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2015 DIGILAW 538 (GAU)

Samar Madhua v. State of Assam

2015-05-07

MICHAEL ZOTHANKHUMA, PRASANTA KUMAR SAIKIA

body2015
Prasanta Kumar Saikia, J. 1. This appeal is directed against the judgment and order dated 06.04.2011, passed by the learned Addl. Sessions Judge, FTC Kokrajhar in sessions Case No. 5/2010, convicting one Samar Madhua of offence u/s. 302 IPC and sentencing him to imprisonment for life and to pay a fine of Rs. 5,000/- i.d., R.I. for another 6 (six) months for the offence aforesaid. Being aggrieved by and dissatisfied with the aforesaid judgment, the appellant, namely, Samar Madhua (herein after referred to as the accused person), has preferred this appeal from jail citing several infirmities in the judgment under challenge. 2. We have heard Mr. P.K. Roy Choudhury, learned Amicus Curiae appearing for the appellant and also heard Ms. S. Jahan, learned Addl. P.P., Assam. 3. The facts, projected by the prosecution in the FIR dated 21.08.2009 and in subsequent trial, in short, are that on 21.08.2009, one Panja Rabha (PW1) lodged an FIR with the I/C, Bismuri Police Out Post alleging that his daughter Sushila Rabha (since deceased), aged about 20 years, got married with the accused Sri Samar Madhua few months before the incident in question. After their marriage, they started to live as husband and wife. On 18.08.2009, at about 11 am, accused person abused his wife (daughter of the informant, PW1) and killed her thereafter. 4. On the basis of such an FIR, a GD Entry was made by I/C, Bismuri Police Out Post and forwarded the FIR to the O/C, Kokrajhar Police Station for registering a case and to take further necessary action against the culprits in accordance with law. On the receipt of the same, O/C, Kokrajhar Police registered a case, vide Kokrajhar P.S. Case No. 285/2009, u/s. 302/34 IPC and ordered one J. Basumatary, S.I. of police to investigate the case. 5. Being so entrusted, Sri Basumatary visited the place of occurrence, (in short PO), conducted inquest on the dead body, sent the same to hospital for post mortem examination, arrested the accused person, examined the persons, well acquainted with the facts and circumstances of the case, did other things needful and on conclusion of investigation, IO submitted charge, sheet u/s. 302/34 IPC against the accused person as well as against his farther Gopi Ram Madhua since acquitted by the Trial Court under the judgment in question. 6. 6. When the charge sheet was so laid before the jurisdictional Magistrate, he committed the case to the Court of Session at Kokrajhar since the offence u/s. 302 IPC is exclusively triable by the Court of Session. On receipt of the case on commitment, the learned Sessions Judge, Kokrajhar, transferred the same to the file of learned Addl. Session Judge, FTC, for disposal in accordance with law. 7. The learned Addl. Sessions Judge, FTC, Kokrajhar on receipt of the case on transfer and on hearing the learned counsel for the parties, was pleased to frame charge u/s. 302/34 IPC against accused persons and charge, so framed, on being read over and explained to accused persons, they pleaded not guilty and claimed to be tried. 8. During trial, the prosecution has examined as many as 8 (eight) witnesses including the informant, M/O and I/O. The statements of accused persons u/s. 313 Cr.P.C. were also recorded. The accused persons pleaded that they were no way involved with the crime in question. The present appellant further states that on the fateful morning, he was not in his house since he had to remain away from his house on the fateful day in order to attend some urgent work. However, on being required, accused persons declined to adduce any evidence in defence. 9. On conclusion of trial and on hearing the arguments, advanced by the learned counsel for the parties, learned Trial Court, while acquitting Gopi Ram Madhua, father of the present appellant, convicted the appellant herein of offence u/s. 302 IPC and sentenced him to punishment as aforesaid. It is that judgment which has been assailed in the present appeal. 10. Mr. P.K. Roy Choudhury, learned Amicus Curiae appearing for the accused person arduously submits that the judgment under challenge cannot be sustained since it suffers from several infirmities of extremely serious in nature. In that connection, it has been contended that prosecution case is entirely founded on circumstantial evidence. Law, on the circumstantial evidence, is well settled by now. In that connection, he relies on the decision of Hon'ble Apex Court in the case of Sharad Birdhi Chand Sarda v. State of Maharashtra reported in (1984) 4 SCC 116 . In that connection, it has been contended that prosecution case is entirely founded on circumstantial evidence. Law, on the circumstantial evidence, is well settled by now. In that connection, he relies on the decision of Hon'ble Apex Court in the case of Sharad Birdhi Chand Sarda v. State of Maharashtra reported in (1984) 4 SCC 116 . The relevant part is reproduced below:--- "153:-- A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra where the following observations were made: "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions." (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused." 11. He also relied on the decision of Apex Court in the case of Rumi Nath Dutta v. State of Assam reported in (2013) 7 SCC 417 as well as the decision in the case of Sabir Singh v. State of Punjab reported in 1993 (Supply) 3 SCC 41. The relevant part in Sabir Singh (Supra) is reproduced below:--- "Para 7:-- A note of caution has also been struck regarding the role of imagination. The relevant part in Sabir Singh (Supra) is reproduced below:--- "Para 7:-- A note of caution has also been struck regarding the role of imagination. In the case of Reg v. Hodge, it was said: "The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete." It has been impressed that suspicion and conjecture should not take the place of legal proof. It is true that the chain of events proved by the prosecution must show that within all human probability the offence has been committed by the accused, but the court is expected to consider the total cumulative effect of all the proved facts along with the motive suggested by the prosecution which induced the accused to follow a particular path. The existence of a motive is often an enlightening factor in a process of presumptive reasoning in cases depending on circumstantial evidence." 12. According to him, in the present case, the circumstances, established by prosecution, hardly connect the accused person with crime in question since the circumstances, established by the prosecution, do not form a chain of events without any break anywhere leading to irresistible conclusion that the accused, and none else, was the author of the crime, under consideration. 13. Mr. P.K. Roy Choudhury, learned Amicus Curiae has again pointed out that as per the FIR, the deceased met her death on 18.08.2009. However, the FIR was lodged on 21.08.2009. Thus, there was several days delay in lodging the case. However, such delay occurring in lodging the case involving an offence as serious as murder has not at all been explained. Non-explanation of such a delay in the case in hand has raised a serious doubt about the authenticity of the entire prosecution case. 14. Thus, there was several days delay in lodging the case. However, such delay occurring in lodging the case involving an offence as serious as murder has not at all been explained. Non-explanation of such a delay in the case in hand has raised a serious doubt about the authenticity of the entire prosecution case. 14. In that context, it has been pointed out that in his evidence, I/O states that he received the FIR on 21.08.2009 and after the receipt of the FIR, he visited the PO and made the arrangement of conducting an inquest on the dead body through an Executive Magistrate. Accordingly, Executive Magistrate conducted inquest on the dead body in response to the request made by the I/O. However, the inquest report (Ext. 3) reveals that inquest was done, not on 21.08.2009 but on 20.08.2009 instead. 15. How the Executive Magistrate could conduct inquest on the dead body on 20.08.2009 when the I/O made request to the concern authority for sending an Executive Magistrate to conduct inquest on the dead body only on 21.08.2009 remains totally unexplained. Such a state of affair again raises grave doubt not only about the authenticity of the claim of the I/O that he made requisition for detailing an Executive Magistrate to conduct inquest on the dead body but also on the veracity of the inquest report as well, which was evidently prepared as early as 20.08.2009. 16. Referring to the evidence of Doctor, it has been stated that in his evidence in chief, the Doctor (PW 7) states that he conducted autopsy on 19.08.2009. However, in his cross examination, he states that he conducted autopsy not on 19.08.2009, but on 21.08.2009 instead. Such inconsistency on a point as vital as date of conducting autopsy on the body of the deceased, in turn, adds more and more suspicion to the prosecution case. 17. Learned Amicus Curiae further submits that there are some major contradictions between the evidence of non official witnesses and the evidence of the Doctor as regards the cause of death of the wife of the accused. Though the Doctor had concluded that the death was homicidal in nature, some of the non official witnesses claim that on their arrival at the PO, they learnt that the wife of the accused died after consuming poison. 18. Though the Doctor had concluded that the death was homicidal in nature, some of the non official witnesses claim that on their arrival at the PO, they learnt that the wife of the accused died after consuming poison. 18. According to learned Amicus Curiae, it is established law that when there is contradiction between the Medical evidence and the evidence, rendered by ocular witness (es) regarding cause of injury, death etc., the version of ocular witnesses needs to be accepted if same is found reliable. In that context, our attention has been drawn to the decision of Apex Court in the case of Gajoo v. State of Uttarakhand, reported in (2012) 9 SCC 532 . The relevant part is reproduced below:-- "18. We have also noticed that there is no variation between the medical evidence and the ocular evidence, and once they are co-jointly read, it does not falsify either the statement of the witnesses, PW2 and PW3 or the Post-Mortem Report, Ext. Ka-10. In fact, both of them must be read as complimentary to each other. Even if for the sake of argument we assume that there is some variation, still, it would be so immaterial and inconsequential that it would not give any benefit to the accused. It is a settled principle by a series of decisions of this Court that while appreciating the variation between the medical evidence and ocular evidence, primacy is given to the oral evidence of the witnesses. Reference can be made to the judgments of this Court in the case of Kapildeo Mandal and Ors. v. State of Bihar [(2008) 16 SCC 99], State of U.P. v. Krishan Gopal [ (1998) 4 SCC 302 ], Bhajan Lal @ Harbhajan Singh & Ors. v. State of Haryana [ (2011)7 SCC 421 ]." 19. It is also the case of learned Amicus Curiae that although it has been alleged that the accused killed his wife subjecting her to brutal assault, the I/O could not seize any weapon of offence, allegedly used in inflicting the wounds on the deceased aforementioned. Inability of I/O to seize weapon of offence, purportedly used in committing the crime in question, has again greatly demolished the very basis of prosecution case. 20. Inability of I/O to seize weapon of offence, purportedly used in committing the crime in question, has again greatly demolished the very basis of prosecution case. 20. Assailing the prosecution case more and more, learned Amicus Curiae again submits that in a case based on circumstantial evidence, motive plays a pivotal role although motive may not be that important in a case based on direct evidence. The case under consideration is entirely based on circumstantial evidence and as such, the prosecution was under enormous obligation to find out the motive of the accused persons in committing the crime in question. 21. However, in the case aforesaid, motive of the accused person in committing such a crime has not been established which to a great extent shattered the very basis of prosecution case itself, more so, when the prosecution case is also found suffering from some other serious infirmities. He, therefore, prays to this Court to acquit the accused person and for setting aside the judgment of the Trial Court. 22. However, Ms. S. Jahan, learned Addl. P.P. strongly contends that the prosecution has successfully proved the charge under Section302 IPC against the accused person beyond all reasonable doubt and in order to bring home such a contention, she claims that though the prosecution case is entirely premised on circumstantial evidence, prosecution was successful in establishing several circumstances of enormously incriminating nature and such circumstances together lead anyone to an irresistible conclusion that the accused, and none else, was the person responsible for killing his wife on or about 18.08.2009. 23. In support of such contention, it has been stated that in their evidence, PW 1, PW 2, PW 3 and PW 4 categorically state that when they arrived at the PO, they found injury marks on the body of the deceased. They also noticed blood oozing out from the mouth and nostril of wife of the accused person. Such evidence finds corroboration from the inquest report, prepared by the I/O during the course of investigation, which was proved as Ext. 3. 24. It has again been contended that the Doctor who conducted post mortem examination on the deceased noticed injury marks on different parts of the body of the deceased. More importantly, he also noticed one grievous injury on the skull which, according to him, occasioned the death of the deceased on the morning in question. 25. 3. 24. It has again been contended that the Doctor who conducted post mortem examination on the deceased noticed injury marks on different parts of the body of the deceased. More importantly, he also noticed one grievous injury on the skull which, according to him, occasioned the death of the deceased on the morning in question. 25. According to learned Addl. P.P., there is evidence on record to show that the deceased and the accused lived separately from his other family members in his house during the time under consideration. There is nothing on record to show that on the fateful morning or the night which preceded the eventful day, there was any person, other than the accused and the deceased, in their household. In other words, all evidence on record suggests that during the time under consideration, the accused and the deceased were alone in the ill fated household. 26. Such revelation in absence of any explanation from the side of accused person, again demonstrates that none except accused was the person responsible for killing his wife on or about 18.08.2009. Since there was no explanation from the side of accused person, how his wife met her death on or about 18.08.2009 despite their house being not occupied by any other person or despite there being no evidence of 3rd party committing the crime in question, it is obligatory on the part of the Court to hold the accused responsible with the crime he was charged with. 27. The accused fled the scene soon after the incident for which he could not be arrested immediately after the incident in question which is why he was arrested by the police after 2 (two) days of aforesaid incident. The abscondance of accused, soon after the incident aforementioned is one more grounds which again shows that it was the accused, and none else, who killed his wife on or about 18.08.2009. 28. It has been stated that all the incriminating circumstances were notified to the accused person but he did not offer reasonable explanation to such incriminating circumstances which stared direct at him. Such conduct on the part of accused person in giving evasive answer to the questions put to him during his examination u/s. 313 CrPC, provided the prosecution the missing link, if any, in its case. 29. In support of such contention, learned Addl. Such conduct on the part of accused person in giving evasive answer to the questions put to him during his examination u/s. 313 CrPC, provided the prosecution the missing link, if any, in its case. 29. In support of such contention, learned Addl. P.P., has relied on the decision rendered by The Apex Court in the case of State of Maharashtra v. Suresh reported in (2000) 1 SCC 471 as well as in Rumi Nath Dutta v. State of Assam reported in (2013) 7 SCC 417 . The relevant part in Rumi Nath Dutta (Supra) is reproduced below:-- "Para 21: At this juncture, as mentioned earlier we proceed to advert to the issue pertaining to falsehood. In this context we may fruitfully refer to the authority in State of Maharashtra v. Suresh, wherein it has been held that a false answer offered by the accused when his attention is drawn to the circumstances, it renders the circumstances to be of inculpating nature. In such a situation a false answer can also be counted as providing "a missing link" for completing the chain. In the case at hand, the factum of recovery thorough the witness has been proven that the accused persons had led to recovery. When it was put to them they had given an answer in the negative in a nonchalant manner. The incriminating materials were concealed and they were discovered being led by the accused persons." 30. In view of above, learned Addl. P.P., urges this court to dismiss the present appeal on affirming the judgment under challenge. 31. We have heard the rival submissions having regard to the evidence on record. Before we proceed further, we need to consider the evidence of PW 7, Dr. R.C. Debnath, who conducted the autopsy on the body of the deceased at Kokrajhar Civil Hospital on 19.08.2009. According to him, on the date aforesaid, he conducted post mortem examination on a female body aged about 20 years and found the following:-- "An average built, dark coloured female, dead body, aged about 21 years, wearing a black Ganjee type shirt and a lungi type Mekhela. She has black hair 2 1/2 ft long. Mouth is open. Tongue is protruded. Body is partially decomposed. Multiple marks of injuries-present over both hands and chest back side and abdomen. A black spot on head on back side. She has black hair 2 1/2 ft long. Mouth is open. Tongue is protruded. Body is partially decomposed. Multiple marks of injuries-present over both hands and chest back side and abdomen. A black spot on head on back side. On dissection: there is fracture of 2" x 2" size over skull on the back side of head occipital region with collection of blood. Liver is rupture. There is haemoperitium. Opinion:-- In my opinion death is due to shock and haemorrhage due to head injury as a result of impact by a blunt object which is ante-mortem in nature. Ext. 1 is the P.M. report, Ext. 1(1) is my signature and Ext. 1(2) is the signature of Joint Director." 32. In his cross examination, PW 7 deposes that he conducted autopsy on the dead body not on 19.08.2009 but on 21.08.2009. The evidence of Doctor also reveals that when he examined the dead body, he found it in a partly decomposed condition. The evidence of Doctor, however, reveals that the deceased died a homicidal death sometime before his conducting autopsy on the dead body on 19.08.2009 (21.08.2009?). He also opined that the deceased died on sustaining injuries on her head which was caused by blunt object. 33. So situated, let us consider the testimonies of witnesses, more particularly, the evidence of PW 1, Sri Panja Rabha, and PW 4, Smti. Saleswari Rabha, father and mother of the deceased respectively. According to PW1, his deceased daughter was married to the accused person sometime in the month of April/May 2009. One day, he got information that his daughter died an unnatural death. He immediately went to the house of accused person. 34. His wife too went to the house of the accused person but she preceded him. On arriving at the PO, they found the body of the deceased was covered with a cloth and by removing the same, he found marks of injuries on several parts of her body which were seemingly caused by blunt object. He heard from the people gathered at the PO that the accused used to beat his wife quite regularly. 35. Thereafter, he lodged an FIR with I/C Bishumuri Petrol post on 21.08.2009. In due course, police took the dead body for taking further necessary action. According to PW 1, Gopiram Madhua, father of the accused, lived separately from his son during the time under consideration. 35. Thereafter, he lodged an FIR with I/C Bishumuri Petrol post on 21.08.2009. In due course, police took the dead body for taking further necessary action. According to PW 1, Gopiram Madhua, father of the accused, lived separately from his son during the time under consideration. In his cross examination, he admitted that the accused came to his house when he and his wife were still in the ill fated household. The suggestion that his daughter died of taking poison was denied by him. 36. PW 4, Smti. Saleswari Rabha, deposes in the line, very similar to the testimonies, rendered by PW 1 since she is found saying that one day at about 4 pm she got an information that her daughter was no more. Accordingly, she immediately rushed to the house of the accused person taking Panja and Ranjit Rabha with her. On arriving at the house of the accused person, she found her daughter being covered with a cloth and by removing the same, she found her daughter dead with injuries on her body. She also noticed blood oozing out from the nostril and mouth. 37. According to her, her son-in-law was not in his house but he was apprehended next day. In her cross-examination, she further states that on several occasions her daughter left her matrimonial house on being beaten by her husband. PW 3, Sri Sukur Singh Rabha, had rendered evidence which is very identical to the evidence rendered by PW 1 and PW 4. PW 3 further states that one day, he found the accused and the deceased at the market. He also saw the accused assaulting his wife. 38. He, however, persuaded the accused person not to assault his wife and advised him to return home with his wife. According to him, one day, after coming to the house of the accused person, he asked the father of the accused person as to how the deceased met her death. On being so inquired, father of the accused person told him that his son, the present accused, habitually assaulted his wife although he could not found the reason of such assault inasmuch as he found his daughter-in-law to be a nice girl. 39. On being so inquired, father of the accused person told him that his son, the present accused, habitually assaulted his wife although he could not found the reason of such assault inasmuch as he found his daughter-in-law to be a nice girl. 39. PW 5, Sri Jitu Tudu and PW 6, Sri Bishnu Mense, who are related to the accused person, depose that one day, on coming to know that the wife of the accused person met her death, they came to the PO and learnt from the people gathered there that the deceased died after consuming poison. 40. In his evidence, PW 8, Sri J. Basumatary states that on 21.08.2009, he was working as I/C, Bismuri Police Patrol Post. On that day, he received an FIR from PW 1. On receipt of the same, he made a GD Entry and forwarded the FIR to the O/C, Kokrajhar P.S., for doing further needful. He proved the said FIR as Ext. 2. Since he was entrusted with the investigation of the case, he visited the PO during the course of investigation, also requisitioned the service of an Executive Magistrate to conduct inquest on the dead body. 41. On being so required, the Executive Magistrate conducted an inquest on the dead body and prepared a report in that connection, which he proved as Ext. 3. Thereafter, he sent the dead body to hospital for post mortem examination and did other things needful and on conclusion of investigation, he submitted charge sheet u/s. 302/34 IPC against the appellant herein as well as his father. 42. In his cross-examination, PW 8 states that during investigation, PW 3 did not tell him that one day, he found the deceased and the accused at the market and also found the accused person assaulting his wife. In his cross examination he admits that Ext. 3, inquest report, shows that the inquest was done on the body of the deceased on 20.08.2009. 43. Above being the evidence on record, let us see how far such evidence makes out the charge, leveled against the accused person. We have carefully considered the evidence on record having regard to the judgment under challenge as well as arguments, advanced by learned counsel for the parties. 43. Above being the evidence on record, let us see how far such evidence makes out the charge, leveled against the accused person. We have carefully considered the evidence on record having regard to the judgment under challenge as well as arguments, advanced by learned counsel for the parties. A careful perusal of the testimonies of PW1 and PW 2 reveal that on getting the information about the death of their daughter, they rushed to the house of accused person and found their daughter lying dead in the house of accused person. Thereafter, PW 1 (father of the deceased), lodged the FIR with police on 21.08.2009. 44. On perusal of the FIR, it is found that the incident in question occurred on 18.08.2009 but the FIR was lodged with police only on 21.08.2009. Therefore, there was delay of 3 days in lodging the FIR in the case aforementioned. It is a settled law that the delay in lodging the case may not always be fatal. But to save the prosecution case from exposing the charge of being concocted one for delayed lodging of the case, the informant needs to explain properly the reason which caused delay in setting criminal law in motion. 45. Coming back to our case, we have already found that there was delay of 3 days in lodging the case involving an offence as serious as murder. However, not a single word was stated as to why such a delay occurred in lodging the FIR in the case stated above. In the facts and circumstances of the case in hand, in our opinion, such delay requires the court to hold that everything was not hunky dory on the part of informant in not lodging the case soon after the commission of crime in question. 46. We may note here that in his evidence, I/O (PW 8) states that he got information about the incident in question for the first time only on 21.08.2009 and thereafter, on the receipt of the FIR, he made a GD Entry and forwarded the same to the O/C, Kokrajhar Police Station for registering a case and for doing further needful. In due course, he was entrusted with the investigation. In due course, he was entrusted with the investigation. It is also in his evidence that on being entrusted with the investigation on 21.08.2009, he sent a requisition to the concern authority for detailing an Executive Magistrate to conduct inquest on the dead body and in due course, he obtained the service of an Executive Magistrate to conduct inquest on the dead body. 47. The evidence of PW 8 further reveals that on being so required, the Executive Magistrate conducted inquest on the dead body and prepared a report in that connection which he proved as Ext. 3. We have perused the Ext. 3, inquest report. A perusal of the Ext. 3 reveals that inquest was done, not on 21.08.2009 as claimed by PW 8 but, it was done only on 20.08.2009 meaning thereby that inquest was done well before the lodging of the FIR by the informant on 21.08.2009. The conducting of inquest by Executive Magistrate even before lodging of the FIR again shows that the prosecution case cannot be believed without a pinch of salt. 48. We have found that in his cross examination, the Doctor claims that he conducted post mortem examination on 21.08.2009. Such evidence finds supports from post mortem examination report which was proved as Ext. 1. However, in his examination-in-chief, he also claims that he conducted post mortem examination, not on 21.08.2009 but on 19.08.2009. Such evidence of Doctor makes his entire testimony, including his opinion as to the cause of death of deceased enormously doubtful. 49. One may notice here that in their evidence, PW 5 and PW 6 had stated that on arriving at the PO, they heard the people gathered there saying that the deceased died of consuming poison. It has rightly been contended by the learned Amicus Curiae that when those PWs were not declared hostile, it needs to be concluded that those two PWs rendered statements before the I/O during the course of investigation which is very similar to the evidences rendered by PW 5 and PW 6 before the Court during trial. 50. In the face of such revelation, there cannot be any escape from the conclusion that the I/O was duty bound to send the viscera of the deceased to the Forensic Expert to ascertain if the doubt of people regarding the deceased committing suicide having consumed poison is true. 50. In the face of such revelation, there cannot be any escape from the conclusion that the I/O was duty bound to send the viscera of the deceased to the Forensic Expert to ascertain if the doubt of people regarding the deceased committing suicide having consumed poison is true. But same was not done, and that too, without assigning any reason whatsoever. Such a failure on the part of I/O again shows that the contention that the deceased died having consumed poison cannot be ruled out. 51. As pointed out by learned Amicus Curiae, the evidence of Doctor can be given preference over the testimonies of ocular witnesses only if the evidence of Doctor is found trustworthy. Unfortunately, our forgoing discussion firmly reveals that the evidence of the Doctor become very suspicious since he is found giving contradictory evidence on a point as vital as time of conducting post mortem examination on the dead body and as such, no reliance whatsoever can be placed on the evidence of Doctor regarding the cause of death of the deceased. 52. The fact that the Executive Magistrate conducted inquest on the dead body on 20.08.2009 shows that the Executive Magistrate conducted inquest on the body of the deceased even before lodging of the FIR by the informant on 21.08.2009. Such serious infirmity in the prosecution case coupled with the fact that there was delay of 3 days in lodging the FIR in regard to incident under consideration despite informant's daughter having died on 18.08.2009 only serve to show that prosecution case cannot be accepted without good deal of suspicion. 53. It may also be noticed that some witnesses, such as, PW1, PW 2 and PW 4 deposed that they heard that the accused assaulted his wife. They also claim that they came to know about such incident from other persons. However, those persons who reported about the deceased being assaulted by the accused person habitually were not made witnesses in the case in hand which only makes the evidence of those witnesses that they heard that the victim being assaulted by the accused person a hearsay evidence on which no reliance can be placed. 54. However, those persons who reported about the deceased being assaulted by the accused person habitually were not made witnesses in the case in hand which only makes the evidence of those witnesses that they heard that the victim being assaulted by the accused person a hearsay evidence on which no reliance can be placed. 54. Though in his evidence, PW 3 claims that one day, he saw the accused assaulting his wife at marketplace and although he claims that he persuaded the accused not to assault his wife in a public place and requested the parties to go home, yet, he did not divulge such an important episode to the I/O while he was being examined u/s. 161 CrPC during the course of investigation. Omission to state such vital information to the I/O during investigation again makes his evidence doubtful since his evidence too suffers from vice what is commonly called as contradiction. 55. We have found that incident in question was reported to PW 1 and PW 2 by some persons for which they rushed to the house of the accused person and found their daughter lying dead in the house of the accused person. However, persons from whom they came to know about the incident was not identified by I/O during investigation requiring this court to view the prosecution case with suspicion since non identification and non examination of those persons require this court to draw a presumption as contemplated in Illustration 114(g) of the Evidence Act 56. Learned Addl. P.P., submits that the accused had absconded soon after the alleged incident for which he could be arrested 2 (two) days after the incident under consideration. However, such contention is not fully supported by evidence on record since PW 1 found the accused in his house while P W1 and PW 2 were still in the ill fated household. Therefore, the contention that the accused has absconded soon after the incident is found not wholly reliable. 57. We have already found that I/O has submitted charge sheet u/s. 302/34 IPC against the accused person and his father. Both the accused persons stood charged of offence u/s. 302/34 IPC. However, father of the present accused person was acquitted by the Trial Court for want of evidence. 57. We have already found that I/O has submitted charge sheet u/s. 302/34 IPC against the accused person and his father. Both the accused persons stood charged of offence u/s. 302/34 IPC. However, father of the present accused person was acquitted by the Trial Court for want of evidence. The acquittal of father of the present accused person, in the facts and circumstances, detailed here-in-before clearly shows that judgment under challenge is susceptible to charge of un-tenabitity which again further fortify our conclusion that prosecution could not prove the case beyond all reasonable doubt. 58. Our forgoing discussion reveals the following circumstances:--- (i) The victim was the wife of accused person, (ii) she was married by the accused person few months before her death, (iii) she died on or about 18.08.2009, (iv) her death was unnatural, (v) she died in the house of accused person, (vi) during the time under consideration, the accused with his wife and his other family members lived in same household and (vii) the accused was arrested during the course of investigation although charge of accused absconding has not been proved as it is found from our forgoing discussion. 59. We have already found that the case in hand is a case which is based entirely on circumstantial evidence where prosecution is required to prove its case by establishing a chain of events unbreakable anywhere leading to sole and lone conclusion that the accused and none else was the author of the crime in question. 60. The forgoing circumstances though raised a serious doubt about the complicity of the accused person in the crime in question, yet, such doubt is not enough to conclude conclusively that the accused, and none else, was the person responsible for committing the crime in question as required under the law. 61. In this connection, it may be stated that there is a huge gap between the proof and suspicion since suspicion cannot take place of proof. Unfortunately, in our present case, the prosecution could not bridge the gap between suspicion and proof requiring this court to hold that prosecution has not been able to prove the case beyond all reasonable doubt. 62. In view of our forgoing discussion, prosecution could not establish a chain of events unbreakable anywhere although circumstances, proved, raise very serious suspicion about the complicity of the accused person in the crime in question. 63. 62. In view of our forgoing discussion, prosecution could not establish a chain of events unbreakable anywhere although circumstances, proved, raise very serious suspicion about the complicity of the accused person in the crime in question. 63. Resultantly, the judgment under challenge is found unsustainable in law and same is, therefore, liable to be quashed and set aside. 64. Consequently, appeal is allowed and judgment under challenge is quashed and set aside and accused is acquitted of offence u/s.302 IPC and he is ordered to be released, if he not required in connection with any other case. 65. Return the LCR forthwith. We deeply appreciate the assistance rendered by Mr. P.K. Roy Choudhury, learned Amicus Curiae in disposing the present appeal. We, therefore, direct the State to pay him an amount of Rs. 7,000/- as being his professional fee. Same needs to be paid within a period of 3 months from the date of receipt of a certified copy of this judgment.