Calcutta High Court
Dulal Paul vs State Of West Bengal on 4 December, 1996
Equivalent citations: (1997)1CALLT335(HC)
JUDGMENT Debi Prasad Sircar-I, J.
1. This appeal has been filed challenging the judgment of conviction and sentence dated 7-5-91 passed by the learned Sessions Judge, West Dinajpur. Balurghat in Sessions Case No. 22 of 1990 (S.T. No. 8 of 1990) of that court.
2. The case is over one of the most burning problem of those days, an alleged incident of bride killing. The appellant, Dulal and, the deceased, Sabita @ Arati married in 1988 AD in the month of Magh according to Bengali Calendar and they lived at Banamali in the house of one Birendra Nath Paul, alleged to be a distant relative of the appellant. On 4-9-89, in the morning the said Birendra called at the house of the defacto complainant and informed them that Sabita, the brother's daughter to defacto complaintant, died in the preceding evening. The uncle and the mother of the deceased rushed to the matrimonial home of Sabita @ Arati and found that her deadbody was laid stretched on the courtyard. They noticed marks of injuries on the body, and learnt that the victim and the appellants quarrelled on the day before and that they had strained relationship, as the illicit love affair of Dulal with another girl continued despite their marriage. The defacto complainant suspected that Sabita was murdered by Dulal by strangulation at the instigation of Tapati and another housewife Rikta, addressed as "Bara Bowdi" and "Choto Bowdi" by accused Dulal. A case was initiated accordingly in the local P.S. under Section 302/34 1PC.
3. The learned Sessions Judge, West Dinajpur at Balurghat, framed charges under Section 302 IPC against the appellant and under Section 302/109 against Tapati and Sheuli, the two women of whom the former was the mother of the latter. After hearing of the case the "said two women were acquitted by the learned Sessions Judge holding that there was no evidence against them. But the appellant was found guilty of the charge under Section 302 IPC and was convicted and sentenced to imprisonment of life. The convict preferred the appeal.
4. The learned advocate for the appellant assails the Judgment and sentence passed by the learned Sessions Judge on various grounds. He argues that the learned Sessions Judge disbelieved the prosecution case of extra-judicial confession, but believed the prosecution case of Judicial, confession for which there were no substantial materials. He argues that the learned Judicial magistrate who recorded the statements of the appellant and the witness Rikta Paul under Section 164 Cr PC failed to act according to law as he did not care to administer caution and warning to them before recording the confessional statement of the appellant and to give him sufficient time after the much required caution and clarification of law to reflect his mind, it is evident, he argues, from the statement marked Ext.3, that caution was administered and the confessional statement of the appellant was recorded in one sitting on 7-9-89 which was grossly illegal and in clear violation of procedure. He argues that the learned Judicial Magistrate was duty-bound to administer cautions as is required by law and thereafter allow sufficient time to the appellant to reflect his mind, dispelling influence of threatening by police and villagers. Hence, he argues, that the alleged confession was tainted by the impulse of coercion and fear and was not likely to be used as evidence. He further argues that the learned Judicial Magistrate did not act to dispel the fear and mental pressure and assure the appellant that inspite of his refusal to confess, he would never be sent to police or to the hands of aggressive villagers once again, and hence, there was every reason to hold that the appellant never made the statement before the learned Judicial Magistrate without seizing threat, and under no circumstance after reflection of his free violation. He argues that the learned Sessions Judge failed to appreciate this settled point of law, based his Judgment on this so-called confession and landed in gross error injustice and illegality. He points out that the confession differs widely from the alleged extra judicial confession disbelieved by the learned Sessions Judge and the Statement recorded under Section 161 Cr PC.
5. The learned advocate for the appellants then submits that there is no sufficient evidence at all about the alleged murder and complicity of the two women having not been established, the plea of murder absolutely gives in. He further argues that there is no direct evidence in this case and as such there is no sufficient material to make the prosecution case stand on a good stead. The PW1 and 2 are the nearest relatives of the deceased, naturally hostile to the appellant, but they were not present at the time of the incident of death of the victim and whatever they deposed, were, therefore, based on conjecture shaped by vengeance. The plea of extra-judicial confession by the accused having not proved satisfactorily, and consequently rejected by the court, the evidence of the PW1 and 2 about complicity of the accused persons cannot but be rejected as inspiring no conviction. The PW3, the learned advocate for the appellant analyses, was declared hostile and cross-examined by the prosecution, but in spite of such cross-examination he did not give out anything which supported the prosecution case. All that he deposed was that he came to know from one Akhil Paul (not examined) that the wife of Dulal had died. The PW4 Sujit Laha a co-villager deposed that the wife of the appellant died and Bhupen Paul brother-in-law of Biren Paul disclosed that to him. This witness deposed that he learnt from somebody that Sabita Arati @ died of cough and cold. He went to the house of Biren Paul and learnt that she died of fever, cough, cold and headache. As this PW4 questioned that why no medicine was administered to her, the inmates of the house of the appellant told him that they did not administer medicine even to animals, far less to speak of human beings. This witness clearly deposed that there was black mark in the throat of the dead body of the deceased but the appellant did not tell anything in this respect. This PW4 was also declared hostile by the prosecution and in spite of cross-examination nothing tangible was obtained from him in support of the prosecution case. The PW5, learned advocate for the appellants submits, was Rikta Paul the alleged "Chotto Bawdi" of Dulal. She also had been declared hostile and nothing was disclosed in her evidence to support the prosecution case. The PW6, 7 and 10 were the police officers who did their duties at certain times in course of their official acts and they were not witnesses of the incident. The PW8 was the judicial Magistrate who recorded the confession of the appellant, about the reliability of which the learned advocate for the appellant made his submission earlier. He, according to learned advocate acted whimsically and had nothing to contribute in this case. The PW9 was a doctor and he alone supported the prosecution case of murder with his specialised knowledge. The learned advocate for the appellant argues that the settled principle of law is that the doctors are not necessarily the witness of truth and as such the deposition of this PW9 must be scanned as in case of other witnesses of ordinary prudence. The learned advocate submits that the doctor opined that death of Sabita was due to asphyxia as a result of throttling, which was ante mortem and homicidal, he did not mention in his record the reason for the black mark on the right side of the neck. He could not say whether he found any emphysematous bullee on the surface of the neck, as the post mortem report did not contain any note in that respect. There was no mention in post mortem report about bleeding from the nose, mouth and ear of the victim which may be found in case of strangulation and are very rare in case of hanging. Relying on these arguments the learned advocate for the appellants submits that the prosecution failed to establish any case against the appellant and as such the Judgment of the learned Sessions Judge was erroneous and must be set aside.
6. We have considered the arguments of the learned advocates of both the sides carefully in the light of the facts and circumstances of the case. There is no dispute that the victim Sabita @ Arati was the wife of the appellant and lived with him in the house of Biren Paul till death in normal course of business. There is also no dispute that Sabita @ Arali died in the house of the appellant, Dulal and in the next morning the house owner Biren Paul gave the information to the defacto complainant. The prosecution adduced in this connection evidence available to them and relied largely on three points, namely (i) extra-judicial confession by the appellant, Dulal and also the statement recorded under Section 164 Cr PC of the witness Rikta Paul, (11) the Judicial confession made by the appellant before the learned Judicial Magistrate examined as PW 8 and (ill) the deposition of the doctor PW 9 in the light of contemporaneous document that is the post mortem report, besides, (iv) the depositions of PWs. .1, 2, 3, and 4. Relying on the evidence available and the facts and circumstances as transpired in this case the leaned P.P.-in-Charge submits that the prosecution was able to bring home the case against the appellant beyond all reasonable doubt and the learned Sessions Judge was perfectly Justified in convicting the appellant and acquitting the other two persons accused with him.
7. As we have stated above, Sabita @ Arati was the wife of the appellant Dulal and lived with him in her matrimonial home, in the house of Biren Paul when she died. The PW 1 and 2 the uncle and the mother of Sabita were informed on the next morning and they depose that on coming to the house of the appellant they found the dead body of Sabita laid stretched on the courtyard, and, that, they noticed a black mark on the frontside of the neck of the deceased. They also depose to have noticed that froth and saliva were running from nose and mouth of the dead body. They believed that the death was unnatural, questioned Dulal and reported the murder to the police. Undoubtedly this PW1 and 2 did not have any direct knowledge about the cause of death of Sabita. We find from the depositions that the house of Biren, wherein the victim and the appellants lived together, being surrounded by walls, it was hardly possible for anybody to have primary knowledge about the cause of death of Sabita from outside, and that too, at night, when the village was silent lonely and asleep. Under these circumstances in this case we have to depend on circumstantial evidence to come to the correct conclusion in this respect. The learned Sessions Judge disbelieved the story of extra-judicial confession by Dulal on cogent grounds and we find no reason to differ from him in this respect But he based his judgment mostly on the confessional statement of Dulal as pleaded by the prosecution and the circumstantial evidence as were established in this case. The learned advocate for the appellant has assailed the finding of the learned Sessions Judge in respect of the Judicial confession, as we have discussed above. The accused Dulal was produced before the learned J.M., examined as PW 8, on 6-9-89, for recording confessional statement. It appears from the order sheet of the court of the learned S.D.J.M., which was made part of the record of the Sessions Trial, without marking the same an exhibit, and without any explanation therefor, that on 6-9-89 when the appellant was produced before the learned J.M. on 6-9-89 the learned J.M. just finished his duty without applying his mind and Just blindfolded passing order to keep him in segregation in the jail and directing that the appellant should be produced before him on the day following in his chamber. We are astonished to find this careless conduct of this Judicial Magistrate. No warning was given to the accused while he was produced in that date. Why then the accused was segregated and with what to reflect? The confessional statement, as it appears from the order sheet of the court of the learned S.D.J.M., was recorded on 7-9-89. We have examined the confessional statement recorded on that date, marked Ext.3by the learned Sessions Judge. To our utter dissatisfaction we find and hold that the learned J.M. failed to act according to law and to give the appellant sufficient time, material and opportunity to reflect his mind, i.e. after giving warnings as per law. Such warnings are not, surely, an idle exercise of a judicial officer who is supposed to act in execution of his judicial duty, and administration of the warning does not depend on the pleasure of the learned J.M. Shri S. Chakraborty so that it can be imparted at the time the learned J.M. fancies it fit. It is a very necessary part of dispensing justice dispensed through an officer of the rank of J.M. But unless the accused is made aware of the legal framework in this respect and his human rights as enshrined in law and unless he is given sufficient time after the caution having been administered, the concept of judicial confession becomes a ridiculous exercise. The J.M. acted indolently, and, we must say without any idea of the legal framework and in a fashion quite unbecoming of a J.M., by just finishing his duty by sending him to Jail and directing him to be kept segregated at his first production without administering caution as per law. We are really sorry that the J.M. Shri S. Chakraborty acted in atrocious violation of law and human right s of the accused in this respect and failed to grasp at the purity and importance of the act called Judicial confession and appears to have no idea about the procedure of recording it. The learned J.M., PW 8, strangely recorded the confessional statement on the same date on which he administered caution and in the same sitting. This act of the learned J.M. is highly illegal and is clear violation of the law and the recognised procedure.
8. The learned Magistrate was duty bound to administer cautions at the first production of the accused before him, give the accused person time, sufficient to reflect his mind only after such cautions, to come to his own uninfluenced decision about confession, i.e. independent of any outward influence and any pressure on him by show of fear, favour or allurement. That is why such an accused is directed to be kept segregated . He must be again given caution after he is produced from segregation, that is, once before recording the confession if he so desires. Generally, and in absence of any special circumstance, which should be carefully considered by the learned J.M., the accused produced for confession should be given at least 24 hours time for reflection after imparting warning to the accused (AIR 1959 SC 637), but such time may not be taken as absolute in all cases. The time to be allowed for reflection after the warning at the first production may be more or less depending on the special circumstances of the case in particular, and, some times, depending on that the accused may be given a second chance to reflect within sufficient time in order to safeguard his rights and to assure that he no longer makes any confession under impulse of fear, coercion or allurement of any sort. It is atrociously illegal to finish the magisterial duty just by ordering to keep the accused person segregated as soon as he was produced before the learned J.M., without administering warning, and, then to get hold of him on the next date and record his confession in the same sitting immediately after administering caution and without any time to reflect his mind in the background of all these highly required cautions to protect his human rights guaranteed by the norms of civilised society as is of ours. We hold that this so-called confessional statement was highly illegal and improper in utter violation of law and legal right of the accused and the learned sessions Judge was undoubtedly in error in relying on it.
9. The learned Sessions Judge failed to look into another point in this connection. This confessional statement was one of the foundations of his judgment. As we find from the order sheet of the court of the learned S.D.J.M. dated 6-9-89, the learned J.M. himself noticed some injuries on the person of the accused Dulal and directed the Sub-jailor to arrange for his treatment. In the light of the observation of the learned Magistrate dated 6-9-89 the confessional statement that the villagers gave a good beating to the accused before he was produced for confessional statement was fully established. If the appellant was beaten up by the villagers so much as to bear marks of injuries on his person even on 6-9-89, unless the learned Magistrate allowed him sufficient, time, opportunity and protection to dispel that influence of horrible experience and had categorically assured him that he would not be made over to police or to the villagers once again, the confessional statement relied upon by the prosecution case cannot be considered to be anything but tainted, obtained by coercion and under impulse of horror of further beating. Undoubtedly this was not at all a confession to be relied upon and the learned Sessions Judge was undoubtedly in error in founding his decision on this confessional statement to a large extent. The appellant might have made the confession as was marked Ext. 3 but that was not free from the impulse of fear and coercion and as such it was unjustified on the part of the learned Sessions Judge to rely on it. Accordingly we cannot but discard, not only the extra judicial confession in total agreement with the learned Sessions Judge, but also, the judicial confession as recorded by the learned Magistrate, the P.W.8, for reasons discussed above, although the learned Session Judge found it dependable. The legal requirements of a Judicial confession were never fulfilled and the condition prevailing was not at all congenial for a proper judicial confession which was relied upon by the learned Sessions Judge improperly. The alleged confessional statement is further, full of inconsistencies as are revealed on a little careful examination and cannot be relied upon as it cannot be reckoned as the truthful disclosure by a repentant accused person. Most part of it was exculpatory. An exculpatory confession laying the blames on other cannot be relied upon.
10. The next part of our consideration is whether there was any sufficient evidence to believe the prosecution case against the appellant and to hold that he committed murder of his wife.
11. As we have examined above the alleged extra judicial confessions and the judicial confession recorded on 6-9-89, we hold that the same cannot but be discarded as evidence. We have to examine very carefully the other evidence adduced by the prosecution in the light of the facts and circumstances under which Sabita breathed her last, the defence plea and decision that can be drawn reasonably on the basis of such evidence adduced by the prosecution, without any evidence by defence.
12. Undisputedly Sabita was the married wife of the appellant and used to live with him in the house of Biren and in that dwelling only Dulal and Sabita used to live together as husband and wife without any third person i.e. any other relative of them or outsider or servant etc. The other accused, the female ones, used to live in the same homestead no doubt, but separate in mess and dwelling. Under this circumstances Sabita had died in the night between 3-9-89 and 4-9-89. We must remember that she lived, in the relevant date and time, in the house and the company of the accused and none other human being. This fact has been established beyond doubt, as it is asserted by the prosecution and never denied by the defence.
13. We must scan the prosecution evidence at this stage to find out the needle of truth from the haystack of evidence adduced and explanation furnished by the defence about the death of Sabita. In order to support the prosecution case as unfurled above, the State has examined ten witnesses, of whom the PW1 the defacto complainant and the PW2, respectively, were, the uncle of Sabita and her mother. In fact they were the only relative witnesses, both of whom lived in their own houses at Margram village (while the incident took place in the house of the accused at Badamile, some 4/5 miles away from their village) and both of whom come to the house of the accused on 4-9-89 at 6 a.m. after Biren Pal informed them that Sabita © Arali died in the preceding evening. So none of them was eye witness of any incident of murder. There is no eye witness at all of the death of Sabita and no direct evidence has been adduced about the cause of her death. The PWs. 1 and 2 came to the house of the accused on the morning following the evening on which Sabita had died, saw her dead body laid stretched on the courtyard, examined the same and found an ecchymosis at the throat of the deceased and Saliva rolled down her cheeks. They give us the circumstances after death of Sabita and in due course shall examine their depositions and assess the circumstantial evidence revealed therefrom as to the cause of death of Sabita to consider if we find sufficient circumstantial evidence to ascertain if death of Sabita was natural or unnatural homicidal, suicidal or accidental, along with other evidence on record.
14. The PWs. 3 and 4 are the two persons of the same village, Badamile, and they also failed to give us any direct evidence about the cause of death of Sabita. They also took the same line with the PWs. 1 and 2, depose that they came to know of the incident of death of Sabita on 4-9-89, i.e., in the morning following as reported by one person or the other of that village, went to the house of Biren Pal and saw the dead body laid stretched on the, courtyard. They found that the body bore ecchymosis on the throat, and, gave us a new point, that when questioned about the cause of her death, some of the relatives and inmates of the house of Biren Pal gave out that she died of cold and - cough, some others gave out that she died of fever, some yet others that the death was due to headache and that when the PWs. 3 and 4 accosted them why Sabita was not sent to any doctor they maintained, strangely, that they were not used to administer medicine even to domestic animals, far less to any human being.
15. From the depositions of these neighbours the PWs 3 and 4 there appears to be a defence pica that Sabita died a natural death due to attack of some disease or the other. But patently this stand is vague, unspecific and without any foundation. The defence never asserted any such plea at the time of trial either by direct statement under Section 313 Cr PC or by suggestions through cross- examination of the PWs., far less by examining any defence witness or producing Medical paper. On the contrary the defence tried to demolish this part of the prosecution evidence by putting to the PWs that these statements were never made before the I.Q. The claim of natural death of Sabita was never pleaded, asserted or defended by the defence, on the contrary they tried to demolish it. Thus the defence has no case at all about the death of Sabita, although it is a fact established and the accused and his advisors prefer to maintain strict silence about the cause of death and are bent upon just taking the chance of possible flaws, if any, in this respect with prosecution case. As a result the defence did never clearly reveal its case about the cause of death, and to give out any cause of death, whatsoever, clarifying in any wise, whether it was natural, accidental, or even suicidal.
16. We must remember that from the facts and circumstances proved beyond doubt it has been revealed that :
(i) The deceased Sabita was the married wife of the appellant, Dulal; (ii) Sabita lived with Dulal in the same dwelling and they lived there without any third resident and access of any third person; (iii) Sabita died in the evening of 3-9-89 in the house of Dulal: (iv) Dulal ordinarily lived in the same house with Sabita and lived there, accordingly, at the time of the incident. Evidently, Dulal definitely knew why and how Sabita died in the evening of 3-9-89 and under the established facts and circumstances he had, as per settled principle of law, special responsibility to disclose the actual cause of death of Sabita © Arati and how she died. Absolute reticence on the part of the accused in the given circumstance leads us to draw presumption against the accused appellant. Silence is not always golden.
17. In this perspective we examine the prosecution evidence, without any retort by the defence, to ascertain how far the prosecution has been able to prove its case. The PWs. 1 and 2 who arrived at the house of the appellant on getting information of death of Sabita deposed separately that both of them found ecchymosis at the throat of the dead body of Sabita, laid stretched on the courtyard and froth and saliva rolling down from nose and mouth of the body. These parts of their depositions were corroborated by the depositions of PWs. 3 and 4, the two neighbours who inspite of their depositions hostile to the prosecution on any other points, maintained that in the throat of the dead body they found ecchymosis. These parts of the depositions of the PWs 1,2,3 and 4 corroborate one another neatly and dependably and without any concerted build up. The defence did not even whisper anything on this point in the cross-examination by it and even no suggestion was offered denying existence of any such ecchymosis at the throat as deposed by all these PWs. This was, therefore, established beyond doubt from the evidence adduced by the prosecution and never controverted by defence, that there was ecchymosis at the throat of the dead body and froth and saliva came out from nose and mouth of the deceased.
18. All these marks reasonably lead one to hold that the death was unnatural. These injuries and secretions cannot be found in case of natural death due to disease. The defence as it must be noted carefully, did never plead even by whisper that Sabita died of any disease. It does not have even any case of death of Sabita due to any accident or suicide in any way. The court cannot make out a case which is never pleaded by either of the parties. Absolute reticence and failure on the part of the defence about the real cause of death, although the accused had, undoubtedly the especial knowledge about and responsibility to explain the cause of death, absence of even the slightest denial of the materials given by the prosecution in its case and evidence about the cause of death added appreciable weight in favour of the prosecution case, as the prosecution case was left uncontroverted except by way of omnibus denial of commission of offence by this accused. The evidence scanned above cannot be explained in any wise reasonably except that it was a case of murder by throttling. The ecchymosis is eloquent about the incident which cannot but be interpreted as murder by throtting. It must also be held by any stretch or reason in the given circumstance that Sabita could not be murdered by any one other than by or without the connivance of Dulal, the appellant, PW4 saw the deceased to take bath in the pond some 4/5 days ago and although he was a co-villager he did not hear anything about illness of the deceased. Suddenly she died with injury at her throat which lead to believe her death by throttling. Her husband, the appellant, had no plea or defence as to why she died and how. This is quite incompatible with the natural course of action and all these circumstances make the prosecution case stand on a good stead leading any one to hold reasonably that it was none other than the accused who himself or though anybody committed the murder of Sabita.
19. We may now examine the deposition of the PW5 Rikta Pal who lived in the same homestead but in separate room along with her statement recorded under Section 164 Cr PC. In her deposition the PW5 claims that Sabita died in the night of the 17th Bhadra. But she depose that she does not know how Sabita died. The appellant was her near relative living in the same homestead. It is absolutely unlikely that this lady would not know if Sabita committed suicide or died of any disease or accident. No such case can be built up on her deposition. Undoubtedly she, living in the same homestead at the relevant time, could not have been unaware about the real cause of death of Sabita. But she feigned ignorance which is patently eloquent about her wilful suppression of the real knowledge about the cause of death of Sabita evidently with a design to suppress the misdeed of her husband's brother. It again leads a presumption in favour of the prosecution.
20. In this perspective we must examine the statement of this witness Rikta recorded under Section 164 Cr PC wherein she stated clearly that Dulal killed Sabita by throttling her to death. While it is altogether incompatible with the natural course of event that this PW5 would not have any knowledge about the cause of death of Sabita and this denial on her part of any knowledge of the cause of death of Sabita, despite living in the same homestead must reasonably lead one to hold that she is suppressing facts to provide protection to her relative the accused, it is quite reasonable and normal that the disclosure of the incident in her statement under Section 164 Cr PC was Just a truthful account of how Sabita died. This circumstance provides strong and believable support to the prosecution case and makes it stand on good stead.
21. The most important of the prosecution evidence is the deposition of the PW9, the medical officer, Dr. Manmatha Saha who held post mortem examination of the dead body of Sabita on 5-9-89 as Superintendent of Balurghat District Hospital. The defence argument that the doctors, although they are experts, are not necessarily the witnesses of truth, is quite sound argument. Our judicial pronouncements are, surely, in the term that the doctors are not necessarily the witnessess of truth. But that does not mean that the alternative is in any way correct, that is, the doctors are necessarily the witnesses of falsehood. The consensus of judicial pronouncements is that the medical personnel should be reckoned as experts and their opinions should be examined accordingly, with as much care and caution as is required in case of any other witness, interpreted by applying judicial analysis and discretion in the light of compatibility, propriety and normal reason and reliability. The PW9 has given in details the materials for his opinion and we have examined the same with care and caution as required in judicial approach to any witness and evaluated his opinion. In the opinion of the P.W.9 the victim Sabita, who was of average built body died due to asphyxia, as a result of throttling, which was antemortem and homicidal. He narrates the materials for his opinion and disposes that he found (i) swelling of the neck transversely circular continuous with low down ligature mark in the neck, specially well marked on the frontal side of the neck: (ii) Two small bruises 3/4" and 1/2" long with few black spot on the neck skin; (iii) cresentic mark of abrasion on the left side of the neck below the left ear: (iv) on the right side of the neck small bruises with black marks; and, on dissection he found the hyoid bone factured. All these results reveals in P.M. examination are undoubtedly incompatible with natural death and on these points the deposition of this P.W.9 corroborates the depositions of the other P.Ws. 1, 2, 3 & 4 and the statement of P.W.5 recorded under Section 164 Cr PC and thereby make all these quite believable and reliable. The injuries noted above could not be found homogeneously in case of death of Sabita other than by applying brutal force, which is nothing but murder. We must reiterate that the appellant did at no stage disclose any cause of death of his wife although he as per persisting circumstance had special knowledge about the incident, and, at no stage he claims that the deceased committed suicide by hanging or her death was caused by any other foreign hand in any circumstance beyond the control of the appellant. Examining even with utmost care we find no reason to disbelieve the expert opinion of P.W.9 or any part of it. The injuries enumerated by the P.W.9 cannot be disbelieved or doubled and the same cannot be interpreted in any wise except that Sabita was murdered by the present appellant. We must accept the P.W.9 as a truthful witness.
22. Taking all these facts and circumstances to consideration we hold that accused Dulal Pal, as found by the learned Session Judge committed murder of Sabita, we, therefore, agree with the ultimate finding of the learned Sessions Judge that the appellant committed murder of his wife. Consequently we cannot but agree with him about the conviction and punishment under Section 302 IPC as it is the minimum of the punishment for the offence committed by the appellant.
23. Accordingly we find no reason to interfere. The appeal must be and is dismissed on contest The finding, conviction and punishment as ordered by the learned Sessions Judge are hereby confirmed.
Rabin Bhattacharyya, J.
24. I agree.