JUDGMENT : The appellant as well as one Tara Pado Dey (acquitted) were put on trial on the accusation of committing murder of Sadhana Dey (wife of the appellant) in furtherance of their common intention and further on the accusation that they with a view to screen themselves from legal punishment caused disappearance of the evidence of the murder. The trial Court while acquitting the accused-Tara Pado Dey did find the appellant guilty for the said charges and according recorded the order of conviction punishable under Sections 302 and 201 of the Indian Penal Code vide its judgment dated 14.02.2005 and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 1000/- for the offence punishable under Section 302 of the Indian Penal Code with default clause to undergo R.I for one year on account of nonpayment of fine amount. No separate sentence was passed for the offence punishable under Section 201 of the Indian Penal Code. 2. The case of the prosecution, as has been made out in the fardbeyan (Ext. 4), is that the deceased-Sadhana Dey, the daughter of the informant-Most. Adari Nandi (P.W. 10), had been married to this appellant 1½ years before. Out of their wedlock, one child had begotten. On 29.12.2002 at about 5.00 p.m., Tara Pado Dey, the father of the appellant, came to the house of the informant and asked her to keep her daughter-Sadhana Dey (deceased) with her, which proposal, the informant refused to accept and then Tara Pado Dey held out there that she will have to face consequence for it. In the night on 29.12.2002, when his son, Sanjay Nandi (P.W. 9) came, he informed that the appellant in the morning assaulted his sister-Sadhana Dey (deceased) by closing the room. Further case is that on 30.12.2002 at about 3.00 p.m. while the informant was going towards Kandara rivulet to ease herself, she found her daughter-Sadhana Dey screaming, as she was being assaulted by her husband (appellant). On finding this, she came to rescue her daughter but the appellant threatened her to go away otherwise she would also be killed. In such situation, she came slightly behind. Meanwhile, the appellant by assaulting Sadhana Dey with fists and slaps got the deceased drowned in a well, as a result of which, she died and then the appellant fled from there. 3. In such situation, she came slightly behind. Meanwhile, the appellant by assaulting Sadhana Dey with fists and slaps got the deceased drowned in a well, as a result of which, she died and then the appellant fled from there. 3. On the same day, at about 4.15 p.m. one Awadhesh Thakur, posted at the relevant point of time as Sub-Inspector of Police at Masalia Police Station, when received information that a dead body is lying in a well at village Masalia, he made entry of such information in the Station Diary and proceeded to the place of occurrence. When he came to the place of occurrence, he recorded the fardbeyan (Ext. 4) of the informant-Most. Adari Nandi (P.W. 10), upon which, a formal F.I.R. (Ext. 6) was drawn and a case was registered against this appellant as well as against Tara Pado Dey. 4. The said Awadhesh Thakur, Sub-Inspector of Police, Masalia Police Station, himself took up the investigation, during which, he held inquest on the dead body of the deceased and prepared an inquest report (Ext. 7) and sent the dead body for post mortem examination, which was held by Dr. S.N. Jha, who on holding autopsy on the dead body of the deceased did find following injuries on the person of the deceased:- “(i) Diffuse swelling lower back aspect of lower part of right forearm, about 7 c.m X 3 c.m.. (ii) Burise over back of upper part of left forearm, 6 c.m. X 3 c.m. (iii) Two parallel bruise marks about 3 m.m. of thickness and about 1 cm. apart and about 5.5. c.m. long over left side of back in infra scapular region. (iv) Bruise 6 c.m. X 2 c.m. over right lumber region of back on right side. (v) An abrasion 3 c.m X 3 c.m. over back of neck, near its root on left side. (vi) A linear abrasion (scratch mark) about 3 c.m. long over mid part of right side of neck. (vii) An abrasion 0.5 c.m. X 0.5 c.m., just below right patellar region over upper part of right leg. All the aforesaid injuries were caused by hard and blunt substance, specially injury no. 3 caused by a linear hard and blunt substance and injury no. 6 caused by a pointed hard substance. 5. (vii) An abrasion 0.5 c.m. X 0.5 c.m., just below right patellar region over upper part of right leg. All the aforesaid injuries were caused by hard and blunt substance, specially injury no. 3 caused by a linear hard and blunt substance and injury no. 6 caused by a pointed hard substance. 5. The doctor (P.W-8) issued post-mortem examination report (Exhibit-3) with an opinion that death was caused due to asphyxia, as a result of drowning. 6. In the meantime, the I.O. recorded the statements of the witnesses. On completion of investigation, when the charge-sheet was submitted, the Court took cognizance of the offence against them. In due course, when the case was committed to the Court of Sessions, the appellant as well as Tara Pado Dey were put on trial. 7. During trial, the prosecution in order to prove its case examined altogether fifteen witnesses. P.W. 2-Raghunath Nandi (the uncle of the deceased), P.W. 3-Nirmal Kumar Nandi (the nephew of the informant), P.W. 7Gaur Chandra Nandi (the Devar of the informant), P.W. 9-Sanjay Kumar Nandi (the brother of the deceased), P.W. 12-Bhuwan Kumar Nandi (the villager) and P.W. 14-Ram Kumar Nandi (the son-in-law of the brother of informant) are the hearsay witnesses. Of them, P.W. 2, P.W. 3, P.W. 7 and P.W. 9 did testify that they came to know from the informant (P.W. 10) that the appellant has killed the deceased by assaulting and then by drowning in a well. P.W. 12 and P.W. 14 have testified that they came to know that someone has killed Sadhana Dey by drowning him in well. P.W. 1-Ajay Kumar Nandi, P.W. 4-Laltoo Nandi, P.W. 6-Megh Nath Nandi and P.W. 13-Dilip Kumar Nandi have turned hostile, whereas, P.W. 15 has been tendered for cross-examination. P.W. 10, the informant, has testified almost in the same manner as, she had made statement in her fardbeyan. 8. Upon closure of the prosecution case, when the appellant and co-accused, were questioned under Section 313 Cr.P.C. over the incriminating evidences appearing against them, they denied it. 9. P.W. 10, the informant, has testified almost in the same manner as, she had made statement in her fardbeyan. 8. Upon closure of the prosecution case, when the appellant and co-accused, were questioned under Section 313 Cr.P.C. over the incriminating evidences appearing against them, they denied it. 9. Thereupon, the trial Court after placing its reliance on the testimony of informant-P.W. 10 getting corroboration from the medical evidence and also from the testimonies of other hearsay witnesses found the co-accused-Tara Pado Dey not guilty for the charges though did find the appellant guilty and accordingly recorded the judgment of conviction and order of sentence, as aforesaid, which is under challenge. 10. Mr. Kashyap, learned senior counsel appearing for the appellant submits that though the prosecution through P.W. 10, the informant, has come up with a case that on the day of occurrence i.e. on 30.12.2002 while the informant at about 3.00 p.m. was going towards rivulet, she heard screaming of his daughter, who was being assaulted by the appellant by fists and slaps. On finding this, when the informant-P.W. 10 went there to rescue her daughter, she was threatened to go away, upon which, she moved away from there and then saw the appellant assaulting and drowning the appellant in a well. But this evidence appears to be manufactured version of the informant as the circumstances appearing in this case give altogether a different colour of entire episode whereby the real story has come from the mouth of P.W. 6-Megh Nath Nandi, who though has been declared hostile has testified that when he was going for fishing, he found the appellant, his wife-Sadhana Dey and the informant together, who were altercating with each other. When, he intervened in the matter, the informant asked him to go away by saying that it is none of his business. Upon it, when he was returning, peoples started saying loudly that the deceased has jumped down in the well, but, the Court did not take into account this piece of evidence of P.W. 6, as he has been declared hostile, without taking into account the fact that witness had never resiled from his earlier statement made under Section 161 of the Cr.P.C and thereby, it committed illegality. It was further pointed out that P.W. 2, P.W. 3, P.W. 7 and P.W. 9 have claimed to have come to know that the appellant killed the deceased by drowning her in a well from P.W. 10. But P.W. 7 has never made such statement before the police, which is evident from evidence of the Investigating Officer (P.W.11). So far P.W. 9 is concerned, he though has testified that he came to know from P.W. 10 that appellant has killed the deceased but he had never made such statement before the police. So far P.W. 12 and P.W. 14 are concerned, they have testified in quite clear term that they did not come to know about the person who killed the deceased. P.W. 2 and 3 though has testified that they came to know about the occurrence from P.W. 10 but they have themselves admitted in their evidences that they for the first time have been disclosing this fact and thereby, the testimonies of P.W. 2 and P.W. 3 is not worth acceptable. Thus, in this situation, there remains no other witness, other than P.W. 10 who did support the case of the prosecution but P.W. 10, as has been stated above, never appears to be trustworthy. Furthermore, her testimony also does not get corroboration from the medical evidence as according to P.W.10, the deceased was first assaulted by the appellant by fists and slaps and then he got the deceased drowned in a well. But surprisingly the doctor has found the injuries on the person of the deceased in the nature of abrasion and bruises caused by hard and blunt substance like lathi. In that event, the testimonies of P.W. 10 never appears to be trustworthy but still the Court below did rely on the testimony of P.W. 10 and thereby committed illegality in recording the order of conviction and sentence against the appellant, which is fit to be set aside. 11. As against this, Mr. V.K. Tiwary, learned counsel appearing for the State submits that it could be none other than the appellant, who killed the deceased by drowning the deceased in a well. 11. As against this, Mr. V.K. Tiwary, learned counsel appearing for the State submits that it could be none other than the appellant, who killed the deceased by drowning the deceased in a well. As per the evidence of P.W. 10, he was the person who at the time of occurrence was found assaulting the deceased and then drowning her in a well and that the testimony of P.W. 10 can never be discarded on the ground that her version relating to deceased being assaulted by the appellant by fists and slaps may not cause injury like that of the abrasion and bruises, but, those injuries may have been caused during fall when her body might have been tossed up by the wall of the well and that it is not that only on the day of occurrence this appellant was found assaulting the deceased rather a day before the appellant was seen by P.W. 9 assaulting the deceased and under the circumstances, the trial Court is absolutely justified in recording the judgment of conviction and order of sentence, which needs no interference. 12. Having heard learned counsel for the parties and on perusal of the record, we do find that the case of the prosecution, as has been testified by informant (P.W. 10) is that while she was going to ease herself she saw the appellant assaulting the deceased with fists and slaps and then the appellant after assaulting got the deceased drowned in a well, as a result of which, the deceased died due to asphyxia on account of drowning. The informant, upon finding the appellant killing her daughter-Sadhana Dey informed about it to P.W. 2, P.W. 3, P.W. 7 and P.W. 9, but, we do find on scrutinizing their evidences that they were never informed by P.W 10 about the appellant killing the deceased by drowning her. P.W. 7 in his evidence has certainly testified that he came to know about the occurrence from P.W. 10 but when his attention was drawn to his earlier statement made under Section 161 Cr.P.C. that he had never said so, he replied in positive, but, the I.O in his evidence has confirmed that he had not made such statement. P.W. 7 in his evidence has certainly testified that he came to know about the occurrence from P.W. 10 but when his attention was drawn to his earlier statement made under Section 161 Cr.P.C. that he had never said so, he replied in positive, but, the I.O in his evidence has confirmed that he had not made such statement. P.W. 9 happened to be the brother of the deceased, who did testify that one day before i.e. is on 29.12.2002 he did see the appellant assaulting the deceased in his room and on the next date, he came to know from his mother-P.W. 10 that the deceased was killed. When this witness was confronted with his earlier statement made under Section 161 Cr.P.C that no such statement has been made before, he replied in positive, but, the I.O confirmed in his evidence that the P.W. 9 had never said so before him 8 that on 29.12.2002 he saw the appellant assaulting the deceased and further he has stated that he came to know from P.W. 10 that deceased has been killed. Thus, it be noted that P.W. 9 has never made statement before the police that he came to know from his mother that it was the appellant who killed the deceased. Going further in the matter, we do find that the P.W. 12 and 14 has never testified that they came to know about the occurrence from P.W. 10 so far P.W. 2 and P.W. 3 are concerned, they though have testified that they came to know about the occurrence from P.W. 10 but at the same time they have also stated that for the first time they are making statement that they had come to know about the occurrence from P.W. 10. In this event, P.W. 2 and P.W. 3 never inspire confidence to be believed. Thus, we do find that only P.W. 10 remains to be there to support the case as she has made it out but even her testimony of killing the deceased does not inspire confidence to be believed for the reason that she has categorically said that before the appellant got the deceased drowned in well, he had also assaulted with fists and slaps. But surprisingly injuries, which were found on the person of the deceased were in the nature of abrasion and bruises, which according to doctor may have been caused by hard blunt substance such as lathi. The submission which was made on behalf of State, is that the deceased might have received injuries when she was pushed down the well on account of body being tossed up from the well. In the context, of this statement, it be noted that the I.O in course of investigation, did find the dimension of well as 16 feet. In that event, it is not expected that body when was allegedly thrown drown could have tossed by the walls of the well. Furthermore, the entire case, as has been made by P.W. 10 gets falsified from the evidence of P.W. 6, who has testified that while he was going for fishing, he found the appellant, the deceased and the informant altercating and when he intervened, he was asked by the informant to go away by saying that this is none of his business to intervene in their private affairs. Upon it, he left that place and while he was returning he heard people saying that deceased has jumped down in the well but the trial Court discarded his evidence as he has been declared hostile by the prosecution. But did not take into account the fact that this witness has never resiled from his earlier statement made under Section 161 Cr.P.C. But the prosecutor seems to have got this witness declared hostile as his statement was favouring the accused but that cannot be a ground for putting the witness into a category of a hostile witness. But did not take into account the fact that this witness has never resiled from his earlier statement made under Section 161 Cr.P.C. But the prosecutor seems to have got this witness declared hostile as his statement was favouring the accused but that cannot be a ground for putting the witness into a category of a hostile witness. The testimony of P.W. 6 somewhat gets corroboration from the testimony of P.W. 14, who has testified that when he came to know that dead body is there in the well, he came there and found Laltoo Nandi (P.W. 4) and Raghu Nath Nandi (P.W. 1) making an effort to lift the dead body from the well and this fact further gets corroboration from the evidence of I.O, as he when reached to the place of occurrence found these two persons making efforts to take out the body from the well whereas case which was made out by P.W. 10 is that when the police arrived at the place of occurrence he took out the dead body from the well. It is true that those two persons, named above, though were making efforts but they did not succeed in taking out the dead body rather only when the police came it took out the dead body from the well but the aforesaid facts of making an attempt by two persons go to suggest that since they came to know that the deceased fell into well, they took effort for taking it out so that life of the deceased be saved. But the P.W. 10 never came with that story, which creates suspicion towards the testimony of P.W. 10. Furthermore, the place of occurrence i.e. the place where well was situated, as per the evidence of witnesses, including the I.O was 1½ K.M. away from the house of the appellant whereas it was only ½ k.m. away from the house of the informant. This fact also go to indicate innocence of the appellant as normally it is not expected that the culprit would be bringing the deceased towards the house of the informant for killing. 14. Under the circumstances, we do find that the testimony of P.W. 10 is not worth acceptable and hence, her evidence is fit to be rejected. This fact also go to indicate innocence of the appellant as normally it is not expected that the culprit would be bringing the deceased towards the house of the informant for killing. 14. Under the circumstances, we do find that the testimony of P.W. 10 is not worth acceptable and hence, her evidence is fit to be rejected. Accordingly we do find that the trial Court committed illegality in recording the judgment of conviction and order of sentence, which is hereby set aside. 15. In the result, the appellant is acquitted of all the charges and is directed to be released forthwith, if not wanted in any other case. 16. Thus, this appeal stands allowed.