JUDGMENT Iqbal Ahmed Ansari, J. 1. This is an appeal against the judgment and order, dated 04.02.2008, passed, in Sessions Case No. 67(T) of 2006, by the learned Addl. Sessions Judge No. 2 (FTC), Tinsukia, convicting the accused-appellant, Ram Chandra Nandalal, under Section 302 IPC and sentencing him to suffer imprisonment for life and pay fine of Rs. 2,000/- and, in default of payment of fine, suffer rigorous imprisonment for a period of 6 (six) months. The case of the prosecution, as unfolded at the trial, may, in brief, be described thus: (i) Deceased Nandalal Soma was father of Robi Orang alias Nandalal (P.W. 3) and also of accused Ram Chandra Nandalal. The said deceased used to live with his two sons and his wife. (ii) On 13.10.2003, when P.W. 3 returned home from duty, in the morning, he found his father, Nandalal Soma, lying dead inside the house with injuries on his body. Upon a query made by him, accused told his brother (P.W. 3) that he (accused) had assaulted and killed his father. (iii) P.W. 3, then, lodged a written Ejahar, on 13.10.2003, at Doom Dooma Police Station, alleging, inter-alia, that the accused had assaulted his father on the previous night (i.e., on 12.10.2003) with a sharp cutting weapon and killed him. (iv) Treating the said Ejahar as First Information Report (in short, 'FIR'), Doom Dooma Police Station Case No. 260/2003, under Section 302 IPC, was registered against the accused, Ram Chandra Nandalal. During investigation, inquest was held over the said dead body, which was also subjected to post-mortem examination. This apart, the police also seized a dao on being allegedly produced by the accused, the said dao being allegedly weapon of offence. On completion of investigation, the police laid charge-sheet, against the accused Ram Chandra Nandalal, under Sections 302 IPC. 2. At the trial, when a charge, under Section 302 IPC, was framed, the accused, Ram Chandra Nandalal, pleaded not guilty thereto. 3. In support of their case, prosecution examined altogether 7 (seven) witnesses. The accused was, then, examined under Section 313 Cr.P.C. 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 the defence being that of denial. No evidence was adduced by the defence. 4. 3. In support of their case, prosecution examined altogether 7 (seven) witnesses. The accused was, then, examined under Section 313 Cr.P.C. 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 the defence being that of denial. No evidence was adduced by the defence. 4. Having, however, 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, which was passed against him, the accused, Ram Chandra Nandalal, as a convicted person, has preferred this appeal. 5. We have heard Mr. M.B.U. Ahmed, learned amicus curiae, and Mr. K.A. Mazumdar, learned Additional Public Prosecutor, Assam. 6. While considering the present appeal, it is pertinent to note that there was, admittedly, no eye witness to the alleged occurrence of assault on Nandalal Soma by the accused-appellant, Ram Chandra Nandalal. There are, however, several incriminating circumstances, which appear against the accused-appellant. One of the incriminating circumstances was, as considered by the learned trial Court, the evidence of P.W. 3 (brother of the accused-appellant) to whom the accused-appellant had, allegedly, confessed to have caused his father's death. This apart, P.W. 3 was also a witness to the seizure of the dao, which was, allegedly, produced by the accused-appellant as a weapon of offence. Yet another important incriminating circumstance was the accused-appellant's judicial confession. 7. We express no opinion on the correctness and truthfulness of the evidence given by P.W. 1 and P.W. 3 and/or the evidence of the Investigating Officer as regards the seizure of the weapon. We also express no opinion, at this stage, on the value, if any, of the judicial confession. What we cannot ignore is that P.W. 3, brother of the accused-appellant, who gave evidence to the effect that the accused had confessed to him (P.W. 3) that he (accused) had killed their father, was examined as a witness, at the trial, on 29.08.2006, but his cross-examination was kept reserved. 8. We have minutely gone through the record of the case and we notice that P.W. 3 never appeared thereafter as a witness. 8. We have minutely gone through the record of the case and we notice that P.W. 3 never appeared thereafter as a witness. P.W. 3, thus, never faced cross-examination and when an effective opportunity had not been provided to the defence to cross-examine P.W. 3, his evidence could not have been accepted, or relied upon, by the learned trial Court. At the same time, to procure the presence of the witness, whose examination-in-chief had been recorded, was the responsibility of the learned trial Court and this responsibility was, surprisingly enough, as we notice, not properly discharged by the learned trial Court. 9. Situated thus, if we exclude P.W. 3's evidence from the purview of our consideration, it may prejudice the prosecution and cause serious miscarriage of the justice. At the same time, however, we cannot also ignore the fact that the occurrence took place in the month of October, 2003, and the trial of the case was delayed for some time due to the fact that the accused had absconded. 10. On considering the matter in its entirety, we are of the view that this case needs to be remanded to the learned trial Court for recalling and procuring the presence of P.W. 3 and, unless it is found by the learned trial Court that the presence of P.W. 3 cannot be procured, his cross-examination cannot be dispensed with. 11. Situated thus, we set aside the conviction of the accused-appellant and the sentence passed against him by the judgment and order, under appeal, and remand this case to the learned trial Court in order to recall and procure the presence of P.W. 3 for the purpose of his cross-examination unless procuring his presence is found to have become impossible and, if his presence is not procured, the evidence, given by him, in the examination-in-chief, shall be kept excluded and the decision has to be rendered on the basis of the remaining evidence on record. If, on the other hand, the presence of P.W. 3 is procured and he is allowed to be cross-examined by the defence, the learned trial Court shall, then, dispose of the case, in accordance with law, by taking into account the evidence of P.W. 3. 12. If, on the other hand, the presence of P.W. 3 is procured and he is allowed to be cross-examined by the defence, the learned trial Court shall, then, dispose of the case, in accordance with law, by taking into account the evidence of P.W. 3. 12. With the above observations and directions, the case is hereby remanded to the learned trial Court making it, however, clear that until trial is concluded in accordance with law, the accused-appellant shall remain in imprisonment and shall not be allowed to go on bail, because of the fact that he has absconded once. The learned trial Court shall expeditiously deal with the case and dispose of the same, in accordance with law, preferably, within a period of 3 (three) months from the date of receipt of the LCR. 13. Let the learned amicus curiae be paid a sum of Rs. 5,000/- for his valuable assistance rendered to the Court. 14. Send back the LCR along with a copy of this judgment and order. With the above observations and directions, this appeal stands disposed of. Disposed off