In cases based on circumstantial evidence, the circumstances must be such that they lead to the irresistible conclusion that the accused and none else committed the offence.

Pathak, Ag. C. J. :- This appeal from Jail is directed against the judgement and order dated 8-11-79 passed by the learned Sessions Judge, Kamrup, Gauhati in Sess. Case No. 115 (K-G) of 1977, whereby the appellant was convicted under Sec. 302. I.P.C. and sentenced to rigorous imprisonment for life.

2. A brief narration of the fact leading to the present appeal is that deceased Thaneswar who was originally a man of Urput village shifted to Rongpur village before the date of occurrence. At Rongpur village he purchased a plot of land near the house of his niece, Niroda Kalita (P.W. 8), his sister's daughter married to P.W. 7. Amrit Kalita, as the construction of his house was not complete he staved with P.W. 7. Amrit Kalita temporarily. On the date of occurrence on 11-12-75 he went out for Some purpose and it was at about 9 P.M. somebody attacked him with a dagger near his house under construction. On receipt of the injury he gave a scream and on hearing cry of distress of the deceased, his niece P.W. 8. Niroda Kalita, who happened to come out at that moment to throw out the kitchen rubbish, raised alarm and also called her husband to come out. At her call her husband P.W. 7 came out but before that P.W. 8 herself went ahead and saw appellant Haren Kalita coming hurriedly from the place from where the cry of her maternal uncle was heard. It is in the allegation of the prosecution case that seeing her the appellant turned towards the west to the paddy field. Then P.Ws. 7 and 8 went near the injured and at that time the deceased expressed that 'he was finished by accused Haren Kalita'. From the evidence it is found that these are the last words uttered by the deceased. Thereafter he succumbed to the injuries at the spot before any aid could be given to him. When he died in the aforesaid manner, his dead body was taken to the house of P.W. 7. Amrit Kalita and thereafter on the advice of the people who gathered there, information was given to the Gaonbura (P.W. 3) to come to the place of occurrence and on his arrival he was apprised of the occurrence and was requested to lodge the information to the police. However, that night nothing was done and on the next morning a first information was lodged, by P.W. 3 (Dipuram Gaonburah) being accompanied by some others, at the Palasbari Police Station. On receipt of the first information the police started investigation, tried in vain to apprehend the appellant. However the appellant surrendered before the Court at Gauhati. After completion of the investigation a charge-sheet was submitted under Section 302. I.P.C. against the appellant. During trial he was charged under Section 302, I.P.C. which was explained to the appellant to which he denied to have any complicity in the offence.

3. During the course of trial 9 (nine) witnesses were examined including a doctor and two police officers. From the side of the defence no evidence was adduced. On consideration of the evidence on record the learned trial court convicted the appellant under Sec. 302, I.P.C. and sentenced him as aforesaid.

4. In recording a finding by the learned trial court for basing the conviction, four circumstances were taken into consideration : (1) First is that on hearing the cry of distress from the deceased, P.W. 8, Niroda Kalita, rushed to the spot and while doing so she saw accused Haren running away from the place of occurrence. (2) The second is that in presence of both P.W. 7. Amrit Kalita and P.W. 8. Smt. Niroda Kalita, the deceased made a dying declaration that he was finished by accused Haren. (3) The third is that a muffler was found lying near the injured person and that it is alleged that the muffler belonged to the accused and (4) the fourth that came for consideration before the trial court is that after the occurrence the accused led the police for recovery of a dagger which he used against the deceased and the same was found from inside the haystack. The last two points which came up for consideratio