Crl.A. 123/2007 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY HON’BLE MR. JUSTICE U.B.SAHA Amitava Roy, J The appellant stands convicted under Section 302 of the Indian P enal Code (for short, hereinafter referred to as ’IPC’) and sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs. 5,000/-, in default, to undergo simple imprisonment for a further period of six months. Being aggrieved, he is in appeal seeking interference with this decision. 2. We have heard Mr NJ Das, learned counsel for the appellant and M r Z Kamar, learned Public Prosecutor, Assam. 3. Sri Ashit Kr. Dutta, father of the deceased Rumi Dutta filed an FIR with the Officer-in-Charge of Badarpur Police Station on 7.6.2004 alleging t hat on the previous day i.e. 6.6.2004 at about 3.30 p.m. the accused/ appellant, their neighbour, had called away the victim who was then 16 years old from home , whereafter, she did not return till 7 p.m. The informant mentioned that vigoro us search did not yield any result and on being informed that a young girl was l ying dead near Jungle Kali Bari Siva Mandir at Badarpurghat, he along with other s went to the spot and found the dead body of his aforementioned daughter. The i nformant stated in the FIR that he saw a cut injury on the neck of the deceased. He expressed his suspicion against the accused/ appellant to be the assailant. He mentioned about the complicity of a friend of his also in the episode. 4. Badarpur P.S. Case No. 112/04 under Section 302/34 IPC was regis tered on receipt of the aforementioned FIR and the investigation was initiated. Chargesheet was eventually laid against the accused/ appellant and one Pradip Si ngha. Both the accused persons were charged under Section 302/34 IPC to which th ey pleaded ’not guilty’. The prosecution examined eight witnesses, whereafter, t he statements of the accused persons were recorded under Section 313 Cr.P.C. No defence witness was examined. By the impugned judgment and order the accused/ ap pellant was convicted but his co-accused was acquitted. 5. It would be apt at the threshold to sketch the evidence on recor d. P.W.1, Ashit Kr. Dutta, the father of the deceased and the informant stated t hat at about 3/3.30 p.m. on the date of the occurrence, the accused/ appellant h ad taken away the victim to the ’jungle’ Kalibari, whereafter, she did not retur n. This witness stated that the accused/ appellant was known to the family and w as living with them. According to him, the dead body of the victim was found at about 7 p.m. in the same evening at ’jungle’ Kalibari. He owned the FIR, Exhibit -1 and categorically implicated the accused/ appellant to be assailant. He prove d as well the inquest report, Exhibit-2. In cross-examination, this witness disc losed that ’jungle’ Kalibari is situated near the Silchar Badarpur Main Road in a sufficiently inhabited locality. He also mentioned about a jungle behind the K alibari. He admitted that he had personally not seen the accused/ appellant call ing away the victim but claimed to have known this fact on enquiry. He stated th at when he reached the site there was already an assembly of 100/150 persons. 6. P.W.2, Smt. Sumi Rani Dutta, younger sister of the victim stated on oath that at about 3/3.30 p.m. on the date of the occurrence the accused/ ap pellant had come to their house and taken away the victim to ’jungle’ Kalibari. She stated that on receiving the information that a dead body was lying at ’jung le’ Kalibari, her father and others went to the spot and identified it to be tha t of her sister. She claimed to have communicated to her father (P.W.1) that the accused/ appellant had enticed away the victim from home. She mentioned about a statement made by her under Section 164 Cr.P.C. and proved the same to be Exhib it-3. In cross-examination, this witness further stated to have informed Sri Aja y Chakraborty, Lakhyen Das etc. about the accused/ appellant calling away her el der sister from home. 7. P.W.3, Biddhan Laskar stated that at about 3/ 3.30 p.m. on the d ate of the occurrence while he was in a shop near Jungle Kalibari, he had seen t he accused/ appellant and the victim passing by the front of the shop. He also s tated to have visited the place of occurrence and seen the dead body with a cut mark in the neck. He also proved his statement recorded under Section 164 Cr,.P. C. as Exhibit-3. He proved as well seizure of a ’dao’ lying near the place of oc currence vide Exhibit-5. In cross-examination, he admitted that on the date of t he occurrence there was a ’Bihari Utsav’ at Kalibari and about 150/200 people ha d gathered to celebrate the same. He also conceded of having omitted to disclose the above fact either to the police or to the parents of the victim. He mention ed to have made his statement under Section 164 Cr.P.C. 6/7 days after the incid ent. 8. P.W.4, Ananta Dev Nath testified that at about 3/3.30 p.m. on t he date of the occurrence while he was taking bath in a pond in front of his hou se he saw a boy and a girl proceeding towards Kalibari. He claimed to have gone to the place of occurrence and seen the girl lying dead at Jungle Kalibari with cut injury in the neck. He proved his statement under Section 164 Cr.P.C. to be Exhibit-6. This witness was declared hostile and in course of cross-examination by the defence he affirmed about a festival being celebrated at Kalibari on the date of the occurrence. 9. P.W.5, Chandan Paul was at the relevant point of time the Chairm an of Badarpur Municipality. He stated on oath that at about 5.30/6 p.m. on the date of the occurrence on receipt of information that a murder had been committe d at Badarpur Jungle Kalibari, he informed the police over the telephone about t he same and proceeded to the spot. This witness stated to have overheard a disc ussion amongst the members of the public that the deceased had an affair with th e boy who had killed her. In cross-examination, he stated that about 1000 people had gathered at the spot. 10. P.W.6, Dr. Gunajit Das who performed the post mortem examination on the dead body on 7.6.2004 at 10 a.m., detected the following injuries: 1. Incised injury in the right forearm, distal part over ventro lateral border 5 x2 cm with depth of 1.5 cm cutting skin, subcutaneous tissues, muscles and hal f thickness of the radius. 2. Incised injury with gaping in the middle part of neck,11 x 5 cm extending fro m 3 cm left of midline to right lateral border of sternomastoid muscle with dept h upto intervertebral disc or 3rd and 4th cervical vertebrae cutting the oesopha gus, trachea and the right carotid vessels. Margins found clean cut. Ante mortem blood clot found firmly adherent to the margin and the floor of the wound. . According to this witness, the death was due to shock and haemor rhage resulting from the injuries sustained which were ante mortem and homicidal in nature. He mentioned that the approximate time lag between the death and the examination was about 36-48 hours. He proved the post mortem report as Exhibit- 7. 11. While P.W.7, Faztur Rahman Laskar stated about the inquest done on the dead body; P.W.8, Biswajit Purkayastha, the Investigating Officer deposed about the steps taken by him in course of the investigation. 12. Mr Das has argued that having regard to the state of the evidenc e on record, the prosecution has miserably failed to prove the charge against th e accused/ appellant and, therefore, he is entitled in law to be acquitted. Refe rring to the evidence of P.W.2, P.W.3 and P.W.4 in particular, the learned couns el has pleaded that even assuming without admitting that at about 3/30 p.m. the victim was in the company of the accused/ appellant, in absence of any other tan gible evidence to relate the latter with the crime, this disclosure can by no me ans be accepted to be an incriminating circumstance sufficient to form the found ation of his conviction. According to Mr Das, having regard to the evidence of t he prosecution witnesses that a celebration was on at Jungle Kalibari on the dat e of the occurrence where a large number of devotees had flocked, the prosecutio n case is even otherwise an impossibility having regard to the congestion of the inhabitants in the locality. The prosecution having failed to prove any motive against the accused/ appellant for the crime, the circumstantial evidence of ’la st seen together’ in isolation is not sufficient to sustain the impugned judgmen t and order, he urged. In support of his arguments, Mr Das has placed reliance o n the decisions of the Apex Court in Inderjit Singh & Anr. -vs- State of Punjab, AIR 1991 SC 1674 and in Anant Bhujangrao Kulkarni -vs- State of Maharashtra, 1 993 Supp.(2) SCC 267. 13. Mr Kamar in reply has argued that the consistent version of P.W. 2, P.W.3 and P.W.4 unmistakably demonstrating that the accused/ appellant had en ticed away the victim from her home and was in her exclusive company till she wa s found to be dead per se is enough to prove his complicity in the crime and, th us, the impugned judgment and order does not warrant any interference. The learn ed Public Prosecutor dismissed the plea of absence of evidence of any motive as wholly irrelevant and misplaced. According to him, having regard to the weapon o f assault seized and the compatibility of the injury found on the dead body ther ewith, the accused/ appellant has been rightly convicted and that this appeal ou ght to be dismissed. 14. We have extended our anxious consideration to the materials on r ecord as well as the arguments advanced. Admittedly, there is no eye witness to the incident. The testimony of P.W.2, P.W.3 and P.W.4 when read with their state ments recorded under Section 164 Cr.P.C. proves beyond reasonable doubt that the accused/ appellant had been in the company of the victim girl at about 3/3.30 p .m. on the date of the occurrence. There is no other evidence forthcoming to pro ve the culpability of the accused/ appellant in the offence. The post mortem exa mination which had been conducted on 7.6.2004 i.e. the next day at about 10 a.m. discloses the approximate time of death to be 36-48 hours prior thereto. Even i f a reasonable margin of error is allowed, the time of death as calculable from this observation does not match with the one when expectedly the incident had oc curred. Admittedly, the prosecution case is based on circumstantial evidence. Th e form of the FIR discloses the time of occurrence to be 7 p.m. in the evening. The FIR, however, was lodged on the next date at about 9 a.m. Going by the time of the incident as mentioned hereinabove, there is a time lag of about four hour s after the victim had been seen by P.W.2, P.W.3 and P.W.4 in the company of the accused/ appellant. As evident from the testimony of the prosecution witnesses, a festival at the Jungle Kalibari was being celebrated which had drawn about 15 0/200 people. The area, as the materials on record disclose, is also sufficientl y congested with the houses of the inhabitants all around. The jungle from where the dead body was recovered abuts a public road. 15. On a consideration of all above, we are of the view that the evi dence on record is not sufficient enough to identify the accused/ appellant to b e the offender without entertaining a reasonable doubt. In our view, therefore, it would be unsafe to sustain his conviction in the face of the evidence adduced by the prosecution. 16. The appeal, therefore, succeeds. The impugned judgment and order is set aside. The accused/ appellant is hereby ordered to be set at liberty for thwith.