JUDGMENT : MIR DARA SHEKO, J. 1. This criminal appeal is preferred on the grounds set out in the memorandum of appeal by the convict/appellant on bail assailing the judgment of conviction dated 12.06.2015 passed by learned Additional Sessions Judge, 1st Court, Alipore in District 24-parganas (South) in Sessions Case No. 27(12) 2011 (Sessions Trial No.-02(04) 2014) by which the appellant was sentenced on 15.06.2015 to suffer Life imprisonment with fine for the charge under Section 302 of the Indian Penal Code only, since the appellant was acquitted from two other charges punishable under Sections 498-A and 201 of the Indian Penal Code. 2. Instead of repeating the given fact, the charges bearing the extract of the fact, as were framed on 13.02.2012 against the appellant, are set out:- "Firstly, That you after 23.00 hours on 08.05.2011 and any time before 08.00 hours on 09.05.2011 with an intention to commit murder of Smt. Manju Dwivedi, aged about 34 years, your wife, who was residing with you in your Quarters No. T-9, Light Regiment, Rashapujna, P.S. Bishnupur, District-South 24 Parganas intentionally caused pressure over her neck by broad, soft, flexible object leading to her violent death and Smt. Manju Dwivedi on being removed in such condition to Command Hospital (E.C), Alipore, Kolkata-700027on 09.05.2011 at about 10.30 A.M. was declared found dead, and thereby you committed murder by intentionally causing death of your wife Manju Dwivedi and thereby committed an offence punishable under section 302 of Indian Penal Code and within the cognizance of this Court. Secondly, That since sometime after your marriage on 9th day of December, 1998 and while you were residing at T-9, 1831 Light Regiment, Rashapunja, P.S. Bishnupur, District-South 24 Parganas being the husband of Smt. Manju Dwivedi subjected your wife to cruelty both mental and physical as she had no issue and also on one pretext or another and that you thereby committed an offence punishable under section 498A of the Indian Penal Code and within the cognizance of this Court. Thirdly, That you on or about 08.05.2011 after 23.00 hours or/and any time on 09.05.2011 before 8.00 hours at Quarters No. T-9, Light Regiment, Rashapujna, P.S. Bishnupur, District-South 24 Parganas knowing that an offence of murder of your wife Smt. Manju Dwivedi, D/o. Dr. Thirdly, That you on or about 08.05.2011 after 23.00 hours or/and any time on 09.05.2011 before 8.00 hours at Quarters No. T-9, Light Regiment, Rashapujna, P.S. Bishnupur, District-South 24 Parganas knowing that an offence of murder of your wife Smt. Manju Dwivedi, D/o. Dr. Laxmi Nand Negi, punishable under section 302 IPC with death or imprisonment for life having been committed by you, did cause certain evidence of the said offence to disappear to wit any broad, soft, flexible object by which you pressed her neck and caused her death, with the intention of screening yourself from legal punishment and you thereby committed an offence punishable under Section 201 of the Indian Penal Code and within cognizance of this Court." 3. Since either the State, or, the defacto complainant did not prefer appeal against the order of acquittal in respect of the above-mentioned 2nd and 3rd charges, discussion over any allegation attracting those charges under Sections 498A or 201 I.P.C shall remain out of purview of this appeal. Therefore, as indicated in the charge so framed, it would remain for consideration, whether the death of wife of the appellant, as taken place between 23-00 hours of 08.05.2011 and before 08-00 hours on 09.05.2011 within the quarters of the appellant situated at Rasapunja under police station Bishnupur District South 24 Parganas, was homicidal as a resultant effect of putting "pressure over her neck by any broad, soft, flexible object." 4. Mr. Pratik Bhattacharya learned Counsel for the appellant criticising the impugned judgment of conviction as illegal and perverse, argued that learned Trial Judge only by way of academic discussion and without considering absence of legal substantive evidence wrongly concluded for conviction in this case. He submitted, a pathological death was wrongly converted into a homicidal death for which the appellant being an Army Officer in the rank of Major was booked to suffer life imprisonment. Mr. Bhattacharya however, submitted that during course of admission of appeal by this Court, his client though was given relief under Section 389 of the code to remain on bail by keeping the order of sentence in abeyance, but future of his service career was damaged since he became victim of the circumstances arose owing to such wrong decision taken in the case. It is argued, that mere presence of the husband in the quarters would not give conclusion that he is responsible for death of his wife even if her death takes place pathologically. Mr. Bhattacharya, further argued that at the earliest opportunity the appellant over phone communicated to his in-laws on 9.5.2011 at about 9 a.m. that his wife Manju was not responding, which was camouflaged by his in-laws that the appellant as if informed that the victim died by consuming poison and she was being taken to hospital. It is stated that had there been the incident of murder allegedly by smothering by means of putting pressure over or around the neck of the deceased with any broad, soft and flexible object like pillow, cushion etc., then signs of some minimum injuries of violence could have been expected to appear around the face, neck and other parts of the stout and healthy body of the deceased. But the prosecution did not get any conclusive support from the medical evidence, though the father of the deceased and his near relatives, including the then D.I.G of police of Himachal Pradesh were persuading through Ministry of the respective state to book the appellant to jail by cancelling his anticipatory bail, in transferring investigation of the case from the West Bengal police to CID and medical board was constituted to give expert's opinion about the cause and nature of death. He also submitted that inquest report was absent in the case without explanation, although postmortem was held. Therefore, the autopsy Surgeon had no opportunity to verify as to whether in naked eye any bodily injury was detected or not at the first instance soon after death. According to Mr. Bhattacharya, chapter- VI of the PRB was absolutely ignored, for which even any presumption would not be available that all the formalities were performed correctly. He then argues that by providing some naked photographs of the deceased, said to have been snapped privately by her brother after postmortem examination, during trial, prosecution tried to bring those photographs into evidence by marking those photographs as MAT Ext.II series, though the same were not part of police report within the meaning of section 173 of the Code of Criminal Procedure, 1973 and therefore those were inadmissible in evidence. It is stated that though from evidence of P.W.2 it was evident that in the preceding evening the deceased was in very jovial mood, and though the evidence of P.W.7 to P.W.10 did not support the prosecution case about any incident of quarrel, learned Trial Judge did not consider those evidence which could have answered to negate the charge of murder for want of motive. Mr. Bhattacharya submits that if the evidence of P.W.11 is considered as he was examined by prosecution as their own witness and he was not declared as hostile witness, then the evidence of P.W.11 as a whole would favour the innocence of the appellant and not the case of the prosecution. Since wife of P.W.3, with whom alleged illicit connection of the appellant was said to have been cropped up, and the orderly peon, who had the best possible chance to see the appellant and his wife in the morning of that day during serving morning tea, having not been examined in the case, and thereby their evidence having been withheld, and there being no proof of homicidal death since medical evidence was not even united to support the case of prosecution, rather, opinion was given on guess and probability. It is argued by Mr. Bhattacharya submitted to set aside the judgment of conviction and to allow the appeal at least by dint of benefit of doubt, if not on merit itself. Mr. Bhattacharya relied on the following cases:- (i) Subramaniam v. State of Tamil Nadu reported in (2009)2 Calcutta Crl. Law Reporter (SC) 48 (paragraph 14). (ii) State of Himachal Pradesh v. Keshav Ram & Ors. reported in AIR 1997 Supreme Court 2193 (paragraph 37) 5. Per contra Mr. Sanyal learned Senior Counsel appointed by the defacto complainant in private capacity with permission of the Bench submitted to dismiss the appeal upholding the conviction as directed by learned Trial Court for the offence under Section 302 I.P.C. His contention is that the couple was issue-less so the deceased was unhappy. Conjugal relationship became strained due to cropping up intimacy of the appellant with Shalini, wife of P.W.3. The appellant approached P.W.3 to prepare divorce papers which was the motive in the case. Mr. Sanyal heavily relied on Ext. Conjugal relationship became strained due to cropping up intimacy of the appellant with Shalini, wife of P.W.3. The appellant approached P.W.3 to prepare divorce papers which was the motive in the case. Mr. Sanyal heavily relied on Ext. Q, a copy of alleged message said to have been sent by the appellant through mobile to P.W.3 on 14.04.2011 asking P.W.3 to pick up Manju from Delhi Railway Station and requested to send divorce papers to sign. Further submitted, protrusion of tongue was there which could have been possible due to smothering, and injuries having been found in the hand and leg, which ought to be an outcome of putting resistance by her, presumption under section 106 of the Indian Evidence Act would be available in the case, since except husband and wife there was No. 3rd person in the quarters. It is stated that thereby, the appellant except denial, failed to explain the circumstances, as were confronted to him with reference to the evidence on record, since it would also go against the appellant. Mr. Sanyal thus discussing the evidence on record and appreciating the judgment in-question as just and proper submitted to dismiss the appeal relying on the following cases:- (i) Gajanan Dashrath Kharate v. State of Maharashtra reported in AIR 2016 Supreme Court 1255 (para 12). (ii) Swamy Shraddananda v. State of Karnataka reported in (2008)2 Supreme Court Cases (Cri) 322 (para 12). 6. Learned Counsel for the State Mrs. De, pursuant to direction of this bench though produced the respective case diary of the P.S. Case and of the U.D. Case, failed to explain therefrom as to why inquest over the corpse was not held though unnatural death case was registered at Alipore police station on the basis of medical report received from command hospital. However, ensuring the legal proposition Mrs. De fairly submits that though prosecution since could not rely on any evidence, be it oral or documentary, if the same would not be part of police report within the ambit of Section 173, or, was not made part of record through recourse under section 311 of the Code of Criminal procedure, 1973 however Mrs. De, discussing the evidence on record submitted that the same would be sufficient to uphold the order of conviction, and she thus adopted the arguments of Mr. Sanyal praying to dismiss the appeal. 7. De, discussing the evidence on record submitted that the same would be sufficient to uphold the order of conviction, and she thus adopted the arguments of Mr. Sanyal praying to dismiss the appeal. 7. From the formal FIR (Ext.9) and written complaint (Ext.1) coupled with the evidence of P.W. 1, father of deceased Mr. L.N. Negi we find that on his arrival at Kolkata airport by Air from Simla via Delhi on 10.05.2011 at about 11 A.M. he (P.W.1) handed over the complaint at Bishnupur police station within District 24-parganss on 10.05.2011 at 2.05 P.M. 8. Source and text of information about death news of Manju was allegedly received from the appellant first by P.W.3 over phone. The statement of P.W.3 Dinesh on oath is as under:- "At 9:00 A.M. on 9th May, 2011, I received a phone call from Krishna Kant Dwivedi saying that your sister Manju was no more because she has consumed poison. I was shocked and had a suspicion that he must have killed here because the quarrel which was going on and also the way he spoke to me. Then I with my parents and other relatives came to Kolkata at about 10/11:00 A.M. on 10th May, 2011 and saw the dead body of my younger sister Manju at Command Hospital. I saw that her tongue was protruded, nose pinched, colour change on her neck, body was swollen and stiff. I being a Doctor my suspicion was confirmed that Krishna Kant Dwivedi must have killed my younger sister Manju by causing asphyxia. Then We along with my father and others went to Bishnupur P.S. and my father lodged FIR against Krishna Kant on 10th May, 2011." 9. P.W.1, father of P.W.3 and the deceased corroborated the same. Relevant extract of the statement is set out hereunder:- "On 9th May, 2011 at about 9.00 a.m. in the morning Krishna Kant made a telephone call to my son at Delhi saying that Manju had consumed poison and she was no more. My son was shocked hearing the news. Krishna Kant then made a telephone call to his mother-in-law at about 10:00 A.M. at Simla saying that Manju had consumed poisoned and died. I, my wife, my son, my brother in law and family relatives in all 8 persons went to Delhi. My son was shocked hearing the news. Krishna Kant then made a telephone call to his mother-in-law at about 10:00 A.M. at Simla saying that Manju had consumed poisoned and died. I, my wife, my son, my brother in law and family relatives in all 8 persons went to Delhi. We 8 persons came to Kolkata by Air from Delhi and reached Kolkata at 11.00 A.M. on 10th May, 2011. From Airport all of us went to Command Hospital at Alipore. We saw the dead body of Manju. I saw that her tongue was protruded, eyes closed, symptoms on neck, stiffness of body. Rigor Mortis had set in. Then we went to Bishnupur P.S. I lodged a written complaint at the P.S. at 02:00 P.M. on 10.05.2011. I believe that Manju was murdered by pressing on her neck, blocking the air ways which according to me caused protrusion of her tongue." 10. P.W.2, being sister of the deceased corroborated source of her information in the same manner with almost similar text which is set out below:- "Next day at 9:00 A.M. in the morning Krishna Kant Dwivedi made a call to me saying that my sister had committed suicide by taking poison. I was shocked as the news was unbelievable. I conveyed the news to my parents and my husband. On 10th May, 2011 I reached Kolkata with my husband and children. On reaching Kolkata, we went to Command Hospital, saw the dead body of my sister kept in a mortuary, her nose was pressed and tongue was slightly protruded and there were marks on her neck. Her body was stiff and face swollen. I found the Doctors discussing that she was murdered by smothering." 11. P.W.4 being the mother of the deceased disclosed her source of information about death of her daughter in the same manner, which is also extracted below:- "On 9th May, 2011 Krishna Kant made a phone call to me saying that Manju expired taking poison. Krishna Kant is present in Court today (identifies accused). On the next date I with my husband, son, my sister, my sister's husband, in all 7/8 persons reached Kolkata. We went to Command Hospital on reaching Kolkata. I saw the dead body of my daughter. Her face was swollen, nose was pinched, there were marks on neck and body was stiff. On the next date I with my husband, son, my sister, my sister's husband, in all 7/8 persons reached Kolkata. We went to Command Hospital on reaching Kolkata. I saw the dead body of my daughter. Her face was swollen, nose was pinched, there were marks on neck and body was stiff. My husband and my son went to Bishnupur P.S." 12. P.W.5 was a Head constable of Hariyana Police. He and P.W.4 were full blooded brother and sister. P.W.5 being cousin to the deceased told that he heard from his father over telephone on 9th May, 2011 that Manju was no more, since she had consumed poison. He suspected that the appellant committed murder of Manju. 13. Admittedly, marriage between the appellant and Manju, since deceased, was held on 9th December, 1998 and they were issue-less. P.W.2 stated the cause behind was that the appellant was impotent. This statement however was recorded after noting objection, may be for the reason that the assertion was foreign to the record. However, her statements in cross-examination relevant to the above shows:- Manju had desire to have child. I have made statements before police around Sept' 2011. I did not make any statement to police on date of my arrival at Kolkata. I cannot say whether Manju conceived or not. She had blighted ovum. In blighted ovum doctor does not declare pregnancy. This blighted ovum was after 9/10 years of marriage of Manju. 14. However, from assertions of P.W.1 to P.W. 5 all near relatives of the deceased, noted above, it appears that it was the appellant and no other person who himself communicated first, the death news of his wife, from his quarters over phone on 09.05.2011 at about 9 A.M. Pursuant to that information we got 2nd phase of action of the de-facto complainant and others that they all arrived at Kolkata via Delhi and found the dead body on the next day in the alleged condition in the command hospital. The third phase of action was of lodging of written complain at Bishnupur Police Station, going to the morgue for post mortem followed by cremation and going back to the destinations respectively. 15. P.W.1 the de facto-complainant was a Retired Deputy Director, Animal Husbandry in Himachal Pradesh. In the relevant portion from Ext. The third phase of action was of lodging of written complain at Bishnupur Police Station, going to the morgue for post mortem followed by cremation and going back to the destinations respectively. 15. P.W.1 the de facto-complainant was a Retired Deputy Director, Animal Husbandry in Himachal Pradesh. In the relevant portion from Ext. 1 (written complain he stated thus:- On 09.05.11 in the morning I received an information of my daughter's death from Krishna Kant Dwivedi that the dead body of Manju was lying at Command Hospital Alipur. From the statement of the neighbours of Major Krishna Kant Quarter No. T-9 it is clear that Manju Dwivedi expired in the night. I was told that her tongue was protruded, there was blue Patches of Post Mortem staining on her different parts of the body and there was on-set of Rigor Mortis. There was no other Person in the quarter except Krishna Kant Dwivedi and death probably occurred on the night of 08/09, 05/11 after 23:00 hrs, when neighbours heard quarrel between Manju and Krishna kant, Manju was being tortured for many years by Krishna Kant on one pretext or the other as they had no issue. 16. On the face of such Ext. 1 we find that the alleged text of information of taking poison by Manju as her cause of death as was asserted by P.W.1 to P.W.5, which was said to have been communicated by the appellant over phone was completely absent in the text of the written complain. Further the relatives of the deceased on dock though claimed that on their arrival at the command hospital they (including P.W.1) found her tongue was protruded, nose was pinched, colour on her neck had changed, body was swollen but in the complainant it was asserted. "I was told that her tongue was protruded, there were blue Patches of Post Mortem staining on her different parts of the body and there was on-set of Rigor Mortis" meaning thereby, he heard it and did not see the same on his first visit of the dead body in the command hospital. If this part of assertion of Ext. 1 is believed that he lodged it upon gathering knowledge from someone (from whom not disclosed) then evidence in court about his alleged seeing of protrusion of tongue etc. are to be disbelieved as embellished one. If this part of assertion of Ext. 1 is believed that he lodged it upon gathering knowledge from someone (from whom not disclosed) then evidence in court about his alleged seeing of protrusion of tongue etc. are to be disbelieved as embellished one. The Learned Trial Court ignored to discuss on the above disparity between evidence of P.W.1 and the text of FIR. Law is set at rest that the FIR is the pivot of a cognizable criminal case to set the law on motion in determining the crime by investigation. Equally the text of the FIR can be used for the purpose of corroboration, omission and contradiction. In the case in hand, as claimed by prosecution that, the appellant over phone allegedly disclosed cause of death of Manju, as due to taking poison, was absolutely absent in the FIR. On the contrary, admitting the source of information of death news of Manju P.W. 1 claimed in the FIR, "death probably occurred on the night of 08/09.05.11 after 23:00 hrs, when neighbours heard quarrel between Manju and Krishna Kant". Who were those alleged neighbours were not disclosed, who had allegedly heard the quarrel preceding the death, not disclosed. Rather amongst the witnesses P.W. 8 and P.W. 9 were found as the residents of the same complex who were residing behind the quarters of the appellant. Either of them did not even whisper that they heard about any such quarrel between the appellant and the deceased soon before death took place or during the fateful night. Rather, in cross-examination P.W. 8 Mrs. Monika Bhowmick stated, "Mrs. Dwivedi was of a happy and of jovial nature." P.W. 2 sister of the deceased in her examination-in-chief stated:- "On 8th May, 2011 around 9:00 in the evening my sister made a telephone call to me from Raspunja where she was residing with her husband. She was residing with her husband and none else were residing with them. She was at that time in good mood and happy." Therefore the assertions of making quarrel soon before death, as alleged in the FIR were unfounded. 17. She was residing with her husband and none else were residing with them. She was at that time in good mood and happy." Therefore the assertions of making quarrel soon before death, as alleged in the FIR were unfounded. 17. Despite such ex-facie contradiction between the FIR and evidence showing tremendous tendency to move the merit of the prosecution case with embellished nature, where question of life and death is involved in case of deciding the charge of murder upon the given evidence, we are to re-examine the evidence on record very cautiously to assess the propriety of the decision of learned Trial Judge by giving grace mark for the present in favour of the FIR with such an unfounded text, since generally the FIR, though is the pivot of the prosecution case, it may be used for the purpose of corroboration, contradiction and omission. The FIR cannot be an encyclopedia of the prosecution case. When a case of cognizable nature is started on the basis of FIR then, had there been credence even on a solitary evidence and the Court if can earn full confidence upon such evidence of quality, it may be sufficient to answer the charge in the affirmative to deal with appropriate punishment. Since the appellant was set free on trial from the charges punishable under Section 498-A and Section 201 of the Indian Penal Code, and as no appeal was preferred either by the de facto complainant (who has engaged learned Senior Counsel to oppose in this appeal in private capacity) or, by the State, and as either of P.W.1, P.W.2, P.W.3, P.W.4 or P.W.5 was not with the deceased in their quarters on 8th or 9th May, 2011 their evidence, or any part thereof, as discussed above, would no more be useful for the purpose of extracting cause of death of Manju Dwivedi. 18. Amongst other witnesses P.W.6 Biju Ram, except occurrence of marriage between the deceased and appellant and fact of death of Manju on 9.5.2011, did not say anything. Gist of evidence of the maid servant P.W.7 was that before the date of death she had work in the quarters from 6 A.M. till 6 P.M. she had worked there for about two months. Gist of evidence of the maid servant P.W.7 was that before the date of death she had work in the quarters from 6 A.M. till 6 P.M. she had worked there for about two months. Though the appellant was a man of serious nature but P.W.7 saw that Manju Madam was jovial in nature and they were a happy couple and she did not see any dispute between them. But on that occasion after returning from her parents' house Manju Madam did not laugh and used to remain quiet. This witness was not declared hostile. So the evidence as adduced by her both in examination-in-chief and cross-examination did not suffer from contradiction. Rather as it had begun so it ended giving no indication about any hostile stepparent between the two though she worked since 6 A.M. till 6 P.M. in the quarters just on the preceding day. Hot talks, argument over any issue might be part of family life, and the same would be very normal and natural. Attention would be required when limit would be exceeding giving rise to untoward incidents of regular nature making the family life unbearable, which could give birth also criminal intention. Any evidence so far with above indication of hostility between those two is yet to be traversed. P.W.8 Manika Bhowmik neighbouring housewife stated in cross-examination, "Mrs. Dwivedi was of a happy and jovial nature. She used to participate in cultural programmes and mix freely with the officers' wives." 19. P.W.9 husband of P.W.8 and neighbour of the appellant, being military personnel knew the appellant since end of the year of 2009. Like evidence of P.W.7 and P.W.8 he did not give exposure of any incriminating evidence putting the family life or conjugal life of the appellant to any questionable or quarrelsome status which could lead Manju Dwivedi for abatement to suffer any unnatural death. We have taken note that investigation of the case was transferred to the C.I.D. But the orderly who used to supply morning tea at about 7:00 A.M. was not examined. Had he been examined the best possible evidence of the quarters on first visit could have come. From evidence it had come that Mr. Soodh the then DIG of Hariyana Police being closely related to P.W.1 and his family had arrived at Calcutta. Had he been examined the best possible evidence of the quarters on first visit could have come. From evidence it had come that Mr. Soodh the then DIG of Hariyana Police being closely related to P.W.1 and his family had arrived at Calcutta. It was P.W.9 who on behalf of the appellant had taken all care of not only of Mr. Soodh in all respect but of others as well by extending all kind of hospitality. Relevant part of evidence of P.W. 9 in cross-examination is set out hereunder:- On receiving of call from one Mr. Soodh, on request of Mr. Dwivedi who were to visit the Raspunja camp, Vehicle was also provided by me to them for their use. The vehicle was provided to the relatives of Manju Dwivedi since morning and they used it at their convenience. Outsiders are not permitted to reside in military cantonment and take food from military canteen unless permitted. I know Mr. Soodh by name and I can identify him. I know Manju's parents brothers, sister and Mesoji (Meso). On 10th May, 2011 I got a call from one of the boys that relatives of Manju wanted hard drinks. I gave permission to supply hard drinks to relatives of Manju. All facilities to the relatives of Manju were given on account of major Krishnakanta Dwivedi. In connection with post mortem, I arranged for a vehicle for relatives of Manju and other officers. Officers of Bishnupur P.S. searched quarters of major Krishnakanta in my presence for three hours. After search the quarters were put under lock and key and key was retained by the Investigating Officer. I was told by the boys that the relatives of Manju Dwivedi were trying to visit the place of post mortem and talk to the doctor. I reached Bishnupur P.S. with my senior officer Brigadier D. Sarao on 10.05.11. When I reached I found the relatives of Manju were taking soft drinks and Mr. Soodh dictating the FIR on a type writer. 20. P.W. 10 was the driver posted in military camp. He brought wife of the appellant from Dumdum Airport to their quarters at Rasapunja, while she did not talk to him during journey. P.W. 10 did not state its date or time. He did not state any incriminating sequence. Soodh dictating the FIR on a type writer. 20. P.W. 10 was the driver posted in military camp. He brought wife of the appellant from Dumdum Airport to their quarters at Rasapunja, while she did not talk to him during journey. P.W. 10 did not state its date or time. He did not state any incriminating sequence. Rather in cross-examination he stated, "Dwivedi came to Rasapunja camp and from where they went to Ganga Sagar by several vehicles. Manju Dwivedi used to go for marketing alone or with her husband in my driven vehicle. Manju Dwivedi is jovial by nature." 21. Thus, in the text of the FIR it was claimed "death probably occurred on the night of 08/09.05.2011 after 23:00 hours when neighbours heard quarrel between Manju and Krishna Kant and Manju was being tortured for many years by Krishna Kant....." These aspersions remained uncorroborated and unfounded from evidence of either of the above witnesses coupled with the photographs marked on admission during evidence which were snapped at different times, places and sequences. We indicated above that the relatives of deceased claimed that the appellant while communicating the death news over phone had allegedly told that Manju consumed poison and she was no more. Mobile of both end were not seized to verify the recorded statement therefrom to get it established beyond any controversy, as to what was the actual time of communication, or, to whom first it was made, or, what was its actual text or, the conversation in return? Be that as it may, in the FIR (Ext. 1) information bearing cause of death owing to taking of poison was completely absent therein. Since medical report did not indicate anything about consumption of poison by the deceased, the allegations of the related witnesses about such allegations on cause of death appears to be an embellished and unfounded aspersions upon the appellant. 22. During examination under Section 313 Cr.P.C., 1973 while the appellant was confronted to those statements of P.W.1, P.W.2, P.W.3 or P.W.4 over giving alleged information by the appellant over phone about consumption of poison by Manju resulting death, the appellant answered that he did not say about taking poison by her. He stated this much that she vomited at the night and was not responding and he was taking her to hospital. He stated this much that she vomited at the night and was not responding and he was taking her to hospital. Therefore, in view of uncorroborated and unfounded allegations of quarrel and torture against the appellant said to have taken place at night soon before the occurrence, taking advantage of death of the wife in the quarters of the appellant, where there was no third person, the omission to that effect in the FIR would now have a great role to play so far in disbelieving the oral testimony of the relatives of the deceased making the appellant responsible for the death of Manju by administering poison with an oblique mark. Some photographs showing marital events marked as MAT Ext. I series and eight naked photographs MAT Ext. II series, neither being part of the alamat or police report prepared under section 173 of Code of Criminal Procedure, 1973 learned Trial Judge was noticed to have taken very casual approach in allowing those photographs to be marked as alamats during examination-in-chief. Had it been confronted during cross-examination by the defence, on admission either of those could have been marked. But except the provision under Section 311 of the Code of Cr.P.C., that too at the given stage, law does not approve or sanction the way in which the photographs MAT Ext. I series or II series were allowed to be marked by learned Trial Judge since the photographs (Mat Ext.II series) were snapped by P.W.3 privately after post mortem examination and before cremation of the corpse. From the evidence of P.W.1 it transpired that after post mortem examination of his daughter he took the dead body for cremation and it was cremated at Kalighat on 11.05.2011. The I.O. did not take any photographs of the dead body. Those naked photographs were allowed to be marked as MAT Ext. II series (of the deceased) at the instance of prosecution though the same were not part of police report under section 173 of the Code of Criminal Procedure, 1973. How and when they were snapped would be evident from the cross-examination of P.W.1 in which reads as under:- "We reached Command Hospital at 12.30 P.M. We took photographs of dead body of Manju on 11.05.11 before cremation. After taking the body from the morgue after Post Mortem we took photos. My son Dr.Dinesh Bisht took the snaps. How and when they were snapped would be evident from the cross-examination of P.W.1 in which reads as under:- "We reached Command Hospital at 12.30 P.M. We took photographs of dead body of Manju on 11.05.11 before cremation. After taking the body from the morgue after Post Mortem we took photos. My son Dr.Dinesh Bisht took the snaps. I cannot say who suggest to Dinesh to take photographs from different angles." 23. Another surprising venue is unveiled before us, which could not be answered by the respondents, far to speak of satisfactorily despite of bringing the case diary of the unnatural death case registered at the nearest police station Alipore, and, the case diary dealt with by the I.O., with reference to the specific case started on receipt of complaint from P.W.1 as to what happened about holding inquest under section 174 or 176 of the Code of Criminal Procedure, 1973 before holding post mortem, at least when the relatives group were found on record very much vigilant to unearth the cause of death of their near and dear specially when they were armed with one High Police Officer. Mr. Soodh the then DIG of Hariyana Police by raising their suspicious finger towards the appellant since on that night except Manju Dwivedi and the appellant there was no other person in the quarters. Therefore, holding inquest over dead body is a relevant factor. If it would been done immediately at the first instance on receipt of information of an unnatural death, and all those findings relevant to the injuries, if any, through naked eye, would be then subject to verification by post-mortem report for determining cause of death to be followed by further medical opinion if necessary. That is why, all precautionary measures for shifting the body from the place of inquest to the morgue have been made to rule to abide by, so that, any possibility of distortion in the finding may be ruled out and a fair justice can be displayed. In the case on hand, except Ext. That is why, all precautionary measures for shifting the body from the place of inquest to the morgue have been made to rule to abide by, so that, any possibility of distortion in the finding may be ruled out and a fair justice can be displayed. In the case on hand, except Ext. 2/1 bearing signatures of P.W.1 and P.W.3 in the P.R.B. Form No. 53(Rule 276) relating to information about unnatural death of Manju Dwivedi and it's sending to morgue for Post Mortem Examination followed by Post Mortem Examination report there was no inquest, meaning thereby, relevant clauses (a), (b), (c), (d) of Rule 299, and, Rule 304 of Chapter VI of P.R.B. were violated. Those Rules are set out:- Rule 299 Inquiries into unnatural and suspicious deaths. First Information to be submitted. [12. Act. V, 1861.] - (a) Immediately after receipt of information of a death occurring in any of the circumstances mentioned in section 174, Code of Criminal Procedure, 1973 a First Information From shall be submitted in B.P. Form No. 48. The information shall be recorded in the same manner as a first information in the case of cognizable crime. (b) A Sub-Inspector, Assistant Sub-Inspector or head constable shall then proceed to the place where the body of the deceased person is, and after making the investigation prescribed in section 174, Code of Criminal Procedure, 1973 and making such further enquiry as may be necessary shall submit his final report to the nearest Magistrate empowered to hold inquests. The investigation report, signed by the police officer and two or more respectable persons, as required by Section 174 of that Code shall be attached to the final report. (c) Case diaries shall be submitted in enquiries into unnatural or suspicious deaths only if the enquiry lasts more than one day. But if the police officer making the enquiry finds reason to suspect the commission of a cognizable offence, the enquiry becomes one under section 157, Code of Criminal Procedure, 1973 and case diaries shall be submitted." Rule 304:-Corpses sent for postmortem examination. But if the police officer making the enquiry finds reason to suspect the commission of a cognizable offence, the enquiry becomes one under section 157, Code of Criminal Procedure, 1973 and case diaries shall be submitted." Rule 304:-Corpses sent for postmortem examination. (a) When corpse is sent in for post-mortem examination, it shall be accompanied by a copy of the surathal report and a challan in duplicate in B.P. Form No. 49 one copy of which shall be addressed to the court officer who shall forward it to the Superintendent and the other copy to the medical officer holding the post-mortem examination. All corpses shall be sent to the headquarters of the district, unless the medical officer at the subdivision has been authorised by the Provincial Government to conduct post-mortem examinations. Post-mortem examination shall, as usual, be done in cases of infectious diseases, e.g., tetanus, plague, smallpox, etc., whenever required by the police. (b) The challan shall contain the date and hour of the actual dispatch of the corpse, an accurate description of it, a statement of the apparent cause of death, the circumstances, if any, which give rise to any suspicion of foul play and an accurate list of clothes and articles sent in with the corpse. (c) When sending a corpse for postmortem examination, a sufficient quantity of powered charcoal shall be placed next to it and a sheet would round it, and in all cases whenever a charpoy can be obtained, the corpse shall be carried upon it and shall not be slung on a bamboo." There is a distinction between latches in investigation and violation of rule of law. Latches of the investigating officer sometimes are ignored, provided, prosecution case is found otherwise meritorious in the main having been able to obtain full credence on the substantive evidence on record, quantitatively how low so ever it may be. But in case of violation of rule of law the same can not be equated with the latches of the investigating agency. Because violation of rule of law by one, means accrual of right of protection due to such violation in favour of the other, and, such right, so accrued, can not be taken away in the name of latches. 24. Because violation of rule of law by one, means accrual of right of protection due to such violation in favour of the other, and, such right, so accrued, can not be taken away in the name of latches. 24. In absence of non-compliance of above provision we have no opportunity to ascertain as to what were pre-post mortem condition, or, for not following the above rules whether any damage to any part to the corpse was caused, and if so where and how far the damage would have taken place for not taking precautionary measures, and any kind of damage by lapse of time whether would have caused any prejudice to the appellant. Therefore, in absence of legal provision the photographs of the corpse, MAT Ext. II series snapped by P.W. 3 after postmortem and before cremation could have no legal bearing for any lawful consideration. Learned Trial Judge did not stretch his discussion about admissibility of those photographs under law while there was no inquest report on record either under Section 174 or section 176 of the Code of Criminal Procedure, 1973. 25. The appellant's quarters were in the military camp at Rasapunja under P.S. Bishnupur. In cross-examination P.W.1 was asked whether any amount of money was deducted or not from the appellant's account due to hard drinks, dinner taken by P.W.1 and his guests, to which P.W. 1 could not give specific answer. It is obvious and is also evident from evidence of P.W. 9 that outsiders are not allowed to reside in military cantonment and take food from military canteen unless permitted. There also being nobody in the quarters of the appellant due to the mishap no one was there to extend hospitality to them. That is why, under direction of the appellant, on his behalf, P.W. 9 was looking after the appellant's in-laws and their relatives and costs of food etc. were borne by the appellant. P.W.1 with others stayed at Rasapunja till 12.05.2011, which is evident from his own evidence. The relevant extract of the same is set out hereunder:- "Husband of Kala Sood was an I.P.S. officer. He was D.I.G. of Himachal Pradesh. On 10.05.11 I was accompanied to Kolkata by my son, my wife, my daughter, my son-in-law Major Vivek Gupta, Taralal Gupta, Roshanlal Sood, Ravi Sood, Mr. The relevant extract of the same is set out hereunder:- "Husband of Kala Sood was an I.P.S. officer. He was D.I.G. of Himachal Pradesh. On 10.05.11 I was accompanied to Kolkata by my son, my wife, my daughter, my son-in-law Major Vivek Gupta, Taralal Gupta, Roshanlal Sood, Ravi Sood, Mr. Ami Chand, my 2nd son-inlaw engineer Vinod Thakur and his family from Kathmandu, Rakesh Sood and his family from Singapur. We stayed at military camp; Rasapunja till the evening of 12.05.11. We had to take lunch, dinner etc. from military camp Rasapunja." 26. Relevant portion from evidence of P.W. 8 already has been set out at the bottom of paragraph 18. Therefore when all cordiality and hospitality were extended by the appellant on account of arrival of his in-laws and their relatives in one hand, and police case was lodged against the appellant at Bishnupur P.S, on the other hand, then it would be subject to investigation and trial. However, so far as public witnesses, both related and unrelated, nothing legal evidence could be unveiled to incriminate the appellant with unnatural cause of death which had allegedly taken place soon before the occurrence. 27. Observation of learned Trial Judge over alleged extra-marital relationship, said to have cropped up between the appellant and the wife of P.W.3, shows that:- "In reply to a suggestion put forward during cross-examination PW-1 has stated that he does not know whether the differences cropped up over Krisna's illicit relationship or not. That means the defence has not ruled out such unapproved relationship. Again, we should not lose sight of the fact that the parents in law in respectable family would always try to conceal the unethical act of the daughter in-law for family prestige. It is also found from the cross-examination of PW-20 that since after Maju's death Salini has been living with her parents. Such separate living of Salini tends to make the story as to illicit relationship believable." P.W.3 had informed during cross-examination by denying suggestions that he had any complexity with his wife Dr. Shalini, or, the appellant and Manju had ever any occasion to settle any such complexity, or, he obtained decree of divorce, or, there were no longer husband and wife. However, P.W.3 further told in cross-examination that "after death of Manju doctor Shalini has been staying with her parents at Simla. Shalini, or, the appellant and Manju had ever any occasion to settle any such complexity, or, he obtained decree of divorce, or, there were no longer husband and wife. However, P.W.3 further told in cross-examination that "after death of Manju doctor Shalini has been staying with her parents at Simla. I know that doctor Shalini sent her statement on affidavit before the investigating officer. I can not say the details of the statement made by her on affidavit." However on scrutiny of the entire evidence of two investigating officers (P.W.19 and P.W.20) we find no reflection about receipt of alleged affidavit of Shalini. Even if said version of P.W.3 was correct it might have some value in the perspective of saving of family dignity and prestige. But the same could not get any legal sanction for its use on either-side without being examined or tested on dock, specially when till that stage there was no separation of marriage between P.W.3 and Shalini, meaning thereby, their marital relationship still was subsisting. Even though it was assumed, without admitting that there was extra marital relationship between the appellant and Shalini for which the appellant had allegedly requested P.w.3 for preparing papers of divorce, the same could have been some ground for attracting an offence like 306 of the Indian Penal Code, provided again that the death of Manju Dwivedi would have been proved as suicidal as a result of abatement for commissioning suicide. In the case on hand, charge was framed alleging the appellant responsible for homicidal death of Manju Dwivedi and prosecution had led the evidence only with a view to prove homicidal death. 28. Since on that fateful night there was nobody except the appellant and his wife in their quarters learned Trial Judge ended into conviction observing the following points against the appellant, which are set out:- According to learned Trial Judge it was proved, (a) the strenuous relationship in between the spouses, (b) wife's suspicion as to her husband's fidelity for Salini; (c) Salini's matrimonial dispute of serious nature leading to separation, (d) a crushing conflict between the husband's desire for divorce and wife's clinching desire for keeping the marriage in tact, (e) a quarrel between the spouses preceding the death and, (f) asphyxial death of the wife caused by pressing the neck with some soft and flexible object. Amongst the above points of observations, the same under (a), (b) and (d) could have been good grounds to attract the offence under Section 306 of the Indian Penal Code, provided, suicidal death would have been claimed and proved. The observation of learned Trial Judge under Clause (c) was perverse since it was dehors the evidence as discussed above. Further, on the observation under Clause (c) there was no proof as already discussed. Lastly we are still traversing for the evidence on Clause (f) i.e., asphyxial death, though specific cause of death was alleged by smothering. 29. Now we want to enter into the arena of medical evidence to conclude as to whether the finding of learned Trial Judge mounting to homicidal death of the deceased could be accepted to lend support to the conviction of the appellant under Section 302 of the I.P.C. All the photographs of the couple and their relatives including in-laws marked as Ext. A, B, C, D, E, F, G, I, J, L, M, N, series on behalf of the appellant were the signs of passing jovial and natural conjugal life without any unhappiness between the couple. JUDGMENT : MIR DARA SHEKO, J. 1. This criminal appeal is preferred on the grounds set out in the memorandum of appeal by the convict/appellant on bail assailing the judgment of conviction dated 12.06.2015 passed by learned Additional Sessions Judge, 1st Court, Alipore in District 24-parganas (South) in Sessions Case No. 27(12) 2011 (Sessions Trial No.-02(04) 2014) by which the appellant was sentenced on 15.06.2015 to suffer Life imprisonment with fine for the charge under Section 302 of the Indian Penal Code only, since the appellant was acquitted from two other charges punishable under Sections 498-A and 201 of the Indian Penal Code. 2. 2. Instead of repeating the given fact, the charges bearing the extract of the fact, as were framed on 13.02.2012 against the appellant, are set out:- "Firstly, That you after 23.00 hours on 08.05.2011 and any time before 08.00 hours on 09.05.2011 with an intention to commit murder of Smt. Manju Dwivedi, aged about 34 years, your wife, who was residing with you in your Quarters No. T-9, Light Regiment, Rashapujna, P.S. Bishnupur, District-South 24 Parganas intentionally caused pressure over her neck by broad, soft, flexible object leading to her violent death and Smt. Manju Dwivedi on being removed in such condition to Command Hospital (E.C), Alipore, Kolkata-700027on 09.05.2011 at about 10.30 A.M. was declared found dead, and thereby you committed murder by intentionally causing death of your wife Manju Dwivedi and thereby committed an offence punishable under section 302 of Indian Penal Code and within the cognizance of this Court. Secondly, That since sometime after your marriage on 9th day of December, 1998 and while you were residing at T-9, 1831 Light Regiment, Rashapunja, P.S. Bishnupur, District-South 24 Parganas being the husband of Smt. Manju Dwivedi subjected your wife to cruelty both mental and physical as she had no issue and also on one pretext or another and that you thereby committed an offence punishable under section 498A of the Indian Penal Code and within the cognizance of this Court. Thirdly, That you on or about 08.05.2011 after 23.00 hours or/and any time on 09.05.2011 before 8.00 hours at Quarters No. T-9, Light Regiment, Rashapujna, P.S. Bishnupur, District-South 24 Parganas knowing that an offence of murder of your wife Smt. Manju Dwivedi, D/o. Dr. Laxmi Nand Negi, punishable under section 302 IPC with death or imprisonment for life having been committed by you, did cause certain evidence of the said offence to disappear to wit any broad, soft, flexible object by which you pressed her neck and caused her death, with the intention of screening yourself from legal punishment and you thereby committed an offence punishable under Section 201 of the Indian Penal Code and within cognizance of this Court." 3. Since either the State, or, the defacto complainant did not prefer appeal against the order of acquittal in respect of the above-mentioned 2nd and 3rd charges, discussion over any allegation attracting those charges under Sections 498A or 201 I.P.C shall remain out of purview of this appeal. Since either the State, or, the defacto complainant did not prefer appeal against the order of acquittal in respect of the above-mentioned 2nd and 3rd charges, discussion over any allegation attracting those charges under Sections 498A or 201 I.P.C shall remain out of purview of this appeal. Therefore, as indicated in the charge so framed, it would remain for consideration, whether the death of wife of the appellant, as taken place between 23-00 hours of 08.05.2011 and before 08-00 hours on 09.05.2011 within the quarters of the appellant situated at Rasapunja under police station Bishnupur District South 24 Parganas, was homicidal as a resultant effect of putting "pressure over her neck by any broad, soft, flexible object." 4. Mr. Pratik Bhattacharya learned Counsel for the appellant criticising the impugned judgment of conviction as illegal and perverse, argued that learned Trial Judge only by way of academic discussion and without considering absence of legal substantive evidence wrongly concluded for conviction in this case. He submitted, a pathological death was wrongly converted into a homicidal death for which the appellant being an Army Officer in the rank of Major was booked to suffer life imprisonment. Mr. Bhattacharya however, submitted that during course of admission of appeal by this Court, his client though was given relief under Section 389 of the code to remain on bail by keeping the order of sentence in abeyance, but future of his service career was damaged since he became victim of the circumstances arose owing to such wrong decision taken in the case. It is argued, that mere presence of the husband in the quarters would not give conclusion that he is responsible for death of his wife even if her death takes place pathologically. Mr. Bhattacharya, further argued that at the earliest opportunity the appellant over phone communicated to his in-laws on 9.5.2011 at about 9 a.m. that his wife Manju was not responding, which was camouflaged by his in-laws that the appellant as if informed that the victim died by consuming poison and she was being taken to hospital. Mr. Bhattacharya, further argued that at the earliest opportunity the appellant over phone communicated to his in-laws on 9.5.2011 at about 9 a.m. that his wife Manju was not responding, which was camouflaged by his in-laws that the appellant as if informed that the victim died by consuming poison and she was being taken to hospital. It is stated that had there been the incident of murder allegedly by smothering by means of putting pressure over or around the neck of the deceased with any broad, soft and flexible object like pillow, cushion etc., then signs of some minimum injuries of violence could have been expected to appear around the face, neck and other parts of the stout and healthy body of the deceased. But the prosecution did not get any conclusive support from the medical evidence, though the father of the deceased and his near relatives, including the then D.I.G of police of Himachal Pradesh were persuading through Ministry of the respective state to book the appellant to jail by cancelling his anticipatory bail, in transferring investigation of the case from the West Bengal police to CID and medical board was constituted to give expert's opinion about the cause and nature of death. He also submitted that inquest report was absent in the case without explanation, although postmortem was held. Therefore, the autopsy Surgeon had no opportunity to verify as to whether in naked eye any bodily injury was detected or not at the first instance soon after death. According to Mr. Bhattacharya, chapter- VI of the PRB was absolutely ignored, for which even any presumption would not be available that all the formalities were performed correctly. He then argues that by providing some naked photographs of the deceased, said to have been snapped privately by her brother after postmortem examination, during trial, prosecution tried to bring those photographs into evidence by marking those photographs as MAT Ext.II series, though the same were not part of police report within the meaning of section 173 of the Code of Criminal Procedure, 1973 and therefore those were inadmissible in evidence. It is stated that though from evidence of P.W.2 it was evident that in the preceding evening the deceased was in very jovial mood, and though the evidence of P.W.7 to P.W.10 did not support the prosecution case about any incident of quarrel, learned Trial Judge did not consider those evidence which could have answered to negate the charge of murder for want of motive. Mr. Bhattacharya submits that if the evidence of P.W.11 is considered as he was examined by prosecution as their own witness and he was not declared as hostile witness, then the evidence of P.W.11 as a whole would favour the innocence of the appellant and not the case of the prosecution. Since wife of P.W.3, with whom alleged illicit connection of the appellant was said to have been cropped up, and the orderly peon, who had the best possible chance to see the appellant and his wife in the morning of that day during serving morning tea, having not been examined in the case, and thereby their evidence having been withheld, and there being no proof of homicidal death since medical evidence was not even united to support the case of prosecution, rather, opinion was given on guess and probability. It is argued by Mr. Bhattacharya submitted to set aside the judgment of conviction and to allow the appeal at least by dint of benefit of doubt, if not on merit itself. Mr. Bhattacharya relied on the following cases:- (i) Subramaniam v. State of Tamil Nadu reported in (2009)2 Calcutta Crl. Law Reporter (SC) 48 (paragraph 14). (ii) State of Himachal Pradesh v. Keshav Ram & Ors. reported in AIR 1997 Supreme Court 2193 (paragraph 37) 5. Per contra Mr. Sanyal learned Senior Counsel appointed by the defacto complainant in private capacity with permission of the Bench submitted to dismiss the appeal upholding the conviction as directed by learned Trial Court for the offence under Section 302 I.P.C. His contention is that the couple was issue-less so the deceased was unhappy. Conjugal relationship became strained due to cropping up intimacy of the appellant with Shalini, wife of P.W.3. The appellant approached P.W.3 to prepare divorce papers which was the motive in the case. Mr. Sanyal heavily relied on Ext. Conjugal relationship became strained due to cropping up intimacy of the appellant with Shalini, wife of P.W.3. The appellant approached P.W.3 to prepare divorce papers which was the motive in the case. Mr. Sanyal heavily relied on Ext. Q, a copy of alleged message said to have been sent by the appellant through mobile to P.W.3 on 14.04.2011 asking P.W.3 to pick up Manju from Delhi Railway Station and requested to send divorce papers to sign. Further submitted, protrusion of tongue was there which could have been possible due to smothering, and injuries having been found in the hand and leg, which ought to be an outcome of putting resistance by her, presumption under section 106 of the Indian Evidence Act would be available in the case, since except husband and wife there was No. 3rd person in the quarters. It is stated that thereby, the appellant except denial, failed to explain the circumstances, as were confronted to him with reference to the evidence on record, since it would also go against the appellant. Mr. Sanyal thus discussing the evidence on record and appreciating the judgment in-question as just and proper submitted to dismiss the appeal relying on the following cases:- (i) Gajanan Dashrath Kharate v. State of Maharashtra reported in AIR 2016 Supreme Court 1255 (para 12). (ii) Swamy Shraddananda v. State of Karnataka reported in (2008)2 Supreme Court Cases (Cri) 322 (para 12). 6. Learned Counsel for the State Mrs. De, pursuant to direction of this bench though produced the respective case diary of the P.S. Case and of the U.D. Case, failed to explain therefrom as to why inquest over the corpse was not held though unnatural death case was registered at Alipore police station on the basis of medical report received from command hospital. However, ensuring the legal proposition Mrs. De fairly submits that though prosecution since could not rely on any evidence, be it oral or documentary, if the same would not be part of police report within the ambit of Section 173, or, was not made part of record through recourse under section 311 of the Code of Criminal procedure, 1973 however Mrs. De, discussing the evidence on record submitted that the same would be sufficient to uphold the order of conviction, and she thus adopted the arguments of Mr. Sanyal praying to dismiss the appeal. 7. De, discussing the evidence on record submitted that the same would be sufficient to uphold the order of conviction, and she thus adopted the arguments of Mr. Sanyal praying to dismiss the appeal. 7. From the formal FIR (Ext.9) and written complaint (Ext.1) coupled with the evidence of P.W. 1, father of deceased Mr. L.N. Negi we find that on his arrival at Kolkata airport by Air from Simla via Delhi on 10.05.2011 at about 11 A.M. he (P.W.1) handed over the complaint at Bishnupur police station within District 24-parganss on 10.05.2011 at 2.05 P.M. 8. Source and text of information about death news of Manju was allegedly received from the appellant first by P.W.3 over phone. The statement of P.W.3 Dinesh on oath is as under:- "At 9:00 A.M. on 9th May, 2011, I received a phone call from Krishna Kant Dwivedi saying that your sister Manju was no more because she has consumed poison. I was shocked and had a suspicion that he must have killed here because the quarrel which was going on and also the way he spoke to me. Then I with my parents and other relatives came to Kolkata at about 10/11:00 A.M. on 10th May, 2011 and saw the dead body of my younger sister Manju at Command Hospital. I saw that her tongue was protruded, nose pinched, colour change on her neck, body was swollen and stiff. I being a Doctor my suspicion was confirmed that Krishna Kant Dwivedi must have killed my younger sister Manju by causing asphyxia. Then We along with my father and others went to Bishnupur P.S. and my father lodged FIR against Krishna Kant on 10th May, 2011." 9. P.W.1, father of P.W.3 and the deceased corroborated the same. Relevant extract of the statement is set out hereunder:- "On 9th May, 2011 at about 9.00 a.m. in the morning Krishna Kant made a telephone call to my son at Delhi saying that Manju had consumed poison and she was no more. My son was shocked hearing the news. Krishna Kant then made a telephone call to his mother-in-law at about 10:00 A.M. at Simla saying that Manju had consumed poisoned and died. I, my wife, my son, my brother in law and family relatives in all 8 persons went to Delhi. My son was shocked hearing the news. Krishna Kant then made a telephone call to his mother-in-law at about 10:00 A.M. at Simla saying that Manju had consumed poisoned and died. I, my wife, my son, my brother in law and family relatives in all 8 persons went to Delhi. We 8 persons came to Kolkata by Air from Delhi and reached Kolkata at 11.00 A.M. on 10th May, 2011. From Airport all of us went to Command Hospital at Alipore. We saw the dead body of Manju. I saw that her tongue was protruded, eyes closed, symptoms on neck, stiffness of body. Rigor Mortis had set in. Then we went to Bishnupur P.S. I lodged a written complaint at the P.S. at 02:00 P.M. on 10.05.2011. I believe that Manju was murdered by pressing on her neck, blocking the air ways which according to me caused protrusion of her tongue." 10. P.W.2, being sister of the deceased corroborated source of her information in the same manner with almost similar text which is set out below:- "Next day at 9:00 A.M. in the morning Krishna Kant Dwivedi made a call to me saying that my sister had committed suicide by taking poison. I was shocked as the news was unbelievable. I conveyed the news to my parents and my husband. On 10th May, 2011 I reached Kolkata with my husband and children. On reaching Kolkata, we went to Command Hospital, saw the dead body of my sister kept in a mortuary, her nose was pressed and tongue was slightly protruded and there were marks on her neck. Her body was stiff and face swollen. I found the Doctors discussing that she was murdered by smothering." 11. P.W.4 being the mother of the deceased disclosed her source of information about death of her daughter in the same manner, which is also extracted below:- "On 9th May, 2011 Krishna Kant made a phone call to me saying that Manju expired taking poison. Krishna Kant is present in Court today (identifies accused). On the next date I with my husband, son, my sister, my sister's husband, in all 7/8 persons reached Kolkata. We went to Command Hospital on reaching Kolkata. I saw the dead body of my daughter. Her face was swollen, nose was pinched, there were marks on neck and body was stiff. On the next date I with my husband, son, my sister, my sister's husband, in all 7/8 persons reached Kolkata. We went to Command Hospital on reaching Kolkata. I saw the dead body of my daughter. Her face was swollen, nose was pinched, there were marks on neck and body was stiff. My husband and my son went to Bishnupur P.S." 12. P.W.5 was a Head constable of Hariyana Police. He and P.W.4 were full blooded brother and sister. P.W.5 being cousin to the deceased told that he heard from his father over telephone on 9th May, 2011 that Manju was no more, since she had consumed poison. He suspected that the appellant committed murder of Manju. 13. Admittedly, marriage between the appellant and Manju, since deceased, was held on 9th December, 1998 and they were issue-less. P.W.2 stated the cause behind was that the appellant was impotent. This statement however was recorded after noting objection, may be for the reason that the assertion was foreign to the record. However, her statements in cross-examination relevant to the above shows:- Manju had desire to have child. I have made statements before police around Sept' 2011. I did not make any statement to police on date of my arrival at Kolkata. I cannot say whether Manju conceived or not. She had blighted ovum. In blighted ovum doctor does not declare pregnancy. This blighted ovum was after 9/10 years of marriage of Manju. 14. However, from assertions of P.W.1 to P.W. 5 all near relatives of the deceased, noted above, it appears that it was the appellant and no other person who himself communicated first, the death news of his wife, from his quarters over phone on 09.05.2011 at about 9 A.M. Pursuant to that information we got 2nd phase of action of the de-facto complainant and others that they all arrived at Kolkata via Delhi and found the dead body on the next day in the alleged condition in the command hospital. The third phase of action was of lodging of written complain at Bishnupur Police Station, going to the morgue for post mortem followed by cremation and going back to the destinations respectively. 15. P.W.1 the de facto-complainant was a Retired Deputy Director, Animal Husbandry in Himachal Pradesh. In the relevant portion from Ext. The third phase of action was of lodging of written complain at Bishnupur Police Station, going to the morgue for post mortem followed by cremation and going back to the destinations respectively. 15. P.W.1 the de facto-complainant was a Retired Deputy Director, Animal Husbandry in Himachal Pradesh. In the relevant portion from Ext. 1 (written complain he stated thus:- On 09.05.11 in the morning I received an information of my daughter's death from Krishna Kant Dwivedi that the dead body of Manju was lying at Command Hospital Alipur. From the statement of the neighbours of Major Krishna Kant Quarter No. T-9 it is clear that Manju Dwivedi expired in the night. I was told that her tongue was protruded, there was blue Patches of Post Mortem staining on her different parts of the body and there was on-set of Rigor Mortis. There was no other Person in the quarter except Krishna Kant Dwivedi and death probably occurred on the night of 08/09, 05/11 after 23:00 hrs, when neighbours heard quarrel between Manju and Krishna kant, Manju was being tortured for many years by Krishna Kant on one pretext or the other as they had no issue. 16. On the face of such Ext. 1 we find that the alleged text of information of taking poison by Manju as her cause of death as was asserted by P.W.1 to P.W.5, which was said to have been communicated by the appellant over phone was completely absent in the text of the written complain. Further the relatives of the deceased on dock though claimed that on their arrival at the command hospital they (including P.W.1) found her tongue was protruded, nose was pinched, colour on her neck had changed, body was swollen but in the complainant it was asserted. "I was told that her tongue was protruded, there were blue Patches of Post Mortem staining on her different parts of the body and there was on-set of Rigor Mortis" meaning thereby, he heard it and did not see the same on his first visit of the dead body in the command hospital. If this part of assertion of Ext. 1 is believed that he lodged it upon gathering knowledge from someone (from whom not disclosed) then evidence in court about his alleged seeing of protrusion of tongue etc. are to be disbelieved as embellished one. If this part of assertion of Ext. 1 is believed that he lodged it upon gathering knowledge from someone (from whom not disclosed) then evidence in court about his alleged seeing of protrusion of tongue etc. are to be disbelieved as embellished one. The Learned Trial Court ignored to discuss on the above disparity between evidence of P.W.1 and the text of FIR. Law is set at rest that the FIR is the pivot of a cognizable criminal case to set the law on motion in determining the crime by investigation. Equally the text of the FIR can be used for the purpose of corroboration, omission and contradiction. In the case in hand, as claimed by prosecution that, the appellant over phone allegedly disclosed cause of death of Manju, as due to taking poison, was absolutely absent in the FIR. On the contrary, admitting the source of information of death news of Manju P.W. 1 claimed in the FIR, "death probably occurred on the night of 08/09.05.11 after 23:00 hrs, when neighbours heard quarrel between Manju and Krishna Kant". Who were those alleged neighbours were not disclosed, who had allegedly heard the quarrel preceding the death, not disclosed. Rather amongst the witnesses P.W. 8 and P.W. 9 were found as the residents of the same complex who were residing behind the quarters of the appellant. Either of them did not even whisper that they heard about any such quarrel between the appellant and the deceased soon before death took place or during the fateful night. Rather, in cross-examination P.W. 8 Mrs. Monika Bhowmick stated, "Mrs. Dwivedi was of a happy and of jovial nature." P.W. 2 sister of the deceased in her examination-in-chief stated:- "On 8th May, 2011 around 9:00 in the evening my sister made a telephone call to me from Raspunja where she was residing with her husband. She was residing with her husband and none else were residing with them. She was at that time in good mood and happy." Therefore the assertions of making quarrel soon before death, as alleged in the FIR were unfounded. 17. She was residing with her husband and none else were residing with them. She was at that time in good mood and happy." Therefore the assertions of making quarrel soon before death, as alleged in the FIR were unfounded. 17. Despite such ex-facie contradiction between the FIR and evidence showing tremendous tendency to move the merit of the prosecution case with embellished nature, where question of life and death is involved in case of deciding the charge of murder upon the given evidence, we are to re-examine the evidence on record very cautiously to assess the propriety of the decision of learned Trial Judge by giving grace mark for the present in favour of the FIR with such an unfounded text, since generally the FIR, though is the pivot of the prosecution case, it may be used for the purpose of corroboration, contradiction and omission. The FIR cannot be an encyclopedia of the prosecution case. When a case of cognizable nature is started on the basis of FIR then, had there been credence even on a solitary evidence and the Court if can earn full confidence upon such evidence of quality, it may be sufficient to answer the charge in the affirmative to deal with appropriate punishment. Since the appellant was set free on trial from the charges punishable under Section 498-A and Section 201 of the Indian Penal Code, and as no appeal was preferred either by the de facto complainant (who has engaged learned Senior Counsel to oppose in this appeal in private capacity) or, by the State, and as either of P.W.1, P.W.2, P.W.3, P.W.4 or P.W.5 was not with the deceased in their quarters on 8th or 9th May, 2011 their evidence, or any part thereof, as discussed above, would no more be useful for the purpose of extracting cause of death of Manju Dwivedi. 18. Amongst other witnesses P.W.6 Biju Ram, except occurrence of marriage between the deceased and appellant and fact of death of Manju on 9.5.2011, did not say anything. Gist of evidence of the maid servant P.W.7 was that before the date of death she had work in the quarters from 6 A.M. till 6 P.M. she had worked there for about two months. Gist of evidence of the maid servant P.W.7 was that before the date of death she had work in the quarters from 6 A.M. till 6 P.M. she had worked there for about two months. Though the appellant was a man of serious nature but P.W.7 saw that Manju Madam was jovial in nature and they were a happy couple and she did not see any dispute between them. But on that occasion after returning from her parents' house Manju Madam did not laugh and used to remain quiet. This witness was not declared hostile. So the evidence as adduced by her both in examination-in-chief and cross-examination did not suffer from contradiction. Rather as it had begun so it ended giving no indication about any hostile stepparent between the two though she worked since 6 A.M. till 6 P.M. in the quarters just on the preceding day. Hot talks, argument over any issue might be part of family life, and the same would be very normal and natural. Attention would be required when limit would be exceeding giving rise to untoward incidents of regular nature making the family life unbearable, which could give birth also criminal intention. Any evidence so far with above indication of hostility between those two is yet to be traversed. P.W.8 Manika Bhowmik neighbouring housewife stated in cross-examination, "Mrs. Dwivedi was of a happy and jovial nature. She used to participate in cultural programmes and mix freely with the officers' wives." 19. P.W.9 husband of P.W.8 and neighbour of the appellant, being military personnel knew the appellant since end of the year of 2009. Like evidence of P.W.7 and P.W.8 he did not give exposure of any incriminating evidence putting the family life or conjugal life of the appellant to any questionable or quarrelsome status which could lead Manju Dwivedi for abatement to suffer any unnatural death. We have taken note that investigation of the case was transferred to the C.I.D. But the orderly who used to supply morning tea at about 7:00 A.M. was not examined. Had he been examined the best possible evidence of the quarters on first visit could have come. From evidence it had come that Mr. Soodh the then DIG of Hariyana Police being closely related to P.W.1 and his family had arrived at Calcutta. Had he been examined the best possible evidence of the quarters on first visit could have come. From evidence it had come that Mr. Soodh the then DIG of Hariyana Police being closely related to P.W.1 and his family had arrived at Calcutta. It was P.W.9 who on behalf of the appellant had taken all care of not only of Mr. Soodh in all respect but of others as well by extending all kind of hospitality. Relevant part of evidence of P.W. 9 in cross-examination is set out hereunder:- On receiving of call from one Mr. Soodh, on request of Mr. Dwivedi who were to visit the Raspunja camp, Vehicle was also provided by me to them for their use. The vehicle was provided to the relatives of Manju Dwivedi since morning and they used it at their convenience. Outsiders are not permitted to reside in military cantonment and take food from military canteen unless permitted. I know Mr. Soodh by name and I can identify him. I know Manju's parents brothers, sister and Mesoji (Meso). On 10th May, 2011 I got a call from one of the boys that relatives of Manju wanted hard drinks. I gave permission to supply hard drinks to relatives of Manju. All facilities to the relatives of Manju were given on account of major Krishnakanta Dwivedi. In connection with post mortem, I arranged for a vehicle for relatives of Manju and other officers. Officers of Bishnupur P.S. searched quarters of major Krishnakanta in my presence for three hours. After search the quarters were put under lock and key and key was retained by the Investigating Officer. I was told by the boys that the relatives of Manju Dwivedi were trying to visit the place of post mortem and talk to the doctor. I reached Bishnupur P.S. with my senior officer Brigadier D. Sarao on 10.05.11. When I reached I found the relatives of Manju were taking soft drinks and Mr. Soodh dictating the FIR on a type writer. 20. P.W. 10 was the driver posted in military camp. He brought wife of the appellant from Dumdum Airport to their quarters at Rasapunja, while she did not talk to him during journey. P.W. 10 did not state its date or time. He did not state any incriminating sequence. Soodh dictating the FIR on a type writer. 20. P.W. 10 was the driver posted in military camp. He brought wife of the appellant from Dumdum Airport to their quarters at Rasapunja, while she did not talk to him during journey. P.W. 10 did not state its date or time. He did not state any incriminating sequence. Rather in cross-examination he stated, "Dwivedi came to Rasapunja camp and from where they went to Ganga Sagar by several vehicles. Manju Dwivedi used to go for marketing alone or with her husband in my driven vehicle. Manju Dwivedi is jovial by nature." 21. Thus, in the text of the FIR it was claimed "death probably occurred on the night of 08/09.05.2011 after 23:00 hours when neighbours heard quarrel between Manju and Krishna Kant and Manju was being tortured for many years by Krishna Kant....." These aspersions remained uncorroborated and unfounded from evidence of either of the above witnesses coupled with the photographs marked on admission during evidence which were snapped at different times, places and sequences. We indicated above that the relatives of deceased claimed that the appellant while communicating the death news over phone had allegedly told that Manju consumed poison and she was no more. Mobile of both end were not seized to verify the recorded statement therefrom to get it established beyond any controversy, as to what was the actual time of communication, or, to whom first it was made, or, what was its actual text or, the conversation in return? Be that as it may, in the FIR (Ext. 1) information bearing cause of death owing to taking of poison was completely absent therein. Since medical report did not indicate anything about consumption of poison by the deceased, the allegations of the related witnesses about such allegations on cause of death appears to be an embellished and unfounded aspersions upon the appellant. 22. During examination under Section 313 Cr.P.C., 1973 while the appellant was confronted to those statements of P.W.1, P.W.2, P.W.3 or P.W.4 over giving alleged information by the appellant over phone about consumption of poison by Manju resulting death, the appellant answered that he did not say about taking poison by her. He stated this much that she vomited at the night and was not responding and he was taking her to hospital. He stated this much that she vomited at the night and was not responding and he was taking her to hospital. Therefore, in view of uncorroborated and unfounded allegations of quarrel and torture against the appellant said to have taken place at night soon before the occurrence, taking advantage of death of the wife in the quarters of the appellant, where there was no third person, the omission to that effect in the FIR would now have a great role to play so far in disbelieving the oral testimony of the relatives of the deceased making the appellant responsible for the death of Manju by administering poison with an oblique mark. Some photographs showing marital events marked as MAT Ext. I series and eight naked photographs MAT Ext. II series, neither being part of the alamat or police report prepared under section 173 of Code of Criminal Procedure, 1973 learned Trial Judge was noticed to have taken very casual approach in allowing those photographs to be marked as alamats during examination-in-chief. Had it been confronted during cross-examination by the defence, on admission either of those could have been marked. But except the provision under Section 311 of the Code of Cr.P.C., that too at the given stage, law does not approve or sanction the way in which the photographs MAT Ext. I series or II series were allowed to be marked by learned Trial Judge since the photographs (Mat Ext.II series) were snapped by P.W.3 privately after post mortem examination and before cremation of the corpse. From the evidence of P.W.1 it transpired that after post mortem examination of his daughter he took the dead body for cremation and it was cremated at Kalighat on 11.05.2011. The I.O. did not take any photographs of the dead body. Those naked photographs were allowed to be marked as MAT Ext. II series (of the deceased) at the instance of prosecution though the same were not part of police report under section 173 of the Code of Criminal Procedure, 1973. How and when they were snapped would be evident from the cross-examination of P.W.1 in which reads as under:- "We reached Command Hospital at 12.30 P.M. We took photographs of dead body of Manju on 11.05.11 before cremation. After taking the body from the morgue after Post Mortem we took photos. My son Dr.Dinesh Bisht took the snaps. How and when they were snapped would be evident from the cross-examination of P.W.1 in which reads as under:- "We reached Command Hospital at 12.30 P.M. We took photographs of dead body of Manju on 11.05.11 before cremation. After taking the body from the morgue after Post Mortem we took photos. My son Dr.Dinesh Bisht took the snaps. I cannot say who suggest to Dinesh to take photographs from different angles." 23. Another surprising venue is unveiled before us, which could not be answered by the respondents, far to speak of satisfactorily despite of bringing the case diary of the unnatural death case registered at the nearest police station Alipore, and, the case diary dealt with by the I.O., with reference to the specific case started on receipt of complaint from P.W.1 as to what happened about holding inquest under section 174 or 176 of the Code of Criminal Procedure, 1973 before holding post mortem, at least when the relatives group were found on record very much vigilant to unearth the cause of death of their near and dear specially when they were armed with one High Police Officer. Mr. Soodh the then DIG of Hariyana Police by raising their suspicious finger towards the appellant since on that night except Manju Dwivedi and the appellant there was no other person in the quarters. Therefore, holding inquest over dead body is a relevant factor. If it would been done immediately at the first instance on receipt of information of an unnatural death, and all those findings relevant to the injuries, if any, through naked eye, would be then subject to verification by post-mortem report for determining cause of death to be followed by further medical opinion if necessary. That is why, all precautionary measures for shifting the body from the place of inquest to the morgue have been made to rule to abide by, so that, any possibility of distortion in the finding may be ruled out and a fair justice can be displayed. In the case on hand, except Ext. That is why, all precautionary measures for shifting the body from the place of inquest to the morgue have been made to rule to abide by, so that, any possibility of distortion in the finding may be ruled out and a fair justice can be displayed. In the case on hand, except Ext. 2/1 bearing signatures of P.W.1 and P.W.3 in the P.R.B. Form No. 53(Rule 276) relating to information about unnatural death of Manju Dwivedi and it's sending to morgue for Post Mortem Examination followed by Post Mortem Examination report there was no inquest, meaning thereby, relevant clauses (a), (b), (c), (d) of Rule 299, and, Rule 304 of Chapter VI of P.R.B. were violated. Those Rules are set out:- Rule 299 Inquiries into unnatural and suspicious deaths. First Information to be submitted. [12. Act. V, 1861.] - (a) Immediately after receipt of information of a death occurring in any of the circumstances mentioned in section 174, Code of Criminal Procedure, 1973 a First Information From shall be submitted in B.P. Form No. 48. The information shall be recorded in the same manner as a first information in the case of cognizable crime. (b) A Sub-Inspector, Assistant Sub-Inspector or head constable shall then proceed to the place where the body of the deceased person is, and after making the investigation prescribed in section 174, Code of Criminal Procedure, 1973 and making such further enquiry as may be necessary shall submit his final report to the nearest Magistrate empowered to hold inquests. The investigation report, signed by the police officer and two or more respectable persons, as required by Section 174 of that Code shall be attached to the final report. (c) Case diaries shall be submitted in enquiries into unnatural or suspicious deaths only if the enquiry lasts more than one day. But if the police officer making the enquiry finds reason to suspect the commission of a cognizable offence, the enquiry becomes one under section 157, Code of Criminal Procedure, 1973 and case diaries shall be submitted." Rule 304:-Corpses sent for postmortem examination. But if the police officer making the enquiry finds reason to suspect the commission of a cognizable offence, the enquiry becomes one under section 157, Code of Criminal Procedure, 1973 and case diaries shall be submitted." Rule 304:-Corpses sent for postmortem examination. (a) When corpse is sent in for post-mortem examination, it shall be accompanied by a copy of the surathal report and a challan in duplicate in B.P. Form No. 49 one copy of which shall be addressed to the court officer who shall forward it to the Superintendent and the other copy to the medical officer holding the post-mortem examination. All corpses shall be sent to the headquarters of the district, unless the medical officer at the subdivision has been authorised by the Provincial Government to conduct post-mortem examinations. Post-mortem examination shall, as usual, be done in cases of infectious diseases, e.g., tetanus, plague, smallpox, etc., whenever required by the police. (b) The challan shall contain the date and hour of the actual dispatch of the corpse, an accurate description of it, a statement of the apparent cause of death, the circumstances, if any, which give rise to any suspicion of foul play and an accurate list of clothes and articles sent in with the corpse. (c) When sending a corpse for postmortem examination, a sufficient quantity of powered charcoal shall be placed next to it and a sheet would round it, and in all cases whenever a charpoy can be obtained, the corpse shall be carried upon it and shall not be slung on a bamboo." There is a distinction between latches in investigation and violation of rule of law. Latches of the investigating officer sometimes are ignored, provided, prosecution case is found otherwise meritorious in the main having been able to obtain full credence on the substantive evidence on record, quantitatively how low so ever it may be. But in case of violation of rule of law the same can not be equated with the latches of the investigating agency. Because violation of rule of law by one, means accrual of right of protection due to such violation in favour of the other, and, such right, so accrued, can not be taken away in the name of latches. 24. Because violation of rule of law by one, means accrual of right of protection due to such violation in favour of the other, and, such right, so accrued, can not be taken away in the name of latches. 24. In absence of non-compliance of above provision we have no opportunity to ascertain as to what were pre-post mortem condition, or, for not following the above rules whether any damage to any part to the corpse was caused, and if so where and how far the damage would have taken place for not taking precautionary measures, and any kind of damage by lapse of time whether would have caused any prejudice to the appellant. Therefore, in absence of legal provision the photographs of the corpse, MAT Ext. II series snapped by P.W. 3 after postmortem and before cremation could have no legal bearing for any lawful consideration. Learned Trial Judge did not stretch his discussion about admissibility of those photographs under law while there was no inquest report on record either under Section 174 or section 176 of the Code of Criminal Procedure, 1973. 25. The appellant's quarters were in the military camp at Rasapunja under P.S. Bishnupur. In cross-examination P.W.1 was asked whether any amount of money was deducted or not from the appellant's account due to hard drinks, dinner taken by P.W.1 and his guests, to which P.W. 1 could not give specific answer. It is obvious and is also evident from evidence of P.W. 9 that outsiders are not allowed to reside in military cantonment and take food from military canteen unless permitted. There also being nobody in the quarters of the appellant due to the mishap no one was there to extend hospitality to them. That is why, under direction of the appellant, on his behalf, P.W. 9 was looking after the appellant's in-laws and their relatives and costs of food etc. were borne by the appellant. P.W.1 with others stayed at Rasapunja till 12.05.2011, which is evident from his own evidence. The relevant extract of the same is set out hereunder:- "Husband of Kala Sood was an I.P.S. officer. He was D.I.G. of Himachal Pradesh. On 10.05.11 I was accompanied to Kolkata by my son, my wife, my daughter, my son-in-law Major Vivek Gupta, Taralal Gupta, Roshanlal Sood, Ravi Sood, Mr. The relevant extract of the same is set out hereunder:- "Husband of Kala Sood was an I.P.S. officer. He was D.I.G. of Himachal Pradesh. On 10.05.11 I was accompanied to Kolkata by my son, my wife, my daughter, my son-in-law Major Vivek Gupta, Taralal Gupta, Roshanlal Sood, Ravi Sood, Mr. Ami Chand, my 2nd son-inlaw engineer Vinod Thakur and his family from Kathmandu, Rakesh Sood and his family from Singapur. We stayed at military camp; Rasapunja till the evening of 12.05.11. We had to take lunch, dinner etc. from military camp Rasapunja." 26. Relevant portion from evidence of P.W. 8 already has been set out at the bottom of paragraph 18. Therefore when all cordiality and hospitality were extended by the appellant on account of arrival of his in-laws and their relatives in one hand, and police case was lodged against the appellant at Bishnupur P.S, on the other hand, then it would be subject to investigation and trial. However, so far as public witnesses, both related and unrelated, nothing legal evidence could be unveiled to incriminate the appellant with unnatural cause of death which had allegedly taken place soon before the occurrence. 27. Observation of learned Trial Judge over alleged extra-marital relationship, said to have cropped up between the appellant and the wife of P.W.3, shows that:- "In reply to a suggestion put forward during cross-examination PW-1 has stated that he does not know whether the differences cropped up over Krisna's illicit relationship or not. That means the defence has not ruled out such unapproved relationship. Again, we should not lose sight of the fact that the parents in law in respectable family would always try to conceal the unethical act of the daughter in-law for family prestige. It is also found from the cross-examination of PW-20 that since after Maju's death Salini has been living with her parents. Such separate living of Salini tends to make the story as to illicit relationship believable." P.W.3 had informed during cross-examination by denying suggestions that he had any complexity with his wife Dr. Shalini, or, the appellant and Manju had ever any occasion to settle any such complexity, or, he obtained decree of divorce, or, there were no longer husband and wife. However, P.W.3 further told in cross-examination that "after death of Manju doctor Shalini has been staying with her parents at Simla. Shalini, or, the appellant and Manju had ever any occasion to settle any such complexity, or, he obtained decree of divorce, or, there were no longer husband and wife. However, P.W.3 further told in cross-examination that "after death of Manju doctor Shalini has been staying with her parents at Simla. I know that doctor Shalini sent her statement on affidavit before the investigating officer. I can not say the details of the statement made by her on affidavit." However on scrutiny of the entire evidence of two investigating officers (P.W.19 and P.W.20) we find no reflection about receipt of alleged affidavit of Shalini. Even if said version of P.W.3 was correct it might have some value in the perspective of saving of family dignity and prestige. But the same could not get any legal sanction for its use on either-side without being examined or tested on dock, specially when till that stage there was no separation of marriage between P.W.3 and Shalini, meaning thereby, their marital relationship still was subsisting. Even though it was assumed, without admitting that there was extra marital relationship between the appellant and Shalini for which the appellant had allegedly requested P.w.3 for preparing papers of divorce, the same could have been some ground for attracting an offence like 306 of the Indian Penal Code, provided again that the death of Manju Dwivedi would have been proved as suicidal as a result of abatement for commissioning suicide. In the case on hand, charge was framed alleging the appellant responsible for homicidal death of Manju Dwivedi and prosecution had led the evidence only with a view to prove homicidal death. 28. Since on that fateful night there was nobody except the appellant and his wife in their quarters learned Trial Judge ended into conviction observing the following points against the appellant, which are set out:- According to learned Trial Judge it was proved, (a) the strenuous relationship in between the spouses, (b) wife's suspicion as to her husband's fidelity for Salini; (c) Salini's matrimonial dispute of serious nature leading to separation, (d) a crushing conflict between the husband's desire for divorce and wife's clinching desire for keeping the marriage in tact, (e) a quarrel between the spouses preceding the death and, (f) asphyxial death of the wife caused by pressing the neck with some soft and flexible object. Amongst the above points of observations, the same under (a), (b) and (d) could have been good grounds to attract the offence under Section 306 of the Indian Penal Code, provided, suicidal death would have been claimed and proved. The observation of learned Trial Judge under Clause (c) was perverse since it was dehors the evidence as discussed above. Further, on the observation under Clause (c) there was no proof as already discussed. Lastly we are still traversing for the evidence on Clause (f) i.e., asphyxial death, though specific cause of death was alleged by smothering. 29. Now we want to enter into the arena of medical evidence to conclude as to whether the finding of learned Trial Judge mounting to homicidal death of the deceased could be accepted to lend support to the conviction of the appellant under Section 302 of the I.P.C. All the photographs of the couple and their relatives including in-laws marked as Ext. A, B, C, D, E, F, G, I, J, L, M, N, series on behalf of the appellant were the signs of passing jovial and natural conjugal life without any unhappiness between the couple.