JUDGMENT : Achintya Malla Bujor Barua, J. 1. Heard Mr. L.R. Mazumder, learned counsel for the appellant. Also heard Ms. S Jahan, learned Additional Public Prosecutor, Assam. 2. An ejahar was lodged on 11.11.2013, by Md. Abdul Hussain Barbhuiya before the Officer-in-Charge of Kachudaram police station stating that on 10.11.2013, at about 5.00 PM when his son Sahanur Alom Barbhuiya, aged about 14 years, went to a shop in the village on his bicycle to buy some chana, he did not return for about one and half hours. Accordingly, the informant went searching for him but could not find him in front of the shop. Upon being asked amongst the relatives and friends, nobody could provide any information. He further stated that on 11.11.2013 at about 1.00 pm, upon seeing some blood stains in the paddy field after being informed by some persons, the informant went to the place of occurrence and a suspicion arose that the accused had killed his son and kept the body hidden somewhere. 3. In his deposition, PW-1 Abdul Hussain Barbhuiya repeats what had been stated in the FIR and further states that on the next day at about 12.00 PM - 1.00 PM, some of the co-villagers, namely, Safar Uddin, Makaddas Maulavi and Maqbul Haque Barbhuiya informed him that certain blood stains were noticed in the paddy field at Bidruhipur. When he went to the place and saw the blood stains, he informed the police who came to the place and seized some paddy plants and soil stained with blood in presence of the witnesses and prepared the seizure list. Thereafter, they went to the nearby drain and found some blood stains and accordingly, the soil in the drain was dug out but nothing was found. He further deposed that some of the co-villagers had seen his son during day time along with the accused person playing ludo and therefore, the FIR was lodged on the basis of suspicion. On the next day while the search was still going on, the people noticed some flies in a given area and after digging the place, the dead body was found. 4. On the next day while the search was still going on, the people noticed some flies in a given area and after digging the place, the dead body was found. 4. PW-9 Chandbabu Choudhury deposed that while he was returning back after keeping the cruiser vehicle, of which he was a driver, he saw the accused person i.e, Abul Hussain Barbhuiya @ Ripon playing ludo with the deceased in front of the house of the accused. In cross, the witness stated that the accused was seen playing ludo with the deceased at about 12.00-12.30 PM. 5. PW-10 in his deposition stated that he saw the deceased Sahanur in front of the shop of Khalek Akhter who is related to the accused. At that time the deceased Sahanur had a bicycle with him. It was also stated that the accused Ripon was standing nearby to the place where Sahanur was standing. Half an hour later, when the mother of Sahanur came to his house, he told her that he has seen Sahanur in front of the shop of Khalek Akhter. When he rushed back to the place where Sahanur was standing, he could not find him 6. PW-2 Md. Jabed Akhtar Barbhuiya in his deposition stated that he had a shop in the village and the children of the village used to come to the shop. He knew deceased Sahanur and stated that Sahanur also used to come to their shop for purchasing goods like chana-motor. He stated that the house of Sahanur is situated about 1 Km away from their shop. He also deposed that the deceased used to come to their shop on a bicycle. He also deposed that the deceased came to their shop between 5 to 6 PM and at that time he was in the shop and having gone there at about 4.30 pm. Prior to that, it was his younger brother Khalek Akhtar who was in the shop and it was deposed that after purchasing goods and spending some time, the deceased went away. 7. The prosecution basing upon the evidence of PW-9 & PW-10 seeks to make out a case that the accused and the deceased were last seen together and therefore, the circumstantial evidence points that the accused had committed offence against the deceased. 7. The prosecution basing upon the evidence of PW-9 & PW-10 seeks to make out a case that the accused and the deceased were last seen together and therefore, the circumstantial evidence points that the accused had committed offence against the deceased. We have also taken note that the deceased went to the shop to purchase chana at about 5.00 PM on his bicycle on 10.11.2013 and as per the evidence of PW-2, he went away after spending some time in the shop. There is no evidence from the father that the deceased was not present in his house between the period from 12.00 - 12.30 PM upto 5.00 PM when he went to purchase chana. 8. From the aforesaid point of view, the theory of last seen together between the accused Abdul Hussain Barbhuiya @ Ripon and the deceased Sahanur on the basis of the evidence of PW-9 cannot be accepted, for the reason that even they were together at 12 - 12.30 PM, there is a considerable time gap with the time when the deceased went on his bicycle to buy chana from the shop at 5.00 PM. 9. From the deposition of PW-10 it is seen that the accused was seen in front of the shop of Khalek Akhtar and at that time he had a bicycle with him. Further deposition of PW-10 is that he also saw the accused nearby to the place where Sahanur was standing. We have taken note of, that the deposition is not that the accused was seen along with the deceased but he was stated to have been seen only nearby to the deceased. It being so, it is difficult to accept the contention that both the accused and the deceased were seen together. 10. PW-8 Musstt. Rejia Begum wife of Md. Samsuddin in her deposition stated that the father of the accused Ripon had taken a spade from their house for his necessary work and thereafter, returned it and kept it in the verandah of the house, but that witness was not aware of the time when it was kept. Thereafter at about 5.30-6.00 PM, the accused Abul Hussain Barbhuiya @ Ripon came to their house stating that he required the spade and accordingly, spade was taken and was returned back at about 7.30-8.00 PM. 11. Thereafter at about 5.30-6.00 PM, the accused Abul Hussain Barbhuiya @ Ripon came to their house stating that he required the spade and accordingly, spade was taken and was returned back at about 7.30-8.00 PM. 11. PW-14 the Investigating officer in his deposition stated that the accused led the police party to the house of Samsuddin, husband of PW-8, from where spade was seized. In the circumstances, we do not find any applicability of Section 27 of the Evidence Act, 1872, nor we find any medical evidence to conclude that the nature of the injury on the deceased gives an indication that it was committed by a spade. On the other hand, the medical evidence of the doctor reveals that the injuries on the deceased were caused by sword or a sharp cutting weapon, where the doctor also gave an opinion that a spade could also be a sharp cutting weapon. Even if Section 27 is made applicable, there is no evidence on record to link the spade with the commissioning of the offence. 12. In view of the above and in the absence of any further material, the conclusion we can arrive at is that the prosecution could not prove beyond reasonable doubt either through direct evidence or through circumstantial evidence that the accused Abul Hussain Barbhuiya @ Ripon had committed the offence of causing death of the deceased Sahanur. 13. In view of such conclusion, we set aside the judgment and order dated 11.03.2016 of the learned Sessions Judge, Cachar at Silchar in Sessions Case No.28/2014 convicting the accused Abul Hussain Barbhuiya @ Ripon under Section 302/201 IPC by sentencing him to undergo imprisonment for life and to pay a fine of Rs.2,000/- in default thereof to further rigorous imprisonment for 2 (two) months for the offence under Section 302 IPC and rigorous imprisonment for 3 (three) years with payment of fine of Rs.1,000/- in default thereof to undergo rigorous imprisonment for 1 (one) month for the offence under Section 201 IPC. 14. Accordingly, the accused be set at liberty forthwith, provided he is not warranted in any other case. 15. The appeal stands partly allowed as indicated above. 16. Send down the LCR along with a copy of this judgment