P.K. Deka, J.

Heard Mr. R.M. Choudhury, the learned Amicus Curiae and Mr. M. Phukan, the learned Additional Public Prosecutor, Assam.

2. This appeal is against the judgment and order of sentence dated 23.6.2016 passed by the learned Additional Sessions Judge, (FTC), Darrang at Mangaldai in Sessions Case No.200(DM)2015.

3. The prosecution case on the basis of an FIR lodged by Sri Arjun Sarkar, son of Late Fikir Sarkar, resident of Mowamari under Mangaldai Police Station, district Darrang dated 04.08.2015, deceased Puspa Sarkar was married to the present accused/appellant Babul Sarkar about 7 (seven) years back. She was subjected to torture both mental and physical by the said accused/appellant. On 03.08.2015, at about 6.30 PM the accused/appellant visited the house of Arjun Sarkar, the father of the deceased Puspa Sarkar and told him that Puspa was found missing. A sum of Rs.500.00 was given to the accused/appellant by the said Arjun Sarkar, the informant and on the next day, at about 5.00 AM, the informant came to know that the dead body of his daughter Puspa was found lying naked by the side of the Mangaldai River. The accused/appellant had killed his daughter and threw her into the river. On the basis of the FIR, Mangaldai P.S. Case No.675/2015 under Section 304(B) of the IPC was registered and on the basis of the investigation and on its completion charge sheet was filed against the accused/appellant. On being committed the learned trial court charged the accused/appellant under Sections 306/302/304(B) of the IPC and was put on trial. During the trial the prosecution side examined 9 (nine) witnesses and the statement of the accused/appellant was recorded under Section 313 of the Cr.P.C. wherein total denial was the plea taken by the accused/appellant. No evidence was adduced by him. The learned trial court framed the following points for determination:

“(i) Whether the accused, being the husband of the deceased Puspa Sarkar subjected her to cruelty for demanding dowry abetted and incited her to commit suicide for which she committed suicide by strangulating herself on or about in the intervening night of 03.08.2015 to 04.08.2015 at Mowamari?

(ii) Whether the accused committed murder of his wife Puspa Sarkar by strangulating her and throwing the dead body away by the side of the river on the intervening night of 03.08.2015 to 04.08.2015?

(iii) Whether the accused caused death of his wife Puspa Sarkar by subjecting her to cruelty by demanding dowry within seven years of their marriage and her dead body was found lying by the side of a river in an abnormal circumstance in the morning of 04.08.2015?”

4. The learned trial court held that the prosecution was able to prove the case against Babul Sarkar beyond any reasonable doubt through circumstantial evidence and the circumstances taken cumulatively form a chain so complete that there is no escape from the conclusion that within all human probability the murder was committed by the accused Babul Sarkar and the accused/appellant was held liable for murder of Puspa Sarkar whose dead body was found lying by the side of the riverine reef of Mangaldai River in a naked position and the accused/appellant was convicted under Section 302 of the IPC. It was further held that the evidence was found insufficient to hold the view that any of the offences under Section 306 or 304(B) of the IPC was committed by the accused/appellant and he was acquitted from the purview of the charges under Section 306/304(B) of the IPC. The accused/appellant Babul Sarkar was sentenced to suffer Rigorous Imprisonment for life with a fine of Rs.5,000.00 (Rupees five thousand), in default Rigorous Imprisonment for 3 (three) months.

5. Mr. Choudhury, the learned Amicus Curiae submits that the conviction of the accused/appellant under Section 302 of the IPC is not proper inasmuch as there was no eye witness as to who caused death of Puspa Sarkar and the learned court below, on the basis of circumstantial evidenc