JUDGMENT :

DEBANGSU BASAK, J.

1. Appeal is directed against the judgment of conviction dated July 11, 2023 and order of sentence dated July 12, 2023 passed by the learned Additional District and Sessions Judge, Fast Track Court-II, Basirhat in Sessions Trial No.4(1) of 05 arising out of Sessions Case No. 69 (9) of 2004 convicting the appellant under Sections 302, 376 of the Indian Penal Code, 1860.

2. By the impugned judgment of conviction, learned Trial Judge convicted the appellant under Sections 302 and 376 of the Indian Penal Code, 1860. By the impugned order of sentence dated July 12, 2013, learned Trial Judge sentenced the appellant to suffer rigorous imprisonment for life and to pay fine of Rs.5,000/- and in default to suffer further rigorous imprisonment for one month for offences under Section 302 of the Indian Penal Code, 1860 and to suffer rigorous imprisonment for ten years and to pay a fine of Rs.5,000/- and in default to suffer further rigorous imprisonment for one month for the offence committed under Section 376 of the Indian Penal Code, 1860. Learned trial Judge directed the period of detention already undergone to be set off against the sentence imposed and sentences to run concurrently.

3. Two persons faced trial in the present appeal. The appellant was convicted while the other accused Parameshwar Chakraborty was acquitted by the trial Court. Court is informed that the State did not prefer any appeal against the order of acquittal of Parameshwar Chakraborty.

4. Learned advocate appearing for the appellant submits that, the conviction is based on the theory of last seen together. He contends that, such theory is a weak piece of evidence and that the prosecution failed to bring home the charges conclusively.

5. Learned advocate appearing for the appellant draws the attention of the Court to the deposition of the prosecution witnesses. He submits that, prosecution witness No. 1 stated at the trial that, he was forced to lodge the police complaint by the police. In the police complaint, P.W. 1 named another accused who was not investigated. The Investigating Officer was not examined at the trial since the Investigating Officer expired.

6. Learned advocate appearing for the appellant draws the attention of the Court to the snippet of depositions of other prosecution witnesses and contends that, last seen together theory was not conclusively established by the prosecution. He submits that, the victim was discovered in a naked position at a field. Appellant was not present at the time of recovery of the dead body.

7. Learned advocate appearing for the appellant submits that, since the police did not investigate Parameshwar Chakraborty who is named as an accused by the P.W. 1 at the trial, and since the Parameshwar Chakraborty held out a threat of murder as against the victim, and since there was a criminal background of Parameshwar Chakraborty, such aspect was not looked into by the police.

8. Learned advocate appearing for the appellant relies upon 2019 SCC Online Cal 1815 [Subrato Biswas & Anr. Vs. State of West Bengal] for the proposition that, howsover heinous the crime is, it is the duty of the Court not to be swayed by its gravity but to dispassionately assess the veracity of the prosecution case with utmost objectivity.

9. Learned advocate appearing for the appellant relies upon (1984)4 SCC116 [Sharad Birdhichand Sarda vs. State of Maharashtra] for the contention that where, two possibilities are available, then, one which benefits the accused should be accepted.

10. Learned advocate appearing for the appellant relies upon (2003) 12 SCC 377 [Mausam Singha Rai & Ors. vs. State of West Bengal] for the contention that, more serious the offence, stricter degree of assurance is required.

11. Learned advocate for the appellant relies upon (2001) 2 SCC 451 [Kanhaya Mishra vs. State of Bihar] for the proposition that, however the grave the suspicion may be, it cannot take place of legal evidence.

12. Learned advocate for the ap