JUDGMENT Tapan Sen, J : This appeal is directed against the judgment dated 15/5/2007 and the Order of sentence dated 16/5/2007, whereby and whereunder the learned Additional Sessions Judge, Fast Track Court, 1st Court at Baruipur, held that the Appellant no. 1 Dipankar Mridha was guilty under Section 302 of the Indian Penal Code and the Appellant No.2, Arun Mondal was guilty under Sections 302/120B of the Indian Penal Code. Both the Appellants were sentenced to rigorous imprisonment for life and were directed to pay a fine of Rs.5,000/- and in default, to suffer further rigorous imprisonment for six months. The detention already undergone by the Appellant No.1 from 19/1/2004 to 19/8/2004 and the detention already undergone by the Appellant No.2 Arun Mondal from 30/9/2002 to 30/12/2002 were ordered to be set off. The case arises out of a First Information Report on the basis of a written report lodged on 26/4/2002 at 20.30 hours by one Achintya Howli (P.W.1) wherein he alleged that his daughter Karabi Howli, aged 16/17 years, had a love affair with his neighbour Dipankar Mridha (Appellant No.1) for about a year and taking undue advantage of the same, carried out an illicit relationship with her and as a result thereof, she became pregnant. When Dipankar Mridha (Appellant no.1) came to know about this, he and his friend Arun Mondal (Appellant no.2) started pressurisng his daughter and on 15/4/2002, while both were passing by the side of the house of the informant, they threatened her in various ways and on the same day in the night, they called out the informant’s daughter by giving her “temptation of marriage”. That night, the informant’s daughter was found hanging in a bamboo grove with a rope around her neck. Upon a perusal of the said written report, it is evident that the alleged incident took place in the night on 15/16.04.2002 and the informant, while concluding, stated that on the said day he was not at home. Before proceeding with this case, it would be relevant to point out that about 10/11 days ago, i.e. on 16/4/2002, another written complaint was made to the Officer-in-Charge of Gosaba Police Station by one Amiya Howli (P.W.3) who stated that on 15/4/2002, at midnight, his niece Karabi Howali had committed suicide by hanging herself with a rope around her neck in the bamboo grove situated adjacent to their house. That written complaint is at page 2 of the Paper Book and it shows that it was lodged immediately on the following day i.e. on 16/4/2002. Yet surprisingly, for 10/11 days, nothing happened and abruptly, on 26/4/2002 the First Information Report was lodged, which gave rise to Gosaba Police Station Case no. 12 dated 26/4/2002. From the formal F.I.R., it is noticed that on 16/4/2002, acting on the basis of the first written complaint, a U.D. case being U.D. Case No. 14 had been registered. In the F.I.R., the Appellant no.1 and the Appellant no.2 were shown as accused. Having thus narrated the sequence of events in the manner stated above, it would now be to apt to proceed to deal with the evidences on record, but before doing so, we must express an observation to the effect that we have noticed that there was a delay of about 10/11 days in lodging the F.I.R. from the time when the instant case was described as a case of suicide. Eleven days thereafter, the case was made to take a turn by attempting to show the implication of these Appellants. The other observation that we would like to make is that even at the time when the case was being lodged as a regular F.I.R., it was so registered under Sections 376/306 of the Indian Penal Code and no allegations and/or ingredients were included so as to attract the provisions of Section 302 of the Indian Penal Code. It is a well known concept of criminal jurisprudence that when an offence under Section 302 of the Indian Penal Code is being dealt with, the prosecution must be able to establish beyond shadow of all reasonable doubt that the accused, and the accused alone, committed the offence in a cool, calculated, planned and motivated manner. In the instant case, we notice that in the first written complaint, there was only an indication of suicide whereas in the written complaint, which formed the basis of the F.I.R., the case was registered under Sections 376/302 of the Indian Penal Code. Having thus, made our preliminary observations, we would now like to deal with firstly, the Inquest Report, which, inter alia, clearly states that from a primary/preliminary investigation, none of the persons who signed on the said Report could say anything with regard to the actual cause of death. Having thus, made our preliminary observations, we would now like to deal with firstly, the Inquest Report, which, inter alia, clearly states that from a primary/preliminary investigation, none of the persons who signed on the said Report could say anything with regard to the actual cause of death. From the said Inquest Report, it is further evident that the persons who signed thereon, being P.Ws 1, 3 and 7 reiterated before the Officer making the said Inquest Report that sometime in the night of 15/16.4.2002, the deceased had committed suicide by hanging herself with a nylon rope around her neck. This officer, while concluding the report, once again clearly stated that the real cause of death could not be ascertained. P.W. 1, Achintya Howli, is the scribe of the second written complaint, which formed the basis of the F.I.R. He is also a signatory to the Inquest Report. In his examination-in-chief he has stated that his daughter Karabi had a love affair with the Appellant no.1 for about a year and that the said Appellant no.1 had promised to marry her. She had subsequently become pregnant because of her association with Dipankar Howli, the Appellant no.1. He further stated that in the morning of 2nd Baisakh, 1409 Bengali Sambad one Malay Howli had informed him that the Appellants had called the deceased and they had killed her. Hearing such an information he had rushed to the house and thereafter to the grove of bamboos where her dead body was said to be hanging. He found a loose rope around her neck and also found his daughter dead in a sitting posture. His wife and daughter told him that Dipankar and Arun had threatened the deceased and they also told him that they had called her out. His wife had forbidden the deceased to go out, but nevertheless, she went with them saying she would return quickly. She however, did not return and thereafter she was found dead. Upon a perusal of the evidence-in-chief of this witness we are left with no alternative, but come to a conclusion that whatever he has said is based on hearsay. Even otherwise, his statement to the effect that he heard that Karabi had been done to death by the Appellants cannot be justified in the face of the F.I.R., which proceeded to make out a case of rape and hanging. Even otherwise, his statement to the effect that he heard that Karabi had been done to death by the Appellants cannot be justified in the face of the F.I.R., which proceeded to make out a case of rape and hanging. These two elements therefore, according to us, are self contradictory in nature. Another startling feature of the evidence of P.W. 1 will be evident from his cross-examination when he stated that he wrote out the F.I.R. as per the instructions of the police. P.W. 2 is Arati Howli, the mother of the deceased and the wife of P.W. 1. In her cross-examination she has given out the names of various persons being Hajari Mridha, Krittibas Mridha, Tarapada Mondal, Paritosh Howli, Sudhir Mondal and Ananta Mondal. These were disinterested witnesses and it was therefore, all the more essential for the prosecution to examine such neutral witnesses. They did nothing of the kind. In a judgment passed in the case of Tarak Chakraborty & Anr. Vs. The State of West Bengal reported in 2014 (2) CLJ (Cal) 309, a similar situation was taken into consideration and the fact of non-examination of the disinterested witnesses, was scorned at. Obviously, therefore, such a step on the basis of the prosecution was not proper. Yet another interesting feature of the evidence of this witness is that in her Chief itself, when she said that 2/3 months before her death, she had already come to know with regard to the pregnancy of her daughter, she had not disclosed this fact to anybody nor had she told any one that Dipankar and Arun had threatened her daughter that if she did not take steps for abortion, they would kill her. P.W. 3 Amiya Howli, is the uncle of the deceased being the younger brother of the informant. From his evidence, we are not very impressed because his evidence is also based on hearsay on the basis of what the wife of Achintya had told him. He has further stated that after the Doctor had pronounced Karabi as dead, he had himself informed the incident to the police, which obviously refers to the first written complaint made on 16/4/2002 and when we peruse the same, we are faced with the description of committing suicide by hanging with a rope. P.W. 4 – Kumari Uma Howli is the younger sister of the deceased. P.W. 4 – Kumari Uma Howli is the younger sister of the deceased. In her cross-examination she had stated that she narrated the incident to her uncle which obviously refers to the statements made on 16/4/2002 being the written complaint of Amiya Howli. That refers to suicide by hanging. P.W. 5 – is one Ashim Mridha, but his evidence, apart from having been declared as a hostile witness, does not help the prosecution in any way because he had clearly stated that he did not know how Karabi had died. P.W. 6 – Kalipada Bir is a village quack who has also stated that he did not know how Karabi had died. P.W. 7 – Basudeb Mondal is a formal witness. P.W. 8 is the autopsy surgeon who held postmortem examination. P.W. 9 is Jagadish Chandra Pal, the Police Officer who held the inquest. P.W. 10 – Ratan Kumar Pal is the Investigating Officer. In his cross-examination he has stated, on recall, that he had not recorded any separate statement of Achinta Kumar Howli (P.W.1) under Section 161 of the Code of Criminal Procedure, 1973. He has also stated that Arati Howli had not stated to him that the accused Dipankar and Arun had called her daughter. He has also stated that Arati Howli had not told him that while they were trying to trace out Karabi they saw the deceased in a sitting posture in the bamboo grove. This witness had further stated that Arati Howli did not say to him that there was a rope around the neck of Karabi and that blood was oozing out from her nose and that when they raised hue and cry their neighbours had come to the place of occurrence. These statements of the Investigating Officer sharply contradict the evidence of Arati Howli herself because she had stated that she had told the police that there was a rope around the neck of Karabi and that when they raised hue and cry, their neighbours had come to the place of occurrence. This evidence of Arati Howli is contradictory and therefore we are afraid, we are not able to give much credence to such evidence. We will now briefly summarise our impressions with regard to this case. This evidence of Arati Howli is contradictory and therefore we are afraid, we are not able to give much credence to such evidence. We will now briefly summarise our impressions with regard to this case. Firstly, the story that the Appellants, while passing beside the house of the deceased, took her away and then she was found dead, in our opinion, is a figment of imagination and/or are stories which were never told to the police at the time the first report was made. The first report, in our opinion, is to be given much weightage because it is the report immediately subsequent to the happening of an event and in that report no such statement and/or story has been narrated save and except to describe the event as an event of commission of “suicide”. We are therefore, constrained to call the subsequent statements as “stories” and/or “figments of imagination”. We also do not appreciate the embellishments made in the prosecution case because from the case of suicide, 11 days passed and it is not expected of a normal human being that he would keep quiet and then suddenly, after a delay of about 10/11 days, go to the police and start making complaints in such a manner that contradicts the first complaint. We are therefore, constrained to call the subsequent developments as embellishments to the first report. We would, at this stage, also like to advert to another striking feature of this case qua the evidence of the autopsy surgeon and the Inquest Report. While the autopsy surgeon found a number of injuries, the Inquest Report, on the other hand, did not even bother to point out a single injury and on the contrary, proceeded to say that there was only a scratch mark on the left hand and that from the preliminary investigation, nobody could say as to what was the reason/cause for the death. We, therefore, do not appreciate such lapses on the part of the prosecution because in such a situation, we will have to give the benefit of doubt to the Appellants. The learned Public Prosecutor has raised basically a point that the Appellants were absconders and therefore, they should not be given the benefit of doubt. We, therefore, do not appreciate such lapses on the part of the prosecution because in such a situation, we will have to give the benefit of doubt to the Appellants. The learned Public Prosecutor has raised basically a point that the Appellants were absconders and therefore, they should not be given the benefit of doubt. We respectfully disagree with such a submission because abscondence itself cannot be used against the accused if he is not put under an examination or if no such explanation from him is asked for. From the examination under Section 313 of the Code of Criminal Procedure, 1973 we have not found a single question that says and/or asks the accused persons as to why they had absconded. In such a situation, we cannot loose sight of the judgment of the Hon’ble Supreme Court passed in the case of Shamu Balu Chaugule vs. State of Maharashtra reported in 1976 SCC (Cri) 56 observing, inter alia, in paragraph 5 therein that the fact that the Appellant was said to be absconding, not having been put to him under Section 342 (now Section 313 Code of Criminal Procedure, 1973) could not be used against him. Moreover, their Lordships had also observed that even out of fear a person could abscond if he comes to learn that he has been made an accused in an F.I.R. The other judgment on this issue is the judgment passed by the Hon’ble Supreme Court in the case of Sunil Kundu & Anr. Vs. State of Jharkhand reported in (2013) 4 SCC 422 , which, inter alia, lays down that absconding by itself does not prove the guilt of a person since a person may run away due to fear or false implication or arrest. Having considered the aforementioned facts and circumstances, we are of the view that the judgment of conviction and sentence suffers from a complete non-application of mind and cannot be sustained. We accordingly allow this Appeal, set aside the judgment dated 15/5/2007 and the Order of sentence dated 16/5/2007 passed by the learned Additional Sessions Judge, Fast Track Court, 1st Court, Baruipur in Sessions Trial No. 1(12)04 arising out of Sessions Case no. 81(7)04. The Appeal stands Allowed but in the facts and circumstances of the case, there will be no Order as to Costs. Let the Appellants be set at liberty forthwith. They are acquitted. 81(7)04. The Appeal stands Allowed but in the facts and circumstances of the case, there will be no Order as to Costs. Let the Appellants be set at liberty forthwith. They are acquitted. The Criminal Section is directed to forthwith send down a copy of this Judgement along with the lower Court records of this case to the concerned trial Court for information and for taking necessary action. Let an advance information be sent to the concerned Correctional Home so that the Appellants can be released forthwith.