Judgment :- (1.) T. N. Rao was working in TISCO. He was attending B shift duty between 2 P. M. to 10 P. M. at the relevant time. T. N. Rao had two houses at Hirapur. One house was fully tenanted whereas the other house was partly tenanted where he was residing. His family consisting of his son and wife left him about six to seven years before the incident: Since then he was taking meal with one of his tenants being Sarkar family. However, he stopped taking meal in Sarkar family for about five to six months before the date of incident. Although his family members deserted him and went back to his native place of Andhra Pradesh they used to visit Mr. Rao during Puja festival. His son Bishu Rao the appellant abovenamed donated one of his kidneys to one kidney patient not related to him about three months before the incident and since then he used to stay with the said family. At the time of the incident, according to his mother, he was unemployed. (2.) ON September 20, 1986 Bishu came to see his father along with one of his friends whose identity could not be known during investigation. They came during day time when his father was not there. He was offered cup of tea by P. W. 2 being the lady member of Sarkar family. After some time T. N. Rao came and Bishu and his friend went to Mr. T. N. Raos portion which was completely separate having separate entry from the main road. There had been altercation between father and the son. Atanu Sarkar being one of the members of the Sarkar family in his complaint alleged that possibly Bishu was in drunken condition. Be that as it may, after such altercation T. N Rao left the house and went to his other house where he stayed with his co-tenants on 20th, 21st and 22nd up to morning being Saturday, Sunday and Monday morning. The tenants of the other house deposed to the said effect. Bishu left the house at about 10 A.M. along with his friend on Monday morning being september 22, 1986 at about 8.30 A.M. T. N. Rao took bath in the common bathroom of the other house on Monday morning. Since then Mr. T. N. Rao could not be found. Bishu was also not seen after 8. Bishu left the house at about 10 A.M. along with his friend on Monday morning being september 22, 1986 at about 8.30 A.M. T. N. Rao took bath in the common bathroom of the other house on Monday morning. Since then Mr. T. N. Rao could not be found. Bishu was also not seen after 8. 30 A. M. of Monday being september 22, 1986. (3.) ON the next day i. e. Tuesday September 23, 1986 at about 10. 30 p. M. Atanu left for a walk being accompanied by his pet dog while his pet dog started behaving abnormally and scratching the door of T. N. Raos portion which was kept under lock and key. He then called the other members of his family as well as the other co-tenant Mr. Channa Rao. They opened the door through the duplicate key which was being kept with Sarkar family. After opening the door they discovered the dead body of T. R. Rao lying on the cot. A towel was placed on his face. Towel was followed by a pillow. He was found dead with a neck tie covering his neck. they immediately closed the door and called the police. Police made an inquest report and thereafter sent the body for post-mortem examination. As per the medical evidence the death occurred due to strangulation. Injury was found on the middle portion of the neck. According to Doctor the inpident occurred between 6 to 36 hours before the post-mortem examination which was held on September 24, 1986 at about 1 p. M. If we calculate the time backward the inpident possibly took place between 1 A. M. of September 22/23, 1986 and 7 A. M. of September 24, 1986. Since the victim was found dead at to. 30 P. M. we may safely conclude, that the incident occurred between 1 A. M. of September 22/23 and 10. 30 P.M. of september 23. (4.) THE police after investigation framed charge as against Bishu who surrendered in Court and faced trial. (5.) THE learned Judge held the accused guilty of the offence principally on the ground that he was last seen with the victim having altercation. He was also residing during the said period in the place of occurrence and in absence of any cogent alibi it was to be inferred that none else except him did the crime. (5.) THE learned Judge held the accused guilty of the offence principally on the ground that he was last seen with the victim having altercation. He was also residing during the said period in the place of occurrence and in absence of any cogent alibi it was to be inferred that none else except him did the crime. The learned Judge held him guilty of the offence under Section 302 and sentenced him for fife. Hence this appeal by the appellant. (6.) MR. Souvik Mitra, learned Counsel assisted by M/s. Basuri Swaraj, learned Counsel appearing for the appellant contended that since there was no eyewitness to the incident, the chain of events did not conclusively prove that the appellant alone was responsible for the crime. Mr. Mitra took us to the depositions to show that the prosecution miserably failed to complete the chain of events which could conclusively permit the Court to infer that the appellant was responsible for the crime. (7.) IN support of his contention Mr. Mitra cited the following decisions : 1. All India Reporter 1954 SC page 15 (Zwinglee Ariel v. State of Madhya Pradesh)2. All India Reporter 1981 SC page 765 (Sankarlal Gyarasilal Dixit v. State of Maharashtra)3. 2004 Volume 2 Supreme Court Cases (Criminal) page 1167 (Anil Kumar Singh v. State of Behar) 4. Judgments Today 2003 Volume 3 Supreme Court page 176 (Mousam Singha Roy v. State of West Bengal)5. 1984 SCC (Cr) page 487 (Sharad Birdhichand Sarda v. State of Maharashtra)6. 2006 Volume 1 Calcutta Criminal Law Reporter (Calcutta) Page 370 (Arjun Singh v. State of West Bengal)7. (2006)1 SCC (Criminal) page 579 (Jashwant Gir v. State of Punjab)8. (2007)2 SCC (Cr) page 162 : (2007)2 C Cr LR (SC) 131 (State of Goa v. Sanjay Thakran and Anr.) (8.) MR. Subir Ganguly, learned Counsel appearing for the prosecution on the other hand contended that since the accused was found having altercation with his father, the victim abovenamed and since he was last seen with his father, the prosecution charged him with the offence and the learned judge on the basis of the evidence so came out during trial held him guilty of the offence. (9.) WE have perused the depositions. We have also examined the judgment and order impugned holding the accused guilty of the offence. (9.) WE have perused the depositions. We have also examined the judgment and order impugned holding the accused guilty of the offence. (10) THREE members of Sarkar family deposed being P. W. 1, P. W. 2 and p. W. 3. They deposed almost in the same line. The other co-tenant, Chenna rao, being P. W. 4 also corroborated what the Sarkar family deposed before the Court. From the depositions of those four witnesses we find that Bishu came to the house at about 11-30 A.M. on September 20, 1926. He was accompanied by one of his friends. He had his belongings with him. He spent his time with Sarkar family till his father, the victim, arrived. He was offered tea by Sarkar family. After arrival of his father he went to stay at his fathers portion where they had altercation amongst themselves. The victim left the house after altercation. Bishu left the house on Monday morning at about 8-30 A.M. P. W. 1 to 4 discovered the dead body on Tuesday at about 10-30 P. M. when their pet dog behaved abnormally while being accompanied by Atanu Sarkar. They found the dead body in the condition stated above. The tenants of the other house being P. W. 10 and P. W. 13 deposed that the victim came to stay with them for Saturday and Sunday night. He was disturbed as he was apprehending danger from his son. He was last seen in other house taking bath in common bath room on Monday morning. (11.) THE doctor who held post mortem, deposed as P. W. 12. According to him there was no mark of external injury on the dead body save and except the injury at the middle portion of the neck which might have caused due to strangulation. According to the doctor, the death occurred between 6 and 36 hours prior to post mortem held at about 1 -00 P. M. on Wednesday, September 24, 1986. This is all we get from the evidence relevant for the purpose of deciding this appeal. (12.) THE learned Judge heavily relied on the fact of altercation between the father and the son. The learned Judge held the accused guilty of the offence as he was last seen with his father having altercation. The altercation took place on Saturday evening. This is all we get from the evidence relevant for the purpose of deciding this appeal. (12.) THE learned Judge heavily relied on the fact of altercation between the father and the son. The learned Judge held the accused guilty of the offence as he was last seen with his father having altercation. The altercation took place on Saturday evening. The prosecution witnesses consistently deposed that after altercation the victim left the house and stayed in his other house till monday morning. The prosecution witnesses also consistently deposed that bishu was last seen at about 8-30 A. M. in the morning of Monday, september 22, 1986. In reply to the question posed to the accused while examining him under Section 313 of the Code of Criminal Procedure the accused deposed that his father, the victim, saw him off at the Railway Station on Monday. He, however, did not specify the time when he boarded train. (13.) IF we consider the medical evidence we would find that death occurred when victim was sleeping after taking meal and after visiting toilet when he passed urine. His bfadder was empty, meaning thereby the time between visiting the toilet for passing urine and the death was not much. Similarly, we find that the deceased was having semi-digested food in his stomach; hence, death possibly occurred within the close proximity between taking of meal and the time when he was killed. This would help us to conclude that the offence was committed either on Monday night shortly after taking meal and visiting toilet or after mid-day meal on Tuesday afternoon. Had it been Tuesday afternoon the other inmates of the house being the tenants should have noticed someone to visit the victim. No such evidence came out in trial. According to the prosecution, Bishu had to wait in tenanted portion till his father had arrived on Saturday evening. Hence, we can safely presume that Bishu was not having the key with him. Moreover, he was not a frequent visitor and in all probability he could not have the key in his possession. Sarkar family was having the duplicate key. From the seizure list we do not find any other key which could be found by the police during investigation. Moreover, he was not a frequent visitor and in all probability he could not have the key in his possession. Sarkar family was having the duplicate key. From the seizure list we do not find any other key which could be found by the police during investigation. Hence, if the murder was committed in Tuesday afternoon, either it was committed by any of the inmates or by any person who was obliged by Sarkar family with the key. However, that was not the case of the prosecution. Nothing came out to that extent during investigation. Hence, we can safely presume that the occurrence took place in the night of Monday. (14.) IN course of hearing we asked Mr. Mitra to assist us by causing a research on behavior of dog. Mr. Mitra obliged us with copies of several articles on the subject wherefrom we find although behavior of dogs varies from species to species, in general dogs are having more capability than human being of smelling unusual odour. They also behave abnormally if they trace out any foul play. If the murder was committed on Monday night, on Tuesday after about 24 hours of the incident the dead body might have started decomposing having a bad smell which could be smelt by the dog who behaved abnormally by scratching the outer door of the victims portion. (15.) LET us now consider whether Bishu could be held responsible for the incident. He was last seen admittedly at 8-30 A. M. on Monday. If the murder was committed at night, there would be about 15 to 17 hours gap between the period when he was last seen and the murder was committed. Admittedly, nobody saw him after 8-30 A.M. In this backdrop it would be dangerous to presume that circumstantial evidence would lead to such a conclusion that bishu committed the murder and nobody else. (16.) SERIES of Apex Court decisions were cited by Mr. Mitra. We would, however, rely on the Apex Court decision in the case of Jaswant Gir (supra). In paragraph 5 of the said decision the Apex Court considered the issue of last-seen evidence. (16.) SERIES of Apex Court decisions were cited by Mr. Mitra. We would, however, rely on the Apex Court decision in the case of Jaswant Gir (supra). In paragraph 5 of the said decision the Apex Court considered the issue of last-seen evidence. The Apex Court was of the view, "in absence of any other links in the chain of circumstantial evidence it is not possible to convict the appellant solely on the basis of the last-seen evidence, even if the version of P. W. 14 in this regard is believed. " The Apex Court therein considered the period between the time when the accused was last-seen and the time of occurrence. (17.) THE Apex Court in the case of State of Goa (supra) observed, "suspicion, however grave, cannot be substituted for proof and the Courts shall take utmost precaution in finding an accused guilty only on the basis of circumstantial evidence." (18.) THE accused had alternation with his father, the victim. We do not know the nature of altercation or subject of altercation. The motive is thus unknown to us. A person, who donated his kidney just three months prior to the time of occurrence, would kill his father; it would be hard for this Court to believe such proposition without a motive behind it. If we consider the chain of events, we would find that there was a long gap between the period when the accused was last seen at the place of occurrence and the probable time of occurrence. We cannot lose sight of the fact that Hirapur is not such a big city where one could hide for 17 hours only to commit the crime and that too without being noticed by any one. (19.) THERE is another aspect which might have been overlooked by the learned Judge. From the inquest report we find that although the death was caused due to strangulation, attempt was also made to kill him by covering his face by a towel and then by putting a pillow over his face. At the same time we find from the post mortem report that there was no external injury on the dead body which might have caused in case the victim offered resistance. At the same time we find from the post mortem report that there was no external injury on the dead body which might have caused in case the victim offered resistance. Two things can be inferred from this fact, either the victim was made unconscious administering drug, which did not come out in medical evidence or forensic evidence or it was caused by a person known to the victim and the victim did not anticipate any attack from him prior to the incident. Unfortunately, nothing came out in evidence to that extent. Pertinent to note, victim was apprehending trouble from his son. If the son wanted to kill the victim he would have resisted. (20.) THE accused might have been displeased with any act of his father. He might have reason for disagreement with his father which led to an altercation. The accused might have been annoyed with his father and therefore killed him. We, however, do not find any unimpeachable evidence to complete the chain of circumstances to hold the accused guilty of the offence. (21.) WITH all humility may we record our note of dissent on this score. (22.) THE appeal thus succeeds and is allowed. Conviction given by the learned Judge by the order impugned is set aside. The accused is acquitted from the charge. The sureties are discharged. Bail bond is cancelled. Let lower court records be sent down along with a copy of this judgment.