JUDGMENT : (Suman Shyam, J) Heard Mr. A. Ahmed, learned Amicus Curiae appearing for the appellant. We have also heard Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam, appearing for the State. None has appeared for the informant. 2. This appeal is directed against the judgment and order dated 15.11.2018 passed by the learned Additional Sessions Judge No.2 (FTC), Tinsukia in connection with Sessions Case No.72(T)/2015 whereby, the sole appellant was convicted under Section 302 of the Indian Penal Code for committing the murder of Amila Moran and sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs.10,000/-, in default, to undergo rigorous imprisonment for another one year. 3. The prosecution case, in a nutshell, is that the appellant, who had an illicit relationship (love affair) with Amila Moran, had strangulated her to death and thereafter left the dead body under a bed and fled the scene. On 26.09.2014, the husband of the victim Sri Gethela Dohotia i.e. PW-5 had lodged an F.I.R. before the Officer-in-Charge of Baghjan Police Station based on which, Baghjan P.S. Case No.33/2014 was registered under Section 302 of the IPC. Upon completion of investigation the Investigating Officer (I.O.) had submitted charge-sheet against the accused under Section 302 of the IPC. Since the accused had pleaded innocence and claimed to be tried, the matter went up for trial. 4. The case of the prosecution was based on circumstantial evidence. In order to bring home the murder charge, the prosecution had examined as many as 10 witnesses including the doctor who had conducted the post-mortem examination on the dead body (PW-4) and the two Sub Inspectors, who had conducted investigation in the matter and submitted charge-sheet as PWs-9 and 10. The statement of the accused person was recorded under Section 313 of the Cr.P.C. wherein he had denied the allegation brought against him but the accused did not adduce any evidence. Upon conclusion of trial, the learned Additional Sessions Judge had found the accused guilty of having committed murder. Accordingly, he was convicted under Section 302 of the IPC and sentenced as aforesaid. 5. By referring to the evidence available on record, Mr. Ahmed submits that there is no evidence to prove the murder charge brought against the accused. Upon conclusion of trial, the learned Additional Sessions Judge had found the accused guilty of having committed murder. Accordingly, he was convicted under Section 302 of the IPC and sentenced as aforesaid. 5. By referring to the evidence available on record, Mr. Ahmed submits that there is no evidence to prove the murder charge brought against the accused. On the contrary, his conviction is entirely based on suspicion and on account of the fact that there was a rumour about his love affairs with the accused/appellant. Mr. Ahmed has further argued that the learned trial court has failed to appreciate the evidence brought on record, more particularly the evidence of child witness PW-1, in the proper perspective and had arrived at a wrong conclusion in the matter. Mr. Ahmed has also argued that from the bulk of evidence brought on record two views, as regards the circumstances leading to the death of the deceased, is possible and therefore, it cannot be said that the charge brought against the accused has been proved beyond reasonable doubt. Contending that suspicion cannot take the place of proof, the learned counsel for the appellant has prayed for setting aside the conviction of his client and also to release him from jail. 6. Responding to the above, Ms. Bhuyan, learned Addl. P.P., Assam, submits that the testimony of PW-1 was taken into account by the learned trial court and this witness had deposed that she had seen the accused fled away from the scene of occurrence. The learned Addl. P.P. has, however, fairly submitted that save and except the aforesaid evidence of the PW-1 there is nothing to connect the accused/appellant with the occurrence. 7. We have considered the submissions advanced by learned counsel for both the sides and have gone through the materials available on record. 8. At the very outset, it would be pertinent to point out herein that from the evidence brought on record it appears that the minor daughter of the deceased, viz., Manjula Dohotia was the first person who had found her mother (the deceased) lying under the bed in an injured condition. Manjula Dohotia has been examined as PW-1 by the prosecution side. This witness was, however, declared as hostile witness. Manjula Dohotia has been examined as PW-1 by the prosecution side. This witness was, however, declared as hostile witness. In her testimony, the PW-1 had stated that on the day of the incident she had gone to the house of her ‘Barma’ (aunt) at about 11.30 a.m. There was no one else in the house at that time and her mother was alone. She returned after about 10 minutes and saw the accused running away towards the backyard. She had seen her mother under the bed. She pulled her out and took her on her lap. She found that her mother could not speak. At that time, she started crying and her mother tried to say something but she could not. She then called her ‘Bou’ Rashmi Dohotia. At that time, people gathered in the place and the police was informed. Her father also returned. According to PW-1, the accused wanted to take away her mother but she refused to go with him. There was a love affair between them. At that stage, PW-1 was stated a hostile witness. During her cross-examination, the PW-1 has reiterated that her mother had died at about 11.30 p.m. on 26.09.2014 and at that time, she was not at home but was with her aunt. The witness had further deposed that when she came back home she did not see anybody at her residence or nearby. She had heard that the accused had killed her mother and accordingly told the police about it but she could neither say from whom she had heard about it nor has she stated the name of any person to the police. No villager had told before her that he had seen the accused kill her mother and she did not know if the villagers had falsely implicated the accused in this case. 9. PW-2, Rubul Dohotia is the minor son of the deceased and he deposed that on the day of the incident he was at school. His father had brought him to school because somebody had killed his mother. After killing his mother the dead body was kept under his elder sister’s bed. According to PW-2, Kalia alias Bipin had killed his mother because there was a love affair between his mother and Bipin. During his cross-examination, PW-2 has deposed that he was informed by his elder sister Manjula Dohotia that the accused had killed his mother. After killing his mother the dead body was kept under his elder sister’s bed. According to PW-2, Kalia alias Bipin had killed his mother because there was a love affair between his mother and Bipin. During his cross-examination, PW-2 has deposed that he was informed by his elder sister Manjula Dohotia that the accused had killed his mother. 10. PW-3, Smt. Niroda Dohotia is a relative of the complainant as well as the accused. She has deposed that she knew deceased Amila. The deceased and her husband used to work in her house. Manjula rang her up and she was crying. She told her over phone that something had happened to her mother. When she was on her way to Manjula’s house, she met Gethela (PW-5) and informed about his daughter’s message. She also met accused Bipin on the way to the house of Manjula and asked him if he had seen anything to which he replied in the negative. PW-3 has stated that she saw the accused in dirty attire with mud in his clothes. During her cross-examination this witness had remained firm. 11. PW-4, Dr. Amar Prasad was the Senior Medical and Health Officer on duty in the Tinsukia Civil Hospital on 26.09.2014 when the dead body of Amila Dohotia was taken there for post-mortem examination. According to the post-mortem report, the following were noticed in the dead body : “Rigormortis present on the lower part of the body. 1) Multiple bruise and ecchymosis on both lips, cheeks and mandible. 2) Laceration of right angle of mouth. 3) Laceration of right lips in inner side. 4) Ecchymosis and bruise in neck over thyroid cartilage and sides. 5) Peceptial haemorrhage in continuation. 6) Back of neck andecchymosis over 4, 5 vertebrae. On examination of lungs both lungs were found congested and Pericardium shows pre haemorrhage. Injuries are antemortem.” The doctor has opined that death was due to asphyxia as a result of ante-mortem smothering and approximate time since death was 24 to 30 hours. The PW-4 has proved the post-mortem report as Ext-1. 12. Sri Gethela Dohotia i.e. the husband of the deceased was examined as PW-5. PW-5 has deposed that the incident took place about three years back. On the day of occurrence at about 8 a.m. he had gone to the house of his elder brother Tikheswar Dohotia. The PW-4 has proved the post-mortem report as Ext-1. 12. Sri Gethela Dohotia i.e. the husband of the deceased was examined as PW-5. PW-5 has deposed that the incident took place about three years back. On the day of occurrence at about 8 a.m. he had gone to the house of his elder brother Tikheswar Dohotia. At about 10.30 a.m. his daughter Manjula informed his sister-in-law Nirada (PW-3) over cell phone that some incident had happened in his house. His sister told him about the same. He immediately rushed towards his house. On his way he met accused Bipin Dohotia. When he reached home he found the dead body of his wife lying under the bed. PW-5 has further stated that he had seen blood oozing out from the mouth of his wife and there were signs of strangulation on the neck. As the accused used to come to their house frequently, the villagers doubt that the offence was committed by him. Later on, at about 12 noon the accused was apprehended by the village youths. Then the police was informed. Police came and took away the accused. Later, he had lodged a written ejahar. Ext-6 is the F.I.R. and Ext-6(1) was his signature. During his cross-examination, PW-5 has stated that on his arrival at home he saw about 30/40 villagers had gathered there. He could not say the name of the villagers who were present at his residence nor could he say as to who had informed that the accused had killed his wife. This witness has further stated that there was cordial relationship between the accused and his family. The accused used to address him as “Kakaideo” (elder brother) and his wife as “Bow” (sister-in-law). He did not know how his wife died. 13. Sri Anku Dohotia is a cousin of the informant and he was examined as PW-6. This witness has deposed that one Mukunda Dohotia of his village had informed him over phone that wife of the informant has died. Then he came to the house of the deceased and saw police and villagers were present there. He did not know as to how the incident had occurred but he heard that the deceased was killed by someone. According to PW-6, the deceased was covered by a white cloth under her bed when he went there. Then he came to the house of the deceased and saw police and villagers were present there. He did not know as to how the incident had occurred but he heard that the deceased was killed by someone. According to PW-6, the deceased was covered by a white cloth under her bed when he went there. In his cross-examination, this witness has stated that he did not know how the wife of the informant had died. 14. PW-7, Sri Mukunda Dohotia is another villager and he has stated that the incident took place about four years back in the day time. The daughter of the deceased had informed him over phone and asked him to go to their house. He went to the house of the deceased within half an hour but did not see the dead body. He had heard from the people who gathered there that accused Bipin Dohotia had killed the wife of the informant. In his cross-examination, PW-7 has stated that before he reached the house of Gethela i.e. the informant he saw about 50 villagers had gathered there but he could not say wherefrom he had heard that the accused had killed the wife of the informant. 15. PW-8, Sri Ananta Dohotia is another co-villager of the informant and he appears to be a seizure witness in this case. He saw the dead body of the deceased which was covered in white cloth. PW-8 has deposed that the police took his signature in a piece of paper but he did not know how the deceased had died. 16. PW-9, Sri Pulak Kumar is the Sub-Inspector of Police who was on duty in the Baghjan Police Station on 26.09.2014. PW-9 has deposed that on the day of the incident he had received telephonic information from the PW-7 that one Bipin Dohotia had killed Amila Moran. Accordingly, a G.D. Entry was made and he had proceeded to the place of occurrence (P.O.). On reaching there he saw accused Bipin Dohotia had been apprehended by the public and tied against a tree. The accused was then taken into police custody. He had examined the P.O.; drew sketch map and recorded the statement of the witnesses. The inquest over the dead body was conducted by Sri P. Mazumdar, Circle Officer. The dead body was then sent for post-mortem examination. The accused was then taken into police custody. He had examined the P.O.; drew sketch map and recorded the statement of the witnesses. The inquest over the dead body was conducted by Sri P. Mazumdar, Circle Officer. The dead body was then sent for post-mortem examination. PW-9 has further stated that on the same day an ejahar was lodged by the informant PW-5 and Ext-6 is the said ejahar. He then took up the matter for investigation. During his cross-examination, PW-9 has stated that none of the witnesses examined by him had stated that he or she had seen the murder of Amila Dohotia and the witnesses had stated that they presumed that the accused had committed the murder of Amila. PW-9 has further admitted that he did not find any evidence showing that the accused had committed the crime. 17. PW-10, Dinesh Doley took over the investigation in connection with Baghjan P.S. Case No.33/2014 from PW-9 on being transferred to the said Police Station and continued with the investigation. Upon completion of investigation and on collection of the post-mortem report the PW-10 had submitted charge-sheet against the accused person under Section 302 of the IPC. 18. Upon evaluation of the evidence brought on record the learned trial court had made the following observations :- “40. From the evidence on record it is apparent that the accused person was seen by the PW-1 daughter of the deceased immediately after the incident. The conduct of the accused creates a suspicion. The accused had a love affair with the deceased as per the version of the witnesses. The PW-1 has also stated that on the previous day the accused had threatened the deceased with dire consequences as the deceased did not go out on the calling by the accused. The defence side could not prove any contradiction in this regard. PW-4 (M/O) has opined that the death of the deceased was caused by asphyxia a result of ante mortem smothering. There is no dispute with regard to the nature of death of the victim. 41. Here in the instant case the prosecution has succeeded to establish the fact which is consistent with the hypothesis of the guilt of the accused person. The chain of evidence in the instant case is complete. Hence it is proved beyond doubt about the authenticity of the prosecution story.” 19. 41. Here in the instant case the prosecution has succeeded to establish the fact which is consistent with the hypothesis of the guilt of the accused person. The chain of evidence in the instant case is complete. Hence it is proved beyond doubt about the authenticity of the prosecution story.” 19. According to the learned trial court, the defence side could not prove any contradiction or exaggeration in the statement of the witnesses which finds due corroboration from the materials on record. There was also not undue delay in lodging the F.I.R. Although the PW-1 was the daughter of the victim, yet, by relying upon the decision rendered in the case of Kartik Malhar vs. State of Bihar reported in (1996) 1 SCC 614 , in Mano vs. Tamilnadu [2007 Cri.L.J. 2736] and in S. Sudershan Reddy vs. State of A.P. [2006 Cri.L.J. 4033] the learned trial court was of the view that the prosecution side has failed to show any animosity between the PW-1 and the accused. Since the evidence of PW-1 finds corroboration from the medical evidence and there is no contradiction in her testimony, hence, she cannot be treated as an interested witness whose testimony was not worthy of credence. Having held as above, the learned trail court has convicted the appellant in the manner indicated herein before. 20. Since Mr. Ahmed has forcefully argued that the conviction of the appellant is entirely based on the testimony of the PW-1 and on suspicion, we have carefully analysed the evidence of the PW-1. We find that when the examination-in-chief of the PW-1 was recorded she was aged about 16 years. Her cross-examination was reserved which was subsequently recorded nearly one and half years later. Be that as it may, in her examination-in-chief the PW-1 had clearly stated that she had seen the accused flee her place through the backyard. However, during her cross-examination, the PW-1 did not stand by her previous statement. On the contrary, she had stated that she had not seen anyone in her house or near her house when she returned from her aunt’s place. Therefore, there is material contradiction on the statement of the PW-1 in so far as the presence of the accused person in the place of occurrence is concerned. Notwithstanding the same, the learned trial court was of the view that there was no contradiction in the testimony of PW-1. 21. Therefore, there is material contradiction on the statement of the PW-1 in so far as the presence of the accused person in the place of occurrence is concerned. Notwithstanding the same, the learned trial court was of the view that there was no contradiction in the testimony of PW-1. 21. In the above context it is to be noted herein that the PW-1 was declared as a hostile witness on the request of the prosecution and therefore, the trustworthiness of this witness stood substantially denuded on such count alone. The PW-1 was admittedly not in her residence when the incident took place but she appears to be aware of the fact that it was none other than the accused who had killed her mother when she refused to accompany him. There is nothing on record to indicate as to from where the PW-1 had come to know about such development. 22. It would also be noteworthy herein that when the evidence of PW-1 was recorded she was a minor. Notwithstanding the same, the learned trial court does not appear to have made any attempt to ascertain as to whether this witness was fit and competent to adduce evidence or whether her deposition is the outcome tutoring. For the aforesaid reason, we find that the evidence adduced by PW-1 is not at all trustworthy. In that view of the matter, we are of the opinion that learned trial court was not correct in holding that the evidence adduced by PW-1 was free from contradiction and therefore, the same was trustworthy. 23. In so far as the evidence adduced by the remaining witnesses are concerned, none of them had seen the occurrence. PW-5 being the husband of the deceased has deposed that when he returned back home he saw that the dead body of his wife was lying under the bed. From the evidence of PWs-1 and 5 it appears that the PW-1 had returned back home before the PW-5. However, the PW-1 has stated that she had pulled her mother from underneath the bed. If that be so, it is not understood as to how the PW-5 could have found his wife’s dead body lying under the bed when he had reached home. 24. According to PW-9, he had received telephonic information from PW-7 regarding the fact that the accused Bipin Dohotia had killed deceased Amila Moran. If that be so, it is not understood as to how the PW-5 could have found his wife’s dead body lying under the bed when he had reached home. 24. According to PW-9, he had received telephonic information from PW-7 regarding the fact that the accused Bipin Dohotia had killed deceased Amila Moran. However, the PW-7 did not say in his deposition that he was the one who had telephonically informed the police about the incident. Moreover, PW-9 himself had stated in his deposition that the witnesses had stated before him that they were presuming that the accused had committed the murder. From the above, it is apparent that the prosecution story is not only full of contradiction but the same is also based on suspicion that it is the accused who had committed the murder of the deceased. 25. There is yet another significant aspect of the matter which deserves mention herein. According to the prosecution, the incident took place on 26.09.2014 at around 12 noon and the information was received by the police at 4.00 p.m. on the same day based on which, G.D. Entry No.423 was made in the Baghjan Police Station. The evidence on record goes to show that the dead body was taken to the Tinsukia Civil Hospital on 26.09.2014 itself. However, the PW-4 has opined that the time since death was between 24 to 30 hours. If that be so, it is evident from the medical testimony that the deceased had died on the previous day i.e. on 25.09.2014 and not on 26.09.2014 as claimed by the prosecution. If the deceased had died on the previous day then it cannot be believed that the informant i.e. the PW-5 and the other members of the family including the PW-1 were not aware of the actual incident. Viewed from that angle also we find force in the submission of Mr. Ahmed that the possibility of any other person having committed the murder of the victim cannot be ruled out in the facts and circumstances of this case. 26. For the reasons stated herein above, we are of the considered opinion that the prosecution has failed to fully establish the guilt of the accused by leading circumstantial evidence. Ahmed that the possibility of any other person having committed the murder of the victim cannot be ruled out in the facts and circumstances of this case. 26. For the reasons stated herein above, we are of the considered opinion that the prosecution has failed to fully establish the guilt of the accused by leading circumstantial evidence. Rather, there is considerable doubt as to the circumstances under which the victim had died and the possibility of involvement of any third party in the matter cannot be entirely ruled out. As such, giving the benefit of doubt to the accused, we are of the opinion that this is a fit case where the accused deserves to be acquitted. 27. Consequently, the impugned judgment dated 15.11.2018 passed in Sessions Case No.72(T)/2015 stands set aside. The accused is hereby acquitted. We are informed that the accused is presently in the jail. As such, he be forthwith released unless his custodial detention is warranted in connection with any other case. Appeal stands allowed. Before parting with the record, we extend our appreciation to the services rendered by Mr. A. Ahmed, learned Amicus Curiae and recommend that the Registry may make arrangement for payment of necessary remuneration to the learned Amicus Curiae as per the existing norms. Send back the LCR.