IMPORTANT POINT
The court ruled that both the 'last seen together' theory and extra-judicial confessions require corroboration and cannot independently sustain a conviction.

JUDGMENT :

(S.K.Medhi, J)

The instant appeal has been preferred from jail against a judgment dated 17.02.2020 passed by the Addl. Sessions Judge-2 (FTC), Tinsukia in Sessions Case No. 52(T)/18 convicting the appellant and sentencing him to undergo with Life Imprisonment u/s 302 IPC and a fine of Rs.5,000/-(Rupees Five Thousand only), in default the accused shall have to undergo another rigorous imprisonment for 1 (one) year.

2. The criminal law was set into motion by lodging of an FIR on 18.02.2018 by one Ashok Chik (PW2), who is the brother of the deceased Sankar Chik. In the said FIR, the informant did not name anybody as accused and the allegation was that some unknown miscreant had left his younger brother near the Kali Mandir after killing him. On the basis of the FIR, the investigation was done whereafter the charge sheet was submitted. On framing of the charges and denial thereof, the formal trial had begun in which 15 numbers of prosecution witnesses were examined and certain documents were also exhibited including the sketch map. Apart from the statements made before the police under Section 161 of the Cr.P.C., the statements of 3 nos. of witnesses were also recorded under Section 164 of the Cr.P.C. After completion of the evidence, the appellant -accused was examined under Section 313 of the Cr.P.C. where he had denied the evidence against him.

3. After consideration of the materials of record including the evidence, the impugned judgment has been passed which is the subject matter of challenge.

4. We have heard Shri M. Dutta learned Amicus Curiae for the appellant. We have also heard Ms. A. Begum, learned Addl. Public Prosecutor, Assam.

5. As indicated above, the ejahar was lodged by the brother of the deceased PW2 in which no name was mentioned. In his deposition as PW2, he had stated that he came to know from his wife regarding the fact that the deceased was lying dead near a temple and thereafter, he had lodged the ejahar which was exhibited as Exhibit -2. The doctor who had conducted the postmortem was examined as PW1. In his deposition, he had opined that the death was due to head and bodily injuries caused by sharp heavy object. PW3, PW4, PW5, PW6 and PW7 did not name the accused as being involved with the offence and they were nearby residents and few of them were also seizure witness.

6. The evidence of PW8 would be of some relevance. PW8 has stated that he saw the deceased and the appellant fighting near a peepal tree and he had separated them whereafter they had gone away in different directions. In his cross-examination however, he admits that there were many other residences at the place of occurrence. The evidence of PW-10 would also be of relevance in the instant case. PW-10 had also claimed that there was a fighting near the peepal tree between the appellant and the deceased in which he had intervened. He further states that the accused came to his house later and told that he had killed the deceased. The evidence of PW-13, though declared hostile is of some significance. Though she deposed that she had heard from somebody regarding the incident, she had stated that on the same evening, the deceased, appellant and PW-10 were at her residence along with another person Rajiv Bakti (PW-11). There was a quarrel with regard to the appellant asking for the muffler of the deceased which he had refused. Thereafter, the deceased, appellant and PW-10 had gone out from her house. It may be mentioned that though PW-13 has been declared hostile, her statement recorded under Section 164 of the Cr.P.C. on 23.02.2018 is almost a replica of her statement made as a witness. PW-14 is the I.O. who had investigated the case. In his cross-examination, however, he had admitted of not collecting bloodstains or any weapon. He had also stated that there was no blood found on the muffler which was seized. PW-15 is the learned Magistrate, who had recorded the statements of PW-10 and PW-8 under Section 164 of the Cr.P.C.

7. As indicated