Judgment Girish Chandra Gupta, J. This appeal is directed against a judgment and order dated 25th March, 1986 by which the sole appellant, Abdul Hamid Mallick, was convicted of the offence punishable under section 302 of the Indian Penal Code and the co-accused Sk. Manjur and Abdul Jabbar were acquitted of the aforesaid charge. The appellant was sentenced to imprisonment for life and to pay a fine of Rs.2000/- in default to suffer further imprisonment for a period of one year passed in Sessions Trial No. 6 of 1986 arising out Sessions Case No. 107 of 1984. 2. The facts and circumstances of the case briefly stated are as follows: The deceased Manowara was the younger sister of Mostora. Mostora was given in marriage to one Kasem. Mostora committed suicide leaving minor children. Manowara at that point of time was very young. In order to look after the minor children of her sister Mostoia, Manowara very often used to go to the house of Kasem. The accused, Abdul Hamid Mallick, is the younger brother of the said Kasem. By reason or the constant visit of Manowara to the house of Kasem where Abdul Hamid Mallick also used to reside they developed an intimacy. The father of Manowara at one stage asked them to get married to which they replied that they had already married in a Court. The father of the victim insisted upon production of the marriage certificate which they were unable to produce. Manowara had by this time given birth to a female child which died of drowning. She conceived for the second time. Her father was not satisfied with the word of the couple that they had already married. He therefore made an application before the Muslim Marriage Registrar and on his prayer the Muslim Marriage Registrar, the P.W.17, came and registered the marriage between Manowara and Hamid on 19th April, 1981. On 15th Baisak 1388 B.S. equivalent to 28th April, 1981, the accused Hamid came to the house of the de facto complainant and took away his wife Manowara for the purpose of shopping. The P.W.1 was told by the accused Hamid that they might go to watch a movie and might not come back in the night. When they left the house, it was about 2/2.30 p.m., and it was a Tuesday. Manowara did not come back nor did her husband the accused Hamid. The P.W.1 was told by the accused Hamid that they might go to watch a movie and might not come back in the night. When they left the house, it was about 2/2.30 p.m., and it was a Tuesday. Manowara did not come back nor did her husband the accused Hamid. On the following Friday, the P.W. 1, got a message from his youngest son-in-law, P.W. 4 that the deadbody of a woman was seen hanging from a tree in the field of Barsul. The P.W.1 went in search of his daughter and ultimately identified her deadbody in the morgue. The P.W. 1 went to the Burdwan Police Station. He was asked to meet on Monday but in spite of meeting them repeatedly, they did not do anything. Not even the FIR was accepted by them. In the circumstances, the P.W.1 applied before the Sub-Divisional Judicial Magistrate, Burdwan which was directed to be investigated under section 156(3) of the Code of Criminal Procedure on 8th June, 1981. This is how the criminal proceeding was started. The records reveal that the accused Hamid surrendered in Court on 3rd August, 1981, after a futile attempt to obtain anticipatory bail and after a warrant of arrest and proclamation was issued. 3. The parents of the deceased Manowara subsequently came to know that the accused Hamid had married another woman on 25th April, 1981 which he had never disclosed to them. These facts indicated by us except for the date of surrender were deposed to by the P.W.1 and have remained unchallenged in the cross-examination. From the cross-examination of the P.W. 1 by the defence, it transpired that the relationship between the accused and the deceased commenced 10/12 years prior to the death of Manowara. Manowara most of the time used to stay at her parental house because her parents were old and infirm. The accused prior to 15th Baisak had come to the house of the P.W.1 on 6th or 7th Baisak that is to say 7/8 days prior to 28th April, 1981. The case of the defence appearing from the suggestion given to parents of the deceased is as follows: (a) It is not a fact that on 28th April, 1981 the accused took away his wife from her paternal house. (b) The deceased had left her paternal house on her own accord. The case of the defence appearing from the suggestion given to parents of the deceased is as follows: (a) It is not a fact that on 28th April, 1981 the accused took away his wife from her paternal house. (b) The deceased had left her paternal house on her own accord. (c) She committed suicide by hanging out of shame because she had come to know that her husband had taken a second wife. 4. This case of the defence would appear from the suggestions given to the P. Ws.1 and 2 which we would like to reproduce which is as follows: "Not a fact that I have stated falsely that my son-in-law Hamid came and left with my daughter on the 15th Baisakh as I have stated. I cannot say if any other witness saw my son-in-law to leave my house on the 15th Baisakh, with my daughter. Not a fact that my daughter left my house on her own accord and as she could learn that her husband Hamid took a second wife out of that shame she committed suicide by hanging. Not a fact that my daughter Manowara used to go out in the company of other persons. Not a fact that my daughter committed suicide on hearing that my son-in-law took a second wife." Therefore, the points which arise for decision are – (a) whether the accused Hamid alias Gurul took away his wife on 15th Baisak at 1388 B.S. equivalent to 28th April, 1981 for the purpose of watching a movie and shopping. (b) Whether the death of Manowara was suicidal. 5. We shall try to answer questions formulated above in the same order as they have been framed. 6. Point (a): P.W. 1, father of the deceased Manowara, deposed in that regard as follows: "On 15th Baisakh, 1388 B.S. at about 8 or 9 a.m., my son-in-law Hamid reached my home. After taking (lunch?) at my residence, he told me that he would go out with Manowara for marketing and thereafter they may witness a cinema show and might not return to my house. Rather they might go to the house of Hamid. At about 2/2.30 p.m. my son-in-law Hamid left my residence with Manowara and they did not return to my residence in that night." 7. Rather they might go to the house of Hamid. At about 2/2.30 p.m. my son-in-law Hamid left my residence with Manowara and they did not return to my residence in that night." 7. P.W. 2, the mother of the deceased, deposed in this regard as follows : "My daughter used to accompany my son-in-law frequently but on the last occasion my son-in-law left with my daughter from our house on the 15th Baisakh, 1388 B.S. on the plea that they would witness a cinema how (now?) and they would do some marketing and if they could find (time?) to return they would come back to our house, if not, they would not return, m that night." 8. P.W. 3, a neighbour of the P.W. 1, who had seen the deceased and the accused together on the fateful day, deposed in that regard as follows : "On Tuesday during the middle of the month of the month of Baisakh at about 2 or 2.30 p.m. I was waiting at the bus stop in front of my house where I met Manowara and her husband. On my enquiry they told me that they intended to go to Memari. As the bus was over-crowded I could not board the bus. But Manowara and her husband boarded the bus. On my arrival at Memari by the next bus, I saw them to come out of the shop of Shyamal Pal at Memari and to proceed towards the railway station. Shyamal Pal owns a sweetmeat shop. I could learn 2/3 days thereafter that Manowara was murdered. Gurul is present in the dock (identified) and it is the nick name of the accused Abdul Hamid Mallick." 9. P.W. 16, Sukumar, had seen the couple on 15th Baisak in the Memari Railway Station, at about 5.30 p.m.l6.00 p.m. He deposed as follows: "I knew Manowara and her father Daued Rahaman of Gantey. On 15th Baisak, 1388 B.S. at about 5.30/6.00 p.m. I and my friend Habu Gopal Das were standing on the railway platform at Memari station when I noticed Atul @ Manowara and her husband namely Gurul on the platform. I enquired of Atul whom I used to address a didi as to whether she would return home at that time but she replied that she would be late to return as she had some other business." 10. I enquired of Atul whom I used to address a didi as to whether she would return home at that time but she replied that she would be late to return as she had some other business." 10. The evidence of these witnesses go to establish that on 15th Baisak 1388 B.S. equivalent to April, 1981 the deceased accompanied by the accused went out of the house of the P.W. According to the P.W. 1 they had gone for the purpose of shopping and watching a movie. The clothings of Manowara including the chappal and the sunglass which she had on her person when she left the house were deposed to by the P.W. 1 and were also identified by him. 11. From the evidence of the P.W. 6, another important information was elicited that on 29th April, 1981 in the presence of police he had seen scattered near the deadbody of Manowara a purse which contained a small phial of scent. The purse and the scent may have been purchased on the fateful day which goes to corroborate the evidence of P.W.1 that they had gone out of the house to watch a movie and for the purpose of shopping. 12. P.W. 3 saw the couple to come out of the sweetmeat shop of Shyamal Pal at Memari which goes to show that they took refreshment there. We, therefore, have no hesitation in our mind to hold that the couple did, in fact, go out of the house of the P.W. 1 on 28th April, 1981 at about 2/2.30 p.m. They were seen to come out from the sweetmeat shop of Shyam Pal at Memari and were proceeding towards Memari Railway Station. At the Memari Railway Station, they were seen by the P.W.16 at 5.30 p.m./6.00 p.m. on that day. Therefore, the first question is answered in the affirmative. Point (b): P.W. 6, Netai Chatterjee is a seizure list witness and he had seen the deadbody on 29th April, 1981. His evidence is as follows: "He is a resident of Barsul. It is in Barsul that the deadbody was found." Barsul is, according to P.W. 3, 10/15 miles from Gantey the paternal house of the deceased. Further evidence of P.W. 6 is as follows: "I am a resident of Barsul. His evidence is as follows: "He is a resident of Barsul. It is in Barsul that the deadbody was found." Barsul is, according to P.W. 3, 10/15 miles from Gantey the paternal house of the deceased. Further evidence of P.W. 6 is as follows: "I am a resident of Barsul. On 29.4.81 in the morning I went to a Banyan tree by the side of a tank in the midst of a field on hearing that the deadbody of a female was hanging there from that Banyan tree with the wearing saree of the deadbody as I could understand. One of her sandals was found in a nulla nearby and the other in the field. I also found scattered on the ground a comb, a small purse containing a small phial of scent. Bodies and blouse were on the upper portion of the deadbody while a saya was on the lower part of the body of the dead person. I noticed mark of blood on the saya. I noticed on the elbow, on the legs and on the upper part of the breast of the dead body mark of abrasion and ecchymosis. Police seized these articles in my presence under this seizure list. The seizure list be marked as document No.3 for identification. This is my signature in the seizure list marked as Ext.3/1. I also was a witness to the inquest held on the dead body. The girth of the trunk of the Banyan tree was very thick. On all sides there was vacant fields and no habitation. I only know one of the accused persons standing on the dock. His nickname is Bhatkan and his name is Kajal. He is a resident of Saktigarh village." 13. Cross-examination of this witness was declined. Therefore, we can safely infer that the evidence of the P.W. 6 was not disputed on behalf of the defence. From his evidence it appears that one of her sandals was lying in the field and the other in the nulla. This a very important circumstance the significance whereof we shall discuss at the time of summing up. The belongings of the deceased were lying scattered on the ground which is another significant circumstance. Besides mark of blood on the saya, marks of injury were found on the elbow, on the legs and on the upper part of the breast which contained abrasion and ecchymosis. The belongings of the deceased were lying scattered on the ground which is another significant circumstance. Besides mark of blood on the saya, marks of injury were found on the elbow, on the legs and on the upper part of the breast which contained abrasion and ecchymosis. The place of occurrence was a lonely place. 14. P.W.7, Biswanath, had seen the deadbody hanging from the Banyan tree. He is also a seizure list witness. 15. P.W.9, Makhanlal Sharma, a constable attached to Burdwan Police Station, deposed as follows: "On 29.4.81 I was attached to Burdwan P.S. in the same capacity. On that date I accompanied Chitta Basu, SI of Police to Barsul village and there we found a female body hanging from a Banyan tree. The body was hanged with the wearing saree of the woman. I also noticed blood marks in the saya which was on the person of the deadbody and I also found the blouse and the brassier pulled upwards. I also found the bruises on the elbow and other parts of the body. I carried that deadbody to the morgue for post-mortem examination. On behalf of the defence, cross-examination was declined. From his evidence it appears that the blouse and brassier had been found pulled upwards which is also borne out by the photographs marked Exhibit 6 exposed by the P.W.22 from the place of occurrence. This witness also found bruises on the elbow and the other parts of the deadbody. P. W.12 is the Chawkidar in Barsul village who had informed the police as regards the female hanging from a branch of the tree. P.W.10, Dr. A.K. Gupta, proved the post-mortem report prepared by T.N. Chatterjee on 30th April, 1981; who expired on 21st October, 1981. Dr. Gupta opined that "If a person being rendered incapacitated by poisoning or by any injury and then hanged it would amount to homicidal hanging." 16. From the evidence discussed above by us, the inevitable conclusion is that the death was homicidal and not suicidal. The reasons which have weighed with us are as follows : (a) Barsul is 10/15 miles away from the village of the deceased. If she wanted to commit suicide, there was no reason why she should come all the way from Gante to Barsul. The reasons which have weighed with us are as follows : (a) Barsul is 10/15 miles away from the village of the deceased. If she wanted to commit suicide, there was no reason why she should come all the way from Gante to Barsul. (b) The evidence of P.W.6 and the P.W.9 coupled with the photographs go to establish unmistakably that this woman was sexually molested or harassed before her death which is inconsistent with the theory of suicide. (c) Had it been a case of suicide, there is no reason why her belongings, the purse and the contents thereof should lie scattered on the ground. Marks of assault on her body are also significant which go to show that the death was not a voluntary act. (d) One of her sandals was found in the nullah and another in the field which is a pointer to show that this was not a case of suicide. She probably tried to escape. (e) The fact that the part of foetus came out from the womb of the victim suggests violent assault could be by legs. P.W. 10 deposed that if a person is incapacitated by any injury or by poison and then hanged, then it is a case of homicide. There is no expertise involved in it. Every person of ordinary prudence would conclude that a person incapacitated by injury or by any other thing would not be capable of hanging himself/herself. We have evidence galore before us which leads us to conclude that the victim was physically and sexually assaulted and thereafter she was hanged with her own saree. 18. Mr. Dastoor appearing for the appellant, however, contended that the P.W. 10 has ruled out that the death was homicidal. We are unable to read any such thing in the evidence of the P.W.10 which is quoted in extenso hereinbelow: "The death by hanging may be accidental, homicidal or suicidal also. If a person being rendered incapacitated by poisoning or by any injury and then hanged it would amount to homicidal hanging. XXnd:- I did not hold the post-mortem examination in the particular case and so it is not possible on my part to say whether the particular case is homicidal or suicidal hanging." 19. Mr. If a person being rendered incapacitated by poisoning or by any injury and then hanged it would amount to homicidal hanging. XXnd:- I did not hold the post-mortem examination in the particular case and so it is not possible on my part to say whether the particular case is homicidal or suicidal hanging." 19. Mr. Dastoor next contended that the post-mortem report goes to show that the hyoid bone was intact and, therefore, it must be a case of suicide. There is no such hard and fast medical theory. Nor was any such rule of the medical jurisprudence brought to our notice. 20. For the reasons indicated above we are of the view that it was a case of homicidal death and the point is answered accordingly. 21. Now, the question is who is the author of this crime. 22. Mr. Dastoor submitted that the accused-Hamid had no motive to perpetrate this crime. We are unable to accept this submission. There is evidence to show that the accused did or could have a motive to commit this crime. There is no dispute that the intimacy between the accused and the deceased was continuing for 10/12 years prior to the date of the incident. The P.W. 1, father of the deceased, insisted upon marriage when he was told that they were already married in Court. He insisted upon production of the marriage certificate which was not produced. A child was born which ultimately died by drowning. When the victim conceived for the second time, the P.W. 1 applied before the Muslim Marriage Registrar and compelled the couple to get their marriage registered. This was done on the 19th April, 1981, according to the Registrar of Marriage, P.W.17, which has also been admitted on behalf of the defence during the cross-examination of the P. W.1. 23. On 10th Baisak corresponding to 23rd/24th April, 1981 Hamid married for the second time. This was deposed to by the P.W.1 which according to him he subsequently ascertained which was also not disputed in his cross, examination. 24. We have enquired of Mr. Dastoor as to whether his client on 19th April, 1981 knew that he was going to marry shortly within 3f.t days to which his answer was that he must have known. Then the question arises why was the intended second marriage not disclosed on 19th April, 1981. 24. We have enquired of Mr. Dastoor as to whether his client on 19th April, 1981 knew that he was going to marry shortly within 3f.t days to which his answer was that he must have known. Then the question arises why was the intended second marriage not disclosed on 19th April, 1981. The evidence of the P.Ws.1 and 2 is that they did not know on 28th April, 1981 when the accused Hamid took away their daughter that he had already taken a second wife on 10th Baisak corresponding to 23rd /24th April 1981. The suggestion given to the P.W.1 is that the deceased committed suicide because she could learn that her husband had taken a second wife. This goes to establish that the marriage for the second time was kept secret which she subsequently came to know, according to the version of the defence. There is no explanation not even by way of suggestion as to how and when did the victim come to know about the second marriage of her husband. 25. We are under the circumstances of the opinion that the P.W.1 really forced the accused Hamid to have the marriage registered on 19th April, 1981 much against his will. On 19th April, 1981 he had already decided to marry somebody else which he, in fact, did on 23rd/24th April, 1981 but kept this secret from the victim and her father. This secrecy betrays his guilty intention to get rid of Manowara who was now a mere burden to him. 26. We are under the circumstances of the view that the submission of Mr. Dastoor that the accused had no motive to kill her is incorrect. He rather did have or at least could have a motive to get rid of this woman. 27. A reference may now be made to the judgment in the case of Pohalya Motya Valui vs. State of Maharashtra, reported in 1979 Cr. LJ at page 1310, for the last seen together theory. Paragraph 9 of the judgment is as follows: "When a person is accused of committing murder of another, the fact that the accused and the deceased were last seen alive in company of each other and the failure of the accused to satisfactorily account for the disappearance of the deceased is considered a circumstance of an incriminating character." 28. Paragraph 9 of the judgment is as follows: "When a person is accused of committing murder of another, the fact that the accused and the deceased were last seen alive in company of each other and the failure of the accused to satisfactorily account for the disappearance of the deceased is considered a circumstance of an incriminating character." 28. In this case, we already have discussed that on 15th April, 1388 B.S. equivalent to 28th April, 1981 the accused took away his wife, the deceased and thereafter' only her deadbody was found. No explanation whatsoever was furnished by the accused in his examination under section 313 of the Code of Criminal Procedure. The case suggested to the witnesses of the prosecution as we have already noticed is that the accused did not take away his wife from her paternal house on 15th April, 1981 which we have found to be a false one. The prosecution has been able to establish beyond any reasonable doubt that the accused took away the deceased on 15th April, 1388 B.S. equivalent to 28th April, 1981 at 2.00/2.30 p.m. and thereafter, only her dead body was found on the following day in the village Barsul which is 10/15 miles away from the village of the deceased. The prosecution has discharged its burden and thereafter how did the deceased die was in the special knowledge of the accused and it was for him to explain which he has omitted to do. Reference in this regard may be made to the judgment in the case of State of W.B. vs. Mir Mohammad Omar, reported in 2000(8) SCC 382 , wherein the following view was expressed: "When it is proved to the satisfaction of the Court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the Court to draw the presumption that the accused have murdered him. Such inference can be disrupted if the accused would tell the Court what else happened to Mahesh at least until he was in their custody." 29. There are on the record two statements made under section 164 Cr. PC marked Exhibits 10 and 11 by two several witnesses. Such inference can be disrupted if the accused would tell the Court what else happened to Mahesh at least until he was in their custody." 29. There are on the record two statements made under section 164 Cr. PC marked Exhibits 10 and 11 by two several witnesses. Their statements were recorded by the P.W.25. They were summoned to give evidence thrice but virtually the summons came back un-served. These are statements of the ocular witnesses establishing involvement of all the accused persons, but those two witnesses unfortunately did not turn up and the learned Trial Judge, in the circumstances, was correct in acquitting the other co-accused persons and convicting the accused Abdul Hamid Mallick alone. 30. There is thus, no scope for interference. The appeal is dismissed. 31. The appellant, it appears, was released on bail by an order dated 18th April, 1986. His bail bond is cancelled. The appellant Abdul Hamid Mallick alias Gurul, in connection with Sessions Trial No.6 of 1986 arising out of Sessions Case No. 107 of 1984 is given notice through his learned Counsel appearing before us to surrender to his bail bond and to serve out the sentence inflicted by the learned Trial Court. 32. The concerned learned Trial Court is directed to take immediate steps so that the appellant, Abdul Hamid Mallick alias Gurul, may serve out the sentence. 33. Let a copy of this judgment along with the lower court records be sent down to the concerned learned Trial Court forthwith for information and necessary action. 34. Let xerox copy of this judgment, if applied for, be delivered to the parties upon compliance of all formalities. K.K. Prasad, J., I agree. Appeal dismissed.