Judgment : Tapen Sen J. 1. This appeal is directed against the judgment and order dated 3/7/2008 and 4/7/2008 passed by the Ld. Additional Sessions Judge, 6th Fast Track Court, Malda in Sessions Trial No. 62 / 07 arising out of Sessions Case No. 173 / 07 whereby and whereunder while extending the benefit of doubt to 11 accused persons, he, however, found this appellant (Sunil Ghosh) guilty under Sections 302 / 201 of the Indian Penal Code and sentenced him to undergo imprisonment for life for the offence under Section 302 and to pay a fine of Rs. 2,000/- and also to suffer imprisonment for 7 years for the offence under Section 201 of the Indian Penal Code. Both the sentences were directed to run concurrently. 2. The case arises out of Ratua P.S. Case No. 123 / 04 registered on 12/8/04 and initiated on the basis of a written report submitted by one Subhas Ghosh, the complainant (P.W 2) naming this appellant along with Bharat Ghosh, Ram Ghosh, Laxman Ghosh, Dhananjay Ghosh, Abhay Ghosh, Kaltu Ghosh and others as accused. In the written report it was stated that his sister Kanchan Ghosh (aged 26 years) was married to Sunil Ghosh (the appellant herein) 7 years ago. It was stated that since after the marriage, the appellant started torturing Kanchan physically and mentally under instructions of the other accused persons. Kanchan had 3 children and yesterday i.e. on 11/8/04 at about 5:30 P.M., the informant came to know from the villagers that the accused persons had killed his sister after beating her up and had hanged her after throttling her in the room. On receiving such a news he at once went to the house of the appellant but could not find the dead body. They also did not find anybody in the house and thereafter they wanted to know about the incident from the co-villagers who told them that the appellant and others had gone away carrying the dead body of Kanchan. The informant and his co-villagers then started searching for the dead body and in the process of such search, the appellant Sunil Ghosh was found in the village field of Araidanga. On being asked, he confessed before Rabi Ghosh (P.W 3), Netai Ghosh and many others that Kanchan’s body had been burnt after killing her and the body disposed of in the Gobarchona burial ground. 3. On being asked, he confessed before Rabi Ghosh (P.W 3), Netai Ghosh and many others that Kanchan’s body had been burnt after killing her and the body disposed of in the Gobarchona burial ground. 3. The case was committed to the Court of Sessions and thereafter it was transferred to the Court of the Ld. Additional District and Sessions Judge, 6th Fast Track Court, Malda for trial and disposal. During the course of trial, as many as 16 witnesses were examined by the prosecution. P.W 1 is one Rekha Ghosh who is a neighbour of Kanchan Ghosh. She stated that Kanchan had died 3 years ago but she did not know the cause of her death. She was declared hostile. 4. P.W 2 is Subhas Ghosh, the complainant himself. He has stated that Kanchan had been murdered on 11/8/04 and her body was found on 15/8/04 beside the river at Gobarchona burial ghat. The body was not burnt but it was buried underground. He stated that his sister had been subjected to torture by her husband and other inmates at the matrimonial home and the reason why the accused used to torture her was that she did not like the criminal activities of the accused persons. He stated that the police caught the appellant and asked him the whereabouts of his sister. He stated that the body had been cremated. He further stated that Kaltu Ghosh and his sons had driven out his sister and this appellant and that they lived separately and that the complainant had purchased the land where his sister used to reside. 5. P.W 3 is Rabi Ghosh who merely said that he knew nothing. Crossexamination was declined. 6. P.W 4 is one Chiranjib Bhattacharya who was a Judicial Magistrate who recorded the statement of Sudam Ghosh and Saraswati Ghosh under Section 164 of CrPC in connection with the instant case. According to him, Saraswati Ghosh, whose statement had been recorded, was 7 years old at the time when her statement was recorded by him. 7. P.W 5 is Susanta Ghosh. He stated that he knows the appellant and he also stated the complainant had told him that Kanchan had died. He also stated that after 3 / 4 days, the dead body had been recovered from the Goborchona Ghat and that it was lying buried under the ground. 7. P.W 5 is Susanta Ghosh. He stated that he knows the appellant and he also stated the complainant had told him that Kanchan had died. He also stated that after 3 / 4 days, the dead body had been recovered from the Goborchona Ghat and that it was lying buried under the ground. He was also there when the dead body was recovered and Inquest was held in his presence. 8. P.W 7 is one Ratan Karmakar. He also stated about the exhumation of the body from under the ground opposite the burning ghat at Goborchona on the other side of river Kalindi. 9. P.W 8 is one Tarit Kumar who proved the signature on the Inquest Report and he stated that the appellant used to live separately and that he did not have any relationship with his father or other brothers. He also stated that the appellant had stayed in the house of his in-laws for a considerable period of time whereafter he had shifted to his own house. 10. P.W 9 is Saraswati Ghosh, the child witness. She stated that she had read up to Class IV. She is the daughter of Kanchan Ghosh and she stated that her mother was dead and that she had been killed by her father, uncles and grand father 3 years ago. She stated that her mother Kanchan had asked the appellant to go to the husking mill with paddy to which her father had assaulted her with lathi and broom-stick and then he had gone out. When she came back from school at 3 P.M. she found her father, grand father and uncles assaulting her mother with lathi, broom-stick, bamboo stick and brick. She further stated that her father gave her Rs. 10/- and asked her to inform her matrimonial uncle. He made her board a maxi bus and told her not to disclose anything. He instructed the driver to drop her at Nagama. She alighted from said vehicle at the place and went to her maternal uncle’s house where she could not find him. When in the evening her maternal uncle Subhas (complainant) came, the girl told him everything. She said that her father had informed her maternal uncle over telephone about the death of her mother by hanging. She also stated that she was a student of Class II when her mother had died. When in the evening her maternal uncle Subhas (complainant) came, the girl told him everything. She said that her father had informed her maternal uncle over telephone about the death of her mother by hanging. She also stated that she was a student of Class II when her mother had died. We do not find any element of tutoring of the child witness and therefore we cannot disregard her evidence. 11. P.W 10 is one Sadagar Mandal, a Home Guard. He proved his signature on the seizure list (Exbt. 4). He was not cross-examined. 12. P.W 11 is Constable No. 64, Binoy Chandra Karmakar who took the dead body of Kanchan Ghosh to Malda Hospital for post mortem examination. He proved the dead body challan which contained his signature. 13. P.W 12 is S.I. Bipul Banerjee who was the Officer-in-Charge of Ratua Police Station and who received the written complaint from Subhas Ghosh and registered the case. He proved the F.I.R. He was also one of the Investigating Officers of the case and, during the course of investigation, he examined one Sudam Ghosh and Sanjib Ghosh and recorded their statements under Section 161 CrPC. He also arranged for the recording of the statement of Sudam Ghosh under Section 164 CrPC. 14. P.W 13 is one Md. Navi Nawaj, Sub Inspector of Police who was attached to the Ratua Police Station and had been entrusted with the investigation. He is the other Investigating Officer who had perused the F.I.R, visited the place of occurrence, drawn the rough sketch map with index and he proved them in Court which were marked Exbt. 7. He examined witnesses including the complainant and recorded their statements under Section 161, CrPC. He stated that the dead body of Kanchan had been found from under the ground near the burning ghat by the side of the river. He arranged for the post mortem examination of the dead body. He collected the post mortem report and arrested the accused persons. He seized the wearing apparel of the deceased and her bangles like pola and sakha. He also seized the spade with the help of which the dead body had been exhumed. He proved the seizure list marked Exbt. 4/a and 6/a. In the wake of his transfer he made over the case docket to the Officer-In- Charge, Ratua Police Station (P.W 12). 15. He also seized the spade with the help of which the dead body had been exhumed. He proved the seizure list marked Exbt. 4/a and 6/a. In the wake of his transfer he made over the case docket to the Officer-In- Charge, Ratua Police Station (P.W 12). 15. He further stated that Rekha Ghosh (P.W 1) had told him that on 11/8/04 at about 5:30 P.M. the appellant had assaulted his wife Kanchan and thereafter, the appellants’ brothers, namely Bharat Ghosh, Laxman Ghosh, Ram Ghosh, Abhay Ghosh, Dhananjay Ghosh, Samar Ghosh, Sanjib Ghosh and Sudam Ghosh had jointly assaulted Kanchan and had throttled her and hanged her dead body in her bedroom. Rekha Ghosh had also told him that the accused persons did not allow anyone to enter the room and taking advantage of the dark, they had removed the dead body through the rear of their house through the orchard of one Ram Kumar. 16. P.W 14 is one Santosh Rajak who was the scribe of the complaint and he proved it in Court marked as Exbt. 1. 17. P.W 15, Dr. Debnath Sarkar, is the Autopsy Surgeon. On 16/08/04 he conducted the post mortem examination on the dead body of Kanchan Ghosh which had been brought to the hospital in a putrefied condition. He did not find any external marks of injury but on dissection, he found the subcutaneous tissue over the neck having suffered hemorrhage. He also found the hyoid bone fractured. He also found the tracheal rings fractured. According to him, the cause of death was ante mortem strangulation, homicidal in nature. 18. P.W 16 is one Sukhen Kr. Dhar, the B.D.O of Ratua who held the Inquest over the dead body of Kanchan Ghosh. 19. We have considered the impugned judgment delivered by the Ld. Trial Judge. There is no doubt that Kanchan Ghosh died an unnatural death and according to the Autopsy Surgeon the death was the effect of ante mortem strangulation, homicidal in nature. It is true that none of the witnesses have witnessed the incident save and except the child witness namely Saraswati Ghosh (P.W 9) and from the nature of her examination, it is evident that she had given a vivid description of the manner of assault to which Kanchan had been subjected. She did not show any signs of faltering during her examination and cross-examination. She did not show any signs of faltering during her examination and cross-examination. She even withstood cross-examination and it is also evident that she was herself sent to her matrimonial uncle by her father with an instruction to inform him about the assault etc. She also stated that when she came back from school she found the accused persons assaulting her mother. This witness had also made a statement under Section 164 of the CrPC before the Ld. Judicial Magistrate which is consistent with her earlier testimony. In her statement under Section 164, she had further stated that her mother was kept under lock and key in a room before she went out to board the vehicle for her maternal uncle’s house. 20. Thus, upon a perusal of the statements of P.W 9, we notice that her mother was not only assaulted by her father but also by other accused persons. However, since other witnesses did not corroborate the earlier testimony of P.W 9, the Ld. Trial Judge came to the conclusion that such uncorroborated testimony did not inspire confidence in him to hold that all the accused persons were responsible for the death of Kanchan Ghosh. Consequently, there is no irregularity in the finding that though there was reason to view the other 11 accused person with a strange note of suspicion but suspicion itself could not replace the onus of proof. Therefore there was no irregularity when the Lower Court came to the conclusion that he was inclined to extend the benefit of doubt to them. 21. However, so far as the husband appellant is concerned, his case does not and cannot be said to stand on the same footing as the 11 accused persons. It is true that P.W 9, the child witness saw her mother being assaulted by the accused persons and the dead body was subsequently found on 15/8/04. There is no evidence to throw any light as to what happened between 11/8/04 and 15/8/04. The deceased was very much in the custody of the appellant. Upon hearing the news of his sister’s death and when P.W 2 and the other villagers went to the house, they did not find anybody there and subsequently they found the dead body. There is no evidence to throw any light as to what happened between 11/8/04 and 15/8/04. The deceased was very much in the custody of the appellant. Upon hearing the news of his sister’s death and when P.W 2 and the other villagers went to the house, they did not find anybody there and subsequently they found the dead body. Kanchan Ghosh (deceased) and Sunil Ghosh (appellant) used to live together in one house and therefore being the husband, it was his duty to explain as to how and under what circumstances his wife’s body was recovered from under the ground and as to how and why she had died. Consequently, so far as the appellant Sunil Ghosh is concerned, it cannot be denied that he and the victim used to live in a house with their children and she was alive so long as P.W 9 was in the house. There is also nothing to doubt the fact that Kanchan was assaulted and that she had been kept under lock and key before Saraswati had gone out to inform her maternal uncle. P.W 2 also rushed to the place upon receiving the news of the death of his sister but the door was found locked and nobody was there and subsequently, the dead body of Kanchan was found buried as it had not been consigned to flames. 22. From the evidence of the Doctor we find that the injuries were ante mortem and homicidal in nature with the tracheal rings fractured, hyoid bone fractured and the subcutaneous skin around the neck having suffered hemorrhage. Therefore the presumption will always be that it was the husband / appellant who committed such a gruesome offence because he has not been able to explain as to how Kanchan died of manual strangulation. He was the best person to have stated what had happened to his wife and as to how his wife sustained injury on her throat and as to why he had deserted the house keeping the door under lock and key with his wife missing. He did not offer any explanation. 23. Taking into consideration the aforementioned facts and circumstances of the case we find no irregularities with the judgment and order of conviction and sentence passed by the Ld. He did not offer any explanation. 23. Taking into consideration the aforementioned facts and circumstances of the case we find no irregularities with the judgment and order of conviction and sentence passed by the Ld. Trial Judge by which he acquitted 11 accused persons but convicted the appellant Sunil Ghosh and found him guilty of the charge under Section 302 / 201 and sentenced him to undergo life imprisonment under Section 302 and to suffer 7 years imprisonment for the offence under Section 201 of the Indian Penal Code. 24. There is no merit in this Appeal. It is accordingly dismissed. 25. Let the Lower Court Records be sent down forthwith. I agree,