JUDGMENT AND ORDER : Paran Kumar Phukan, J. Under assailment in these two appeals is the judgment and order dated 29.04.2009 passed by the learned Sessions Judge, Jorhat in Sessions Case No. 81(JJ) of 2006 convicting the appellants under Section 302 read with Section 34 of the Indian Penal Code and sentencing them to imprisonment for life and to pay fine or Rs. 5,000/- each, in default SI for 2 (two) months. Initially, an appeal from jail was preferred and Ms. B. Choudhury was appointed as Amicus Curiae. Subsequently, an appeal also come to be filed through Ms. R.B. Bora as a Legal Aid Counsel. 2. On the FIR dated 25.02.2004 filed by the informant Smt. Aaiti Kalita with the O.C., Teok Police Station alleging involvement of the appellants in the commission of murder of her husband and son while they were ploughing over their land situated at Jajhimukh, Kumar Gaon, a case under Section 302/34 of the Indian Penal Code was registered and after completion of investigation charge sheet was submitted against the appellants under the said Sections. 3. To prove the charge, the prosecution examined as many as 20 witnesses during the trial which commenced before the learned Sessions Judge, Jorhat after committal. In their defence statements, the accused appellants denied having committed the crime and according to them, they saw the injured persons lying in the field and took them to hospital for treatment. The learned Sessions Judge, relying on the evidence on record convicted the accused appellants under Section 302 read with Section 34 of the Indian Penal Code and sentenced them accordingly as stated above. 4. Heard Ms. B. Choudhury, learned Amicus Curiae as well as Ms. R.B. Bora, learned Legal Aid Counsel appearing for the appellants and Ms. S. Jahan, learned Additional Public Prosecutor, Assam. 5. The factum of death of the deceased due to injuries sustained by them has not been disputed. Before going to the other aspects of the case it is essential to determine the actual cause of death of the deceased Khudeo Kalita and Prafulla Kalita and for that purpose we have to go through the evidence of the two doctors who conducted autopsy on the dead bodies. 6. P.W. 2 Dr. Anirudha Gogoi conducted autopsy on the dead body of Khudeo Kalita and on examination he found the following injuries : Wounds, Position, Size & Character 1. 6. P.W. 2 Dr. Anirudha Gogoi conducted autopsy on the dead body of Khudeo Kalita and on examination he found the following injuries : Wounds, Position, Size & Character 1. Incised wound over right parietal region measuring 2" x ½" x 1". 2. Incised wound over right ear measuring 1"x ¼" x ¼" 3. Abrasion over left forearm measuring 2" x 1" 4. Abrasion over left side of back measuring 2" x 2" 5. Abrasion over right cheek below right eye measuring 1" x 1". Scalp, Skull And Vertebrae Scalp congested with haematoma in between scalp and skull bone measuring 2" x 2". Membrane Congested subdural haematoma fracture with about 100ml of blood present. Brain & Spinal Cord Brain congested. Intra-cerebral haematoma with about 100 ml of blood present. All the other organs are healthy. More Detailed Description of Injury Or Disease All the injuries described under column of external appearance are ante-mortem in nature. Injury No-1 which corresponds with fracture right parietal bone along with subdural haematoma and intra-cerebral are grievous in nature. Injury No-1 is caused by sharp weapon. Injury No-2, 3, 4 & 5 are simple in nature and caused by blunt object. 7. According to the doctor the cause of death was due to coma as a result of injuries sustained by the deceased. The injuries were ante mortem in nature and the injury No. 1 over the right parietal bone was caused by sharp cutting weapon which is sufficient to cause death. According to the doctor timely treatment probably could have saved the life of the person. 8. P.W. 3 Dr. Dulal Bora conducted autopsy on the dead body of Prafulla Kalita and found the following injuries : "Wounds, Position, Size & Character Absent. Except cut injury on scalp. Scalp, Skull And Vertebrae Sharp cut injury over left tempero-parietal scalp measuring 11 cm x 2.5 cm fracture with involvement of underlying cranium. Commuted fracture of the left tempero-parietal region of the skull and massive extra-dural haemorrhage. Membrane Lacerated over the left tempero-parietal region with massive extra-dural and sub-dural haematoma. More Detailed Description of Injury Or Disease Sharp cut injury over left tempero parietal region. Commuted fracture of the underlying cranium with massive extra-dural and sub-dural haemorrhage in the involved part. The injury is ante-mortem in nature." 9. Membrane Lacerated over the left tempero-parietal region with massive extra-dural and sub-dural haematoma. More Detailed Description of Injury Or Disease Sharp cut injury over left tempero parietal region. Commuted fracture of the underlying cranium with massive extra-dural and sub-dural haemorrhage in the involved part. The injury is ante-mortem in nature." 9. The doctor opined that the death of the deceased was due to coma as a result of massive extra-dural haemorrhage. The injury over left tempero parietal region was caused by sharp cutting weapon sufficient to cause instantaneous death and this injury caused extensive or massive extra-dural haemorrhage. The doctor opined that the injuries were ante mortem in nature. The doctors proved the post mortem reports Exts. 1 & 2 and the evidence of the doctors coupled with the autopsy reports established that both the deceased persons died due to injuries sustained by them which were caused by blunt as well as sharp weapon. 10. The learned Amicus Curiae and the Legal Aid Counsel, canvassing innocence of the accused appellants, submit that the learned Sessions Judge has committed manifest error by convicting the accused appellants on the basis of the evidence of the witnesses who completely resiled from their earlier version given before police and consequently, declared hostile by the prosecution. The circumstance of "last seen together" has been amply explained by the appellants and there is no dispute that they had hospitalized the injured persons for treatment. 11. Controverting the submissions, Ms. S. Jahan, learned Additional Public Prosecutor has submitted that the evidence of a hostile witness cannot be treated as washed off the record and there is no legal bar on relying upon such testimony if corroborated by other reliable evidence. It is further submitted that the evidence of P.W. 1 Aaiti Kalita coupled with the evidence of P.W. 14 Prafulla Kalita which is corroborated by the evidence of other witnesses established beyond doubt that the accused appellants were the perpetrators of the crime and they committed the murder of the husband and the son of the informant. 12. It is further submitted that the evidence of P.W. 1 Aaiti Kalita coupled with the evidence of P.W. 14 Prafulla Kalita which is corroborated by the evidence of other witnesses established beyond doubt that the accused appellants were the perpetrators of the crime and they committed the murder of the husband and the son of the informant. 12. In the backdrop of the aforesaid contentions, while focusing our attention to the evidence of the prosecution witnesses, we have found, to our utter dismay, that out of the twenty witnesses examined by the prosecution, eleven have been declared hostile by the prosecution, as they completely resiled from their earlier version given before police, and categorically denied having seen the occurrence. 13. Now the pertinent question is who caused the injuries to the deceased which resulted in their death. P.W. 1 Aaiti Kalita admittedly arrived at the spot soon after the occurrence and she saw the appellants trying to take way her son and also saw her husband lying in an injured condition over his land. In her evidence, apart from the accused appellants, she also implicated Akman Kalita, Konbap Kalita, Bapkali, Chenimai Kalita, Biakhati Kalita, Sarumai Kalita and Annamai Kalita, all family members and relatives of the appellants. But in her FIR which was lodged soon after the occurrence she has named only the accused appellants as the assailants of her husband and son and her FIR is totally silent regarding the presence of the other persons whom she has named in her evidence in court. No explanation has been offered by P.W. 1 for not mentioning the names of other persons in the FIR which was lodged soon after the occurrence which casts doubt regarding her veracity. 14. The witness who claims to have seen the occurrence is P.W. 14 Prafulla Kalita who is the brother-in-law of the deceased Khudeo Kalita. He claims to have seen the accused appellants assaulting Khudeo and Prafulla and he also saw Prafulla being taken away by the appellants. 14. The witness who claims to have seen the occurrence is P.W. 14 Prafulla Kalita who is the brother-in-law of the deceased Khudeo Kalita. He claims to have seen the accused appellants assaulting Khudeo and Prafulla and he also saw Prafulla being taken away by the appellants. P.W. 14 used to collect milk for selling in the market and for that purpose on the morning of 25/02/2004 he went towards No. 1 Kawaimari and his positive evidence is that no occurrence took place at Kumar Goan which is at a distance of about 2/3 kms away from No. 1 Kawaimari whereas P.W. 1, the informant stated in the FIR that the occurrence took place at Jajhimukh Kumar Gaon and in her evidence also she affirmed that it took place at Kumar Gaon. The sketch map prepared by the Investigating Officer is silent in this regard and although the place of occurrence has been shown in the sketch map but it cannot be ascertained whether it falls in Kumar Gaon or No. 1 Kawaimari village which casts a serious doubt regarding the testimony of P.W. 14 that he saw the accused appellants assaulting the deceased persons. 15. Ms. S. Jahan, learned Additional Public Prosecutor contended that though majority of the witnesses had turned hostile, yet their evidence cannot be totally discarded and can be relied upon by the prosecution as well as by the defence. 16. The law relating to hostile witness is well settled. In Rameshbhai Mohanbhai & Ors. v. State of Gujarat (2011) 11 SCC 111 , the Apex Court reiterating the principle has stated thus : "It is settled legal proposition that the evidence of a prosecution witness cannot be rejected in to merely because the prosecution chose to treat him as hostile and cross examine him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. (vide Bhagwan Singh v. The State of Haryana , AIR 1976 SC 202 ; Rabindra Kumar Dey v. State of Orissa, AIR 1977 SC 170 ; Syad 10 Akbar v. State of Karnataka, AIR 1979 SC 1848 and Khujji @ Surendra Tiwari v. State of Madhya Pradesh, AIR 1991 SC 1853 ). (vide Bhagwan Singh v. The State of Haryana , AIR 1976 SC 202 ; Rabindra Kumar Dey v. State of Orissa, AIR 1977 SC 170 ; Syad 10 Akbar v. State of Karnataka, AIR 1979 SC 1848 and Khujji @ Surendra Tiwari v. State of Madhya Pradesh, AIR 1991 SC 1853 ). (9) In State of U.P. v. Ramesh Prasad Misra and Anr., AIR 1996 SC 2766 , this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra, (2002) 7 SCC 543 ; Gagan Kanojia and Anr. v. State of Punjab, (2006) 13 SCC 516; Radha Mohan Singh @ Lal Saheb and Ors. v. State of U.P., AIR 2006 SC 951 ; Sarvesh Naraian Shukla v. Daroga Singh and Ors., AIR 2008 SC 320 and Subbu Singh v. State, (2009) 6 SCC 462 . In the case of Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1 , while discussing about the evidence of a witness who turned hostile, the Bench observed that his evidence to the effect of the presence of accused at the scene of the offence was acceptable and the prosecution could definitely rely upon the same." 17. Applying the above principles to the facts of the present case what we have found is that P.W.4 Nagen Kalita, P.W.5 Sri Fatik Kalita, P.W.6 Jyotimai Das are totally unreliable as they completely resiled from their earlier statement given before police. 18. P.W.7 Anamai Kalita and P.W.8 Chhabi Lal Kalita, although declared hostile, to some extent they supported the prosecution. P.W.7 Anamai Kalita is the close door neighbour of the appellants with a common courtyard. She saw the deceased Prafulla being brought to the house of the appellants and he was made to sit in the courtyard and she saw injuries on his person with profuse bleeding from his head injury. The appellant Baba Kalita and others made him to sit in the courtyard, but Prafulla was unable to respond. She saw the deceased Prafulla being brought to the house of the appellants and he was made to sit in the courtyard and she saw injuries on his person with profuse bleeding from his head injury. The appellant Baba Kalita and others made him to sit in the courtyard, but Prafulla was unable to respond. It was sought to be proved by the prosecution through this witness that the deceased was brought to the house of the appellants after the occurrence, which is a strong circumstance appearing against the appellants. Despite this witness being declared hostile, that part of the evidence supporting the prosecution can not be discarded. 19. Similarly evidence of P.W.8 Chhabi Lal Kalita reveals that while he was returning home after selling fish, he heard P.W. 1 Aaiti Kalita shouting that her husband was lying there and immediately proceeded to the spot and saw Khudeo lying in an injured state. He supports the evidence of P.W. 1 that he was left there by her to guard her husband. His evidence also shows that at that moment the appellant Bipul Kalita arrived there and seeing the condition of Khudeo both of them took him to hospital. P.W.8 had not seen the accused appellants assaulting the deceased persons but his evidence partly supports the version of P.W.1 that she was in the spot just after the occurrence and on seeing her husband lying in an injured state, she asked P.W. 8 who arrived there to guard her husband and left for the police station to lodge the FIR. Evidence of P.W.8 Chhabi Lal Kalita also goes to show that Khudow was taken to hospital by him and appellant Bipul Kalita. 20. P.W.9 Prafulla Das, P.W.10 Babula Das and P.W.11 Bapuram Das could not say anything regarding the occurrence except the fact that they have heard that there was quarrel and two persons had died. P.W.12 Akaman Kalita knew about the incident and he simply put his signature in Ext. 3 but he is totally silent regarding the contents of Ext. 3. 21. P.W.13 Sishu Ram Kalita claims to have gone to the hospital after hearing that the injured persons were admitted in the hospital. P.W.12 Akaman Kalita knew about the incident and he simply put his signature in Ext. 3 but he is totally silent regarding the contents of Ext. 3. 21. P.W.13 Sishu Ram Kalita claims to have gone to the hospital after hearing that the injured persons were admitted in the hospital. According to him, when he visited the hospital he found them unconscious and he even did not ask anybody as to how they have died although he claims to have stayed with Khudeo in Jorhat Civil Hospital for about six days. The post mortem was conducted in his presence and he also put his signature in Ext. 4, post mortem report. The trial court had noticed his demeanour and reflected the same while recording the evidence. 22. P.W.15 Babu Dutta apart from proving Ext. 3 could not say anything regarding the occurrence and he has also been declared hostile by the prosecution. PW 16, Arun Borah also could not say anything regarding the occurrence except admitting his signature in Ext. 3. P.W.17, Golap Kalita is another witness turning hostile who could not say anything regarding the occurrence and his demeanour had also been noticed by the learned trial court. 23. P.W.18 Prafulla Kr. Das was the O.C. of Teok Police Station on the date of occurrence and he admitted having received the FIR from Aaiti Kalita (P.W. 1) and he registered the case against the appellants and entrusted the investigation to Sub-Inspector of Police, Sri Sidanando Saikia. He has not conducted any investigation apart from registering the case. 24. P.W.19 Golap Baruah is the scribe who wrote the FIR as per the instruction of PW 1, Aaiti Kalita and he proved the same as Ext. 5. P.W. 20, Sidanando Saikia is the Investigating Officer. His evidence is that before his arrival at the place of occurrence the injured persons were taken to Jajimukh hospital and on arrival at Jajimukh PHC he found that Prafulla Kalita had already died and Khudeo was lying in an injured state and was incapable of giving any statement. He got the inquest on the dead body of Prafulla Kalita done by Circle Officer Mukti Nath Doley and he put his signature in the inquest report (Ext. 3). Ext. 4 is the inquest report of other deceased Khudeo Kalita which was done by Circle Officer Dhiren Hazarika. He got the inquest on the dead body of Prafulla Kalita done by Circle Officer Mukti Nath Doley and he put his signature in the inquest report (Ext. 3). Ext. 4 is the inquest report of other deceased Khudeo Kalita which was done by Circle Officer Dhiren Hazarika. During investigation he seized two bamboo lathis, one Khukuri with bamboo handle, one hoe with bamboo handle and a gamocha with red border from the appellant Gagen Kalita vide Ext. 6. He proved the contradictions made by the witnesses whose statements he recorded under Section 161 of the Cr.P.C. He also admitted that the materials were seized at village Kawaimari and the incident took place in a remote village. The materials seized are available in every households and has been seized from the place of occurrence. 25. The trial court relied on the "last seen together" circumstance appearing against the appellants in the evidence of P.W. 1. Undoubtedly, last seen theory is the important link in chain of circumstances that would point towards the guilt of the accused with some certainty. The circumstance of "last seen together", if proved by the prosecution, then the burden of proof shift to the accused and he has to offer a reasonable explanation as to the cause of death of the deceased. It is well settled by the Apex Court that it is not prudent to base conviction solely on "last seen theory" and the theory should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen. 26. The Apex Court in the State of Rajasthan v. Kashi Ram held as under : "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. 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. It lays down the rule that when the accused does not throw any light upon 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. The principle has been succinctly stated in Re : Naina Mohd. AIR 1960 Madras, 218." 27. Keeping in view the above observations of the Apex Court it is to be seen whether in the facts and circumstances of this case the said theory can be applied to sustain the conviction of the appellants. The evidence of P.W. 1 clearly shows that she saw the accused appellants taking her deceased son Prafulla towards their house which has also not been disputed. Her evidence also finds support from the evidence of P.W. 7 Anamai Kalita who claims to have seen the deceased Prafulla in the courtyard of the appellants in an injured condition. From the evidence discussed above there is no doubt that the appellants were last seen together with the deceased and they were trying to take the deceased son of the informant to their house. The explanation offered by the appellants is that they saw Prafulla lying injured and took him to their house and subsequently, admitted him in the hospital. The evidence of P.W. 8 Chhabi Lal Kalita reveals that he and appellant Bipul Kalita took the injured Khudeo to the hospital after the informant left the place keeping him to guard her husband. The explanation offered by the appellants is that they saw Prafulla lying injured and took him to their house and subsequently, admitted him in the hospital. The evidence of P.W. 8 Chhabi Lal Kalita reveals that he and appellant Bipul Kalita took the injured Khudeo to the hospital after the informant left the place keeping him to guard her husband. Before the arrival of police both the injured persons were shifted to hospital and it appears that it was the appellant Bipul Kalita who took the injured persons to hospital. 28. The explanation offered by the appellants appears to be plausible and a cogent one. Except the appellants none claims that they admitted the injured in the hospital and there is evidence of P.W. 8, Chhabi Lal Kalita that he and the appellant Baba Kalita took the injured Khudeo to hospital and in our considered view even though no evidence has been adduced by the defence to prove the hospitalization of the injured persons but from the evidence on record the explanation offered by the appellants is found to be plausible one. Having considered the explanation offered, we are of the considered view that finding of guilt of the appellants with the aid of "last seen theory" in the present facts and circumstances of the case would be too hazardous and consequently the theory of "last seen together" could not be of any assistance to the case of the prosecution. In the light of the above mentioned circumstances and the explanation offered, we are unable to sustain the view that on the theory of "last seen together" the appellants can be convicted. 29. In the instant case none of the witnesses saw the accused appellants assaulting the deceased. P.W. 1, who was the first person to arrive at the spot, saw the accused appellants taking away her son towards their house but explanation has been provided by the accused appellants and they have stated that they have taken him to hospital seeing his injuries. Prosecution also could not attribute any motive for the appellants to commit the crime and it appears that both the deceased persons and the appellants are close relatives and there was no reason for them to assault the deceased. Prosecution also could not attribute any motive for the appellants to commit the crime and it appears that both the deceased persons and the appellants are close relatives and there was no reason for them to assault the deceased. Majority of the witnesses turned hostile and consequently, found to be totally unreliable and the evidence of the hostile witnesses only proved that Khudeo and his son Prafulla died due to some assault. 30. Having considered the evidence on record in its entirety, we are constrained to hold that the prosecution has not been able to prove the case against the appellants beyond all reasonable doubt and they are entitled to be acquitted. 31. Resultantly, the appeals are allowed. 32. The judgment dated 29.04.2009 passed by the learned Addl. Sessions Judge, Jorhat in Sessions Case No. 81(JJ) of 2006 convicting the appellants under Section 302/34 of the Indian Penal Code is hereby set aside. The accused appellants be set at liberty forthwith. 33. The learned Legal Aid Counsel and the learned Amicus Curiae will be entitled to a fee of Rs. 7,500/- each for their assistance. 34. Send down the LCR.