JUDGMENT : P.K. Saikia, J. This appeal is directed against the judgment dated 14.08.2012, passed by learned Sessions Judge, Udalguri in Session Case No. 82 (D-U)/2012 convicting one Mahadev Mahato of offence u/s 302 IPC and sentencing him to imprisonment for life and to pay fine of Rs. 1,00,000/- (Rupees One lakh), in default, to suffer S.I. for another 2 (two) years for the offence aforesaid. 2. Being aggrieved by and dis-satisfied with the judgment aforesaid, the appellant, Mahadev Mahato (hereinafter referred to as the accused person), preferred this appeal from jail citing several infirmities in the judgment under challenge. 3. We have heard Mr. P.N. Choudhury, learned Amicus Curiae assisted by Ms. A. Begum for the appellant and Ms. S. Jahan, learned Addl. P.P. appearing for the State. 4. The case projected by prosecution in short, is that the accused and the deceased were husband and wife in relationship. On the fateful night, they were sleeping in their own house. However, on 28.12.2005 till 10 am, one Sri Indra Mahato who is the brother of the accused and who lived near the house of the accused person found that his sister-in-law (wife of the accused) as well as accused had not waken up from sleep. He therefore, went to the house of the accused person and found his wife lying dead in her house. 5. He suspected that the accused might be the person who killed his wife and then fled the scene. An FIR to that effect, on being lodged with Mazbat Police Station on 28.12.2005, police registered a case vide Mazbat P.S. Case No. 105 of 2005 u/s 448/302 IPC and ordered one Jadav Sharma, SI of Police to investigate the case. 6. Being so ordered, Sri Sharma embarked upon the investigation, visited the place of occurrence, conducted an inquest on the dead body, sent the same to hospital for post mortem examination, examined the witnesses, well acquainted with the facts and circumstances of the case, did other things needful and on conclusion of investigation, he submitted charge-sheet u/s 448/302 IPC against the accused person and forwarded him to the court to face trial. 7. The Magistrate, before whom the charge sheet was so laid, committed the case to the Court of Session since the offence u/s 302 IPC is exclusively triable by the Court of Session. 7. The Magistrate, before whom the charge sheet was so laid, committed the case to the Court of Session since the offence u/s 302 IPC is exclusively triable by the Court of Session. On receipt of the case on commitment and on hearing the learned counsel for the parties, the learned Sessions Judge was pleased to frame charges u/s 448/302 IPC against the accused person and charges, so framed, on being read over and explained to the accused person, he pleaded not guilty and claimed to be tried. 8. During trial, the prosecution had examined as many as 7 (seven) witnesses including informant, Medical Officer (in short, ‘MO’), who conducted autopsy and the Investigating Officer (in short, ‘I/O’) of the case. The statement of the accused person was recorded u/s 313 CrPC. The plea of the accused was of total denial. He, however, on being enquired, declined to adduce any evidence in his defence. 9. On conclusion of trial and on hearing the learned counsel for the parties, the court below was pleased to convict the accused of offence u/s 302 IPC and sentenced him to punishment as aforesaid. It is that judgment which has been challenged in this appeal. 10. Mr. P.N. Choudhury, learned Amicus Curiae appearing for the appellant strenuously argues that the conviction and sentence imposed upon the accused in connection with the aforementioned case cannot at all be sustained since the judgment has not been rendered on the evidence on record nor was it rendered in accordance with prescription of law. In that connection, it has been stated that the prosecution case is entirely founded on circumstantial evidence since there is no eye witness to the incident in question. However, the laws laid down in regard to case based on circumstantial evidence were not taken into consideration while handing down the verdict of guilt against the accused person. 11. In support of such contention, it has been stated that PW 3, who set the law in motion by submitting an FIR with police, in fact, refused to support what he stated in his own FIR since he claims that he did not know how the deceased met her death on the night in question. 11. In support of such contention, it has been stated that PW 3, who set the law in motion by submitting an FIR with police, in fact, refused to support what he stated in his own FIR since he claims that he did not know how the deceased met her death on the night in question. Equally importantly, the other non official witnesses, they being PW 1, Dandi Ram Daimari, PW 2, Kante Ram Hajuary, PW 4, Dipu Basumatary and PW 5, Nakul Mahato, did not utter any word implicating the accused with the crime in question. They have simply stated that they only witnessed the police conducting inquest on the dead body. 12. Referring to the evidence of PW 1, PW 2 and PW 3, the learned Amicus Curiae submits that it is found evident from the evidence of those witnesses that on the date of the incident, the accused was not in his house but he was at a place as far of as Guwahati in the district of Kamrup (Metro). Being so, according to learned Amicus curiae, there is every reason to hold and conclude that the accused could not have committed the crime in question. Therefore, the judgment under challenge cannot at all be sustained. 13. On the other hand, Ms. S. Jahan, learned Addl. P.P. trying to defend the judgment under challenge states that though the case is based on circumstantial evidence, there are several circumstances of extremely incriminating nature pointing their accusing fingers at the accused person which unmistakably demonstrate that the accused was the author of the crime in question. The learned P.P., therefore, urges this Court to dismiss the appeal by affirming the judgment under challenge. 14. We have considered the rival submissions, having regard to the judgment under challenge and the evidence on record. Before we proceed further, let us consider the evidence of the Doctor who conducted autopsy on the dead body. He was Dr. Bhabani Prasad Khound and was examined as PW 6. According to him, on 29.12.2005, he was posted as SDM & HO at Mangaldoi Civil Hospital. On that day, he conducted post mortem examination on the body of one Shri Mahadev Mahato and found the following:- Dead body of a female, aged 50 years. Rigor mortis absent. Bleeding from the nose. Bhabani Prasad Khound and was examined as PW 6. According to him, on 29.12.2005, he was posted as SDM & HO at Mangaldoi Civil Hospital. On that day, he conducted post mortem examination on the body of one Shri Mahadev Mahato and found the following:- Dead body of a female, aged 50 years. Rigor mortis absent. Bleeding from the nose. The following injuries were found :- (i) One lacerated injury near outer angle of left joint seize – 3.5 cm. x 5 cm x 5 cm. (ii) Lacerated injury on both sides of forehead. (iii) Abrasion below the right eye. (iv) Lacerated injury over the lower lip. (v) Lacerated injury over the left parietal region exposing the bone. Cranium and spinal canal Fracture of the left parietal bone. Membrane lacerated. Contains blood at the site of the injury. (vi) Lacerated bran. Spinal cord normal. Thorax – Fracture of the rib 4th, 5th and 6th on its lateral side. Pleurae congested. Lung congested. Pericardium congested. Heart empty. Abdomen – stomach contains undigested food particles. Small intestine distended with gas. Large intestine contains faecal matters. Uterus – normal in size and shape. Injuries were ante mortem in nature. 15. A perusal of the evidence of the Doctor reveals that the deceased died a homicidal death on or about 28.12.2005. Now, let us see how the deceased met her homicidal death on 28.12.2005. We have already found that there was no eye witness to the incident in question which is why the prosecution heavily relies on the circumstantial evidence. The question is therefore, whether such circumstantial evidence could accomplish the task assigned to it. 16. In order to carry home their respective claim, the learned counsel for the parties have taken us through the evidence of all PWs including the evidence of PW 3, Sri Indra Mahato who happens to be the informant in the case under consideration. On perusal of his evidence, we have found that in his evidence, he states that on the fateful day in the morning, he found his sister-in-law lying dead inside the house of the accused person. However, he could not say anything as to how the deceased met her death on the day aforementioned. 17. It may be stated that the prosecution has placed enormous reliance on the evidence of PW 3. However, he could not say anything as to how the deceased met her death on the day aforementioned. 17. It may be stated that the prosecution has placed enormous reliance on the evidence of PW 3. But he, as pointed out by learned Amicus Curiae, refused to support the prosecution case for which he was declared hostile. However, the fact remains that prosecution could not draw any support from the testimony of PW 3 despite he being the person who set the law in motion having filed the FIR on 29.12.2005 with the OC, Mazbat Police Station. 18. We have considered the evidence of PW 1, PW 2, PW 4 and PW 5 and their evidence too, we find, lends no help to the prosecution case since they did not say anything as to how the victim met her death on the night of 28.12.2005 although they are heard saying that on 29.12.2005, police conducted inquest on the dead body in the residence of the accused person. 19. It is found evident from out forgoing discussion that the wife of the accused person died a homicidal death on or about 28.12.2005. But evidence on record, as stated above, no way connects the accused with the homicidal death of his wife on the night of 28.12.2005. That being the position, we are of the opinion that it needs to be held that prosecution could not make out the charge levelled against the person which renders the judgment, under challenge, unsustainable in law. 20. Consequently, the appeal is allowed and the judgment in question is quashed and set aside. 21. The accused person accordingly stands acquitted of offence aforesaid. He is ordered to be released forthwith if he is not required in connection with any other case. 22. In deference to the desire of Mr. P.N. Chodhury, learned Amicus Curiae, his professional fees, same being Rs. 7,500/- is ordered to be paid to the Welfare Fund of Gauhati High Court Bar Association. The State Legal Services Authority, Assam, Guwahati would do the needful. 23. Return the LCR.