Katakey, J. This appeal is directed against the judgment of conviction dated 28.1.2010 passed by the learned Addl. Sessions Judge, (FTC) Kamrup at Guwahati in Sessions Case No. 174(K)/2008 convicting the appellant under Section 302 IPC and sentencing him to undergo rigorous imprisonment for life and to pay fine of Rs. 10,000/-, in default to undergo rigorous imprisonment for one year, with a further direction that the entire amount of fine, if realized, shall be paid to the complainant as compensation under Section 357(c) Cr.P.C.

2. The criminal investigation was set in motion on making the GD entry on 1.9.2004 relating to discovery of the dead body of Amanur Ali. An FIR (Ext. 3) was thereafter lodged by the mother of the deceased Alema Khatoon, PW 3, alleging that on 1.9.2004 her son Amanur Ali and the appellant Tashir Ali though went to Juidhora hills together for collecting firewood, while Tashir Ali returned, Amanur Ali did not return, who has been killed by Tashir Ali and thrown him down from the top of the hill. The police thereafter registered Basistha Police Station case No. 218/2004 under Section 302 IPC and started the investigation, on completion of which, charge sheet (Ext. 5) was filed.

3. Since the case was exclusively triable by the Court of Sessions, the accused was committed for trial to the court of Sessions and accordingly Sessions case No. 174(K)/2008 was registered and tried by the learned Addl. Sessions Judge, (FTC), Kamrup at Guwahati. The charge under Section 302 IPC was, thereafter, framed against the appellant, which was when read over and explained to the appellant, he denied the same and claimed to be tried. Hence the trial commenced.

4. During the course of trial the prosecution, in order to prove the charge framed against the appellant, examined seven witnesses, namely, Sri Dipmoni Nath, the person who initially informed the police about the recovery of dead body of Amanur Ali, as PW 1, Md. Mejunur Ali, brother of the deceased as PW 2, Smti Alema Khatoon, mother of the deceased and who lodged the FIR (Ext. 3) as PW 3, Md. Abdul Khalek, a co-villager as PW 4, Sri Sintu Rajbongshi, another co villager as PW 5, Sri Sushil Saikia, the investigating office as PW 6 and Dr. BC Roy Medhi, the doctor who conducted the autopsy on the body of Amanur Ali as PW 7. The witnesses examined by the prosecution were cross examined by the appellant. The statement of the accused appellant under Section 313 Cr.P.C. was also recorded. No defence witness, however, has been examined by the accused appellant despite the opportunity given. The learned Addl. Sessions Judge upon consideration of the evidence adduced by the prosecution recorded the judgment of conviction as noticed above. Hence the present appeal.

5. We have heard Mr. G Singh, learned counsel appearing for the appellant as well as Mr. D. Das, learned Addl. Public Prosecutor appearing for the respondents.

6. Referring to the deposition of the witnesses examined by the prosecution it has been contended by Sri Singh, learned counsel for the appellant, that the theory of last seen together cannot be applied in the present case and the conviction cannot be based on the said theory as it has come out in the evidence that there was long gap between the time when they went to the hill for collecting firewood and the discovery of the dead body of Amanur Ali. It has also been submitted that the prosecution story relating to the recovery of dao, the alleged weapon of assault, also cannot be believed as no statement has been made by the accused appellant leading the police to recovery of the said weapon of assault and the dao has also not been produced before the court. The learned counsel, therefore, submits that the judgment of conviction based on the theory of last seen together and the recovery of dao at the instance of the appellant cannot be sustained in law. The learned counsel in support of his contention has placed reliance on the judgments