Point of Law:
If the deceased had died on the previous day then it cannot be believed that the informant i.e. the PW-5 and the other members of the family including the PW-1 were not aware of the actual incident.

JUDGMENT :

(Suman Shyam, J)

Heard Mr. A. Ahmed, learned Amicus Curiae appearing for the appellant. We have also heard Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam, appearing for the State. None has appeared for the informant.

2. This appeal is directed against the judgment and order dated 15.11.2018 passed by the learned Additional Sessions Judge No.2 (FTC), Tinsukia in connection with Sessions Case No.72(T)/2015 whereby, the sole appellant was convicted under Section 302 of the Indian Penal Code for committing the murder of Amila Moran and sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs.10,000/-, in default, to undergo rigorous imprisonment for another one year.

3. The prosecution case, in a nutshell, is that the appellant, who had an illicit relationship (love affair) with Amila Moran, had strangulated her to death and thereafter left the dead body under a bed and fled the scene. On 26.09.2014, the husband of the victim Sri Gethela Dohotia i.e. PW-5 had lodged an F.I.R. before the Officer-in-Charge of Baghjan Police Station based on which, Baghjan P.S. Case No.33/2014 was registered under Section 302 of the IPC. Upon completion of investigation the Investigating Officer (I.O.) had submitted charge-sheet against the accused under Section 302 of the IPC. Since the accused had pleaded innocence and claimed to be tried, the matter went up for trial.

4. The case of the prosecution was based on circumstantial evidence. In order to bring home the murder charge, the prosecution had examined as many as 10 witnesses including the doctor who had conducted the post-mortem examination on the dead body (PW-4) and the two Sub Inspectors, who had conducted investigation in the matter and submitted charge-sheet as PWs-9 and 10. The statement of the accused person was recorded under Section 313 of the Cr.P.C. wherein he had denied the allegation brought against him but the accused did not adduce any evidence. Upon conclusion of trial, the learned Additional Sessions Judge had found the accused guilty of having committed murder. Accordingly, he was convicted under Section 302 of the IPC and sentenced as aforesaid.

5. By referring to the evidence available on record, Mr. Ahmed submits that there is no evidence to prove the murder charge brought against the accused. On the contrary, his conviction is entirely based on suspicion and on account of the fact that there was a rumour about his love affairs with the accused/appellant. Mr. Ahmed has further argued that the learned trial court has failed to appreciate the evidence brought on record, more particularly the evidence of child witness PW-1, in the proper perspective and had arrived at a wrong conclusion in the matter. Mr. Ahmed has also argued that from the bulk of evidence brought on record two views, as regards the circumstances leading to the death of the deceased, is possible and therefore, it cannot be said that the charge brought against the accused has been proved beyond reasonable doubt. Contending that suspicion cannot take the place of proof, the learned counsel for the appellant has prayed for setting aside the conviction of his client and also to release him from jail.

6. Responding to the above, Ms. Bhuyan, learned Addl. P.P., Assam, submits that the testimony of PW-1 was taken into account by the learned trial court and this witness had deposed that she had seen the accused fled away from the scene of occurrence. The learned Addl. P.P. has, however, fairly submitted that save and except the aforesaid evidence of the PW-1 there is nothing to connect the accused/appellant with the occurrence.

7. We have considered the submissions advanced by learned counsel for both the sides and have gone through the materials available on record.

8. At the very outset, it would be pertinent to point out herein that from the evidence brought on record it appears that the minor daughter of the deceased, viz., Manjula Dohotia was the first person who had found