Rabindra Debbarma vs State Of Tripura

S. Talapatra, J

The appellant was charged under Section 302 of the IPC and after regular trial, he has been convicted under Section 302 of the IPC for committing murder of his brother namely Binay Krishna Debbarma.

Pursuant to the said judgment, the appellant has been sentenced to suffer rigorous imprisonment for life with fine of Rs.5000/-with default stipulation. It has been observed that the period of detention as suffered by the appellant shall be set off from the term of imprisonment in terms of the provision of Section 428 of the Cr.P.C.

The prosecution against the appellant was launched on the basis of the written complaint [Exbt.2] filed by one Jatrakanya Debbarma [PW-1] on 17.05.2013 to the Officer-in-Charge of the Sonamura police station. As the said complaint revealed cognizable offence, Sonamura P.S. Case No.58/2013 under Section 448/302 of the IPC was registered and taken up for investigation. In the complaint, PW-1 revealed that on 17.05.2013, at about 1 p.m. when she went to take bath in the pond, her son Bapu Debbarma [PW-11] came rushing to inform her that her husband and the appellant were quarrelling. She came home with her son after taking bath and saw her husband lying dead in the room in bleeding state. She saw rice in the dish. According to her, her brother-in-law, the appellant had entered the room and hacked on his head and neck with dao (sharp edged weapon) and fled away. On her outcry, people from the neighbourhood came and witnessed the incident. On completion of the investigation, the final police report was filed and the police papers were committed to the Court of the Additional Sessions Judge, West Tripura, Sonamura, which framed the charge on 01.04.2015 under Section 302 of the IPC, as stated. The appellant denied the charge, pleaded innocence and claimed to be tried.

To substantiate the charge, the prosecution adduced as many as 11 (eleven) witnesses including the informant and her son [PWs-1 and 11] and introduced 13 (thirteen) documentary evidence including the postmortem examination report [Exbt.13] and the inquest report [Exbt.1]. After the prosecution evidence was recorded in the trial, the appellant was examined under Section 313 of the Cr.P.C. when he denied the incriminating materials against him. Even, he denied his knowledge of death of Binay Krishna Debbarma. But in the defence, the appellant adduced no evidence. On appreciation of the evidence as laid in the trial, the appellant was convicted as stated above by the judgment dated 12.01.2016 delivered in ST(T-1)20 of 2014 by the Additional Sessions Judge, West Tripura, Sonamura. The said judgment is under challenge in this appeal.

Mr. A. Acharjee, learned counsel appearing for the appellant has categorically stated that no one has seen that the appellant had murdered the husband of the informant namely Binay Krishna Debbarma on 17.05.2013. It is from the testimony of PW-1 and PW-11 and the circumstances they narrated, the trial court has inferred that the appellant has committed the murder of his brother namely Banay Krishna Debbarma. According to Mr. Acharjee, learned counsel, the judgment of conviction is based on surmise and there is no legal evidence. Mr. Acharjee, learned counsel has further submitted that after PW-11 reported the episode of quarrel to PW-1, she had thereafter completed her bath and returned home and as such, it has to be presumed that the report of quarrel as made to PW-1, was not taken seriously by her.

Mr. Acharjee, learned counsel has further submitted that PW-11 is not only the witness of tender age, but he had not stated anything how he was of the view that it was the appellant but none else had committed the murder. Mr. Acharjee, learned counsel therefore has stated that suspicion may however, be strong but that cannot take place of the evidence. In support of his contention, he has further submitted that "last seen together" cannot be the ultimate evidence to convict someone, unless, further requisites to prove those episodes are established by the circumstantial evidence.

Mr. Acharjee, learned counsel has relied on few decisions of the apex court in Digamber Vaisnav and Another versus State of Chhattisgarh [judgment and order dated 05.03.2019 delivered in Criminal Appeal Nos.428-430 of 2019], where the apex court has observed, inter alia, that :

"One of the fundamental principles of criminal jurisprudence is undeniably that the burden of proof squarely rests on the prosecution and that the general burden never shifts. There can be no conviction on the basis of surmises and conjectures or suspicion howsoever grave it may be. Strong suspicion, strong coincidences and grave doubt cannot take the place of legal proof. The onus of the prosecution cannot be discharged by referring to very strong suspicion and existence of highly suspicious factors to inculpate the accused nor falsity of defence could take the place of proof which the prosecution has to establish in order to succeed, though a false plea by the defence at best, be considered as an additional circumstance, if other circumstances unfailingly point to the guilt." [Emphasis added]

The reference has also been made in Jaharlal Das versus State of Orissa reported in (1991) 3 SCC 27 where it has been held that:

"Even if the offence is a shocking one, the gravity of offence cannot by itself overweigh as far as legal proof is concerned. In cases depending highly upon the circumstantial evidence, there is always a danger that the conjecture or suspicion may take the place of legal proof. The court has to be watchful and ensure that the conjecture and suspicion do not take the place of legal proof. The court must satisfy itself that various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. In order to sustain the conviction on the basis of circumstantial evidence, the following three conditions must be satisfied:

i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and

iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused." [Emphasis added]

The apex court in Varkey Joseph versus State of Kerela reported in 1993 Supp.(3) SCC 745 had occasion to observe that :

"Suspicion is not the substitute for proof. There is a long distance between 'may be true' and 'must be true' and the prosecution has to travel all the way to prove its case beyond reasonable doubt."

In Sujit Biswas versus State of Assam reported in (2013) 12 SCC 406, the apex court while examining the distinction between „proof beyond reasonable doubt‟ and „suspicion‟ has held as under:

"13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be" proved, and something that "will be proved". In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "may be" and "must be" is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be" true and "must be" true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dis-passionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense."

It is also well-settled principle that in criminal cases, if two views are possible on evidence adduced in the case, on binding to the guilt of the accused and the other is to his innocence, the view which is favourable to the accused, should be adopted. The principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence:Kali Ram v. State of Himachal Pradesh: (1973)2 SCC 808. "

Mr. Acharjee, learned counsel has also referred Digamber Vaishnav(supra) in respect of how to evaluate the evidence of the child witness. In Digamber Vaishnav(supra) it has been observed by the apex court thus :

"This court has consistently held that evidence of a child witness must be evaluated carefully as the child may be swayed by what others tell him and he is an easy prey to tutoring. Therefore, the evidence of a child witness must find adequate corroboration before it can be relied upon. It is more a rule of practical wisdom than law. [See Panchhi and others v. State of U.P:(1998) 7 SCC 177, State of U.P. v. Ashok Dixit and another:(2000) 3 SCC 70, and State of Rajasthan v. Om Prakash:(2002) 5 SCC 745]."

In Alagupandi alias Alagupandian v. State of Tamil Nadu, (2012) 10 SCC 451, the apex court has emphasized on the need to accept the testimony of a child with caution after substantial corroboration before acting upon it. It was held as under:

"36. It is a settled principle of law that a child witness can be a competent witness provided statement of such witness is reliable, truthful and is corroborated by other prosecution evidence. The court in such circumstances can safely rely upon the statement of a child witness and it can form the basis for conviction as well. Further, the evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and that there exists no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated by other evidence before a conviction can be allowed to stand but as a rule of prudence the court always finds it desirable to seek corroboration to such evidence from other reliable evidence placed on record. Further, it is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable." [Emphasis added]

Mr. Acharjee, learned counsel has also referred to K. Venkateshwarlu versus State of Andhra Pradesh reported in (2012) 8 SCC 73 where the apex court had occasion to observe in respect of testimony of the child witness as follows :

"9. Several child witnesses have been relied upon in this case. The evidence of a child witness has to be subjected to closest scrutiny and can be accepted only if the court comes to the conclusion that the child understands the question put to him and he is capable of giving rational answers (see Section 118 of the Evidence Act). A child witness, by reason of his tender age, is a pliable witness. He can be tutored easily either by threat, coercion or inducement. Therefore, the court must be satisfied that the attendant circumstances do not show that the child was acting under the influence of someone or was under a threat or coercion. Evidence of a child witness can be relied upon if the court, with its expertise and ability to evaluate the evidence, comes to the conclusion that the child is not tutored and his evidence has a ring of truth. It is safe and prudent to look for corroboration for the evidence of a child witness from the other evidence on record, because while giving evidence a child may give scope to his imagination and exaggerate his version or may develop cold feet and not tell the truth or may repeat what he has been asked to say not knowing the consequences of his deposition in the court. Careful evaluation of the evidence of a child witness in the background and context of other evidence on record is a must before the court decides to rely upon it." [Emphasis added]

In this regard, Mr. Acharjee, learned counsel has submitted that there is no record how the maturity of the child witness [PW-11] was tested by the trial court. Only a note has been attached that general questions were asked and the answers were indicative of his maturity. According to Mr. Acharjee, learned counsel this is not the test as contemplated by Section 118 of the Evidence Act which provides that :

"All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind."

Even though, Mr. Acharjee, learned counsel did not dilate further, but Ratansinh Dalsukhbhai Nayak versus State of Gujarat reported in (2004) 1 SCC 64, it has been observed that a child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. The decision as taken as regards the competence of a child witness of tender age by the trial court, may not be disturbed by the superior court, merely because the test was not in conformity to the statutory requirement.

In this case there is no dispute that the trial court has carried out the test. This court is not in agreement with Mr. Acharjee, learned counsel appearing for the appellant on his contention that keeping record of preliminary examination of a child witness in order to test his/her competence to testify is no condition-precedent for recording his or her evidence, although, this is desirable. True it is that the witness is tested but no record has been maintained.

Having observed thus, this court is of the view that corroboration of the evidence of witness of tender age is desirable in the circumstances, as a rule of caution.

In Panchhi and Others versus State of U.P. reported in (1998) 7 SCC 177 it has been held that it cannot be said that the evidence of a child witness is generally unworthy of credence. But we do not subscribe to the view that the evidence of a child witness would always stand stigmatized. It is not the law that if a witness is a child his evidence shall be rejected, even if it is found to be reliable evidence. The of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell them and thus a child witness is an easy prey to tutoring. It is more a rule of practical wisdom than a law.

Similarly, in Suryanarayana versus State of Karnataka reported in (2001)9 SCC 129 the apex court had reiterated that the evidence of a child witness cannot be discarded only on the ground of her being of tender age. Such evidence should, however, be scrutinized with care and caution. Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made the basis for discarding the whole testimony.

In Baby Kandayanathil versus State of Kerela reported in 1993 Supp(3) SCC 667 the court has relied upon the evidence of some child witnesses after proper scrutiny and such reliance was not disturbed by the apex court.

Mr. Acharjee, learned counsel has relied on a decision in State of Karnataka versus Chand Basha reported in (2016) 1 SCC 501 to highlight the probative value of the evidence of "last seen together" where it has been observed by the apex court having approvingly quoting from Bodhraj and Others versus State of Jammu and Kashmir :2002 8 SCC 45. In Bodhraj (supra) it has been held that the last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible.

It has been further observed that while relying on the last seen theory, it must be borne in mind that the close proximity between the last seen evidence and the death should clearly be established. Other circumstantial evidence should also be considered for getting the corroboration of the facts including motive of the offence.

In Babu and Others versus State of Uttar Pradesh reported in (1983) 2 SCC 21 the apex court has observed that the circumstances should be closely knit to be indicating at the guilt of the accused only and that should not be subject to further possibility.

Mr. Acharjee, learned counsel relied on a decision of the apex court in Mahavir Singh versus State of Haryana reported in 2014 Cri.LJ 3228 where the apex court has culled out the principle by stating that it is a settled legal proposition that last seen theory comes into play only in a case where the time gap between the point of time when the accused and the deceased were seen alive and when the deceased was found dead. Since the gap is very small there may not be any possibility that any person other than the accused may be the author of the crime.

Mr. Acharjee, learned counsel has referred a decision of the apex court in Biswajit Paul versus The State of Tripura reported in (2017) 2 TLR 652 on the aspect of delay in recording the evidence where this court had occasion to observe that :

"The legal position is well settled that mere delay in the examination of a particular witness does not, as a rule of universal application, render the prosecution case suspect. It depends upon the circumstances of the case and the nature of the offence that is being investigated. It would also depend upon the availability of information by which the investigating officer could reach the witness and examine him. It would also depend upon the explanation, if any, which the investigating officer may offer for the delay. In a case where the investigating officer has reasons to believe that a particular witness is an eyewitness to the occurrence but he does not examine him without any possible explanation for any such omission, the delay may assume importance and require the court to closely scrutinize and evaluate the version of the witness but in a case where the investigating officer had no such information about any particular individual being an eyewitness to the occurrence, mere delay in examining such a witness would not ipso facto render the testimony of the witness suspect or affect the prosecution version." [Emphasis added]

According to Mr. Acharjee, learned counsel, the statement of PW-11 was recorded on 18.05.2013, the following day of the commission of offence but he was not examined by the investigating officer immediately. Even though, PW-1 filed the ejahar [Exbt.2] on 17.05.2013 disclosing his account within few hours after the incident took place.

Mr. Acharjee, learned counsel has therefore submitted that there was adequate time to tutor the child witness or the child witness to impress to indicate the appellant without any foundation which is tenable in law. According to Mr. Acharjee, learned counsel, apart from "last seen together" being a very fragile kind of evidence, the introduction of the last seen theory is probably the result of imaginary impression or tutoring. Therefore, he has urged that on such flimsy evidence, the appellant should not have been convicted.

From the other side, Mr. S. Debnath, learned Special PP appearing on instruction of learned PP for the State has submitted that there is no improvisation in the statement of the witnesses and they are the natural witnesses. Nobody has even indicated that any other person might have committed the said murder. Even, it has surfaced that Binay Krishna Debbarma used to assault the appellant at his whim and that might have angered him to commit the murder. Mr. Debnath, learned Special PP has further submitted that reporting of the quarrel by PW-1, taking bath by PW-11 and coming to her home are facts to be proved. As those have been proved, there is no deterring element to come to an inference that it is none but the appellant had committed the murder.

For purpose of appreciating the submission made by the learned counsel for the parties, it would be apposite to take a brief stock of the evidence as recorded in the trial.

PW-1, Smt. Jatrakanya Debbarma who had filed the complaint [Exbt.2] has stated in the trial that at about 2 p.m. she went to a nearby pond to take bath and at that time, her son [PW-11] rushed there and told her that the appellant was quarrelling with her husband, Binay Krishna Debbarma in her matrimonial home. PW-11 requested her to come back to their home as early as possible. She rushed home and found the dead body of her husband, Binay Krishna lying on the floor of their dwelling hut and saw serious cut injury on the head, neck and on both the ears. There was profuse blood on the floor but she did not see the appellant at the place of occurrence. She raised alarm and the local people gathered at the place of occurrence. She is also witness of the inquest procedure. In acknowledgment, she had signed in the inquest report. She filed the written complaint [Exbt.2] having been written by her uncle namely Jaharlal Debbarma [PW-2]. There is no effective cross examination except that Binay Krishna had inimical relation with so many people of their locality regarding the land dispute and most significantly she has stated as follows :

"It is true that I lodged Ejahar against accused Rabindra Debbarma out of suspicion."

It is a fact that the accused had no dispute with my husband in respect of land and other matters."

PW-2, Jaharlal Debbarma, having heard of the incident of murder came to the place of occurrence. He was the witness to the inquest procedure. The police officers seized one dao with wooden handle from the house of the appellant by preparing seizure list in presence of PW-2 and obtained his signature on that seizure list which has been marked as Exbt.4. He had written the ejahar, true to the statement of the informant, Jatrakanya Debbarma. The contents of the ejahar were read over and explained to Jatrakanya Debbarma who in turn put her signature at the foot of the said ejahar having been satisfied about correctness of recording of facts as per her version. In the cross-examination, he has denied that there was blood stain on the seized dao, as he did not observe the seized dao carefully.

PW-3, Sri Jugal Debbarma a witness from the locality rushed to the place of occurrence after hearing the news of death of Binay Krishna Debbarma. He found the dead body of Binay lying on the floor and there was profuse blood on the floor. But this witness was declared hostile as he did not support the previous statement as recorded by the investigating officer.

PW-4, Sri Raj Kumar Debbarma is the younger brother of the deceased, Binay Krishna Debbarma. He has stated that he had only heard from the co-villagers that the appellant had killed his elder brother, Binay Krishna. He was witness to the inquest procedure and in acknowledgement he signed on the inquest report.

PW-5, Sri Judhisthir Debbarma is a hearsay witness. He has stated that he heard from the villagers that the appellant had killed his elder brother, Binay Krishna. He has admitted that the police examined him. He has admitted that a dao was seized in his presence by preparing a seizure list [Exbt.4] but the same was not available in the trial. He has been declared hostile as he did not support the previous statement where he had stated that the dao was seized from the dwelling hut of the accused. But the dao which was available in the court was shown to him and he had stated that that was not the same dao which was seized in his presence.

PW-6, Sri Radha Kishore Debbarma married the sister of the deceased, Binay Kishore Debbarma. He had also stated that he heard from PW-1 that the appellant had killed her husband and thereafter fled away from the place of occurrence.

PW-7, Smt. Hemalata Debbarma is the wife of the brother of the deceased. At the time of occurrence, she was not at home and after returning in the evening she came to learn from PW-1 that her husband was killed but "she did not disclose the name of the assailant." For making such statement PW-7 was declared hostile and cross-examined by the prosecution.

PW-8, Sri Tapash Malakar, the Sub-Inspector of Police had visited the place of occurrence with Narayan Ch. Saha, Inspector of Police having received the information relating to the occurrance. When they had reached at the place of occurrence, they noticed a large gathering of local people in the house where the dead body of Binay Krishna Debbarma was lying on the floor of his dwelling hut. There were several injury marks on the head and neck of deceased, Binay Krishna. The inquest report was prepared by him and the persons who witnessed the procedure signed over it [Exbt.1]. He had shifted the dead body of the deceased to Sonamura CHC for postmortem examination. He had prepared the dead body challan and the command for Ranjit Sarkar [constable of police] to guard the dead body till postmortem examination was over. He has further stated that immediately after receipt of the written complaint, the Officer-in-Charge had registered the case and he was entrusted with the investigation. Thereafter, he narrated how he has conducted the investigation by preparation of the site map, causing seizure of the material objects and recorded the statement of the person seized of the material information. He had seized the dao with wooden handle by preparing the seizure list [Exbt.4]. The said dao has been admitted in the evidence as Exbt.M.O.1. Immediately, the appellant was arrested and he was sent to the court. On collecting the postmortem examination report and the report from Tripura State Forensic Science Laboratory (SFSL), he found a prima-facie case against the appellant and thus he filed the police report under Section 448/302 of the IPC sending up the appellant for facing the trial. In the cross-examination, he has categorically admitted that as per report of the SFSL, there was no blood stain on the seized dao.

PW-9, Narayan Ch. Saha was the inspector of police, as stated. He has corroborated the fact and on receipt of the information, he had visited the place of occurrence without delay. He has stated further that PW-1 had lodged the written complaint to him and since a cognizable offence of murder was disclosed, he immediately registered the case being Sonamura P.S. Case No.58/13 under Section 448/302 of the IPC as stated. He has denied that he did not visit the place of occurrence or receive any complaint from PW-1.

PW-10, Dr. Goutam Chakraborty, the Medical Officer who was posted at Sonamura Community Health Centre (CHC) had conducted the postmortem examination over the dead body of Binay Krishna Debbarma. During the course of postmortem examination, he found several injuries, viz.:

"1. Deep sharp cut injury infront of neck opening larynx above the thyroid cartilage about 10 cm x 5 cm in diameter. Great vessels of neck like carotid artery and jugular veils had been cut on left side on neck.

Sharp cut injury posterior to neck slightly towards left involving cervical vertebrae C 2,3,4 size is about 7 cm x 3 cm diameter.

Sharp cut injury over the scalp over the left temporal region about 12 cm x 5 cm in the diameter, separating the scalp from skull left external ear is hanging with the flap of skin of scalp."

According to his opinion, all the injuries might have been caused by heavy and very sharp cutting weapon. The seized dao was not shown to him for confirmation whether that weapon might cause such injuries or not.

PW-11, Sri Bapu Debbarma, is the central witness for the prosecution in order to establish the charge against the appellant. PW-11 when was examined was nine years of age. There was test to determine his competence, but the examination procedure is not available in the records. PW-11 has testified in the trial that when he was a student of Class-I, one day at noon his father Binay Krishna Debbarma was eating rice in the dwelling hut at Dhanirampur, at that time his mother was not at home. She went to a nearby pond. At that relevant point of time, suddenly the appellant entered into their dwelling hut and started quarrel with his father. He ran out from the dwelling hut and informed the matter to his mother [PW-1]. After expiry of few minutes, while he returned home he saw the dead body of his father lying on the floor with serious bleeding injuries and he did not see the appellant inside the dwelling hut. He denied the suggestions made to him that he did not see anything.

From appreciation of the evidence, it appears that the report of quarrel of the deceased and the appellant as stated by PW-11 has become the fulcrum of the prosecution‟s case against the appellant. The question, therefore, arises whether the quarrel has led to killing by the appellant. Even though, the SFSL expert was not examined but PW-8, the investigating officer has categorically stated that the SFSL was of clear opinion that there was no blood stain on the dao. The dao was seized from the dwelling hut of PW-1 where her husband was found lying dead. No other weapon was recovered in connection with the said offence. Even though, the appellant was arrested on the same day and he was not absconding. The evidence has come, as noted above, that Binay Krishna Debbarma had so many adversaries in the neighbourhood. In the evidence, it has been also noted that PW-1 herself has stated that the appellant had no dispute with her husband in respect of land or in any other matter. Thus, the motive of offence is shattered and there is no other alternative evidence to gather further motive. In the ejahar, PW-1 has categorically stated that after having the information, she took bath and after taking bath, she came home. This statement, however, has not been replicated in the testimony by PW-1. The time-gap between the last seen and the offence is fudged. There is no other evidence except the last seen theory and there is no corroboration in respect on any other aspect. Moreover, the other witnesses except PWs-1 and 11 are all hearsay witnesses. PW-1 was the originator of the theory of murder by the appellant but she had in the cross-examination stated that she had complained against the appellant simply out of suspicion. There is no further materials collected during the investigation.

This court will be running a serious risk if we believe the testimony of PW-11 who had been, at the relevant point of time, around six years of age. Moreover, his inference of quarrel and its nature is abrupt. That apart, in the neighbourhood, there are other adversaries. There was no blood stain on the alleged weapon of murder nor there are other forensic materials to prove involvement of the appellant or in respect that the weapon was used by the appellant. Even, PW-1 has categorically stated that she had indicated to the appellant out of suspicion only. True it is that, for the close proximity of the occurrence and the reported "quarrel", a strong suspicion is raised, but in absence of any other corroborating materials, the appellant should not have been convicted, inasmuch as, the appellant is entitled to the benefit of doubt for failure of the prosecution to prove their case beyond reasonable doubt. The delayed recording of the statement of PW-11 is another element to dent the prosecution case.

Having observed thus, the appellant is acquitted from the charge as framed under Section 302 of the IPC on benefit of doubt. In consequence thereof, the impugned judgment and order of conviction are set aside.

The appellant shall be set at liberty forthwith, if he is not wanted in any other case.

In the result, this appeal stands allowed. Send down the LCRs forthwith.