JUDGMENT P.K. Musahary, J. 1. Heard Mr. Ratul Goswami, learned amicus curiae for the Appellant-accused and Mr. Dhanesh Das, learned Additional, P.P. for the State of Assam. 2. This is an appeal from Jail by the Appellant who was convicted under Section 304, Part-II of IPC and sentenced to undergo R.I. for 5(five) years and to pay a fine of Rs. 1,000 in default, R.I. for another 2(two) months by judgment & Order dated 9.8.2005 passed by the learned Additional Sessions Judge (ad hoc), Tinsukia, in Sessions Case No. 72(T)/2004. 3. The prosecution story, in brief, is that on 08.10.2000, one Md. Surab Hussain lodged a First Information Report (FIR) with the Bordubi Police Station alleging that in the afternoon of that day, at about 2 pm, a quarrel took-place between his 2 nephews Md. Rafique Hussain and Tamizul Hussain, in their house itself over some matters and Rafique Hussain caused the death of his elder brother Tamizul Hussain by assaulting him with a bamboo lathi and the dead body was lying in the house. On the basis of the said First Information Report (FIR), a case being Bordubi Police Station Case No. 85/2000 was registered under Section 302 of IPC. The investigation was entrusted to ASI Ashutosh Nath who visited the place of occurrence, examined the witnesses and recorded their statements. The said Officer prepared a sketch map and also prepared an inquest report and found injuries on the back of the head of the deceased person. The dead body was then sent for post mortem examination. After completion of the investigation, a chargesheet was submitted against the Appellant under Section 302 of IPC. The offence being exclusively triable by the Court of Sessions, the same was committed by the Judicial Magistrate, 1st Class, Tinsukia, by order dated 24.4.2004, to the Court of Sessions at Tinsukia. On charges being explained, the Appellant pleaded not guilty and claimed to stand trial. The prosecution examined as many as 8(eight) witnesses while the defence examined only one witness. On consideration of the evidence on record and after hearing the learned Counsel for the parties, the learned Additional Sessions Judge (Ad hoc), Tinsukia, passed the impugned judgment convicting and sentencing the Appellant as stated above. 4. PW-1, viz., Sri Tajal Hussain is the lather and PW-2, viz., Sri Nur Hussain is the Uncle of the Appellant and the deceased. On consideration of the evidence on record and after hearing the learned Counsel for the parties, the learned Additional Sessions Judge (Ad hoc), Tinsukia, passed the impugned judgment convicting and sentencing the Appellant as stated above. 4. PW-1, viz., Sri Tajal Hussain is the lather and PW-2, viz., Sri Nur Hussain is the Uncle of the Appellant and the deceased. Both were not at home when the alleged quarrel took place between the two brothers. PW-3 is a distant relative and is a witness to the inquest report. PW-6, viz., Sri Bilu Singh, is the scribe of the First Information Report (FIR). PW-4, viz., Sri Surab Hussain is the Uncle of the Appellant and the deceased, who lodged the First Information Report (FIR). The aforesaid persons are not the eye-witnesses. PW-5, viz., Smt. Kalpana Begum is the mother of the Appellant and the deceased. She is also not an eyewitness to the occurrence but she deposed that at the time of occurrence, she was preparing food in her kitchen and she saw both of her sons, i.e., deceased and the Appellant engaged in hot altercation. She reported the fact of quarrel to her husband (PW-1) who came and separated the quarrelling sons. However, she could not say what happened later on but she stated that her deceased son was lying near the Railway line about 2 furlong away from her house, and then he was brought home but he was declared dead by the Doctor. She also stated that her deceased son Tamizul Hussain was a drunkard. PW-8, viz., Dr. Rituraj Chaliha, deposed that he performed the postmortem examination on the dead body of Tamizul Hussain on 9.10.2000, at about 11 am and prepared the post-mortem report. On examination, he found the following injuries on the dead body: (1). Lacerated injury over right mastoid region (sic) size -1 x 0.5 cm, (2). Gross contusion over the entire back of the neck, (3). There were Sub-dural haemorrhages on both sides of the brain and the brain was found congested. In his opinion, the death was due to coma as a result of the injuries sustained and as described above, and the same are ante-mortem injuries being caused by blunt force impact and which are also homicidal in nature. There were Sub-dural haemorrhages on both sides of the brain and the brain was found congested. In his opinion, the death was due to coma as a result of the injuries sustained and as described above, and the same are ante-mortem injuries being caused by blunt force impact and which are also homicidal in nature. According to him, the injuries sustained by the deceased may be caused by a weapon and the time of death of the deceased was between 12-24 hours. The Investigating Officer Sri Ashutosh Nath was examined as PW-7. According to him, he visited the place of occurrence on 8.10.2000, interrogated the witnesses and recorded their statements. He again visited the place of occurrence on the following day and held the inquest on the dead body of the deceased and prepared his inquest report in presence of witnesses. He found an injury on the back of the head of the deceased person. He also prepared a sketch map of the place of occurrence and sent the dead body for post mortem examination. According to him, on 9.10.2000, PW-1, i.e., Sri Tajal Hussain (father of the Appellant and the deceased) produced before him a bamboo lathi used by the Appellant and he seized the same in presence of the witnesses. The Appellant surrendered before the Investigating Officer in the Thana on 9.10.2000 and he was arrested and committed to the court. On completion of the preliminary investigation, he handed over the Case Diary to the Officer-in-Charge who submitted the chargesheet against the Appellant under Section 302 of IPC. 5. The defence version is found in the evidence of DW-1 Mustt. Hasina Begum, a housewife and resident of line No. 3 of Keyhung T.E. under Bordubi P.S. According to her, the Appellant came to her house on the day preceding the day of "Bhasan" (Ceremonial function of immersion of Goddess Durga) and he stayed in her house on the said day to enjoy the "Bhasan". At around 3.30 pm, the Appellant returned to her house after enjoying the "Bhasan" and at that time, they came to know that some incident took place in the house of the Appellant and then the Appellant left for his home. At around 3.30 pm, the Appellant returned to her house after enjoying the "Bhasan" and at that time, they came to know that some incident took place in the house of the Appellant and then the Appellant left for his home. In her cross-examination, she stated that it takes 20 minutes to come to her house from the house of the Appellant if one comes on a bicycle and she had no knowledge about the time when the information about the incident was received. 6. The conviction and sentence has been recorded by the learned trial court on the basis of circumstantial evidence as no direct ocular evidence was available. The evidence of PW-5 via. Kalpana Begum, mother of the deceased and the Appellant, lent cogent evidence that there was a "hot altercation" between the 2 brothers and she saw it with her own eyes and they were separated by the PW-1, father of the deceased and the Appellant. After being separated, what happened to them is not known to her but it is clear that both the brothers were last seen together before the incident took place and the dead body of the deceased was found lying near the Railway line at a distance of about 2 furlong only from their house. 7. The categorical statement of PW-5, mother of the deceased and the Appellant, that both her sons had a quarrel and they were separated by her husband (PW-1) is a fact which could not be disproved by the defence rather the defence declined to cross-examine this witness. It is, therefore, established that the Appellant-was last seen together with the deceased before the incident which took place just after a few hours after they were separated by their father. This being the position, the 'last seen together' theory comes into play. The place from where the dead body of the deceased was found is also just about 2 furlong away from the house of the Appellant. The informant, PW-4, who brought the deceased home did not give the exact time but stated that it was in the evening time. Therefore, the time gap between the time of quarrel (about 2 pm) and evening of the same day and recovery of the dead body in the evening is not a very big. The informant, PW-4, who brought the deceased home did not give the exact time but stated that it was in the evening time. Therefore, the time gap between the time of quarrel (about 2 pm) and evening of the same day and recovery of the dead body in the evening is not a very big. The time gap between the last seen together and the time of occurrence may still be smaller because the dead body was not noticed just after the occurrence but after some time. Therefore, the time gap between the point of time when the Appellant and the deceased was found is so small that possibility of any person other than the Appellant being the perpetrator of the crime was impossible. 8. PW-1, father of the Appellant, did not say anything about the quarrel between his 2 sons, the deceased and the Appellant, and act of separating them by him. He did not corroborate the evidence of his wife (PW-5) in this regard. It may be due to his intention to save his Appellant son. The evidence of PW-1 is not found to be trustworthy in view of the evidence of the Investigating Officer (PW-7) who clearly stated that "on 9.10.2000, when Tazal Hussain produced the lathi used by the accused in the incident", he seized the same in presence of the witnesses and thereafter, the Appellant surrendered himself in the Thana. This shows that PW-1 also saw the incident of quarrel between- his 2 sons and he separated them and he even saw the incident of his deceased son being killed by his Appellant son by using the bamboo lathi. Although, he remained silent about the fact of his seeing the occurrence of killing in his deposition, PW-1 has shown himself to be an eye-witness by producing the crime weapon, i.e., the bamboo lathi, otherwise, there was no reason for him to produce the same before the police. It is also significant to note that the Appellant surrendered himself after the crime weapon was produced before the police by his father. The accused-Appellant was not a suspect before the bamboo lathi was produced but he was arrested only when he voluntarily surrendered himself in the police station. 9. The Appellant adduced DW-1 to substantiate his plea of alibi. It is also significant to note that the Appellant surrendered himself after the crime weapon was produced before the police by his father. The accused-Appellant was not a suspect before the bamboo lathi was produced but he was arrested only when he voluntarily surrendered himself in the police station. 9. The Appellant adduced DW-1 to substantiate his plea of alibi. Although the DW-1 stated that the Appellant-accused came and stayed at her house to enjoy the "Bhasan", the story is not at all believable because the distance between her residence and the Appellant's residence is only of 20 minutes drive by bicycle and therefore, the Appellant could have come back to his residence in the same evening. Even if the story of DW-1 is believed, it can be taken otherwise to mean that the Appellant was the author of the crime and he preferred to stay in the house of DW-1 to avoid suspicion on him. 10. The circumstances found from the evidence on record are that the Appellant and the deceased had a quarrel and they were separated by their father and witnessed by their mother and just after few hours, the deceased was found lying at a place about 2 furlong away from their house. There is a chain, in the circumstances from which it can be legally inferred or presumed the existence of the principal fact. The said circumstances establish the prosecution's case' that it was only the Appellant-accused, and not any other person, who committed the offence. It is held in a number of cases by the Apex Court that for a crime to be proved, it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by a direct ocular evidence, by examining before the court those persons who had seen its commission. The offence can be proved by circumstantial evidence of the principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans that is evidentiary facts. The offence can be proved by circumstantial evidence of the principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans that is evidentiary facts. I would just choose to refer to the case of Bodhraj v. State of J&K, (2002) 8 SCC 45 , wherein it is held that the circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together, they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed. 11. As discussed earlier, the fact that the deceased and the Appellant was last seen together before the occurrence took place and the time gap between the time when they were last seen together and the occurrence (evening) was also so small that there was least possibility of involvement of any other person other than the Appellant being the author of the crime. In this regard, I would cite the case of State of U.P. v. Satish (2005) 2 SCC 114, followed in the case of Ramreddy Rajesh Khanna Reddy v. State of A.P., (2006) 10 SCC 172 , wherein it is held by the Apex Court that the 'last seen together' theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. 12. According to the post mortem report and the evidence of PW-8, who conducted the post mortem examination, the injury was caused by blunt force impact. This injury fits in the injury that may be caused by the weapon, i.e., bamboo lathi used by the offender. The production of the bamboo lathi and its seizure has been proved by the Investigating Officer (PW-7). It was also proved that the bamboo lathi was produced by none (sic) but by the father of the accused-Appellant. 13. The aforesaid circumstances bear a chain of evidence so complete and do not leave any reasonable ground for the conclusion consistent with the innocence of the accused-Appellant and show that in all human probability, the act was done by the accused-Appellant. 13. The aforesaid circumstances bear a chain of evidence so complete and do not leave any reasonable ground for the conclusion consistent with the innocence of the accused-Appellant and show that in all human probability, the act was done by the accused-Appellant. The prosecution has been successful in proving its case against the accused-Appellant by applying "last seen together" theory and also the circumstantial evidence as noted above and the learned trial court rightly convicted and sentenced the Appellant by the impugned judgment & Order and the same does not call for any interference in appeal. The impugned a judgment & Order convicting and sentencing the Appellant is hereby confirmed. The appeal accordingly fails. 14. The legal assistance rendered by Mr. Ratul Goswami, as amicus curiae is appreciated and acknowledged, expecting similar assistance from him in future. The State is directed to pay him the legal fees which is quantified at Rs. 5,000 only. 15. Send down the lower Court records forthwith. Appeal dismissed