JUDGMENT Dr. B.R. Sarangi, J. This appeal is directed against the judgment and order dated 27.02.2001 passed by the learned Addl. Sessions Judge, Jharsuguda in S.T. Case No. 283/25 of 2000 convicting the appellant of the offence under Section 302/34 IPC and sentencing him to undergo imprisonment for life. 2. The appeal was admitted on 30.04.2001 and Misc. Case No.157 of 2001, which was filed for grant of bail, was considered and by order dated 26.03.2002, the same was dismissed as not pressed. Thereafter, in Misc. Case No.162 of 2003, this Court considering the circumstances of the case, allowed the bail application and directed that during pendency of the appeal, the sentence passed against the appellant by the learned Addl. Sessions Judge, Jharsuguda in S.T.Case No. 283/25 of 2000 shall remain suspended and he shall be released on bail of Rs.10,000/- with two sureties each for the like amount to the satisfaction of the trial court and accordingly disposed of the said Misc. Case. After the appellant was released on bail on 22.07.2004, the appeal was posted to 07.08.2013 for hearing but none appeared for the appellant. Therefore, this Court by order dated 07.08.2013 was constrained to direct to cancel the bail and apprehend the appellant for hearing of the appeal and directed to put up this matter on 14.08.2013. When the matter was taken up on 14.08.2013, none appeared for the appellant. Therefore, finding no way out, this Court taking into account the LCR and the contentions raised in the appeal memo, took up this matter for final disposal. 3. The prosecution case, in short, is that on 15.09.1996 at about 9 P.M. deceased-Bhismadev Biswal, the son of the informant Bideshi Biswal (P.W.4) left the house for decorating “GANESH PUJA” Pendal. On the next day around 5.30 A.M., P.W.4 got information from Gopal Kadia (P.W.7), a grocery shop keeper, that the deceased had been killed by some persons and his dead body was lying in the play ground of Manamohan School. On receipt of the said information, P.Ws.4 & 7 proceeded to the spot and found the deceased lying dead. They also found that the deceased had one gunshot injury on his head and one bullet was lying there. P.W.4 lodged the information in writing before the OIC, Jharsuguda Police Station vide Ext.3 suspecting that the deceased was murdered. On receipt of the said information, P.Ws.4 & 7 proceeded to the spot and found the deceased lying dead. They also found that the deceased had one gunshot injury on his head and one bullet was lying there. P.W.4 lodged the information in writing before the OIC, Jharsuguda Police Station vide Ext.3 suspecting that the deceased was murdered. On receipt of the said information (Ext.3), the police took up investigation and on completion of investigation getting prima facie materials against the present appellant and another accused Afroz Ahammed, filed the charge-sheet. Since accused Afroz Ahammed absconded and his attendance could not be procured, the case of the present appellant was split up and the same was committed to the court of Session for trial. 4. The accused-appellant took the plea of innocence and denied the alleged occurrence and has stated that the case has been falsely foisted against him. 5. In order to bring home the charge, the prosecution examined 11 witnesses, out of which P.W.4 is the informant, P.W.10 is the doctor, who conducted autopsy over the dead body of the deceased, P.W.11 is the I.O., P.W.8 is an eye witness to the occurrence, P.W.5 is another independent witness for the prosecution, who deposed that on the night of the occurrence the present appellant along with other accused Afroz Ahammed and deceased had come to his betel shop with liquor and had taken betel from his shop. P.W.1 is a seizure witness, P.W.2 is another witness, who speaks about the lying of the dead body of the deceased in the field of Manamohan School, P.W.3 is the mother of the deceased, P.W.6 is another witness for the prosecution who speaks that the accused persons along with the deceased had come to his egg shop on the night of occurrence, P.W.7 is the witness who informed the father of the deceased about the dead body of the deceased lying in the field of Manamohan School and P.W.9 is the Havildar, who had escorted the dead body of the deceased for post mortem examination to the District Headquarter Hospital, Jharsuguda. Prosecution has relied upon the documents which were marked as Exts.1 to 12. On the other hand, the appellant declined to examine any witness in his defence and has not filed any document denying the allegation. 6. The learned Addl. Prosecution has relied upon the documents which were marked as Exts.1 to 12. On the other hand, the appellant declined to examine any witness in his defence and has not filed any document denying the allegation. 6. The learned Addl. Sessions Judge, Jharsuguda after going through the evidence available on record and on thorough analysis of evidence, both oral and documentary, was convinced that the prosecution could be able to establish the guilt of the accused-appellant beyond all reasonable doubt. 7. Mr. Zafarullah, learned Additional Standing Counsel states that the deceased had received gunshot injury, which is a fatal blow and the appellant facilitated the other accused, namely, Afroz Ahammed, who gave the fatal blow and made no effort to prevent him from assaulting the deceased, thereby it leads to an irresistible and inescapable conclusion that the appellant shared the common intention with accused Afroz Ahammed to kill the deceased. Therefore, he is liable to be convicted under Section 302/34 IPC. In support of his contentions, he relies upon the cases of Goudappa & Ors. V. State of Karnataka, (2013) 55 OCR (SC)-116 and Ramswaroop and another V. State of Madhya Pradesh, (2013) 55 OCR (SC)-123. He also states that the conviction should be affirmed in the circumstances and no lesser punishment can be imposed as the offence committed by the appellant is grievous in nature. 8. To bring home the charge under Section 302/34 IPC and convict the appellant by imposing punishment of imprisonment for life, learned Addl. Sessions Judge relied upon the evidence of P.W.5, an independent witness, who deposed that on the night of occurrence the appellant along with the deceased and other accused Afroz Ahammed had come to his betel shop with liquor and had taken betel from his shop and the evidence of P.W.8, an eye witness to the occurrence, who stated that on the night of occurrence he along with the deceased, the appellant and accused Afroz Ahammed had proceeded together and the deceased had taken betel from the shop of P.W.5 and moved to Manamohan School field. In that field the deceased, accused Afroz Ahammed and the present appellant sat together and he sat at a little distance from them. He also deposed that the deceased, accused Afroz Ahammed and the appellant consumed liquor and talked among themselves. In that field the deceased, accused Afroz Ahammed and the present appellant sat together and he sat at a little distance from them. He also deposed that the deceased, accused Afroz Ahammed and the appellant consumed liquor and talked among themselves. In course of talking a hitch ensued between accused Afroz Ahammed and the deceased and they fought with each other. While the deceased was escaping, the appellant caught hold of his hands and thereafter accused Afroz Ahammed brought out a revolver from his pant pocket and fired at the head of the deceased for which he fell down dead. This evidence of P.W.8 remained unshaken in the cross-examination. So far the conduct of P.W.8 is concerned after having escaped from the spot he could have brought this fact to the notice of any person to whom he could take into confidence or he could have intimated P.W.4 or any of the family members about the incident or he could disclose the same before the police immediately after the occurrence. He was examined almost three months after the occurrence as stated by the I.O., i.e., on 25.12.1996. No plausible explanation for such belated examination has been given. Evidence of P.W.8 is that out of fear he had not disclosed the fact and confined himself in his house as the accused persons had chased and targeted him to assault for the reason that he had seen the entire occurrence, i.e. killing of the deceased by the accused persons. But with regard to the delay in examination of P.W.8, the I.O. (P.W.11) has stated that while secretly collecting information about the case, he got information from one Lalan Yadav, who was examined by him on 25.12.1996 that P.W.8 had accompanied the deceased and the accused persons to Manamohan M.E. School field in the night of 15.09.1996 and prior to that no such information was available with him regarding the same. In paragraph 7 of his cross-examination, it was elicited from P.W.8 that after the arrest of the appellant by the Police, the fear from his mind was wiped out and thereafter he gathered courage to disclose the matter before the police. This could only happen on 25.12.1996 while the occurrence took place on 15.09.1996, which is more than three months after such occurrence. This could only happen on 25.12.1996 while the occurrence took place on 15.09.1996, which is more than three months after such occurrence. This conduct of P.W.8 creates a doubt why he took such a long time to disclose the fact of commission of offence by the appellant either before the parents of the deceased or the police or any other person nearer to him. But the learned Addl. Sessions Judge, Jharsuguda has given his explanation justifying the conduct of P.W.8 stating that he is a man of outside the state as he belongs to the State of Chhatisgarh. It is quite natural that when such ghastly occurrence had taken place in his presence, he may be targeted by the accused persons thereby would not have dared to disclose the incident before others including the police. From the evidence of P.W.11, it is clear that police arrested the appellant on 27.12.1996 and recorded his statement under Section 164 Cr.P.C. and forwarded to the Court on 28.12.1996 at 1.30 P.M. The conduct of P.W.8, the only eye-witness to the occurrence, is doubtful and not that much trustworthy to consider for imposition of major penalty. In cross-examination, P.W.8 specifically stated that 4-5 months after the occurrence, the police picked him up from his house to the Police Station and kept him there and during that period Police searched for the appellant and accused Afroz Ahammed. But his further evidence is that police instructed him to tell the fact before the Magistrate which he had seen and on that basis the Magistrate recorded his statement under Section 164 Cr.P.C. which is not in terms of the said provisions as he has deposed on the instruction of police. Learned Addl. Sessions Judge, Jharsuguda has taken presumptive assumption and believed the statement of P.W.8. Therefore, the evidence of P.W.8, the so-called eye witness is not trustworthy, accordingly the same is discarded. 9. P.W.5 has specifically stated in his evidence that on the night of occurrence, the deceased, the appellant and accused Afroz Ahammed had come to his betel shop with liquor and the deceased had taken betel from him. The deceased had also taken three Wills Flake Cigarettes in his pocket. While the deceased taking betel and cigarette had told him not to close the shop till his return. The deceased had also taken three Wills Flake Cigarettes in his pocket. While the deceased taking betel and cigarette had told him not to close the shop till his return. He further stated that he along with Buti, Bikram Panda and one Chiyan were in his betel shop and around 11.30 to 12 mid night he heard the firing sound of a bullet from the field of Manamohan M.E. School. It thus appears from the evidence of P.W.5 that the deceased was seen in the company of the appellant and accused Afroz Ahammed on the night of occurrence and that he heard the firing sound of bullet which came from Manamohan M.E. School side around 11.30 to 12 mid night. This evidence of P.W.5 is a strong piece of circumstantial evidence coupled with the fact that the accused was last seen together with the deceased. On scrutiny of the evidence of P.W.5, it is found that around 11.30 to 12 mid night, he heard that a firing sound of bullet came from the field of Manamohan M.E. School and by that time he had kept his betel shop open and thereafter closed the same between 12 to 12.30 A.M. in the night. But till he closed the betel shop, the deceased did not return and on the next day morning he got the news that the deceased was lying dead in the Manamohan M.E. School field. In cross-examination, he specifically admitted that police had come and examined him in the case on the next day morning of the incident. The police also asked him as to when accused Afroz Ahammed, the appellant and the deceased had come to his betel shop. The police had examined him thrice, i.e. for the first time on the next day of the incident, then 3-4 days after the occurrence, and then 11-12 days thereafter in order to ascertain whether the accused Afroz Ahammed, the appellant and the deceased had come to his betel shop. It is further stated by him that the appellant had come to his betel shop along with accused Afroz Ahammed carrying liquor with them and also they proceeded to Jhanda Chowk. Thereafter, he heard about firing shot sound between 11.30 to 12 midnight. It is further stated by him that the appellant had come to his betel shop along with accused Afroz Ahammed carrying liquor with them and also they proceeded to Jhanda Chowk. Thereafter, he heard about firing shot sound between 11.30 to 12 midnight. This being the evidence available on record and P.W.5 being a witness to the last seen together and he having been examined on the next day morning of the occurrence, his evidence cannot be discarded. Thus, his evidence has got a corroborative value in view of the fact that subsequently 3-4 months after the occurrence P.W.8 the only eye witness was examined by the Police. He also narrated the same way as P.W.5 has stated. Even if the conduct of P.W.8 is doubted being an eye-witness to the occurrence but evidence of P.W.5 is unimpeachable in view of the fact that police on the next day morning examined him, who candidly stated that the appellant along with the deceased and accused Afroz Ahammed had been to his betel shop, where he had seen them together. At this juncture, it is necessary to refer to the decision of the apex Court in Chattar Singh and another V. State of Haryana, (2008) 14 SCC 667 in which the apex Court observed as follows: “18. So far as the last-seen aspect is concerned it is necessary to take note of two decisions of this Court. In State of U.P. v. Satish (2005) 3 SCC 114 , it was noted as follows: (SCC p. 123, para 22) “22. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when 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. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW 2.” 19. In Ramreddy Rajesh Khanna Reddy v. State of A.P. (2006) 10 SCC 172 , it was noted as follows: (SCC p. 181, para 27) “27. The last-seen theory, furthermore, 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. Even in such a case the courts should look for some corroboration.” (See also Bodhraj v. State of J&K, (2002) 8 SCC 45 ) 10. In the case in hand, it is the admitted fact that the deceased had met a homicidal death because of a bullet fired at his head. There is no dispute that it was a gunshot injury. P.W.10 who had conducted autopsy over the dead body of the deceased on 16.09.1996 found as follows: 11. (i) one entrance wound on right tempro parietal region about 6 cms. Above lateral part of eye brow. Margins of the wound were irregular and the length was 5 cms. X 4 cms. He found singeing of hairs and tattooing of the skin especially over the front and lower aspect of the wound. (ii) He found one exit wound near left pepterion on the left side about 4 cms. Above upper border of left pina of 6 cms. X3 cms. Margins were irregular and skin margins evarted, no seging of hairs or tattooing of other phenomenan. Subcutaneous tissue extravassted with blood and clotted and not washable with water. (iii) He found one flap of scalp and skull and dur a from upper border of entrance wound to a point about 2.5 cms. above the exit wound and extending posteriorily upto occiput and hanging there by a flap of skull. Margins and tissue were abulsed and lacerated, fracture extended from left side up to the maxilla on interior fossa. The dimension of the flap was 17 cms. X 14 cms. above the exit wound and extending posteriorily upto occiput and hanging there by a flap of skull. Margins and tissue were abulsed and lacerated, fracture extended from left side up to the maxilla on interior fossa. The dimension of the flap was 17 cms. X 14 cms. (iv) The track extended straight from entrance wound to exit wound surrounding brain abulsed and grossly lacerated and especially over right and left tempro parietal lones. The entire part of frontal lobe was intact and visible. The optic chiasma was intact and exposed. The white matter of brain over lacerated part was exposed. P.W.10 opined that the injuries were ante-mortem in nature and death had been caused by injuries to the vital organ like brain resulting shock and hemorrhage and all the injuries are consistently fire arm injuries and were sufficient to cause death in ordinary course of nature. He has proved the post-mortem report marked as Ext.7. The death of the deceased was due to gunshot injury on the head is consistent. P.W.1 was a witness to the seizure of blood-stained earth and sample earth and P.W.2 is the peon of Manamohan M.E. School, who reported about the lying of a dead body in the school field. P.Ws.3 and 4, who are the parents of the deceased do not say anything about the occurrence and they were the post occurrence witnesses. On the basis of the information lodged by P.W.4, the investigation was taken up. Similarly, P.W.6 is a witness, who simply deposed that the dead body of the deceased was lying in Manamohan M.E. School field. But subsequently, he was declared hostile. 12. On the basis of the materials available on record, even if the evidence of P.W.8, who is so called eye witness to the occurrence, is discarded because of his conduct, relying on the evidence of P.W.5, who stated about the fact of last seen together, and applying decisions of the apex Court referred to supra and other corroborative evidence, we are of the opinion that the prosecution has successfully established its case against the appellant for commission of offence under Section 302/34 IPC beyond any reasonable doubt. 13. We are in full agreement with the sentence imposed by the learned Addl. Sessions Judge, Jharsuguda and there is no good ground to interfere with the same since the appellant has committed an offence punishable under Section 302/34 I.P.C. 14. 13. We are in full agreement with the sentence imposed by the learned Addl. Sessions Judge, Jharsuguda and there is no good ground to interfere with the same since the appellant has committed an offence punishable under Section 302/34 I.P.C. 14. Having regard to the above, we do not find any merits in the appeal. Accordingly, we confirm the conviction of the appellant under Section 302/34 I.P.C. and sentence imposed thereunder. Consequently, the appeal fails and the same is dismissed. The bail bond stands cancelled. The appellants be apprehended to serve out the remaining period of sentence.