Crl.A. 319/2004 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY HON’BLE MR. JUSTICE H. BARUAH Amitava Roy, J The challenge is to the judgment and order dated 1.9.2004 render ed by the learned Sessions Judge, Kokrajhar in Sessions Case No. 45/03 convictin g and sentencing the accused/ appellants herein under Section 302/34 IPC and sen tencing them to suffer rigorous imprisonment for life and to pay a fine of Rs. 5 000/- each, in default, to undergo simple imprisonment for six months. 2. We have heard Mr A Shariff, learned counsel for the accused/ app ellants and Mr KA Mazumdar, learned Public Prosecutor, Assam. 3. The mother of the deceased Smt. Batashi Barman having on 30.11.2 001 lodged an FIR with the Tulshi Bil Police Out Post to the effect that in the previous evening at about 7.30 p.m. the accused/ appellants had called away her son from the house who did not return home and was found dead the next morning n ear Kumarndari beel, Gossaigaon P.S. Case No. 175/2001 u/s 302 IPC was registere d. On completion of the investigation, chargesheeet was laid against the accused / appellants, whereafter, charge was framed by the learned Trial Court against t hem under Section 302/34 IPC to which they pleaded not guilty and claimed to b e tried. 4. The prosecution examined as many as ten witnesses including the Investigating Officer as well as the doctor who had performed the post mortem ex amination on the dead body. The accused/ appellants did not adduce any evidence. Their statement under Section 313 CrPC was, however, recorded. In course of suc h examination they also denied the charge and claimed innocence. The learned Tri al Court on the basis of the evidence on record and after hearing the learned co unsel for the parties convicted and sentenced the accused/ appellants as above. 5. Before we recite the rival arguments, it would be appropriate at this stage to note in brief the evidence adduced by the prosecution. 6. P.W.1, Batasi Barman, the informant and the mother of the deceas ed stated that about five days before the date of the occurrence there was a ser ious quarrel between the deceased and the accused/ appellants in the matter of t heir going to Delhi. In the evening of the date of occurrence while she along wi th her daughter-in-law were at home, accused/ appellant Monoj Seal reached there and called her son (deceased) outside. After accused/ appellant Ajay Barman als o arrived, all of them left. Her son did not return in the night and it was in t he morning that one Dodhi and Sunil informed her he was lying dead on the road. The witness stated that she having rushed to the place of occurrence, found her deceased son with injury in his neck. According to this witness, his hand was al so broken. Thereafter, she filed the FIR which was written by Amzad Hussain. In cross-examination, this witness was confronted with the suggestion that she had not told the police that five days before the occurrence a quarrel had taken pl ace between the deceased and the accused/ appellants. She further conceded that the dead body was found behind the house of Sunil Narzary which was located abou t 100 feet away from hers. 7. P.W.2, Smt. Malati Barman, the wife of the deceased while reiter ating the version narrated by P.W.1 only added that accused/ appellant Monoj Sea l had that evening invited the deceased to visit his place for dinner. She denie d the suggestion in the cross-examination of having omitted to inform the police that there had been a quarrel between the deceased and the accused/ appellants prior to the incident on the issue of their going to Delhi. 8. P.W.3, Naren Barman, the father of the deceased also deposed in the same lines. He further denied the suggestion put to him in cross-examination that he had not told the police that the accused/ appellant Monoj had come to t heir house in the evening to take away the deceased. 9. P.W.4, Prakash Sarma in his examination-in-chief expressed his i gnorance about the occurrence. He was declared hostile and, thereafter, confront ed with his statement made under Section 161 CrPC before the police. 10. P.W.5, Smt. Kamala Bibi stated on oath that in that evening she heard the accused/appellant Ajay quarrelling with the deceased in course of whic h the former threatened to kill the latter. In her cross-examination, this witne ss stated that she was familiar with the voice of accused/appellant Ajay. She de nied the suggestion of not having told the police of the threat extended by accu sed/appellant Ajay to the deceased. 11. The evidence of P.W.6, Anil Narzary; P.W.7, Dhiren Pahan and P.W .8, Amzad Hussain is not of much significance and, therefore, is not being refer red to in details. P.W.8 incidentally is the scribe of the FIR who proved the sa me as Exhibit-1 with his signature thereon as Exhibit-1(1). 12. P.W.9, Dr. Kaushik Das had performed the post mortem examination on the dead body and in course of his testimony had also narrated the injuries found on it. For ready reference his findings are reproduced hereinbelow: 1. Bruise over the neck and throat 3 cm x 2 cm bhush black. 2. Bruise over the neck 2 cm x 1 cm bhush black. 3. Bruise over the right lateral aspect of the neck 2 cm x 3 cm Bhusih black. 4. Conjunctive haemorrhage of both eye found. 5. Bleeding from the mouth seen. Congestion over the neck muscle seen. Fracture of the hyoid bone seen. C ongestion of the forehead (ring) muscle seen. . While proving the post mortem report (Exhibit-2) with his signat ure thereon [Exhibit-2(1)], P.W.9 stated in essence that the death was due to as phyxia following strangulation. 13. P.W.10, Umakanta Ramsiary, the Investigating Officer in his stat ement mentioned about the different steps taken by him in course of the investig ation. He deposed in clear terms that at the instance of a verbal information be ing lodged about the incident a GD Entry was made. He proved the extract of the GD Entry as Exhibit-3. In cross-examination, this witness conceded that there wa s no mention in the GD Entry that in that evening the accused/ appellants had ca lled away the deceased from his house. With reference to the case diary, this wi tness also stated that P.W.2, P.W.3 and P.W.5 had not stated before him about an y quarrel between the accused/ appellants and the deceased prior to the incident . 14. Mr. Shariff, learned counsel has urged that in the absence of an y evidence worth the name in support of the charge, the learned Trial Court was apparently in error in convicting and sentencing the accused/ appellants. Referr ing to the contradictions of P.W.1, P.W.2, P.W.3, P.W.4 and P.W.5 with regard to the aspect of the accused/ appellants having lured the deceased from his house, the learned counsel has urged that the principle of the doctrine of last seen t ogether is also not attracted in the facts of the present case and, thus, the su bstratum of the prosecution case being non-existent, the impugned judgment and o rder ought to be interfered with in the interest of justice. He further argued t hat as the prosecution for inexplicable reasons omitted to examine any independe nt witness, the creditability of its case is in serious doubt and it is, therefo re, essential that the accused/ appellants ought to be exonerated of the charge and set at liberty forthwith. 15. Mr Mazumdar, learned Public Prosecutor, however, has urged that as the evidence of P.W.1, P.W.2 and P.W.3 is coherent on the fact that in that f ateful evening the accused/ appellants had called the deceased from his house wi th a design to eliminate him and that the evidence of P.W.5 substantiates the sa id charge, the order of conviction and sentence ought not to be over turned. 16. Upon hearing the learned counsel for the parties and on a consid eration of the evidence on record, we are constrained to hold that the prosecuti on has failed to prove the charge against the accused/ appellants. Not only ther e is no direct evidence of their involvement in the offence, the vital omissions in the versions of P.W.1, P.W.2, P.W.3, P.W.4 and P.W.5 vis-à-vis the aspect of the deceased being called away by the accused/ appellants, in our opinion, stri kes at the root of the prosecution case. Noticeably, a verbal information about the incident was lodged with the police which was recorded as a GD Entry. The sa id GD Entry which is first at the point of time does not mention that the accuse d/ appellants in that evening had visited the house of the deceased and had coax ed him to accompany them. 17. In view of the above, we have no hesitation to hold that the pro secution has failed to prove the charge beyond all reasonable doubt as is requir ed of it in a criminal trial. We are, therefore, inclined to extend the benefit of doubt to the accused/ appellants. 18. On a perusal of the impugned judgment and order we find ourselve s in disagreement with the reasonings recorded in support of the conviction and sentence. The impugned judgment and order is, therefore, interfered with. 19. The appeal is, thus, allowed. The accused/ appellants are direct ed to be set at liberty forthwith.