JUDGMENT : Nadira Patherya, J. 1. This appeal is directed against the order of conviction and sentence dated 10th February, 2009 and 11th February, 2009 passed by the Additional Sessions Judge, Arambagh, Hooghly, in Sessions Trial Case No. 16 of 2003 whereby and whereunder the accused appellant was convicted and sentenced for the offence under Section 302 and 201 I.P.C. For the offence under Section 302 I.P.C., the accused appellant was directed to suffer rigorous imprisonment for life and pay fine of Rs. 5,000/-, in default to suffer further imprisonment for two years. For the offence under Section 201 I.P.C. the accused appellant was directed to suffer seven years' rigorous imprisonment and pay fine of Rs. 2,000/-, in default to suffer further imprisonment for one year. Both the sentences were to run concurrently. 2. The case of the prosecution is that the accused appellant was married to the victim girl in March 1999, but he did not take her to her matrimonial home. On 23rd March, 2000 the accused appellant at 8:30 p.m. came to the parental home of the victim girl along with his three friends to take her to her matrimonial home. On the date of his arrival, i.e., 23rd March, 2000 he stayed with his wife at night in her parental house in a room given for his wife and himself. Another room was given for his three friends to sleep in. After taking meal at 11 p.m. accused appellant and the victim girl retired for the night. In the early morning of 24th March, 2000 the accused appellant informed his father-in-law, the father of the victim girl that the victim girl had gone missing. Subsequently, it was admitted by the accused appellant that he had killed the victim girl by pressing pillow on her face and that her body had been thrown by him in the Rupnarayan river. On 25th March, 2000 the body of the victim girl was found from the Launch Ghat at Gareghata. Prior to recovery of the body of the victim girl on 24th March, 2000 at 18:35 hours an F.I.R. was filed and Khanakul P.S. Case No. 46 of 2000 dated 24th March, 2000 was registered against the accused appellant and his three friends. It was during investigation that the body of the victim girl was recovered on 25th March, 2000. Thereafter inquest was conducted and postmortem undertaken. It was during investigation that the body of the victim girl was recovered on 25th March, 2000. Thereafter inquest was conducted and postmortem undertaken. On the basis of investigation charge-sheet was submitted against four of the accused appellants. Case was committed to the Court of Sessions wherefrom it was transferred to the Court of the Additional Sessions Judge, Arambagh, Hooghly for trial. The Trial Court framed charges against the accused appellant and three other persons under Section 302, 201, 120B, 34 I.P.C. The charges were read out and explained to the accused appellant and three of the other charge-sheeted persons, all of whom pleaded not guilty and claimed to be tried. 3. The prosecution examined 16 witnesses. No evidence was adduced by defence. On the basis of oral evidence and documents exhibited, the Trial Court passed the order of conviction and sentence. The accused appellant was also examined under Section 313 Cr.P.C. Being aggrieved by the order of conviction and sentence, this appeal has been filed. 4. Counsel for the accused appellant submits that from the filing of the F.I.R., it has been the specific case of the F.I.R. maker that the victim girl was smothered to death by a pillow. It was not a case of throttling. No injury was also found in the neck area by the postmortem doctor as at the time when the postmortem was conducted the body had decomposed. The hyoid bone will not break due to throttling or smothering. P.W. 13 the M.O. also has not supported the case of the prosecution. The case pursued by the prosecution was that the death of the victim girl was caused by pressing of pillow over her mouth. P.W. 7, the postmortem doctor has opined that death was caused by asphyxia, but this does not find mention in the postmortem report. The note-sheet on which the postmortem report has been based, was not exhibited. Dom was not examined. The body had decomposed to such an extent that it was not possible to get the correct answers, no external injury was found. Therefore, death by pillow is ruled out. The genji and the pillow though seized by the I.O. from the bedroom, was not recovered in the presence of the accused appellant. The arrest was on 24th March, 2000 at 22:35 hours, but the I.O. (P.W. 14) says that he returned to the P.S. at 23:35 hours. Therefore, death by pillow is ruled out. The genji and the pillow though seized by the I.O. from the bedroom, was not recovered in the presence of the accused appellant. The arrest was on 24th March, 2000 at 22:35 hours, but the I.O. (P.W. 14) says that he returned to the P.S. at 23:35 hours. The confession made cannot be relied on as it was made by the accused appellant after being assaulted and slapped so also when people had gathered. A doubt arises whether a person can kill another in the way the prosecution has run its case. Harekrishna Manna has stated that it was at his instance that the accused appellant was arrested. The entire family of the victim girl came to the P.O. after hearing Hoi-Choi (noise). There has been interpolation in the memo of arrest with regard to the time of arrest, as no confession could be extracted. Therefore, the accused appellant and his three friends were brought to the police station. No injuries were found on the body of Madhusudan Samanta and since the start the case has been faulty. P.W. 3, Kalipada Samanta's name was inserted later in the F.I.R. This will appear from the break in the flow of the handwriting of the scribe. Therefore, the F.I.R. does not evoke confidence and the case is not genuine. The dates in the inspection memo, seizure list, F.I.R. so also the arrest memo have been interpolated. All the documents were prepared at one sitting and is nothing but table work. The investigation made was not proper and the I.O. proceeded with the full intention of making the said case Madhusudan centric. It was a desperate attempt on the part of the I.O. to fix the accused appellant. At the time when the genji was seized from the bedroom it was half wet. The said seizure was made on 25th March, 2000. While Kalipada (P.W. 9) saw the accused appellant coming out of the river after easing himself with his genji being half wet. This genji in half wet condition was also found wet at the time of seizure. This is unbelievable as there was a time gap between the time when Kalipada saw the accused appellant come out from the river Rupnarayan and the genji seized. The I.O. did not seize the articles. This genji in half wet condition was also found wet at the time of seizure. This is unbelievable as there was a time gap between the time when Kalipada saw the accused appellant come out from the river Rupnarayan and the genji seized. The I.O. did not seize the articles. In a case of last seen together time is to be fixed which has not been done in the instant case. The body was sent for postmortem after 30 hours and not immediate on completion of inquest. As time has not been proved, Section 106 of the Evidence Act will not apply. It is the specific case of the prosecution that the victim girl was killed by pressing pillow. Neither the genji nor the pillow was sent for F.S.L. The case is nothing but manufactured after recovery of body. There was no necessity of inquest or postmortem being conducted in an U.D. case as the F.I.R. had already been filed on 24th March, 2000 whereas the U.D. case was started on 25th March, 2000 and the postmortem was conducted on 26th March, 2000. If Jaladhar's statement is to be accepted then the accused appellant changed his wearing apparels as the genji seized was half wet. P.W. 15 is a seizure list witness, he was present at the time of arrest too. The injuries have not been proved by the prosecution in the manner it sought to prove its case. The genuinity of the F.I.R. is in doubt. P.W. 16 is the third I.O. While being examined under Section 313 Cr.P.C. it was not put to the accused appellant that he had slept with the victim girl in the same room. Specific questions are required to be put to the accused appellant while being examined under Section 313 Cr.P.C. The specific questions were not put but general questions were put. Reliance is placed on (2010) 3 Cal CrLR 593 on Section 313 Cr.P.C. (2013) 3 CrLR (SC) 790 Raj Kumar Singh v. State of Rajasthan for the proposition that Section 106 of the Evidence Act will apply only after circumstances have been linked. No investigation was made from the time of meal to death. When the incident started is not known, whether they went to the room or slept together is not known. No investigation was made from the time of meal to death. When the incident started is not known, whether they went to the room or slept together is not known. According to the I.O. (P.W. 6) the incident started at 8:30 p.m. At 8:30 p.m. the accused appellant and his friends came to the parental house of the victim girl. Thereafter, they took meal and were allotted a room. Therefore, the incident could not have started at 8:30 p.m. A room was allotted to the accused appellant and the victim girl but this will not mean that they slept together. There is no reason for holding the inquest at 15:45 hours on 25th March, 2000 when the body according to P.W. 8 was pulled out from the river side at 8 a.m. on 24th March, 2000 (25th March, 2000). The body was recovered from a distance of 1-1/2 km from the house. The accused appellant was kept under lock and key and it was a desperate attempt on the part of P.W. 8 to involve the accused. The evidence of P.W. 8 is nothing but hearsay. The F.I.R. is not genuine. Therefore, the pillow being used to kill the victim girl cannot be accepted. The F.I.R. is based on the confession of the appellant and the I.O. also proceeded to investigate on that basis, without making any attempt to conduct an independent investigation. The case of throttling is sought to be made out through the evidence but this was not the case of the prosecution. The body was allowed to decompose due to laches on the part of the I.O. The final opinion of P.W. 7, the postmortem doctor was that death was caused due to asphyxia. The role of the I.O. is doubtful and although information was received the articles were not seized from Madhusudan, and the hands of the genji on the date of seizure was found to be wet. No attempt was made to send the articles for F.S.L. Although the incident started at 8:30 p.m. at 3:30 a.m. the next morning, i.e., 24th March, 2000 the accused appellant was found with a full genji on his person which was wet when he was coming out of the river. This genji continued to be wet even at the time of seizure which was on 24th March, 2000 at 20:15 hours. This genji continued to be wet even at the time of seizure which was on 24th March, 2000 at 20:15 hours. The charge was faulty as no time was mentioned therein. Therefore, the case of the accused appellant has been prejudiced. Charge has not been proved. That they were last seen together has not been proved and the postmortem report does not support the case of the prosecution. In a case of last seen together time is of relevance. In the instant case no time has been mentioned nor has it been mentioned how the murder was committed. Reliance is placed on the unreported judgment in C.R.A. 564 of 2005 (Niranjan Panja vs. State of West Bengal) and 2000 (8) SCC 382 . Therefore, the prosecution was unable to prove its case beyond reasonable doubt and the order of conviction and sentence be set aside. 5. Counsel for the State submits that in the evening before the incident the accused came with three friends to the house of the defacto complainant and slept in a room with the victim girl as will appear from the evidence of P.W. 2 and P.W. 4. The accused appellant and his three friends so also the victim girl had their meal, and two separate rooms were allotted to them. One for the victim girl and the appellant and the other for the friends of the appellant. No suggestion was given of not sleeping together. Therefore, allotment of a room and the victim girl and the appellant sleeping together has not been demolished by defence. P.W. 4 was woken by the accused appellant and there is no reason to disbelieve the statements made to P.W. 4 by the accused appellant. This amounts to a disclosure statement of fact. On 25th March, 2000 at 15:45 p.m. an inquest was made and at the time of inquest one deep throttling mark was found on the throat of the victim girl. The evidence of P.W. 3 matches with the throttling mark as he stated that the accused told that he had killed the victim girl by pressing balish (pillow) upon mouth and pushing neck. P.W. 1 (Kaka) in cross-examination stated that he found the mark on the neck of Tinku along with a mark of a finger. P.W. 7 has also stated that it was not a case of suffocation but of throttling. P.W. 1 (Kaka) in cross-examination stated that he found the mark on the neck of Tinku along with a mark of a finger. P.W. 7 has also stated that it was not a case of suffocation but of throttling. The hyoid bone was also found fractured. In the charge framed the time, date and place has been mentioned being 23rd March, 2000 in the dead hours of night in the house. The statement of Kalipada (P.W. 3) has been corroborated by P.W. 1 and P.W. 2, with regard to the accused appellant taking the victim girl to the bank of the river to relieve himself and making the victim girl stand on the bank of the river, on return according to him, he did not find the victim girl. P.W. 12 the Magistrate who conducted the inquest has also through his evidence supported the inquest report and except for the mark of throttling did not find any other injury on the person of the deceased. P.W. 12 is not an interested person nor related to the victim girl and, therefore, would not be interested in making the case of the prosecution successful. From the aforesaid circumstance it will appear that the prosecution has been able to prove its case beyond reasonable doubt and having proved its case can resort to Section 106 of the Evidence Act. As the victim girl and the accused appellant spent the night together in a room and the victim girl was in the custody of the accused appellant, therefore, it was for the accused appellant to explain the circumstance in which the victim girl met her death. This is an additional link in the chain of circumstance. Therefore, the order of conviction and sentence calls for no interference. 6. In reply Counsel for the accused appellant submits that no question was put to the accused appellant while being examined under Section 313 Cr.P.C. whether the victim girl and the accused appellant had slept together. In the charge framed the time has been mentioned, the dead body was recovered on 25th March, 2000 while F.I.R. was filed on 24th March, 2000. Therefore, investigation has been badly conducted. The note-sheet on the basis of which the F.I.R. was filed ought to have been exhibited. In the charge framed the time has been mentioned, the dead body was recovered on 25th March, 2000 while F.I.R. was filed on 24th March, 2000. Therefore, investigation has been badly conducted. The note-sheet on the basis of which the F.I.R. was filed ought to have been exhibited. The I.O. P.W. 14 has stated that the death of the victim girl was caused due to pressing a pillow over her mouth which is the case of the prosecution. This was not put to the accused appellant while being examined under Section 313 Cr.P.C. The aforesaid, therefore, calls for interference with the order of conviction and sentence. 7. Having considered the submissions of the parties the case of the prosecution is that the appellant would visit his maternal uncle's house who was a neighbour of P.W. 4 and at that time the appellant took a liking to the victim girl. His maternal uncle proposed marriage of the appellant with the victim girl and as the victim girl's family agreed to the said match, marriage was solemnized between the victim girl and the appellant, but when the appellant left for his home he did not take the victim girl with him as his parents were not ready to accept the marriage but assured that on his parents being ready to accept the marriage the appellant would take the victim girl to her matrimonial home. After one year of marriage the appellant and his three friends came to the house of the victim girl to take her to her matrimonial home. The date on which they came was 23rd March, 2000. The guests stayed in the house of the victim girl that night. They were served a meal and two separate rooms were given. One for the appellant and the victim girl and the other for his three friends. It is not the case of either the prosecution or the defence that the victim girl and the appellant did not sleep together. At hearing Counsel for the appellant did try to raise this issue but defence Counsel in the court below did not raise it nor was it put to the prosecution witness by way of a suggestion. It is not the case of either the prosecution or the defence that the victim girl and the appellant did not sleep together. At hearing Counsel for the appellant did try to raise this issue but defence Counsel in the court below did not raise it nor was it put to the prosecution witness by way of a suggestion. The appellant when examined under Section 313 Cr.P.C. also did not bring the alleged fact to light, therefore, it cannot be said that the victim girl and the appellant did not stay in the same room at night. There is no eye witness in the instant case and the case is based on circumstantial evidence and the circumstances are:- i. The victim girl and the appellant were married on 16th Baishak 1406 (30th April, 1999) ii. The appellant did not take the victim girl to her matrimonial home immediately after marriage. iii. After a year the appellant returned with his friends to take the victim girl to her matrimonial home. iv. That night the appellant and his friends stayed in the house of the victim girl. They were given 2 rooms - one for the victim girl and the accused and the other to be occupied by the friends. v. The victim girl and the appellant slept in the room. vi. Thereafter the victim girl went missing. vii. Kalipada (P.W. 3) found the appellant coming out of the river on the fated night when the victim girl went missing. viii. The body of the victim girl was recovered on 25th March, 2000. 8. These events are inextricably linked without delink and a chain has been formed. The prosecution therefore proved its case beyond reasonable doubt and having proved its case the theory of last seen together so also Section 106 of the Evidence Act comes into play. 9. Although defence Counsel sought to take the plea that allotment of room to the victim girl and the appellant will not prove that they slept together in the same room and that no such question was put to the appellant while being examined under Section 313 Cr.P.C. The said plea will not aid the appellant as this was not the case of the defence nor was any such suggestion put to the prosecution witness. 10. 10. It is the case of the prosecution that the appellant wanted to relieve himself and so woke up the victim girl who accompanied him to the river and after relieving himself when he returned to the river did not find her. 11. If for any reason the victim girl had slipped into the river she would have cried for help. The appellant would have also seen her slip and gone to help her. None would slip into the river silently or without a whimper. It was in the dead of night when sounds are more pronounced than at other times, so there would be no reason for the appellant who was closest of not hearing any sound of splash or cry for help. 12. P.W. 2 in cross-examination stated that he noticed an injury on the neck of the victim girl, P.W. 1 also in cross-examination stated that mark was found on the neck of the victim girl. This piece of evidence is corroborated by the Medical evidence of the postmortem doctor (P.W. 7) who opined that death was due to asphyxia caused by throttling. At the time of inquest, P.W. 12 found the mark of throttling. P.W. 13 is the person who assisted P.W. 12 and he has said that the cause of death "might be throttling" and in cross-examination has said that he, i.e., P.W. 13 and P.W. 7 "opined that the death was due to the cause of throttling as the hyoid bone was found broken." P.W. 13 has also said that the note-sheet and the final Postmortem Report was prepared by P.W. 7 (Postmortem Doctor). P.W. 2 also found "marks of legs of the persons on the grass through which they passed." There is no cross-examination on this by defence and therefore stands. 13. The following question was put to the appellant while being examined under Section 313 Cr.P.C. - "Q. No. 5 : It further appears that you were offered meal and you along with your wife, Tinku were allotted a room and your friends were allotted a separate room. Is it true. Ans : Yes" 14. From the aforesaid it is clear that the victim girl and the appellant were in each other's company at night in the room and the onus shifts to the appellant to explain what happened to his wife, the victim girl. The appellant took no alibi too. 15. Is it true. Ans : Yes" 14. From the aforesaid it is clear that the victim girl and the appellant were in each other's company at night in the room and the onus shifts to the appellant to explain what happened to his wife, the victim girl. The appellant took no alibi too. 15. The prosecution having proved its case and the additional links of last seen together and Section 106 of the Evidence Act warrants dismissal of the appeal. The appeal fails and is dismissed accordingly. Asha Arora, J. : I agree.