JUDGMENT 1. In Sessions Case No. 3/99 arising out of GR case 563/97 Kokrajhar Police submitted charge sheet against 4 accused persons and the adhoc Addl. Sessions Judge, Kokrajha, on committal of the case, framed charge under Section 302/34 and also under Section 201 IPC against the appellants Md. Samirul Islam, Md. Hussain AH, Md. Mojibour Rahman and Amir Hussain. On conclusion of the trial, accused Mojibour Rahman was acquitted and the other three appellants before us were convicted under Section 302/34 and sentenced to rigorous imprisonment for life and to pay a fine of Rs.5000 each, in default simple imprisonment for two years. They were also convicted under Section 201/34IPC and sentenced to rigorous imprisonment for three years and to pay a fine of Rs.1000/- each in default six months simple imprisonment. Both the sentences were directed to run concurrently. Hence the present appeal. 2. The prosecution case in brief is that on 17.7.97 (Thursday) the deceased Opial SK went to the house of Md. Amir Ali P.W.- 5 and slept at his place on the plea that he is required to go out early in the morning for picnic. At about 4 AM in the morning, said Opial SK left the house of P.W.- 5 and thereafter he was found missing. On next Saturday i.e. on 19.7.97 the dead body of Opial SK was found floating in a ditch, wherefrom it was recovered and the FIR was lodged by the elder brother of the deceased stating that some wicked persons have killed his brother and the informant suspected one Saber Ali and Jabed Ali's party. The dead body was sent for post mortem which was conducted by Dr. Amalendu Kar P.W.-11 who found as follows:- "Body was putrified with post-mortem elisters all over the body. Rigor-mortis passed off in lotu upper and lower limbs. At transverse continue ligature mark around the lower part of the neck present breadth about 1" inch in size. Abdominal well putrified. Right lung :- Congested. Left lung : Congested. Heart:- Congested. Pericardium :- Congested. Blood vessels : Congested. Other organs :- Healthy. Spleen :- Congested. Liver :- Congested, Opinion :- In my opinion, cause of death is due to asphyxia as a result of strangulation which is ante-mortem and homicidal by nature." 3. In this case, we' find that the death of the deceased as such is not in dispute. Pericardium :- Congested. Blood vessels : Congested. Other organs :- Healthy. Spleen :- Congested. Liver :- Congested, Opinion :- In my opinion, cause of death is due to asphyxia as a result of strangulation which is ante-mortem and homicidal by nature." 3. In this case, we' find that the death of the deceased as such is not in dispute. All the witnesses saw the dead body floating in the pond and the doctor also found ligature mark on the neck, which was homicidal in nature. There is no eyewitness to the occurrence as such except one Noor Mahamud, whose evidence has been referred to at a latter stage and the trial court has relied on the circumstantial evidence concurring with the evidence of the alleged eyewitness Noor Mahhamud P.W.-12 (Page 23 of the Judgment). The circumstances of which the prosecution has relied are listed by the trial court as below:- "(1) Accd. Amir Husain was last seen together with deceased Opial SK. (2) Accd. Persons were fled away from their homes after the occurrence. (3) Accd. Amir Hussain demonstrated how they murdered Opial SK in the house of Saber Ali Master. (4) Accd. Amir Hussain confessed before the villagers that he alongwith other accd. Persons caused death of Opial SK. (5) Accd, Amir Hussain told P.W.- 1 and others that after murder of Opial SK they concealed the dead body of Opial in jute cultivation and then it was shifted to the 'ditch' of Amir Ali's compound. (6) Dead body of Opial was recovered from the 'ditch' on Saturday morning, (7) The M.O. (P.W.-11) who conducted post-mortem on the dead body of Opial SK opined that the death was due to asphyxia as a result of strangulation." 4. So far circumstances No. 1 is concerned, the deceased was last seen together not with accused Amir Hussain but with P.W.-5 Amir Ali. P.W.-5 has categorically deposed that on the night of Thursday deceased Opial came to his house and sleep with him, although this witness claims that early in the morning, the deceased left for picnic in the company of Amir Hussain and Alijam. We find that the witness has admitted in his cross-examination, that Alijam and Amir Hussain did not enter into his house and he has recognised them by their voice only. We find that the witness has admitted in his cross-examination, that Alijam and Amir Hussain did not enter into his house and he has recognised them by their voice only. The law is well settled that recognition by voice is a very weak piece of evidence unless prosecution has been able to establish that the persons concerned know the voice of the culprit. While in this case no evidence has been laid on that count. So far circumstances Nos. 6 and 7 are concerned, these are not the circumstances pointing to the guilt of the accused but these are in respect of the death of deceased, which is well established as stated above. Circumstances Nos. 3, 4 and 5 relied on by the trial court are not admissible in view of Sec 24 and 25 of the Evidence Act as the extra judicial confession in the company of the police is not admissible in evidence. 5. Now coming to the circumstance No. 2, we find that in the FIR itself the informant had stated that he suspects Saber Ali and Jabed Ali's party in the death of the deceased. We have also perused the case diary, which shows that from the day one the police suspected the accused persons, hence, these persons were evading police arrest. 6. In the case of Dhananyaj Chatterjee v. State of West Bengal, the Apex Court observed as follows :- "We are conscious of the fact that abscondence by itself is not a circumstance which may lead to the only conclusion consistent with the guilt of the accused because it is not unknown that innocent persons on being falsely implicated may abscond to save themselves but abscondence of an accused after the occurrence is certainly a circumstance which warrants consideration and careful scrutiny." 7. Thus in absence of any other circumstances including the circumstances of last seen together with accused Amir Hussain, mere absconding cannot be a ground to hold the accused persons guilty of a serious offence like murder. 8. Besides, the above circumstantial evidence, the trial court has relied on the testimony of Noor Mahamud P.W.-12, a young boy who was aged about 15/16 years at the relevant time. P.W.-12 was working as a servant in the house of one Saber Ali Master and he has deposed that around 1 AM, hearing some noise in the TV. 8. Besides, the above circumstantial evidence, the trial court has relied on the testimony of Noor Mahamud P.W.-12, a young boy who was aged about 15/16 years at the relevant time. P.W.-12 was working as a servant in the house of one Saber Ali Master and he has deposed that around 1 AM, hearing some noise in the TV. room, he went out of his room and found the door of the T.V. room closed. He thereafter peeped into the room through the window, which was screened by purdah and saw one Samarul doctor administering two injections to the deceased Opial SK who was held by Saber Ali, Hussain Ali, Aliajam and Amir Hussain. The witness further saw accused Hussain Ali strangled the deceased. The witness claim to have seen the incident as an electric bulb was on in the room. 9. The trial court's finding is that the evidence of this witness P.W.-12 is of an independent nature. But from the admission of P.W.-12 himself it is seen that the deceased was related to his brother. The claim of electric bulb was also introduced in the court for the first time. Further we find that the statement of this witness was recorded under Section 164 Cr.P.C. on 6.8.1997, whereas the incident had taken place on 17.7.97 and the dead body was recovered on 19.7.97 and as stated above the statement of this witness was recorded for the first time on 6.8.97 that is after 20 days of the incident. The explanation is given by the witness himself. The witness states, that "having seen Opial SK being killed, I came to my room and slept. I did not see the dead body being taken away. Two days after the incident, the dead body was recovered. I did not see the dead body. On the next day, I met Sahjuddin, a relative of the deceased and I did not report to Sahajuddin or the other villagers about the incident and I went to graze the cows as usual." After 5/6 days of the incident P.W.-12 was called to the thana and he w as kept there for 3/4 days and he did not say anything to the police and after 4 days, he narrated the incident to police, whereafter he was sent to court for recording his statement. In order to verify the statement of this witness, we examined the case diary after calling the same from the Session Judge, Kokrajhar and find that the case diary is altogether silent as to when this witness Noor Mahamud was sent to the court for recording his statement under Section164 Cr.P.C. The case diary as a matter of fact does not disclose the existence of P.W.- 12 except showing his name is the chargesheet. Admittedly the police did not examine this witness under Section 161 Cr.PC and this was noticed by the trial court in the impugned judgment, but the trial court held that the Investigation Officer may have taken the view that in the light of P.W.-12's statement recorded under Section 164 Cr.P.C. his examination under Section 161 Cr.P.C. is not required and accordingly held that non-recording of statement under Section 161 Cr.P.C. has not prejudiced the examination. 10. The recording of statement under Section 161 Cr.P.C. is a condition precedent for forwarding a person to court for recording statement under Section 164 Cr.P.C. and vice-versa. It seems that the trial court took no notice of this distinction. In the above circumstances, the evidence of P.W.-12, that he was kept confined in the police station for 4 days assumes importance and lends support to the defence plea that this man P.W.-12 has been put up as a witness by way of concoction and fabrication. We also fail to comprehend as to how come the police brought this young boy to thana and kept in confinement for 4 days and produced him as an eyewitness. Whereas P.W.-12 has never opened his mouth after the incident or claimed before anyone that he has witnessed the incident. The trial court has relied on the observation of the Apex Court in the case of Rammi Alias Rameshwar v. State of M.P. (2000) SCC 26 regarding post event conduct of a witness who has witnessed a murder incident. 11. In the case of State of U.P. v. Noorie (Smt.) Alias Noor Jahari (1996) SCC 945, the Apex Court observed "while assessing and evaluating the evidence of eyewitness the court must adhere to two principles, namely, whether in the circumstances of the case it was possible for the eyewitness to be present at the scene and whether there is anything inherently improbable or unreliable. Credibility of a witness has to be decided by referring to his evidence and finding out how he has faced in cross-examination and what impression is created by his evidence taken in other context of the case and not by entering into the realm of conjecture and speculation." 12. In the present case P.W.-12 a young boy aged about 15/16 years who was sleeping in a separate room claims to have witnessed the incident of murder that took place in a different room by peeping through the window on the dead of night that is about 1 AM and thereafter calmly goes back and sleeps in his room. He remains silent for about 10/15 days and after being kept in police custody (for reasons best known to the prosecution), he is introduced as an eyewitness to the incident by getting his evidence recorded under Section 164 Cr.P.C. but without recording his statement under Section 161 Cr.P.C. The criminal procedure code or any other law in the country do not permit the police to keep a prospective witness in thana for 4 days without recording his presence in the case diary. P.W.-12 claims that he was not kept in lock up which goes to show that the police wanted to treat him with respect. The entire conduct of P.W.-12 seems improbable and the submissions that due to police torture P.W.- 12 has concocted a story or deposed as demanded by the police cannot be ruled out completely. 13. Further we find that P.W.-12 has introduced the pushing of injection by a doctor, which was not there in his earlier statement under Section 164 Cr.P.C. He has also introduced the story of burning of electric bulb, which facilitated witnessing of the incident. The trial court has observed that even if the burning of the lamp is not expected at 12 PM at night, the witness might have seen the incident in the room through the window as the T.V. was on. There is no scope for such surmises and conjectures in a criminal trial. The evidence must come forth from the witness concerned as to how he had witnessed the incident or what was the source of light. 14. There is no scope for such surmises and conjectures in a criminal trial. The evidence must come forth from the witness concerned as to how he had witnessed the incident or what was the source of light. 14. On careful consideration of the evidence of P.W.-12, we are of the view that this witness is not at all reliable and his evidence does not inspire any confidence on the contrary there is a lingering doubt in our minds that this witness has been introduced by police in order to shape the prosecution story. Accordingly, we discard the evidence of P.W.-12 as wholly unreliable. 15. In view of the aforesaid findings, we hold that the prosecution has failed to bring home the charge against the accused appellants and the accused appellants are entitled to acquittal. Accordingly they are acquitted forthwith. The conviction and sentence entered into by the trial court is set aside. Send a copy of the order to the Superintendent Jail, Kokrajhar and to the Sessions Judge, Kokrajhar. 16. Send down the records.