C.R. Sarma, J.— This appeal is directed against the judgment and order dated 17.08.2009, passed by the learned Additional Sessions Judge, Barpeta, in Sessions Case No. 134/2006. By the impugned judgment and order, the learned Sessions Judge convicted the appellant under Section 302IPC and sentenced him to suffer imprisonment for life and pay fine of Rs. 2000.00 in default suffer simple imprisonment for another period of 2 (two) months for his conviction under section 302 IPC. Aggrieved by the said conviction and sentence, the convicted person, as appellant, has come up with this Appeal. 2. We have heard Mr. A. M. Bujorbaruah, learned counsel appearing for the appellant and Mr. Z. Kamar, learned Public Prosecutor appearing for the State respondent. 3. The prosecution case, in brief, is that, on 17.10.1998, the appellant, with a promise to marry, took with him Musstt. Noorjahan Khatoon (hereinafter called the deceased) and entered into a marriage. But due to torture and ill treatment meted out to her, by the members of the family of the appellant, she returned to the house of the informant, who is her maternal uncle. On 21.10.1998, at about 8 p.m., while she was sleeping, the appellant, by calling again took her away. Subsequently, her dead body found hanging from a tree. The prosecution version is that she was killed, by strangulation, by the appellant along with other accused persons (since acquitted). 4. Initially, on 22.10.1998 Police received FIR (Ext.-5) from Md. Fatik Bhuyan (PW-3) and after registering a U.D. case investigated into the matter. Subsequently, PW-1 lodged an FIR (Ext.-l), on 25.10.1998, alleging murder of the deceased. On receipt of this FIR, Police registered a case U/S 302 IPC and launched investigation into the matter. 5. During the investigation, Police visited the place of occurrence, recorded statement of the witnesses, held inquest of the dead body, forwarded the dead body for autopsy and prepared sketch map. At the close of the investigation, Police submitted Charge-sheet U/S 302 IPC against the appellant and 7 (seven) others. 6. The case being committed, the learned Sessions Judge framed charge U/s 302/34 I.P.C. against the appellant and others. The charge was read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried. 7. 6. The case being committed, the learned Sessions Judge framed charge U/s 302/34 I.P.C. against the appellant and others. The charge was read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried. 7. In order to prove their case, prosecution examination, as many as, 9 (nine) witnesses as PWs, including the Medical Officer (PW-8), who performed autopsy and the investigating Police officers (PWs 8 & 9). At the close of the evidence for the prosecution, the accused persons were examined U/s 313 Cr.P.C. They denied the allegations, brought against them and declined of adduced defence evidence. 8. Mr. A. M. Bujorbaruah, learned Counsel, appearing for the appellant, has submitted that the prosecution failed to prove the case, beyond all reasonable doubt, by adducing substantiate evidence in support of the case. The learned Counsel has also submitted that the prosecution failed to prove that the deceased was found in the company of the appellant, immediately before her death and as much the learned trial Judge committed error, by applying the "last seen theory" in this case. The learned counsel has also contended that in the event ofhomicidal killing there would have existed some marks of injury on the dead body and that absence of any sign of struggle or injury marks, as indicated by the medical evidence, negates the theory ofhomicidal death. Therefore, it is submitted, that the appellant is entitled to be acquitted for want of sufficient evidence. 9. Refuting the said argument, advanced by the learned defence Counsel, Mr. Z. Kamar, learned Public Prosecutor, supporting the impugned conviction and sentence, has submitted that there is sufficient substantive evidence against the appellant and that the dead body of the deceased was recovered, after she was called by the appellant. Therefore, it is submitted that, none other than, the appellant had caused the death of the deceased. 10. Carefully, perusing of the evidence, on record, we find that in the case at hand, there is no direct evidence, indicating involvement of the appellant with the death of the deceased. The only evidence is that the appellant had called out the deceased from her bad. 11. Admittedly, the FIR (Ext. 5), lodged by PW-3 (uncle of the deceased), on 22.10.1998, reveals that the deceased was found hanging from a tree, on 21.10.1998, at about 8 PM. In the subsequent FIR (Ext. The only evidence is that the appellant had called out the deceased from her bad. 11. Admittedly, the FIR (Ext. 5), lodged by PW-3 (uncle of the deceased), on 22.10.1998, reveals that the deceased was found hanging from a tree, on 21.10.1998, at about 8 PM. In the subsequent FIR (Ext. No. 1) lodged, by PW-1 (maternal uncle of the deceased), on 25.10.1998. It has been stated that the deceased was called by the appellant, on 21.10.1998 at 8 p.m. when she was sleeping with JahanaraKhatoon(PW-2) and that her dead body was found hanging. The Medical Officer (PW-7), who perform the autopsy of the dead body on 23.10.1998 found as follows- "External App: - A thin built female dead body aged about 22 years not emaciated not decomposed. The eyes are partially open and tip of the tongue seen outside the mouth and bitten in between the teeth. Rigor mortis present. Discharge seen in the orifices of vagina, but no foecal matter around the anus. One non-continuous ligature mark, high up in the neck the knot is on the right side of the neck just below and behind the right ear seen. No other injuries seen over the body. Detailed injury: -The ligature mark described in external appearance is antimortem in nature. No other injuries seen over the body." The Medical Officer opined that the death was caused due to asphaxia as a result of hanging. The Medical Officer did not find any injury over the dead body. The said Medical evidence does not suggest homicidal death, rather the same indicates suicide. 12. Md. Yashin Bhuyan (PW-1), who lodged the FIR (Ext. 1) in this case, stated that the mother of the deceased, at about 8 p.m. informed him that the deceased was missing from her bed and that, upon search, the dead body of the deceased was found hanging from a tree. He stated that, initially FIR (Ext.5) was lodged believing that she had committed suicide, but subsequently, it was suspected that the appellant and others killed her. He also stated that he came to know from his sister that the deceased had gone to Afzal's house and that her body was found hanging. 13. Smti Jahanara Khatoon (PW-2), Sister of the deceased stated that the deceased was called by the appellant to their house and that the dead body of the deceased was found hanging. He also stated that he came to know from his sister that the deceased had gone to Afzal's house and that her body was found hanging. 13. Smti Jahanara Khatoon (PW-2), Sister of the deceased stated that the deceased was called by the appellant to their house and that the dead body of the deceased was found hanging. She also stated that she had informed their maternal uncle about the said incident. But PW-1, maternal uncle of PW-2, stated that he was informed by his Sister that the deceased was missing. He did not state that the appellant called the deceased. Hence, we find no corroboration in the evidence of PW-1 and PW-2, to believe that the appellant had called and taken the deceased with him. 14. Mr. Fatik Bhuyan (PW-3), Uncle of the deceased, stated that the deceased was found hanging from a tree. He was declared hostile and cross-examined by the prosecution, but nothing substantive could be established against the appellant. 15. Mr. Mafijuddin (PW-4) did not whisper anything against the appellant. 16. Musstt. Saher Banu (PW-5), mother of the deceased sated that the deceased, on the fateful night, was sleeping with her and that her another daughter (PW-2) told her that the appellant had called the deceased and that the deceased was found hanging from a tree. 17. Mr. Rahiz .Bhuyan (PW-6), also stated nothing against the appellant. 18. PWs-7, 8 and PW-9 are the formal official witnesses, being the Doctors and the Investigating Officers. From the above discussed evidence, it is found that, none except the PW-2, implicated the appellant. According to PW-2, the appellant had called the deceased, while the latter was sleeping with her. If the deceased was called and persuaded to go with the appellant, the said fact would have been discussed amongst the members of the family and disclosed in the FIR, lodged on 22.10.1998 i.e. on the next day. In the said FIR, it was simply mentioned that the dead body was found hanging from a tree. If the deceased was called and taken out by the appellant, immediately before her death, then such vital fact should have been disclosed at the earliest opportunity i.e. in the FIR lodged, on 22.10.1998. In the said FIR, it was simply mentioned that the dead body was found hanging from a tree. If the deceased was called and taken out by the appellant, immediately before her death, then such vital fact should have been disclosed at the earliest opportunity i.e. in the FIR lodged, on 22.10.1998. Failure to disclose such vital fact in the FIR lodged on 22.10.1998, but subsequently implicating the appellant in the FIR (Ext No. 1) lodged on 25.10.1998 i.e. 4 (four) days after the occurrence raises serious doubt about the veracity of prosecution story. 19. That apart, P W-1, who lodged the Ext. No. 1 (second FIR) did not state, in his evidence, that the appellant had called the deceased. He stated that they suspected the appellant. PW-3 also, who lodged the 1 st FIR (Ext. 1), did not indicate that the appellant had called the deceased. The said witnesses and PW-1 being members of the same family, if the appellant had called the deceased, as claimed by PW-2, certainly PW-2 would have disclosed such vital fact to the other members of the family, immediately after the incident and in that event, PW-3 could have mentioned the same in the first FIR (Ext. 5), lodged by him. PW-1, in his evidence, simply stated that he was informed that the deceased was missing from her bed. He did not dispose that the appellant had called her. The silence of P W-1 and PW-3 in this regard raises doubt about the story of calling the deceased by the appellant. 20. In view of the above discussion, we find nothing substantive to hold that the deceased was seen with the appellant, immediately before her death. Considering entire aspect of the matter, coupled with the medical evidence, which indicates it to be a clear case of suicide, we have no hesitation in holding that the prosecution failed to prove the case, against the appellant. Hence, the impugned conviction and sentence can not be maintained. 21. Therefore, we find sufficient merit in this appeal. Accordingly, the appeal is allowed. The impugned conviction and sentence are set aside. The appellant is acquitted. He be set at liberty forthwith, if not required in any other case. 22. Return the LCR. _____________