JUDGMENT AND ORDER : Rumi Kumari Phukan, J. 1. The appeal is preferred against the judgment and order dated 02.03.2012 passed by the learned Sessions Judge, Morigaon, in Sessions Case No. 101/2007 arising out of G.R. Case No. 271/1999, wherein, the two accused appellants has been convicted under Sections 320/34 IPC. 2. The prosecution case, in a nutshell, is that one Chan Banu, wife of deceased Safiuddin of Hatimuria, P.S. Moirabari, lodged an FIR with Moirabari Police Station, alleging inter-alia that on 08.05.1999 at 9.25 p.m., her husband Safiuddin, her son Saiful Islam and brother-in-law Jalaluddin and nephew Abul Kasem, while returning from Moirabari market in their own vehicle, were attacked by some unknown miscreants and fired gunshots towards their vehicle as a result of which her husband Safiuddin and her son Saiful Islam were killed on the spot. Jalaluddin and Abul Kasem sustained serious injuries in the said incident and the vehicle was also damaged. On being informed by some unknown persons about the incident, one G.D. Entry was also made by the Investigating Officer and the Investigating Officer started the investigation after making G.D. Entry itself and visited the place of occurrence and the injured were sent for medical examination and the dead bodies of the two deceased persons were sent for postmortem examination. After completion of investigation, the Investigating Officer submitted Charge-Sheet against five accused persons, two of whom are the present accused appellants, who faced the trial and other three were declared absconder. 3. After receipt of the case on committal, the learned Sessions Judge framed charges under Sections 302/34 & 120B/34 IPC against the present accused appellants and the charges were explained to them to which they pleaded not guilty. During the trial, prosecution examined as many as 23 witnesses and defence also examined 2 witnesses. There is no specific plea of alibi taken by the defence in course of trial but by adducing defence evidence, they took the plea of alibi after the closure of evidence of prosecution. 4. The learned Court below, at the conclusion of the trial held the two accused appellants guilty under Sections 302/34 IPC and convicted them under Sections 302/34 IPC and sentenced them to suffer Rigorous Imprisonment for life and also to pay fine of Rs.2000/- and, in default, to suffer Simple Imprisonment for 6 (six) months. Hence, this appeal. 5. We have heard Ms. Hence, this appeal. 5. We have heard Ms. S K Nargis, appearing for the accused appellant. We have also heard Ms. S Jahan, learned Additional Public Prosecutor, Assam. The learned counsel for the accused appellant has vehemently argued before the Court that the accused appellants were held guilty entirely on suspicion and the evidence on record is highly insufficient for holding the accused appellants guilty. It has been urged that prosecution's evidence is not enough to prove the charge beyond all reasonable doubt. 6. Referring to the FIR, so filed by PW3, it has been contended that though it was filed on the next day but there is no mention about the assailants and rather it is suspected that some ULFA cadres, namely, Nazirul Islam, Sri Ganesh Saikia and Dipak Bora, who were involved in the incident. 7. Challenging the creditability of evidence of PW4, it has been urged that though in course of trial PW4 claimed to be the eye-witness of the occurrence and actually, he was inside the vehicle at the time of occurrence, but his evidence is not convincing because of the fact that it lacks support from other facts and circumstances. PW15, who happened to be the person appeared in the place of occurrence, immediately after hearing the sound of fire and also met PW4, but the said PW4 disclosed nothing about the name of assailants to him. 8. Neither PW8, Abul Kasem, who happens to be inside the vehicle and was one of the injured in the said incident has not uttered anything about involvement of the accused appellant. It has been contended that if he happened to be present with the other witness (PW4) then his evidence cannot be silent to that effect. Further, the evidence of PW5 is also important who, in his cross-examination, has stated that he met the said PW4, Jalal Uddin, immediately after the incident and at that time also the said PW4 did not state anything implicating the accused appellants. 9. Further contention of the learned counsel appearing for the accused appellant is that the case of the informant is quite doubtful and because though the distance of the police station from the place of occurrence is 1 km, as has been deposed by the Investigating Officer, but the present FIR was not filed immediately after the incident. 9. Further contention of the learned counsel appearing for the accused appellant is that the case of the informant is quite doubtful and because though the distance of the police station from the place of occurrence is 1 km, as has been deposed by the Investigating Officer, but the present FIR was not filed immediately after the incident. In such circumstances, it contends that delay is not properly explained by the prosecution, hence, fatal. 10. Another point that has been assailed by the learned counsel for the appellant is that there being G.D. Entry, it can be treated as FIR and no name was mentioned in the G.D. Entry and therefore, the subsequent FIR is hit by Section 162 Cr.P.C. and prosecution cannot rely upon such FIR. 11. On the other hand, Ms. S Jahan, learned Additional Public Prosecutor, Assam, has placed reliance upon certain circumstances which according to her is sufficient to accept the evidence of PW4 and the case cannot be denied because of not mentioning of the person assailed in the G.D. Entry as has been alleged by the other side. 12. Further, it is contended by the learned Additional Public Prosecutor, that there is evidence of PW15 that while he arrived at the place of occurrence immediately after the occurrence, PW4 was found to be dumb-struck, perhaps because of the shock of the incident for which he may be not in a position to reveal all the facts to the witnesses. Equally, it is also submitted that the said witness, PW4 has given a similar statement before the Investigating Officer under Section 161 Cr.P.C., and during the course of trial, so his statement cannot be belied. 13. Regarding the G.D. Entry, it has been submitted by the learned counsel for the State that such type of G.D. Entry cannot be treated as FIR in view of decision of the Hon'ble Supreme Court reported in (2013) 6 SCC 42 because the said information is not in detail and the person who gave the information was not personally present at the police station and it was a hast information over telephone without intimating more details of the occurrence. 14. We have considered the above submissions of both the parties and also gone through the entire evidence on record. We found that PW1 Musstt. 14. We have considered the above submissions of both the parties and also gone through the entire evidence on record. We found that PW1 Musstt. Jaimon Nesa, has no knowledge about the occurrence except the fact that they could hear the sound of firing on the day of the occurrence and later on, they could know that Safiuddin and Saiful were killed in the firing. 15. The evidence of PW2, on the other hand, also bears no such importance for the prosecution as he also has no knowledge about the occurrence. He has stated about some illicit relationship between the accused appellants that despite the fact that the appellant No. 2 is the wife of deceased Safiuddin, appellant No. 1 has maintained illicit relation with appellant No. 2 and later on married her. 16. As we found that the informant Chan Banu has filed the FIR on the next day morning of the occurrence narrating the facts that some unknown miscreants had opened fire upon her husband Safiuddin and son Saiful Islam while they were returning home in their own vehicle, along with two persons, namely, Abul Kasem and Jalaluddin, and that her husband and son were killed in the incident. In her evidence, she has stated about certain facts that her husband (deceased) married for the second time and thus his second wife has a relationship with the accused appellant No. 1 and finally the said second wife married the accused appellant Nazirul, so she suspected him to have killed her husband and son. 17. Obviously, the FIR was filed on suspicion, even if we go by the statement of the informant that on the day of the occurrence, her husband and son was going with Jalaluddin (PW4) and Kasem (PW8) at the time when the incident occurred and said Jalaluddin/PW4 has identified appellant No.1 then the incident must have been reported by PW4 immediately to the informant but peculiarly enough the evidence of PW4 is totally silent. He has given his version in a different manner that while they were returning, their vehicle was stopped by some persons by firing at the wheels and he could only identify the accused appellant Nazirul in the light of the vehicle as he was inside the vehicle and he could not identify the other accused assailants. He has given his version in a different manner that while they were returning, their vehicle was stopped by some persons by firing at the wheels and he could only identify the accused appellant Nazirul in the light of the vehicle as he was inside the vehicle and he could not identify the other accused assailants. But there is nothing to show that he informed the matter to the wife of the deceased while he was in a position to speak. Because the evidence of PW5 and PW15 has made it clear that they met this PW4 immediately after the occurrence but he made no such statement as to name of the assailants, so it is an admitted position now that PW4 at no point of time disclosed the name of the assailants to any of the witnesses who happened to appear immediately after the occurrence not even to the informant. In these circumstances, his evidence is surrounded by the shadow of cloud and his evidence cannot be solely relied on. 18. Another two witnesses, PW5 and PW6, who happened to appear on the place of occurrence immediately after the incident, found nobody who opened the fire and killed those two persons and also caused injuries to two other persons and PW4 also did not re-pot them anything. Their evidence is not supporting to the evidence of PW4. 19. Another important aspect of the matter is that PW8, Abul Kasem, who also happened to be present inside the vehicle at the time of the occurrence (along with PW4) peculiarly enough, has no way implicated any person who had attacked and killed those two persons though he has stated that in the said firing he sustained bullet injuries on his backside. The light inside the vehicle was also lit up at the time of the occurrence and the head lights of the vehicle were also on but he saw nobody near the vehicle and he came out from the vehicle and went to his home. His evidence is also not supporting the evidence of PW4 despite these witnesses PW4 and PW8 both are related. If the PW4 can identify one assailant then there can be reason as to why PW8 cannot identify the said person. So the evidence of PW8 is destructive of prosecution case. 20. His evidence is also not supporting the evidence of PW4 despite these witnesses PW4 and PW8 both are related. If the PW4 can identify one assailant then there can be reason as to why PW8 cannot identify the said person. So the evidence of PW8 is destructive of prosecution case. 20. PW10, is the daughter-in-law of the deceased Safiuddin, has given evidence to the effect that the accused appellant No. 1 had illicit relationship with Nasima/ defendant No.2 and she strongly suspect that both accused appellant Nos. 1 and 2 are involved in the murder of the husband & father-in-law. However, her evidence is not in conformity to the allegation so made in the FIR. 21. The evidence of PW9, Mazibur Rahman, PW10, Waquefa Rahman, PW11, Riazuddin Ahmed, PW13, Saiful Islam, PW14, Saiduz Zaman, are similarly hearsay witnesses and they have no knowledge about the occurrence so their evidence is no helpful to the prosecution case. 22. As we found from the evidence of PW15, Shamsul Haque that at the relevant time, he was in his house and on hearing the sound of firing, he ran to the place of occurrence and found that said Safiuddin and his son Saiful was lying dead inside the vehicle due to bullet injury and Jalaluddin (PW4) was alone inside the vehicle, who was, however, dump-struck but while he was taken to police station, he stated that some unknown persons had fired at them. He did not state that he knew the miscreants or could identify if produced before him. He also stated that he was aware of the fact that some members of ULFA had demanded money from the deceased and they might have killed him for the said reason. This portion of evidence is again destructive of evidence of PW4 and hence, no implicit reliance can be placed upon such uncorroborated piece of evidence of PW4. 23. PW16, Abdur Rashid, and PW17 Sahab Uddin, were seizure witnesses to the documents of the vehicle involved in the incident and also the cartridge of AK47 rifles but they have no any knowledge about the occurrence. Ext. 5 is the seizure list regarding seizure of documents and Ext. 6 pertains to the seizure of empty cartridge. Another important aspect emerges that as per PW4 accused/appellant No. 1 had a pistol in his hand but I/O has recovered empty cartridges of AK47. 24. Ext. 5 is the seizure list regarding seizure of documents and Ext. 6 pertains to the seizure of empty cartridge. Another important aspect emerges that as per PW4 accused/appellant No. 1 had a pistol in his hand but I/O has recovered empty cartridges of AK47. 24. The Investigating Officer, as usual, has stated about the receipt of information as on 08.05.1999 and making of GD Entry on the matter vide G.D. Entry No.118, proved as Ext. 7. During his investigation, he found two persons Jalaluddin and Abul Kasem in injured condition in the hospital and got them admitted into the Nagaon Civil Hospital. He visited the place of occurrence and finally submitted the Charge-Sheet. In his cross-examination, he stated that he received the FIR on 09.05.1999 at 12 Noon. During the investigation, no witness said that he/she had seen the accused persons involved in the commission of the offence and he did not find any eye-witness to the occurrence. The distance of the police station from the place of occurrence is 1 km. 25. In view of the above findings from the evidence on record, we find that though there is a finding of postmortem report given by PW20, Dr. R P Bora and PW22, Dr. Pulin Bhattacharjee, regarding the injury found on the dead body of said two persons, namely, Safiuddin and Saiful, but it will not help the prosecution case while the charge itself is not proved beyond all reasonable doubt against the accused appellants or to prove as to who caused death of those two persons. 26. It is also found that PW22 has also given report as regards the injuries found upon the PW8, Abdul Kasem, but again we have find that the said Abdul Kasem is silent implication of the assailants. The evidence of the Medical Officer is of no help to the prosecution. PW23, Shamsuddin, is the Investigating Officer who finally submitted the Charge-Sheet. 27. As has been discussed above, the defence has also examined two witnesses, namely, DW1, Abdul Aziz and DW2, Nazirul Islam, (who is one of the accused appellants himself). By their evidence, they tried to establish that on the day of the occurrence, the accused appellant was with DW1, Abdul Aziz, at Jamat at Nagaon District, for around 41 (forty one) days. 28. By their evidence, they tried to establish that on the day of the occurrence, the accused appellant was with DW1, Abdul Aziz, at Jamat at Nagaon District, for around 41 (forty one) days. 28. The accused appellant (DW2) also stated that after completion of religious tour, after 20 days when he returned home, he came to know about the incident. Further, he submitted that as his right arm was fractured a long time ago, he was unable to go and that even he could not move his right hand freely as the same is completely twisted. He further stated that Jalaluddin(PW4), owes Rs.5000/- to him and for non-payment of the said money, he had a quarrel with Jalaluddin and for such reason his name has been wrongly mentioned in this case. 29. It is to be noted that the plea of alibi was not taken during the course of trial so that aspect will not help the defence. However, prosecution itself failed to adduce requisite evidence to substantiate the Charge under Sections 302/34 of the IPC. In absence of any supporting evidence, testimony of PW4 is not at all safe to rely upon. The fact that PW4 did not disclose to the informant that he could identify one of the assailant and the same being not mentioned in the FIR is itself very crucial to the prosecution. All other facts and circumstances, no way support the sole testimony of PW4 and as such, the reliance placed for the learned Trial Court upon the evidence of PW4 is not justifiable. That apart, there is no any iota of evidence against the appellant No. 2 to indicate her involvement with the offence charged. The findings, so arrived at by the Courts below only on suspicion as has been disclosed by PW2 and PW6, in absence of any positive evidence, is not legally permissible. The evidence nowhere disclosed about the presence of the appellant No. 2 while commission of offence nor there is any requisite evidence so as to hold that she is the editor of the crime. Criminal offence, like murder cannot base upon the suspicion/doubt, however, strong it may be. 30. In view of the materials on record, we are not inclined to discuss about the G.D. Entry etc. as the prosecution case itself suffers from many infirmities that have been discussed above. Criminal offence, like murder cannot base upon the suspicion/doubt, however, strong it may be. 30. In view of the materials on record, we are not inclined to discuss about the G.D. Entry etc. as the prosecution case itself suffers from many infirmities that have been discussed above. It is a cardinal principle of criminal law that the evidence of injured should be relied but, similarly, it is also the proposition of law that such evidence must be corroborated by other facts and circumstances, but this is not found in the present case. 31. In view of all discussions and findings above, we are constrained to hold that the charges under Sections 302/34 IPC is not proved against the accused appellant beyond all reasonable doubt and, as a result, the conviction and sentence passed against them is liable to be set aside. Accordingly, the impugned judgment of conviction and sentence of the accused appellant, passed in Sessions Case No. 101/2007, arising out of G.R. Case No.271/1999, is set aside and the accused appellant are set at liberty. 32. Return the LCR.