JUDGMENT :

DEBANGSU BASAK, J.

1. The appellant has assailed the judgement of conviction dated December 8, 2021 and the order of sentence dated December 9, 2021 passed by the learned Additional District and Sessions Judge 5th Court Malda, in Sessions Trial No. 06/2020 arising out of Sessions Case No. 51 of 2020.

2. By the impugned judgement of conviction, the learned Judge has found the appellant guilty to the charges under Section 302/376/201 of the Indian Penal Code, 1860. By the impugned order of sentence, the learned Judge has sentenced the appellant to life imprisonment and to pay a fine of Rs. 10,000 and in default to suffer further rigorous imprisonment for six months for the offence committed under Section 302 of the Indian Penal Code, 1860. Learned Judge has sentenced the appellant to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 10,000 and in default suffer further rigorous imprisonment for another six months for the offence committed under Section 376 of the Indian Penal Code, 1860. The learned Trial Judge has sentenced the appellant to suffer rigorous imprisonment for three years and to pay a fine of Rs. 5,000 and in default to suffer further rigorous imprisonment for another three months for the offence under Section 201 of the Indian Penal Code, 1860. All the sentences had been directed to run concurrently.

3. Learned advocate appearing for the appellant has submitted that, the prosecution did not produce any eyewitness to the incident. The prosecution has based its case on circumstantial evidence. According to him, various aspects of the chain of circumstance have not been established beyond reasonable doubt on behalf of the prosecution.

4. Learned advocate appearing for the appellant has submitted that, Prosecution Witness (PW) 7 and PW 8 claimed that they were aware that the victim had gone to Malda to meet the appellant. However, despite such information, they had not mentioned the same in the missing diary lodged by PW 7. Learned advocate appearing for the appellant had submitted that, the dead body of the victim had been recovered on December 5, 2019 at 11 A.M and the missing diary was lodged on December 5, 2019 at 4 P.M. The prosecution has failed to establish any motive to the murder. The appellant and the victim had been in a love relationship and there was no cause put forward by the prosecution over the appellant to commit murder.

5. Learned advocate appearing for the appellant has submitted, although, it has been claimed by PWs 12 and 13, that the appellant made the extra judicial confession to them, they did not speak about the same until they were apprehended by the police. According to him, PWs 12 and 13 had been planted by the prosecution and their testimonies are not worth consideration. He has relied upon 2011 Volume 11 Supreme Court Cases 140 (Rathinam @ Rathinam Vs. State of Tamil Nadu & Another) in support of his contention of unusual behaviour of the witness.

6. Relying upon 2010 Volume 3 Supreme Court Cases 675 (Jiten Besra Vs. State of West Bengal) learned advocate appearing for the appellant has contended that, the place of occurrence is dubious, uncertain and contradictory to the statement made by the prosecution witnesses. He has referred to the deposition with regard to the recovery of the mobile. He has contended that, mere presence of the accused in the place of occurrence is not incriminating when the parties were on visiting terms.

7. Learned advocate appearing for the appellant has submitted that the last seen theory by itself is a piece of evidence. In the present case, the prosecution has not established that the appellant was last seen with the victim at the closest point of time of the death of the victim. Learned advocate appearing for the appellant has relied upon 2023 Volume 4 SCALE 128 (Pawan Kumar Chourasia Vs. State of Bihar) and 2018 Volume 11 Supreme Court Cases 300 (Satish and Another Vs. State of Haryana) and contended that extra judicial confession is a