PATHERYA, J. - (1.) THIS appeal has been filed against the judgment and order of conviction dated 22nd August, 2006 and sentence dated 23rd August, 2006 passed by the Additional Sessions Judge, 2nd Court, Bankura in Sessions Trial No. 1/June/2004 arising out of Sessions Case No. 11/February/2004. By the said judgment and order of conviction and sentence the appellant was directed to suffer RI for life and pay a fine of Rs. 5,000/ in default further RI for six months under Section 302 IPC.
(2.) THE case of the prosecution is that the appellant by alluring the victim girl by love and promising to marry her removed her from family members to enjoy 'Hul' ceremony for 4/5 days. After the said period of time the appellant was found moving at Paragala village. The victim girl did not return to her house. The family members of the victim girl searched in the house of their relatives but in vain and they became astonished to think over it. They heard from people that in the jungle of 'Aduri' dead body of a female was lying and they rushed to the said place and identified the said dead body of the victim girl. Major parts of the dead body was destroyed. They identified her after identifying her wearing apparels. The complaint was lodged on 9th July, 2000 against the accused person. On the basis of the said complaint Saltora P.S. Case No. 30/2000 dated 9th July, 2000 was initiated under Sections 302/201 IPC. The said was followed by investigation. On completion of investigation charge sheet was filed against the appellant under Sections 302/201 IPC. The case was committed for trial to the Court of Sessions Judge, Bankura who transferred the case to the Additional Sessions Judge, 2 nd Court, Bankura. Formal charge sheet under Sections 302/201 IPC was framed against the appellant. The same was read over and explained to the appellant who pleaded "not guilty" and claimed to be tried. In course of trial 17 witnesses were examined by the prosecution and none was examined on behalf of the appellant. Documents were taken on record as exhibits and on consideration of the evidence and exhibits the Court below passed the order of conviction and sentence. Hence this appeal.
(3.) COUNSEL for the appellant submits that admittedly there was a love affair between the appellant and the victim girl. This will appear from the evidence of PW 6 (friend), PW 7 (sister) and PW 10 (father). The theory of last seen together which the prosecution has sought to highlight was not told by PW 6 to the 1.0. (PW 14). PW 7 (sister) has spoken about the victim girl and the appellant going to the Jatra. This again was not told to the 1.0. (PW 14) as will appear from the evidence. The evidence of PW 6 (friend) does not match with that of PW 10 (father) and although PW 10 (father) has spoken about the involvement of the Prodhan, the Prodhan has not been examined. There was no eye witness and no complete chain of circumstantial evidence has been formed. The evidence of PW 7 (sister) is an exaggeration as she was not examined under Section 161 CrPC by PW 14 (I.O) and she deposed for the first time in Court. The conduct of the family is also unnatural as will appear from the evidence of PW 10 (father) and PW 11 (mother). PW 6 (friend) has expounded the theory of last seen together but the evidence differs from the FIR. The basis on which the prosecution proceeded to match the hair cannot be accepted. PW 8 (SL witness) has stated that the police seized the hair from the house of the victim girl and according to the prosecution it matches with the hair collected at the time of post mortem but the hair collected is from the same tuft of hair collected at the time of post mortem which was divided into two. The seizure list cannot be relied upon as it is not only manufactured but incorrect. Motive plays a vital role and must be established. The relation between the victim girl and the appellant was good and the appellant had no reason to kill her. Where two views are possible the benefit must go to the accused. Except for the last seen together theory there is nothing to connect the appellant with the murder of the victim girl. Reliance is placed on (2011) 3 SCC 109 and AIR (1963) SC 1113 for the proposition that in a case of circumstantial evidence prosecution must establish the incriminating circumstance which points to the guilt of the accused appellant and the chain must be complete which is not so in the instant case. The time gap between the incident and discovering the body was long i.e. between 30th June, 2000 and 9th July, 2000, therefore intervention of a third party to kill the victim girl cannot be ruled out. The search was made only when the appellant returned and although enquiry was made from the appellant, no reply was given according to the evidence of PW 10 (father).;