C.R. Sarma, J;— [1] This appeal is directed against the judgment and order, dated 19.09.2005, passed by the learned Sessions Judge, Jorhat in Sessions Case No. 73(JJ)/2000 (GR Case No.331/1997 arising out of Jorhat P.S. Case No.153/1997). [2] By the impugned judgment and order aforesaid, the learned Sessions Judge convicted Smti Purnima Dey (hereinafter called the “appellant”), under Section 302 read with Section 201 of the Indian Penal Code (for short, the ‘IPC’) and sentenced her to suffer life imprisonment and pay fine of Rs. 1,000/- (Rupees one thousand) only, in default, suffer rigorous imprisonment for another period of 6 (three) months for her conviction under Section 302 IPC. The appellant has also been convicted to suffer imprisonment for 3 (three) years and pay fine of Rs. 500/- (Rupees five hundred) only in default, suffer rigorous imprisonment for another period of 3 (three) months for her conviction under Section 201 IPC. [3] We have heard Ms. R. D. Mazudmar, learned Amicus Curiae, appearing for the appellant and Mr. K.A. Mazumdar, learned Additional Public Prosecutor, appearing for the State respondent. [4] The prosecution case, in brief, is that the appellant and her husband Shri Mantu Dey (hereinafter called the, “deceased”) used to live in a railway quarter at Jorhat Railway Station alongwith their three minor children. On 28.02.1997, the appellant, alongwith her children and belongings, left the said railway quarter and thereafter she used to live in a rented house. At the time of leaving the said quarter, the said appellant kept the key of the house in the shop of PWs 1 and 4 saying that her husband had gone to Dibrugarh for training and that, on his return, he would pay the dues regarding purchase of goods from their shop. Subsequently, on 20.03.1997, Smti Nanibala Dey, mother of the deceased lodged a missing entry with the police informing that the deceased was missing from 23.02.1997. The said missing report was registered as GD Entry No. 70, dated 20.03.1997. On the basis of the said G.D. Entry, police initiated the investigation into the matter. On 05.04.1997, the dead body of the deceased was found in the septic tank, behind the railway quarter at Jorhat. After recovery of the dead body, police apprehended the appellant and upon interrogation, made by the police, she disclosed that she had killed her husband and concealed the dead body in the septic tank. On 05.04.1997, the dead body of the deceased was found in the septic tank, behind the railway quarter at Jorhat. After recovery of the dead body, police apprehended the appellant and upon interrogation, made by the police, she disclosed that she had killed her husband and concealed the dead body in the septic tank. She led the police to the recovery of the lathi, which was used by her in causing the death of the deceased and the crow bar, which was used by her for removing the slab of the Septic tank. The said lathi and the crow bar were seized by police, vide Ext. 2 and Ext. 3. After recovery of the dead body, the Investigating Officer (PW-8) lodged a written complaint (Ext. 5) with the Officer-in-Charge of Jorhat Police Station, which was registered as Jorhat P.S. Case No. 153/1997, under Sections 302/201/34 IPC. [5] During the course of investigation, police got the inquest (Ext. 1) done, sent the dead body for postmortem examination and recorded the statement of the witnesses. At the close of the investigation, police submitted charge sheet against the appellant. The learned Sessions Judge framed charge under Section 302 IPC against the appellant and the charge was read over and explained to the appellant, to which she pleaded not guilty. [6] In order to prove their case, prosecution examined, as many as, 11 (eleven) witnesses, including the Medical Officer (PW- 6), who performed the postmortem examination, the learned Executive Magistrate (PW 10), who prepared inquest report (Ext. 1), and the investigating officers (PW Nos. 8 & 9), who launched investigation into the case. Considering the evidence on record, the learned Sessions Judge convicted and sentenced the appellant, as indicated hereinabove. [7] Aggrieved by the said conviction and sentence, the appellant has come up with this appeal. [8] Ms. R. D. Mazumdar, learned amicus curiae, taking us through the evidence, on record, strenuously argued that there is no substantive and reliable evidence against the appellant and that the appellant has been convicted only on suspicion and presumption, which are not based on evidence. [8] Ms. R. D. Mazumdar, learned amicus curiae, taking us through the evidence, on record, strenuously argued that there is no substantive and reliable evidence against the appellant and that the appellant has been convicted only on suspicion and presumption, which are not based on evidence. The learned amicus curiae has also contended that though the learned Sessions Judge has convicted the appellant, on the basis of circumstantial evidence, the events of circumstances, surfacing from the evidence, rendered by the prosecution witnesses, do not form a compete chain leading to the only hypothesis that none other than the appellant had caused the death of the deceased. [9] It is also submitted that the theory of “last seen together” is not applicable in the present case, inasmuch as, there is no evidence, on record, to show that, soon before the death, the deceased was in the company of the appellant. It is also contended that the prosecution failed to establish the death of the deceased. Therefore, it is further contended that, as the prosecution has failed to establish the death of the deceased, it cannot be conclusively held that the deceased died during the period, when he was in the company of the appellant. [10] The learned amicus curie has also submitted that the fact that the appellant had left the railway quarter, keeping the key of the house in the shop of PW 1 and PW 4, does not conclusively establish that she had killed her husband. It is also submitted that the confessional statement, alleged to be made, before the Investigating Officer, that too upon torture, is hit by Sections 25 and 26 of the Evidence Act and as such no reliance can be placed on such confession. The learned amicus curiae has further submitted that the recovery of the lathi and the crow bar, at the instance of the appellant, cannot itself lead to the conclusion that the said weapons were used, by the appellant, in causing the death of the deceased. [11] Controverting the said arguments, advanced by the learned amicus curiae, Mr. The learned amicus curiae has further submitted that the recovery of the lathi and the crow bar, at the instance of the appellant, cannot itself lead to the conclusion that the said weapons were used, by the appellant, in causing the death of the deceased. [11] Controverting the said arguments, advanced by the learned amicus curiae, Mr. K.A. Mazumdar, learned Additional Public Prosecutor has submitted that the circumstances, that the appellant left the quarter with her belongings, keeping the key of the house in the shop of PWs 1 and 4 and the recovery of the dead body in the septic tank, situated behind the railway quarter, recovery of the lathi and the crow bar at the instance of the appellant and her failure to lodge any complaint regarding missing of her husband for such a long period, are sufficient circumstantial evidence convincingly leading to the conclusion that none other than the appellant had caused the death of her husband and concealed the dead body in the septic tank, after committing the said crime. The learned Additional Public Prosecutor, supporting the conviction and the sentence, recorded against the appellant, has submitted that the learned Sessions Judge committed no error and as such the impugned order needs no interference. [12] Having heard the learned counsel for both sides and perusing the records, we find that the prosecution case is based on the circumstantial evidence, that the body of the deceased was found in the septic tank of the quarter in which the said couple i.e. the appellant and the deceased used to live, that the appellant, alongwith her children i.e. CW Nos 1, 2 and 3 and belongings left the said quarter, keeping the key of the same in the shop of PWs 1 and 4 and that the incriminating weapon, i.e. the lathi and the crow bar were recovered at the instance of the appellant. [13] From the evidence of PW 1 (Shri Rabin Das) i.e. the shop keeper, with whom the key of the quarter was left by the appellant, it is found that, at the time of leaving the quarter by her, PW 1 had asked her to clear all outstanding dues and the appellant had told him that her husband, who had gone to Dibrugarh for training would pay the money, after his return. From the evidence of PW 1 it also appears that he had accepted the said assurance, given by the appellant. This indicates that the deceased was in the habit of leaving the quarter, in as much as the said version of the appellant was believed by PW 1. [14] Shri Sankar Das, PW 4 was a brother of PW 1. He supporting the evidence of PW 1, stated that the appellant had left the house, keeping the key of the quarter in their shop. He stated that, on earlier occasions also, the appellant used to keep the key of the quarter in their shop. He further stated that, the husband of the appellant did not turn up to take back the key from their shop. This statement of PW 4 also indicates that, on earlier occasion also, the husband of the deceased used to leave the quarter and the appellant, as and when she left the quarter, kept the key of the quarter, for her husband, in the shop of PWs 1 and 4. Therefore, leaving the quarter, keeping the key in the shop of PWs 1 and 4, in the absence of her husband, was an usual practice. [15] Shri Ratan Das (PW 2) was a witness to the recovery of the dead body from the septic tank, situated behind the railway quarter. [16] PW 3 (Shri Gobinda Kumar Dutta) another relative of the deceased was also eye-witness to the recovery of the deceased from the septic tank, behind the quarter. [17] The evidence of PWs 2 and 3 indicate that the septic tank, from which the dead body was recovered, was not inside the quarter, which was locked by the appellant, at the time of leaving the quarter. So the septic tank was in an open area accessable by all. [18] Shri Paritosh Das (PW 5) was a witness to the inquest report, prepared by police after recovery of the dead body from the septic tank. He also stated that, upon interrogation made by police, the deceased had produced a lathi from the quarter. He was a witness to the seizure of the said lathi, which was seized by police vide Ext.2. This witness further stated that the appellant handed over a crow bar from her rented house at Rajabari, which was seized by police, vide Ext. No. 3. He was a witness to the seizure of the said lathi, which was seized by police vide Ext.2. This witness further stated that the appellant handed over a crow bar from her rented house at Rajabari, which was seized by police, vide Ext. No. 3. He exhibited the lathi and the crow bar as material Ext. Nos. 1 and 2 respectively. [19] PW- 6 (Dr. Ranjit Kumar Baruah), who performed autopsy of the dead body, found the following injuries: “Decomposed (at several places) pith of a small stature average built male. Hair and scalp about exalt at right side skinlobs pulled off. Pale white muscles Gives away in places. EXTERNAL APPEARANCE The face is disfigured. Both maxillary fractured. The mandible is fracture near right angle. WALLS, RIBS AND CARTILAGE 4th to 10th rib on left and 5th to 9th ribs on right fractured anteriorly and almost in the middle of left and slight antenolatinary on right indiam on right.” The medical officer opined that the cause of death was shock and haemorrhage as a result of injuries, sustained by the deceased. [20] Shri Ramesh Pathak (PW 7) stated that he was present at the time of seizure of the lathi (material Ext. 1), on being produced by the appellant. [21] Md. Mridhul Ahmed (PW -8), S. I of police stated that, on 20.03.1997, he received a missing entry and the said missing entry was registered as GD Entry No. 70, dated 20.03.1997. He further stated that, on 05.04.1997, one Md. Mohibul Hussain of Jorhat Railway Station telephonically informed that the dead body of the deceased was recovered from the Septic tank, behind the railway quarter. Accordingly, the investigating officer, on receipt of the information aforesaid, proceded to Rajabari and apprehended the appellant there from. He further stated that he visited the place of occurrence and finding the dead body of the deceased, in the septic tank, recovered the same in presence of the Executive Magistrate. [22] On transfer of PW 8, PW 9 (Shri Mani Kanta Chamua), S. I. of police, while completing the remaining part of the investigation, collected the post-mortem report and submitted the charge sheet against the appellant. [23] Shri Rajen Gogoi (PW 10), Circle Officer, stated that, on 05.04.1997, he was present at the time of recovery of the dead body of the deceased and that the inquest report was prepared by him. [23] Shri Rajen Gogoi (PW 10), Circle Officer, stated that, on 05.04.1997, he was present at the time of recovery of the dead body of the deceased and that the inquest report was prepared by him. He exhibited the inquest report as Ext. 1. [24] Shri Dipak Khanikar, a constable of police, who deposed as PW 11 stated that he carried the dead body of the deceased for post-mortem examination. [25] CW Nos. 1, 2 and 3 (Shri Rajesh Kumdar Dey, Shri Raja Dey and Shri Rahul Dey, respectively) were the sons of the deceased. They did not state anything, incriminating, against the appellant. However, they stated that they were beaten up by the police. CW 2 stated that their father, some times, used to go on mufasil duty. [26] According to PW 8, the appellant had disclosed that she had used the crow bar to remove the septic tank for entering the dead body of her husband. PW 8 further stated that he had seized, vide Ext. 2, the handle of a spade, on being led by the appellant. He stated the appellant had told him that she used the same in killing her husband. He also stated that he seized the crow bar vide Ext. 3, on being produced by the appellant. [27] From the above discussed evidence it appears that, except recovery of the dead body of the deceased from the septic tank, situated behind the railway quarter, in which the said couple used to live, the seizure of the lathi (Ext. 2 i.e. the material Ext. No. 1), the crow bar (Ext. 3 i.e. the material Ext. 2), at the instance of the appellant, the leaving of the quarter by the appellant and her subsequent staying in the rented house, there is no other incriminating materials, against the appellant, indicating her involvement with the death of the deceased. The said evidence, adduced by the prosecution leads to the suspicion regarding involvement of the appellant. But, suspicion, how so ever high, cannot substitute substantive legal evidence, which is a must to hold a person guilty, in a criminal case. [28] From the evidence of PWs 1 and 4, it is found that, on earlier occasion also, during the absence of her husband, the appellant used to keep the key of the quarter in their shop. But, suspicion, how so ever high, cannot substitute substantive legal evidence, which is a must to hold a person guilty, in a criminal case. [28] From the evidence of PWs 1 and 4, it is found that, on earlier occasion also, during the absence of her husband, the appellant used to keep the key of the quarter in their shop. The said evidence, couple with the evidence of CW 2 indicates that the husband of the appellant, some times, used to keep away from their quarter, on official or some other duties. There is no evidence, on record, to show that, soon before leaving of the quarter by the appellant, the deceased was living with the appellant in the same quarter. Therefore, there is no substantive evidence to show that the deceased was last seen in the company of the appellant, immediately prior to his death. The last seen theory is applicable if the deceased is seen in the company of the accused person(s) soon before his death, completely excluding possibility of the victim being in the company or custody of some other person, prior to his death. To base the conviction on the last seen, it must be established that, none other than the accused person (s) was in the company of the deceased till the latter’s death. In the present case, it has not been proved that the deceased was in the company of the appellant, soon before his death. Hence, it is not safe to apply the theory of last seen together, in this case. Therefore, it cannot be concluded that, the appellant had killed her husband and concealed the dead body in the septic tank. [29] Though the investigating officer has seized the lathi (Ext. No. 2 i.e. the material Ext. No. 1) and the crow bar (Ext. No. 3 i.e. the material Ext. No. 2), there is no evidence to substantiate that those weapons were used in committing the offence charged against the appellant. According to the investigating officer (PW-8) the appellant had told him that she had used the said lathi in killing her husband and the crow bar in keeping the dead body of the deceased in the septic tank. This statement, alleged to be made by the appellant before the said Police Officer (PW-8), is hit by Section 25 of the Evidence Act. This statement, alleged to be made by the appellant before the said Police Officer (PW-8), is hit by Section 25 of the Evidence Act. [30] Under the provision of Section 26 of the Evidence Act, no confession made by the accused while in custody can be proved against him. The only exception to Section 26 is the provision prescribed by Section 27 of the Evidence Act, which relates to the fact deposed to the leading to the discovery. Therefore, though the fact leading to the discovery of the lathi and the crow bar i.e. the material Ext. Nos. 1 and 2, is admissible evidence, the statement that she had killed her husband with the said lathi and used the crow in keeping the dead body in the septic tank, is not admissible evidence. No forensic evidence has been adduced to establish that the said lathi was used in committing the crime. Therefore, the recovery of lathi and the crow bar, and the evidence of PW 8 cannot be accepted as substantive evidence to hold the appellant guilty of killing the deceased. [31] As revealed from the evidence of PW 8 (Investigating Officer), Smti Nanibala Dey, mother of the deceased had lodged a missing entry with the police, on 20.03.1997 and the dead body was recovered on 05.04.1997. PWs 1 and 4, who stated that the appellant had left the quarter, alongwith her belongings and children, keeping the key of the quarter in their shop, did not mention the date on which she had left the quarter. Therefore, her leaving the quarter, on a particular day, cannot be connected with the death of the deceased. [32] From the above stated facts and circumstances, though, suspicion regarding involvement of the appellant can be ruled out, such suspicion, cannot be substantive evidence for holding the appellant guilty of the alleged offence. Law is well settled that, in criminal trial, the prosecution is required to prove the case, beyond all reasonable doubt and the benefit of doubt should go in favour of the accused person. Hence, due to failure of the prosecution to discharge the said burden, the appellant is entitled to get the benefit. Law is well settled that, in criminal trial, the prosecution is required to prove the case, beyond all reasonable doubt and the benefit of doubt should go in favour of the accused person. Hence, due to failure of the prosecution to discharge the said burden, the appellant is entitled to get the benefit. [33] In the light of the above discussed evidence and considering entire aspect of the matter, we are of the opinion that the prosecution failed to establish, beyond all reasonable doubt, that the appellant had caused the death of her husband. Therefore, the impugned conviction and the sentence, recorded under Section 302 IPC, cannot be maintained. Accordingly, the appeal is allowed. The impugned conviction and the sentence are set aside. The appellant be set at liberty forthwith, if not required in any other case. [34] Return the LCRs. [35] We acknowledge with appreciation the assistance rendered by Ms. R.D. Mazumdar, learned counsel, as amicus curiae and direct that an amount of Rs. 5,000/- (Rupees five thousand) only be paid to the learned Amicus Curiae as her remuneration. _____________