JUDGMENT : Heard Mr. B.P. Sinha, learned counsel appearing for and on behalf of the appellant/convict as well as Mr. D. Das, learned Addl. P.P., Assam, representing the State/respondent. None is present for and on behalf of the respondent No.2. 2. The present appeal is preferred against the judgment and order dated 06.08.2018, passed by the Sessions Judge, Kamrup at Amingaon in Sessions Case No.45/2016, whereby the present appellant has been convicted u/s.304 Part-I IPC, to undergo rigorous imprisonment for seven years and to pay fine of Rs.2,000/-, in default rigorous imprisonment for one month. 3. The appellant is the younger brother of deceased Punya Boro. On 18.01.2016, at about 9 P.M., while the deceased Punya Boro was having dinner with his younger brother Nipu Boro, there was a quarrel between the accused and the deceased and the deceased assaulted the accused. Subsequent thereto, the deceased was found lying in an injured condition in the courtyard of Nipu Boro and while he was taken to the hospital, he succumbed to his injuries. One brother of the deceased namely Dinesh Boro filed the FIR before the O.C. of Boko Police Station on 19.01.2016, stating about the incident. Accordingly the Boko P.S. Case No.35/2016, u/s.302 IPC was registered and after due investigation of the matter, the police submitted charge sheet against the accused/appellant u/s.302 IPC. 4. The accused faced the trial, denied the charge framed u/s.302 IPC and claimed to be tried. 5. During the trial, the prosecution examined as many as 7 witnesses in support of the case and the defence examined none. The plea of the defence is of total denial. 6. The statement of the accused person was recorded u/s.313 CrPC and at the conclusion of the trial, the learned trial Court found and hold the accused guilty u/s.304 Part-I IPC and sentenced the accused/appellant as aforesaid. 7. The present appeal has been preferred against the aforesaid order on the ground that the trial Court has erred in law and fact while passing the impugned judgment and order as there was no positive evidence suggesting the complicity of the present accused/appellant with the offence charged. It is also another ground that all the evidence of the prosecution are hearsay evidence and nobody has stated that the accused inflicted such injury upon the deceased as a result of which he died. It is also another ground that all the evidence of the prosecution are hearsay evidence and nobody has stated that the accused inflicted such injury upon the deceased as a result of which he died. No weapon of offence was recovered from the possession of the accused/appellant. 8. The learned counsel for the appellant has put forward his argument basing upon the grounds that has been raised in the appeal memo and has submitted that the whole story is based upon suspicion and there is no clarity of evidence about the involvement of the accused save and except some evidence about the quarrel between the parties prior to the incident. It has been accordingly urged that such an order by the learned trial Court only on the inference of guilt of the accused, without their being any eye witness to the occurrence, even there is no circumstantial evidence to connect the accused with the offence alleged. So such conviction and sentence is liable to be interfered and accordingly be quashed and set aside. 9. The learned Addl. P.P., Assam, Mr. D. Das on the other hand submitted that although there is no eyewitness to the occurrence but there is circumstantial evidence against the accused/appellant, as he was along with the deceased at the time of occurrence while taking dinner and immediately thereafter the deceased was found lying dead inside the premises of PW.4. Accordingly it has been urged that the learned trial Court has rightly convicted the accused person u/s.304 Part-I IPC, with the findings that such incident has happened. 10. Let us examine the evidence on record which has been produced by the prosecution during the course of trial. Admittedly there is no eyewitness to the occurrence. Although the incident occurred in the house of PW.4 Nipu Boro but he has also given a peculiar statement which can be discussed herein below. 11. According to the PW.4, on the day of occurrence while he along with two brothers and the decease were taking dinner, deceased Punya Boro assaulted the accused/appellant which is a regular feature between the parties and when the quarrel was going on between them, he went outside the house and subsequently deceased Punya Boro was taken to the hospital and he died on the same day. 12. 12. Similarly the other brothers of the deceased namely PW.2 Dinesh Boro and PW.5 Bishnu Boro, have also stated that on the day of occurrence, hearing about the quarrel between the deceased and the accused/appellant, they went to the house of PW.4 and saw Punya Boro was lying in the courtyard of his house with injuries on his person. It is evident that initially the injured was taken to Boko PHC and there from he was referred to the GMCH but on the way to the GMCH, he succumbed to his injuries. These witnesses although have stated about signing of the seizure list and filing of the FIR, but none of them have stated that such weapon that was seized, was used in the commission of offence nor they have implicated the accused/appellant towards the commission of such offence. 13. The other witnesses namely PW.3 Debiram Rabha (one neighbor) and PW.6 Bireswar Boro (uncle) of both the parties have not stated anything as to how the deceased sustained injuries on her person and they have only stated that on the day of occurrence, they saw the dead body of Punya Boro lying in the courtyard. Although both these witnesses have signed the inquest report (Ext.2) and the seizure list (Ext.4) but they have not made a whisper as to who committed the offence. Both of them have stated that there was a commotion between the accused and the deceased but they have not seen the incident. 14. The Medical Officer who happened to conduct the post mortem examination on the dead body of Punya Boro found three numbers of lacerated injury on the person of the deceased on head, root of nose and the right lateral side of the lower abdomen above the iliac crest. It has been opined by the Medical Officer that the death was due to injury sustained by the deceased over the head and the death was homicidal in nature. Vide Ext.1 is the post mortem report furnished by him. 15. Lastly the PW.7 is the I.O., who has conducted the investigation. His evidence is formal in nature and has testified about the factum of recovery of weapon of offence lying at the place of occurrence, near the dead body. No omission or contradiction of any evidence has been proved through the I.O. 16. 15. Lastly the PW.7 is the I.O., who has conducted the investigation. His evidence is formal in nature and has testified about the factum of recovery of weapon of offence lying at the place of occurrence, near the dead body. No omission or contradiction of any evidence has been proved through the I.O. 16. On perusal of the impugned judgment and order, it is found that the learned trial Court was of view that there was a sudden fight between the deceased and the accused and as the deceased was found lying with injury immediately after such quarrel from which the Court drew a conclusion that the injury on the person of the deceased was the outcome of the quarrel when three brothers were taking dinner (vide para 20 of the judgment). Thus the trial Court came to the conclusion that as the incident happened due to sudden fight, so the case would come under culpable homicide not amounting to murder u/s.304 Part-I IPC. 17. As has been discussed above, it is discernable from the evidence on record that none of the witnesses that has been examined by the prosecution has supported the charge that was leveled against the present accused/appellant. Save and except certain quarrel between the parties on the fateful day, none of the witnesses have stated about any sort of part played by the accused/appellant to cause such injury upon the deceased. None of the witnesses i.e. PW.2, PW.4 and PW.5, despite being his own brothers and appeared at the place of occurrence immediately after the incident has not implicated the accused person with the offence alleged. On the other hand, the deceased was found alive at the time of arrival of these three witnesses but none of them were reported by the injured that it was the accused/appellant who had inflicted such cut injuries on him. It is also not the statement of those witnesses that the accused/appellant is found with any sort of weapons in hand at the time of occurrence. PW.3 and PW.6 are hearsay evidence and even cannot be expected to connect the accused with the offence charged. 18. Although the seizure list has been exhibited in this case but there is no evidence that such weapon of offence was used by the accused/appellant, while committing the offence and the same was also not recovered from the possession of the accused. 19. 18. Although the seizure list has been exhibited in this case but there is no evidence that such weapon of offence was used by the accused/appellant, while committing the offence and the same was also not recovered from the possession of the accused. 19. From the entire evidence what has been discussed above, it can be found that there is no legal evidence against the accused person which can be used against him to substantiate the charge against the accused/appellant. In absence of any direct evidence or even the circumstantial evidence, it will be unjustified to sustain a conviction merely on inference of guilt, simply referring to one incident of quarrel between the parties prior to the occurrence. It is the cardinal principle of criminal jurisprudence that the offence is to be proved beyond all reasonable doubt with clear and cogent evidence so that there can be no other hypothesis than the guilt of the accused. 20. In the present case, although the PW.2, PW.4 and PW.5 were the materials witnesses to the occurrence but all of them have measurably failed to prove the charge. In the given circumstances, the conclusion that has been drawn by the learned trial Court appears to be not proper, which is liable to be interfered with. No Court of Law can make out a case on its own opinion disregarding the evidence on record by different appreciation and approach, which is not otherwise spelt by the evidence on record. 21. Taking all above into consideration, this Court is of opinion that the decision rendered by the learned Sessions Judge, Kamrup at Amingaon in Sessions Case No.45/2016, is not sustainable in law and hence quashed and set aside. The appeal is accordingly allowed and the accused/appellant is acquitted from the charge and set at liberty forthwith. 22. Return the LCR along with a copy of judgment immediately.