1. This appeal is directed against the judgment dated 7.12.2012, passed by learned Sessions Judge, Jorhat in Session Case No.77(JJ)/2010 convicting accused /appellant Shri Prashanta Dutta of offence under section 302 IPC and sentencing him to suffer imprisonment for life and to pay a fine of Rs. 5,000, in default, RI for another 3 months.

2. Being aggrieved by and dissatisfied with the aforesaid judgment, Shri Prasanta Dutta, hereinafter referred to as the accused person, preferred this appeal citing several infirmities in Judgment, impugned.

3. The facts which have emerged from the judgment, under challenge, in brief, are that on the night intervening 7th and 9th October 2008, one Abhijit Baruah, nephew of Shri Ajay Baruah, resident of Kenduguri, Bamungaon, Jorhat was kidnapped by a group of miscreants from a place, quite close to the Puja Pandal, Kenduguri. It was stated that Abhijit Baruah was taken away in an auto-rickshaw, named "Parinita". However, body of said Abhijit Baruah was found on the N.H. 37 near Padumoni village with several cut wounds thereon.

4. An FIR to that effect being lodged with O/C Jorhat Police Station on 9th October, 2008, Police registered a case vide Jorhat P.S Case No 535/ 2008 under section 365/302/34, IPC and ordered one Sri. Biswajit Gogoi, SI of police to take up investigation. Being so entrusted with the investigation, Sri Gogoi visited the place where the dead body was found, prepared a sketch map thereof, conducted an inquest on the dead body, sent the same to hospital for post mortem examination, arrested the accused person during the course of investigation, did other needful and on conclusion of investigation, Sri Gogoi submitted a charge sheet under section 364/302, IPC against the accused person and sent him to the court to stand his trial.

5. The learned Magistrate, before whom charge sheet was so laid, committed the case to the Court of Sessions at Jorhat since the offence under section 302, IPC is exclusively triable by Court of Session. On receipt of the case on commitment, and after hearing the learned counsel for the parties, learned Sessions Judge, Jorhat framed charges under section 364/302, IPC and charges, so framed, on being read over and explained to the accused person, he pleaded not guilty and claimed to be tried.

6. During trial, the prosecution has examined as many as 8 witnesses including the Medical Officer and the I/O. Statement of the accused person under section 313, Cr.PC was recorded. His plea was of denial. He, however, declined to adduce any evidence of his own. The learned Sessions Judge, on conclusion of trial and on hearing the arguments, advanced by the learned counsel for the parties, while acquitting the accused of offence under section 364, IPC, held him guilty of offence under, section 302, IPC, convicted him thereunder and sentenced him as aforesaid. It is that judgment which has been assailed in the present appeal.

7. Mr. S.S.S Rahman, learned counsel for the appellant, has submitted that the judgment rendered by learned Sessions Judge in Sessions case No. 77(JJ) of 2008 is unsustainable in law due to several serious infirmities. In that connection, it has been pointed out that though the learned trial court held that prosecution had proved that the deceased was last seen alive in the company of accused person at about 2/2.30 p.m. on the night in question, yet, it totally ignores the fact that the prosecution had rendered several stories totally contradictory to one another on such a vital claim.

8. It has also been contended that learned trial court placed enormous reliance on the statement of accused person recorded under section 313, Cr.PC, particularly on his statement that he was with the deceased on the aforesaid night at about 2/2.30 a.m. in convicting accused of offence under section 302, IPC. But such reliance is not permissible under the law, more so, when prosecution fails to prove its case on its own. This cardinal principle of jurisprudence was

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