Crl.A. 51/2006 BEFORE THE HON’BLE MR JUSTICE AMITAVA ROY THE HON’BLE MR. JUSTICE S. TALAPATRA JUDGMENT & ORDER (Oral) (Amitava Roy, J.) 1. The appellant who had been charged along with 5 others, inter alia, for the offence of murder and criminal conspiracy therefor having been convicted by the learned trial Court under Sections 302/201 IPC is before this Court seeking redress. By the impugned judgment and order, on his conviction as above, he has been sentenced to suffer imprisonment for life and to pay a fine of Rs.5000/-, i n default, to suffer imprisonment for another 90 days for the offence under Sect ion 302 IPC. Vis-à-vis the offence under Section 201 IPC he has been ordered to undergo imprisonment for four years and to pay a fine of Rs.500/-, in default, t o suffer imprisonment for further 30 days. Both the sentences were, however, dir ected to run concurrently. 2. We have heard Mr. F. K. R. Ahmed, learned counsel for the appellant, and Mr. K. A. Mazumdar, learned Additional Public Prosecutor, Assam. 3. An F.I.R. was lodged with the Officer-in-Charge, Hojai Police Station, o n 20.05.1998 by PW 1, Sushil Debnath, father of the deceased Krishna Gopal Debna th mentioning that the latter had been, on the previous day i.e. 19.5.98 at 7.50 P.M., kidnapped by two unidentified youth at the point of a pistol from the fro nt of his (informant) shop ’Radhabinod’ located in the old market area in Krishn anagar, Hojai. Hojai P.S. Case No.97/1998 under Section 365 IPC was registered and investigation was initiated, on the completion whereof, charge-sheet was su bmitted against 13 accused persons. Eventually, the learned trial Court framed c harges against six persons including the present appellant. He having been char ged under Sections 109, 120B, 201, 302, 364 and 365 IPC denied the same. The pro secution, at the trial that followed, examined 22 witnesses including the doctor , who had performed the post mortem examination on the dead body, as well as the investigating officer. Other witnesses were also examined in support of the fac t that due to the unaccounted absence of the accused persons at the trial, warra nt of proclamation had to be issued to be served on them. The evidence of these witnesses, however, does not have any bearing on the charge and therefore would not be referred to for the purpose of the instant appeal. At the completion of examination of the witnesses, the accused persons were examined under Section 31 3 Cr.P.C. in which they stood by their denial to the charges. The learned trial Court, however, on the basis of the evidence on record while convicting the accu sed/appellant as above, acquitted the co-accused. 4. The evidence on record in a nutshell has to be referred to for appropria tely analyzing the arguments advanced. PW 1, Bibhas Modi, who on 30.5.1998 was t he Circle Officer in Hojai, deposed about the exhumation of the dead body and th e conduct of inquest thereon. According to this witness, the dead body when reco vered was found with a rope tied around the neck. He stated that at that point o f time the Officer-in-Charge, Hojai Police Station was present. He stated that l ater on he came to learn that the dead body was of Krishna Gopal Debnath, the so n of the informant. 5. PW 2, Sushil Debnath, is the father of the deceased, Krishna Gopal Debna th and the informant in the case. He deposed that at about 8.00 P.M. of 19.5.199 8 his brother Satyaranjan informed him over phone that three unidentified person s had picked up his son Krishna Gopal. He thereafter went to the Police Station and lodged the FIR, Ext-1. According to this witness, the dead body was recovere d 8/9 days after the incident and that he had visited the Morajhar Police Statio n to identify the same. He admitted a ransom call from an organization over tele phone which was recorded by the police in a cassettee. According to this witness , though he sought to identify the organization, the caller did not disclose the name thereof. He proved the seizure of the cassettee vide Ext-2. 6. The evidence of PW 3, Partha Choudhury and PW 4, Subhash Deb Nath, is n ot of any significance. 7. PW 5, Miss Tilaka Das, at the relevant time was a Scientific Officer , Q uestioned Documents Division, FSL, Guwahati. She deposed with reference to the d ocuments containing the questioned as well as the specimen signatures of Gopal C handra Sahu, Prem Chand Sahu and Himangshu Roy, three of the co-accused of the a ppellant, that the two sets of signatures matched by applying scientific tests. 8. PW 6, Sri Pradip Kumar Baruah, the then Senior Scientific Officer at F.S .L., Guwahati, deposed about a soil sample said to have been obtained from a spa de and stated that on microscopic and other examinations the same tallied with t he sample obtained from the place of occurrence. He proved the soil test report as Ext-6. 9. PW 7, Sri K. P. Goswami, who at the relevant time was the SDM & HO at t he Nagaon Civil Hospital and had performed the post mortem examination, indicate d in his evidence as follows : A decomposed deadbody with maggots all over it. Fracture on occipital, right and left temporal bone. Haemorrhage in both cerebral hemispheres. Right and left lung partially decomposed. Heart empty. Vessels hard. Other organs were found healthy. In his opinion, death was due to shock and haemorrhage as a result of the head i njury. 10. The testimony of PWs 8, 9, 11, 12 and 13 is of no relevance. 11. PW 10, Satyaranjan Deb Nath, the uncle of the deceased, disclosed that a t about 7.00 P.M. in the evening of 19.5.1998 he was informed by an employee of a cycle shop situated behind that of his that his nephew (the deceased) had been kidnapped in a motor cycle. The witness thereafter informed PW 1. He further st ated that the dead body was recovered about 8/10 days thereafter. 12. PW 14, Jamir Uddin, stated on oath that about 7/8 years prior to his tes timony while he was working on his paddy field he heard hue and cry and went to the place of occurrence to see that police had recovered a dead body. He stated to have put his signature on the seizure list related thereto i.e. Ext-9(1). 13. PW 15, Abdul Bari, deposed that about 5/6 years prior to the trial the p olice had arrested the accused/appellant and called four villagers to accompany them. The witness stated that the appellant and another person showed them the w ay and also confessed that they had killed the informant’s son and also led them to the place of occurrence. This witness also proved the seizure-list, Ext-9. I n cross-examination this witness admitted the presence of 10/12 police personnel at the time of their visit at the place of occurrence. The terrorizing presence of a few arm wielding commandos was also mentioned. 14. PW 16, Md. Jayadur Rahman, stated that about 4/5 years prior to the tria l, the dead body of a boy was recovered at Batakata forest reserve. In cross-exa mination he, however, conceded that he was unaware as to how the dead body was r ecovered. 15. PW 17, Maqbul Ali, testified that after the police had arrested the accu sed/appellant and another person from Hojai they took them to the place of occur rence being accompanied by 7/8 villagers. According to this witness, the accused /appellant and his companion showed the way and took them to the place of occurr ence where the deceased was killed. The witness also stated that the accused/app ellant admitted before them that he along with others had killed the boy. The wi tness also stated that the accused/appellant showed the place where they had bur ied the dead body. He proved as well the seizure list, Ext-9 with his signature thereon. In cross-examination this witness deposed that the police showed to the accused/ appellant and his companion the place/pit and asked them as to whether they had buried the dead body therein to which they answered in the affirmative. The wit ness clarified as well that he was not present when the dead body was removed fr om the pit and that he had not visited the place of occurrence. He stated as wel l that the accused/appellant and his companion did not confess their guilt in th e presence of the persons thereat. 16. The evidence of PWs 18, 19 and 20 is not of any decisive significance an d therefore is not being dilated upon. 17. PW 21, Sri Pratim Kumar Bora, who at the relevant time was a Judicial Ma gistrate First Class, Hojai, deposed that he had recorded the statement of one A zizur Rahman and Md. Arif Uddin under Section 164 Cr.P.C. which he proved as Ext -11 and Ext-12. 18. PW 22, Kishor Kumar Nath, is the Investigating Officer, who while narrat ing the steps taken by him in succession in connection with the investigation di sclosed that the accused/appellant and his co-accused Abdul Rouf were separately arrested after 5/6 days of recovery of the dead body. 19. The accused persons did not examine any witness and, as referred to here inabove, totally denied the charges levelled against them. 20. Mr. Ahmed, learned counsel for the appellant, has argued that the prosec ution having failed to adduce any evidence worth the name to establish the charg es against the accused/appellant, the impugned judgment and order ought to be in terfered with in the interest of justice. While contending that the purported ex tra judicial confession of PWs 15, 16 and 17 is inadmissible in law, the same ha ving been made in presence of the police, the learned counsel has urged further that the testimony of PWs 17 and 22 taken together, demonstrates that the accuse d/appellant did not lead the police to the recovery of the dead body. He argued that it is apparent on the face of the record that the dead body had been recove red by the Murajhar police even before the investigation in the case was initiat ed by the Hojai police. Referring to the evidence of PW 22 to this effect, the l earned counsel has argued that the attempt on the part of the prosecution to rop e in the appellant with the offence by involving him in the contrived process of leading to discovery is wholly sham. This is further affirmed by the admission of the Investigating Officer that the dead body was recovered before the arrest of the appellant, he urged. There being no evidence whatsoever to connect the ac cused/appellant with the offence Mr. Ahmed has prayed for his acquittal. 21. Mr. Mazumdar, learned Additional Public Prosecutor, on the other hand, h as argued that the evidence of PWs 1, 10, 15, 16 and 17 taken together proved th e charges against the accused/appellant beyond all reasonable doubt and therefor e no interference with the impugned judgment and order is warranted. To reinforc e his plea, reference has also been made by him to the evidence of PW 7, the doc tor and PW 5, the Scientific Officer of FSL, Guwahati, and PW 6. 22. We have duly considered the arguments advanced and have closely analysed the materials on record. As indicated hereinabove, though six persons including the accused/appellant were made to stand trial, all co-accused of his have been acquitted by the learned trial Court. There is no eye-witness to the incident. The Investigating Officer, PW 22, has amongst others disclosed that he commenced the investigation on the basis of a verbal information lodged even before the F .I.R. was filed. Nothing is forthcoming to indicate about the identity of the a ssailants either in the said verbal information or in the F.I.R. 23. Apart from the fact that the persons whose statements under Section 164 Cr.P.C. had been recorded, had not been examined at the trial and that their ver sion thus is bereft of any probative value, evidence of PWs 15, 16, 17 and 22 re ad in conjunction does not impel us to conclude that the accused/appellant had l ed the police to the pit where allegedly the dead body was buried. The evidence of PW 5, the Scientific Officer, FSL, pertains to a document which admittedly ha s no nexus at all with the accused/appellant. The testimony of PW 6 centers arou nd a soil test report to connect the soil said to have been collected from the s pade with the sample of the earth of the pit from which the dead body was said t o have been recovered by Murajhar police. The seizure-list of the spade, Ext-9, does not even indicate the presence of any grain of earth to connect the same wi th the pit material. The evidence of PWs 5 and 6 is, thus, of no avail to connec t the accused/appellant with the offence alleged. No post mortem report has been proved. The evidence of the doctor conducting the autopsy also does not clearly disclose the nature of the injury and of the weapon capable of causing the same . 24. On the cumulative consideration of all the above, we are constrained to hold that the prosecution has failed to prove the charges against the accused/ap pellant. On a perusal of the impugned judgment and order we find ourselves in re spectful disagreement therewith. The impugned judgment and order is, thus, set a side and the accused/appellant is directed to be released forthwith. He is acqui tted of the charges. 25. The appeal is allowed.