JUDGMENT :

DEBANGSU BASAK, J.

1. The appeal is directed against a judgment of conviction dated August 12, 2021 and an order of sentence dated August 13, 2021 passed by the learned Additional District and Sessions Judge, Fast Track 2nd Court, Paschim Medinipur in Sessions Trial no. 01-(01)/08.

2. By the impugned judgment of conviction, the learned Judge found the appellant guilty under Section 302 of the Indian Penal Code, 1860. By the impugned order of sentence, the learned Judge sentenced the appellant to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/-and in default to suffer rigorous imprisonment for six months.

3. The case of the prosecution at the trial was that, the appellant along with Hapan Murmu @ Mandi on September 5, 2006 at the house of the victim, in furtherance of common intention committed murder of the victim intentionally or unnaturally causing death to the victim and thereby committed an offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860.

4. Police received a written complaint dated September 5, 2006, being Exhibit-1, from prosecution witness (PW-1). On the basis of which, police started Kotwali police station F.I.R. no. 190/06 dated September 5, 2006 under Section 302 of the Indian Penal Code, 1860.

5. On conclusion of the investigations, police submitted a charge sheet against two persons being the appellant and one Hapan Murmu @ Mandi. The Court framed charges under Sections 302/34 of the Indian Penal Code, 1860 against the appellant and Hapan Murmu @ Mandi on March 28, 2008. The accused persons including the appellant claimed to be not guilty and consequently they were put on trial.

6. During trial, Hapan Murmu @ Mandi expired and the case was filed forever in respect of the deceased accused by an order dated May 17, 2018.

7. At the trial, prosecution examined 10 witnesses to bring home the charges. The prosecution also relied upon various documents and material exhibits.

8. Learned advocate appearing for the appellant submits that, the prosecution could not prove the charges as against the appellant beyond reasonable doubt. The charges framed were against the appellant and one deceased co-accused, inter alia, under Section 34 of the Indian Penal Code, 1860. Prosecution failed to establish any common intention between the appellant and such deceased co-accused.

9. Learned advocate appearing for the appellant submits that prosecution did not produce any eye-witness to the incident. Prosecution relied upon circumstantial evidence to bring home the charges. According to him, prosecution failed to complete the chain of circumstances so as to raise an irresistible conclusion of guilt so far as the appellant is concerned.

10. Referring to the evidences on record, learned advocate appearing for the appellant submits that, PW-4 is a person, who saw the appellant in the vicinity of the place of occurrence. In the facts of the present case, according to him, it cannot be said that the appellant was last seen together with the victim. According to him, no witness from the prosecution side came at the trial to claim that the appellant was last seen together with the victim. According to him, although the appellant was in the vicinity of the place of occurrence, it cannot be said that the appellant is guilty of murder. He relies upon [Boby vs. State of Kerala, 2023 SCC Online SC 50, Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116, Ashok vs. State of Maharashtra, (2015) 4 SCC 393, State (Delhi Administration) vs. Sri Gulzari Lal Tandon, (1979) 3 SCC 316, Kanhaiya Lal vs. State of Rajasthan, (2014) 4 SCC 715 and Satye Singh and Another vs. State of Uttarakhand, 2022 (5) SCC 438].

11. Learned advocate appearing for the appellant submits that in order to comply with the theory of last seen together, the prosecution is required to establish that, the appellant was last seen together with the victim prior to the discovery of the dead body. In the facts an