ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE V.N. SINHA) Instant Death Reference and Criminal Appeal arise out of Judgment/Order dated 7.3.2013/14.3.2013 passed by Adhoc Additional Sessions Judge-I (F.T.C.), Ara, in Sessions Trial No.410 of 2011, holding the sole appellant guilty of the offence under Sections 302, 201 and 376 of the Penal Code for committing rape, murder of Afsana Bano as also for concealing her dead body with direction to undergo rigorous imprisonment for life with fine of Rs.50,000/- for the offence under Section 376 of the Penal Code, in default of payment of fine to undergo, one year simple imprisonment. For committing the offence under Section 201 of the Penal Code, i.e., concealing the dead body of the victim, he has been imposed sentence of rigorous imprisonment for seven years with direction to pay fine of Rs.20,000/-, in default of payment of fine, six months simple imprisonment. For the offence of committing murder of Afsana Bano, the sole appellant has been awarded capital punishment of death. 2. Prosecution case as set out in the fardbeyan of Chowkidar, Ram Layak Singh (Ext.1) recorded by Sub Inspector, Shashi Bhushan Thakur, Officer Incharge of Dhangai P.S. at N.H.30, 500 yards north of Saheed Chowk on 21.9.2008 at 11.30 A.M. is that on 21.9.2008 at around 11.30 A.M. he was coming on his motorcycle from headquarter to deliver mail at Dhangai P.S. saw 500 yards north of Saheed Gate on N.H.30 few passersby standing, he also stopped and saw by the road side near Putus bush a dead body of female aged about 20 years lying flat wearing Salwar-Sameez of turquoise white colour. Her scarf was also found thrown near the bush. From close distance, it appeared that mouth of the female was open, tongue slightly protruding, acid poured on face and blood spot found on her nose. On her right leg also, there was burn mark. Injuries were also found on other parts of her body. It appeared that unknown female was killed by unknown persons who threw her body by the side of the road to conceal the same. Available passersby were asked to identify the dead body but they failed to do so. Having seen the dead body, informant informed the police station about the dead body on telephone. It appeared that unknown female was killed by unknown persons who threw her body by the side of the road to conceal the same. Available passersby were asked to identify the dead body but they failed to do so. Having seen the dead body, informant informed the police station about the dead body on telephone. In the light of the fardbeyan, Dhangai P.S. Case No.58 of 2008 dated 21.9.2008 under Sections 302/201/34 of the Penal Code was registered against unknown stating that the Officer Incharge has already taken up investigation. Officer Incharge having taken up investigation, examined the dead body and prepared the inquest report (Ext.4) in presence of two independent witnesses and then sent the dead body to Ara Civil Hospital for post-mortem through constable and other Chowkidars available at the police station, who had come to the place of occurrence with the Officer Incharge after receiving the telephonic call from the informant. After post-mortem the dead body was deposited in the Unclaimed Dead Body Centre, Ara by those who were entrusted by the Investigating Officer to take the dead body for post-mortem. News of a dead body of unknown female found near the Saheed Gate, which has been kept in Unclaimed Body Centre, Ara was published in the newspapers on 22.9.2008. P.W.1, Md. Shamim Ansari, having read the news item, approached the Unclaimed Dead Body Centre, Ara for identification of the dead body, having identified the same to be of his sister, claimed the body, after completing formalities, took the body to his residence at Koilwar for performing burial. Investigating Officer having learnt from those who were entrusted to take the dead body for post-mortem that the dead body after post mortem has been kept in the Unclaimed Dead Body Center, Ara came to the centre and learnt from; the Incharge of the Center Dudheshwar Nath Singh that Md. Shamim and others came from Surandha Colony, Koilwar and identified the dead body of female and took the same for burial. I.O. having recorded the statement of Dudheshwar Nath Singh came to Surandha Colony, Koilwar on 22.09.2008 and recorded the statement of P.W.1, Md. Shamim Ansari, P.W.2, Abdul Kalam Azad, P.W.4, Tabasum Parveen and Md. Quddus Alam (not examined) on that day itself. I.O. having recorded the statement of Dudheshwar Nath Singh came to Surandha Colony, Koilwar on 22.09.2008 and recorded the statement of P.W.1, Md. Shamim Ansari, P.W.2, Abdul Kalam Azad, P.W.4, Tabasum Parveen and Md. Quddus Alam (not examined) on that day itself. Other prosecution witnesses, namely, the mother of the deceased, P.W.3, Qamroon Nisa, and colleagues of the deceased in the Urdu Girls Primary School, Kulhariya, P.W.5, Ranjan Kumar, P.W.6, Shakeela Khatoon and the cook, serving in the said school, P.W.7, Tara Begum, were examined by the Investigating Officer on 16.10.2008. Sometime, thereafter, first Investigating Officer, Shashi Bhushan Thakur (P.W.15), was transferred, whereafter the case was further investigated by P.W.14, Padma Kumari. She collected post-mortem report but could not complete the investigation as she was also transferred. After transfer of P.W.14, Padma Kumari, P.W.10, Ravindra Prasad, took charge of the investigation and submitted chargesheet on 30.8.2011 showing the appellant as absconder. The appellant however surrendered on 20.09.2011 in the court of the Chief Judicial Magistrate, Ara. In the light of the materials mentioned in the chargesheet, cognizance was taken and after supply of the police paper, the case was committed to the court of sessions. 3. During trial, Prosecution examined P.W.1, Md. Shamim Ansari, younger brother of the deceased, P.W.2, Abdul Kalam Azad, father of the deceased, P.W.3, Qamroom Nisa, mother of the deceased, P.W.4, Tabasum Parveen, younger sister of the deceased, P.W.5, Ranjan Kumar, teacher in Urdu Primary School, Kulharia, P.W.6, Shakeela Khatoon, teachedr in Urdu Primary School, Kulharia, P.W.7, Tara Begum, Cook in the same School, P.W.8, Ram Layak Yadav, Chowkidar, informant of the case, P.W.9, Barak Vishwakarma, witness on the inquest report of the deceaseed (Ext.4), P.W.10, Sub Inspector, Ravindra Prasad, the Officer Incharge of Dhangai Police Station, third Investigating Officer of the case, who submitted chargesheet, P.W.11, Pintu Tiwary, also witness on the inquest report (Ext.4), P.W.12, Dr. Vibha Sinha, Observer, in whose presence post-mortem of the deceased was conducted in token thereof she also put signature on the post-mortem report, P.W.13, Dr. B.K. Prasad, who conducted post-mortem of the deceased on 21.9.2008 at 4.30 P.M. and submitted post-mortem report (Ext.3), P.W.14, Sub Inspector, Padma Kumari, who became Officer Incharge of Dhangai Police Station on 20.6.2009 and obtained the post-mortem report, P.W.15, Sub Inspector, Shashi Bhushan Thakur, the first Investigating Officer of the case. 4. B.K. Prasad, who conducted post-mortem of the deceased on 21.9.2008 at 4.30 P.M. and submitted post-mortem report (Ext.3), P.W.14, Sub Inspector, Padma Kumari, who became Officer Incharge of Dhangai Police Station on 20.6.2009 and obtained the post-mortem report, P.W.15, Sub Inspector, Shashi Bhushan Thakur, the first Investigating Officer of the case. 4. Before proceeding to consider the ocular evidence of the informant, other witnesses including the family members of the deceased, it is appropriate to consider the evidence of the two doctors, P.W.12 and P.W.13, i.e., Dr. Vibha Sinha and Dr. B.K. Prasad. From the evidence of Dr. Vibha Sinha, P.W.12, it appears that she was appointed as Observer to be present at the time of Post-mortem examination of the deceased by P.W.13, Dr. B.K. Prasad, who conducted the post-mortem on 21.9.2008 at 4.30 P.M. in Sadar Hospital, Ara. From the evidence of Dr. B.K. Prasad (P.W.13) and the post-mortem report, it is quite evident that the deceased was first raped and then killed by throttling and after being killed, in order to make the identification of the dead body difficult, acid was also poured on the face. Thus, it is evident from the medical evidence that the deceased was not only killed but her killing was preceded by rape and then attempt was made to conceal her identification by pouring acid on her face. In the light of the medical evidence, there is no difficulty in concluding that present is the case of homicidal death. 5. In order to fix the identity of the assailant, it is necessary to consider the ocular evidence of the informant and other witnesses including the family members of the deceased together with her colleagues and others serving in the same School, i.e., Urdu Girls Primary School, Kulharia, in which the deceased was serving as an Assistant Teacher and did not return from the school on 20.092008. 6. P.W.8, Ram Layak Yadav, Chowkidar No.3/4 of Dhangai Police Station, is the informant of the case. He has stated in his evidence that on 21.9.2008 having received mail from Ara Headquarter was returning to Dhangai Police Station, reached near Amar Saheed Gate on N.H.30, saw at the distance of 500 meters east of the road that passersby were standing and looking towards a bush. He also stopped, went near the bush and saw dead body of a female thrown near the bush. He also stopped, went near the bush and saw dead body of a female thrown near the bush. From close distance, it appeared that dead body was of a female aged 20-21 years old wearing salwar sameej lying flat, her mouth open tongue slightly protruding, there was burning sign on her face, hands and legs. Information about the dead body was given by the informant to Dhangai Police Station through his mobile as none amongst the passersby could identify the dead body. After receiving telephonic information from the informant, Officer Incharge of the Dhangai Police Station arrived at the place of occurrence and sent the dead body for post-mortem. Later, informant learnt from the Officer Incharge that the dead body was of a female, resident of Koilwar. In paragraph-2, the informant stated that he gave his statement at the place of occurrence near the dead body itself, which was noted down by the Officer Incharge over which he put his signature and proved his fardbeyan as Ext.1. 7. P.W.1, Md. Shamim Ansari, is the younger brother of the deceased. He has stated in his evidence that the dead body of the deceased was found within Dhangai Police Station by the side of N.H.30 which information he could learn through newspaper on 22.9.2008. He has further stated in his evidence that he obtained the dead body of his sister from Unclaimed Dead Body Centre, Ara, on 22.9.2008 at about 4 P.M. He also stated that his sister, Afsana Bano, served as a teacher in Urdu Girls Primary School, Kulharia. She went to attend the School from home on 20.9.2008 in the morning but she did not return home. P.W.1 received a call from the appellant on 20.9.2008 at 2.07 P.M. asking him to talk to his sister. He also gave details of his mobile number 9852125491 on which he received the call from the appellant from his mobile number 9308511932 and heard the weeping sound of his sister for about 29 seconds, whereafter the call was disconnected. P.W.1 then called on the mobile of the appellant which got connected also but appellant did not pick up the call and switched off the mobile. Later, younger brother of P.W.1, Md. P.W.1 then called on the mobile of the appellant which got connected also but appellant did not pick up the call and switched off the mobile. Later, younger brother of P.W.1, Md. Kalim Ansari (not examined) went to Urdu Primary School, Kulharia, for ascertaining the whereabout of his sister and learnt from the staff of the Schol that she left the School at about 1 P.M. due to Ramzan. It is also stated by P.W.1 that his cousin brother, appellant, is also a teacher in Urdu Primary School, Kunjuma, Bihta, and that P.W.1 and others attempted to search for him and it was discovered that he had come to Urdu Girls Primary School, Kulharia, on 20.9.2008 between 10.30-11 A.M. and spoke to his sister, Afsana Bano, in the School. It is then stated that Yusuf Ansari is a married man, yet he wanted to marry his sister, Afsana Bano, which was only known to Afsana Bano. It is also stated by P.W.1 that his sister, Afsana, did not want to marry Yusuf Ansari and she had spoken to her younger sister, P.W.4, Tabasum Praveen about the same. P.W.1 has also stated that he and others made attempt to search for the deceased but she could not be traced. After knowing from the newspaper on 22.09.2008 that unclaimed body of a female was found on 21.09.2008 near Amar Sheed Gate on N.H. 30 which is kept in Unclaimed Dead Body Centre, Ara, he went to the Centre and identified the dead body. In paragraph-2, P.W.1 has stated that from appearance of the dead body, it appeared that acid was poured over the body causing burn injury on face, belly, legs, etc. In paragraph-6 of his cross examination, the witness has stated that on 20.9.2008, appellant was not present in his School. The witness, however, in the same paragraph of his evidence admitted that he has neither seen the attendance register of the teachers of the School of the appellant nor has he visited the school for verification. In the same paragraph, he further states that he does not remember when he visited Kulharia School but states that he did not visit Kulharia School with the Investigating Officer when he had gone to Kulharia School to record the statement of teachers and staff of that school. In the same paragraph, he further states that he does not remember when he visited Kulharia School but states that he did not visit Kulharia School with the Investigating Officer when he had gone to Kulharia School to record the statement of teachers and staff of that school. In paragraph-12 of his cross examination, P.W.1 has admitted that after receiving the dead body he came to his residence in Surandha Colony, which is within Koilwar Police Station but information about the occurrence was not given to the Koilwar Police Station. In paragraph-13 of his cross examination, the witness admitted that he is a resident of Surandha Colony, Koilwar and the appellant is also residing in the same house. In paragraph-18, P.W.1, stated that after hearing the cry of his sister on the mobile, he asked his younger brother, Kalim Ansari (not examined) to visit the School but did not give any information to the police as also did not take any further steps. Kalim Ansari returned from the School at about 3 P.M. and informed him that deceased left the School at about 1.15 P.M., whereafter steps were taken to search for her in the house of the relatives. In paragraph-19, P.W.1, further stated that he and others while searching for Afsana had gone to the house of their maternal uncle at Anandpur, Bihta, but he is not able to re-collect the names of those who accompanied him to Anandpur, Bihta. 8. P.W.2, Abdul Kalam Azad, is the father of the deceased. On the date of occurrence, i.e., 20.9.2008, was attending to his duty as Orderly in the office of Rural Works Department at Chapra, received information that he is being called home at Koilwar. Having arrived at Koilwar, he searched for his daughter but could not trace her. On 22.9.2008, he could know from the newspaper that dead body of a female has been kept in the Unclaimed Dead Body Centre, Ara, went to the Centre and identified the dead body of the deceased, Afsana Bano, and brought the dead body home and performed the burial. After coming home, he learnt that appellant wanted to marry his daughter but on her refusal to marry appellant, he has killed his daughter. He also learnt that appellant having killed his daughter threw her dead body near Jagdishpur. After coming home, he learnt that appellant wanted to marry his daughter but on her refusal to marry appellant, he has killed his daughter. He also learnt that appellant having killed his daughter threw her dead body near Jagdishpur. P.W.2 also claimed that he made attempt to trace the appellant but he was not found. In paragraph-3 of his cross examination, he clarified that he received information about the occurrence from his Officer, Sri Ramchandra Tiwari on 21.9.2008 between 9-10 A.M. and reached village home on the same day at about 3 P.M. In paragraph-4 of his cross examination, he has categorically stated that her daughter was unmarried and learnt about the occurrence from his son, P.W.1. 9. P.W.3, Qamroon Nisa, is the mother of the deceased. She has stated in her evidence that the appellant is her nephew and both, the deceased as also the appellant, were serving as Shiksha Mitra in Urdu Primary School, Kulharia and Kunjuma, Bihta, respectively. Appellant is a married man. According to the witness, appellant wanted to marry her daughter but she did not want to marry him as appellant was already married. About three years, three-four months earlier, on the 20th day of the month her daughter, Afsana Bano, went to Kulharia School for teaching, she used to return from the school at about 1 P.M. everyday, on that day she did not return at about 1 P.M. P.W.3 sent her son, Kalim, to the School to look for her. Her son went to the School and learnt that Afsana has already left the School. On the same day, appellant gave a telephonic call to her son, P.W.1, and told him that Afsana wants to speak to him, whereafter P.W. 1 heard Afsana weeping on the mobile the appellant thereafter disconnected the phone. It was published in the newspaper that a dead body of a female has been found thrown in Jagdishpur. After reading such news item, P.W.1 went to verify the dead body and identified the same to be that of deceased, Afsana, face whereof was burnt by pouring acid. The dead body was brought and burial performed as per custom. This witness also claimed in paragraph-9 that she learnt after the occurrence that appellant wanted to marry the deceased which fact was disclosed by her younger daughter, P.W.4, Tabasum Bano. The dead body was brought and burial performed as per custom. This witness also claimed in paragraph-9 that she learnt after the occurrence that appellant wanted to marry the deceased which fact was disclosed by her younger daughter, P.W.4, Tabasum Bano. In paragraph-13, P.W.3 clarified that even if she would not have been informed by her daughter, P.W.4, Tabasum Bano, that appellant wanted to marry Afsana, still his name would have been given in the case by her. 10. P.W.4, Tabasum Praveen, is the younger sister of the deceased and student of Class-X. In her examination in chief she has stated that the deceased was her elder sister and had gone to Girls Urdu Primary School, Kulharia, on 20.9.2008 at about 9 A.M. for discharging her duty as teacher. She states that mobile number of her elder brother is 9852125491 on which appellant had telephoned on which cry of her sister, Afsana, was heard, whereafter, the mobile was switched off and, thereafter, her younger brother, Md. Kalim, was asked by her mother to go to the School for verifying the presence of Afsana in the School but she was not found by him in the School and the staff of the School informed her brother that about half an hour earlier, she has left the School. P.W.4 also stated that appellant is already married but wanted to marry his sister, Afsana, who was not willing to marry him which prompted the appellant to kill her. The witness also claimed that prior to the occurrence, the deceased informed her that appellant wanted to marry her but deceased did not want to marry him. In paragraph-3 of her cross examination, P.W.4 has stated that the day on which her brother, P.W.1, received call on his mobile, on that day he had gone to Bihta. She has further stated in the same paragraph that information which P.W.1 has gathered on his mobile was also conveyed by him to her (the witness, P.W.4) on the same day at about 2.30 P.M. Such information is being disclosed by the witness in court today. In paragraph-5, P.W.4 stated that she learnt from the deceased about six months prior to the occurrence that the appellant wanted to marry her but P.W.4 never asked the appellant as to why he wants to do so but stated such fact to her father, mother. 11. In paragraph-5, P.W.4 stated that she learnt from the deceased about six months prior to the occurrence that the appellant wanted to marry her but P.W.4 never asked the appellant as to why he wants to do so but stated such fact to her father, mother. 11. P.W.5, Ranjan Kumar, and P.W.6, Shakeela Khatoon, are the colleagues of the deceased in Girls Urdu Primary School, Kulharia, but their evidence is of no assistance to the prosecution as they have not supported the prosecution case and have been declared hostile. 12. P.W.7, Tara Begum, is also serving as a Cook in the Girls Urdu Primary School, Kulharia, but her evidence is also of no use as she has also not supported the occurrence and has been declared hostile by the prosecution. 13. P.W.9, Barak Vishwakarma, and P.W.11, Pintu Tiwari, are the two seizure list witnesses but their evidence is of no assistance to the prosecution. P.W.9 has stated in his evidence that he put his signature on a blank paper. Similar statement is also of P.W.11, who was declared hostile. 14. P.W.15, Shashi Bhushan Thakur, served as Officer Incharge of Dhangai Police Station on 21.9.2008 and is the first Investigating Officer of the case. He has stated in his evidence that on 21.9.2008, he received telephonic information from Ram Layak Singh alias Ram Layak Yadav (P.W.8) that near Amar Singh Saheed Gate on N.H.30, 500 yards north, dead body of an unknown female aged about 20 years is lying. In the light of the information received, entry was made in the Station Diary and then witness proceeded for the place of occurrence alongwith the Sub Inspector, Nathuni Paswan, the armed force available at the Police Station in Police Jeep and reached the place of occurrence at 11 A.M. Information received at the Police Station being found correct, fardbeyan of the informant was recorded, which is in the writing of Sub Inspector, Nathuni Paswan, over which witness also put his signature and identified the same as Ext.1/1. The information disclosed being cognizable offence, P.W.15 took up the investigation of the case and inspected the dead body, prepared inquest report in presence of two independent witnesses, P.Ws. 9 and 11. The information disclosed being cognizable offence, P.W.15 took up the investigation of the case and inspected the dead body, prepared inquest report in presence of two independent witnesses, P.Ws. 9 and 11. From paragraph-3 of the evidence of P.W.15, it appears that the photograph of the dead body of the unknown female was taken and then body was also sent for post-mortem through literate constables, Jailal Das (not examined), Chowkidar, Bhikhari Yadav, Lalan Yadav (both not examined) in their escort to Sadar Hospital, Ara. Further statement of the informant, P.W.8 as also the statement of the inquest witnesses, P.Ws.9 and 11 was also recorded at the place of occurrence besides the statement of witness, Lalji Bhagat (not examined) and then the place of occurrence was inspected by the Investigating Officer. In his evidence, the Investigating Officer has also given the details of the place of occurrence, which is not necessary to be incorporated her. After the preliminary investigation at the place of occurrence, P.W.15 returned to the Police Station and registered Dhangai P.S. Case No.58 of 2008 dated 21.9.2008 for the offence under Sections 302, 201/34 of the Penal Code against unknown and information about the occurrence was transmitted to the headquarter through wireless. P.W.15 learnt from the members of the escort party, who had taken the dead body for post-mortem that the dead body after post-mortem has been deposited in the Unclaimed Dead Body Centre, Ara. Having received such information on 22.9.2008, telephonic information on the same day at 4 P.M. from Dudheshwar Nath Singh incharge of the Unclaimed Dead Body Center, Ara that the dead body has been claimed by P.w.2 on the basis of news item. P.W.15 alongwith Assistant Sub Inspector, Rajendra Nath Yadav (not examined) visited the Unclaimed Dead Body Centre, Ara and recorded the statement of Dudheshwar Nath Singh and in the light of the statement proceeded for Surandha Colony, Koilwar, and recorded the statement of the brother of the deceased, P.W.1, Md. Shamim Ansari, P.W.2, Abdul Kalam Azad, father of the deceased, P.W.4, Tabasum Bano, Md. Qudus Alam (not examined) and returned to the Police Station. On 16.10.2008, P.W.15, recorded the statement of P.W.3 Qamroon Nisha, the mother of the deceased, P.W.5, Ranjan Kumar and P.W.6, Shakeela Khatoon, the two colleagues of the deceased and P.W.7, Tara Begum, the Cook serving in the Urdu Primary School, Kulharia. Qudus Alam (not examined) and returned to the Police Station. On 16.10.2008, P.W.15, recorded the statement of P.W.3 Qamroon Nisha, the mother of the deceased, P.W.5, Ranjan Kumar and P.W.6, Shakeela Khatoon, the two colleagues of the deceased and P.W.7, Tara Begum, the Cook serving in the Urdu Primary School, Kulharia. In the light of the statement of Md. Shamim Ansari, P.W.1, P.W.15 obtained the call details of Mobile Number of P.W.1, 9852125491 wherefrom it appeared that on 20.9.2008 incoming call was received by P.W.1, Md. Shamim, from the Mobile Phone of the appellant bearing no.9308511932 at 2 hours, 7 minutes 29 seconds of 56 seconds duration and the location of the caller from mobile no.9308511932 was near Ajay Upadhyay, Bazar Samiti, Gola, Raghunathpur, District-Buxar. The mobile detail has been obtained by P.W.15 from the office of the Superintendent of Police, D.I.U. Branch, which has also been proved by P.W.15 as Ext.5. In the same paragraph, P.W.15 stated that having obtained the mobile details, he was transferred from the Police Station. In paragraph-9 of his cross examination, P.W.15 has admitted that until he was investigating the case, none of the witnesses informed him that the witness had seen the deceased going along with the appellant on 20.09.2008 in any vehicle. In paragraph-10, P.W.15, has further stated that it was difficult for him to find out the place from where the telephone call was made by the appellant from his Mobile no.9308511932 on 20.9.2008. In paragraph-11, the Investigating Officer further stated that during the period he investigated the case he could not ascertain the place where the deceased was killed. 15. P.W.14, Padma Kumari, is the second Investigating Officer of the case, who was posted as Officer Incharge of Dhangai Police Station on 20.6.2009, took charge of the investigation of the present case, perused the case diary of the case in order to become aware about the earlier investigation made by the first Investigating Officer. She also states that for arrest of the accused, she obtained warrant and also obtained post-mortem report of the deceased, whereafter she was also transferred to the Police Camp, Ara. In her cross examination, P.W.14 has admitted that she neither visited the place of occurrence nor examined any witness. 16. She also states that for arrest of the accused, she obtained warrant and also obtained post-mortem report of the deceased, whereafter she was also transferred to the Police Camp, Ara. In her cross examination, P.W.14 has admitted that she neither visited the place of occurrence nor examined any witness. 16. P.W.10, Ravindra Prasad, is the third Investigating Officer of the case, who took charge of the investigation of the present case on 6.6.2010 and having shown the appellant absconder submitted the chargesheet on 30.8.2011. 17. Learned counsel for the appellant assailed the Judgment of conviction and submitted that in the present case none of the prosecution witnesses have seen the deceased going along with the appellant on 20.09.2008 until recovery of the dead body on 21.09.2008 at 11.30 A.M. from the place of occurrence, i.e., 500 yards north of N.H. 30 near Amar Singh Sheed Gate within Dhangai Police Station by the informant (P.W.8), Ram Layak Yadav, Chowkidar posted with Dhangai Police Station, who was returning to the Police Station from Ara with mail received from Police Headquarters. Learned counsel next submitted that from the print out (Ext.5), on the basis of which appellant is sought to be connected with the crime, it would appear that call of 56 seconds duration was made from his Mobile No.9308511932 to the Mobile No.9552125491 of P.W.1, Md. Shamim Ansari, at about 14 hours, 7 minutes and 29 seconds, which is not admissible in evidence. In any case, even if, it is accepted that the said call was made, it is difficult to confirm the nature of conversation, which was made during the aforesaid call between the caller and P.W.1. Appellant being cousin brother of P.W.1 and living in the same house, there may be several reasons for making the call. It is also submitted that the call having been made by the appellant to his cousin brother is quite natural, as such, hardly any adverse inference can be made on the basis of the call details, which is not at all admissible in evidence in view of Section 65-B of the Evidence Act, which provides that in order to make the call details admissible, the same must be obtained from the computer of the service provider signed by a person occupying a responsible official position in the office of the service provider or handling the computer from which electronic data has been obtained. It is also submitted that only because the mobile call had been made by the appellant to P.W.1, there cannot be any presumption that the call was made in presence of the deceased that to for creating evidence against himself. 18. It is further submitted that the prosecution story that P.W.1 heard cry of the deceased when he received mobile call from the appellant at 14 hours on 20.9.2008 asked his younger brother, Md. Kalim Ansari, to visit the School but he having confirmed that the deceased left the School at about 1 P.M. and did not reach home, continued to search for her amongst the relations, which is quite unnatural for the brother and other members of the family. 19. Learned counsel also submitted that only because the appellant remained absconding for more than three years and the chargesheet was submitted showing him absconder, there cannot be any adverse presumption against him as for fear of police, appellant may have absconded but no sooner chargesheet was submitted on 30.8.2011, he surrendered in the court on 20.9.2011 and only because he absconded, it is wholly improbable for the prosecution to presume that he is the perpetrator of the crime. In this connection, learned counsel for the appellant placed reliance on the Judgments of the Supreme Court in the cases of Matru alias Girish Chandra Vs. The State of U.P. (AIR 1971 Supreme Court 1050) and Raj Kishore Singh and others Vs. The State of Bihar (AIR 1971 Supreme Court 1058). He also placed reliance on the Judgment of the Supreme Court in the case of Rahman Vs. The State of U.P. (AIR 1972 Supreme Court 110) and submitted that only because accused has remained absconding, such fact cannot be the basis for his conviction. He also placed reliance on the Judgment of the Supreme Court in the case of Sk. Yusuf Vs. State of West Bengal {(2011)11 Supreme Court Cases 754}. 20. The State of U.P. (AIR 1972 Supreme Court 110) and submitted that only because accused has remained absconding, such fact cannot be the basis for his conviction. He also placed reliance on the Judgment of the Supreme Court in the case of Sk. Yusuf Vs. State of West Bengal {(2011)11 Supreme Court Cases 754}. 20. Counsel for the State and the informant opposed the submission with reference to sub Section 2 of Section 63 and sub Section 4 of Section 65 of the Evidence Act, the Judgment of the Supreme Court in the case of State (N.C.T.) of Delhi versus Navjot Sandhu AIR 2005 SC 3820 para 15 and submitted that only because the print out (Ext.5) has not been obtained as per the requirement of Section 65-B of the Evidence Act, it does not mean that mobile call detail is not admissible and that call was not made by the appellant on 20.09.2008 of 56 second duration from his mobile no. 9308511932 at 2.07.29 P.M. to P.W.1, Md. Shamim Ansari, over his Mobile No.9852125491, as such, fact is not being disputed by the appellant when aforesaid fact was put to him during his examination under Section 313 of the Code of Criminal Procedure. Appellant having not disputed that Mobile No.9308511932 does not belong to him, there cannot be any dispute about the ownership of the said mobile number. It is further submitted that the telephone call from the aforesaid mobile phone of the appellant having been received by P.W.1 and during duration of the call the deceased kept weeping, there cannot be any difficulty in concluding that at the time of the mobile call, she was in the company of the appellant and once it is established that she was in the company of the appellant, it is for the appellant to explain as to how her dead body was found at the place of occurrence at about 11.30 A.M. on 21.9.2008. Reliance in this connection has been placed by the counsel for the informant over the evidence of P.Ws.1 and 4, which has been duly corroborated by the evidence of the first Investigating Officer (P.W.15) in paragraph-6. Reliance in this connection has been placed by the counsel for the informant over the evidence of P.Ws.1 and 4, which has been duly corroborated by the evidence of the first Investigating Officer (P.W.15) in paragraph-6. Learned counsel for the informant further submitted that the appellant being conscious of his guilt remained absconding during investigation of the case and the factum of his absconding being established from the record, i.e., chargesheet, which was submitted showing him absconder, his conviction is required to be maintained in the light of the evidence of P.Ws.1 and 4 as they have categorically stated that the deceased was not inclined to marry the appellant as appellant was married from before but the appellant kept persuading the deceased to marry him, the persuasion having failed, appellant has committed heinous crime of not only committing rape but also killed Afsana Bano and then threw her dead body at the place of occurrence. Reliance, in this connection, has been placed by the learned counsel for the informant on the Judgment of the Supreme Court in the case of Dhananjoy Chatterjee alias Dhana Vs. State of W.B. {(1994)2 Supreme Court Cases 220}. 21. In the light of the rival submissions of the parties, we are required to consider the prosecution case. Deceased left her home on 20.09.2008 in the morning for Urdu Girls Primary School, Koilwar, to discharge her duty of teacher. As usual, she left the School for coming back home at about 1 P.M. On the same day at about 2 P.M. a telephone call was received by P.W.1 from the appellant, in which cry of the deceased was heard by P.W.1, the call however was disconnected soon i.e. after 56 seconds, then another call was made by P.W.1 to the appellant on the same mobile number but that call was not answered, then another call was made but mobile phone was switched off by the appellant. From call details (Ext.5), it appears that call from the mobile phone of the appellant was received by P.W.1 on 20.9.2008 at 2.07.29 P.M., the said call was of 56 second duration but from the call details (Ext.5), it does not appear that any missed call was made from the mobile number of P.W.1 to the mobile of the appellant. From call details (Ext.5), it appears that call from the mobile phone of the appellant was received by P.W.1 on 20.9.2008 at 2.07.29 P.M., the said call was of 56 second duration but from the call details (Ext.5), it does not appear that any missed call was made from the mobile number of P.W.1 to the mobile of the appellant. It also does not appear from the said mobile details that during 56 seconds call made from the mobile of the appellant to the mobile of P.W.1 cry of the deceased was heard by P.W.1. From the mobile details, the nature of conversation cannot be ascertained. In this connection, we place reliance on the Judgment of the Supreme Court in the case of John Pandian versus State represented by Inspector of Police, Tamil Nadu, 2010(14) SCC 129 paragraphs 89 to 91 and 94. 22. Once we have considered the merit of the call details (Ext.5), it is difficult for us to conclude with certainty that it was the deceased, who was heard weeping during the 29 seconds duration, call made by the appellant to P.W.1on 20.09.2008 at 2.07.29 P.M., in the circumstances, it is difficult for us to conclude that the appellant was with the deceased at the time, appellant called P.W. 1 on 20.09.2008. True it is that the deceased left her home to attend the School on 20.9.2008 in the morning, her dead body was recovered from the place of occurrence near Amar Singh Saheed Gate on N.H.30 within Dhangai P.S. in the district of Ara on 21.9.2008 at about 11.30 A.M. but there being no material to connect the appellant with the deceased in between the time when she left her home to attend the School and her dead body recovered, it would be difficult for us to maintain the conviction of the appellant. The fact that appellant remained absconding for about three years may be a strong suspicion to be raised against him but suspicion cannot take the place of proof how so ever strong it may be. The fact that appellant remained absconding for about three years may be a strong suspicion to be raised against him but suspicion cannot take the place of proof how so ever strong it may be. In this connection, we would also like to refer to the evidence of the mother of the deceased, P.W.3, who has admitted in paragraph-13 of her cross examination that even if her daughter, P.W.4, Tabasum Parveen had not disclosed the fact that appellant wanted to marry the deceased, she would have named the appellant as the accused in the case. Aforesaid admission by P.W.3, the mother of the deceased is indicative of the fact that appellant was to be made accused in the instant case even if the subsequent story put forth by P.W.4, the sister of the deceased that deceased told her six months earlier that appellant wanted to marry her but she was not inclined to marry him and for the refusal of the deceased to marry the appellant, the present crime has been committed, appears to have been raised only with a view to implicate the appellant. 23. In this connection, we may also refer to one another circumstance that according to P.W.1, he heard the cry of his sister deceased at about 2.07.29 P.M. on 20.9.2008, when he received the mobile call from the appellant but did not take any steps to lodge such information with the authorities even though according to P.W.1, 2, the factum of disappearance of the appellant, deceased from the School was confirmed at about 3 P.M. through his brother Md. Kalim Ansari, who has not been examined to confirm the aforesaid fact that on instruction from his brother and mother, went to the Urdu Girls Primary School, Kulharia, for confirming the factum of disappearance of the deceased from the School. Failure to examine Md. Kalim amounts to withholding a relevant witness from the court without any explanation. 24. Kalim Ansari, who has not been examined to confirm the aforesaid fact that on instruction from his brother and mother, went to the Urdu Girls Primary School, Kulharia, for confirming the factum of disappearance of the deceased from the School. Failure to examine Md. Kalim amounts to withholding a relevant witness from the court without any explanation. 24. The genesis of the occurrence that appellant wanted to marry the deceased but she declined such proposal and informed her younger sister P.W.4 which is the cause for the occurrence also does not appear to be true as according to P.W.4 deceased informed her the said fact six moths earlier and P.W.4 in turn informed her mother P.W.3 and father P.W.2 about refusal of the deceased to marry appellant prior to the occurrence vide paragraph 5 of the evidence of P.W. 4 but P.W. 2 and P.W. 3 have categorically stated in chief and paragraph 9 respectively that they learnt about willingness of appellant to marry the deceased and her refusal to do so after the occurrence. In the circumstances, there is no difficulty in concluding that genesis of occurrence as set forth by the prosecution is after thought. 25. Taking into account the facts, circumstances, discussed above, we do not feel confident to maintain the conviction of the appellant only because the appellant remained absconding for about three years during the period of Investigation as chargesheet was submitted on 30.8.2011 and the appellant surrendered in the court on 20.9.2011. 26. In the result, the reference is answered in negative and the appeal is allowed giving the appellant benefit of doubt. Appellant is directed to be released forthwith, if not wanted in any other case.