JUDGMENT I.A. Ansari, J. 1. This is an appeal against the judgment and order, dated 17.05.2007, passed, in Sessions Case No. 97(S-S)/2005, by the learned Sessions Judge, Sivasagar, convicting the accused-appellant, Ruman Baruah @ Bhaiti, under Section 302 IPC and sentencing him to suffer imprisonment for life and pay fine of Rs. 1000/- and, in default of payment of fine, suffer rigorous imprisonment for a period of six months. The case of the prosecution, as unfurled at the trial, may, in brief, be described as under: (i) Accused, Ruman Baruah @ Bhaiti, whose house was adjacent to the house of Indra Baruah (since deceased), had some dispute over the boundary of their respective plots of land. On 13.10.2004, at about 9.30 pm, the accused came to the house of Indra Baruah (since deceased) and invited him for a cup of tea by telling him that he had received his salary on that day. Notwithstanding the differences, with respect to the boundary of the land, which Indra Baruah had with the accused, Indra Baruah and his family had, otherwise, cordial relation with the accused. Indra Baruah, therefore, innocently, relying on the accused, left his home for the house of the accused. After about an hour, one Ruman Baruah was heard by PW 3, wife of Indra Baruah and PW 1, son of Indra Baruah, shouting that Indra Baruah was lying in injured condition on the road. Around the same time, PW 1 also heard his father, Indra Baruah, crying out saying, "Bhaitie marile" (Bhaitie has assaulted). Accompanied by her son (PW 1), PW 3 rushed to the place of occurrence and found her husband, Indra Baruah, lying, in injured condition, on the road. When PW 1 and PW 3 arrived at the place of occurrence, Indra Baruah told them that Bhaiti had hacked him and, after uttering the name of the accused thrice, Indra Baruah became silent. From the place, where Indra Baruah was found lying injured, he was carried home by PW 1, PW 3 and some of their neighbours. (ii) On receiving a telephonic call from Diganta Baruah, sone of the local gaonburah (i.e., village headman) that Indra Baruah had been murdered by accused Ruman Baruah, GD Entry No. 307, dated 14.10.2004, was made at Amguri Police Station. (ii) On receiving a telephonic call from Diganta Baruah, sone of the local gaonburah (i.e., village headman) that Indra Baruah had been murdered by accused Ruman Baruah, GD Entry No. 307, dated 14.10.2004, was made at Amguri Police Station. Police came to the village of the said deceased and, having found the dead body of Indra Baruah, held inquest over the said dead body, which was also subjected to post mortem examination. On finding a spade and also a dao lying in an open area by the side of the road, where Indra Baruah was found lying, police seized the same by a seizure list, which is Ext. 2, Mat. Ext. 1 being the dao and Mat. Ext. 2 being the spade. When the police visited the place of occurrence, a written Ejahar was lodged by Jodu Moni Baruah (PW 1), son of deceased Indra Baruah, alleging, inter alia, that the accused had hacked and seriously injured Indra Baruah at night, who died at about 4:00 AM. Treating the said Ejahar as First Information Report (FIR), Amguri Police Station Case No. 63/2004, under Section 302 IPC, was registered against the accused. The police could not, however, initially, arrest the accused inasmuch as he had disappeared since after the occurrence; but he was, eventually, found and arrested at his father-in-law's house. (iii) On completion of investigation, police laid charge-sheet, under Section 302 IPC, against the accused-appellant. 2. At the trial, when a charge, under Section 302 IPC, was framed against the accused, he pleaded not guilty thereto. 3. In support of their case, prosecution examined altogether 9 (nine) witnesses. The accused was, then, examined under Section 313 Cr.PC and, in his examination aforementioned, he denied that he had committed the offence, which was alleged to have been committed by him, the case of defence being that of denial. No evidence was adduced by the defence. 4. However, on having found the accused guilty of the offence, which he stood charged with, the learned trial Court convicted him accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence passed against him, the accused has preferred this appeal. 5. We have heard Mr. P. Kataki, learned counsel, for the accused-appellant, and Mr. K.A. Mazumdar, learned Additional Public Prosecutor, Assam. 6. Aggrieved by his conviction and the sentence passed against him, the accused has preferred this appeal. 5. We have heard Mr. P. Kataki, learned counsel, for the accused-appellant, and Mr. K.A. Mazumdar, learned Additional Public Prosecutor, Assam. 6. Before entering into the discussion of the oral evidence, which has been adduced against the accused-appellant by the prosecution, let us, first, take note of the medical evidence on record. We notice, in this regard, that the doctor (PW 8), who had, admittedly, conducted, on 14.10.2004, post mortem examination on the dead body of Indra Baruah, found as follows: External appearance: A male body. Rigor mortis present. Wounds: An incised wound on the head on the left frontal region 3" x 1" in size involving the underlying bone. Clotted blood seen on the wound. Cranium & Spinal canal: An incised wound on the head on the left frontal region 3" x 1" in size involving the underlying scalp. Clotted blood seen on the wound. Membrane: Congested. Brain and spinal cord: Congested. Clotted blood found on the brain matter (left frontal bone). Thorax: Larynx, trachea and lungs were found congested. Heart: Left side was found empty. Right side was found full of clotted blood. Abdomen: Mouth, pharynx and esophagus found congested. Stomach was found empty. No smell or alchohol. Other organs were normal. 7. It is in the evidence of the doctor (PW 8) that the injuries, found on the said dead body, were ante mortem in nature and, in the opinion of the doctor (PW 8), death was caused due to coma as a result of the head injury, which the said deceased had sustained, the head injury being sufficient to cause death of a person in the ordinary course of nature. 8. In his cross-examination, the doctor (PW 8) has clarified that as soon as the deceased had sustained the injuries, which had been found on the said dead body, the victim might have entered into coma. This opinion, which the doctor has given, clearly, shows that it is not necessary that in each and every case, the kind of injuries, which Indra Baruah was found to have sustained, particularly, the injury on his head, would make one enter into coma. 9. This opinion, which the doctor has given, clearly, shows that it is not necessary that in each and every case, the kind of injuries, which Indra Baruah was found to have sustained, particularly, the injury on his head, would make one enter into coma. 9. Apart from the fact that the finding of the doctor and his opinion with regard to the nature of injuries, which the said deceased had sustained, and the cause of this death were not in dispute at the trial, we, too, do not notice anything inherently improbable or incorrect in the evidence of the doctor (PW 8). We have, therefore, no hesitation in holding that Indra Baruah had sustained an incised wound on the left frontal region of this scalp, the size of the wound being 3" x 1" and the injury, so sustained, was sufficient to cause death of a person in the ordinary course of nature and though the incised wound, which Indra Baruah had sustained on his head, could have made Indra Baruah go into coma, it cannot be, confidently, held that he must have entered into coma, because there is nothing in the evidence on record to show that Indra Baruah was found senseless. 10. Bearing in mind the medical evidence on record, we, first, come to the evidence of PW 3, widow of deceased Indra Baruah. According to the evidence of PW 3, the accused is, in relation, her nephew and their houses are close to each other. 12. As regards the occurrence, PW 3 has deposed that on the night of the occurrence, at about 9 pm, accused came to their house and took, along with him, her husband, Indra Baruah, by inviting him to have a cup of tea on the ground that he had received his salary on that day and, believing in what the accused had told him, Indra Baruah went with the accused and, after some time, a person, called Ruman Baruah, was heard shouting that Bhaiti had assaulted Indra Baruah, the name of the accused being Ruman Baruah @ Bhaiti and, on hearing what the said Ruman Baruah had told, both she (PW 3) and her son, PW 1, rushed to the road and found Indra Baruah lying in a pool of blood near the house of one Pramod Baruah. 12. 12. It is in the evidence of PW 3 that her husband told that Bhaiti had assaulted him and, then, he could not speak, whereupon they (PW 1 and PW 3) raised hullah and many of their neighbours came and they carried, with the help of their neighbours, injured Indra Baruah to his house. It is also in the evidence of PW 3 that as they were collecting money to carry the injured to hospital, her husband died, whereupon police was informed, police came and held inquest over the dead body. 13. It is also important to note that PW 3 has deposed that after the occurrence, the accused disappeared from his house. PW 3 has also deposed that before the occurrence took place, they had a dispute with regard to the boundary of the land with the accused. 14. In her cross-examination, PW 3 has clarified that the house of Pramod Baruah, near whose house Indra Baruah was found lying injured, is at a distance of about 100 meters from her house. PW 3 has also clarified, in her cross-examination, that before the occurrence, they were on talking terms with the accused and that after about one hour of her husband having been taken away by the accused, the said Ruman Baruah informed them that her husband was lying injured on the road. PW 3 has reiterated, in her evidence, that she saw injury on the head of her husband and that the night of occurrence was a dark night. In her cross-examination, PW 3 has reiterated that her husband, Indra Baruah, could not speak after some time, meaning thereby, Indra Baruah, was able to speak, when PWs 1 and 3 arrived at the place, where Indra Baruah was found lying. 15. It is also in the evidence of PW 3 that they informed Biman Baruah, who is own nephew of the deceased. PW 3 has conceded, in her evidence, that in their village, names of Dipen Baruah's son is also Bhaiti and that quite a few of her co-villagers are called Bhaiti. In her cross-examination, PW 3 has asserted that accused ran away to save himself. The suggestion, offered to PW 3 by the defence, was that as the news spread that the accused had killed Indra Baruah, the accused, out of fear, ran away. 16. In her cross-examination, PW 3 has asserted that accused ran away to save himself. The suggestion, offered to PW 3 by the defence, was that as the news spread that the accused had killed Indra Baruah, the accused, out of fear, ran away. 16. What is extremely important to note, while considering the evidence of PW 3, is that the defence has not even denied the fact that the accused came to their house at about 9.30 pm and took, along with him, Indra Baruah by inviting him to have a cup of tea, at the house of the accused, on the ground that he (accused) had received his salary on that very day and, about an hour thereafter, on hearing Ruman Baruah's shout that India Baruah was lying injured, when PW 3, accompanied by her son (PW 1), came running to the road, she (PW 3) found her husband lying injured at a distance of about 100 meters from her own house, the place, where Indra Baruah was lying, being near the house of one Pramod Baruah. 17. Similarly, while cross-examining PW 3, the evidence given by PW 3 that her husband uttered that Bhaiti had assaulted him has also not been disputed by the defence. 18. Notwithstanding the fact that there is, according to the evidence of PW 3, more than one person in their village known as Bhaiti, the fact remains that it was the accused-appellant, who had taken away the said deceased, by inviting him to have a cup of tea, as deposed to by PW 3, and, an hour thereafter, Indra Baruah was found lying injured and he uttered the word that Bhaiti had assaulted him. 19. Considering the fact that the accused-appellant was the one in whose company the said deceased was last seen, the evidence of PW 3, in the absence any evidence showing to the contrary, leads one to the lone and only conclusion that it was the accused-appellant whom the said deceased meant, when he uttered that Bhaiti had assaulted him. We notice that there is no explanation offered by the accused-appellant or discernible from the evidence on record to show that as to where, when and under what circumstance, he happened to part company with the said deceased. 20. We notice that there is no explanation offered by the accused-appellant or discernible from the evidence on record to show that as to where, when and under what circumstance, he happened to part company with the said deceased. 20. Situated thus, there can be no escape from the conclusion, in the light of the evidence of PW 3, that it was the accused-appellant, who had assaulted Indra Baruah and the injuries, which Indra Baruah had received at the hands of the accused-appellant, became the cause of his death. 21. We may also pause here to point out that the accused had, admittedly, disappeared on the very night of the occurrence. Had he not been the person not involved in the occurrence, nothing stopped him from coming either to the place of occurrence or to the house of the deceased, when the house of the accused-appellant is adjacent to the house of the deceased, and the co-villagers of Indra Baruah had already come to know about the occurrence on the very night of the occurrence. 22. No doubt, while examining the accused-appellant under Section 313 Cr.PC, the incriminating circumstance that the accused-appellant was found absconding had not been put to him, the fact remains that this Court made a query from the learned counsel for the appellant if the accused-appellant had any explanation to offer and the explanation offered, consistent with the suggestion, which had been offered by the defence to PW 3, was that it was, out of fear, that the accused-appellant had absconded. The news that the accused-appellant was the one, who had killed Indra Baruah, spread at about 4 pm; whereas Indra Baruah was found lying injured at around 10.30 am, because it is the evidence of the widow of the deceased (PW 3) that her husband was found lying injured after about one hour of his leaving home. Between the time, when Indra Baruah was found injured, and the time, when Indra Baruah died, there is no reason for the accused-appellant to have not made any query about Indra Baruah or any query as to who was involved in the occurrence, particularly, when the accused-appellant was the one, who had taken Indra Baruah with him from the house of the deceased Indra Baruah by inviting Indra Baruah to have a cup of tea at his (accused-appellant's) house. 23. 23. Close on the heels of the evidence of PW 3, the evidence of her son, PW 1, is that on the day of the occurrence, at about 09.30 p.m., when he was casually lying at his home and his parents were also present at home, the accused came and took, along with him, his father, Indra Barua, for a cup of tea on the ground that he had received his salary on that very day and though there was a boundary dispute between them and the accused, the accused was considered as their own man and that was why, they did not suspect any foul play. PW 1 has also deposed that after some time, he heard one Ruman Baruah that Indra Baruah had been assaulted and he also heard from the direction of the house of one Pramod Barua, his father's cry "Bhaitiye marile" (Bhaiti has assaulted). 24. PW 1 has further deposed that on hearing his father's cries and what Ruman Baruah had shouted, he (PW 1) and his mother (PW 3) went to the said place and found his father, Indra Barua, in injured condition with blood oozing out, his father was not in a condition to speak and, then, he (PW 1), his mother, PW 3 and Biman Barua carried his father home and, on hearing their hue and cry, people from the neighbouring houses came. 25. It is in the evidence of PW 1 that though they looked for a vehicle, they could not arrange any vehicle and, at about 4.30 a.m., his father died. It is also in the evidence of PW 1 that since after the occurrence, the accused disappeared. It is further in the evidence of PW 1 that on coming to know about the occurrence, police arrived at their house and he got an Ejahar written (which is Ext. 1), by Atul Barua and handed over the same to the police. 26. In his cross-examination, PW 1 has clarified that their house and the house of the accused is adjacent to each other. PW 1 has also clarified that it was from Ruman Baruah's shouts, raised from the direction of the house of Pramod Baruah, that they came to know that his father had been assaulted and that about half-an-hour after his father had left home, he had heard his father's voice. 27. PW 1 has also clarified that it was from Ruman Baruah's shouts, raised from the direction of the house of Pramod Baruah, that they came to know that his father had been assaulted and that about half-an-hour after his father had left home, he had heard his father's voice. 27. When we scrutinize minutely, it becomes clear that PW 1's assertions are two fold, namely, that Ruman Baruah had been heard shouting that someone had assaulted Indra Barua and it is also clear from the evidence given, both in examination-in-chief as well as in cross-examination, by PW 1 that he had heard his father's cries, too, saying, "Bhaitie marile" (i.e., Bhaiti had assaulted). 28. It is, therefore, not impossible that while Ruman Baruah had shouted that Indra Barua had been assaulted by someone, PW 1 had heard his father's cry, "Bhaitiye marile" (Bhaiti has assaulted) too. 29. The undisputed evidence of PW 1 is that the wife of the accused was not at home on the day of the occurrence inasmuch as he had driven away his wife on the day of the occurrence. 30. In his cross-examination, PW 1 has further clarified that on their arrival at the place of occurrence, his father, Indra Barua, uttered that the accused had assaulted him and, then, he could not speak anymore. 31. The above assertion of PW 1 that his father uttered that the accused had assaulted him and, then, he could not speak anymore went wholly unchallenged by the defence. 32. Notwithstanding, therefore, the evidence of PW 1 that when they arrived at the place, where his father was found lying injured and his father was unable to speak, his evidence remains unscathered and we find no reason to disbelieve his evidence that his father had uttered that the accused had assaulted him and, then, his father became silent. What remains also undisputed by the defence, while cross-examining PWs 1 and 3 is that the accused had, indeed, invited Indra Baruah to have a cup of tea at the house of the accused at about 9:30 PM and Indra Baruah did go to the house of the accused and within an hour, or may be less than an hour, Indra Baruah was found lying seriously injured and uttered the name of the accused as his assailant. 33. 33. Four important facts, which clearly emerge from a combined reading of the evidence of PW 1 and PW 3, are that (i) the house of the accused is adjacent to their house and, on the day of the occurrence, the wife of the accused was not at home; that (ii) on the day of the occurrence, at about 9.30 p.m., the accused-appellant came to the house of Indra Barua and took Indra Barua along to the house of the accused-appellant by inviting him to have a cup of tea and Indra Barua left his house in the company of the accused; that (iii) between half-an-hour and on hour of his departure from his house, while Ruman Baruah was heard by PW 1 and PW 3 shouting that someone had assaulted Indra Barua, PW 1 had, in fact, heard even his father, Indra Baruah, crying out "Bhaitie marile" (i.e., Bhaiti has assaulted); and (iv) when PW 1 and PW 3 went to, and arrived at, the place, where Indra Barua was lying injured in pool of blood, Indra Barua was not in a position to speak; but, then, he had uttered that Bhaiti had assaulted him and, having made this declaration, Indra Barua became silent and remained unable to speak and that Indra Barua was carried home, but he could not be provided with medical treatment inasmuch as no vehicle could be arranged and he succumbed to his injuries by about 4.30 a.m. 34. Before proceeding further, it is also important to note that though the Ejaharl (Ext. 1), which PW 1 had lodged, has been treated as the FIR of this case, the fact remains that the police, on receiving the telephonic information of Indra Barua having been killed had already come to the house of Indra Barua and, thus, the investigation by police had already commenced before the Ejahar I (Ext. 1) was lodged by PW 1. Consequently, the contents of the Ejahar (Ext. 1) cannot be treated as FIR and these contents constitute, in law, PW 1's statement made to police during the course of investigation. 35. Coming to the evidence of PW 2, we notice that his evidence is to the effect that on the day of the occurrence, while he was asleep, he heard PW 1 and his mother (PW 3) shouting that Bhaiti had hacked Indra Barua. 35. Coming to the evidence of PW 2, we notice that his evidence is to the effect that on the day of the occurrence, while he was asleep, he heard PW 1 and his mother (PW 3) shouting that Bhaiti had hacked Indra Barua. It is in the evidence of PW 2 that on hearing the cries, he came to the place of occurrence, which happened to be close to the house of Pramod Barua, and found Indra Barua lying injured with a cut injury on his right side of his head and blood was oozing out of the injury and though he spoke to the injured, the injured was unable to reply. In the meanwhile, according to the, evidence of PW 2, many persons came there and the injured was carried to his house and as they could not arrange any vehicle, the injured could not be taken to the hospital and, on the night of the occurrence itself, at about 4.30 a.m., Indra Baruah died. It is also in the evidence of PW 2 that police were informed by their Gaonburah's son and police came and held inquest over the dead body of Indra Barua. Even PW 2 has deposed that since after the occurrence, the accused had disappeared. 36. In his cross-examination, PW 2 has clarified that the distance of the place of occurrence from the house of injured Indra Barua is about 150 meter. 37. Closely lending support to the evidence of PW 1, PW 2 and PW 3, PW 4 has deposed that on the night of the occurrence, he woke up and came running to the place, where people had assembled, and found Indra Baruah lying in a pool of blood on the road and he came to know from the son and wife of Indra Baruah that accused had come to their house and taken away Indra Baruah with him. 38. It is worth pointing out that though PW 1 and PW 3 have not deposed that they reported either to PW 2 or PW 4 that the accused had come to their house and taken Indra Baruah with him for a cup of tea, the fact remains that the assertions of PW 2 and PW 4 that they were told by PW 1 and PW 3 that the accused had taken Indra Barua to his house were not disputed. This shows that PWs 1 and 3 did promptly mention to their neighbours the fact of Indra Barua had been taken by the accused to his house. 39. While considering the above aspect of the case, it needs to be noted that, ordinarily, when PW 1 and PW 3 have not deposed that they had reported PW 2 and PW 4 that accused had taken Indra Baruah to the house of the accused to have a cup of tea, the evidence, given by PW 2 and PW 4, that PW 1 and PW 3 had told them that Indra Baruah had been taken by the accused for a cup of tea to the house of the accused cannot be rejected as hearsay and must be held admissible to prove the factum of information. 40. It is of immense importance to note that, in order to exclude a piece of evidence as hearsay, one has to bear in mind the distinction between the factum of information and truthfulness or veracity of such information. If, in a given case, the object is to merely establish that a statement was made by one person to another, it may not be hearsay; but if the object is to prove that what was started was true, then, it may become hearsay. Thus, when 'x', an eye witness of an occurrence of murder, comes to a police station and reports the occurrence to a police officer, the evidence given by the police officer, at the trial, in the absence of the evidence given by the informant, that he was given such an information is not hearsay if the object is merely to prove that such an information was, indeed, received by the police officer, but if the object is to prove that what the police officer had been reported was or was not true, then, the police officer's evidence as to what he was reported by 'x' would be hearsay unless 'x' appears as a witness at the trial and deposes not only that he had so reported the occurrence to the police officer, but also that what he had reported was true as he had witnessed the occurrence himself. (See Bisheswar Baori @ Khetrapal Vs. State of Assam, reported in 2002 (2) GLT 395). 41. In Subramaniam Vs. (See Bisheswar Baori @ Khetrapal Vs. State of Assam, reported in 2002 (2) GLT 395). 41. In Subramaniam Vs. Public Prosecutor, reported in [1956] 1 WLR 965, the Privy Council, distinguishing the factum of statement from the factum of truth, observed and held that the state of mind of a man, charged with possessing ammunition contrary to certain regulations, could be proved by what had been told to him by certain terrorists into whose hands he had come. Referring to the observations, so made by the Privy Council in Subramaniam (supra), Lord Parker, Chief Justice, in Regina Vs. Wills [1960] 1 WLR 55, observed, Mr. de Silva, giving the advice of the Board, said: In ruling out peremptorily the evidence of conversation between the terrorists and the appellant, the trial judge was in error. Evidence of a statement made to a witness by a person, who is not himself called as a witness, may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible, when it is proposed to establish, by the evidence, not the truth of the statement but the fact that it was made. The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made. (Emphasis is added) In the opinion of this Court, that statement of the law is applicable to the present case. It is true that the Board were there considering the state of mind and conduct of the defendant at the time of the commission of the offence, but provided the evidence as to his state of mind and conduct is relevant, it matters not whether it was in regard to the conduct at the time of the commission of the offence or, as here, at a subsequent time, to explain his answers to the police and his conduct, when charged. Accordingly, that evidence, in the present case, was wrongly excluded. 42. Accordingly, that evidence, in the present case, was wrongly excluded. 42. In Sudip @ Tultul Choudhury, reported in 2010 (2) GLT 870, the question, which arose, was: When an informant or the person, who informs the Officer-in-Charge of a police station as regards commission of a cognizable offence, is not examined as a witness at the trial, because of the fact that his identity is not known, whether the evidence, given by the Officer-in-Charge of the police station concerned, as to what information he had received would or would not be hearsay? 43. Pointing out the distinction between the factum of information and truthfulness or veracity of such information, a Division Bench of this Court, in Sudip @ Tultul Choudhury (supra), observed, at paragraph 19 and 20, asunder: 19. Thus, the evidence, given in the present case, by PW 12 (Investigating Officer) that he had received an information telephonically, at his police station, that Anil Gan of Central Road Extension had been murdered and that his dead body was lying, in his courtyard, is not wholly inadmissible in evidence in order to show as to what information PW 12 had telephonically received, which prompted him to visit the place of occurrence, though the informant's identity had not been determined and the informant was not examined. By proving as to what had prompted the police machinery to move into motion, what the evidence of PW 12 does is that it tells the Court as to what information he had received telephonically at his police station and why and how he happened to come to the place, where Anil Gan's dead-body was found lying. To the extent, therefore, as to what PW 12 had been told on telephone or to the extent as to what information PW 12 had telephonically received at his police station, the evidence, given by PW 12, is not inadmissible evidence even though the caller remains unidentified till date. With the limited use of the evidence given by PW 12, what is proved, in the absence of examination of the person, who had made the said telephone call, is the factum of information, namely, as to what information PW 12 had telephonically received. It does not, however, prove that the information, which PW 12 had received, was true. With the limited use of the evidence given by PW 12, what is proved, in the absence of examination of the person, who had made the said telephone call, is the factum of information, namely, as to what information PW 12 had telephonically received. It does not, however, prove that the information, which PW 12 had received, was true. If the factum of truth of the information so given is required to be determined by the Court, then, the evidence given by PW 12, as to what he had been told, telephonically, by the caller, would be hearsay and inadmissible evidence. The Court has to, therefore, remain alive at the trial as to when a statement, attributed to any person, who is not examined as a witness, can be brought on record as a factum of statement made and not as proof of the truth of the statement made. 20. Thus, the evidence, given by PW 12, as to what he had been told by the telephone caller is, in the absence of the evidence of the caller, not inadmissible if the Court has to rely on the evidence of PW 12 to hold that PW 12 had received a telephone call to the effect that Anil Gan had been murdered. But the information, that Anil Gan had been murdered as aforesaid, is quite different from the question as to whether Anil Gan had, as a matter of fact, been murdered or not. When the information, so received by PW 12, made the police machinery move into motion and in order to ascertain the truth and also to investigate as to who was the offender, when the police proceeded from the said police station, arrived at the place of occurrence, examined the dead body of Anil Gan and held inquest thereon, investigation into the case must be held to have already commenced. Any information given thereafter, whether in writing or orally, to PW 12 by PW 1, as regards the occurrence, was nothing, but his (PW 1's) statement made to the police during investigation and such a statement stands on the same footing as does a statement of a witness under Section 161 Cr.PC. Such a statement is not substantive evidence nor can it be treated, or could have been treated, as FIR. 44. Such a statement is not substantive evidence nor can it be treated, or could have been treated, as FIR. 44. Thus, the evidence of PW 2 and PW 4, too, in the present case, same as in the case of Sudip @ Tultul (supra), have to be divided into two parts, namely, factum of information and truthfulness or veracity of the information. The prosecution has clearly proved the factum of information inasmuch as the evidence of PW 2 and PW 4 stands well proved, for, we see no reason to disbelieve the evidence of PW 2 and PW 4. Logically, therefore, there is no difficulty in concluding that PW 2 and PW 4 were, indeed, reported by PW 1 and PW 3 what PW 2 and PW 4 claimed to have been reported to them by PW 1 and PW 3. Whether the information, so given to them by PW 1 and PW 3, was or was not true, would depend on the credibility of the evidence of PW 1 and PW 3. 45. Situated thus, what is admissible from the evidence of PW 2 and PW 4 is that they were, indeed, informed by PW 1 and PW 3 that the accused had taken, along with him, Indra Baruah to the house of the accused-appellant for having a cup of tea. The evidence, so given by PW 2 and PW 4, cannot be treated as the evidence of truth; but, in the face of the fact that the evidence of PW 2 and PW 4 is found by us to be believable, we see no reason to disbelieve PW 2 and PW 4 merely because PW 1 and PW 3 did not claim, in their evidence, that they had reported to PW 2 and PW 4 what PW 2 and PW 4 claimed to have been reported as regards the accused-appellant having taken, along with him, Indra Baruah to the house of the accused-appellant for a cup of tea. What PW 1 and PW 3 reported to PW 2 and PW 4 were or were not true can be answered depending upon the veracity of the evidence of PW 1 and PW 3. 46. What PW 1 and PW 3 reported to PW 2 and PW 4 were or were not true can be answered depending upon the veracity of the evidence of PW 1 and PW 3. 46. Proceeding further with this judgment, we must point out that same as the other witnesses, PW 4, too, has deposed that due to non-availability of vehicle, Indra Baruah could not be taken to hospital and he died, police came and held inquest over the said dead body and prepared inquest report, which is Ext. 3. 47. In his cross-examination, PW 4 has clarified that when he reached the place of occurrence, Indra Barua was not in a position to speak. The evidence, so given by PW 4, does not take away the value of undisputed evidence of PWs 1 and 3 that before Indra Barua became silent, he did utter that Bhaiti had assaulted him. Similarly, while considering the evidence of PW 2 that when he spoke to the injured, the injured was unable to reply, it is important to bear in mind that the evidence, so given by PW 2, cannot be taken to have reduced the value of the undisputed evidence of PWs 1 and 3 that before Indra Baruah fell silent, he did utter that Bhaiti had assaulted him. 48. The evidence of PW 5 is not of much value inasmuch as he came to the place of occurrence on the next day morning except that even he has asserted that PW 3 had told him that on the previous night, the accused had come and taken away with him the deceased and though they went in search of the accused, they could not find him out. 49. According to the evidence of PW 7, who is the Sarkarj Gaonburah, (i.e., village headman and who lives in the vicinity of the house of Indra Baruah), on the night of the occurrence, PW 1 and PW 3 came to his house, woke him up and told him that Indra Barua had been, hacked by Bhaiti near Pramod Barua's house, whereupon he, immediately, went to the place of occurrence and found India Baruah lying injured in a pool of blood and Indra Baruah was unable to speak and, then, Indra Baruah was carried home, but due to non-availability of vehicle, Indra Baruah could not be carried to the hospital. 50. 50. The undisputed evidence of PW 7 is that after the occurrence, the accused disappeared. 51. Coming to the evidence of the Investigating Officer (PW 9), we notice that according to his evidence, on 14-10-2004, he was at Amguri Police Station as second officer and on that day, he received oral information, over telephone, that Indra Baruah was murdered by Ruman Baruah, the information having been given by Diganta Baruah, whereupon he made General Entry No. 307, dated 14-10-2004, and proceeded to the place of occurrence and, on arriving there, found Indra Barua's dead body lying inside his dwelling house. It is in the evidence of PW 9 that he held inquest over the said dead body and, on finding a spade and dao lying in an open area by the side of the road, he seized the spade and dao, in presence of witnesses, by a seizure list, which is Ext. 2. It is also in the evidence of the Investigating Officer (PW 9) that though he recorded the statement of the witnesses, he did not find the accused as the accused had fled away by locking his door and, eventually, the accused was apprehended at the house of his father-in-law. 52. The material aspects of the entire evidence of the Investigating Officer (PW 9), including his evidence that the accused had disappeared by locking his house and that he was apprehended at the house of his father-in-law, remained unchallenged by the defence. 53. While considering the present appeal, it needs to be noted that no witness has been examined by the prosecution, who claims to have witnessed the accused-appellant assaulting and/or killing Indra Baruah. The case of the prosecution, therefore, rests on circumstantial evidence. 54. The standard of proof required, for the purpose of convicting a person, on the basis of circumstantial evidence, has been laid down, with great clarity, in the case of Hanumant Govind Nargundkar Vs. State of M.P., reported in 1952 SCR 1091 , wherein the Court has pointed out that the circumstances, which are relied upon, must be fully established and the chain of evidence, furnished by the circumstances so established, should make a complete case against the accused and shall not leave any reasonable ground for a conclusion consistent with the innocence of the accused. The relevant observations, appearing in Hanumant Govind Nargundkar (supra), read as under: It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. 55. Referring to the case of Hanumant Govind Nargundkar (supra), the Supreme Court, in Sharad Birdhichand Sarda Vs. State of Maharashtra, reported in (1984) 4 SCC 116 , has pointed out that in a case, based on circumstantial evidence, the circumstances from which the conclusion of guilt is required to be drawn shall be fully established and the facts, so established, shall be not only consistent with the hypothesis of guilt of the accused, but shall be in consistent with any hypothesis of innocence of the accused. 56. Elaborately dealing with the principles, laid down in Hanumant Govind Nargundkar (supra), the Supreme Court, in Sharad Birdhichand Sarda (supra), pointed out, at para 152, thus: 152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra where the observations were made: [SCC para 19, p. 807 : SCC (Cri) p. 1047] Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 57. Referring to the case of Hanumant Govind Nargundkar (supra), the Supreme Court has pointed out, in Deonandan Mishra Vs. The State of Bihar ( AIR 1955 SC 801 ), too, that in a case of circumstantial evidence, not only should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. Referring to the facts of Deonandan Mishra (supra), the Supreme Court pointed out that in a case like this, where various links have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, and when he (accused) offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanations false explanation would itself be an additional link, which completes the chain. 58. The case of Joseph Vs. 58. The case of Joseph Vs. State of Kerala, reported in (2000) 5 SCC 197 , is a case, which is relevant, while considering the theory of last seen together. In Joseph (supra), the facts were, as noted by the Supreme Court, in its subsequent decision, in State of Rajasthan Vs. Kashi Ram, reported in (2006) 12 SCC 254 , as under: 20. In Joseph s/o Kooveli Poulo Vs. State of Kerala (2000) 5 SCC 197 ; the facts were that the deceased was an employee of a school. The appellant representing himself to be the husband of one of the sisters of Gracy, the deceased, went to the St. Mary's Convent where she was employed and on a false pretext that her mother was ill and had been admitted to a hospital took her away with the permission of the Sister in charge of the Convent, PW-5. The case of the prosecution was that later the appellant not only raped her and robbed her of her ornaments, but also laid her on the rail track to be run over by a passing train. It was also found as a fact that the deceased was last seen alive only in his company, and that on information furnished by the appellant in the course of investigation, the jewels of the deceased, which were sold to PW-11 by the appellant, were seized. There was clear evidence to prove that those jewels were worn by the deceased at the time when she left the Convent with the appellant. When questioned under Section 313 Cr.P.C., the appellant did not even attempt to explain or clarify the incriminating circumstances inculpating and connecting him with the crime by his adamant attitude of total denial of everything. In this backdrop, the Court held:- Such incriminating links of facts could, if at all, have been only explained by the appellant, and by nobody else, they being personally and exclusively within his knowledge. Of late, courts have, from the falsity of the defence plea and false answers given to court, when questioned, found the missing links to be supplied by such answers for completing the chain of incriminating circumstances necessary to connect the person concerned with the crime committed (see State of Maharashtra Vs. Suresh, (2000) 1 SCC 471 ). Of late, courts have, from the falsity of the defence plea and false answers given to court, when questioned, found the missing links to be supplied by such answers for completing the chain of incriminating circumstances necessary to connect the person concerned with the crime committed (see State of Maharashtra Vs. Suresh, (2000) 1 SCC 471 ). That missing link to connect the accused appellant, we find in this case provided by the blunt and outright denial of every one and all the incriminating circumstances pointed out which, in our view, with sufficient and reasonable certainty on the facts proved, connect the accused with the death and the cause for the death of Gracy. 59. From the observations, made above, it becomes clear that when a feet is explainable and within the special knowledge of the accused, facing trial, and the accused chooses not to offer explanation, it becomes an additional link in the circumstances in the sense that the omission to explain is a missing link, which may be treated to have been supplied for arriving at the answer, which the circumstantial evidence makes one reach. 60. In Ram Gulam Choudhary & Ors. Vs. State of Bihar, reported in (2001) 8 SCC 311 , the Supreme Court has pointed out that it is permissible, in a given case, to draw an inference from the silence of an accused if the answer could be given by the accused alone even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt inasmuch as Section 106 would apply to cases, where prosecution successfully proves the facts from which a reasonable inference can be drawn. 61. In fact, the case of Sahadevan @ Sagadevan Vs. State, represented by Inspector of Police, Chennai, reported in (2003) 1 SCC 534 , is a case, which is closely akin to the case at hand, wherein the deceased was seen in the company of the appellant from the morning of March 5, 1985, till, at least, 5 pm on that day, when he was brought to his house and, thereafter, his dead body was found in the morning of March 6, 1985. In this fact situation, the Supreme Court observed: Therefore, it has become obligatory on the, appellants to satisfy the court as to how, where and in what manner Vadivelu parted company with them. This is on the principle that a person who is last found in the company of another, if later found missing, then the person with whom he was last found has to explain the circumstances in which they parted company. In the instant case the appellants have failed to discharge this onus. In their statement under Section 313 CrPC they have not taken any specific stand whatsoever. 62. Having taken into consideration the cases of Joseph (supra), Ram Gulam (supra) and Sahadevan (supra), the Supreme Court has pointed out, in Kashi Ram (supra), that Section 106 of the Evidence Act makes it clear that when any fact is especially within the knowledge of a person, the burden of proving that fact is on him. 63. Hence, observes the Supreme Court, in Kashi Ram (supra), that if a person is last seen with the deceased, he must offer an explanation as to how and when he parted with the company of the deceased. The Supreme Court has, in fact, gone to the extent of observing that in such a case, the accused must furnish an explanation, which appears to the Court to be probable and satisfactory and if the accused does so, he must be held to have discharged his burden; but if the accused fails to offer an explanation on the basis of the facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106. The Supreme Court has further pointed out, in Kashi Ram (supra), that if, in a case, resting on circumstantial evidence, the accused fails to offer reasonable explanation in discharging the burden placed on him by virtue of Section 106, his silence is an additional link in the chain of circumstances proved against him. 64. The Supreme Court has further pointed out, in Kashi Ram (supra), that if, in a case, resting on circumstantial evidence, the accused fails to offer reasonable explanation in discharging the burden placed on him by virtue of Section 106, his silence is an additional link in the chain of circumstances proved against him. 64. Clarifying the object of Section 106, the Supreme Court has laid down, in Kashi Ram (supra), that Section 106 does not shift the burden of proof in a criminal trial inasmuch as the burden of proof always rests on the prosecution, but it lays down the rule that when the accused does not throw any light upon the facts, which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation as an additional link, which completes the chain. In coming to this conclusion, the Court has referred to Naina Mohamed (AIR 1960 SC 218). The relevant observations, appearing in Kashi Ram (supra), read as under: 23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specialty within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re. Naina Mohd. AIR 1960 Mad, 218. 65. Ordinarily, the circumstance of last seen together would be relevant, when it is established by the evidence on record that the time gap between the point of time, when the accused and the deceased were seen together alive, and when the deceased was found dead, is so small that possibility of any other person being with the deceased can be completely ruled out. Thus, the time, gap between the accused person having been seen in the company of the deceased and the death of the deceased would be a material consideration for appreciation of evidence in such matters. What is, however, of paramount importance to note is that it cannot be always stated that the evidence of last seen together must be rejected merely because the time gap between the point of time, when the accused persons were seen in the company of the deceased, and the coming into light of the offence committed is of a considerable long duration. There is no fixed or straight-jacket formula in respect of duration of time gap. Obviously, it would depend on the facts of a given case if the circumstance of the last seen together is so material that it can lead the Court to conclude that none, but the accused was last seen in the company of the deceased and was, therefore, the one, who had caused death of the deceased. Reference, in this regard, may be made to the cases of Bodhraj Vs. State of J & K, reported in (2002) 8 SCC 45 , State of U.P. Vs. Satish, reported in (2005) 3 SCC 114 , Ramreddy Rajesh Khanna Reddy Vs. Reference, in this regard, may be made to the cases of Bodhraj Vs. State of J & K, reported in (2002) 8 SCC 45 , State of U.P. Vs. Satish, reported in (2005) 3 SCC 114 , Ramreddy Rajesh Khanna Reddy Vs. State of A.P., reported in (2006) 10 SCC 172 and Jaswant Gir Vs. State of Punjab, reported in (2005) 12 SCC 438 . The Supreme Court has summarized the theory of last seen together, in State of Goa Vs. Sanjay Thakran & Anr., reported in (2007) 3 SCC 755 , at Para 34, as follows: From the principle laid down by this Court, the circumstance of last-seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case. 66. In the backdrop of the law, as discussed above, when the facts of the present case are taken into account, it becomes clear that though the deceased, Indra Baruah, was seen last in the company of the accused-appellant, Ruman Baruah, the accused-appellant has not offered any explanation as to where, when and under what circumstances he happened to part company with Indra Baruah. 67. In the face of the overwhelming evidence on record against the accused-appellant pointing to him as the one, who had killed Indra Baruah, the silence of the accused-appellant and his inability to offer any explanation as to when, where and under what circumstances he happened to part company with the deceased with whom he had been seen last, has to be considered as additional circumstances against the present accused-appellant. 68. In a situation, as the present one, the omission, on the part of the accused-appellant to offer any explanation as to when, where and under what circumstances, if we may reiterate, he happened to part company with the deceased, Indra Baruah, can be treated as the missing link and furnish an additional piece of evidence against the accused-appellant. 69. Because of what have been discussed and pointed out above, we do not find that the conviction of the accused-appellant, for the offence of murder, suffers from any infirmity, legal or factual. His conviction, therefore, does not need any interference nor does the sentence, which has been passed against him, calls for any interference by this Court. 70. In the result and for the reasons discussed above, we uphold the conviction of the accused-appellant and the sentence passed against him. His conviction, therefore, does not need any interference nor does the sentence, which has been passed against him, calls for any interference by this Court. 70. In the result and for the reasons discussed above, we uphold the conviction of the accused-appellant and the sentence passed against him. This appeal accordingly fails and the same shall stand dismissed. Send back the LCR. Appeal dismissed