JUDGMENT : Mir Alfaz Ali, J. 1. Both these appeals having arisen out of the same judgment and order passed by learned Addl. Sessions Judge, Bajali in Sessions Case No. 189 of 2016 are taken up for hearing and disposal by this common judgment By the impugned judgment, learned Sessions Judge convicted both the appellants u/s. 302 IPC read with Section 34 IPC and sentenced them to rigorous imprisonment for life and fine Rs. 10,000/- each with default stipulation. 2. As per prosecution case, on 7.4.2016 some miscreants killed the victim Amarendra Das @ Joon and left his body on the verandah of the house of Benoy Deka. The next morning PW-11, the wife of the deceased lodged the FIR (Ext. -2), on the basis of which, police registered Barpeta P.S. Case No. 725 of 2016 under Section 302 IPC and commenced investigation. During the course of investigation, police recorded the statement of the witnesses, seized some incriminating articles and prepared the sketch map. Smt. Santa Bora (PW-17) prepared the inquest report and the post mortem examination was conducted by Dr. Deepak Kumar Das (PW-19), who found the following the injuries on the body of the victim. "1. One cut injury on the front of right shoulder it. (4" x 2 x 1") (LxBxD) with fracture of right clavicle on lateral third. 2. One deep cut injury on left shoulder with decomposition of muscles of vessels. 3. One cut injury on middle of the scalp (3"x2"x1")(LxBxD) =coming out of brain matter with fracture of both remittal found. 4. Scrotum swollen. 5. Ligature marks on both wrist joint. All injuries caused by sharp weapon and they are grievous, ante-mortem in nature." In the opinion of the doctor death was due to coma resulting from the injuries sustained on the head. Injuries were ante-mortem in nature caused by blunt force impact. Death was within 12/24 hours from the post mortem. 3. On conclusion of the investigation, charge sheet was laid against the three accused persons including the present appellants and all of them stood trial for the offence of murder before the Court of Sessions. 4. In course of trial, the learned Sessions Judge framed charge against the accused persons, including the present appellants under Sections 302/34 IPC, to which they pleaded not guilty. 4. In course of trial, the learned Sessions Judge framed charge against the accused persons, including the present appellants under Sections 302/34 IPC, to which they pleaded not guilty. 19 witnesses were examined by the prosecution to bring home the charge and on appreciation of evidence, learned Sessions Judge convicted all the accused under Sections 302/34 IPC and awarded sentence as indicated above. 5. Aggrieved by the impugned judgment of conviction and sentence, the appellants preferred the instant appeals. 6. We have heard learned Senior Counsel Mr. N. Dutta assisted by Mr. NNB Choudhury for the appellant in Crl. Appeal 204/2017 and Mr. B.K. Mahajan assisted by Mr. A. Ali for the appellant in Crl. Appeal 196/2017. We have also heard Ms. S. Jahan learned Addl. Public Prosecutor for the state respondent. 7. Learned counsels appearing for the appellants submitted that there is no direct evidence against the appellants and the conviction and sentence of the appellants were solely based on circumstantial evidence, being the "last seen theory" and extra judicial confession. Contention of the learned counsels was that the prosecution has not been able to prove the circumstance of "last seen theory" against the appellants and the confessional statement relied by the learned trial court was also inadmissible, being made while the appellants were in police custody, and as such, the conviction of the appellants was based on no legal evidence, submits Mr. Dutta and Mr. Mahajan. 8. Supporting the conviction and sentence of the appellants, learned Addl. P.P., Ms. S. Jahan would submit, that the charge against the appellants were proved beyond reasonable doubt, and as such, no interference with the impugned judgment is called for. 9. We have considered the submission made by the learned counsel for the appellants and the learned Addl. P.P. and also meticulously scrutinised the evidence and materials on record. 10. Apparently there was no direct evidence to the occurrence and the learned trial court convicted the appellants solely on the basis of the circumstantial evidence. The circumstances, on which, the learned trial court placed reliance have been summarized in para 56 & 57 of the judgment which are as under:- "56. ................. 10. Apparently there was no direct evidence to the occurrence and the learned trial court convicted the appellants solely on the basis of the circumstantial evidence. The circumstances, on which, the learned trial court placed reliance have been summarized in para 56 & 57 of the judgment which are as under:- "56. ................. (1) On the relevant day in the evening the deceased left house by informing his wife as well as the informant that he was going to arrange "khana" (party) with the accused persons at night which reveals from the evidence of P.W. 11. (2) The deceased was seen alive at 6.30 pm, was going towards the shop of accused Dhanjit Bayan. (3) The deceased was seen alive while at 7.30 pm he alongwith the accused persons were discussing (4) accused persons and the deceased was seen alive of liquor in the shop house of accused Dhanjit Deka at night about 8.30 pm (3) Accused Pankaj Deka and the deceased were quarrelling at Bhawanipur Chowk at 8.30 to 9.30 pm (4) the shouting of deceased Amarendra was heard while alive and the accused Pankaj from the adjacent room of Barber Sri Bulitor at 8.30 pm (5) At 9.30 pm deceased was seen alive and standing on the main road at Bhawanipur Chowk and altercating with accused Pankaj. (6) On the next day morning at about 5.30 am the dead body of deceased was lying on the veranda of one Binay Deka at Bhawanipur Chowk. (7) The circle officer as well as Executive Magistrate conducted the inquest over the dead body of the deceased. (8) The post mortem examination was conducted over the dead of deceased and found the cause of death due to coma resulting from injuries sustained on head (9) accused persons confessed before the P.W.s 9, 12, 13, 14, 16, 18 of their involvement of committing murder of deceased (9) there is no such satisfactory explanation on the part of accused what happened to the deceased after time when he was seen with the deceased or when he parted with company of the deceased. 57. 57. One of the vital circumstances is that at night about 9.30 pm while the deceased was seen alive and he went out along with the accused persons after having liquor in the shop house of accused Dhanjit Bayan then suddenly accused Pankaj returned to the salon of P.W-7 Bulitor Thakur and took one scissor from the salon and went away with other accused and the deceased. The scissor was not recovered but even then it does not hamper the prosecution case for non recovery of the scissor." 11. The conviction and sentence of the appellant having been assailed basically on the ground of absence of evidence, it would be apposite to have a relook at the evidence brought on record and relied by the learned trial court for recording conviction of the appellants. 12. Junaki Das (first informant) was examined as PW-11. She stated in her evidence, that in the evening of 07.04.2015, she was in her paternal home, which was at a distance of 1 km from her matrimonial home. Her husband (victim) went to her paternal home and told that a "khana" (dinner party) was arranged by Pankaj, Dhanjit and Nripen, which would be attended by him. On the next day, she was informed by her mother-in-law, that her husband was lying dead on the verandah of Benoy Deka. Immediately she went to the place of occurrence and found the body of the victim in a pool of blood. She further stated that PW-1, Dhiraj Das, told her that he had noticed the accused persons and her husband taking meal in the shop-house of appellant Dhanjit Bayan. Her previous statement recorded u/s. 161 CrPC confronted to her and confirmed through the investigating officer (PW-16) shows, that she did not state in her previous statement, regarding her husband going to her paternal home and telling her about the party in the house of Dhanjit. She also did not state in her previous statement that PW-1 told her that he noticed the victim taking meal with the appellants in the house of appellant Dhanjit. 13. PW-1, Dhiresh Das, who is the elder brother of the deceased, deposed, that he has a shop in the house owned by the appellant Dhanjit Bayan. She also did not state in her previous statement that PW-1 told her that he noticed the victim taking meal with the appellants in the house of appellant Dhanjit. 13. PW-1, Dhiresh Das, who is the elder brother of the deceased, deposed, that he has a shop in the house owned by the appellant Dhanjit Bayan. He further stated that on 07.04.2016 at around 9 pm, before closing his shop, he went to the saloon, which was also located in the rented house of the appellant Dhanjit and noticed that his brother Amarendra Das (deceased), accused Pankaj Deka, Dhanjit Bayan and Nripen Das were taking meal in a room occupied by Dhanjit. He also stated to have noticed altercation amongst themselves. He further deposed that Amarendra used to spent the evening hours with the appellants. He further stated that PW-5, Swapan Medhi, who has a laundry near his shop, told him that on the previous night at around 10.30 pm, he (Pw-5) had seen quarrel between the accused Pankaj Deka and his brother Amarendra (deceased). According to him, Bulidhar Thakur (PW-7), the owner of the saloon also told him that on the last night, accused Pankaj took a scissor from his saloon. This witness also did not state before police in his previous statement recorded u/s. 161 CrPC, that on the previous night before closing his shop, he went to the nearby saloon, where he noticed Amarendra (deceased) taking meals with the appellants and Pankaj in the house of Dhanjit Bayan. He also did not state before police regarding any altercation of the deceased with the appellants. PW-2, Diganta Das, who is the cousin of the victim, Amarendra, stated, that on 07.04.2016 at around 6.30/7.00 p.m., he saw the deceased Amarendra standing in front of the house of appellant Dhanjit along with Pankaj, Nripen and Dhanjit. He further stated that the victim Amarendra usually spent the evening with them. According to him, PW-5, Swapan Medhi told him that on the previous night at around 8.30 to 10 pm he had seen quarrel and tussle between Pankaj and Amarendra in the house of appellant Dhanjit Bayan and he dispersed them. This witness also did not state in his previous statement recorded u/s. 161 CrPC regarding Swapan Medhi telling him that he had seen quarrel between the victim and Pankaj in between 8.30 to 10 pm and that he (Pw-5) dispersed them. This witness also did not state in his previous statement recorded u/s. 161 CrPC regarding Swapan Medhi telling him that he had seen quarrel between the victim and Pankaj in between 8.30 to 10 pm and that he (Pw-5) dispersed them. 14. PW-3, Monmohan Das testified that he went to sleep at about 10.30 pm and after three hours he heard shouting of Amarendra (deceased), who was scolding somebody very loudly. He further stated that Amarendra usually returns home late at night after consuming alcohol and as such, he did not find anything unusual. This witness was, however, declared hostile by the prosecution. 15. PW-5, Swapan Medhi, stated, that he has a laundry in the house owned by the appellant Dhanjit Bayan. According to him, at about 9.40 pm on 07.04.2016, when he was going home from his laundry, he saw Pankaj Deka and accused Amarendra quarrelling in front of the cloth shop at Bwanipur Chowk and he interfered and dispersed them. On the next morning he came to know, that Amarendra was killed. During cross-examination, he stated that after dissuading them from quarrel, he went home and he had no knowledge as to where the deceased spent the whole night. He also stated that Pankaj and Amarendra were friends and they used to spent time together. 16. PW-7, Bulitor Thakur, who is the owner of the saloon testified, that on 7.5.2016 at about 8.30 pm when he was in his saloon, he heard shouting of Pankaj and Amarendra in the adjacent room owned by Dhanjit Bayan. Having heard them shouting, he went there and had seen Pankaj, Dhanjit, Nripen and Amarendra were taking liquor. He also stated that after 1/2 an hour he had noticed Amarendra, Nripen and Dhanjit were going out from the room and accused Pankaj came back to his saloon and took one scissor. On the next day he came to know that Amarendra died. In his previous statement recorded u/s. 161 CrPC, this witness did not state that Pankaj came to his saloon and took a scissor. 17. PW-8, Naba Kumar Baishya stated that while he was going home at about 9.30 pm from his hotel, he had seen accused Pankaj and deceased Amarendra altercating near the main road at Bhawanipur Chowk. He also saw 2/3 persons near them. However, he did not follow them. 17. PW-8, Naba Kumar Baishya stated that while he was going home at about 9.30 pm from his hotel, he had seen accused Pankaj and deceased Amarendra altercating near the main road at Bhawanipur Chowk. He also saw 2/3 persons near them. However, he did not follow them. During cross-examination, he stated that he had seen Amarendra for the last time at 9.30 pm. PW-15 stated that 07.04.2016 at about 9.30 pm when he was going home, he saw Pankaj and Amarendra were quarrelling at Bhawanipur Chowk. On the next morning he came to know about the death of Amarendra. He, however, admitted to have not stated before police whatever he had stated in court. 18. The Pw-15 testified that on 7.4.2016 at about 9.30 pm when he was going home he had seen Pankaj and Amarendra quarrelling at Bhawanipur Chowk. According to Pw-4 Mridul Das, he has seen Amarendra going towards the shop of Swapan (Pw-5) at about 7.30 pm. 19. A dispassionate scrutiny of the oral testimony of the seven vital witnesses heavily relied by the learned trial court would show, that though, PW-11, informant (wife of the deceased) stated in her evidence, that on 17.04.2016, her husband(deceased) went to her paternal home and informed her that there was a dinner party organized by the present appellants and accused Pankaj and he would attend the same. In her previous statement she never made such statement. PW-1 also stated for the first time in court, that he had seen Amarendra and the accused persons taking meal in the house of appellant Dhanjit Bayan and they were altercating, inasmuch as, no such statement was made before the investigating officer by PW-1. Those omissions of material facts which goes to the root of matter in the facts and circumstances of the case, in our considered view, certainly amounted to contradiction, having the potential to affect the credibility of the testimony of the Pw-1, that he had seen the appellants and deceased having taken meal and altercating amongst themselves on the previous night at about 9 pm as well as the testimony of the Pw-11 regarding the deceased going to her parental home to inform her about the khana (dinner) for the first time in Court. 20. 20. According to PW-7, he heard shouting of Pankaj and Amarendra at about 8.30 pm in the room of Dhanjit and after half an hour he had seen Amarendra, Nripen and Dhanjit going out of the room. PW-8 and PW-15 stated that they have seen Pankaj and Amarendra quarrelling with each other at about 9.30 pm at Bhawanipur Chowk. PW-5 also stated that at about 9.45 p.m., while he was going home from his laundry, he saw Pankaj and Amarendra quarrelling in his cloth shop and he dispersed them. Therefore, even if it is assumed for the moment, that the evidence of PW-1 that he had seen the victim Amarendra with the accused persons at about 8.30 pm in the house of Dhanjit taking meal and liquor, the evidence of PW-7 that all of them had left the house of Dhanjit Bayan at about 9.00 PM and the evidence of PW-5, PW-8 and PW-15, that they saw only Pankaj and Amarendra quarrelling at about 9.30 pm at Bhawanipur Chowk makes it abundantly clear, that though the victim was allegedly together with the appellants and Pankaj in the house of Dhanjit at about 8-8.30 pm, evidently all of them dispersed and had left the room of Dhanjit Bayan at about 9.00 PM and there is no evidence on record to show that anyone had seen the present appellants with the deceased after 9.00 PM. Rather the evidence of PW-5, PW-8 & PW-15 clearly shows, that only Pankaj was with the appellants, and all the three witnesses have seen the accused Pankaj quarrelling with the deceased at Bhanipur Chowk at about 9-9.30 pm. In view of the above evidence, in our view, it can't be held that the deceased Amarendra was last seen alive together with the appellant Nripen and Dhanjit. At best, the "last seen theory" may be applied only in respect of the accused Pankaj, who is not before us, provided there are evidence. 21. Though, PW-3, was declared hostile, he stated that he heard shouting of the victim at about 10 pm at night, who was scolding someone. Therefore, the testimony of the Pw-3 also goes to support the testimony of the PW-5, PW-8 and PW-15. The law relating to the evidentiary value of hostile witness is no longer res-integra. 21. Though, PW-3, was declared hostile, he stated that he heard shouting of the victim at about 10 pm at night, who was scolding someone. Therefore, the testimony of the Pw-3 also goes to support the testimony of the PW-5, PW-8 and PW-15. The law relating to the evidentiary value of hostile witness is no longer res-integra. It is the settled position, that evidence of the hostile witness cannot be rejected in toto, but it can be accepted to the extent, his version is found to be dependable on careful scrutiny there of (See Yomeshbhai Pranshankar Bhatt Vs. State of Gujrat, AIR 2011 SC 2328 ; Ramesh Harijan Vs. State of U.P. AIR 2012 SC 1979 ). It is thus, abundantly clear that the circumstance of the victim having been last seen together with the appellants was not proved. In fact, there was no evidence at all to prove that before death the victim was last seen alive with the present appellants, reason being that in view of the clear evidence of Pw-5, Pw-8 and Pw-15 that after 9.302 PM deceased was seen alive only with Pankaj rendered the circumstance No. 1, 2 & 3 relied by the learned trial Court totally redundant and the circumstance No. 4 & 5 had nothing to do with the present appellants. 22. The learned Sessions Judge observed in the circumstance No. 10, that the appellants failed to provide satisfactory explanation as to when the appellants parted with the company of the deceased or as to how the death of the deceased was caused and considered the same to be an additional circumstances to link the last seen theory involving the appellants with the homicidal death of the deceased. When there was clear evidence of PW-7, that after 9 pm, the appellants were not with the victim and as per evidence of PW-5, PW-8 & PW-15, it was Pankaj alone, who had been seen together with the deceased and thereby negating the last seen together with the appellants, the present appellants could not be saddled with the responsibility to explain the circumstance of last seen, nor their failure to offer such explanation could be held as an incriminating circumstance against the present appellant. 23. Usually the last seen evidence casts a duty of the accused to explain the circumstances, under which or how the death of the victim occurred. 23. Usually the last seen evidence casts a duty of the accused to explain the circumstances, under which or how the death of the victim occurred. But before casting such a burden on the accused to explain as to how the death of the victim occurred, prosecution has to prove conclusively beyond doubt, that victim was last seen alive with the accused, immediately before the death and time gap between the "last seen" and death was so short, that there is no possibility of somebody else intruding in between. Unless the prosecution discharges its burden and establishes the fact of 'last seen' with the accused beyond doubt, the accused does not owe any explanation as to the last seen evidence to prove his innocence. The Apex Court in Paramshivam Vs. State, AIR 2014 (SC) 2936 observed that "presumption as to have committed the murder can be drawn on the basis of "last seen" theory, where the prosecution proved that it is the accused alone who knew what happened to the victim as he was found murdered within short time after abduction and the accused had failed to give explanation. In the present case as discussed above, there was not even the last seen evidence so far the present appellants are concerned. When there was no last seen evidence involving the present appellant, there was no question of the present appellant owing any explanation as to how or under what circumstances death of the deceased occurred. 24. We also notice that the 9th circumstances relied by the learned trial Court was the so called extra-judicial confession on the basis of the oral testimony of PW-9, PW-12, PW-13, PW-14, PW-16 & PW-18, who had deposed as to the extra-judicial confession allegedly made by the accused before police. PW-9 (Chittaranjan Das) stated that after 1 (one) week of the death of the victim, he was called by the Officer-In-charge of Barpeta Police Station and accordingly he went there. He further stated that having gone to the police station, he found the Officer-In-charge of the Police Station, Babul Deka (PW-14), Kishore Baishya (PW-12) and Pinku Medhi (PW-13). He also stated that police brought out Pankaj Deka, who stated before them that he had killed Amarendra and accused Dhanjit and Nripen were present with him at the time of the incident. He also stated that police brought out Pankaj Deka, who stated before them that he had killed Amarendra and accused Dhanjit and Nripen were present with him at the time of the incident. PW-12, Kishore Baishya also stated that on 16.4.2016 at about 11 am, he himself, Pinku Medhi (PW-13), Babul Deka (PW-14) and Chittaranjan Talukdar (PW-9) went to Bhanipur outpost on being called by the Officer-In-Charge, where the accused Pankaj confessed before them that he was involved in the murder of Amarendra on the night of 07.04.2016. He also stated to have forgotten the exact words used by Pankaj Deka. According to PW-13, when they were at the police station, Pankaj Deka confessed before them, that he along with appellants were involved in the murder of Amarendra. PW-14, Babul Dela also stated in the same manner, that on 16.04.2016, while they were in the police station, Pankaj Deka confessed before them that on the relevant night, he had altercation with the deceased Amarendra and he was involved in the killing of Amarendra. It is in the evidence of PW-16, the investigating officer, deposed that the appellants were arrested on 13.06.2016. Therefore, evidently, the accused Pankaj Deka made the confession in the police station, before PW-9-PW-12, PW-13 & PW-14 when he was in police custody. Pw-16 and Pw-18 were the police officers before whom such confession was alleged to have been made. 25. What transpires from the oral testimony of PW-9-PW-12, PW-13 & PW-14 is that the present appellant never made any confession. This apart, evidently the so-called confession by Pankaj Deka was made, while he was in police custody. Therefore, even if it is assumed for the moment, that the accused Pankaj Deka made any extra judicial confession before the police in presence of PW-9, PW-12, PW-13 and PW-14, implicating the present appellant, while in police custody, such confession is not admissible in evidence, in view of Section 26 of the Evidence Act, as admittedly such confession was made by Pankaj Deka while he was in police custody. Therefore, in our considered view, learned trial court fell in grave error by relying on the so called extra judicial confession of the co-accused made in police custody. 26. Therefore, in our considered view, learned trial court fell in grave error by relying on the so called extra judicial confession of the co-accused made in police custody. 26. Another circumstance relied by the learned trial court (in para 57 of the judgment) was that after leaving the house of Dhanjit, accused Pankaj Deka came back and took a scissor from the saloon of PW-7, Bulitor Thakur. Although PW-7 deposed in Court that Pankaj took a scissor on the previous night of the occurrence, he never stated anything in his previous statement before police that Pankaj took a scissor from his saloon. The medical evidence and the post mortem examination report shows that all the injuries were caused by blunt object and there is no evidence to show that any of the injury was caused by sharp weapon or scissor. Therefore, even if it is assumed for the sake of argument that a scissor was taken by the accused Pankaj from the saloon of PW-7, there is no reason to connect the said scissor with the commission of offence, as the injuries were caused by blunt object. Besides, the evidence of PW-7 regarding Pankaj having taken a scissor from his saloon also cannot be linked with the present appellants, inasmuch as, after the departure of the accused persons from the house of Dhanjit Bayan at about 9 pm, nobody had seen the appellants with the victim. Therefore, in our considered opinion the above circumstances cannot anyway link the present appellants with the offence in the present case. 27. When the vital circumstances relied by the learned trial Court, i.e. last seen evidence as well as so called extrajudicial confession fails and the evidence of the Pw-7 regarding accused Pankaj taking a scissor also falls flat, literally no evidence is left with, which would support the prosecution case against the present appellants. It is by now well settled by a catena of decisions of the Apex Court that in a criminal trial resting solely on the circumstantial evidence, prosecution must prove each and every circumstances solidly and conclusively beyond all reasonable doubt and the circumstances so proved must cumulatively form an unbroken chain of circumstances, which leads to a sole and irresistible conclusion, that it was none, but the appellant was the perpetrator of the offence. (See; AIR 1953 (SC) 343, Hanumant Vs. (See; AIR 1953 (SC) 343, Hanumant Vs. State of Madhya Pradesh, AIR 1984 (SC) 1622 Sarad Brindhi Chand Sara Vs. State of Maharashtra). 28. Having considered the evidence and materials as discussed hereinabove, we are of the considered opinion, that prosecution has not been able to establish beyond reasonable doubt the chain of circumstances or chain of events for leading to the irresistible conclusion that it was none, but the accused/appellants, who were the perpetrator of the offence. Therefore, the conviction and sentence of the appellants cannot be sustained. Accordingly, we set aside the conviction and sentence of the appellants and allow both the appeals. 29. The appellants Dhanjit Bayan and Nripen Nath be set at liberty forthwith if not required in any other case. 30. Both the appeals are accordingly disposed of. 31. Send back the record.