Crl.A. 168/2009 BEFORE HON’BLE CHIEF JUSTICE MR. A.K. GOEL HON’BLE MR. JUSTICE C.R. SARMA (By C.R. Sarma, J) [1] This appeal is directed against the judgment and order dated 17. 08.2009, passed by the learned Additional Sessions Judge, Barpeta, in Sessions C ase No.134/2006. By the impugned judgment and order, the learned Sessions Judge convicted the appellant under Section 302 IPC and sentenced him to suffer impri sonment for life and pay fine of Rs.2000.00 in default suffer simple imprisonme nt for another period of 2 (two) months for his conviction under section 302 IP C. Aggrieved by the said conviction and sentence, the convicted person, as appellan t, has come up with this Appeal. [2] We have heard Mr. A. M. Bujorbaruah, learned counsel appearing f or the appellant and Mr. Z. Kamar, learned Public Prosecutor appearing for the S tate respondent. [3] The prosecution case, in brief, is that, on 17.10.1998, the appe llant, with a promise to marry, took with him Musstt. Noorjahan Khatoon (hereina fter called the deceased) and entered into a marriage. But due to torture and il l treatment meted out to her, by the members of the family of the appellant, she returned to the house of the informant, who is her maternal uncle. On 21.10.199 8, at about 8 p.m., while she was sleeping, the appellant, by calling again took her away. Subsequently, her dead body found hanging from a tree. The prosecutio n version is that she was killed, by strangulation, by the appellant along with other accused persons (since acquitted). [4] Initially, on 22.10.1998 Police received FIR (Ext.-5) from Md. F atik Bhuyan (PW-3) and after registering a U.D. case investigated into the matte r. Subsequently, PW-1 lodged an FIR (Ext.-1), on 25.10.1998, alleging murder of the deceased. On receipt of this FIR, Police registered a case U/S 302 IPC and l aunched investigation into the matter. [5] During the investigation, Police visited the place of occurrence , recorded statement of the witnesses, held inquest of the dead body, forwarded the dead body for autopsy and prepared sketch map. At the close of the investigation, Police submitted Charge-sheet U/S 302 IPC aga inst the appellant and 7 (seven) others. [6] The case being committed, the learned Sessions Judge framed char ge U/s 302/34 I.P.C. against the appellant and others. The charge was read over and explained to the accused persons to which they pleaded not guilty and claime d to be tried. [7] In order to prove their case, prosecution examination, as many a s, 9 (nine) witnesses as PWs, including the Medical Officer (PW-8), who perform ed autopsy and the investigating Police officers (PWs 8 & 9). At the close of th e evidence for the prosecution, the accused persons were examined U/s 313 Cr.P.C . They denied the allegations, brought against them and declined of adduced defe nce evidence. [8] Mr. A. M. Bujorbaruah, learned Counsel, appearing for the appell ant, has submitted that the prosecution failed to prove the case, beyond all rea sonable doubt, by adducing substantiate evidence in support of the case. The le arned Counsel has also submitted that the prosecution failed to prove that the d eceased was found in the company of the appellant, immediately before her death and as much the learned trial Judge committed error, by applying the last seen theory in this case. The learned counsel has also contended that in the event o f homicidal killing there would have existed some marks of injury on the dead bo dy and that absence of any sign of struggle or injury marks, as indicated by the medical evidence, negates the theory of homicidal death. Therefore, it is submi tted, that the appellant is entitled to be acquitted for want of sufficient evid ence. [9] Refuting the said argument, advanced by the learned defence Coun sel, Mr. Z. Kamar, learned Public Prosecutor, supporting the impugned conviction and sentence, has submitted that there is sufficient substantive evidence agai nst the appellant and that the dead body of the deceased was recovered, after sh e was called by the appellant. Therefore, it is submitted that, none other than, the appellant had caused the death of the deceased. [10] Carefully, perusing of the evidence, on record, we find that in the case at hand, there is no direct evidence, indicating involvement of the app ellant with the death of the deceased. The only evidence is that the appellant h ad called out the deceased from her bad. [11] Admittedly, the FIR (Ext. 5), lodged by PW-3 (uncle of the decea sed), on 22.10.1998, reveals that the deceased was found hanging from a tree, on 21.10.1998, at about 8 PM. In the subsequent FIR (Ext. No. 1) lodged, by PW-1 ( maternal uncle of the deceased), on 25.10.1998. It has been stated that the dece ased was called by the appellant, on 21.10.1998 at 8 p.m. when she was sleeping with Jahanara Khatoon (PW-2) and that her dead body was found hanging. The Medical Officer (PW-7), who perform the autopsy of the dead body on 23.10.19 98 found as follows- External App: - A thin built female dead body aged about 22 years not emaciated not decomposed. The eyes are partially open and tip of the tongue seen outside the mouth and bitten in between the teeth. Rigor mortis present. Discharge seen in the orifices of vagina, but no foecal matter around the anus. One non-continu ous ligature mark, high up in the neck the knot is on the right side of the nec k just below and behind the right ear seen. No other injuries seen over the body . Detailed injury: - The ligature mark described in external appearance is an timortem in nature. No other injuries seen over the body. The Medical Officer opined that the death was caused due to asphaxia as a result of hanging. The Medical Officer did not find any injury over the dead body. The said Medical evidence does not suggest homicidal death, rather the same indi cates suicide. [12] Md. Yashin Bhuyan (PW-1), who lodged the FIR (Ext. 1) in this ca se, stated that the mother of the deceased, at about 8 p.m. informed him that t he deceased was missing from her bed and that, upon search, the dead body of the deceased was found hanging from a tree. He stated that, initially FIR (Ext.5) w as lodged believing that she had committed suicide, but subsequently, it was sus pected that the appellant and others killed her. He also stated that he came to know from his sister that the deceased had gone to Afzal’s house and that her bo dy was found hanging. [13] Smti Jahanara Khatoon (PW-2), Sister of the deceased stated that the deceased was called by the appellant to their house and that the dead body of the deceased was found hanging. She also stated that she had informed their m aternal uncle about the said incident. But PW-1, maternal uncle of PW-2, stated that he was informed by his Sister that the deceased was missing. He did not sta te that the appellant called the deceased. Hence, we find no corroboration in th e evidence of PW-1 and PW-2, to believe that the appellant had called and taken the deceased with him. [14] Mr. Fatik Bhuyan (PW-3), Uncle of the deceased, stated that the deceased was found hanging from a tree. He was declared hostile and cross-examin ed by the prosecution, but nothing substantive could be established against the appellant. [15] Mr. Mafijuddin (PW-4) did not whisper anything against the appel lant. [16] Musstt. Saher Banu (PW-5), mother of the deceased sated that the deceased, on the fateful night, was sleeping with her and that her another daug hter (PW-2) told her that the appellant had called the deceased and that the dec eased was found hanging from a tree. [17] Mr. Rahiz .Bhuyan (PW-6), also stated nothing against the appell ant. [18] PWs-7, 8 and PW-9 are the formal official witnesses, being the D octors and the Investigating Officers. From the above discussed evidence, it is found that, none except the PW-2, impli cated the appellant. According to PW-2, the appellant had called the deceased, while the latter was sleeping with her. If the deceased was called and persuaded to go with the appellant, the said fact would have been discussed amongst the members of the family and disclosed in th e FIR, lodged on 22.10.1998 i.e. on the next day. In the said FIR, it was simpl y mentioned that the dead body was found hanging from a tree. If the deceased wa s called and taken out by the appellant, immediately before her death, then such vital fact should have been disclosed at the earliest opportunity i.e. in the F IR lodged, on 22. 10.1998. Failure to disclose such vital fact in the FIR lodged on 22.10.1998, but subsequently implicating the appellant in the FIR (Ext No.1) lodged on 25.10.1998 i.e. 4 (four) days after the occurrence raises serious do ubt about the veracity of prosecution story. [19] That apart, PW-1, who lodged the Ext. No. 1 (second FIR) did not state, in his evidence, that the appellant had called the deceased. He stated t hat they suspected the appellant. PW-3 also, who lodged the 1st FIR (Ext.1), did not indicate that the appellant had called the deceased. The said witnesses and PW-1 being members of the same family, if the appellant h ad called the deceased, as claimed by PW-2, certainly PW-2 would have disclosed such vital fact to the other members of the family, immediately after the inci dent and in that event, PW-3 could have mentioned the same in the first FIR (E xt. 5), lodged by him. PW-1, in his evidence, simply stated that he was informed that the deceased was missing from her bed. He did not dispose that the appella nt had called her. The silence of PW-1 and PW-3 in this regard raises doubt abou t the story of calling the deceased by the appellant. [20] In view of the above discussion, we find nothing substantive to hold that the deceased was seen with the appellant, immediately before her death . Considering entire aspect of the matter, coupled with the medical evidence, wh ich indicates it to be a clear case of suicide, we have no hesitation in holding that the prosecution failed to prove the case, against the appellant. Hence, th e impugned conviction and sentence can not be maintained. [21] Therefore, we find sufficient merit in this appeal. Accordingly, the appeal is allowed. The impugned conviction and sentence are set aside. The appellant is acquitted. He be set at liberty forthwith, if not required in any o ther case. [22] Return the LCR.