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PW-4, the Investigating Officer was examined on 2nd July 2010. The doctor who had carried out the autopsy was examined as PW-5 on 30th August, 2010 and the scribe of the FIR, Brij Bihari Paswan was examined as PW-6.

The statement of the accused under Section 313 Cr.P.C. was tendered on 16.11.2010, whereafter the trial court proceeded to convict the appellant on 19th February, 2011.

The trial court assessed the entire evidence and believed the spot arrest of the appellant and the ocular testimony of the court witnesses, CW-1 and CW-2 to establish the commission of the offence by the appellant, and apart from this came to the conclusion that the medical testimony does not in any way impede the ocular testimony, inasmuch as, the corroborating evidence in relation to the entire incident was sufficient to establish that the guilt had been proved beyond reasonable doubt. The trial court categorically observed, that the accused was well known to the deceased, she was a teacher in the same Institution where the appellant was the Manager, the motor cycle of the appellant had been recovered which was the vehicle on which the deceased had accompanied the appellant on the fatal day, the accused had been arrested on the spot which is evident from the general diary and its entry, the appellant had also sustained an injury which indicates that he had been caught on the spot as the injuries had also been recorded in the general diary. The trial court also recorded that the deceased had been last seen in the company of the appellant and one ladies slipper had been also recovered from the spot. Thus, all these attending circumstances were taken into account to conclude that the offence had been committed by the appellant and which was primarily based on the ocular testimony of CW-1 and CW-2.

Learned counsel for the appellant while advancing her submissions has urged, that no motive has been established and therefore there are no circumstances existing that may warrant a conclusion of the commission of the offence by the appellant without there being any direct testimony pertaining to the commission of the offence by him. The medical evidence includes the post mortem report and the statement of PW-5, the doctor who carried out the autopsy also does not corroborate the prosecution story, inasmuch as, apart from the two injuries on the head, the other injuries around the neck has been clearly explained by the doctor himself that the death was caused due to asphyxia and not on account of the injuries on the head. It was further submitted that the death was also not caused due to drowning as no water had been found in the abdomen of the deceased, and consequently in the absence of any evidence to establish that the appellant had caused any injury and in the absence of any case of the prosecution the strangulation, there was no material on record to conclude that the appellant had actually assaulted the deceased thereby committing an offence resulting in the murder of the deceased. The ocular testimony of CW-1 and CW-2 was a complete afterthought and is wholly unreliable. They were not eye witnesses and were set up after the original story of the prosecution had failed. The fourth argument of the learned counsel is to the effect that both the named prosecution witnesses PW-1, Rajendra Sonker who is the first informant and Dabloo Manjhi, PW-2 have turned hostile.

Sri Sagir Ahmad, learned AGA submits that the date, time and place of occurrence could not be disputed on the basis of whatever evidence exists on record and this part of the testimony of the recovery of the body and that being of the deceased identified as such, together with the other corroborating material including the recovery of the motor cycle of the accused clearly establishes, that the offence had been committed on the fatal day i.e. 5th June, 2009 at the time indicated in the FIR. He submits that the medical evidence in no manner upturns the ocular testimony of the prosecution witnesses particularly, the Court witnesses CW-1 and CW-2 who were introduced after the orders were passed by the High Court and which order has become final. He submits that their testimony cannot be discarded on the ground that they have been brought into to fill up any lacuna, inasmuch as, they have also narrated the incident which corroborates the narration in the FIR and which is in conformity with the entire evidence which has been led on behalf of the prosecution. He submits that even if the post mortem report mentions the cause of death as asphyxia, and even if the Court comes to the conclusion that there is no direct evidence relating to strangulation, then in that event, the ocular testimony indicating the pushing of the deceased from the pontoon bridge into the river by the appellant has been established. He, therefore, contends that right from the departure of the deceased, which has been narrated by PW-3, the father of the deceased, up to the stage of the pushing of the deceased into the river has been clearly brought out by the prosecution, and therefore the burden stood shifted on the appellant to disprove the said suspicion which is valid and based on evidence and which now takes the place of proof with the ocular testimony of CW-1 and CW-2.

The aforesaid circumstances have nowhere been discussed by the trial court and this perversity in the impugned judgment therefore calls for a reversal inasmuch as any material evidence that has prejudiced the cause of the accused as indicated above and has not been able to prove the prosecution case to the hilt, has to be read in favour of the accused.

We may now proceed to examine the statement of the court witnesses keeping in view the argument of learned counsel for the State that they have categorically supported the story of pushing the deceased into the river. As discussed above the ocular testimony of any heated debate or any precursor of any scuffle between the two namely the deceased and the accused have not been established by the prosecution beyond a reasonable doubt. The question now is that if there was no such scuffle, and even if the deceased had been pushed by the appellant as testified by CW-1 and CW-2, then had she been pushed alive or dead. The reason is that the post-mortem report clearly records death due to asphyxia. It is not by way of a drowning. The oozing of foam and blood from the mouth of the deceased also does not match the fact that it was recovered from the river. This leads to the conclusion that she may have been alive when she had been pushed but at the same time there is no explanation by the prosecution about the two injuries on the head which does not support the ocular testimony of assault. It is quite possible that when the body of the deceased landed in the river, her head may have been hit by some hard object of the pontoon bridge or any other material. The question of creditworthiness of the two court witnesses having given up the story of assault and adopting the theory of pushing the deceased therefore creates a serious doubt about the presence of these two witnesses who have been introduced in the manner as described hereinabove. We therefore find the creditworthiness of these two witnesses to be highly doubtful on the facts and circumstances of the present case. No doubt, as urged by the learned AGA, that these two court witnesses were passersby and therefore they should not be readily disbelieved but the manner in which they were introduced creates a high degree of suspicion about their presence and reliability. Their version of lodging the accused after spot arrest at the police station in their presence alongwith PW-1 and PW-2 is clearly contradicted by the Investigating Officer's statement coupled with the hostility of PW-1 and PW-2.