JUDGMENT C.R. Sarma, J. 1. This appeal is directed against the judgment and order, dated 28.02.2007, passed by the learned Additional Session Judge (FTC), Biswanath Chariali, in Sessions case No. 180/ 2005, under Sections 302 and 376(2)(f) of the Indian Penal Code (for short IPC). By the impugned judgment and order, the learned Sessions Judge sentenced the appellant to suffer imprisonment for life and pay fine of Rs. 500/-, in default, suffer rigorous imprisonment for another period of one month, for his convection under Section 302 IPC and also to suffer rigorous imprisonment for 10 years and pay fine of Rs. 500/-, in default suffer rigorous imprisonment for another period of one month, for his conviction under Section 376(2)(f) IPC. Both the sentences were directed to run concurrently. Aggrieved by the said conviction and sentences, the convicted person, as appellant, has come up with this appeal. 2. We have heard Mrs. R. D. Mazumdar, learned Amicus Curiae and Mr. D. Das, learned Additional Public Prosecutor, State of Assam. 3. The prosecution case, in brief, is that, on 05,03.2005, a marriage ceremony was held in connection with the marriage of the brother of the Dukhna Munda, in his house at Majuligarh Munda Line. The said marriage was attended, amongst others, by the informant, namely, Sri Sawna Munda (PW-1) along with his daughter (hereinafter referred to as the 'victim girl'). While the said deceased was playing, in the marriage hall, along with her friends, the appellant took her away, at about 6 pm, with the promise that he would provide her chocolate. Subsequently, on the next day, at about 10.00 am, the dead body of the deceased, with injuries on her private part was found, lying in water, under the Daduram bridge, at Mazuligarh. Suspecting the involvement of the appellant in connection with rape, followed by death of the deceased, her father lodged an FIR with the police. On receipt of the said FIR police registered a case, under Sections 366(A), 376(G) and 302 IPC. During the investigation police visited the place of occurrence, prepared sketch map, examined the witnesses, prepared inquest report (Ext-2) in respect of dead body and forwarded the same for post-mortem examination. Police arrested the appellant and forwarded him to the Court. 4. After completing the investigation, police submitted charge sheet against the appellant for the offences under Sections 302 /366(A) and 376 IPC. Police arrested the appellant and forwarded him to the Court. 4. After completing the investigation, police submitted charge sheet against the appellant for the offences under Sections 302 /366(A) and 376 IPC. The offences being exclusively triable by the Court of Sessions, the case was committed and the Learned Session Judge framed charges under Sections 366(A), 376 and 302 IPC. The charges were read over and explained to the accused, to which he pleaded not guilty and claimed to be tried. 5. In order to prove their case, prosecution examined as many as 16 witnesses, including the Investigating Officer (PW-13), the Medical Officer (P W-16), who performed the post-mortem examination on the dead body, the Magistrate (PW-15), who recorded the statement of the accused, under Section 164 Cr. PC. At the close of the evidence for the prosecution, the accused person was examined under Section 313 Cr.P.C. and he denied the allegations, levelled against him. Considering the evidence on record, the learned Sessions Judge convicted the appellant and sentenced him, as indicated above. 6. We have heard Mrs. R. D. Mazumdar, learned Amicus Curiae appearing for the appellant and Mr. D Das, learned Addl. Public Prosecutor, Assam. 7. Mrs. R. D. Mazumdar, learned Amicus Curiae, referring to the evidence, on record, has submitted that there is no substantive evidence, except the evidence regarding last seen together and that the learned trial Judge committed error by convicting and sentencing the appellant as aforesaid. It is submitted, by the learned Amicus Curiae, that in view of absence of sufficient cogent and reliable evidence, the impugned conviction and sentence, awarded by the learned Session Judge, cannot be maintained and that the same is liable to be set aside, resulting acquittal of the appellant. 8. Refuting the said argument, advanced by the learned Amicus Curiae, Mr. D. Das, learned Additional Public Prosecutor, has submitted that there is sufficient evidence, in support of the prosecution, and that, the deceased being last seen in the company of the appellant, the involvement of the appellant stood established. 9. In order to appreciate the counter arguments, advanced by the learned counsel, appearing for both the parties, we feel it appropriate to, briefly, scrutinize the evidence on record. 10. Sri Sawna Munda, the father of the deceased, who lodged the FIR, deposing as PW-1 exhibited the same as Exhibit No. 1. 9. In order to appreciate the counter arguments, advanced by the learned counsel, appearing for both the parties, we feel it appropriate to, briefly, scrutinize the evidence on record. 10. Sri Sawna Munda, the father of the deceased, who lodged the FIR, deposing as PW-1 exhibited the same as Exhibit No. 1. He stated that, on the fateful evening, his daughter aforesaid and the appellant had attended the marriage ceremony, held in the house of Sri Dukhna Munda and that he came to know from Amit Munda (P W-2) that the deceased was taken by the appellants. This witness further stated that the appellant, who had fled his house, was caught and detained by the villagers. He further stated that on being asked by him about his daughter, the appellant kept silent. According to this witness, the dead body of his daughter was found under a bridge i.e. Dadurang Dalong. 11. Sri Amit Munda, deposing as PW No. 2, stated that when he was enjoying the marriage party, in the house of Bijoy, the deceased and the appellant were also there. He stated that he did not see, who had taken the deceased, but the elder brother of the deceased had noticed that the deceased was taken by the appellant. He further stated that Sitali, i.e. PW-11, saw the appellant taking the deceased. According to this witness, from the description given by Smti Sitali, he could understand that Mohan had taken the deceased and as such he had stated that Mohan Munda had taken the deceased. Therefore, his source of information was PW11. A close scrutiny of his evidence indicates that the elder brother of the deceased and PW11 had seen the accused taking the deceased. In fact, PW2 had no personal knowledge about the taking of the deceased by the appellant. Hence, his evidence that the accused had taken the deceased promising to give her chocolate is not believable. His evidence is nothing but hearsay evidence. 12. Sri Khudiram Munda, (PW4), who was a witness to the Inquest Report (Ext-2), stated that the appellant and another person were detained and kept tied. This witness did not say anything incriminating against the appellant. 13. P W9, Sri Jugal Gowala, also did not stated anything against the appellants. 14. His evidence is nothing but hearsay evidence. 12. Sri Khudiram Munda, (PW4), who was a witness to the Inquest Report (Ext-2), stated that the appellant and another person were detained and kept tied. This witness did not say anything incriminating against the appellant. 13. P W9, Sri Jugal Gowala, also did not stated anything against the appellants. 14. Smt. Sari Munda, grand mother of the deceased, deposing as PW3 stated that she also attended the marriage ceremony of Sri Bijoy Munda along with her grand daughter and that Prabin had informed that the deceased, who was playing with other children, was taken by the appellant. Hence, according to PW3, Prabin had seen the appellant taking the deceased. 15. Sri Dukhna Munda, deposing as PW-5, stated that on the date of occurrence, the marriage ceremony of his brother, namely Bijoy was performed. This witness stated that he did not know as to who had killed the deceased. 16. Sri Sukram Munda, uncle of the deceased, deposing as PW-6 stated that, the appellant, being beaten up, had shown the dead body of the deceased. He further stated that the dead body of the deceased was found by a fisherman, who had informed about the same. Hence, it appears that the dead body was already found and there remained nothing to be discovered on being led by the accused. 17. Sri Meghna Tanti deposing as PW-8, stated about the recovery of the dead body. He was a witness to the inquest report (Ext-9). 18. Sri Jaril Nag (PW10) was also a witness to the inquest. The said witnesses i.e. PW4, PW5, PW6, PW7, PW8, PW9 and PW10 did not whisper anything against the appellant 19. Smt. Sitali Munda (PW11), aged about 9 years, was examined after administering her oath. After interacting with this witness and putting certain questions, the learned trial judge held that she was capable of presenting the facts within her knowledge. 20. Smt Sitali Munda (PW-9) stated that she also attended the said marriage and that she saw the appellant sitting amongst the guests and that the deceased was with her grandmother. She also stated, that on being asked for, she had offered 'chadha' (dry tobacco) to the appellant. She further stated that the appellant had taken the deceased alluring her that, he would give morton. She also stated, that on being asked for, she had offered 'chadha' (dry tobacco) to the appellant. She further stated that the appellant had taken the deceased alluring her that, he would give morton. According to this witness, the brother (aged about 4/5 years) of the deceased was also taken with her, but he was left after taking him a little distance. She further stated that, as the deceased did not return, search was made for her and that she had informed as to what she had seen. In her cross-examination this witness admitted that she did not tell the Investigating Officer that the appellant had taken the deceased along with her brother and that her brother was allowed to come back after going a little distance. She denied the suggestion that the appellant did not attend the said marriage. 21. Smt. Jharia Munda (PW1), mother of the deceased, stated that the deceased, who was aged about 3 years, attended the said marriage along with her grandmother, that she came to know that her daughter was taken by the appellant and that dead body of her daughter, with injuries in her private part, was found at Kamajan Muratupa (Dadhua). In her cross-examination this witness stated that she did not know as to who had taken the deceased from the marriage house. 22. Sri Dilip Kr. Nath, Investigating Officer, deposing as PW-13 exhibited the charge sheet lodged by him as Ext No. 6. This witness stated that he had sent some of the witness for getting their statements recorded under Section 164 Cr. P. C. He also stated that the dead body of the deceased was found under the Daduram Bridge at Maratupa Basti. He further stated that he could not recover the wearing apparels, including under garments of the deceased. The Investing Officer stated that Smt Sitali Munda did not tell him that the accused, while taking the deceased, had allowed her to pass urine by the roadside. 23. Sri Haradhan Ghatowal, father of the accused, deposing as PW14, stated that, on the date of occurrence at about 9 PM, about 15 to 20 persons from Munda line came to his house, in search of his son Mohan and that, on the next day at about 10.00 am the dead body of the deceased was found. 23. Sri Haradhan Ghatowal, father of the accused, deposing as PW14, stated that, on the date of occurrence at about 9 PM, about 15 to 20 persons from Munda line came to his house, in search of his son Mohan and that, on the next day at about 10.00 am the dead body of the deceased was found. This witness, in his cross-examination, made by the defence, stated that they did not maintain matrimonial relation with the people belonging to Munda line and that they did not exchange invitations for marriage ceremony. He stated that there was no dispute with the people living in the Munda line. 24. Mr. Sanjoy Hazarika,(PW15), was the Judicial Officer, who recorded the statement of Smt. Chari Munda, Smt. Sitali Munda and Sri Amit Munda, under Section 164 Cr. P. C. 25. Dr. A. K. Baruah (PW16), performed autopsy in respect of the dead body of the deceased. He found lacerated wound in the vaginal introitus with 3rd degree perineal tear extending upto annal sphincter. 26. The said Medical Officer opined that the cause of death was due to suffocation asphyxia as a result of gagging in the mouth while doing rape. He exhibited his report in Exhibit No. 10. He also opined that the injuries sustained by the deceased were due to rape committed on her. 27. From the above medical evidence, it appears that rape was committed on the deceased and she died due to suffocation in committing the said rape. 28. In the present case, it is found that PW11 was the star witness. Though she was a minor, the learned Trial Judge tested her capability of understanding and her evidence was recorded after administering oath. Except her evidence, there is no evidence against the appellant. Her evidence indicates that she had seen the appellant taking the deceased and thereafter, the deceased was not found alive and on the next day her dead body was found. Therefore, her evidence relates to the last seen theory. 29. According to PW11, the appellant had taken the deceased and her younger brother who was 4/5 years old and the said brother was allowed to return. According to PW2 also, the deceased's elder brother had seen the appellant taking the deceased. Therefore, the said brothers of the deceased were the best persons to state about the involvement of the appellant. According to PW11, the appellant had taken the deceased and her younger brother who was 4/5 years old and the said brother was allowed to return. According to PW2 also, the deceased's elder brother had seen the appellant taking the deceased. Therefore, the said brothers of the deceased were the best persons to state about the involvement of the appellant. But the prosecution failed to examine the said brothers of the deceased, who were vital witnesses. Failure to examine such material witnesses raise doubt about the prosecution story. 30. From the evidence of PW2, it is found that the PW11, immediately after the missing of the deceased from the marriage hall, had given the description of the person, who had taken the deceased and from the said description, this witness came to know that it was Mr. Mohan i.e. the appellant. No Test Identification Parade was held to identify the culprit. The said evidence given by PW2 indicates that the PW11 did not know the appellant by his name. Therefore, it can't be concluded, beyond doubt, that the person described by PW 11, was the appellant. On the other hand PW3 i.e. the grand mother of the deceased stated that she came to know from Prabin that the appellant had taken the deceased. But the source of information of PW1 and 2 was PW11 i.e. Ms. Sitali. Prabin has not been examined. Withholding of such vital witness raises serious doubt about the prosecution version. P W3 did not tell that she came to know from PW11 about the taking of the deceased. If PW11 had disclosed the involvement of the appellant, on the fateful day itself, PW3 being the grand mother of the deceased would have certainly know the same and in that case she would have stated that her source of information as PW11. Even PW12 i.e. the mother of the deceased stated that she did not know who took the deceased from the marriage house. If PW11 and Sri Prabin had seen the appellant taking the deceased, then they would have certainly informed the mother of the deceased. But PW12 did not state that either her son i.e. Sri Prabin or PW11 had informed her about the appellant. Hence, the evidence of PW11 regarding the taking of the deceased by the appellant is not free from doubt. But PW12 did not state that either her son i.e. Sri Prabin or PW11 had informed her about the appellant. Hence, the evidence of PW11 regarding the taking of the deceased by the appellant is not free from doubt. That apart, the FIR (Exhibit 3), was lodged by PW1 i.e. the father of the deceased. He, deposing as PW1, stated that he came to know from P W2 that the appellant had taken his daughter. PW2 came to know from PW11. PW11 stated that, as the deceased after being taken by the appellant had not returned, search was made to find out her. Here, comes a question that if PW11 had seen the appellant taking the deceased and if the PW2 coming to know about the same from PW11 had informed the PW1, why did not PW1 mention the name of the appellant in the FIR. In the FIR, it was simply stated that the deceased was missing from the place of marriage and that her dead body was found. If the PW11 had informed the PW2 and the PW2 also informed the PW1 then the said fact should have been disclosed in the FIR. But the FIR is silent in this matter. Failure to disclose such material fact in the FIR raises doubt about the evidence given by the witnesses. 31. Further, though PW11 claimed that she had seen the appellant taking the deceased along with her brother, she (PW11) admitted that she did not tell the police about such vital fact. Failure of PW11 to disclose such a vital and material information at the earliest point of time i.e. before the Investigating Officer indicates that the said disclosure was made, for the first time, in the court during the trial. Failure to disclose such material information at the initial state also raises doubt about the prosecution story. In view of the above discussion, we find that there is no corroboration in the evidence of PW11. Therefore, due to lack of corroboration, on material point, and the vital omission to disclose the involvement of the appellants, at the time of giving statement to Police i.e. at the initial stage, we do not feel inspired to believe the evidence of the PW11 to conclusively hold that she had seen the appellant taking the deceased. Therefore, due to lack of corroboration, on material point, and the vital omission to disclose the involvement of the appellants, at the time of giving statement to Police i.e. at the initial stage, we do not feel inspired to believe the evidence of the PW11 to conclusively hold that she had seen the appellant taking the deceased. Hence, we do not find it safe to solely rely on the evidence of the said child witness i.e. PW11. We have already noticed that except the evidence of PW11 there is no other evidence about the involvement of the appellant In view of what has been discussed above, we find that the prosecution failed to prove the allegations, brought against the appellant, beyond all reasonable doubt In our considered opinion, the appellant is entitled to the benefit of doubt. Therefore, the impugned conviction and sentence cannot be maintained. Accordingly, we find sufficient merit in this appeal. The appeal is allowed and the appellant is acquitted. He be set at liberty forthwith, if not required in any other case. Return the LCR. Before we part with this judgment, we appreciate the assistance rendered by Ms. A. Phukan, learned Amicus Curiae. We order that an amount of Rs. 5,000/- be paid to the learned Amicus Curiae as her remuneration by the Assam State Legal Services Authority.