JUDGMENT AND ORDER : KALYAN RAI SURANA, J. 1. Both the appellants viz. Sri Jiten Nath and his wife Smti Kalpana Devi have been convicted and sentenced to undergo Rigorous Imprisonment for life and fine for committing an offence u/s 302/34 IPC, with default stipulations. Both of them have also been convicted and sentenced to undergo Rigorous Imprisonment for further period of 3(three) years and fine for committing an offence u/s 201/34 IPC, with default stipulations. 2. The victim of the incident was Bidyut Das, aged about 30 years. 3. According to the prosecution case, Bidyut Das had a partnership business with Jiten Nath, a resident of Bokori Village under Tezpur District and the houses of both Bidyut and Jiten were situated at a distance of about 1 k.m. from each other. About 1½ - 2 months prior to the incident, both of them broke up their partnership business on some issues best known to them and they split up. Bidyut used to live with his family consisting of his brothers-Barun Das (PW-1) and Bipul Das (PW-5) in the same house but in different rooms. Bidyut also used to take meal from the same kitchen with his brothers. Barun earned his livelihood by running a shop whereas, Bipul worked in an office. 4. On 16.12.2001 at about 8:30 PM, Jiten Nath-the appellant no. 1-came to the house of Bidyut with another person named-Pulin Das and they discussed some issues relating to business. Then they asked Bidyut to accompany them and Bidyut also agreed to go out with them. At that time, Barun was also there and Bidyut told him that he was going out with Jiten and Pulin and there was nothing to worry about. He also asked him not to wait for him and go to bed as he would be returning after a while. Saying that Bidyut went with Jiten and Pulin carrying a torch light-as it were night and dark and a khukri with him. 5. Barun did not pay much attention to it as Jiten was known to him being the business partner of Bidyut and as it was late at night in a village life, he went to bed, keeping the door of the room of Bidyut open, so that he could enter his room when he was back home. 6. 5. Barun did not pay much attention to it as Jiten was known to him being the business partner of Bidyut and as it was late at night in a village life, he went to bed, keeping the door of the room of Bidyut open, so that he could enter his room when he was back home. 6. In the next morning, when Barun woke up, he saw the door of the room of Bidyut still kept open and when he searched for his brother, he did not find Bidyut in his room. Bipul also saw the door of his room open when he was going to his office, but he did not pay any heed to it and rushed for his office. Barun,in the meantime, not finding Bidyut in his room, at first searched around his house and then went to other places in search of him. First, he went to his maternal uncle Mahendra Das (PW-2)-who resided near to his house and asked for the whereabouts of his brother, who replied in negative. His son Manoj Das (PW-3) was also present in the house at that time and knowing about the fact of missing of Bidyut, both of them advised him to search for him at other places and also to inform the police. Barun also told both of them that both Jiten and Pulin, took Bidyut with them from his house on the previous night and since then he was found missing. Both Mahendra and Manoj advised him to search for Bidyut in the houses of Jiten and Pulin first and also to inform the police if he was not found. 7. Barun also visited the house of Nityanada Kakati (PW-6), a co-villager in search of his brother, but in vain. Nityananda also advised him to approach the police. But, Barun, prior to going to the police, went to the house of Pulin. He met Pulin on his way and when he asked Pulin about the whereabouts of his brother, he did not reply and simply walked away. Barun, although became a little bit suspicious of some foul play, did not waste further time there and hurried to the house of Jiten. He met Pulin on his way and when he asked Pulin about the whereabouts of his brother, he did not reply and simply walked away. Barun, although became a little bit suspicious of some foul play, did not waste further time there and hurried to the house of Jiten. When he reached there, he met Kalpana Devi-wife of Jiten and Appellant No. 2, in the house, who informed him that Jiten went to the fields and on being asked about Bidyut, she bewilderedly denied having any knowledge of Bidyut’s whereabouts. This cemented the suspicion of Barun about some foul play. He also heard from some undisclosed sources while searching for Bidyut that some cries for help followed by sound of someone’s groaning were heard from the house of Jiten on the previous night at about 10:30 PM. 8. Barun then went to the Bebejia Police outpost along with Manoj, Mahendra, Ashim Kumar Das (PW-8 and cousin) along with two other co-villagers and lodged an First Information Report-Ext-1. The same was registered as Tezpur Police Station Case No. 911/2001 u/s 365 IPC. 9. Police then went to the house of Jiten and made queries to his wife Kalpana. They also took a sniffer dog with them which sniffed around the house and led to a heap of straws. There they found one torchlight and a khukri, which Bidyut carried the previous night and those were seized vide Ext-A in presence of Manoj (PW-3). 10. As the articles of Bidyut were discovered in the house of Jiten and Kalpana was consistently denying having the knowledge about Bidyut’s whereabouts, police took her custody and brought her to police station for interrogation. It may be mentioned herein that as the sniffer dog also sniffed and repeatedly moved around a ‘Duli’ (where grains are stored) inside the house of Jiten, everybody suspected that Bidyut might have been murdered and his body was kept concealed under that ‘Duli’. 11. In the meantime, while police were searching his house, Jiten came from the fields in his cart and as soon as he saw the police in his house and large number of people around, he jumped down from his cart and ran in a bid to escape. The people immediately chased him and caught him. 11. In the meantime, while police were searching his house, Jiten came from the fields in his cart and as soon as he saw the police in his house and large number of people around, he jumped down from his cart and ran in a bid to escape. The people immediately chased him and caught him. But while they were taking him to the police, he again slipped from their hands and entered into a nearby jungle only not to be apprehended again till 6-3-2004 by Sub-Inspector, Ratneswar Saikia (PW-7), who was the then attached to Gogamukh Police station, Dhemaji. Jiten after absconding on 17-12-2001 wandered here and there and ultimately landed in the house of Dilip Nath (PW-4) a distant relative of Kalpana. Dilip was known to Jiten and he also helped him to buy a plot of land much prior to the incident and when Jiten came to his house to spend some days, he did not suspect any foul play and allowed him to stay there. After a few days Kalpana also joined her husband. This is from where Jiten was ultimately arrested by Ratneswar on 6-3-2004 and sent for trial. 12. Be it as it may, it is the prosecution story that, Kalpana made a disclosure statement before the police while she was in custody and she led the police on 18-12-2001 to the ‘Duli’ in the kitchen of her house where the dead body was recovered being wrapped in a gunny(polythene) bag. Babakon Das (PW-10) was instructed by the police to dig under the ‘Duli’ which was a kutcha floor of the kitchen and when it was dug, the dead body of Bidyut was found. At that time Ms. Atika Sultana (PW-12), the then Executive Magistrate was also present who conducted the inquest over the body and prepared Ext-2-Inquest Report, in presence of Babakon Das (PW-10) and Mahendra Das (PW-2). The body was seized vide Ext-3-seizure list in presence of Ashim Kumar Das (PW-8). The recovery of the dead body was also seen by Barun, Mahendra, Manoj, Bipul, Nityananda, Jiten Das (PW-9) apart from Babakon and Mahendra. 13. The body of Bidyut was found with some injury marks on his person and a ‘gamocha’ being tightly knotted around his neck causing strangulation and leaving ligature marks, when it was removed. And his body was kept under the floor being wrapped in a gunny bag. 13. The body of Bidyut was found with some injury marks on his person and a ‘gamocha’ being tightly knotted around his neck causing strangulation and leaving ligature marks, when it was removed. And his body was kept under the floor being wrapped in a gunny bag. To remove the ‘Duli’ for digging out the dead body, some portion of the wall of the kitchen had also to be removed as the door was too narrow a passage for the ‘Duli’ to be taken out. 14. Dr. Apurba Krishna Sarma (PW-11) conducted the autopsy over the body of Bidyut. He found a continuous and transverse ligature mark on the middle of neck of Bidyut with a knot mark on the back. Parchmentisation of ligature was also seen and dislocation of the cervical vertebral column was found to be present. He also found some lacerated cut injuries of ill-defined margin and sizes over scalp, back and all four limbs and multiple abrasions were also found on the skin surface. According to his report-Ext-4-the cause of death of Bidyut was due to asphyxia occurred as a result of ante-mortem strangulation. 15. Ms. Atika Sultana (PW-12) also found similar injuries over the dead-body which have been reflected in the inquest report. 16. Sri Ajay Kumar Das Gupta (PW-14) investigated the case. He visited the place of occurrence, drew sketch map-Ext-6, recorded statements of witnesses etc. and almost completed the investigation. Subsequently, Sri Jogesh Dev Goswami (PW-13) submitted the charge-sheet against both the appellants besides Pulin Das, showing him to be an absconder, vide Ext-5-u/s 365/302/201/34 IPC. Pulin Das still remains as an absconder. 17. The appellants abjured their guilt during trial. But the trial court relying upon the evidence of prosecution witnesses convicted and sentenced them as abovementioned. 18. Upon hearing the learned counsel for the parties, we are of the view that the impugned judgment and order of conviction deserves to be affirmed in respect of Jiten whereas, the same deserves to be modified in respect to Kalpana for the reasons enumerated herein below. It is the evidence of Barun that both Jiten and Pulin took Bidyut with them at 9 PM on 16.12.2001 and he never returned home. The fact, that both Jiten and Pulin took Bidyut with them was not an afterthought. It is the evidence of Barun that both Jiten and Pulin took Bidyut with them at 9 PM on 16.12.2001 and he never returned home. The fact, that both Jiten and Pulin took Bidyut with them was not an afterthought. He narrated it to Mahendra and Manoj also in the next morning and he also went to search for his brother in their houses too. He had categorically mentioned in the FIR that he suspected that Jiten kidnapped his brother due to bad blood as a result of business transactions between them. He firmly stood the witness box and maintained that Jiten and Pulin took his brother at the night of 16.12.2001. Both Mahendra and Manoj corroborated the evidence of Barun. Even Bipul had deposed that Barun informed him over telephone at about 11:30 AM, while he was in office that Bidyut had not returned home after being accompanying both Jiten and Pulin on the previous night. There is no reason as to why Barun would implicate Jiten falsely, had he not taken his brother on the previous night. 19. The fact that Jiten took Bidyut to his house further becomes clear from the fact that his body was recovered from his house. Barun, Mahendra, Manoj, Bipul, Nityananda, Jiten,Babakon and Mahendra have equivocally testified to the effect that on being led by Kalpana, the dead body was recovered from the house of Jiten, being concealed under the floor by digging. Ms. Atika Sultana also corroborated this piece of evidence. The post mortem report as well as the inquest report shows that Bidyut was subjected to some degree of torture and was strangulated to death. The injuries were found to be ante-mortem and after his death his body was kept inside a gunny bag and was concealed under the ‘Duni’. It had to be exhumed, later on. In such an eventuality, Jiten was seen with Bidyut lastly on the night of 16.12.2001 and as such he had to explain as to what happened to Bidyut and how his body was found inside the kitchen of his house, that too underneath ground and in a gunny bag. But Jiten had not offered any explanation to the same and rather fled when he saw the police in his house. But Jiten had not offered any explanation to the same and rather fled when he saw the police in his house. He concealed himself from the eyes of the public and dodged the police for next 3 (three) years until and unless he got arrested in the year 2004. This act of absconding of Jiten and failing to offer a plausible explanation about the circumstances under which Bidyut met his tragic end, is an added circumstance against him pointing the finger of guilt towards him and no other person. Therefore, it can be safely held that Jiten was the perpetrator of the crime and as such the finding and sentence of the trial court is correct and hence upheld. 20. So far Kalpana is concerned; there is no evidence as such to rope her u/s 302 IPC. Although it is the evidence of Ms. Atika Sutana that Kalpana led her to the dead body, but Sri Ajay Das Gupta had deposed that he discovered the body on the basis of suspicions of villagers only. The same finds sufficient substance as it is the evidence of Barun, Mahendra and Manoj that the sniffer dog made repeated movements around the heap of straws and so they also suspected that the dead body might had been concealed there. Therefore, it cannot be held beyond reasonable doubt that Kalpana was also involved in the murder of Bidyut. However, it may be safely held that she had knowledge about the place where the dead body was concealed as she was present in the house and even denied that Bidyut visited her house on the previous night with Jiten. It can be understood that she being the wife of Jiten, tried to safeguard him and in a bid to do so tried to conceal and destroy the evidence to screen the offender. Hence, she is held guilty of committing an offence u/s 201/34 IPC and is liable to be punished accordingly. She is reported to have already served more than 3 years of imprisonment. If that is so, she be released immediately from jail, if not wanted in any other case. Accordingly, the appeal is partly allowed.