

trachea and hyoid bone.

12. Fracture—dislocation of the cervical

vertebrae—Common in judicial hanging.

12.

12. Fracture—dislocation of the

the cervical vertebrae—

Rare.

13. Scratches, abrasions and bruises on the

face, neck and other parts of the body—

Usually not present.

13. Scratches, abrasions

fingernail marks and

bruises on the face, neck

and other parts of the

body—Usually present

14. No evidence of sexual assault.

14. No evidence of sexual

assault.

15. Emphysematous bullae on surface of the

lungs—Not present.

15. Emphysematous bullae on

the surface of the lungs —

May be present

29. As to what is the distinction between strangulation and throttling is also dealt

within the selfsame work:

“Definition.—Strangulation is defined 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).

97. In Ravirala Laxmaiah v. State of A.P., (2013) 9 SCC 283 the

Court held the following on the degree of probability of the fracture of

hyoid bone in strangulation:-

18. So far as the medical evidence is concerned, the issue involved herein is

no more res integra. This Court dealt with the issue in Ponnusamy v. State of

T.N. [Ponnusamy v. State of T.N., (2008) 5 SCC 587 : (2008) 2 SCC (Cri) 656 :

AIR 2008 SC 2110] and observed as under : (SCC pp. 594-96, paras 23-26)

23. It is true that the autopsy surgeon, PW 17, did not find any fracture

on the hyoid bone. Existence of such a fracture leads to a conclusive

proof of strangulation but absence thereof does not prove the

contra. In Taylor's Principles and Practice of Medical Jurisprudence,

13th Edn., pp. 307-08, it is stated:

‘The hyoid bone is “U” shaped and composed of five parts : the

body, two greater and two lesser horns. It is relatively

protected, lying at the root of the tongue where the body is

difficult to feel. The greater horn, which can be felt more easily,

lies behind the front part of the strip muscles (sternomastoid),

3 cm below the angle of the lower jaw and 1.5 cm from the

midline. The bone ossifies from six centres, a pair for the body

and one for each horn. The greater horns are, in early life,

connected to the body by cartilage but after middle life they are

usually united by bone. The lesser horns are situated close to

the junction of the greater horns in the body. They are

connected to the body of the bone by fibrous tissue and

occasionally to the greater horns by synovial joints which

usually persist throughout life but occasionally become

ankylosed.

Our own findings suggest that although the hardening of

the bone is related to age there can be considerable

variation and elderly people sometimes show only slight

ossification.

From the above consideration of the anatomy it will be

appreciated that while injuries to the body are unlikely, a grip

high up on the neck may readily produce fractures of the

greater horns. Sometimes it would appear that the local

pressure from the thumb causes a fracture on one side only.

While the amount of force in manual strangulation would often

appear to be greatly in excess of that required to cause death,

the application of such force, as evidenced by extensive

external and soft tissue injuries, make it unusual to find

fractures of the hyoid bone in a person under the age of

40 years.

As stated, even in older people in which ossification is

incomplete, considerable violence may leave this bone

intact.

24. In Journal of Forensic Sciences, Vol. 41 under the title —

Fracture of the Hyoid Bone in Strangulation : Comparison of

Fractured and Unfractured Hyoids from Victims of

Strangulation, it is stated:

‘The hyoid is the U-shaped bone of the neck that is fractured

in one-third of all homicides by strangulation. On this

basis, post-mortem detection of hyoid fracture is relevant to

the diagnosis of strangulation. However, since many cases

lack a hyoid fracture, the absence of this finding does not

exclude strangulation as a cause of death. The reasons

why some hyoids fracture and others do not may relate to

the nature and magnitude of force applied to the neck,

age of the victim, nature of the instrument (ligature or

hands) used to strangle, and intrinsic anatomic features

of the hyoid bone . We compared the case profiles and

xeroradiographic appearance of the hyoids of 20 victims of

homicidal strangulation with and without hyoid fracture (n =

10, each). The fractured hyoids occurred in older victims of

strangulation (39 ± 14 years) when compared to the victims

with unfractured hyoids (30 ± 10 years). The age dependency

of hyoid fracture correlated with the degree of ossification or

fusion of the hyoid synchondroses. The hyoid was fused in

older victims of strangulation (41 ± 12 years) whereas the

unfused hyoids were found in the younger victims (28 ± 10

years). In addition, the hyoid bone was ossified or fused in

70% of all fractured hyoids, but, only 30% of the unfractured

hyoids were fused. The shape of the hyoid bone was also found

to differentiate fractured and unfractured hyoids. Fractured

hyoids were longer in the anterior-posterior plane and were

more steeply sloping when compared with unfractured hyoids.

These data indicate that hyoids of strangulation victims, with

and without fracture, are distinguished by various indices of

shape and rigidity. On this basis, it may be possible to explain

why some victims of strangulation do not have fractured hyoid

bones.’

26. A bare perusal of the opinion of the learned author by

itself does not lead to the conclusion that fracture of

hyoid bone, is a must in all the cases.

98. Learned Senior Counsel for the appellant has argued that the

hyoid bone of the victim has remained unbroken. Thus, the

strangulation of the victim can be ruled out.

99. The fracture of the hyoid bone is not a rule of thumb in every

case of strangulation as held in Ravirala Laxmaiah (supra). Medical

science has it that the hyoid bone may not be fractured when the age

of the victim is below 40 years, as held in Ravirala Laxmaiah

(supra). It is a strong bone.

100. In the present case, the age of the victim was 30 years at the

time of her death at which stage the Hyoid bone completes

development. Thus, the chance of breaking the hyoid bone was

minimal. The breaking of the hyoid bone further depends on the level

of pressure applied by the assailant. The intensity of pressure is a

variable component.

101. The nature of the injuries found on the victim has established

that the victim was strangulated to death. In addition thereto, the

opinion of the post-mortem doctor, PW 12, has been that the death of

the victim may not be due to hanging; the death of the victim must

therefore be homicidal.

102. The injuries recorded by the post-mortem doctor in his report

and deposed by him in the trial and the findings of this Court thereon

are discussed herein below.

103. The PM report found that saliva did not dribble out from the

mouth of the victim. In Javed Abdul (supra) it was held that saliva

dribbles out when a person hangs herself to death. When a person

hangs herself, she cannot resist the pressure arising from self-

hanging. In a case of hanging, the entire body weight travels

downwards via the brain. This leads to the dribbling out of saliva from

the mouth.

104. In strangulation, the victim resists the external force applied by

her assailant. While the assailant primarily applies force on the neck

of the victim, the former does also have to engage with other body

parts of the latter, which the victim brings into action to escape from

her assailant.

105. In strangulation, the victim thus channelizes her energy against

the force generated by his assailant. Thus, the flow of the body weight

of the victim faced with an act of strangulation does not run in a linear

direction from the brain to the feet. Hence, no saliva dribbles out. The

absence of saliva in the present case indicates that the victim was

strangulated to death.

106. Next, the shape of the injury found in the neck of the victim was

horizontal and continuous. The said shape is found in a case of

strangulation as held in Javed Abdul (supra) .This indicates a person

pulled the neck of the victim from the back with a piece of cloth. One

ghamcha was found by the prosecution witnesses hanging from the

ceiling fan.

107. Thirdly, the neck of the victim did not elongate. In hanging, the

flow of body weight from the brain to the feet enhances the length of

the neck. The size of the victim's neck herein did not increase. The

victim was thus strangulated to death.

108. Fourthly, the neck of the victim was found to be reddish and

soft. In hanging, the entire body weight flows from the brain and

reaches the feet via the neck. Thus, the force does not get restricted to

the neck. In strangulation, all the force is applied to the neck. This

renders the neck reddish.

109. Fifthly, the force applied to the neck of the victim causing the

death did not originate from the body weight of the victim. The PM

report found that the weight of the body did not generate the

constricting force on the neck of the victim. This force causes the

death of the victim. This indicates that an external force was

responsible for the death. The victim thus died by human intervention.

110. The post-mortem doctor found that the victim had succumbed to

violent asphyxia. The presence of violence indicates that the victim was

strangled to death. Thus, a perusal of the injuries noted in the post-

mortem report and the opinion of the PM doctor clearly establishes

that the victim was subjected to strangulation.

111. The husband of the victim was the only person present at the

PO on the night of June 5th, 2013, who had the physical capability

and motive to end the life of the victim. Therefore, the irresistible

conclusion that flows from the medical evidence, evidence of PW 1, 2,

4, 5, 6, and 7 and the last seen theory is that the appellant has

committed the murder of the victim.

112. Mr. Basu has argued that the post-mortem report cannot form

the sole basis of conviction for the offence of murder. The prosecution

must first establish the chain of circumstances to build a prima facie

case in its favour. Reliance is placed on the decisions in Nagendra

Sah v. State of Bihar reported in (2021) 10 SCC 725, Balaji

Gunthu Dhule, reported in (2012) 11 SCC 685, and judgement

dated January 18

th

, 2023 in the case of Bulu Bag and ORS v.

state of West Bengal case no being CRA 20 of 2016.

113. As discussed above, the prosecution has established the sour

relationship between the appellant and the victim, the extra-marital

affair of the appellant and the quarrel between them on the fateful

night. The prosecution thus has laid a strong foundation against the

appellant as regards his conduct and actions towards the victim. The

post-mortem report has just confirmed that the death of the victim

was homicidal. The nature of injuries discussed above has established

the victim was strangulated to death. The appellant resided with the

victim on the fateful night. Thus, the appellant has strangulated the

victim to death.

CONCLUSIONS:-

114. Having regard to the above discussions this court is of the clear

view that the appellant has killed his wife. The impugned judgement of

conviction and sentence is upheld. CRA 719 of 2016 fails and is

hereby dismissed. Consequently, all connected applications, if any,

shall stand dismissed.

115. There shall however be no order as to costs.

116. Urgent photostat certified copy to the parties if applied for.

(Rajasekhar Mantha, J.)

I Agree.

(Rai Chattopadhyay, J.)