JUDGMENT : Joymalya Bagchi, J. 1. The appeal is directed against the judgment and order dated 25.03.2013 & 26.03.2013 passed by the learned Additional District & Sessions Judge, Fast Track Court-II, Uluberia, Howrah in Sessions Trial No.260/2007 convicting the appellants for commission of offence punishable under Sections 302/201 of the Indian Penal Code and sentencing him to suffer R.I. for life and to pay a fine of Rs.5,000/- in default to suffer R.I. for one year for the offence punishable under Section 302 of IPC and sentencing him to suffer R.I. for 2 years and to pay a fine of Rs.1,000/- in default to suffer R.I. for 3 months for the offence punishable under Section 201 of IPC, both the sentences run concurrently. 2. Prosecution case, as alleged, against the appellant is to the effect that the appellant was married to Sampa Polley alias Tia, daughter of Monoranjan Maity, P.W.1 ten years ago. Two children were born to couple. Four years prior to the incident the couple started residing with Monoranjan. On 06.04.2007 at 6 A.M. Niranjan Maity, the brother of Monoranjan found the dead body of Shampa floating in the pond. He raised hue and cry. Monoranjan and others rushed to the spot and found injuries on the body of the victim. At this juncture Chameli, P.W.2 younger daughter of Monoranjan disclosed at about 3 A.M. when she went out to answer nature's call she saw the appellant assault the victim on her head 3/4 times with a weapon. Over this issue, written complaint was lodged by Monoranjan at Shyampur P.S. resulting in registration in Shyampur P.S Case No.52/07 dated 06.04.2017 under Section 302/201 of IPC against the appellant. In the course of investigation, appellant was arrested. On the same day, investigating officer seized a white and black striped shirt bearing mark 'Sish Mahal' allegedly belonging to the appellant near the bank of a tank owned by one Manik Hazra at Gazipara. On 1.04.2007 one Mugur was recovered from the varanda of the appellant. Serologist report with regard to the seized shirt and Mugur were obtained and charge sheet was filed in the instant case under Sections 302/201 of IPC against the appellant. 3. The case of the appellant was committed to the court of sessions and transferred to the court of learned Additional District & Sessions Judge, Fast Track Court-II, Uluberia, Howrah for trial and disposal. 4. 3. The case of the appellant was committed to the court of sessions and transferred to the court of learned Additional District & Sessions Judge, Fast Track Court-II, Uluberia, Howrah for trial and disposal. 4. Charges were framed under Sections under Sections 302/201 of IPC. The appellant pleaded not guilty and claimed to be tried. 5. In the course of trial, the prosecution examined 22 witnesses to establish its case and exhibited a number of documents. 6. The defence of the appellant was one of innocence and false implication. 7. In conclusion of trial, the trial court by the impugned judgment and order dated 25.03.2013 & 26.03.2013 convicted and sentenced the appellant, as aforesaid. 8. As the appeal was instituted pursuant to a letter received from the appellant from jail, Ms. Chatterjee was requested to assist the Court as amicus curiae. 9. Ms. Chatterjee, learned counsel argued that the evidence of the eyewitness (P.W. 2) is opposed based to normal human conduct and highly improbable. Though P.W.2 claimed to an eyewitness of assault on her sister, she kept mum till her dead body was recovered couple of hours after the incident. Evidence of P.Ws.4 & 5 who claimed that they saw the appellant returning from the pond is also unnatural and highly improbable. They heard cries "Mago Babago" from the house but did not seek help from other inmates. Their versions are also at variance with their earlier statements to the police. That apart, medical evidence of P.M. doctor, P.W.13 shows that the victim suffered incised injuries which is not inconsistent with the prosecution case involving assault by a Mugur which is not a sharp cutting weapon. Evidence on record with regard to the ownership of seized shirt is not unreliable. Recovery of Mugur took place four days after arrest of the appellant and that too from the place within the control and custody of P.W.1, father of the victim. Serologist's reports are also inconclusive. Accordingly, the appellants are liable to be acquitted. 10. On the other hand Mr. Ahmed appearing with Ms. Khan for the State argued that P.W 2 was threatened by the appellant and consequentially kept mum. Her evidence is corroborated by P.Ws 4 and 5. Recovery of the blood stained shirt and 'mugur' at the behest of the appellant establishes the prosecution case beyond reasonable doubt. Hence, the appeal is liable to be dismissed. 11. Ahmed appearing with Ms. Khan for the State argued that P.W 2 was threatened by the appellant and consequentially kept mum. Her evidence is corroborated by P.Ws 4 and 5. Recovery of the blood stained shirt and 'mugur' at the behest of the appellant establishes the prosecution case beyond reasonable doubt. Hence, the appeal is liable to be dismissed. 11. From the rival submissions made across the Bar it appears that the prosecution case is founded on the following facts:- (a) Eye-witness version of P.W 2 (b) Evidence of P.Ws 4 and 5 who saw the appellant returning from the pond soon after the incident (c) Recovery of bloodstained white and black check shirt allegedly belonging to the appellant. (d) Recovery of 'mugur' (weapon of offence) on showing of the appellant. (e) Opinion of post mortem doctor P.W 15 with regard to the cause of death of the victim. (f) Serologist's report Ext. 13 and 14 showing presence of human blood on the shirt and mugur seized on the showing of the appellant. 12. Let me analysis the evidence to determine whether the aforesaid facts have been established by the prosecution beyond reasonable doubt or not. 13. P.W 2 claims to have witnessed the assault on the victim by the appellant. She is the younger sister of the victim. She deposed the appellant Kamalesh used to reside with her sister at her father's house. They used to quarrel regularly. In the early hours of 6.4.2007 when she went to the bank of the tank to answer nature's call, she found appellant assaulting her younger sister with a weapon. Her sister fell down on the ground and uttered 'Mago Babago'. Thereafter, the appellant pushed her into the tank. The appellant threatened her with dire consequences and told her not to disclose the incident to anybody. She returned home and went to bed beside her mother. On the next morning P.W 6 Niranjan Maity, her uncle went for washing on the bank of the tank and discovered the body of her sister floating in the pond. He raised hue and cry whereupon P.W 1, her father rushed to the spot. Thereupon, she divulged the incident to her father (P.W. 1) and others. 14. On the next morning P.W 6 Niranjan Maity, her uncle went for washing on the bank of the tank and discovered the body of her sister floating in the pond. He raised hue and cry whereupon P.W 1, her father rushed to the spot. Thereupon, she divulged the incident to her father (P.W. 1) and others. 14. Learned lawyer for the State argued P.W. 2 being a young girl was threatened by the appellant and due to fear kept silent till the body of the victim was recovered. It is difficult for me to accept such facile explanation for the inexplicable silence of P.W 2. After the incident P.W 2 had returned to the safety of her home and had gone to sleep beside her mother. It is most unnatural for a sister who had watched brutal assault on another to quietly return to her bed and go to sleep beside her mother. Even if P.W 2 may have kept silent out of fear in the presence of the appellant there is no reason why she would choose to keep mum and quietly go to sleep after she returned to the safety of her home. 15. On the other hand, I find sufficient force in the argument on behalf of the appellant that after the dead body of the victim was recovered at the behest of PW 6, the story of P.W 2 having witnessed the incident was concocted to implicate the appellant. The contemporaneous recording of the statement of the said witnesses before the magistrate does not improve the situation. Unnatural conduct of a witness particularly an eye-witness soon after the incident gives rise to a serious doubt with regard to her veracity and the unfolding of the prosecution case through her eyes receives a severe jolt. Moreso, when explanation given by the said witnesses for remaining silent does not ring true. In that backdrop I find it unsafe to rely on her versions to come to a finding of guilt against the appellant even if her statement was recorded before a Magistrate. Similarly evidences of P.W.s 4 and 5 suffer from patent absurdities as well as inconsistencies. P.Ws 4 and 5 are the cousins of the victim, Sampa. P.W 4 claimed on the fateful night she heard cries 'Babago Mago'. After hearing such cries, she along with her sister (P.W.5) went outside to answer nature's call. Similarly evidences of P.W.s 4 and 5 suffer from patent absurdities as well as inconsistencies. P.Ws 4 and 5 are the cousins of the victim, Sampa. P.W 4 claimed on the fateful night she heard cries 'Babago Mago'. After hearing such cries, she along with her sister (P.W.5) went outside to answer nature's call. At that time they found appellant returning from the side of the tank. Conduct of the witnesses are most unnatural and does not inspire confidence. If frantic cries are heard by the womenfolk of a family, it is most unnatural that they would venture out of home without aid and assistance of the male inmates of the house. 16. Hence, I am of the opinion that it is most unlikely that the said witnesses after hearing cries of help had gone out to answer nature's call in the early hours of the fateful day and saw the appellant returning home. Had the witnesses heard cries of help and immediately thereafter met the appellant, it would be most natural on their part to put questions to him with regard to such cries. P.W 5 also contradicted her deposition in Court and admitted in cross-examination that she had stated to the investigating officer that Kamalesh used to go out in the early morning to catch fish. This circumstances militate against the truthfulness and reliability of the aforesaid witness. 17. In the light of the aforesaid discussion, I am of the opinion neither the purported eyewitness P.W 2 nor P.Ws 4 and 5 inspire confidence. Hence, I chose not to rely on their evidence to implicate the appellant in the murder of his wife. 18. If the evidence of P.Ws 2, 4 and 5 are discarded, prosecution is left with the recovery of the white and black check shirt from the bank of the tank belonging to one Manik Hazra and a 'mugur' (wooden club) from the veranda of the appellant four days after the incident. 19. P.W.22, Investigating Officer deposed during investigation he came to know one bloodstained shirt was lying by the side of a tank belonging to Manik Hazra at Gazipara 1 km away from the place of occurrence. He seized the shirt under a seizure list (Ext.4/b). However, ownership of the shirt does not appear to be proved beyond doubt. 20. P.Ws.7 and 9 are the eyewitnesses to the said seizure. He seized the shirt under a seizure list (Ext.4/b). However, ownership of the shirt does not appear to be proved beyond doubt. 20. P.Ws.7 and 9 are the eyewitnesses to the said seizure. P.W.7 was returning from hat and found certain persons were standing by the side of the tank of Manik Hazra. Police seized a black and white shirt with mark "Shis Mahal". He signed on the seizure list. 21. P.W.9, the other witness to the seizure claimed that he had seen the said shirt being worn by the appellant almost everyday. This fact is not, however, corroborated by the other witness (P.W.7). None of the in-laws of the appellant examined in this case corroborated the evidence of P.W.9 that the shirt belonged to the appellant. None of the witnesses particularly P.W.s 2, 4 and 5 have deposed they had seen the appellant wearing the seized shirt on the fateful day. 22. Prosecution has relied on the evidence of P.W.13, owner of a tailoring shop named and styled "Shis Mahal" who claimed that the said shirt had been sold to the appellant. The said witness, however, could not produce any document in support of his stance. No order book or receipt was produced in court to corroborate his oral version. In view of the aforesaid scanty evidence on record, I am unwilling to come to a conclusion that prosecution has proved that the seized shirt belonged to the appellant and was worn by him on the fateful day. 23. With regard to the recovery of the mugur (wooden club) from the verandah of the appellant, I note that the said recovery was effected four days after his arrest. P.Ws.8 and 14 are the witnesses to the said recovery. P.W.8 deposed the mugur was wrapped in a paper and kept in a gunny bag in the verandah where wood was stacked as fuel. In cross-examination, he claimed that there was no special mark on the mugur. P.W.14 did not corroborate the evidence of P.W.8 that the mugur was kept inside a gunny bag. In cross-examination, he admitted that such mugur was ordinarily available and that he had signed on blank paper. In cross-examination, he claimed that there was no special mark on the mugur. P.W.14 did not corroborate the evidence of P.W.8 that the mugur was kept inside a gunny bag. In cross-examination, he admitted that such mugur was ordinarily available and that he had signed on blank paper. Apart from the aforesaid contradictions in the version of the two witnesses relating to the seizure of the said article, it may not be out of place to bear in mind that the appellant was residing along with his in-laws and the place of recovery, namely, a varandah where wood was stored was accessible to his in-laws including P.W.1, the defacto complainant. Hence, recovery of the mugur (wooden club) four days after the arrest of the appellant from a place which was accessible to the defacto complainant (P.W.1) and other relations of the victim renders it unsafe to come to a conclusion that the said article was recovered on the showing of the appellant. It is pertinent to note that no leading statement in writing has been exhibited in the instant case to fortify the plea that the mugur was recovered pursuant to the leading statement of the appellant. 24. In the light of the aforesaid discrepancies and/or deficiencies in the prosecution case with regard to the ownership of the white and black check shirt and the recovery of the mugur (wooden club) four days after the arrest of the appellant from a place which was accessible to P.W.1 and other in-laws of the appellant, I am of the opinion of the serologist with regard to presence of human blood on the said items do not create an incriminating circumstance implicating the appellant. 25. It has also been argued that the nature of injuries found by post mortem doctor (P.W.15) could not have been caused by a spherical instrument like mugur. P.W.15 found the following injuries on the victim:- (1) One incised wound over the lateral temporal region of skull 3" long and half inch deep. (2) One incised wound on frontal region of skull 4" long 1/2" deep. The said wound extended up to the forehead. (3) One "L" shaped lacerated injury over occipital region of skull with extravasation of blood in surrounding tissue. On opening of skull 3" x 3" extra dorsal Haematoma was seen on occipital region. (2) One incised wound on frontal region of skull 4" long 1/2" deep. The said wound extended up to the forehead. (3) One "L" shaped lacerated injury over occipital region of skull with extravasation of blood in surrounding tissue. On opening of skull 3" x 3" extra dorsal Haematoma was seen on occipital region. (4) One lacerated wound over upper lip of mouth just below left nostril, measuring 11/2 x 1/2. 26. He admitted injury nos.1 and 2 are incised wounds and would ordinarily be caused by sharp cutting weapon. However, he opined (Ext.15) that such injury may be caused by the tip or sharp edges of a wooden club. In cross-examination, he conceded that injury nos.1 and 2 may also be caused if someone fell down against split bamboo. It is relevant to note that P.W.1 in cross-examination admitted that the ghat (bank of the pond) was prepared by bamboo poles and wooden steps. Hence, the opinion of the autopsy surgeon (P.W.11) is an ambiguous one and in the face of the scanty and unreliable evidence on record with regard to the involvement of the appellant in the alleged crime, in my opinion, does not help the prosecution case to prove his guilt beyond doubt. 27. Finally, it was argued that the appellant was residing with the victim at the time of occurrence. He has failed to explain why his wife, that is, the victim who was in the family way, went out of the house alone. Hence, adverse inference should be drawn against the appellant. It is nobody's case that the victim had died within the four-corners of the room which was occupied by the couple. 28. It is the duty of the prosecution to prove its case beyond doubt. When the prosecution establishes a case where homicidal death of the victim is within the special knowledge of an accused, failure to give explanation as to the circumstances leading to such homicidal death may attract adverse inference against him. In the instant case, dead body of the victim was recovered from a pond which was accessible to all at 6.00 a.m. in the morning. It is nobody's case that the victim had died inside the room occupied by the couple and, thereafter thrown into the pond. Hence, no adverse inference can be drawn against the appellant in the facts of the instant case. 29. It is nobody's case that the victim had died inside the room occupied by the couple and, thereafter thrown into the pond. Hence, no adverse inference can be drawn against the appellant in the facts of the instant case. 29. Finally, motive for commission of offence has not been clearly established. Although some general statements were made by P.W.1 and other in-laws in Court that the victim was subjected to cruelty, it is relevant to note that the couple was residing alongside the residence of P.W.1 (father of the victim) for the last four years. In the preceding night P.Ws.1 and 11 (parents-in-law of the victim) and others had gone to attend Hari Sankirtan which was being celebrated in the village throughout the night. Such behaviour on the part of the couple and other family members do not show inimical relation between the couple of such extent which would give motivation to the appellant to do away with the life of his wife, more particularly when she was in the family way. 30. In the light of the aforesaid discussion, I am of the opinion that the prosecution has failed to prove its case beyond reasonable doubt. 31. Conviction and sentence of the appellant are, accordingly, set aside. 32. Appellant shall be released forthwith from custody upon execution of a bond to the satisfaction of the trial court which shall continue for six months in terms of Section 437A of the Code of Criminal Procedure, if not wanted in any other cases. 33. The appeal is, accordingly, allowed. 34. I record my appreciation for the able assistance rendered by Ms. Chatterjee as amicus curiae in disposing of the appeal. 35. Copy of the judgment along with L.C.R. be sent down to the trial court at once. 36. Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities. I agree.