JUDGMENT : Joymalya Bagchi, J. 1. The appeal is directed against the judgment and order dated 12.07.2017 passed by the learned Additional Sessions Judge, Uluberia, Howrah in Sessions Trial No. 161 (U)/2016 convicting the appellant SK. Asgar @ Puja Hijra for commission of offence punishable under Sections 302/201/342/506/34 of the Indian Penal Code and appellant Sk. Sabir Ali for commission of offence under Section 201/34 of the Indian Penal Code and sentencing Sk. Asgar @ Puja Hizra to suffer life imprisonment and to pay a fine of Rs.3,000/-, in default, to suffer rigorous imprisonment for two months for the offence punishable under Section 302/34 of the Indian Penal Code and to suffer rigorous imprisonment for seven years and to pay a fine of Rs.2,000/- , in default, to suffer rigorous imprisonment for two months under Section 201/34 of the Indian Penal Code and to suffer rigorous imprisonment for two years and to pay a fine of Rs.2,000/-, in default to suffer rigorous imprisonment for two months for the offence punishable under Section 506/34 and Sk. Sabir Ali to suffer rigorous imprisonment for seven years and to pay a fine of Rs.2,000/-, in default to suffer rigorous imprisonment for two months more for the offence punishable under Section 201/34 of the Indian Penal Code. All the sentences to run concurrently. 2. The prosecution case, as alleged, against the appellants is to the effect that on 11.09.2015 the de facto complainant Chandramukhi Hizra @ Sk. had come to attend the sradh ceremony of Batasi Hizra of Khajnabahala who was the 'Gurumata' of appellant no. 1 Sk. Asgar @ Puja Hizra. The victim Dipa Hizra and others had come from their residence at Bankra to Shyampur at the house of appelalnt no. 1 Puja Hizra for the occasion. One Subarna Hizra also attended the said function along with two boys of village Radhanagar, Jhargram. They had come in a red coloured four-wheeler. At about 7 p.m. the said Subarna Hizra and his associates called Dipa Hizra to the bed room of Puja on the excuse that they had some confidential matters to discuss with her. Thereafter Dipa Hizra did not come out of the room. Puja Hizra called Sumi Hizra and on being summoned Sumi Hizra went inside. At about 8.30 p.m. Sumi Hizra saw that Dipa Hizra was lying dead in the attached bath room adjacent to the bed room of Puja. Thereafter Dipa Hizra did not come out of the room. Puja Hizra called Sumi Hizra and on being summoned Sumi Hizra went inside. At about 8.30 p.m. Sumi Hizra saw that Dipa Hizra was lying dead in the attached bath room adjacent to the bed room of Puja. 3. Over this incident Chandramukhi Hizra @ Sk. lodged written complaint with the police resulting in registration of Shyampur P.S. Case No. 373/15 dated 12.09.2015.In the first information report she suspected Subarna Hizra and others had murdered her 'Gurumata' Dipa as they had disputes over the management of the affairs of West Bengal Eunuch Development Society of which the victim was the President. Upon conclusion of investigation, charge-sheet was filed against the appellants and five others. 4. As Subarna Hizra and Abhimanyu Sui @ Ari were absconding, they were declared as proclaimed offenders and the case proceeded against the other accused persons including the appellants. In the course of trial, co-accuseds Kumkum Kamal and Tumpa Hizra also absconded. The appellants were put on trial along with Sumi Khan. Charges were framed under Sections 302/201/342/506/34 and under Sections 302/120B of the Indian Penal Code against them. The appellants pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined 18 witnesses. However, Chandramukhi Hizra, the de-facto complainant could not be examined as she was not traceable. The plea of the appellants was one of innocence and false implication. Upon assessment of the evidence on record, the trial Judge by judgment and order dated 12th December, 2017 convicted and sentenced the appellants, as aforesaid. However, by the selfsame judgment and order the trial court acquitted Sumi Khan of all the charges levelled against her. 5. As the appellants are in jail, informal Paper books were prepared and with the consent of the parties, the appeals have been taken up for hearing. 6. Learned senior advocates appearing for the appellant namely, Sk. Asgar @ Puja Hizra in CRA 36 of 2018 submitted that there is hardly any evidence connecting the appellant with the alleged crime. No evidence has come on record that the appellant had gone inside the room when the victim entered the room with Subarna Hizra and two others. Trial judge has relied on vague surmises and inadmissible evidence to bring home the guilt of the appellant. Place of occurrence has also not been established beyond doubt. No evidence has come on record that the appellant had gone inside the room when the victim entered the room with Subarna Hizra and two others. Trial judge has relied on vague surmises and inadmissible evidence to bring home the guilt of the appellant. Place of occurrence has also not been established beyond doubt. Hence, the appellant is liable to be acquitted. 7. Learned senior advocate appearing for the appellant namely, Sabbir Ali @ Sk. Sabir Ali @ Sk. Sabbir Ali in CRA 63 of 2018 submitted that there is no iota of evidence connecting his client with the murder of the victim. There was no forensic examination of the iron rod which was allegedly seized pursuant to the statement of the appellant. Independent witnesses have not supported the seizure of the said iron rod pursuant to the statement of the appellant. Hence the appellant is entitled to an order of acquittal. 8. On the other hand, Mr. Saibal Bapuli, learned Additional Public Prosecutor along with Mr. Bibaswan Bhattacharya, learned advocate appearing for the State submitted that the victim suffered homicidal death in the room of Sk. Asgar @ Puja Hizra. Her body was found in the bathroom attached to her room. Post-mortem doctor (PW11) established that the victim suffered death due to strangulation and other injuries. Weapon of offence was recovered pursuant to the leading statement of the appellant namely, Sabbir Ali @ Sk. Sabir Ali @ Sk. Sabbir Ali. It was also contended that all processes were not exhausted by the trial court to ensure the attendance of the most vital witness namely, Chandramukhi Hizra. Referring to the order dated 30th October, 2017 it is submitted that prayer of the prosecution to serve notice upon the said witness through the Superintendent of Police was illegally turned down. Prosecution was not given adequate opportunity to lead the best evidence in the instant case. 9. Taking the last submission on behalf of the State as a preliminary issue and having perused the records of the case particularly the order dated 30th October, 2017 I find that the trial Judge declined the prayer for issuance of further process against Chandramukhi Hizra through the Superintendent of Police, inter alia, on the ground that the process server report showed that she was not available at the address cited in the records and no one could apprise the process server of her present address. Trial court also noted the submission of the accused persons that the said Chandramukhi Hizra is an absconding accused in Domjur Police Station Case No. 930 of 2015. 10. In the light of the aforesaid circumstances and as no worthwhile purpose would be served in issuing process upon an absconding person, the trial court proceeded with the trial of the case without issuing further process for ensuing the attendance of the said witness. It goes without say that prosecution ought to be given all possible opportunity to lead evidence to prove the crime. It is the bounded duty of the prosecution to prove its case beyond reasonable doubt and therefore, no stone ought to be left unturned and all reasonable opportunity and assistance ought to be extended to the prosecuting agency so that the best evidence is brought on record for effective adjudication of a case. 11. In this backdrop and keeping in mind the fact that the appellate court is empowered to record further evidence under Section 391 of the Code of Criminal Procedure, this court proceeded to embark on a enquiry to trace out the whereabouts of the witness namely, Chandramukhi Hizra lest it be said that all possible efforts were not taken to bring the best evidence on board prior to disposal of the appeal. Accordingly, by order dated 29th November, 2018 this court directed the State to submit a report regarding the whereabouts of Chandramukhi Hizra including the fact whether she is an accused in Domjur Police Station Case No. 930 of 2015 as claimed on behalf of the appellants. 12. Pursuant to such direction report is placed before this Court on behalf of the Inspector-in-Charge, Domjur Police Station, wherefrom it appears that Chandramukhi Hizra is an absconding accused in the Domjur Police Station Case No. 930 of 2018 and her whereabouts are unknown. Such report is placed on record. Relying on the aforesaid report, it may be safely concluded that Chandramukhi Hizra continues to be absconding accused and her whereabouts are still not known. 13. Under such circumstances, one cannot say that all possible efforts had not been taken on behalf of the trial court as well as this Court to ensure the attendance of Chandramukhi Hizra as a witness for the prosecution for a just decision of the case. 14. Let me now discuss the evidence on record. 15. 13. Under such circumstances, one cannot say that all possible efforts had not been taken on behalf of the trial court as well as this Court to ensure the attendance of Chandramukhi Hizra as a witness for the prosecution for a just decision of the case. 14. Let me now discuss the evidence on record. 15. P.W. 1, Kiran Chowdhury, a disciple of victim Dipa, was present in the sradh ceremony. She stated that after taking meal in the afternoon she heard a hue and cry. She came to learn that Dipa had died. Chandramukhi and one Rina had also attended the said sradh ceremony. She could not state how Dipa had died and who killed her. She was declared hostile and cross-examined with regard to her previous statement. In cross-examination on behalf of the appellant she deposed that the house of Puja consisted of twelve rooms and a pandal was erected outside the house for the purpose of reception and taking meal by invitees. Sumi, Puja and Sabir were present in the pandal immediately before the occurrence. 16. P.W. 2, Aparna Banerjee, was the Secretary of the Society of which the victim Dipa was the President. She was declared hostile and did not support the prosecution case. 17. Similarly P.Ws. 3 and 4, Morshed Ali Khan and Rinki Roy were declared hostile. P.W. 3 claimed that he signed on a blank paper. He, however, admitted his signature on the seizure list. 18. P.W. 5, Madhusudan Das, was a constable who carried the body of the victim for postmortem examination. 19. P.W. 6, Subrata Dhara, was an P.S.I. attached to Shyampur Police Station. He held inquest over the dead body of the victim at Jhumjhum BPHC in the presence of BPHC Medical Officer, Sumi Hizra, Ritu Hizra and Puja Hizra. He proved the inquest report marked as Exhibit-4. 20. P.W. 7, Tapan Kumar Naga, was posted as ASI of Shyampur Police Station. He was a witness to the seizure of wearing apparels of the victim. He identified the said articles. 21. P.W. 8, Ritu Hizra, deposed that she heard that the victim was murdered by Puja Hizra and other accused persons. Murder was committed at a Naul. She put her signature in the inquest report marked as Exhibit-4/1. 22. P.W. 9, Sk. Yashin, was the witness of the seizure of the vehicle being Maruti Suzuki Alto 800 Number WB 34AQ0036. 21. P.W. 8, Ritu Hizra, deposed that she heard that the victim was murdered by Puja Hizra and other accused persons. Murder was committed at a Naul. She put her signature in the inquest report marked as Exhibit-4/1. 22. P.W. 9, Sk. Yashin, was the witness of the seizure of the vehicle being Maruti Suzuki Alto 800 Number WB 34AQ0036. He, however, was declared hostile and deposed that he was not aware of the article seized under the seizure list signed by him. 23. P.W. 11, Dr. Soumya Roy, held post mortem over the dead body of the victim. He found the following injuries : "Bruising, abrasion and laceration of the surrounding neck tissue and the skin below the ligature detected. Extravasation of blood into tissue below the ligature mark on dissection detected. Fractured of greater cornu of hyoid bone noted. Lacerated wound over scalp 1" below backwards of vertex and 1" left lateral to midline measuring 1"x 1". 24. He opined that the death was due to strangulation by ligature which was ante mortem and homicidal in nature. He proved the postmortem report marked as Exhibit-7. 25. P.W 12, Rina Hizra, stated that she was present at the place where the victim was murdered. She did not hear who murdered the victim. 26. P.W.13, Sk. Sabir deposed that on the date of incident at 3 P.M. Dipa Hizra had telephoned him and asked him to bring a car. He called one Salauddin and both of them took Dipa and others in the car to a place within Shyampur P.S. where they waited in the car at a distance 90/100ft. from the house where function was held. At 9/9.30 P.M. they heard hue and cry. Later they heard that somebody was murdered. He was declared hostile. 27. P.W.14, Sk. Salauddin, the other driver also deposed in similar lines and was declared hostile. 28. P.W.15, Priti Hizra was the scribe of the first information report lodged by Chandramukhi Hizra. She proved the said report (Ext.8). She, however, could not identify the signature of Chandramukhi. 29. P.W.16, Mustafijur Khan was cited as a witness to the seizure of an iron pipe pursuant to the statement of Sk. Sabir Ali. He did not support the prosecution case and stated that he had signed the document on the instruction of police. 30. P.W.17, ASI Manas Mukherjee received the written complaint from Chandramukhi Hizra. 31. 29. P.W.16, Mustafijur Khan was cited as a witness to the seizure of an iron pipe pursuant to the statement of Sk. Sabir Ali. He did not support the prosecution case and stated that he had signed the document on the instruction of police. 30. P.W.17, ASI Manas Mukherjee received the written complaint from Chandramukhi Hizra. 31. P.W.18, SI Subrata Pakhira was the first investigating officer of the instant case. He prepared rough sketch map of the place of occurrence with index (Ext.10). He seized an iron wire of a motor cycle (Mat Ext.III) under a seizure list (Ext.2/2). He seized two pieces of yellow coloured blood-stained cloth under a seizure list (Ext.2/2). He recorded the statement of Chandramukhi under Section 164 Cr.P.C. He seized a Maruti Suzuki 800 vehicle of Maroon colour which was used by the accused persons. He recovered the iron rod used to assault the victim on the instruction of Sk. Sabir Ali, (Mat Ext. V). He submitted the charge sheet. 32. From the evidences on record, it appears that none of the witnesses who were present at the place of occurrence, namely, P.W.1, P.W.2, P.W.8, P.W.12 & P.W.15 had seen the appellants commit the murder of the victim. Although they have been declared hostile, it is trite law that their evidence that ought not to be thrown out in limine but ought to be assessed in the backdrop of the case to come to a just and truthful conclusion. If one makes an endeavour to that end it would appear that the victim along with some of the witnesses including the defacto complainant Chandramukhi had come to the residence of the appellant on the occasion of Sradh ceremony of the Gurumata of the appellant. After lunch there was a hue and cry and subsequently the victim was found dead with a ligature mark around her neck near attached bathroom of Puja Hizra. However, none of the aforesaid witnesses claimed that Puja Hizra had gone into the house along with the victim at the time of the unfortunate incident. On the other hand, cross-examination of P.W.1 shows that Puja, Sumi & Sabir were present in the pandel outside the house where the reception and feeding of people were going on immediately prior to the incident. On the other hand, cross-examination of P.W.1 shows that Puja, Sumi & Sabir were present in the pandel outside the house where the reception and feeding of people were going on immediately prior to the incident. Hence, it cannot be said that Puja was last seen with the victim inside her house where the victim appears to have suffered a brutal end. It is also relevant to note that Sradh ceremony was going in the house of Puja and her rooms were accessible to many people. It is certainly not the prosecution case that Puja Hizra had exclusive access of the said room at the time of occurrence. Furthermore, in spite of repeated efforts both the appellant as well as the trial stage attendance of Chandramukhi, the defacto complainant and the most vital witness could not be secured although the first information report recorded by her has been proved (Ext. 8). In the absence of her deposition in court, neither the said document nor her statement under Section 164 of the Cr.P.C could be treated as substantive evidence and are of no value. Hence, it can be safely concluded that there is no direct and admissible evidence on record connecting Puja Hizra to the alleged crime. 33. Coming to the conviction of appellant Sk. Sabir Ali in CRA 63 of 2018, I find that there is no evidence on record that Maruti Zen vehicle recovered purportedly on the statement of Sk. Sabir Ali was used by the accused persons. That apart, the independent witnesses to the seizure of the iron rod which is allegedly recovered on the leading statement of Sk. Sabir Ali and had turned hostile and did not support the seizure of the rod. No forensic examination of iron rod was conducted to prove that it was used to assault the victim. Hence, in my considered opinion the chain of circumstances necessary to establish the rod as the weapon of offence has not been fully established. 34. In the light of the aforesaid discussion, I am constrained to hold that the prosecution has failed to prove its case and the appellants are entitled to order of acquittal. 35. Accordingly, I set aside the conviction and sentence of the appellants. 36. Appeals are allowed. 37. Appellant in CRA 63 of 2018, namely, Sk. Sabbir Ali @ Sk. 34. In the light of the aforesaid discussion, I am constrained to hold that the prosecution has failed to prove its case and the appellants are entitled to order of acquittal. 35. Accordingly, I set aside the conviction and sentence of the appellants. 36. Appeals are allowed. 37. Appellant in CRA 63 of 2018, namely, Sk. Sabbir Ali @ Sk. Sabir Ali @ Sabbir Ali shall be discharged from his bail bond after expiry of 6 months in terms of Section 437A of the Code of Criminal Procedure. 38. Appellant in CRA 36 of 2018, namely, SK. Asgar @ Puja Hizra shall be forthwith released from custody, if not wanted in any other case, upon executing a bond to the satisfaction of the trial court which shall remain in force for 6 months in terms of Section 437A of the Code of Criminal Procedure. 39. Let a copy of this judgment along with the lower court records be forthwith sent down to the trial court at once. 40. Photostat certified copy of this judgment, if applied for, shall be made available to the appellant within a week from the date of putting in the requisites. Ravi Krishan Kapur, J. - I agree.