Debiprasad Sengupta, J.
1. The present appeal was preferred against the Judgment and order of conviction and sentence dated 29.11.99 passed by the learned Additional Sessions Judge, Alipurduar in Sessions Trial No. 18/1998 (Sessions Case No. 4/98) thereby convicting the accused appellant under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay a fine of Rs. 2.000/-, in default to suffer R.I. for a further period of 6 months.
2. Prosecution case, in short, was that on 19.4.96 at about 8.30 P.M. when the victim Juhuri Barla was engaged in cooking food in the Courtyard, her son and daughter, namely Anil Barla and Santi Barla were sitting by her side and were assisting their mother. Accused Noyel Barla, husband of the victim, was in his room. Suddenly accused Noyel Barla came out of his room with a 'jhurni' in his hand, struck victim Juhuri on her neck and fled away. Victim Juhuri Barla fell down on the Courtyard and died instantly. PW 6 Sunil Barla, son of the victim thereafter lodged an information with Jaigaon Police Station and a case was registered under section 302 of the Indian Penal Code against accused Noyel Barla. On completion of investigation chargesheet was submitted and the learned Trial Judge framed charge under section 302 IPC, against the present appellant.
3. To bring home the charge against the accused person prosecution examined as many as 9 witnesses, while none was examined on behalf of the defence. The defence was a plea of innocence and false implication. It was the specific defence of the accused that he was not present in the house at the relevant time and as such question of committing murder, as alleged by the prosecution, did not arise.
4. Out of 9 prosecution witnesses PWs 1 to 4 were local persons and they were all post occurrence witnesses. PW 5 Smt. Etowary Tappo was sister of the deceased Juhuri. PW 6 Sunil Barla and PW 7 Basanti Barla were the son and married daughter respectively of the victim Juhuri and accused Noyel Barla. PW 8 was the investigating officer of the case and PW 9 was the Autopsy surgeon who held post mortem on the dead body of the victim.
5. PWs 1 to 4 stated in their evidence that after hearing the hue and cry in the house of Noyel Barla they rushed to the place of occurrence and found the dead body of Juhuri Barla, wife of accused Noyel, lying in Courtyard with bleeding injury on her neck. PWs 1 and 2 further stated that accused Noyel Barla was gheraoed by some villagers in the house of one Lakshman Hindwaro. Police arrested accused Noyel from the house of Lakshman and the weapon of assault, namely 'jhurni' was recovered from that place. Police seized 'jhurni' under a seizure list, in which PWs 1 and 2 put their signatures. PWS Jugal Ming was a man of the locality and he stated in his evidence that hearing a 'hullah' he went to the place of occurrence and came to know that Noyel Barla committed murder of his wife. He also found the dead body of Juhuri. Police arrived at the place of occurrence, held inquest over the dead body and PW 3 put his signature on the inquest report. PW 4 Shivraj Tappo was brother of victim Juhuri and he stated that after hearing the hue and cry he went to the house of accused Noyel and found the dead body of Juhuri lying in the Courtyard. On interrogation he came to know from the local people that Noyel left his house after murdering his wife Juhuri Barla. PW 5 Smt. Etowary Tappo, wife of PW 4, stated in her evidence that on the relevant night Santi, daughter of victim Juhuri, came to her house and told that her father fled away after murdering her mother Juhuri.
6. PW 6 Sunil Barla, one of the sons of the victim and the accused, was the maker of the FIR. He stated in his evidence that at the relevant time his mother Juhuri was busy in preparing food along with his younger sister Santi and younger brother Anil. Santi shouted 'mere fello, mere fello' and immediately thereafter he found the dead body of his mother lying in the Courtyard. He further deposed that his father murdered his mother and fled away. He was outside the house and rushed to the place of occurrence and became senseless. As per his instruction FIR was written by one Gopal Gurung. In his cross examination he stated that on seeing the deadbody of his mother he became senseless and when he regained his sense he was on the road. After regaining sense he was searching for his brother and sister and at about 10.00 P.M. he found them at the house of his maternal uncle. On the following morning he went to the police station.
7. PW 7 was the married daughter of the victim and the accused and she stated that at the time of incident she was in her own house. Her mother was preparing food in the Courtyard and her brother and sister namely Anil and Santi were assisting her. On hearing hue and cry she came to learn that her father had murdered her mother. At that time her brother and sister were weeping and her sister Santi told that her father Nayel had murdered her mother. She stated that when she went there her mother had already expired. She further deposed in cross examination that she had not seen what had happened in the house of her father and at the relevant time she was in her husband's house. She came to the house of her father at 8.30 P.M.
8. PW 8 was the investigating officer of the case. He completed the investigation, but could not file the chargesheet as he was transferred to some other police station and made over the charge of investigation to the Inspector-in-charge of the P.S.
9. PW 9 was the autopsy surgeon who held post mortem over the dead body of victim Juhuri and on examination he found the following injuries:
1. Sharp-cutt injury from posterior aspect of the neck, severing the skin muslcs of the posterior of the neck on both sides, sterooclido mastoid muslcs by lateral, spinal cord with vertical column at the level of C-3 and C-4. Trachea and oesophages not injured only skin about 2' in the anterior aspect of the neck remain intact.
2. Liner abbression 2' over upper surface of the left shoulder.
In the opinion of PW 9 the death of the victim was due to injuries caused by sharp-cutting weapon and same was antemortem and homicidal in nature.
10. It is evident from the abovenoted fact scenario that there is no eyewitness to the occurrence, i.e. the incident of inflicting injury on the neck of the victim by the accused. Mr. Bagchi, learned Advocate for the appellant, submits that according to the prosecution at the relevant time the victim was engaged in cooking food in the Courtyard and her son and daughter, namely Anil and Santi were assisting their mother (victim Juhuri). But it was really surprising that Anil and Santi, who were the eyewitnesses to the occurrence and who could have been the best witnesses in the case, were not examined by the prosecution for the reasons best known to it. According to Mr. Bagchi non-examination of those vital witnesses (Anil and Santi) affected the core of the prosecution case against the appellant and the learned Trial Judge should have drawn adverse presumption for withholding such vital witnesses. In support of his contention Mr. Bagchi relies upon a Judgment of the Hon'ble Apex Court reported in : [1954]1SCR475 Habeeb Mohammad v. State of Hyderabad wherein it is held by the Hon' ble Apex Court that it is the bounden duty of the prosecution to examine a material witness particularly when no allegation has been made that, if produced, he would not speak the truth. Not only does an adverse inference arise against the prosecution for his non production in view of illustration (g) to Section 114 of the Evidence Act, but the circumstances of his being withheld cast a serious reflection on the fairness of the trial.
11. Mr. Bagchi next submits that there was absolutely no evidence to show that at the relevant time victim was in the company of the accused or that both of them were last seen together. The other son of the victim (PW 6 Sunil) stated in his evidence that when his mother was engaged in preparing food with his younger sister and brother (Santi and Anil), Santi shouted 'mere fello, mere fello'. PW 6 thereafter found the dead body of his mother in the Courtyard. He neither saw his father inflicting injury on his mother nor his father fleeing away from the place of occurrence. From the evidence of PW 7 married daughter of the victim, it becomes clear that she was also a post-occurrence witness. According to Mr. Bagchi a person cannot be held guilty of committing murder of his wife on such uncorroborated testimony of a witness, simply because the appellant was found in the house of another person in the village after the incident, it cannot be said that the appellant absconded from the place immediately after the incident. Mr. Bagchi further points out that the person (Laxman Hinduara), from whose house the accused was arrested, was also not examined by the prosecution.
12. Next argument advanced by Mr. Bagchi is that there was absolutely no motive on the part of the appellant to murder his wife. There is nothing in the evidence on record to show that relationship between the accused and the victim was strained. According to Mr. Bagchi in a case based on circumstantial evidence 'motive' assumes a great significance as its existence is an enlightening factor in a process of presumptive reasoning. Mr. Bagchi learned Advocate relies upon a Judgment of the Hon'ble Supreme Court reported in : 1993CriLJ1871 Surinder Pal Jain v. Delhi Administration in which it was held by the Hon' ble Apex Court as follows:
In a case based on circumstantial evidence, motive assumes pertinent significance as existence of the motive is an enlightening factor in a process of presumptive reasoning in such a case. The absence of motive, however, puts the Court on its guard to scrutinize the circumstances more carefully to ensure that suspicion and conjecture do not take place of legal proof.
13. Mr. Bagchi next argued that the evidence of PWs 5, 6 and 7 was totally inadmissible as Santi, another daughter of the victim and eyewitness to the occurrence, who reported the incident to those witnesses, was not examined by the prosecution.
14. The learned Advocate appearing for the State/respondent submitted that although there was no eyewitness to the occurrence, there was circumstantial evidence which sufficiently proved that it was the accused who Committed murder of the victim. Victim was in the company of the accused husband, who was to explain how the victim was murdered. According to the learned Advocate of the State the entire prosecution case should not be disbelieved only because two witnesses, namely Santi and Anil were not examined by the prosecution. According to him, it is not at all necessary that prosecution should examine all the witnesses in a case and non-examination of those two eyewitnesses does not affect the core of the prosecution case.
15. The learned Advocate of the State further submits that abscondence on the part of the accused was also a strong circumstance to prove the guilt of the accused. Immediately after committing the offence the accused absconded from the place of occurrence and took shelter in the house of one Laxman Hinduara in the same village and the offending weapon namely 'jhurnee' was also recovered from that place. Such recovery of weapon was also admitted by the accused in his examination under Section 313 of the Code of Criminal Procedure. Finally it was submitted before us that there should not be any hesitation to hold that the prosecution successfully established all the circumstances appearing in the evidence against the appellant and the chain of established circumstances was complete. All the established circumstances were consistent with the hypothesis that it was the appellant who committed murder of his wife.
16. We have heard the learned Advocates of the respective parties. We have also scrutinised the entire evidence on record. In our considered view, non-examination of two eyewitnesses to the occurrence affected the very core of the prosecution case against the appellant. According to the prosecution the incident took place when the victim Juhuri Barla was engaged in preparing food in the Courtyard and was being assisted by her son and daughter, namely Anil and Santi. All other witnesses were post occurrence witnesses. Anil and Santi being the eyewitnesses to the occurrence were most vital witnesses to the occurrence. But for the reasons best known to the prosecution the said two witnesses were not examined by the prosecution. In our view, the witnesses who were essential to the unfolding of the narrative on which the prosecution is based, should have been called by the prosecution whether the effect of their testimony is for or against the case of the prosecution and failure to examine such witnesses affects a fair trial. We do not find anything in the evidence on record to show that the victim was in the company of the accused or that they were last seen together immediately before the commission of the offence. All the witnesses, i.e. PWs 1 to 7 were post occurrence witnesses and all of them immediately after the incident came to the house of the victim and found her dead body in the Courtyard. Only because the appellant was found in the house of one Laxman Hinduara, who was also not examined by the prosecution, it cannot be said that the accused absconded from the place of occurrence and that such abscondence should be considered to be a strong circumstance to prove the guilt of the accused. Even if it is accepted that the appellant absconded after the incident, it cannot be considered to be a positive circumstance to prove the guilt of the accused, because sometime innocent persons are found to abscond for fear of being falsely implicated in a criminal case. As regards motive behind commission of such offence, we find that there is absolutely no motive on the part of the appellant to murder the victim. There is nothing in the evidence on record to show that the relationship between the accused and the victim was strained. Absence of motive may not be relevant in a case where the evidence is overwhelming, but it is a plus point for the accused in a case where the evidence against him is only circumstantial. In a case based on circumstantial evidence motive assumes great significance as its existence is an enlightening factor in a process of presumptive reasoning.
17. Circumstances from which the conclusion of the guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused. In a case of circumstantial evidence the Court must be very careful to avoid the danger of allowing suspicion to take place of legal proof.
18. It was the duty of the prosecution to examine all material witnesses who could give an account of the narrative of events on which the prosecution essentially based. For non examination of two eyewitnesses, namely Anil and Santi, the appellant was seriously prejudiced. The evidence of other witnesses being post occurrence witnesses, does not inspire confidence and in our considered view, it will not be proper to sustain the order of conviction simply relying upon the said witnesses. Though the victim suffered homicidal death, due to improper investigation and slack prosecution the evidence is too slender to affirm the order of conviction and accordingly we extend the benefit of doubt to the appellant.
19. In view of the discussion made above, the appeal is allowed on contest. The Judgment and order of conviction and sentence passed by the learned Additional Sessions Judge. Alipurduar in Sessions Case No. 4/98 (Sessions Trial No. 18/98) is hereby set aside and the accused appellant is acquitted of the charge under section 302 of the Indian Penal Code and he may be set at liberty forthwith, if not wanted in any other case.
A copy of this Judgment along with the L.C.R. may be sent down to the Court below immediately.
Arun Kumar Bhattacharya, J.
20. I agree.