Point of Law: Information leading to the discovery of fact cannot form the foundation of the prosecution case as it is one link in the chain of proof and the other links must be forged in a manner allowed by the law.

JUDGMENT :

Suman Shyam, J.

Heard Mr. S.D. Purkayastha, learned counsel appearing for the appellant. We have also heard Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam, appearing for the State/respondent No.1. None has appeared for the informant/respondent No.2.

2. The judgment and order dated 03.12.2018 passed by the learned Additional Sessions Judge, Goalpara in Sessions Case No.25/2016 convicting the sole appellant Arup Rabha for committing offences under sections 364(A)/302/201 of the Indian Penal Code (IPC) and sentencing him to undergo rigorous imprisonment for life for committing the offences under sections 364(A) and 302 of the IPC and to undergo rigorous imprisonment for five years for committing the offence under Section 201 of the IPC and also to pay fine of Rs,.5000/-, in default, to undergo rigorous imprisonment for a further period of one year with all the sentences running concurrently, has been assailed by the sole appellant by filing the present appeal.

3. The prosecution case, in a nutshell, is that on 02.08.2014, an ejahar was lodged before the Officer-in-Charge, Agia Police Station, by Sri Nikhil Chandra Kalita (PW-1) informing that on 30.07.2014, at around 3.00 p.m. someone had called his brother-in-law Sri Jogendra Narayan Kalita (deceased) over phone to Fafanga Part-II Gaon, Barmahara, on the pretext of providing him with rubber. On receiving the phone call, his brother-in-law went out of his house in his motorcycle bearing Registration No.AS-18-A-6670 but thereafter, he went missing. Since his brother-in-law did not return home at night, extensive search was made looking for him but the victim could not be traced out. Later on, around at 10.00 p.m. in the evening, some miscreants had called up his younger brother viz., Sri Sailen Das in his phone bearing No.97073271842 from the phone of his missing brother-in-law bearing No.8721828988 and said that Jogen Kalita was with them and demanded ransom of Rs.10 lakhs for his release. Thereafter, they switched off the mobile phone. On such ground a prayer was made to initiate necessary action in the matter.

4. On the basis of the ejahar dated 02.08.2014, Agia P.S. Case No.107/2014 was registered under Section 364(A) of the IPC whereafter, investigation had commenced. During the course of investigation dead body of Jogendra Narayan Kalita @ Jogen Kalita was recovered and hence, Sections 302/201 of the IPC were added. Five persons including the appellant herein were arrested by the I.O. and the dead body was sent for post-mortem examination. The I.O. had claimed that the dead body of the victim was dug out in presence of Magistrate on being led by the appellant and another accused viz., Anupam Rabha. Upon completion of investigation the I.O. had submitted charge-sheet against all the five accused persons. Based on the charge-sheet submitted by the I.O., charges under Sections 364(A)/368/302/201/34 of the IPC were framed against the accused persons which was read over and explained to them. However, since the accused persons had pleaded innocence and claimed to be tried, the matter went up for trial.

5. The prosecution case was entirely based on circumstantial evidence. The prosecution has also claimed that based on disclosure made by the appellant the dead body was recovered on being shown by the accused. The accused has denied the charge brought against him. The defence side, however, did not adduce any evidence. Upon analyzing the evidence adduced by the prosecution side, the learned trial court had convicted the appellant Arup Rabha under Sections 364(A)/302/201 of the IPC and sentenced him as aforesaid while acquitting the four other accused persons due to lack of evidence against them.

6. By referring to the impugned judgment and order dated 03.12.2018 passed by the learned Additional Sessions Judge, Goalpara, Mr. Purkayastha has argued that there is no evidence to support the prosecution story that the dead body was recovered on being lead by the accused/