Judgment P.K.Sinha, J. 1. The sole appellant Sona Tuddu stands convicted under section 302 of the Indian Penal Code and sentenced to imprisonment for life. 2. Informant Mangru Tuddu is none else than the son of the appellant who, in his written statement given to the Police which is the first information report (Exhibit-3), has claimed that last Saturday he was sent by his mother Manjhli Marandi (deceased) and his father to fetch his sister Barki Tudu to help in cultivation. He returned back on Sunday with his brother- in-law and on his return his wife, Manjhli Hansda, informed that on the Saturday itself at about 8.00 A.M. his father and mother had gone to forest but when they did not return back, the next day (Sunday) they were searched when, in the forest, the dead body of Manjhli Marandi, neck cut, was located, with the appellant missing. The informant thereafter went to the forest with his brother-in-law at 3.00 P.M. and saw the dead body in the Pakri Pahari forest with cut marks on the neck. Mukhiya advised him to inform the Police after which he went to the Police Station on 20.7.1992 and handed over his written statement at about 9.30 A.M. 3. It will appear that in course of investigation Sona Tuddu was arrested and on Police submitting the charge sheet, trial commenced resulting in his conviction. In course of trial Sona Tuddu had denied that he had murdered his wife and claimed that his wife had married again and a child was born to her thereafter. He claimed that he had gone to his old village Naniha, RS. Chakai and was staying there when he heard that his wife was murdered. In the memorandum of appeal sent from Jail the appellant has claimed that his defence was not properly examined. 4. The prosecution had examined eight witnesses out of whom witness Madan Rai is a formal witness and P.W. 1, Dr. Arun Kumar Singh is the. one who had conducted autopsy upon the dead body of Manjhli Marandi. 5. There is no doubt, nor it has been denied, that Manjhli Marandi was murdered in the forest, the doctor in the autopsy having found an incised wound 6" x 2 and 1/2" over the back of the neck cutting the vertebral column as also the skin, muscles, blood vessels, nerves and spinal chord. 5. There is no doubt, nor it has been denied, that Manjhli Marandi was murdered in the forest, the doctor in the autopsy having found an incised wound 6" x 2 and 1/2" over the back of the neck cutting the vertebral column as also the skin, muscles, blood vessels, nerves and spinal chord. The injury was found to be antemortem which resulted in death. The report of the doctor is Exhibit-1. 6. Out of other witnesses, P.W. 2 is Badki Marandi living in the same village, and the sister of the deceased. P.W. 3, Budhna Marandi and P.W. 4, Ranglal Hansda are co-villagers. Manjhali Hansda is the wife of the informant Mangru Tudu and daughter-in-law of the deceased and the appellant who is P.W. 5. P.W. 6, Raju Soren is also an inhabitant of the same place whereas P.W. 7, Mangru Tuddu is the informant himself. 7. From the evidences of these witnesses the following points stand established, not having been dislodged by the cross-examination- (i) The appellant had come back to his house only three months back after having eloped for about fifteen years (P.W. 2, P.W. 3, P.W. 4 and P.W. 5). (ii) Before the occurrence, on the same day the informant was sent by both the deceased and the appellant to go and bring back his sister and her husband for cultivation purposes where he went and came back on Sunday (19.7.1992) (as claimed in the first information report and also affirmed by P.W.7). (iii) On 18.7.1992 in the morning hours the appellant and the deceased together had proceeded towards the forest to collect dried woods. (P.W. 2, P.W. 3, P.W. 4 and P.W. 5). (iv) They had proceeded towards the forest, both having Tangi in their hands (P.W 4 and P.W. 5). (v) That very day the deceased was not willing to go to the forest but the appellant had pressed to accompany. (P.W. 5). (vi) That very day neither the deceased nor the appellant came back to the house. (P.W. 2, P.W. 3, P.W. 4 and P.W. 5). (vii) (a) On the next day (19.7.1992) when they did not come, P.W. 2 and P.W. 5 went to the forest in search and they located the murdered body of Manjhli Marandi inside the forest. (P.W.2 and P.W. 5). (P.W. 2, P.W. 3, P.W. 4 and P.W. 5). (vii) (a) On the next day (19.7.1992) when they did not come, P.W. 2 and P.W. 5 went to the forest in search and they located the murdered body of Manjhli Marandi inside the forest. (P.W.2 and P.W. 5). (b) On their return both the witnesses also informed the co-villagers as well to the informant when he came back on 19.7.1992. (P.W. 3, P.W. 4 and P.W. 6). 8. Besides aforesaid points, it has come in the evidences of P.W. 2 and P.W. 3 that the deceased and the appellant some times used to quarrel but this was denied by the informant in his evidence. However, in his examination under section 313 of the Code of Criminal Procedure the appellant, when asked about this, admitted that some times they used to quarrel. 9. It has also come in the evidence that when P.Ws 2 and 5 returned from the forest having located the dead body, on the next day, some other co-villagers had also visited the place and when the informant came, he also went to the forest and saw the dead body whereafter he filed his written first information report at the Police Station. It has also come in the evidence of P.W. 6 that when he had gone to the forest he had seen, near the dead body accumulated (dried) woods, which obviously had been collected. 10. There is one discrepancy also in between the evidences of P.W. 4 and P.W.6 so much so that P.W. 4 said that at the time of death the deceased was wearing dotted green coloured saree and white blouse whereas P.W. 6 said that on the date of occurrence she was wearing white coloured saree though he could not say the colour of the blouse. 11. The witnesses also are unanimous that after having gone inside the forest, the appellant never came back. Since the Investigating Police Officer has not been examined in the case, it has not come, nor it came in the evidence of other witnesses, as to from where the appellant was subsequently arrested and in what circumstances. As already seen, in his statement under section 313 of the Code of Criminal Procedure the appellant had claimed that he was at his original home, elsewhere, where he heard about the murder of his wife. 12. As already seen, in his statement under section 313 of the Code of Criminal Procedure the appellant had claimed that he was at his original home, elsewhere, where he heard about the murder of his wife. 12. Now what has to be seen is whether the aforesaid points can be said to be such links which complete the chain and prove that the appellant alone could have committed the murder of his wife. No doubt, the evidence on the record create a strong suspicion against the appellant but suspicion howsoever strong cannot take place of evidence, even when the case is of circumstantial evidence. 13. The point that the appellant had been absent from his house for about fifteen years and had come only three months back may be taken with the point that the appellant had admitted that he some times quarrelled with his wife, as also had come in the evidence. This point shows that it was not for the first time that the appellant suddenly had absented himself from the house. This is particularly so in view of the evidence that after going to the forest with his wife, he never came back. The point that earlier also both the husband and wife used to quarrel rather goes in aid of the appellant showing that quarrelling could not be taken to have motivated the appellant to do away with his wife. There is nothing on the record to show that during the three months period when the appellant had remained with the deceased, he ever had physically harmed, in any manner, his wife after a quarrel, nor it has been proved that soon before their departure to the forest, any serious quarrel had taken place. As a matter of fact, no motive whatsoever has come on the record which could have prompted the appellant to kill his wife. This matter also may be considered with the evidence on record that near the dead body a bundle of collected woods was found lying. This shows that after going into the forest they had collected woods, or at least the deceased had collected woods, which were found near her dead body. Obviously, during such collection of woods nothing had happened. This matter also may be considered with the evidence on record that near the dead body a bundle of collected woods was found lying. This shows that after going into the forest they had collected woods, or at least the deceased had collected woods, which were found near her dead body. Obviously, during such collection of woods nothing had happened. If the appellant had gone to the forest with his wife with intention to kill her, for whatsoever reason, it was hardly likely that once inside the density of forest he would have waited till they had collected dried woods. 14. It also cannot be said that the informant was purposely sent away in the early morning on the date of occurrence by the appellant because what has come in the evidence is that both the appellant and the deceased had asked him to go to his sisters place and bring back her and her husband to help in the cultivation work. 15. That the appellant and deceased both had a Tangi each in their hands by itself will not prove that the deceased was killed by either of those Tangis. Investigating Police Officer not having examined in the case, it has not come on the record as to when from where the appellant was taken into custody and whether any place was searched to find out either of the Tangis and, if so, with what result. In absence of any such evidence it is difficult to presume that the deceased must have been killed with the help of either of the Tangis. 16. Why the appellant who had gone with his wife in the forest did not come back is shrouded in mystery as no light on it could be thrown in the evidence, particularly in absence of the evidence of the Investigating Police Officer. Though that is a suspicious circumstance against the appellant, but hardly a clinching circumstantial evidence in order to prove that he had killed the deceased. 17. It has come in the evidence of a witness that on that day deceased was not willing to go to the forest but the appellant had pressed her to accompany him. This evidence has to be read with the evidence on record of witnesses that both frequently used to go to the forest to collect woods which they sold in the market. This evidence has to be read with the evidence on record of witnesses that both frequently used to go to the forest to collect woods which they sold in the market. Therefore this is not a point which could gainfully be used against the appellant in the chain of circumstantial evidence. 18. The main evidence is that the appellant was last seen together with the deceased. But this has to be considered with the evidence on record that they had gone to the forest in the morning and the dead body was recovered only the next day. 19. On this point, the Apex Court in the case of Bodh Raj vs. State of J and K; (2002) 8 S.C.C. 45 has observed as follows : "The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases." 20. As seen, in this case the dead body was found almost about twenty four hours after the appellant was seen going with the deceased. Obviously, in the village a number of tribals resided and it would have been natural for many of them to venture into forest, particularly for collecting woods. Therefore, it cannot be concluded that during this period it was the appellant who alone was with the deceased till the time she died. 21. Obviously, in the village a number of tribals resided and it would have been natural for many of them to venture into forest, particularly for collecting woods. Therefore, it cannot be concluded that during this period it was the appellant who alone was with the deceased till the time she died. 21. In view of the aforesaid circumstances, particularly when no motive whatsoever has come on the record for the appellant to kill his wife, nor there being any evidence on record as to what actually had happened within the long period when both were seen together going to the forest up to the time the dead body of the deceased was located, and evidence not forthcoming as to what happened to the two Tangis belonging to the appellant and the deceased, it is not possible to hold that all the links in the chain are in place proving that the appellant and appellant alone could have committed the murder of his wife. 22. That being so, I am of the opinion that the prosecution has failed to prove its case beyond reasonable doubts. This appeal, therefore, is allowed and the conviction and sentence passed against the appellant are hereby set aside and the appellant Sona Tuddu is ordered to be acquitted. He is directed to be released from custody, if not required to be detained in connection with any other case. 23. Sri Sunil Kumar Mandal, Advocate has appeared in the case as Amicus- curiae to argue the appeal on behalf of the appellant. His assistance to the court is appreciated. Sri Mandal will be paid his remuneration by the Legal Aid Committee of this Court. B.N.P.Singh, J. 24 I agree.