Ashutosh Kumar, J. – There is no appearance on behalf of the appellant/Imam Hussain.

2. Mr. Akash Keshav, the learned Advocate, has been requested to assist this Court in this matter as an Amicus.

3. Mr. Keshav has agreed to such request.

4. Heard Mr. Akash Keshav for the appellant and Mr. Bipin Kumar for the State.

5. The appellant, who is the first cousin of the deceased and is alleged to have killed his cousin, has been convicted for the offence under Section 302 of the Indian Penal Code vide judgment dated 14.01.2013 passed by the learned Addl. District and Sessions Judge- II, Katihar in Sessions Trial No. 510 of 2011, arising out of Barari (Semapur) P.S. Case No. 100 of 2011 (G.R. No. 1791 of 2011), and by order 19.01.2013, he has been sentenced to undergo R.I. for life for the said offence.

6. The conviction of the appellant is based on the deposition of the mother of the deceased, namely, Feratun Nisha, who has been examined as P.W. 1 in this case.

7. Before analyzing the evidence of aforesaid Feratun Nisha (P.W. 1), it is necessary to record certain facts.

8. The F.I.R. was lodged by Md. Shamsher Ali (P.W. 7), who is the uncle of the deceased, alleging that on 14.07.2011, while he was in his field, his son/Md. Naim, aged about eight years, came and informed him that a boy has died near Kunda-Bahiyar. On such information, he left the field along with his son and came back home. He did not find anybody at his home. He has further stated that on hearing a rumour, his family members had gone to Kunda-Bahiyar and there, they had found the dead-body of Sahiba Khatoon, his niece. The deceased, according to the informant, had gone to Kunda-Bahiyar for scraping grass. Many persons of the village arrived on hulla, who found the dead-body.

9. On the basis of the afore-noted fardbeyan statement, Barari (Semapur) P.S. Case No. 100 of 2011, dated 14.07.2011, was registered for investigation for offence under Section 302/34 of the I.P.C. against unknown.

10. During the course of investigation, the suspicion fell on the appellant, who was arrested and was put on trial.

11. The learned Trial Court, after examining ten witnesses on behalf of the prosecution, convicted and sentenced the appellant as aforesaid.

12. The learned Amicus has taken us to the entire deposition of all the witnesses and has submitted that from the circumstances narrated in the deposition of P.W. 7, the informant and P.W. 1, who is the mother of deceased.

13. P.W. 1 appears to have lied before the police as also before the Court. It has further been submitted that the informant (P.W. 7) has not supported the prosecution case and has been declared hostile. Two other witnesses, namely, P.Ws. 3 and 4 have also been declared hostile. Out of ten witnesses, P.Ws. 5, 6 and 10 are formal. Thus, the only evidence for convicting the appellant is the deposition of the mother of the deceased, whose statement but is not in consonance with the prosecution version.

14. Apart from this, it has been urged that the charge against the appellant was under Section 376 of the I.P.C. also along with Section 302 I.P.C., but no evidence could be found with regard to any sexual attack on the deceased prior to her death and precisely for that reason, no conviction was recorded under Section 376 I.P.C. Even if, it has been argued, the deposition of P.W. 1 is believed, the only circumstance which is revealed is that the appellant had accompanied the deceased to Kunda-Bahiyar, who, himself, had come back and had told P.W. 1 that the deceased has been killed by somebody. This could be a circumstance to be taken as a starting point for the police to investigate, but no other circumstance, in chain, appears to have been brought by the prosecution for definitely accusing and charging the appellant for having killed his cousin, who stayed in the same house but with separate kitchen.

15. As opposed to the afore-noted arguments, Mr. Bipin Kumar, the learned APP has submitted that the case is an open and shut case