JUDGMENT T. Amarnath Goud, J. - Heard Mr. B. Deb, learned counsel appearing for the appellant and Mr. R. Datta, learned Public Prosecutor appearing for the State of Tripura-respondent. 2. This criminal appeal under Section-374(2) of the Code of Criminal Procedure is directed against the judgment and order of conviction and sentence dated 16.11.2019, passed by the learned Sessions Judge, South Tripura, Belonia, in Case No. S.T.(T-1) 01 of 2017, whereby and whereunder, the appellant has been convicted and sentenced to undergo imprisonment for life for committing offence under Section-302 of IPC and to pay a fine of Rs. 10,000/- [ten thousand] with default stipulations. 3. The prosecution story, in brief, is that one Dipak Baidya (PW-9) lodged an oral ejahar in the late night of 06.11.2015 which was read over to him and reduced into writing to the affect that at about 25 years ago the victim, sister of the informant namely, Kalpana Baidya Das got socially married to the accused Paresh Das. Since last 3/4 years, accused Paresh Das used to torture Kalpana (the deceased herein) both physically and mentally due to some trifling issues. The accused is a BSF person. On and also 30.10.2015 the accused-appellant returned to his house at Ballamukha and from then, he again started torturing upon his wife, the deceased herein both physically and mentally and also avoided her. On 06.11.2015, at night about 2.00am the accused appellant got up from his bed and stepped out from his room and also called his wife Kalpana who was sleeping in a separate room with her daughter Ishita. Accordingly, the deceased opened the door and then the accused appellant tied her neck by a skipping rope of Ishita with a view to kill her. Hearing the struggling sound of Kalpana her daughter Ishita woke up from sleep and rushed to the spot and tried to save her mother but, the accused appellant beaten them with a wooden plank. Finding no other alternatives Ishita started shouting and hearing her shouting, other family members came forward and arranged to restrain the accused appellant from more violence and also shifted Kalpana to Belonia hospital by an auto rickshaw but, after reaching to the hospital, the attending doctor declared her brought dead. 4. Finding no other alternatives Ishita started shouting and hearing her shouting, other family members came forward and arranged to restrain the accused appellant from more violence and also shifted Kalpana to Belonia hospital by an auto rickshaw but, after reaching to the hospital, the attending doctor declared her brought dead. 4. On the basis of aforesaid complaint, Belonia P.S. registered a specific case vide Belonia P.S. Case No. 2015/BLN/145 under Sections-325/302 of IPC and after completion of investigation charge sheet was filed against Paresh Das, the accused-appellant under Sections-302/323 of IPC. 5. After submission of charge-sheet, cognizance of offence was taken, accused copy was supplied and thereafter case was committed to the Court of learned Sessions Judge as the case was exclusively triable by the learned Court of Sessions Judge, South Tripura, Belonia. 6. The learned trial Court in course of trial framed charge under Section-302 of IPC against the accused appellant and the contents of the charge was read over and explained to the accused to which he pleaded not guilty and claimed to be tried. 7. During trial, prosecution has examined as many as 14 witnesses and also exhibited some documents Exbt. 1 to 12/2, to prove the charge against the accused-appellant. On closure of prosecution evidence, the appellant was examined under Section-313(1)(b) of Cr.P.C. to which he strongly denied the incriminating materials brought against him by the prosecution and no defence witness was adduced by the accused-appellant. 8. After hearing both sides and considering the material objects and circumstances, the learned Court below has delivered the judgment and order of conviction and sentence dated 16.11.2019. 9. Being aggrieved by and dissatisfied with the judgment and order of conviction and sentence passed by the learned trial Court, the convict-appellant has preferred this present appeal. 10. Mr. B. Deb, learned counsel appearing for the appellant in support of his case has argued that the findings of the learned trial Court is perverse, illegal, unjustified, unreasonable, unwarranted in law and facts and as such, it is not maintainable in the eye of law and it needs to be interfered with by this Court. He has further submitted that improper appreciation of evidences on record and the facts and circumstance of the case as arrived at by the Court below, is absolutely illegal and miscarriage of justice. 11. Mr. He has further submitted that improper appreciation of evidences on record and the facts and circumstance of the case as arrived at by the Court below, is absolutely illegal and miscarriage of justice. 11. Mr. Deb, learned counsel has averred that the learned trial Court held the appellant to be guilty of alleged offence on the basis of no evidence inasmuch as, the evidence on record does not constitute the alleged offence and in no case, implicated the accused-appellant in the commission of offence. 12. According to Mr. Deb, learned counsel PW-1, the daughter of the deceased and the convict-appellant has deposed in her evidence that prior 5/6 months of the death of her mother, her father was posted at Nalkata, North Tripura and during 5/6 months only once he visited their house at Belonia. She has stated that her father, the accused-appellant was arrested on the occasion of killing her mother on the following day of the incident. Her mother died in the night of 15th November, 2015. She has stated that after the incident she and her aunt, namely, Dipali Das (PW-2) shifted her mother to Belonia Hospital by one auto rickshaw and the accused appellant and Naresh Das (PW-3) followed them to the hospital. 13. He has further stated that on the fateful day, PW-1, her mother, the deceased herein and the accused-appellant have taken dinner together and went for sleep. She and her mother took sleep in a separate room. She has stated that in that night the accused appellant did not call her mother to go with him and also not requested her mother to go into the room of her father. The vital thing which was ignored by the learned trial Court that PW-1 categorically stated that she did not see her father, the accused-appellant strangulating her mother by wrapping a lace around her neck. 14. It has been further contended that after arrest of the accused appellant, PW-1 gave her statement to the police and also before the Magistrate but, all those statements were given by her before the Magistrate as tutored by the police but, the learned trial Court below most arbitrarily overlooked that vital portion of evidence on record. 14. It has been further contended that after arrest of the accused appellant, PW-1 gave her statement to the police and also before the Magistrate but, all those statements were given by her before the Magistrate as tutored by the police but, the learned trial Court below most arbitrarily overlooked that vital portion of evidence on record. He has further contended that the trial Court also overlooked one vital fact that on the day of incident, the accused was arrested and articles were seized but, after seizure of weapon (wooden plank) no attempt was made by the I.O. for obtaining fingerprint and to send that fingerprint for forensic test. 15. The whole prosecution story is strictly concerned only on the evidence of PW-1 i.e. the daughter of the accused person as well as the deceased. But the court below convicted the appellant on the basis of the hostile witness i.e. PW-1 who was minor at the time of alleged incident and on the day of giving deposition. The court below did not consider the fact that when PW-1 appeared in the court as a witness, she categorically denied all her statements for which prosecution has declared her hostile. Moreover, the most important fact that PW-1 voluntarily stated in her deposition that she has given her statement before the Magistrate 'because police tutored me to give such statement' but, the court below without giving weightage on the evidence on record convicted the accused-appellant. 16. Mr. Deb, also contended that the court below did not consider the fact which has been revealed in the cross-examination of PW-1 where she has disclosed about her injury and also stated that because of blood cancer of her father, he was required to be admitted in the hospital time to time and the conjugal relation of her parents were good. The court below without appreciating the evidence of PW-1 regarding the health condition of the appellant convicted the appellant with most illegally. 17. Mr. Deb, learned counsel has stated that PW-2 Smt. Dipali Das deposed in her evidence that in the month of November, 2015 at around 1.30am hearing alarm of Ishita and her father she and her husband rushed to the room of Ishita as they used to live in the same premises in a separate hut. She found Kalpana (deceased herein) lying on the veranda with bleeding injury on her head. She found Kalpana (deceased herein) lying on the veranda with bleeding injury on her head. PW-2 further deposed that on her query, Ishita told that she had no idea how her mother sustained injury. She has deposed that the appellant and Ishita shifted the deceased to the hospital by one auto rickshaw. On the following day police visited their house and seized one read colour blood stain gamcha, sparkle colour ladies t-shirt which was blood stained, another blood stained t-shirt and tracksuit, one wooden file one skipping rope with wooden handle and blood stained with two gauze cloth. 18. In view of above submissions, let us discuss the vital aspect of the matter to find out a definite conclusion. It is pertinent to mention herein that PW-2 was subsequently declared hostile and on the basis of her hostile evidence, the appellant was convicted without any corroboration with other evidences. It would be evident from the evidence of PW-1 that in her examination-in-chief she has categorically stated that 'when I shifted my mother along with aunt Dipali my father did not go to the hospital' whereas PW-2 in her examination-in-chief stated that father of Ishita and Ishita herself shifted kalpana, the deceased to the hospital by one auto rickshaw. But, the learned court below without considering this point convicted the appellant though there was no eye witness about the incident of alleged murder as well as no corroboration between the statement of PW-1 and PW-2 to substantiate the circumstantial evidence against the accused-person. 19. PW-3, Naresh Chandra Das, brother of the accused appellant who has categorically stated that about 2 years back at night around 2.15 am hearing alarm of Paresh and his younger daughter, he rushed to the house where the incident occurred and found Kalpana (deceased) lying on the ground in the veranda with bleeding injuries on her head. Her head was wrapped by a piece of cloth. He immediately called one auto rickshaw and thereafter, shifted Kalpana to the hospital. He further stated that he was examined by the police in the hospital and he signed in a paper but police did not inform him what was written on that paper. 20. In course of cross-examination he has categorically deposed that Kalpana has five brothers, namely, Amardhan, Pradip, Dilip, Dipak and Abhu. Dilip and Abhu are absconders as there are criminal cases against both of them. 20. In course of cross-examination he has categorically deposed that Kalpana has five brothers, namely, Amardhan, Pradip, Dilip, Dipak and Abhu. Dilip and Abhu are absconders as there are criminal cases against both of them. The parental house of Kalpana is situated at a distance of three and half/4 km at Talukdar para from their house. Dipak resides at Talukdar Para. The India Bangladesh Border is situated at a distance of one furlong from their house. He also admitted that in some places in their village there is no border fencing and occasionally thieves from Bangladesh came to their village and commit theft cows. Apart from their home street land situated at both side of border fencing and those are abandoned. These aspects are also not considered by the learned court below. 21. It reveals from the evidence of PW-4, Smt. Soma Baidy (Das) that she as a daughter in law of the accused whereas accused is the younger brother of her father in law who categorically stated that her house is situated at a distance of 8/10 cubits from the living hut of Paresh Das. She also stated that on the night of incident she was in her parental house. Early in the morning she received a telephone call that the wife of Paresh died. She returned to her matrimonial home and came to know that wife of Paresh was found with injuries. She was told how the wife of Paresh sustained injuries but, she was declared hostile by the prosecution though, she was not present at her matrimonial home at the time of alleged incident. 22. PW-5, Pijush Paul, has no knowledge about the case. PW-6 Sri Krishnalal Saha the auto driver who shifted the deceased to the hospital. 23. PW-7, Dr. Arpan Bhattacharjee in his examination in chief has stated that on 06.11.2015 he was posted in Belonia SD Hospital as medical officer. On that day he along with Dr. Anuradhan Majumder, Dr. Tapash Majumder conducted the PM examination on the body of Kalpana Baidya and he narrated about the injuries found on the dead body of the deceased. But, in his cross-examination he categorically stated that he did not mention in his PM report Exbt. 7, 7/1, 7/2 whether wooden file/iron bar were used. Anuradhan Majumder, Dr. Tapash Majumder conducted the PM examination on the body of Kalpana Baidya and he narrated about the injuries found on the dead body of the deceased. But, in his cross-examination he categorically stated that he did not mention in his PM report Exbt. 7, 7/1, 7/2 whether wooden file/iron bar were used. He also stated that he collected blood sample from the dead body on gauze cloth and handed over to the concerned police officer for forensic examination. No blood stained weapon or any other materials were produced before him for collecting blood samples from those materials. 24. PW-8, Dr. Anuradha Majumder, who conducted the post mortem of the deceased which was signed by Dr. Arpan Bhattacharjee and counter signed by her as a witness. 25. PW-9, Sri Dipak Baidya, the brother of the deceased, in his deposition has stated that the deceased was given marriage with Paresh Das and she continued her marriage life for 25 years. In the late night on 06.11.2015 Ishita over mobile phone informed him that her father inflicted a few lathi blows on her mother and although she tried to save her mother but, in vain. He was asked to go Belonia Hospital and thereafter he rushed to the hospital and found his sister succumbed to her injuries and noticed. In the hospital Ishita and the sister in law of Paresh were found and stated some other stories. He also stated that Ishita did not inform him that in the night of occurrence whether there was any quarrel between her parents. Most surprising thing is that PW-9 has deposed so many things which he heard from Ishita but, Ishita in her deposition nowhere stated that she has informed PW-9 or narrated anything to him about the incident. As such, the evidence of PW-9 partially barred by spirit of Section-60 of Indian Evidence Act. 26. PW-10, Sipra Baidya, the wife of brother of the deceased who stated that on the fateful night after getting telephone call from Ishita they went to Belonia hospital and found Kalpana was lying dead with bleeding injuries. She has stated that in the hospital her husband talked with Ishita and thereafter FIR was lodged but, in her examination-in-chief there was no whisper about the fact that after knowing the whole incident FIR was lodged. 27. PW-11, Kalyani Das, sister of the deceased. She has stated that in the hospital her husband talked with Ishita and thereafter FIR was lodged but, in her examination-in-chief there was no whisper about the fact that after knowing the whole incident FIR was lodged. 27. PW-11, Kalyani Das, sister of the deceased. She has stated in her evidence that on 06.11.2015 Tina, the younger daughter of Kalpana over telephone informed about the incident and requested to go hospital with some money. Within a short time, she was again called by Ishita that her mother was succumbed to her injuries. She has stated that she informed her brother Dipak Baidya and went to the hospital and thereafter, FIR was lodged. This story of the prosecution completely contradictory with the version of PW-9 and PW-10 because PWs-9 and 10 stated that Ishita called and informed about the whole incident to her maternal uncle Dipak Baidya i.e. PW-9. 28. PW-12, S.I. Sri Ranjan Biswas, who is the investigating officer of the present case. It would be evident from his evidence that no photographs were taken or exhibited in this case showing about the actual position of dead body or nothing has been shown in hand sketch map that where the accused was standing, position of deceased and the actual place from where the minor daughter of the deceased has witnessed the entire occurrence as alleged by the prosecution. In a murder case or any other heinous offence, I.O. is duty bound to prepare his hand sketch map according to Police Regulation of Bengal because preparation of hand sketch map is not a mere formality and I.O. is required to point out after indicating the actual position of accused, victim and witnesses to justify the presence of witnesses. The prosecution story initially was that the accused appellant tied the neck of the victim with a skipping rope whereas on perusal of injury report as well as from the deposition of PW-8, there is no whisper about any injury mark/ligature mark on the neck of the deceased Kalpana. 29. There is no eye witness other than PW-1 and she being the daughter and eye witness she had deposed and her statement was subsequently treated in other way as hostile. There is no corroborating evidence to link the accused-appellant with the alleged offence. Even, the recoveries of fingerprint and blood stains are not in favour of the prosecution case. 29. There is no eye witness other than PW-1 and she being the daughter and eye witness she had deposed and her statement was subsequently treated in other way as hostile. There is no corroborating evidence to link the accused-appellant with the alleged offence. Even, the recoveries of fingerprint and blood stains are not in favour of the prosecution case. It is pertinent to mention herein that the statement recorded under Section-161 and 164 Cr.P.C. cannot have the overriding affect upon the deposition of PW-1 made before the Court. The complainant he is only a circumstantial and hearsay witness and he relied upon the statement of PW-1, the daughter of the accused-appellant and the deceased and her evidence is now not supporting the case of the prosecution has she has been declared hostile. 30. The learned trial Court has passed this impugned judgment and order of conviction in total violation of principles of natural justice. In criminal trials so long the accused is not proved guilty, he is to be treated as innocent. But on perusal of the impugned judgment and order of conviction passed by the learned Court below, it would be evident that the court below has failed to appreciate the legal prospect of the present case. 31. The way the prosecution has projected the case and being found serious contradictions and inconsistencies in the statements in course of trial, it would be very difficult for this Court to believe the projected case of the prosecution. It is settled proposition of law that the charge framed against the accused person has to be established and proved beyond any shadow of doubt. Suspicions, however, grave in nature, should not amount to prove. The discrepancies which are found in this case as analyzed above, appeared to be abnormal in nature which is not expected from a normal person. After cautious scrutiny of the evidence and considering the entire chain of circumstances, we find it difficult to arrive at a finding to draw the hypothesis of guilt against the accused-appellant. 32. In the backdrop of above analysis, we are of the view that the prosecution has failed to establish their projected case and consequently, the instant appeal is allowed. After cautious scrutiny of the evidence and considering the entire chain of circumstances, we find it difficult to arrive at a finding to draw the hypothesis of guilt against the accused-appellant. 32. In the backdrop of above analysis, we are of the view that the prosecution has failed to establish their projected case and consequently, the instant appeal is allowed. Accordingly, the order of conviction and sentence passed by the learned Sessions Judge, South Tripura, Belonia, in Case No. S.T. (T-1) 01 of 2017 vide judgment and order of conviction and sentence dated 16.11.2019 is set aside. The convict-appellant shall be released forthwith, if not wanted in connection with any other case. 33. With the above observations and directions, the instant appeal stands allowed and disposed of. As a sequel, miscellaneous applications pending, if any, shall stand closed. Send down the LCRs.