The reliance on the last seen theory and circumstantial evidence cannot suffice for conviction if there are significant gaps in the timeline, failing to establish the accused's guilt beyond reasonable doubt.

JUDGMENT :

S.K. PANIGRAHI, J.

1. Both the Appellants have preferred this Criminal Appeal challenging the judgement of conviction and order of sentence dated 19.05.2018 passed by the Learned Additional District and Sessions Judge, Balliguda in S.T Case No. 167 of 2014(T), arising out of G.R Case No.231 of 2014 corresponding to Tumudibandha P.S. Case No.28 of 2014 in the file of the learned S.D.J.M. Balliguda; wherein the Learned Additional District and Sessions Judge, Balliguda has convicted the Appellants for commission of offence punishable under Section 302 /34 of the I.P.C and accordingly, sentenced them to undergo imprisonment for life and to pay a fine of Rs.2000/-, in default to undergo further R.I for a period of two months.

I. CASE OF THE PROSECUTION

2. The case of the prosecution, in brief, is that on 04.07.2014, one Kantheswar Majhi lodged a FIR before the IIC of Tumudibandha, P.S alleging that on 03.07.2014 at about 4 pm accused Timidi Badadalai went to village of Sibaram Majhi (deceased) and took the deceased with him to attend a feast. The deceased did not return to their house in that night. On the next day, the Informant, the brother of the deceased, heard that dead body of his brother was lying at Betasuga Jungle.

3. The Informant asked about the concerned incident to one of his co-villagers, Bijunga Majhi. Bijunga Majhi narrated that he himself, Laxmikanta, Timidi and Sibaram took meal at the house of accused persons. Laxmikanta and the deceased Sibaram started discussing about a piece of land. Thereafter, altercation of words started between Laxmikanta, Timidi and Sibaram on the issue of the said piece of land. Both the accused, Laxmikanta and his younger brother, Timidi assaulted Sibaram. When Laxmikanta brought an axe, Sibaram tried to run away from the spot. Laxmikanta chased and assaulted Sibaram on his head and face with the axe following which Sibaram fell and bleeding started profusely. Frightened by the incident, Bijunga Majhi returned home. The Informant and some of the co-villagers went to the spot and found the dead body of Sibaram lying at Betasuga jungle.

4. Based on the said information, the IIC of Tumudibandha, P.S registered a case vide Tumudibandha P.S Case No.28 of 2014 against the Appellants for the commission of the alleged offences as stated above and proceeded with the investigation

5. During the course of investigation, the Appellant No.1 was arrested on 06.07.2014 and the Appellant No. 2 was arrested on 13.07.2014. The Appellant No. 2 was released on bail vide order dated 21.03.2016, passed by this court in BLAPL No.1355 of 2016.

6. After completion of investigation the Investigating Officer has submitted charge sheet vide C.S. No. 56, dated 01.11.2014, under Section 302 /34 of the I.P.C.to face trial before the competent court of law.

7. Learned S.D.J.M., Balliguda after receiving the chargesheet as per the procedure prescribed under Section 209 of the Cr.P.C committed the case record to the court of Sessions. The Sessions Judge, Phulbani transferred the case record to the court of the learned Addl. Sessions Judge, Balliguda for disposal according to law.

8. Learned Addl. Sessions Judge, Balliguda after perusal of the depositions adduced by the prosecution witnesses, convicted the appellants for the commission of offence punishable under Section-302/34 of the I.P.C. and sentenced them accordingly, on the basis of the last seen theory.

9. Being aggrieved by the judgment of convict