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2015 DIGILAW 771 (CAL)

Babulal Chowdhury @ Vegla v. State of West Bengal

2015-09-15

RAJIV SHARMA, SHIVAKANT PRASAD

body2015
Judgment : SHIVAKANT PRASAD, J. Challenge in this appeal is against the judgment and order dated 26.11.2008 and 27.11.2008 of conviction and sentence passed by the Learned Additional Sessions Judge, 1st Fast Track Court, Jangipur, Murshidabad in connection with Sessions Serial No. 32/2006 and Sessions Trial No. 7(2)2007 under Section 302 of the Indian Penal Code, 1860 convicting the appellant thereunder and sentencing the Appellant to undergo rigorous imprisonment for life and to pay a fine of Rupees 5,000/-, in default rigorous imprisonment for a further period of two years. Chronology leading to the instant appeal is that one Astami Chowdhury, D/o. Laxmi Chowdhury of village Mallahpara, P.S.-Raghunthganj, was married to the accused of village and P.S.- Lalgola in the year 2000. Since Astami was a patient of heart disease, she often used to come to her paternal house at Mallahpara, for her medical treatment and used to stay there most of the time. The accused used to suspect the character of his wife alleging an affair with one Swapan Chowdhury, the elder brother-in-law of her younger sister Saptami and also used to suspect the paternity of the child after the birth of Susmita. Prosecution further case is that about 8-9 days prior to the incident, Astami planned to visit Vellore with Swapan Chowdhury for her medical treatment by boarding a train. The accused, in spite of having no railway reservation also boarded the same train but he got down from the train on the way without notice to Astami and Swapan Chowdhury. Thereafter, Astami and Swapan came back from Vellore to Mallahpara and Astami started to live at her paternal home. On 05.10.2005 the accused came to the paternal house of Astami at Mallahpara at about 5:30 P.M. and took Susmita out of the custody of Astami with an assurance that he would come back very soon. Since the accused did not return with Susmita, Astami and the inmates of the family searched for them but neither the accused, nor Susmita could be found. However, Astami and her inmates were under the impression that the accused perhaps took Susmita to his house at Lalgola in that evening but on the next morning, i.e. on 06.10.2005 at about 10:30 A.M. one Sulekha Chowdhury of Mallahpara, found the dead body of Susmita under the ‘Jaba’ tree of one Shila Mahato in the same village beside platform of Goddess Manasha. On hearing her hue and cry, several villagers came over there and found the dead body while Debanjali, the minor sister of Astami took the said dead body to the land of one Ainal Sheikh situated by the side of her house. A written complaint was lodged by Laxmi Chowdhury, the father of Astami on the basis of which Raghunathgunj P.S. Case No. 233/2005 dated 06.10.2005 under Section 302 of the Indian Penal Code, 1860, (corresponding to G.R. Case No. 798/2005), was registered. On completion of the investigation, the Investigating Officer submitted a Charge sheet being No. 56/2006 dated 08.3.2006 under Section 302 of the Indian Penal Code, 1860 against the present appellant. The case being committed to the Court of Sessions cognizance was taken under Section 193 Cr.P.C. and ultimately it was transferred to the Court of the learned Additional Sessions Judge, 1st Fast Track Court, Jangipur, Murshidabad. Charge under Section 302 of the Indian Penal Code, 1860 was framed against the accused and the same was read over and explained to the accused to which he abjured the guilt. Prosecution examined as many as 14 witnesses to substantiate the Charge under Section 302 IPC. After closure of prosecution evidence, the accused appellant was examined under Section 313 Cr.P.C. Defence case is one of denial of the charge under section 302 IPC levelled against the accused appellant which emerges from the trend of cross examination of prosecution witnesses and the statement made by the accused under Section 313 Cr.P.C. After hearing argument and on consideration of the evidence and materials on record, the learned Trial Judge by the impugned Judgment and Order dated 26.11.2008 and 27.11.2008 convicted the accused appellant for charge punishable under Section 302 of the Indian Penal Code, 1860 and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rupees 5,000/-, in default rigorous imprisonment for a further period of two years. Being aggrieved by and dissatisfied with the said impugned Judgment and Order, the accused appellant has preferred this appeal inter alia on the grounds, that the judgment has been rendered without appreciation of evidence in its correct perspective inasmuch as the learned Judge failed to consider the various infirmities in the prosecution evidence which falsify the prosecution case and are based on conjectures and surmises and contrary to the evidence on record. Thus the judgment has vitiated by reasons of non-consideration of materials, which were elicited in the cross-examination of prosecution witnesses and also the defence witness and that the evidence of the prosecution witnesses suffer from gross contradictions and/or embellishments and the same is rendered highly unreliable in nature and ought not to form the basis of conviction in the instant case. The examination of the appellant under Section 313 of the Code of Criminal Procedure, 1973 was illegal, violative of the principles of natural justice and fair play and has caused gross prejudice to the appellant. It is contended that the learned Judge ought to have relied on the principle of law that when two possibilities, one of the commission of crime and the other of innocence are reasonably possible, the accused is entitled to the benefit of doubt and that the learned Judge by convicting the appellant despite the absence of any concrete evidence to prove the culpability of the appellant in any manner whatsoever has caused grave miscarriage of justice. Accordingly, appellant prayed for setting aside the judgement as bad in law and facts. The learned Counsel for the appellant submitted that evidence of P.W. 1 and 2 suffers from contradictions and grave infirmities, and clearly appears to be the deposition of carefully tutored witnesses going out of their way to ensure conformity in their depositions, seeking to make the prosecution case more believable and water tight. It is also contended that the medical evidence is inconclusive, and shaky, and the same is wholly manufactured by the family members of the deceased and the same is not substantiated. The said argument of the appellant is baseless as the report of the autopsy surgeon on the facts and circumstances cannot be manufactured in our opinion. It would appear from the P.M. Report (Exbt. 4) that nail mark right and left side of the neck and bruise injuries were found on the neck. These injuries were due to hand pressure; hyoid bone was fractured and other organs were engaged. The autopsy surgeon has in clear crystal term opined that death was due to throttling. There is no denial to the said finding of the doctor. Whereas suggestion put is that hyoid bone may be fractured due to strangulation. These injuries were due to hand pressure; hyoid bone was fractured and other organs were engaged. The autopsy surgeon has in clear crystal term opined that death was due to throttling. There is no denial to the said finding of the doctor. Whereas suggestion put is that hyoid bone may be fractured due to strangulation. Defensive suggestions that it can be caused due to suicide by hanging and due to fall from a height in our opinion are mere defensive suggestions put to the autopsy doctor as there can be no reason for a minor girl aged 3yrs 3 months old to commit suicide and secondly, there is no building of a considerable height at the place of occurrence to hold that the deceased might have fallen from a height. It is submitted by the learned counsel that the learned Judge came to the conclusion that the testimony of P.W.-1 included an omission on the part of P.W.-1 in disclosing such vital facts in his previous statements, specially where he claims to have seen the accused, and the same amounts to a vital contradiction, and as such, such evidence of P.W.-1 stood impeached having no corroboration from any other corner or circumstances, and was unsafe to rely on. It is also submitted that the Learned Judge illegally came to the conclusion that the accused was found absconding from his native place for a long period after the date of occurrence till 30.12.2005 without any explanation, despite a specific defence by the appellant contained in his examination under Section 313 of the Code of Criminal Procedure, 1973 that he was at Kolkata on account of his work as a mason. This plea was not taken at the earliest point of time and a defensive plea has been taken only at the stage of his examination under section 313 of Code of criminal Procedure. So, we do not agree with the contention advanced by the learned counsel and the Learned Judge has rightly disbelieved the plea of alibi taken by the appellant on the score that no suggestion was even put to the witnesses in their cross examination and further the plea of alibi was taken for the first time at the time of his examination under Section 313 of the Code of Criminal Procedure, 1973. Learned Counsel for the appellant has reiterated the submission contending that the learned Judge has erred in holding the appellant/accused guilty of the Charge, ignoring the vital contradiction in the oral testimony of P.W.-1 Laxmi Chowdhury who is grandfather of the deceased victim although the learned Judge has come to the conclusion that there is no direct evidence as to how the unnatural death of Susmita occurred and the conviction has been solely based on circumstantial evidence and it is urged on behalf of the appellant that since there is no direct evidence then evidence of P.W.-1 and P.W.-2 ought not have been relied on by the learned Trial Judge to record an order of conviction against the accused. Laxmi Chowdhury, P.W.-1 is the grandfather of the deceased and father-in-law of appellant/accused Babulal who was identified at the trial by P.W.-1 according to him complaint was lodged by him against the accused. His daughter Astami was blessed with a baby named Susmita, the deceased victim. P.W.-1 candidly stated on oath that accused Babulal came to attend ‘Shradha’ ceremony of one Joggeswari Chowdhury of his village and the accused had come to his house at about 5:30 P.M. On that day the accused forcibly took Susmita on his lap and went away with her. Susmita started crying as she was not willing to go with her father. P.W.-1 asked the accused not to take her forcibly but he replied he would return after sometime. After waiting for a period of half or an hour, when the accused did not return PW1 and the family members suspected that Susmita might have been taken by the accused to his house at Lalgola and also suspected that accused Babulal might spent night in the house of any person as he was a drunkard and on the next morning, the inmates of the family searched for Susmita but could not find her. According to P.W.-1, one Sulekha Chowdhury of her village had gone to pluck flowers from flower tree near the ‘bedi’ (holy place) of ‘Goddess Manasha’ at about 10:30 A.M. and found dead body of Susmita in a bush. The learned Counsel for the appellant strenuously urged before us that the said Susmita might have been sacrificed by someone at the ‘Goddess Manasha’ as the dead body of Susmita was found in a bush near ‘Goddess Manasha’. The learned Counsel for the appellant strenuously urged before us that the said Susmita might have been sacrificed by someone at the ‘Goddess Manasha’ as the dead body of Susmita was found in a bush near ‘Goddess Manasha’. But on appraisal of the evidence on record we do not find any such suggestion put to the prosecution witnesses so as to conclude the fact that the child was procured for offering sacrifice to ‘Goddess Manasha’. This contention has been raised at this stage of argument only to bring home a suspension in order to bag an order of acquittal. It is a specific case of the prosecution that Sulekha informed the incident to the family members and Astami, the mother of the deceased child who went to the place to see the dead body of her daughter. On her way to the spot Astami became senseless according to P.W.-1 and after she regained her sense, Sitaram Chowdhury was called at her house to write diary to lodge the same to the Police Station. P.W.-1 narrated the incident to Sitaram and he wrote the same and he put his LTI on the complaint after the contents of the complaint was read over and explained to him by Sitaram and the same was submitted to Police Station on the basis of which Raghunathgunge P.S. Case No. 233/2005 dated 06.10.2005 under Section 302 of the Indian Penal Code was registered and investigation was taken out by the Investigating Officer. On completion of investigation, I.O. submitted charge sheet under section 302 IPC against the accused appellant herein and the case being committed to the court of sessions and after taking cognisance under the provision section 193 Cr.P.C., the trial court concluded the trial by handing over a judgement of conviction and the sentence against the accused appellant. The learned Counsel for the appellant adverting to the cross-examination of the I.O. S.I. Bimal Mondal pointed that witness Laxmi Chowdhury, P.W.-1 did not state to the I.O. to this effect that accused Babulal came to attend ‘Shradha’ ceremony of Joggeswari Chowdhury and submits that the oral testimony of P.W.-1 can be taken into account as he has not made such statement at the earlier point of time. We are unable to agree with the submission of the learned counsel for the appellant because such minor contradiction does not go to the root of the prosecution on the contrary we find that his statement is in general agreement with other prosecution witnesses and the First Information Report finds corroboration by its maker. Although motive behind the crime is unfathomable in the mind of the accused which cannot be guessed, nevertheless, the prosecution has been able to prove the motive behind the crime through Astami PW2 has stated in clear crystal term that the appellant/accused being her husband, after birth of the daughter Susmita , he suspected that Susmita was not born out of his wedlock and accused had held out threat that he would kill her daughter Susmita. According to PW2, she was under treatment of Dr. Latif of Jangipur. She used to come to her paternal home when she needed treatment by Dr. Latif. PW2 further stated on oath that Swapan Chowdhury, the elder brother of the husband of her elder sister Saptami took her Vellore for her treatment. Her husband had requested Swapan to take her to Vellore. Her husband also accompanied them from Jiaganj to Katowa but he had no reservation. They searched for him at Howrah station but did not find. So, she went to Vellore with Swapan Chowdhury and returned to her paternal home from Vellore after eight days, her husband came to her paternal home and took her daughter Susmita from her. On being asked, her husband had replied he would come back with Susmita very soon but he did not return. She tried to find out Susmita but of no result. Villagers informed they had seen the accused with Susmita but they did not find the accused and Susmita again. In the next morning she wanted someone to go her matrimonial home to bring her daughter. But at about 10:30 A.M. when one Sulekha Chowdhury had been plucking flowers from flower tree standing by the side of ‘Manasar Than’ (holy place), Sulekha found Sustima dead body under the said flower tree. On hearing this, she became senseless. Certain facts having elicited by the defence during cross-examination of P.W.-2 to this effect that P.W.-2 also suspected the accused for his character and had told Darogababu (I.O.) about her suspicion as to the character of accused. On hearing this, she became senseless. Certain facts having elicited by the defence during cross-examination of P.W.-2 to this effect that P.W.-2 also suspected the accused for his character and had told Darogababu (I.O.) about her suspicion as to the character of accused. P.W.-2 stated that Janata is her husband’s sister and accused husband came to the house of Janata to attend a feast and she had met her husband on the date of incident and she had believed that accused had come to the house of Janata to attend ‘Shradha’ ceremony of the mother in-law of Janata. According to PW2, her daughter was playing when her husband asked her to go with him. P.W.-2 enquired about his destination and in reply , he said that he would come back with Susmita very soon. She did not forbid the accused to take her daughter. This fact elicited by the defence during cross-examination of P.W.-2 is not controverted. According to Sulekha Chowdhury, P.W.-3 at the time of plucking flowers she saw the dead body of a girl lying in the bushes by the side of flowering tree and on identifying the dead body, she raised hue and cry and a good number of villagers assembled there and one Debanjali took the dead body of Susmita from the bush to the road side. It was at about 10:30 A.M. This statement is also goes uncontroverted. Learned defence has raised a point that this witness did not make such a statement to the I.O. So her evidence should not be taken into consideration. In our view having considered the totality of the evidence on record, this discrepancy does not go to the root of the prosecution. Sitaram Chowdhury has testified that dead body of Susmita was found in bush by the side of the house of Shila Mahato and the dead body of Susmita was on the land of Ainal Sk. after it was taken from the side of the house of Shila Mahato. He has written complaint as per the statement of Laxmi Chowdhury, P.W.-1. It has been proved as Exhibit-1 and finds corroboration as to the prosecution case. after it was taken from the side of the house of Shila Mahato. He has written complaint as per the statement of Laxmi Chowdhury, P.W.-1. It has been proved as Exhibit-1 and finds corroboration as to the prosecution case. We are mindful of the principal object of the first information report from the point of view of the informant is to set the criminal law in motion and from the point of view of the investigation to obtain information about the alleged crime. It is not for the purpose of setting down on paper all known facts and circumstances about the incident. An FIR can be used as a previous statement for the purpose of corroboration or contradiction of its maker under section 157 or section 145 of the Indian Evidence Act. It cannot be used utilised for contradicting or discrediting other witnesses. Debanjali Chowdhury, P.W.-5 aged about 14 years after the preliminary inquiry under Section 118 Evidence Act, learned Judge finding her competency to depose was examined on oath, who has also substantially narrated and corroborated the prosecution witnesses with regard to the incident. Bina Chowdhury, P.W.-6 stated on oath that husband of Astami forcibly took her daughter Susmita on his lap when she requested him to return Susmita but he did not return. According to PW6, accused had suspected that Susmita was not his daughter. During cross-examination she has stated that she has seen forcibly taking Susmita from the lap of Astami and in the same manner she has made statement under Section 164 Cr. P.C. In regard to the oral testimony of this witness P.W.-6 the learned Judge has observed to this effect that from the evidence of P.W.-8 Tolabati Chowdhury it is revealed that on the relevant day at about 5:30 P.M. while she along with Bina P.W.-6 and Sankari Chowdhury, P.W.-7 was sitting on the home of Astami P.W.-2 , the accused came over there and took away his daughter Susmita forcibly from the said house. P.W.-7, Sankari did not claim that she was at the home of Astami Chowdhury while the accused took away Susmita. On the other hand, P.W.-6 Bina Chowdhury claimed that she alone was present in the house of Astami when the accused came and took away Susmita forcibly with an assurance that he would come back with Susmita very soon and suspected her accused did not return Susmita. On the other hand, P.W.-6 Bina Chowdhury claimed that she alone was present in the house of Astami when the accused came and took away Susmita forcibly with an assurance that he would come back with Susmita very soon and suspected her accused did not return Susmita. Since P.W.-2 Astami, the mother of the deceased child did not say about the presence of any of these P.W.-6, P.W.-7 or P.W.-8 while the accused had taken away her daughter, the learned Trial Judge was of the view that it would be unsafe to rely on any of these chance witnesses namely P.W.-6, P.W.-7 and P.W.-8 and discarded their evidence. It is also submitted that there is improvement in the evidence of P.W.-1 that he had seen the accused with the child Susmita to proceed along the road, at the material point of time, is unsafe to rely. In our view contradictions, improvements and omission in minor details cannot be regarded as very material or as positive proof of the mendacity of the witnesses and the whole case cannot be thrown out on that count. It is notorious that improvements in an earlier version are always made at the trial in order to give a boost to the prosecution case, albeit foolishly but that does mean that falsity of testimony in one material particular would ruin it from beginning to end. On the other hand, the circumstances will be a good reason merely for the court to be put on guard and sift the evidence with extraordinary caution and to accept those portions of it which appear to be fully trustworthy either intrinsically or corroboration from the other sources. This Court finds on consideration of the evidence of those witnesses on record that although the learned Sessions Judge found that the said prosecution witnesses have introduced some embellishment in their story, nevertheless, the prosecution version is on the whole substantially correct. Reference may be had to the case of Maqsoodam Vs. State of U.P. (AIR) 1983 SC, 126. This Court finds on consideration of the evidence of those witnesses on record that although the learned Sessions Judge found that the said prosecution witnesses have introduced some embellishment in their story, nevertheless, the prosecution version is on the whole substantially correct. Reference may be had to the case of Maqsoodam Vs. State of U.P. (AIR) 1983 SC, 126. Appraising the evidence on record, we find that that the learned Judge has considered all aspects of the prosecution case based on circumstantial evidence as well on the facts deposed by the prosecution witnesses against the accused viz, i) Homicidal death of Susmita whose death has been considered homicidal in nature based on the PM Report with positive finding of fractured hyoid bone and nail marking on the deceased by the Autopsy Surgeon, ii) Last seen together, as the accused had taken Susmita on 05.10.2005 at about 5:30 P.M. from the paternal house of Astami P.W.-2 and Susmita was last seen alone with the accused, iii) Motive behind crime has been well narrated by Astami P.W.-2 who is admittedly wife of the accused to this effect that since after the birth of their daughter Susmita , the accused used to suspect that this child was not born out of his wedlock and he also suspected the character of his wife Astami, iv) Absconding of the accused to the effect that since after the incident, the appellant/accused was absconding from his village Lalgola for a long time and surrendered before the Court on 30.12.2005. v) False plea of alibi taken by the accused at the time of his examination under section 313 Cr.PC to this effect that he had been to Kolkata to undertake labour job but the said fact has not been proved by defence witness. The learned trial Judge came to the findings based on the oral testimony of P.W.-2 Astami and all attending facts and circumstances of the case that the accused came to paternal house of Astami and took away Susmita with an assurance of returning very soon but he did not return. The learned trial Judge came to the findings based on the oral testimony of P.W.-2 Astami and all attending facts and circumstances of the case that the accused came to paternal house of Astami and took away Susmita with an assurance of returning very soon but he did not return. This ocular testimony remains uncontroverted in her cross-examination and the learned Trial Judge findings no plausible reason to disbelieve the ocular oral testimony of P.W.-2 who had seen Susmita alone together with the accused at about 5:30 P.M. on 05.10.2005 has rightly held that the prosecution has been able to substantiate the charge under Section 302 of IPC. The plea of alibi taken by the appellant/accused at the stage of examination under Section 313 Cr.P.C. to this effect that he was not at his house as he had been to Kolkata on account of his work as a ‘Mason’. But no such alibi has been proved on evidence that he was at Kolkata since prior to the incident of death of Susmita. There is no suggestion put the prosecution witnesses that the accused had been to Kolkata for his work prior to the occurrence of crime. To fortify his submission on last seen theory and contention that the order of conviction and sentence are not consistent with the materials on record, learned counsel for the appellant has referred to the case of State of U.P. vs. Satish reported in (2005) 3 SCC 114 by which the Hon’ble Apex Court has summed up the law relating to the last seen theory as under: “The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible.” This proposition has been reiterated in a latest decision. We do agree with this clenched proposition of law on the last seen theory. The decision of State of U.P. V. Satveer and Ors. reported in 2015 (7) SCALE 340 referred to by the learned counsel is distinguishable from the facts and circumstances of the instant case. We do agree with this clenched proposition of law on the last seen theory. The decision of State of U.P. V. Satveer and Ors. reported in 2015 (7) SCALE 340 referred to by the learned counsel is distinguishable from the facts and circumstances of the instant case. Appraising the evidence on record and factual circumstances against the appellant/accused the learned Trial Court has found the following facts and circumstances having been proved against the accused beyond reasonable shadow of doubt. 1. that the accused on 05.10.2005 at about 5:30 P.M. came to the paternal house of his wife Astami at Mallahpara and took away Susmita with an assurance of coming back very soon. 2. that thereafter, the accused did not came back at all. 3. that on 06.10.2005 the dead body of Susmita was searched at about 10:30 A.M. beside the flower three of Shila Mahato in the same village and her death was homicidal by way of throttling. 4. Susmita was at the time of her death, aged about 3 or 3½ years and she was last seen alive with the accused at 5:30 P.M. on 05.10.2005. 5. Susmita took her full meal after 5:30 P.M. on 05.10.2005 but within about one hour prior to her death. 6. Such meal must have been tendered to her by a friendly hand as she had taken her full meal to her full satisfaction and such friendly hand must be of her father as she was last seen alive with the accused at about 5:30 P.M. 7. The accused did not make any attempt to show as to when and where he left Susmita alive, at anytime after 5:30 P.M. on 05.10.2005. 8. The accused had a strong motive behind the crime as he used to suspect that Susmita was the fruit of an extramarital affair of her mother with some other person. 9. Nothing was stolen or snatched from the person of Susmita, nor she was subjected to any sexual abuse, which rules out any probable motive of any stranger behind the crime. 10. No evidence exists to show or suggest that Astami or her paternal inmates or even Susmita had any dispute with any person or family at Mallahpara or elsewhere, so as to indicate that the author of the crime could be someone else. 11. 10. No evidence exists to show or suggest that Astami or her paternal inmates or even Susmita had any dispute with any person or family at Mallahpara or elsewhere, so as to indicate that the author of the crime could be someone else. 11. Since after the incident of homicidal death of Susmita, the accused was found absconding from his native place at Lalgola, for a long period till 30.12.2005. 12. The accused has taken a false plea of alibi, for the first time at the time of his examination under Section 313 Cr.P.C. which provides an additional link in the chain of circumstances. 13. The accused has failed to assign any plausible reason for his false implication in this case. 14. At any rate, the conduct of Astami, the wife of the accused, prior and subsequent to the incident clearly rules out any probability of her connivance in committing the crime by any other person. Yet another case of Sujit Biswas Vs. State of Assam reported in AIR 2013 SC 3817 , has been referred relying on the observation made in paragraph 14 of the decision which is also not apposite to the facts and circumstances of the instant case in our respectful consideration inasmuch as in the instant case appellant/accused took his daughter Susmita from the custody of his wife Astami from her paternal house on the assurance he will return very soon with her daughter but did not turn up and in the next morning the dead body of Susmita was found under a bush by the side of ‘Goddess Manasha Than’ and the accused was absconding since 05.10.2005 and he only surrendered on 13.12.2005 and there was no explanation by him at the earliest point of time that he had been to Kolkata to do his job. The appellant/accused was seen last together with the deceased daughter by nobody but by Astami Chowdhury, P.W.-2 who happened to be the mother of the victim child and wife of the appellant/accused. We find no reason as to why Astami should falsely implicate her husband merely on suspension. The case of Shantabai and Ors. Vs. The appellant/accused was seen last together with the deceased daughter by nobody but by Astami Chowdhury, P.W.-2 who happened to be the mother of the victim child and wife of the appellant/accused. We find no reason as to why Astami should falsely implicate her husband merely on suspension. The case of Shantabai and Ors. Vs. State of Maharashtra reported in AIR 2008 SC 1571 : (2008) 16 SCC 354 referred to by the learned Counsel for the appellant is also distinguishable from the facts and circumstances of the instant case inasmuch as the prosecution case in the cited decision is of illicit relation of the accused with the deceased in the last mentioned year. Prosecution case was wholly considered unbelievable as the prosecution also did not lead any evidence to establish that on the date of occurrence the deceased had visited the house of the accused. The learned Counsel for the appellant further referred to a decision of Rishi Pal Vs. State of Uttarakhand AIR 2013 SC 3641 : (2013) 12 SCC 551 and submitted that the Court shall not convict accused where the prosecution case is not proved beyond reasonable doubt. In the cited decision it has been observed that the motive assumes importance in cases resting entirely on circumstantial evidence— Tell-tale circumstances proved—given rise to suspicion against the appellant. It is clenched position of law that suspicion howsoever strong not enough to justify conviction of appellant for murder. But in the instant case we have found that the learned Trial Judge has considered all suspects of the case appraising the evidence on record and the attending facts and circumstances finding the accused guilty of the Charge under Section 302 of IPC. In our considered opinion this is not a case of Tell-tale story giving rise to any amount of suspicion against the appellant. In the case of Raj Kumar Singh @ Raju @ Batya Vs. State of Rajasthan reported in AIR 2013 SC 3150 : (2013) 5 SCC 772, it has been held that if there is no ocular version of incident and entire case of prosecution is based on circumstantial evidence, then accused person shall be entitled for benefit of doubt. In the case of Raj Kumar Singh @ Raju @ Batya Vs. State of Rajasthan reported in AIR 2013 SC 3150 : (2013) 5 SCC 772, it has been held that if there is no ocular version of incident and entire case of prosecution is based on circumstantial evidence, then accused person shall be entitled for benefit of doubt. We do humbly agree with the principle laid in the cited decision but this principle is not applicable to the instant facts and circumstances of the case as we have found that the Trial Judge relying on the ocular testimony of P.W.-2 Astami narrating the incident and basing on the circumstantial evidence as discussed above came to a distinct and unerringly finding of guilt against of the accused. In case of Kanhaiya Lal Vs. State of Rajasthan reported in 2014(4) SCC 715 , motive alleged by the prosecution was not established, particularly when it is proved that there was cordial relationship between accused and the deceased for long time and in that set of fact it was held that conviction of appellant cannot be maintained merely on suspicion, howsoever strong it may be, or on his conduct. It was also observed that mere non-explanation on the part of appellant by itself cannot lead to proof of guilt against the appellant. True, we do accept this principle but in the case in hand we have found evidence on record that the fact of alibi to the effect that the appellant/accused had been to Kolkata to do ‘Mason’ work prior to the date of occurrence was not elicited to any of the prosecution witness at the earliest point of time and this fact was only taken as alibi at the time of examination of the accused under Section 313 Cr.P.C. That too has not been proved by adducing the evidence of his master/employer. Moreover relationship between the appellant accused and his wife Astami does not appear to be cordial. Therefore, we are of the humble opinion that the case of Kanhaiya Lal is not apposite to the facts and circumstances of the instant case. Moreover relationship between the appellant accused and his wife Astami does not appear to be cordial. Therefore, we are of the humble opinion that the case of Kanhaiya Lal is not apposite to the facts and circumstances of the instant case. We have found that the learned Trial Judge has rightly taken the inference of guilt based on the circumstantial evidence and also on the ocular testimony of the prosecution witnesses and the legal evidence which found to be uncompatiable with innocence of accused unerringly pointing out to the guilt of the accused beyond reasonable shadow of doubt. We have bestowed anxious and careful thoughts over all aspect of the matters and applying all the standard of strict prove beyond all reasonable doubt as insisted in all criminal cases, we find no ground to interfere into the findings of the learned Trial Judge and we affirmed the judgment. Ergo, the appeal is hereby dismissed. Let the Lower Court Record together with a copy of this Judgment be sent down to the learned Trial Court forthwith. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities. I agree.