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IN THE MATTER OF DR. SUBRATA DAS & OTHERS V/S THE STATE OF WEST BENGAL, decided on Friday, May 17, 2013.
[ In the High Court of Calcutta, C.R.A. No. 323, 324, 354 of 2008 (Appellate Side). ] 17/05/2013
Judge(s) : INDIRA BANERJEE & KANCHAN CHAKRABORTY
Advocate(s) : Sekhar Basu, Milon Mukherjee, Y.Z. Dastoor, K. Zukherjee, K. Gupta, S. Datta, S. Santra, S. Bhagat. Manjit Singh, Arijit Ganguly.
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    Constitution of India - Article 21 ? Right to life ? conviction - no person shall be deprived of his life or personal liberty - except in accordance with procedure established by law - Article 21 must meet test of reasonableness - wrong appreciation of evidence resulting in unjust - illegal conviction of accused results in gross violation of fundamental right. Indian Penal Code - Section 147 ? section 149 Section 302 Section 201 and Section 34 - Evidence Act - Section 114 - Criminal Law - Murder - Proof - Circumstantial evidence - Trial Court concluded theory of ?last seen together? could legitimately be invoked ? Appeal against conviction ? Submitted ignoring some vital evidence on record including evidence ? Whether prosecution prove case accused beyond all reasonable doubt - Held - no eye witness - onus was on prosecution - Court below drew an inference which not only wrong but bordered on absurdity - no evidence of any enmity? mere suspicion cannot discredit witness - When conviction is based on circumstantial evidence incriminating circumstances against accused must form an unbroken chain - appeals are allowed - conviction set aside.Case Referred:1. Surajit Sarkar Vs. State of West Bengal reported in (2013 (1) AICLR 13     Indira Banerjee J.These three appeals are against the judgment and order dated 9th April 2008 passed by the learned Additional Sessions Judge Bankura convicting all the appellants in these appeals under Sections 302 201 and 34 of the Indian Penal Code for murder of Dr. Swapan Kanjilal hereinafter referred to as ‘the deceased’ and causing disappearance of evidence in furtherance of a common intention. The appellants have each been sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.10 000/-.On or about 16th September 1990 at about 2:35 p.m. the deceased his wife Smt. Aditi Kanjilal being the appellant in C.R.A. No.324 of 2008 Dr. Subrata Das his wife Smt. Sanghasree Das and his brother-in-law Sri Pritibrata Tarafder (wife’s brother) being the Appellant Nos. 1 2 and 3 respectively in C.R.A. No. 323 of 2008 accompanied by Sangita Das the seven/eight year old minor daughter of Dr. Subrata Das and Smt. Sanghasree Das and the appellants in C.R.A. No.354 of 2008 Dr. Koushik Chakraborty and his friend Pulak Roy went to Pareshnath Ferry Ghat under Ranibandh Police Station near Mukutmonipur for an outing after crossing the Kanshabati Dam in a boat. The deceased and some of the appellants consumed alcohol.Except for Pulak Roy i.e. appellant No.2 in C.R.A. 354 of 2008 who stayed back at the bank with seven/eight year old Sangeeta because of a bandaged leg as he had had an operation all the appellants were enjoying themselves in knee deep water. The deceased was however swimming in the dam some distance away from the appellants.It was reported that at about 15:00 Hours (03:00 p.m.) the deceased Dr. Swapan Kanjilal had drowned in the dam water. The body of Dr. Kanjilal was recovered on 19th September 1990 at about 10:45 a.m. from the very place where he was reported to have drowned.The deceased was a surgeon attached to the Bankura Sadar Medical College and Hospital hereinafter referred to as ‘BSMCH’. The evidence on record reveals that a lot of people were present at the time when the body was brought out of the water including doctors of BSMCH. Immediately after the body was recovered an inquest was conducted. After the inquest garlands and flowers were placed on the body of the deceased.In the evening a post mortem was conducted. On the next day i.e. 20th September 1990 one Gangaprasad Sil Sub Inspector Officer-in- Charge Ranibandh Police Station lodged a First Information Report alleging that the autopsy surgeon Dr. J.N. Das Professor and Head of the Department Forensic Science and Medicine of BSMCH had opined that the death of the deceased was due to manual strangulation ante mortem and homicidal in nature.In the First Information Report it was alleged that the respective appellants in these three appeals had jointly murdered the deceased and thrown his body into the dam causing disappearance of evidence but shouted for help to give the impression that this was a case of drowning.The inquest was conducted by the Officer-in-Charge Ranibandh Police Station at Pareshnath Ghat. From the Inquest Report it appears that the dead body of the deceased was recovered from the dam waters about 70 ft. to the north-east of an island. The inquest report reveals that there were some abrasions on the skin but no injury marks. The deceased had his spectacles on when he was brought out.The investigation was taken over by the Criminal Investigation Department. The charge sheet was submitted charging these appellants inter alia under Sections147 149 302 201 34 of the Indian Penal Code with inter alia murder of the deceased and causing disappearance of evidence in furtherance of common intent and trial commenced. In course of trial 47 witnesses were examined on behalf of the prosecution of whom 10 were declared hostile. Amongst the Prosecution Witnesses there were doctors of BSMCH including doctors present at the time of the post mortem the autopsy surgeon who conducted the post mortem boatmen and local inhabitants of the area where the incident took place two of the divers who fished out the body of the deceased two maid servants one whom had worked for the deceased and the other for Dr. Subrata Das and his family and different policemen.On behalf of the defendants 3 witnesses were examined. The accused appellants were all examined under Section 313 of the Criminal Procedure Code. The accused appellants all denied their guilt.On the fateful day on which Dr. Kanjilal died he was scheduled to assist Dr. Debarata Dey his superior at the BSMCH in an operation at the Memorial Nursing Home. It was thus the case of the prosecution in the trial that the deceased must have been forcibly taken to the Kangshabati Dam area against his wishes with a view to kill him by making his death appear accidental because the deceased could not have agreed to go for an outing when he had a professional commitment on that very day in the afternoon. Accordingly before the Trial Court the prosecution argued that the appellants with the assistance of the wife of the deceased Mrs. Aditi Kanjilal (appellant in C.R.A. 324 of 2008) motivatedly compelled the deceased to go for the outing with common intent to kill him.Dr. Debabrata De gave oral evidence as the first Prosecution Witness (P.W. 1). The P.W. 1 has deposed that the deceased was a Basic Teacher at the Department of Surgery BSMCH i.e. the same department in which the P.W.1 was attached and that he assisted the P.W. 1 in his private cases most of which were at the Memorial Nursing Home. The deceased was to assist the PW1 in an operation on 16th September 1990 in the afternoon. While the petitioner was waiting for the deceased he got the message that the police had telephoned his residence to inform him that Dr. Subrata Das the Appellant No.1 in C.R.A. 323 of 2008 was trying to contact him to convey the message that the deceased had drowned.Nothing further has emerged from the evidence of this witness except that this witness was present at the time when the body of the deceased was recovered and that the deceased was wearing briefs and still had his spectacles on.There is nothing in the evidence of P.W. 1 or any other witnesses to support the case of the prosecution that the appellants had forced the deceased to go to the Kangshabati Dam area with them on the fateful day when the deceased lost his life. A careful scrutiny of the evidence on record including the evidence of P.W. 1 Dr. Dey indicates that the operation which the deceased had to assist was scheduled for the late afternoon i.e. 04:00 o’clock or so. The outing to Pareshnath Ghat was planned in such a way that the deceased could have reported to the Memorial Nursing Home at around 4:00 p.m. if not earlier but for the unfortunate incident.The deceased and the appellants had planned to leave the dam area by 3:40 p.m. latest and had accordingly obtained permission to remain in the dam area only till 3:40 p.m.. The travelling time from the dam project area to Bankura was about 15 minutes by car as indicated in the evidence of P.W. 27 the photographer who had been requisitioned to take photographs of the dead body of the deceased at Pareshnath Ferry Ghat. But for the unfortunate incident the deceased might have left the dam area at 3:35 – 3:40 p.m. and arrived at the Memorial Nursing Home well in time.The evidence on record reveals that the incident of drowning took place at around 3:00 – 3:15 p.m. The news of the drowning must have taken some time to travel to the P.W. 1. The documentary and oral evidence indicates that the deceased was expected at the Memorial Nursing Home at around 4:00 p.m..The evidence of the P.W. 1 does not show that he waited for the deceased for an unusually long time. It may thus reasonably be inferred that soon after the P.W. 1 had started waiting for the deceased he heard that the deceased had drowned.P.W. 2 Shukla Das and P.W. 3 Chinta Das maidservants working for Dr. Subrata Das and the deceased respectively have been examined by the Prosecution in an attempt to make out a case of a love affair between Mrs. Aditi Kanjilal and Dr. Subrata Das with a view to bring out a motive for murder of the deceased and also to establish that the deceased was reluctant to go out with the appellants. Both these witnesses were declared hostile. Nothing significant has emerged from the evidence of these two witnesses.In cross-examination by the learned Public Prosecutor P.W. 2 apart-time domestic help working at the residence of Dr. Subrata Das only admitted that she had told the Investigating Officer that the deceased and his wife often visited the house of Dr. Subrata Das (appellant No.1 in C.R.A. 323 of 2008) and that Mrs. Aditi Kanjilal (appellant in C.R.A. 324 of 2008) visited the residence of the Dr. Subrata Das more often than the deceased. In cross-examination by the defence this witness deposed that she was only a part-time help at the residence of Dr. Das. As part-time help she left at about 10 – 10:30 a.m. in the morning after completing her work and then again worked from about 5 – 5:30 p.m.. She could not say anything about what her master and his wife did during her absence.P.W. 3 a domestic help working with the deceased and his wife only deposed that the deceased had gone for a picnic to Mukutmonipur with Dr. Subrata Das and his family and she later came to know in the afternoon that the deceased had drowned in an accident. In cross-examination the P.W. 3 denied having made any statement to the police that Dr. Subarata Das the appellant No.1 in C.R.A. 323 of 2008 used to visit the house of the deceased in his absence and meet his wife inside a closed room. She also denied having told the Investigating `Officer that Dr. Kanjilal had no intention of going for the picnic.The two domestic servants have denied having made any statement to the police as suggested. Statements if any made to the police under Section 161 of the Code of Criminal Procedure are in any case not admissible in evidence. Even if it is assumed that any of the maidservants actually made the statements alleged to have been made by them those statements are of no consequence. The statements would only show that the deceased and his wife knew Dr. Subrata Das and his family well and they were on visiting terms.The mere fact that Dr. Sbrata Das might have visited the residence of the deceased in the absence of the deceased or the fact that Smt. Aditi Kanjilal may have visited the residence of Dr. Subrata Das unaccompanied by the deceased can never ever be reason to assume any special intimacy between Dr. Subrata Das and Smt. Aditi Kanjilal and can in no circumstances be a ground of criminal conviction for murder.Dr. Subrata Das was a married man with a wife and child at home. No one has stated that Smt. Aditi Kanjilal visited Dr. Subrata Das in the absence of his wife and child. The deceased being a busy doctor it could not have been possible for him to accompany his wife wherever she went. It is only to be expected that his wife Smt. Aditi Kanjilal would sometimes have to visit neighbours and friends alone.One of the maidservants Chinta Das allegedly told the police that Dr. Subrata Das also visited the residence of the deceased when the deceased was not at home and sometimes the door was closed when Dr. Subrata Das and Smt. Aditi Kanjilal talked to each other.In Court the P.W.3 Chinta Das categorically denied having told the police that Dr. Subrata Das visited the residence of the deceased in the absence of the deceased or met his wife Smt. Aditi Kanjilal in a closed room. She also denied having made any statements to the police to the effect that the deceased did not want to go for the outing. The alleged statements under Section 161 of the Criminal Procedure Code cannot therefore be relied upon.Even assuming for the sake of argument that Dr. Subrata Das visited the residence of the deceased in his absence and spoke to his wife Smt. Aditi Kanjilal in a closed room it is preposterous to draw any inference of criminal conspiracy between Dr. Subrata Das and Smt. Aditi kanjilal in the absence of anything more. There is not a whisper of the frequency or duration of the visits allegedly made by Dr. Subrata Das to the residence of the deceased in his absence. There is not a whisper of when Dr. Subrata Das last visited the residence of the deceased in his absence. Chinta Das the maid allegedly stated that the door was sometimes closed which suggests that the door was at other times open.The purported statement under Section 161 of the Criminal Procedure Code of Smt. Chinta Das which was in any event denied in Court does not reveal any attempt on the part of the investigating officer to ascertain the circumstances in which the door was sometimes closed when Dr. Subrata Das visited the residence of the deceased. When there are visitors and food is being cooked doors are often kept closed to keep out smoke the pungent choking scent of certain spices and condiments the sound of grinding sizzling frying hissing of the pressure cooker etc. Similarly doors are also kept closed when utensils or clothes are washed as otherwise voices can get drowned in the noise of running water falling into metal and other containers clanking and clattering of utensils etc.There can never be any criminal conviction based on isolated truncated unexplained statements without examining the context in which the statements were made more so when the statements were made in answer to questions by the police at the time of interrogation. The statements would necessarily have to be construed in the context of the questions which were answered and not in isolation.There is not a scrap of evidence to show that the relationship of the deceased with his wife was strained. On the other hand there is evidence of normal husband wife relationship. The fact that the deceased took out an insurance policy making his wife the nominee shortly before the unfortunate incident as also letters seized from the residence of the deceased which were produced in course of trial show that the relationship between the deceased and his wife was normal.There is no evidence at all of any enmity between Dr. Subrata Das and the deceased or of any special intimacy between Mrs. Aditi Kanjilal and Dr. Subrata Das to lend support to the case of the prosecution that Mrs. Aditi Kanjilal conspired with Dr. Subrata Das and Dr. Kaushik Chakravarty to kill her own husband.Moreover it is incredible if not preposterous that Dr. Subrata Das should in conspiracy with Smt. Aditi Kanjilal kill her husband in front of his own wife his wife’s brother and his own seven/eight year old daughter who was obviously old enough to perceive that her father was throttling a man and pushing him into the water. Significantly thechild was never examined by the Investigating Officer.P.W. 5 a Havildar posted at BSMCH was examined on behalf of the prosecution. However nothing significant has emerged from his evidence. He merely deposed that their outpost was situated in front of the residence of the deceased. This witness stated that he knew the deceased and his wife but did not know if any other doctor visited the residence of the deceased or not. He claimed that he had last seen the deceased in the morning on 16th September 1990. On that day four doctors including the deceased and some ladies went for a picnic.The learned Trial Court very rightly found that the prosecution had not been able to adduce any evidence either documentary or oral to prove that there was any love affair or even noticeable intimacy between Smt. Kanjilal and Dr. Subrata Das.There were no eyewitnesses to the incident which had occurred on 16th September 1990. The prosecution had examined numerous boatmen and local residents but none of them have stated anything that supports the case of the prosecution.About 12 boatmen or local people were examined as Prosecution Witnesses. P.W. 4 a boatman who had allegedly been at the Pareshnath Ferry Ghat at about 3 p.m. has deposed that he found some people shouting and some boatmen searching for something. There were two women and a child. They told him that they had come for an outing and one amongst them who was swimming in the dam had drowned. This witness further deposed that the appellants were smelling of liquor and that this witness noticed that they were in mental agony. This witness was also declared hostile and subjected to cross-examination.P.W. 6 denied that he was a boatman but contended that he was a day labourer. He denied having searched for anyone in the water. This witness was also declared hostile by the Public Prosecutor. In cross-examination he denied having ever been interrogated in connection with the death of the deceased.P.W. 7 stated that he was an agricultural labourer who also worked as a boatman when he was not engaged in cultivation work. He however denied being present at the ferry ghat on 16th September 1990 and denied having searched for anyone. He was also declared hostile. In cross-examination he denied having made any statement to the police.P.W. 11 a resident of Pareshnath was also declared hostile and nothing emerges from his examination or cross-examination. He denied that he made statements to the police.P.W. 15 a boatman by profession has deposed that he was a boatman at Pareshnath Ferry Ghat. He further deposed that on 16th September 1990 four men along with two women and a child cried out to him saying “Oh boatman come sharp and save us”. P.W. 15 has stated that he rushed to that place but did not see anything. The persons who had shouted for help told him that one of their group had drowned in the water of the dam. The P.W. 15 along with others searched for that person but could not trace him. P.W. 15 was not able to identify the persons who were on the dock. The evidence of P.W. 15 a boatman who was not declared hostile does not lend support to the case of prosecution. Rather this witness supports the case of the defence.P.W. 16 Nitai Mudi another boatman of Pareshnath Ferry Ghat deposed that on 16th September 1990 he was there at the Pareshnath Ferry Ghat. Some persons who had been bathing in the water cried out that one of them had drowned. He did not see the man drowning as he was on a different side of the island but he searched for the deceased. In cross-examination he deposed that for two days the body could not be recovered. The body was ultimately recovered from a spot near the place which the boatmen had searched. He also deposed that the so called island was a rocky slope of the hills and there was embankment on the river-bed.P.W. 17 another boatman also deposed that some persons from Dugri island cried out for help shouting “save us save us”. This witness along with other boatmen rushed to the island with their boats. There were men and women. The boatmen reached at about 3 – 3:30 p.m. The persons told the boatmen that one of their group had drowned. The boatmen then searched for the body but in vain. This witness denied having seen any one throw any body into the water. This witness was also declared hostile.In cross-examination this witness denied that he was examined by the Investigation Officer. He also denied having told the police that he had seen the persons who were crying for help throw some one into the water. He deposed that he was not present at the time of recovery of the dead body. The dead body was recovered three days after the incident by divers from Kolkata. This witness also stated that the boatmen who were searching for the body of the deceased could not reach the bottom of the river-bed.P.W. 18 19 and 22 who claimed to be boatmen were all declared hostile. P.W. 18 deposed that it was not possible for him to say whether he carried any passengers of Bankura in his boat. At this stage he was declared hostile and cross-examined by the learned Public Prosecutor. In cross-examination he deposed that when he was waiting along with his boat at Deer Park Ghat some persons were shouting for a boat from the small island to go to Pareshnath Ghat. Hearing them shouting he came to that small island from Deer Park. This witness stated that he had been examined by an officer of Ranibandh Police Station but he denied having ever been examined by any C.I.D. officer from Calcutta. He denied having made the statements as suggested in cross-examination to the police. Nothing significant has emerged from the evidence of this witness. P.W. 19 another boatman who claimed that he along with Pramatha Nath plied a boat from Pareshnath Ghat to Deer Park and back from Deer Park to Pareshnath Ghat stated that he did not carry any doctors to the small island. He also denied having been examined by any police officer of Ranibandh Police Station or by any C.I.D. Officer. P.W. 22 stated that he was not there at the Pareshnath Ghat on the date of the incident. He stated that he did not ply his boat on that day. He also denied that he had been examined by the police. He denied having made any statement to the police.P.W. 35 Gaju Mahato a boatman deposed that on 16th September 1990 when he Tarani Bagdi and Kartick Singh were sailing their boat he heard that a person had drowned. He claimed to have helped in searching the drowned person. In cross-examination he deposed that divers dived into the water to search out the body. Some persons standing on boats were trying to help in searching for the body by pushing logs into the water. He could not however recall whether he had told the Investigating Officer that one person was swimming and others were standing in knee deep water deep splashing water at each other and that after a while they realized that a person had drowned. He could not recollect details of the incident. He could not recollect what exactly he had stated to the police.P.W. 30 Kartick Singh also a boatman deposed that he plied a boat at the Pareshnath Ghat assisted by Gaju and Turani Bagdi. He further deposed that on 16th September 1990 when he was returning after watching a football match he heard that a doctor had drowned in the dam. He deposed that the boat of one Gokul Singh had been used by the doctors to go to the island. Gokul Singh has apparently not been examined. This witness claims to have witnessed the recovery of the dead body of the deceased after about three days. This witness was a signatory to the seizure list. This witness deposed that he was told by other boatmen that many boatmen had tried to locate the dead body of the deceased on the day after the incident by using bamboos and Eucalyptus logs. He opined that it was quite possible that a log might have slipped from the hands of unskilled persons and fallen into the dam.P.W. 8 is a witness to seizure of some documents from Memorial Nursing Home. Those documents establish nothing except that the deceased was due to assist Dr. Debabrata De the P.W. 1 in an operation at the Memorial Nursing Home. The P.W. 9 is a witness to the seizure of an empty bottle of whisky with a cap and another separate cap from the Kangshabati Dam area which proves nothing but indicates that the appellants or some of them might have consumed whisky.P.W. 12 a police constable only deposed that Dr. Subrata Das had met him at the outpost and informed him that the deceased had drowned. P.W. Nos.13 and 14 were produced but neither examined nor cross-examined.P.W. 23 Samir Chakraborty was the diver-in-charge of M/s ABEE Engineering Corporation. He deposed that pursuant to the direction of Ambikapada Bhattacharyya the Managing Director of that company the P.W. 23 and three other divers Nakka Jogi Prabir Chandra and Subharanjan Saha came to Bankura from Calcutta in a police jeep on 17th September 1990 and they arrived at Mukutmonipur in the afternoon. At that time there were some local people and some police personnel at the Mukutmonipur Dam. The local people showed the divers the spot where the deceased was stated to have drowned. Mr. Jogi Mr. Chandra and Mr. Saha started to search for the body but they had to come out of the water for want of light after it became dark. On 18th September 1990 those three divers again dived into the said dam to search out the body and after continuous search Mr. Jogi located the body inside the dam. He came out of the water and another diver dived in but could not locate the body. He only found a piece of wooden log. Finally Mr. Jogi went inside the water of the dam again with a long nylon rope and fastened the body to the nylon rope. Then he again came out from inside the water but found the rope floating partly on the surface of the water. The rope was finally fastened to the body. The body dragged out of the water by pulling that rope as the divers sailed towards the bank in their boat. The body was placed on the bank of the dam by hand.This witness noticed that the deceased still had his spectacles on and was wearing an underwear. This witness could not recall the distance between the point where the dead body was located and the bank of the dam but the distance was considerable. He deposed that the length of the rope was about 30 to 40 ft.. The distance from the bank to the place of occurrence was about 70 ft.. The divers dived seven or eight times along with oxygen cylinders and then Nakka Jogi located the dead body. After repeated attempts the dead body was located. Some persons present at the time of search tried to help the divers to locate the spot by pelting stones after which the divers searched out the peripheral area.P.W. 24 Prabir Chanda another diver has also deposed that the body was pulled out with a rope while the boat sailed. This witness corroborated what the P.W. 23 had deposed. He stated that the deceased had his spectacles on and was in his swimming costume. He further stated that he did not find any injury mark on the body except that the face was bluish in colour. In cross-examination this witness stated that the dead body was located near a small island within Mukutmonipur Dam. The edge of the island was sloping and slanting. There were small plants and small trees on the said island. The depth of the water at the point where the dead body was located was about 10 meters. The place of occurrence was at a distance of about 70 ft. from the island. In cross-examination he also stated that when the dead body was brought near the bank of the dam some doctors lifted the body from the water. This witness has deposed that when the body was brought out its face was downwards inside the water and its back was towards the sky. After the dead body was taken out it was placed on its back facing the sky.P.W. 21 Bipin Mukherjee a constable posted at Ranibandh Police Station at the material time deposed that he had carried the dead body of the deceased to the morgue in a car. In cross-examination this witness deposed that the dead body of the deceased was brought to the morgue of BSMCH in a private car. He deposed that the dead body was placed at the back of the car and that it was not possible to place the dead body straight. Parts of the dead body had to be folded. The doctors who were present at the time of inquest placed the dead body in the car. The dead body was taken out from the car and carried away by the hospital staff. The post mortem was according to this witness completed at about 9 p.m.P.W. 27 is the owner of a studio who took four snaps of the dead body and handed over the negatives to the police. This witness deposed that he went to the island to take snaps of the deceased after crossing the Mukutmonipur Dam in a boat at about 1:30 - 2 p.m.. The police brought him to the island for taking photographs of the dead body. It took this witness about 15 minutes to reach the place of occurrence and another 5 to 10 minutes to cross the dam water to reach the island. He could not recollect at what point of time he had taken the photographs. P.W. 28 Ardhendu Sekhar Patra Sub-Inspector of police attached to Khatra Police Station deposed that he handed over the negatives to the CID. He could not say anything more.P.W. 29 Swapan Kumar Singh Sub-Inspector of police at Bankura deposed that Dr. Kousik Chakraborty had made an application to the S.D.O. Kangshabati Left Bank Sub-Division for permission to visit the dam along with his friends in vehicle No. WMB 1393 and the S.D.O. had given permission to be there for an hour from 2:40 to 3:40 p.m.. He tendered the application in Court.P.W. 31 Syed Abdul Kadir a Clerk in the office of S.D.O. Kangshabati Sub-division No.IV deposed that three persons all doctors of Bankura and a lady from Bankura went to his office and submitted an applicatiion for permission to enter the dam area in their car. He stated that he had given permission to them to enter the dam area in their car. He identified the application in Court. Similar permission was granted to Dr. Debabrata Dey on 16th September 1990 to go to the spot where the deceased had drowned.P.W. 33 Nahabat Bhunia an Upper Division Clerk of the Kangsabati Project deposed that he put his signature on the application submitted by a doctor from Bankura to enter into the Kangsabati Project Dam area in their car. Permission was granted. The permission was supposed to be shown to the gate man to enter the dam area by car. He however declined knowledge of what the gate man did.P.W. 32 Krishnapada Chatterjee a policeman posted at Pareshnath Camp of Mukutmanipur Dam deposed that in the afternoon he was informed that a doctor had drowned and he reported to the matter to the Mukutmonipur outpost. He did not report the matter to the Kangsabati Project Officer or to the Khatra Police Station. In cross-examination he deposed that he was not present at the checking gate but he was inside the Pareshnath Ghat Camp when Sudhir Bagdi informed him that a doctor had drowned whereupon he went to the outpost where he saw Pradhan Sahadeb Mahato. He deposed that ‘kheyaghat’ was at a distance of half a kilometer from their camp office.P.W. 34 Samir Ghosh an insurance agent residing at in Calcutta deposed that the deceased had opened an Insurance policy of 25 000/- in the year 1990 making his wife Mrs Aditi Kanjilal as nominee. He paid only one yearly premium of Rs.1 700/- and died thereafter. Apart from the P.W. 1 Dr. Debabrata De some other doctors were also examined. P.W. 10 Dr. S.P. Chatterjee only deposed in cross-examination that Dr. Subrata Das and Dr. Kanjilal both were surgeons and Dr. Kousik Chakraborty was an Orthopedic Surgeon. This witness said nothing more.P.W. 20 Ajit Ganguly the Chairman of the Hospital Monitoring Management Board of BSMCH has not stated anything significant. He only deposed that at the time of the incident Dr. Debarata Dey was the Head of the Surgical Department the deceased was R.M.O. of Surgical Department of that Medical College and Dr. Subrata Das was a visiting surgeon of that department. This witness claimed that after arrival of the dead body of the deceased the Principal and the Superintendent consulted him regarding the holding of the post mortem examination. He deposed that post mortem was done by Dr. J.N. Dey in the presence of Dr. Tapas Bose and Dr. Batabyal.In cross-examination he admitted that he had not entered the morgue but been waiting near the morgue in the field. This witness deposed that after arrival of the dead body of the deceased the deceased was honoured with floral tributes including wreaths garlands bouquets and loose flowers. He further stated that he had not entered the room where the post mortem was conducted. Hence it was not possible for him to say what was the arrangement of lighting inside the post mortem room. He also did not know whether there was any dispute regarding holding of the post mortem.P.W. 20 could not recollect whether he saw Dr. Debarata Dey at the morgue at the time of post mortem. He denied knowledge of who had accompanied the deceased to Mukutmonipur. He also denied having made any comment about the liability of any person behind the death of the deceased. He denied that he had told the police that it was a case of cardiac arrest as per the opinion of Dr. Debabrata Dey.P.W. 20 categorically denied the hospital authorities particularly the Principal the Superintendent or this witness or any other doctors had any doubts with regard to the ability or competence of Dr. J.N. De. As the deceased was a doctor the post mortem was held by three doctors.P.W. 25 Dr. Ajit Kumar Pradhan has in a nutshell deposed that he was in the same hospital as the deceased. He was posted as Medical Officer in-charge of the Blood Bank of BSMCH. He was a neighbour of the deceased and he knew the deceased well. He occasionally visited the residence of the deceased. The deceased was a very good swimmer and used to swim in the Ganga when he was at Behrampur. Dr. Pradhan was also a witness to the seizure list of some of the articles which were seized from the residence of the deceased on 16th January 1991.P.W. 36 Dr. J.N. Dey the Head of the Department of Forensic and State Medicine BSMCH conducted the post mortem examination of the body of the deceased. P.W. 36 has deposed that as trouble had cropped up before holding the post mortem and the case was sensitive he formed a Board along with Dr. T.K. Basu lecturer of his Department and Dr. S. Batabyal a Demonstrator of his department. He deposed that apart from Dr. T.K. Basu & Dr. Batabyal the then Principal of BSMCH Dr. Shyamal Banerjee the then Superintendent of BSMCH Dr. Satyendranath Dutta and the then Head of the Department of Pathology Dr. Yoggeswar Sengupta were also present. P.W. 36 stated that he conducted the post mortem at 4:45 p.m.. P.W. 36 deposed that he found the following injuries on the dead body.“1. An abra-sion 1” x ” over right side of forehead.2. An abrasion 2” x ” over right mallor prominence.3. An abrasion 1” x ” over bridge of nose.4. An abrasion 3” x 1” over left mallor prominence.5. A crecintic abrasion .2” x .1” placed obliqely over upper part of left side of neck 2” below and 1” to the right of left angle of mandible.6. A crecintic abrasion .1” x .1” placed obliquely over left side of upper part of neck 1.2” below and ” to the right of left angle of mandible.7. An abrasion .1” x .1” over left side of upper part of neck 1” below and ” to the left on left angle of mandible 1.5 to the right of mid line of front.8. An abrasion .2” x 1” over mid part of right side of front of neck ” to the right of thyroid prominence.9. An abrasion .1” x .1” over mid part of right side of neck 1.2 to the right of mid line of front 2.5” below and ” to the left of right angle of mandible.10. Two small abrasions .1” x .1” over mid part of right side of neck ” below the injury no. 9.11. An abrasion .2” x .2” just below the thyroid prominence at mid line.12. An abrasion .1” x .1” over mid part of right side of neck 3.2” below 1” to the left of right angle of mandible.13. An abrasion .1” x .1” over lower part of neck 2” above .2” to the right of supersternal notch.14. An abrasion .2” x .2” at the right side of lower part of neck 3” to the right and ” above to the medial end of the clavicle.15. An abrasion .1” x .1” at right side of lower part of neck 2” to the left and ” above the acromial end of clavicle.16. An abrasion .2” x .1” over the upper part of right side of front of chest over third inter costal space.17. An abrasion ” and ” over right side of the front of Chest 1” below the acrominal end of clavicle.18. An abrasion 1” x ” over upper part of front of chest at mid line 2” below the supersternal notch.19. An abrasion .2” x 1” over mid part of front of chest 2.2” below to the right side of front of mid lin 3” below and 2” to the right of acrominal end of clavicle.20. An abrasion .2” x .2” at fifth inter costal at left and laternal axillary fold.”On dissection of the dead body the P.W. 36 found twelve internal injuries as described by him. He found extravagated clotted and liquid blood had infiltrated the tissues of various parts of the neck clavicle area parts of chest back larynx trachea etc.P.W. 36 deposed that all the injuries showed signs of vital reaction. No other injuries could be detected under magnifying lens. The abrasions were black and/or reddish in colour. At the time of postmortem P.W. 36 did not find any mud water or sand in the lower respiratory tract or stomach.P.W. 36 opined that the deceased did not drown to death. He opined that the death was due to manual strangulation ante mortem and homicidal in nature. He was of the view that the injuries were ante mortem. He claimed that he found ante mortem nail marks on face and neck of the deceased. He deposed that further opinion was to be given after the report of the chemical expert.Even though the PW 36 opined that the abrasions were due to fists and blows by hand and not contact with rough and/or rocky or other blunt objects he did not mention the nature of the abrasion. He could not also say whether the neck of the deceased was caught from the front or from behind.In cross-examination the P.W. 36 stated that the external and internal injuries were not caused at the time of searching out the dead body from inside the water. This witness deposed that the body was in early stage of decomposition. The vertebrae and skull were intact but membranes were found decomposed. Brain and spinal cord were found in early stage of decomposition but spinal cord was intact. Against column thorax wall the injuries were as noted in the report. Rib and cartel-edges were intact. Plurae was decomposed. Larynx and trachea were decomposed. Hyoid bone and cartel-edges are found as noted. Lumen contained no mud and sand and the weight of the right lung was 400 grm and left lung 300 grm and both were found decomposed but not edematous. The heart was decomposed. Both sides were found empty. Vessels were found decomposed. Abdomenal wall was found decomposed. Peritroium was found decomposed. Mouth pharynx and oesophagus were found decomposed. No deformity or disease was detected on the dead body. No fracture was noted in his evidence.P.W. 36 deposed that the dead body was received for post mortem at 4:30 p.m. Post mortem was started at 4:45 p.m. The post mortem report was completely written in his handwriting and three copies of post mortem report were prepared at a time one original and other two carbon copies. The original copy of the post mortem was sent to S.P. Bankura. The post mortem which is exhibited is the third copy and the second copy is in the P.M. book. He has stated that no one signed the post mortem report.P.W. 37 Dr. Suddhodhan Batabyal who was at the time of the incident posted as Head of the Department of FSM BSMCH and was one of the members of the Board conducting the post mortem examination of the body of the deceased deposed that Dr. J.N. Dey had held the post mortem in his presence and in the presence of other Board Members. This witness stated that Dr. J.N. Dey noted down the external and internal injuries found on the dead body of the deceased after pointing the same out to the Board Members. He further stated that all the injuries were found ante mortem in nature. After considering all the injuries found on the dead body of the deceased Dr. J.N. Dey arrived at an objective finding and opined that the death of Dr. Swapan Kanjilal was homicidal in nature and the injuries were ante mortem in nature and caused by manual strangulation. This witness also concurred with such view.In cross-examination P.W. 37 stated that he did not sign the post mortem report as it was not the rule that board members should sign if there was a Head of the Department. This witness could not recollect whether he had received any written order requiring him to attend the post mortem as Board member. He also could not recollect how much time was taken to complete the post mortem examination. He also could not say what type of light was used for holding the post mortem examination. He however denied the suggestion that he was not actually present at the time of the post mortem.This witness deposed that while the post mortem examination was going on Dr. J.N. De was recording his findings in rough paper and later after the post mortem examination was completed the report was prepared on the basis of the notes in the rough papers. He claims to have compared the notes with the final report. He clearly stated that there was no fracture noted in the post mortem report.P.W. 38 Dr. Joggeswar Sengupta deposed that in September 1990 he was posted at BSMCH as Professor and Head of the department of Pathology. He stated that he was a member of the Board constituted for conducting post mortem over the body of the deceased. P.W. 38 deposed that at the time of holding post mortem internal and external injuries were found on the body of the deceased. These injuries were pointed out to him by Dr. J.N. Dey. The then Principal of BSMCH Dr. Shyamal Banerjee and the then Superintendent of BSMCH Dr. Satyendranath Dutta were also present at the time of post mortem. He deposed that after completion of the post mortem of the deceased the doctors were satisfied that the injuries were ante mortem in nature but no final opinion of death was expressed and the viscera was sent to the Forensic Department for examination. In cross-examination he reiterated that he did not give any final opinion on the cause of the death of the deceased. He further deposed in cross-examination that findings of a Medical Board are required to be signed by all the members of the Board. In this case all the four members i.e. Dr. J.N. Dey Dr. Shyamal Banerjee Dr. Satyendranath Dutta and this deponent had signed the post mortem report. However on perusal of the post mortem report tendered in Court as Exhibit 9 he stated that the post mortem report did not bear his signature.The P.W. 39 Dr. Shyamal Kanti Banerjee deposed that in September 1990 he was posed as Principal BSMCH and Dr. Satyendranath Dutta was the Superintendent. The deceased was posted as surgeon at the same hospital. This deponent deposed that as per his order a Board was formed consisting of himself Dr. Tapas Bose Dr. Batabyal Dr. Yoggeswar Sengupta and Dr. Satyendranath Dutta the superintendent of BSMCH for holding the post mortem. In the presence of the Board Members the autopsy surgeon Dr. J.N. Dey showed him the external and internal injuries of the deceased. All the ingredients of homicidal death were found during post mortem.In cross-examination P.W. 39 deposed that as per the Rules the Board Members signed the report. He stated that he had signed the post mortem report which was prepared along with two carbon copies of the original. He further deposed that it was the procedure to sign when the carbon was in place and he had signed the original copy and found that his signatures were there in all the copies.P.W. 39 admitted that the post mortem report tendered as Exhibit 9 did not have his signature. He also deposed that when there was no signature in the report there was no authenticity of the report as presented. In cross-examination this deponent stated that apart from the post mortem report which was signed by all the members no other post mortem report was prepared.P.W. 39 deposed that the post mortem was completed during night hours and it was done under the light of three to four pressurized kerosene lanterns (hazacs) for some time as there was load-shedding. This witness however denied the suggestion that there was any conspiracy of doctors prior to holding post mortem. He denied that the post mortem report was falsely prepared by Dr. J.N. De. He also denied having informed C.I.D. that Dr. Debarata Dey had suggested that the death of the deceased was suspicious.The P.W. 40 Dr. Satyendranath Dutta another member of the board deposed in cross-examination that it was the rule that all the members of the board would have to sign the post mortem report. On being shown Exhibit 9 he admitted that his signature was not there. He deposed that post mortem report was prepared in triplicate one original and two carbon copies. The Board Members were required to sign the post mortem report on all the copies.P.W. 41 Dr. Satya Ranjan Dey deposed that he was posted as Medial Officer of BSMCH. He knew the deceased who was of the same department. He deposed that he went to see the dead body of deceased after it was recovered and he noticed that the body was swollen and there was discolouration near the chest. He deposed that he was mentally upset to see the body of the deceased which was later brought to the morgue of BSMCH in a truck. He deposed that he did not find any prominent injury on the dead body. He also deposed that he had not seen how the body was removed from the main land to the island. He could not recollect how he had reached the island from main land but possibly he had reached their by boat. The P.W. Nos. 42 43 44 45 and 47 were police witnesses who were associated with the investigation of the case.P.W. 46 Haladhar Sahu who had worked at the maternal home of the deceased from where the deceased had been educated and claimed to have taught the deceased swimming deposed that the deceased was a good swimmer. This witness was of the view that having regard to his swimming skill the deceased should not have drowned. This witness was admittedly not present at the time of the incident. His evidence is therefore not of much value since many experienced swimmers are known to have drowned for various reasons including sudden illness physical discomfort pain or injury caused by marine creatures floating objects etc. In fact in his cross-examination this witness admitted that good swimmers could also drown.P.W. 26 only deposed that Mrs. Aditi Kanjilal was her daughter and she was an accused in connection with this case. The learned Public Prosecutor declined to examine this witness contending that she had been gained over for which he did not want to examine her. The Defence Witness 1 Gobindalal Banerjee appointed as Executive Engineer and Technical Engineer later appointed as Superintendent Engineer of Kanshabati Circle at Mukutmonipur Dam has given a thorough description of the dam. What emerges from his evidence is that the water of the said reservoir generally becomes muddy in September. He however denied any personal knowledge of the incident of the death. He deposed that the embankment is filled with boulders without mortar.The Defence Witness 2 Soumitra Kumar Sen deposed that he had examined the power of the spectacles on the eye of the deceased being exhibited 4. The power was –9.00 D SPH (Approx) on the right lens and 7.00 D SPH with –1.00 D Cyn 80o (Approx) on the left lens. His evidence only shows the condition of the eyes of the deceased - a possible reason why the deceased might have had his spectacles on while he was swimming.The Defence Witness 3 Dr. Apurba Nandi with specialization in Forensic Medicine who claimed to have acted as Chairman and Member of many Medical Boards for post mortem examinations deposed on the procedure for holding post mortem examination and also gave his opinion with regard to the characteristics of death by strangulation asphyxiation cardiac attacks and/or cardiac failure with a view to demonstrate that the death of the deceased might not have been on account of ante mortem manual strangulation.This deponent had written two books Principles of Forensic Medicines and Investigation Cases on Offences on Human Body in the years 1995 and 1998 respectively. He deposed that generally in case of strangulation there is protrusion of eye-balls and tongue which was not noticed in the case of the deceased upon post mortem. This deponent stated that the features found on post mortem examination in case of axphyxial death are similar to the features found in case of dry drowning. He also deposed that there is possibility of cardiac arrhythmia due to consumption of alcohol.After analyzing the evidence the learned Trial Court categorically held and in our view rightly that there was nothing to establish that there was any love affair or special intimacy between Smt. Aditi Kanjilal and Dr. Subrata Das.The learned Trial Court found that both Smt. Aditi Kanjilal and Dr. Subrata Das who was accompanied to the dam by his wife child and brother in law (wife’s brother) had normal relationship with their respective spouses.In the judgment and order of sentence and conviction under appeal the learned Trial Court noticed differences between P.W. 36 Dr. J.N. De and some other doctors over the post mortem of the deceased and accordingly recorded:“…admittedly trouble cropped up regarding P.M. examination of deceased between this p.w. and Dr. Shyamal Mukherjee Dr. Debu De Dr. Arobinda Bhattacharjee who expressed it as a case of drowning while this p.w. on examining the dead body would find it a case of homicide…”The crux of the reasoning of the learned Trial court that led to the conviction is set out hereinbelow :“Admittedly the accused persons consisting of six persons with Dr. Swapan Kanjilal and d/o Dr. Subrata Das & Sanghasree Das went to Mukutmonipur Dam area specially at the island on 16.09.90 for an excursion by Ambassador Car W.M.B.1393 with permission from the Dam Authority within 2.40 – 3.40 and no other excursion party or person then was present with them on the said island quite isolated from the Dam area. Evidences of the witnesses with their cross-examination went to show that dead body of Dr. Swapan Kanjilal was at last recovered on 19.09.90 from the water of the said Dam 20” ft. away from the said island with decomposition with 20 external injuries and 12 internal injuries. Accused persons in such a case were obliged either to give plausible explanation or to own up the responsibility in respect of such external injuries and internal injuries following some of the external injuries on the said dead body of 5’ – 10” in height when weight of the said dead body was not mentioned in the P.M. report. The Court can legally presume that in Indian climate in case of male 1’ft. was equal to 12 kgs. weight so weight of said deceased doctor was to some extent 72 kgs. (6'ft’x 12 kg. = 72 kgs) as normal health. Whether drunken or not Dr. Swapan Kanjilal was as a member of excursion party at the said island of the said Dam after the time of his last seen alive. It is presumable to draw inference regarding culpability of the accused persons in commission of the offence based on the theory of last seen together. In the process of analysing the evidences and coming to the conclusion regarding complicity or innocence of the accused persons it is presumable for the court to draw logical and legal presumption from the proved fact. This principle is acknowledged in Sec. 114 of Evidence Act which permits the court to presume the existence of a fact which is likely to have happened having regard to the common course of natural events and human conduct. This theory is an explanation to the general rule embodied in Sec.60 of the Evidence Act and oral evidence should be direct. The theory of last seen together can be legitimately invoked in a case where the possibility of involvement of stranger can be excluded and the facts established; lead to the conclusion that the Accad. Persons only are the authors of the crime. The accused persons in this case simply evading their responsibility of commission of any offence on the body of Dr. Swapan Kanjilal taking a plea that some 20’ ft. away from the said island said doctor went swimming wearing ajangia/panty with spectables on his eye when drunken was drowned feeling helpless having sudden heart attack.”The learned Trial Court accepted the view of the autopsy surgeon that the internal and external injuries were ante mortem and held the accused appellants responsible for the death of the deceased since they offered no explanation for the injuries though they were with the deceased at the time of his death.The learned Trial Court noted the differences of opinion between the autopsy surgeon Dr. J.N. De (P.W. 36) with various well-known authors of books on Forensic Medicine including Dr. Reddy as also the differences of the views of P.W. 36 with those of some other doctors. The learned Trial Court preferred the opinion of the PW 36 to that of others on the ground“…p.w. 36 was cross-examined by ld. Defence lawyer exhaustibly with citation of opinion of different doctors on their different books though Dr. J.N. De/p.w. 36 practically for every time denied those suggestions as an experienced doctor on dissection of human bodies within his long service period even after retirement. P.W. 36 rather confirmed the fact that death of Dr. Swapan Kanjilal happened due to throttling with 20 external and 12 internal injuries some of which followed external injuries though the dead body of said doctor was just decomposing on some parts of its body as seen after its recovery on 19.09.90. To substantiate the defence story accused persons took plea that P.M. was fake not concurred by other doctors present done during load shedding within Bankura morgue area. This matter was also totally denied by p.w. 36 whose head could not be purchased by the accused persons specially by two doctors such as Dr. Subrata Das and Dr. Kousik Chakravorty who were of anti-party to p.w. 36. From the evidence with cross-examination of p.w. 36 it is seen that P.M. was done by p.w. 36 on dead body of Dr. Swapan Kanjilal in presence of some doctors who during their cross-examination took plea about non-concurring of P.M.”Section 114 of the Evidence Act enables the Court to presume the existence of any fact which it thinks is likely to have happened having regard to the common course of natural events human conduct and public and private business in their relation to the facts of the particular case. The Court may at its discretion draw certain presumptions. Whether the Court will draw any presumption or not will depend on the facts and circumstances of the case. There is no hard and fast rule with regard to the circumstances in which any fact or facts may be presumed to exist. Each case has to be determined according to its own peculiar facts. There cannot however be any missing link in the prosecution case.There can hardly be any doubt that it was permissible in law for the learned Court to draw a presumption from a proved fact taking into account the common course of natural events and human conduct. In law inference of the culpability of an accused might be drawn by invoking “last seen together theory”.The question is whether in the facts and circumstances of this particular case having regard to the materials on record the Court could have drawn inference of culpability of the accused persons in commission of the offence based on the theory of “last seen together”.In our view there is no proved fact which could logically lead to the presumption of culpability of the accused appellants. The only proved facts in this case are that the deceased and all the accused appellants had gone to the dam the deceased was in the company of the accused appellants the deceased had died and the dead body of the deceased was recovered from under 10 meters of water three days after the deceased was reported to have drowned.We are of the view that the judgments and order under appeal is based on suspicion which arose from the opinion of the autopsy surgeon Dr. J.N. De in the post mortem report with regard to the cause of death of the deceased.The learned Trial Court appears to have been swayed in favour of the opinion of the autopsy surgeon by reason of his consistent denial of suggestions that the deceased might have died as a consequence of drowning due to fatigue exhaustion physical illness agony pain or discomfort sudden death by reason of cardiac failure or other similar reasons.From the oral evidence of PW 36 it is absolutely clear that the PW 36 has taken a view that is different from the view expressed by Dr. Reddy and other well known authors in their books and essays on Forensic Science. This was not therefore one of those clear cut cases where there could be only one conclusion with regard to the cause of the death. Many of the signs of manual strangulation such as fracture of hyoid bone presence of frothy mucus in the larynx and trachea and protrusion of tongue and eye balls were not found in post mortem.In cross-examination P.W. 36 inter alia admitted that in case of strangulation and violent asphyxial death ‘turdue’ spots are found in lungs brain pericardium etc. but in this case no turdue spots were found in the body.P.W. 36 was confronted with the views of different authors in treatises and textbooks on Forensic Science. The suggestions put to P.W. 36 in cross-examination were based on books written by reputed scholars/authors of Forensic Science such as Dr. J.B. Mukherjee Dr. Apurba Nandi Dr. Modi Dr. Rao Dr. K.S. Narayan Reddy. This witness did not agree with many of the observations and views in those books and denied most of the suggestions without indicating the exact reasons for his difference but harping on his vast practical experience of 34 years in conducting post mortem examinations.A careful analysis of the oral evidence of the P.W. 36 Dr. J.N. De particularly in cross-examination reveals that some of the factors noticed during the post mortem of the deceased on which the P.W. 36 relied to form the opinion of death by manual strangulation and/or fists and blows could be found in cases of death by drowning. In cross-examination this prosecution witness categorically stated that the body had decomposed. When the body is decomposed it may not be possible to definitely distinguish post mortem injuries and abrasions from ante mortem ones.P.W. 39 Dr. Shyamal Banerjee the Principal of BSMCH and Dr. Satyendra Datta the Superintendent both deposed that post mortem was completed during night hours and it was done under the light of three to four ‘hazacs’ that is pressurized kerosene lanterns for sometime as there had been a power cut in the hospital area.The learned Trial Court found that the body of the deceased had been recovered on 19th September 1990 from the dam at a distance of about 20 ft. away from the island. The two professional divers PW 23 and PW 24 had however both deposed that the body had been recovered about 70 ft. away from the island.The learned Trial Court accepted the finding of the autopsy surgeon that there were 20 external injuries and 12 internal injuries on the body of the deceased and was of the view that in such a case the appellants were obliged to give a plausible explanation for the injuries or alternatively to own up their responsibility for such external injuries and internal injuries. The learned judge drew presumption of culpability of the accused person on the basis of the ‘last seen together’ theory since the appellants were unable to explain the external and internal injuries.Observing that Section 114 of the Evidence Act permitted the Court to presume the existence of a fact which is likely to have taken place having regard to the common course of natural events and human conduct the learned Trial Court concluded that the theory of ‘last seen together’ could legitimately be invoked in a case where the possibility of involvement of stranger could be excluded. The learned Judge found that the facts established led to the conclusion that the accused persons were the only authors of the crime.The body was admittedly fished out of a rocky area after almost three days by fastening a rope. The divers have deposed that the body was pulled with the rope while the boat sailed towards the island. There is evidence on record to the effect that stones were pelted and logs were used to search out the body of the deceased. While the divers dived into the water persons standing on boats pelted stones to identify the spot where the deceased was said to have drowned. The possibility of a sudden natural death or death by drowning and subsequent post mortem cuts and injuries caused by stones rocks logs ropes etc. cannot be ruled out.The learned Trial Court failed to appreciate that there were missing links and inherent improbabilities in the case of the prosecution and has adopted a rather contorted and biased approach to natural course of events and ordinary human conduct ignoring some vital evidence on record including the evidence of the professional divers from Calcutta P.W. 23 and P.W. 24 which indicate that the body of the deceased was brought out from under the water at the place where the deceased was stated to have drowned which was about 70 feet away from the island. When a sudden unexpected incident of drowning takes place some distance away from the others who were having fun amongst themselves at the shallow end of the water near the bank it is hardly possible for them to say what exactly caused the drowning.Moreover scuffle and manual strangulation could not have taken place at a distance of 60/70 feet away from the island where the water was about 10 meters deep. If the deceased had been strangled on the island his body would not have been recovered about 70 feet away from the bank where he was stated to have drowned. The body of the deceased could not have been flung 70 odd feet.There is not a scrap of evidence to show that there was any enmity between the deceased and Dr. Subrata Das or between the deceased and Dr. Kaushik Chakravarty. Even assuming that Dr. Kaushik Chakravarty or Dr. Subrata Das had any enmity towards the deceased there is no answer to the question of why the wife of the deceased Smt. Aditi Kanjilal should assist the said doctors or try to save them at her own peril and risk of conviction. The learned Trial Court found that there was no proof of any affair between Dr. Subrata Das and Smt. Aditi Kanjilal.The next question is even if there were any romantic involvement between Dr. Subrata Das and Smt. Aditi Kanjilal as suggested by the Prosecution during the Trial would Dr. Subrata Das going by the theory of normal human conduct and natural course of events get rid of his paramour’s husband in the presence of his own wife wife’s brother and his own 7/8 year old child and get his wife and her brother’s support? Would Sm. Sanghasree Das and Sri Preethubrata Tarafder be so magnanimous that they would risk their own conviction and jeopardize the future of 7/8 year old Sangeeta to support the licentiousness of Dr. Subrata Das? Moreover why would a total outsider Pulak Roy or for that matter Dr. Kaushik Chakravarty get involved? Even if Dr. Subrata Das and Dr. Kaushik Chakravarty had any common enmity towards the deceased what motive could Pulak Roy and Preethubrata Tarafdar have had in murdering the deceased?There is no answer to these questionsThe Trial Court however rejected the submission of Defence Counsel that the post mortem was done during load-shedding observing that this had totally been denied by P.W. 36 “whose head could not be purchased by the accused persons specially by the two doctors Dr. Subrata Das and Dr. Kousik Chakravorty who were of anti-party to P.W.36”. There is no evidence at all showing that these two doctors tried to purchase any one. Even P.W. 36 has not stated so in his evidence.The learned Court found “From the evidence with cross-examination of P.W. 36 it is seen that P.M. was done by P.W. 36 on dead body of Dr. Swapan Kanjilal in presence of some doctors who during their cross-examination took plea about non-concurring of P.M. though said doctors were present as death of Dr.Swapan Kanjilal grieved the hearts of people of Bankura who assembled by the side of Bankura morgue at the time of dissection of said dead body. Dr.Swapan Kanjilal was a very familiar doctor of B.S.M.C. & Hospital and also of Bankura town with his best operation work. Dr. Subrata Das was a ring leader amongst the accused persons who with the help of other accused persons even with help of his wife and Aditi Kanjilal did the cruel offence by throttling Dr. Swapan Kanjilal making him drunken then injuring him externally killing him threw' him within water”.The learned court concluded that the appellants Dr. Subrata Das and Dr. Koushik Chakravorty were the main preceptors of the entire drama which ended in the death of the appellant Aditi Kanjilal’s husband for “hidden reasons best known to them”.The learned Court assumed that to camouflage this entire incident Dr. Subrata Das took the plea that the deceased had drowned when he was swimming in the dam in a drunk condition due to sudden cardiac arrest.As observed hereinbefore there was no eye witness to the incident. There is no evidence of any enmity of the accused appellants or any of them with the deceased. It is not understood how the learned Trial Court could have arrived at the finding that Dr. Subrata Das was the ringleader amongst the accused appellants or that he committed the cruel offence of throttling the deceased. The purported findings are totally conjectural and based on surmises.The learned Court below held that this was not a case of dry drowning as had been argued by the defence counsel. Rather this was a case of murder by throttling as nail marks were found on deceased with external injuries mostly on the head nose neck as well as internal injuries. Had it been a case of dry drowning the deceased who knew swimming would try to save his life till he last breathed and in that case the spectacles which he wore would not remain on his eyes as the said dead body was recovered three days later. The court drew adverse inference against the appellants since the dead body was fished out after three days with spectacles on his eyes.The finding that the learned Trial Court could presume that the accused persons as fools fixed the spectacles on the eyes of the deceased with a view to attention is not based on any evidence on record. The dead body was admittedly recovered by professional divers from Calcutta after three days. The divers have deposed that when the deceased was brought out he still had his spectacles on.The learned Court below should have appreciated that the onus was on the prosecution to prove the accused appellants guilty beyond all reasonable doubt. It was not for the accused appellants to prove themselves innocent. The learned Court below erred in concluding that the injuries were ante mortem and homicidal injuries inflicted by the accused appellants just because the accused appellants could not prove that the external injuries were inflicted by rocks fish or any other marine creatures.From the judgment and/or order of conviction and sentence under appeal it appears that the suspicion of the Court was aroused since it was not clear why the deceased should have gone for an outing instead of discharging his duty at the Memorial Nursing Home of Dr. Deborata Dey when he had fixed operation on 16th September 1990.The learned Court could not find any answer to the question why the deceased attended the picnic along with the accused appellant instead of discharging his duty of performing an operation at the Memorial Nursing Home where he was scheduled to assist Dr. Dey. The Court therefore assumed that the deceased was not at all willing to go for the outing. The appellants conspired with each other to compel the attendance of the deceased doctor.The learned Court also drew adverse inference against Smt. Aditi Kanjilal for not being present at the time when her husband’s body was brought out of the water observing that “it was within her knowledge that the said body would be recovered by divers of Calcutta on 19th September 1990”. The learned Court found this “action of Smt. Aditi Kanjilal was totally suspicious”.It is not understood how the learned Court below arrived at the conclusion that Smt. Aditi Kanjilal knew that the body of her husband would be recovered by divers on 19th September 1990. It is a matter of record that the alleged drowning took place on 16th September 1990. Divers from Calcutta arrived on 17th September 1990. They started search for the body on 17th September 1990 searched the whole day on 18th September 1990 and ultimately succeeded in bringing out the body from the water at about 10:45 a.m. on 19th September 1990. There is not a scrap of evidence to show that Smt. Aditi Kanjilal was informed of the possibility of the recovery of the body of the deceased on 19th September 1990.With the greatest of respect the learned Court below drew an inference which was not only wrong but bordered on absurdity. It is ridiculous to expect a young wife who had lost her husband only three days ago in tragic circumstances to go and stand at the bank of the river/dam in anticipation of recovery of her husband’s dead body the condition of which was not known.There is no evidence with regard to the mental state of Smt. Aditi Kanjilal during that period. It is only to be expected having regard to the common course of natural events that Smt. Aditi Kanjilal should have been in a state of mental shock and stupor. The adverse inference drawn against Smt. Aditi Kanjilal for not being at the bank of the river/dam at the time of recovery of her husband’s body is in our view perverse.Aditi Kanjilal was never questioned why she was not there when the body of the deceased was fished out. There is no evidence showing that Smt. Aditi Kanjilal was totally unaffected by the death of her husband. May be as in almost all cases of death of a husband Aditi Kanjilal was advised by friends relatives and well-wishers to stay at home. May be she was given sedatives. Moreover no question was asked either to Aditi Kanjilal or to any of the other appellants or to anyone else to ascertain whether Aditi Kanjilal went to see her husband after the body was recovered.The learned judge concluded that there was no evidence on record that the deceased committed suicide. Rather it was a case of homicide not a case of any accident. The conclusion of homicide is apparently based on the last seen together theory coupled with the opinion of the P.W. 36 in the post mortem report.There are serious discrepancies in the oral evidence given by the doctors who constituted the Board for post mortem examination of the body of the deceased. The autopsy surgeon P.W. 36 deposed that the original post mortem report was signed by all the doctors present at the time of post mortem. The carbon copies were not signed by them.P.W. 37 deposed that he did not sign the post mortem report as there was no rule that all the members of the Board should also sign the report when the Head of the Department was there P.W. 38 however deposed that findings of a Medical Board were required to be signed by all the members of the Board and in this case all the members had signed the post mortem report.P.W. 39 the Principal of BSMCH under whose orders the Medical Board was constituted deposed that as per the Rules the Board members were all required to sign the report along with carbon copies while the carbon was in place and this was done. He stated that his signature was there in all the copies. P.W. 40 the superintendent of the hospital and a member of the Board also stated that the Board members were required to sign all the copies of the post mortem report. The post mortem report tendered in Court as Exhibit 9 was only signed by P.W. 36 but not the other doctors who constituted the Medical Board.The submission of learned counsel appearing on behalf of the respective appellants that the opinion expressed in the post mortem report was motivated deliberately distorted and prompted by animosity of Dr. J.N. Dey with Dr. Subrata Das and Dr. Koushik Chakraborty is difficult to accept. Just as there is no evidence of any enmity between the deceased and Dr. Subrata Das or the deceased and Dr. Koushik Chakraborty or any other appellants. There is no evidence of any enmity between Dr. J.N. Dey and Dr. Subrata Das or between Dr. J.N. Dey and Dr. Koushik Chakraborty. Even assuming that the accused doctors and the autopsy surgeon belonged to different associations or had any professional rivalry there was no reason to assume that the post mortem was tailored just to implicate the two accused doctors in charge of murder.A careful analysis of the evidence would show that the respondent No.37 concurred in the opinion of P.W. 36 that the injuries were ante mortem and homicidal in nature. P.W. 38 who deposed that he did not give any final opinion on the death of the deceased deposed that all the members of the Board were satisfied that the injuries were ante mortem in nature but did not form any final opinion on the cause of the death. P.W. 39 the Principal of BSMCH who fairly admitted that there was load-shedding for sometime while the post mortem was in progress and the post mortem was done under the light of pressurized kerosene lanterns (hazacs) also deposed that all the ingredients of homicidal death were found during post mortem. This witness also denied that there was any conspiracy among doctors.The opinion on the cause of the death of the deceased given in the post mortem report was not final but subject to the report of chemical examination of the viscera which was not produced at the trial. P.W. 37 a member of the Medical Board deposed that on post mortem examination of the body of the deceased all the members of the board were satisfied that the injuries were ante mortem in nature but no final opinion was given as the viscera had been sent for examination.The evidence adduced and in particular the evidence of the autopsy surgeon himself reveals that the body had decomposed. Once decomposition of the body sets in many of the features found in certain types of death may not be visible. Moreover the Principal and the Superintendent of the Hospital who were members of the Medical Board have both deposed that for some time post mortem examination had to be done under three or four pressurized kerosene lanterns (hazacs) since there was power cut in the hospital area.The opinion of a team of doctors with regard to the cause of the death of the deceased upon post mortem examination is only an opinion based on the study of certain features noticed in the dead body. The opinion cannot conclusively establish the cause of the death and more so in a case like this where there are views of experts including renowned authors of Forensic Science suggesting that the features found in the dead body in case of asphyxial death are similar to the features found in the dead body in case of dry drowning that consumption of alcohol can lead to cardiac arrhythmia and sudden deathThe finding of the learned Court that the accused appellants managed the investigating officer to prepare an inquest report in their favour overlooking the external injuries is also not based on any evidence on record. On the other hand not only some of the doctors present at the time of recovery of the dead body but also two of the divers who brought out the dead body deposed that there was no external injury.The learned Trial Court committed serious error in holding that there was hyoid bone fracture. Even the autopsy surgeon Dr. J.N. Dey P.W. 36 did not state that hyoid bone was fractured. On the other hand there is specific evidence of P.W. 37 that there was no fracture detected. The post mortem report reveals there was no fracture.The aforesaid factual error committed by the learned Court below is in our view a vital error since fracture of the hyoid bone generally takes place in case of death by strangulation. The hyoid bone being intact there is a strong possibility that the death was not caused by manual strangulation.The finding of the learned Trial Court that Dr. Subrata Das and Dr. Koushik Chakraborty were the “main preceptors of the entire drama” is not based on any materials/evidence.Purportedly on careful consideration on the entire evidence on record the learned Trial Court found that the charges under Section 147/149/302/207/34 of the Indian Penal Code as framed against the accused appellants were proved and they had jointly as members of a unlawful assembly with common object committed murder of Dr. Swapan Kanjilal/the deceased at Mukutmonipur Dam and thrown the dead body within the dam water.The learned Trial Court overlooked the plethora of evidence that the body was brought out exactly from the point where the deceased was stated to have drowned and this was about 70 ft. away from the island. Even the divers had to travel to the point from which the body was recovered in boats. There is no evidence to show that the appellants had any empty boat in their control which could have been used to throw the dead body into the dam water. The body of the deceased could not have been flung 70 feet as observed above.The learned Court also drew adverse inference from the fact that the appellant Aditi Kanjilal had not filed any complaint before the police authority making any kind of allegation in relation to the death of her husband observing that it was natural that she should file a written complaint against the real culprits who caused the death of her husband. That Smt. Aditi Kanjilal had kept mum over the entire episode was in the view of the learned judge a matter of acute suspicion.The learned Court erred in law and facts in drawing adverse inference against Smt. Aditi Kanjilal for not filing any complaint in writing before the police making allegations in relation to the death of her husband. This in our view was no cause for suspicion. This Court fails to understand what complaint the wife could possibly make if she saw her husband drowning and she was aware that the police had been informed.It appears that the learned public prosecutor had argued that when there was no explanation given by the accused appellants as to what happened to the deceased after he had been abducted by them the Court should draw the presumption that the accused appellants murdered the deceased. The accused appellants were liable to be convicted under Section 302 of the Indian Penal Code.The deceased was in the company of the accused appellants on 16th September 1990. The submission of the learned Public Prosecutor that the deceased was in custody of the accused persons had no basis whatsoever. There is however not a scrap of evidence to show that the deceased was abducted. There is no reason to presume that the deceased was abducted.On the other hand the PW 31 has deposed that three doctors and a lady went to his office for permission to enter the dam area. The third doctor had to be the deceased. The evidence indicates that the deceased participated in the outing with enthusiasm. Moreover it is not uncommon for the busiest professionals to indulge in outings with family and friends once in a while. The learned Trial Court held“On a careful consideration of the entire evidences on record this court finds that the charges U/Ss. 147/149/302/201/34 of I.P.C. dt. 10.03.98 as framed against the accused persons were proved and they jointly as members of an unlawful assembly with common object committed murder of Dr. Swapan Kanjilal at Mukutmonipur Dam on said isolated island on 16.09.90 then they threw the said dead body within Dam water. This action of murder by the accused persons was heinous as accused persons were all literate and sophisticated persons in the society. They should not be shown any kind of mercy under the law for their such heinous crime on said doctor an innocent person. So they should be punished as they are found guilty for the offences u/ss. 147/149/302/201/34 of I.P.C. as they did murder of Dr. Swapan Kanjilal jointly.”In the judgment under appeal the learned Trial court referred to the murder of a model Jessica Lal at Tamarind Court in Delhi by Manu Sharma the son of a former Minister who was acquitted for absence of proof as eye witnesses present at the time of the incident did not identify Manu Sharma. Jessica Lal was shot. There can be no comparison of the instant case with the case of Jessica Lal who was shot. Reference by the learned Court to the facts of the aforesaid case is in our view wholly irrelevant and in any case misconceived. In disregard of the evidence on record the learned Court proceeded on the basis that the deceased had died when he “was near to the touch and custody of this group of accused persons including his wife”. If the body of the deceased was recovered from the place where he was stated to have drowned which was about 70 feet away from the island it could not be said that the deceased was within touching distance from the accused appellants.The finding of the Court below that the appellants Dr. Subrata Das and Dr. Koushik Chakravorty being influential doctors tried to influence many of the witnesses some of whom had to be declared hostile is wholly conjectural and based on suspicion. This is apparent from the observation of the learned Trial Court that Dr. Subrata Das and Dr. Koushik Chakravorty influenced witnesses who became hostile and other witnesses by money or by putting pressure. The learned Trial Court was not certain whether the witnesses were influenced by money or by exertion of pressure. As observed above there is no evidence to show that any influence was exerted on the witnesses.The finding of the learned Trial Court that the accused persons having influence even tried to purchase brain of police and investigating officers who casually did not mention about any external injury on the body of the deceased is wholly conjectural and unsupported by materials on record. The learned Trial Court found that there was no evidence as to the length of time for which the deceased had been swimming but concluded that the defence plea that the deceased became tired and exhausted when he was swimming. The observation of the learned Trial Court that there was no evidence that the deceased has previously suffered cardiae pain or cardiac arrest after consuming liquor is meaningless since death is known to have taken place in case of persons without previous history of cardiac ailments.The learned Trial Court also found that there was no evidence of the quantity of liquor the deceased had consumed before he breathed his last and concluded that “the entire defence story is a got up case created later for the purpose of trial by brain of learned defence lawyer in collusion with Dr. Subrata Das and Dr. Koushik Chakravorty the preceptors of the entire defence drama.” Significantly even P.W. 36 deposed that he found undigested food mixed with alcohol in the stomach of the deceased during the post mortem examination.In criminal jurisprudence as prevailing in this country a person is presumed to be innocent unless he/she is proved guilty beyond all reasonable doubt. The evidence on record does not at all prove the guilt of the accused appellants and in any case not beyond reasonable doubt.Article 21 of the Constitution provides that no person shall be deprived of his life or personal liberty except in accordance with the procedure established by law. Apart from the right to life the right to personal liberty is also a precious fundamental right guaranteed by our constitution.In a case where the accused are charged under Section 302 of the Indian Penal Code the Trial Court is cast with the paramount duty of careful analysis and scrutiny of the evidence on record since conviction under Section 302 exposes the accused to the extreme punishment of deprivation of life or deprivation of person liberty for life.The procedure contemplated in Article 21 must meet the test of reasonableness. A wrong appreciation of evidence resulting in unjust and illegal conviction of an accused results in gross violation of his/her fundamental right under Article 21 of the Constitution of India.Before a person can be accused of grave crime dispassionate honest investigation must lead to the conclusion that none other than the person suspected could have committed the crime. Mere suspicion cannot discredit a witness. When conviction is based on circumstantial evidence the incriminating circumstances against the accused must form an unbroken chain pointing to the guilt of the accused.The conviction in this case is based entirely on the post mortem report having regard to the opinion of the autopsy surgeon that the cause of the death of the deceased was manual strangulation ante mortem and homicidal in nature. The learned Court invoked the last seen together theory and took recourse to presumption under Section 114 of the Evidence Act.The conviction of all the six accused appellants in the three appeals before us is based on the preliminary opinion of the autopsy surgeon as given in the post mortem report that the cause of the death was manual strangulation homicidal and ante mortem in nature. As pointed out by the learned Public Prosecutor Mr. Manjeet Singh in exemplary fairness the final opinion was to be given upon receipt of the report of the viscera examination. The report of the viscera examination if any was never considered.Whether the opinion in a post mortem report is preliminary or final the opinion of the autopsy surgeon in a post mortem report cannot be conclusive a with regard to the cause of the death. Even if the opinion is a genuine bona fide opinion based on analysis of various factors an opinion being an opinion it cannot be the basis of criminal conviction in the absence of any corroborating evidence. After all if even the most renowned doctors can go wrong in diagnosis of ailments and diseases can their opinion on the cause of death be sacrosanct. The answer in our view has to be in the negative.In this case some legitimate questions have been raised with regard to the opinion of the death which is based on standard texts. Dry drowning is not unknown. In fact in cross-examination the autopsy surgeon has himself admitted that there might be case of dry drowning but asserted that this was not such a case.In this case it is a matter of record that the body of the deceased was fished out from underneath 10 meters of water in a rocky area. They body was fished out with the help of a long nylon rope which was looped to the body. Logs and bamboos were used from the water surface to locate the body. The possibility of strangulation marks and injury during lifting of the body of the deceased cannot be ruled out altogether as observed above.In this case the original post mortem report was not produced in Court as admitted by the autopsy surgeon P.W. 36. It is doubtful whether even the carbon copy was produced since the copy tendered in Court as exhibit 9 did not bear the signatures of all the Members of the Board present at the time of post mortem.In this context it would perhaps not being out of context to note that P.W. 39 the Principal of BSMCH during the material time as also other Members of the Board categorically deposed that as per the rules all the Board Members present during the post mortem were suppose to sign the report and they actually signed the report. The P.W. 39 who had formed the Board and was himself present during post mortem categorically stated that no other report was prepared except for the original and the two carbon copies which were duly signed by them.It would be essential to note that Dr. Joggeswar Sengupta P.W. 38 who was one of the Members of the Board deposed that exhibit 9 was not the original post mortem report since the original post mortem report was signed by him and also the other members were present. The testimony of this doctor could not have been ignored. This doctor also stated that he could not pass any final opinion with regard to the cause of death of the deceased (page 147 of the Paper Book).The Principal of BSMCH who was the Chairman of the Board also deposed that when his signature was not there in the post mortem report being exhibit 9 there was no authenticity of that post mortem report. He also stated that after completion of the post mortem report final opinion regarding the cause of death was kept reserved till receipt of the report of the Forensic Department.The learned Court below ignored the fact that at the time of inquest P.W. 41 Satya Ranjan Dey who was present did not find any major injury except for the discolouration near the chest and swollen of the dead body of the deceased.The finding of the learned Court below that Dr. Kaushik Chakravary and Dr. Subrata Das belong to “anti party” of P.W. 36 whose “head they could not purchased” is totally perverse and not based on any evidence of record. There is nothing to show that there was any attempt on the part of Dr. Kaushik Chakravarty and Dr. Subrata Das to purchase anyone. Nor there was any material to show that there was any enmity either between Dr. Kaushik Chakravarty and Dr. Subrata Das either with P.W. 36 or with the deceased.As observed and held above the judgment and order under appeal is based on suspicion. In no circumstances can a conviction be passed on suspicion.To establish the charges levelled against the accused appellants the prosecution was required to prove that the deceased had died otherwise than in normal circumstances the death was not suicidal or accidental the death was caused by and/or as a consequence of the death of the accused the accused had no legal excuse or defence for causing such injury and the accused did the act with the intention of causing death or such bodily injury as the accused knew it likely to cause death. In the instant case all that has been proved beyond doubt is that the deceased died and that he died in course of an outing in the Kangshabati Dam area along with the accused appellants.In Surajit Sarkar Vs. State of West Bengal reported in (2013 (1) AICLR 13 the Supreme Court held as follows:-“…. If the investigation results in the real culprit of an offence not being identified then acquittal of the accused must follow. It would not be permissible to ignore the defects in an investigation and hold an innocent person guilty of an offence which he has not committed. The investigation must be precise and focused and must lead to the inevitable conclusion that the accused has committed the crime. If the investigating officer leaves glaring loopholes in the investigation the defence would be fully entitled to exploit the lacunae. In such a situation it would not be correct for the prosecution to argue that the Court should gloss over the gaps and find the accused person guilty. If this were permitted in law the prosecution could have an innocent person put behind bars on trumped up charges. Clearly this is impermissible and this is not what this Court has said.”The appeals are allowed. The judgments and order of conviction and sentence passed by the learned Court below are set aside. The accused appellants shall be set free. Bail bonds if any shall stand discharged.LATERAn advance copy of the operative part of the order be communicated to the concerned Correctional Home by the department concerned through Special Messenger at the cost to be deposited by the appellants.Criminal Section is directed to supply urgent photostat certified copies of this order to the parties if applied for upon compliance of necessary formalities.