JUDGEMENT : Michael Zothankhuma, J. 1. Heard Mr. A.M. Bora, learned Senior Counsel appearing for the appellants assisted by Mr. V.A. Chowdhury, learned counsel. Also heard Ms. B. Bhuyan, learned Additional Public Prosecutor for the State. 2. The present appeal is against the judgment and order dated 05.06.2024 passed by the learned Sessions Judge, Barpeta in Sessions Case No.207/2011, by which the appellants have been convicted under Section 147 /302 IPC and have been sentenced undergo life imprisonment with a fine of Rs.10,000/-, in default rigorous imprisonment for 1 (one) year. 3. The case of the appellants is that the present two appellants i.e., Abdul Aziz and Jasmat Ali, along with Joban Ali had been acquitted of the charge under Section 147 /302 IPC by the Court of the learned Additional Sessions Judge (FTC), Barpeta in Sessions Case No.207/2011, arising out of Bahabar P.S. Case No.151/2008, vide judgment dated 28.09.2015, on account of the learned Trial Court having come to a finding that the evidence recorded by the witnesses during the trial showed that two views were possible in relation to the death of the deceased. As the view in favour of the appellants/accused persons were to be adopted in terms of the judgment of the Supreme Court in the case of State through Inspector of Police, A.P. vs. K. Narasimhachary , reported in (2005) 8 SCC 364 , the appellants were acquitted of the offence. 4. The mother of the deceased Mustt Hawa Khatun, who was also the informant and prosecution witness no.16, challenged the impugned judgment dated 28.09.2015 passed by the learned Trial Court in Sessions Case No.207/2011, vide Criminal Appeal No.17/2016 before this Court. 5. This Court, vide judgment and order dated 24.07.2019 disposed of Criminal Appeal No.17/2016, by holding that the evidence recorded by the learned Trial Court was inadequate to arrive at any view of what had happened, let alone forming two views, either in favour of the prosecution or in favour of the accused persons. This Court, thus remanded the matter back to the learned Trial Court for taking further evidence by giving opportunity not only to the prosecution, but also to the accused persons, for discharging the burden under the ‘last seen together theory’ and to explain how the dead body of the deceased was found in the house of the appellant Abdul Aziz. This Court, thus remanded the matter back to the learned Trial Court for taking further evidence by giving opportunity not only to the prosecution, but also to the accused persons, for discharging the burden under the ‘last seen together theory’ and to explain how the dead body of the deceased was found in the house of the appellant Abdul Aziz. Only after further opportunity was given to adduce further evidence and examination under Section 313 Cr.P.C, was the learned Trial Court to pass a fresh order. 6. Paragraph 11 to 14 of the judgment and order dated 24.07.2019 passed by this Court in Criminal Appeal No.17/2016 is reproduced herein below, as follows : “ 11 . We also take note of that the said piece of evidence of PW-11 that the three accused persons came and called the deceased Almas and he went with them past 10 o’clock in the night remains unconfronted and unimpeached. Further we also take note of that the dead body of the deceased Almas was found in the house of accused Abdul Aziz and Abdul Aziz was sitting in the same room where the dead body was found. From that point of view also, we are of the view that Section 106 of the EVIDENCE ACT would be applicable in respect of the accused Abdul Aziz to explain as to how the dead body was found in his house. 12 . A stand has been taken by Mr. MA Sheikh, learned counsel for the respondent accused persons that the evidence of PW-1 Md. Basiruddin in cross provides that the accused Abdul Aziz had told him that the deceased Almas had entered his house upon being injured by someone outside and after entering, he had died. But again the said statement of PW-1 in cross is not the evidence of PW-1 but it is merely as to what was told to him by the accused Abdul Aziz. But again the said statement of PW-1 in cross is not the evidence of PW-1 but it is merely as to what was told to him by the accused Abdul Aziz. Accordingly, in the absence of any such explanation by the accused Jasmat, Muktar and Ziaur as regards the last seen together theory and in the absence of any explanation by the accused Abdul Aziz under Section 106 of the EVIDENCE ACT , we are of the view that in the instant case, the evidence on record is short of being adequate to arrive at any view as to what had happened let alone forming two views out of which one is in favour of the accused and one in favour of the prosecution. In view of the inadequacy of the evidence, we are of the view that the matter requires to be remanded back for taking further evidence so as to make out the circumstances which resulted in the death of the decease complete. 13 . Accordingly, we remand the matter back to the learned trial Court for taking further evidence and in doing so, the learned Court shall give adequate opportunity to the accused Jasmat, Muktar and Ziaur to render their evidence for discharging their burden under the last seen together theory and also to the accused Abdul Aziz to explain as to how the dead body of the deceased was found in his house. In doing so, learned Court shall also give an appropriate opportunity to both the parties to cross examine any of the witnesses that have already been examined and also to bring further witnesses for their examination-in-chief as well as their cross examination and for the purpose the parties may bring witnesses they would like to bring, provided otherwise admissible. 14 . Upon conclusion of the evidence, further opportunity be given to the accused persons to make their stand under Section 313 Cr.P.C. and upon the evidence on record being complete, the learned trial Court shall pass a fresh order by giving a consideration to the whole of the evidence, including the evidence already on record. The Judgment and Order to be passed by the learned trial Court shall take precedence and prevail over the earlier Judgment and Order dated 28.09.2015 in Sessions Case No. 207 of 2011 passed by the learned Addl.Sessions Judge (FTC), Barpeta.” 7. The Judgment and Order to be passed by the learned trial Court shall take precedence and prevail over the earlier Judgment and Order dated 28.09.2015 in Sessions Case No. 207 of 2011 passed by the learned Addl.Sessions Judge (FTC), Barpeta.” 7. The matter was thus remanded back to the learned Trial Court for taking of additional evidence, in terms of the judgment and order dated 24.07.2019 passed in Criminal Appeal No.17/2016. 8. The learned Trial Court thereafter reconsidered the case of the appellants afresh and passed it’s judgment dated 05.06.2024, after recording the fact that the learned Public Prosecutor had declined to produce further evidence. Also, the learned Defence Counsel had also submitted that there was no necessity to adduce further evidence from the side of the accused persons, with regard to the ‘last seen together theory’ as required under Section 106 of the EVIDENCE ACT , as no additional evidence had been adduced by the Prosecution. 9. Paragraph Nos.7 and 50 of the judgment dated 05.06.2024 passed by this Court in Sessions Case No.207/2011 is reproduced herein below, as follows : “ 7. The learned PP had declined to produce further evidence and submitted before this court that the burden lies upon the accused to establish their defence against the last seen together theory and U/S 106 of EVIDENCE ACT as directed by the Hon'ble Gauhati High court. The learned defence counsel had also submitted that since no further witness has been produced by the prosecution therefore there is no necessity to adduce evidence from the side of the accused on the points referred nor the accused persons are willing to advance evidence against the last seen theory and U/S 106 of EVIDENCE ACT . 50. The evidence of PW-11 that the accused Jasmat, Muktar and Jiaul taking Almas to the house of accused Abdul Aziz left unrebutted. In the judgment passed by the Hon'ble Gauhati High Court in Criminal Appeal 17/16 arising out of the judgment of acquittal of the accused persons of this case it was held that Jasmat, Muktar and Jiaul came to the house of PW-11 and took Almas with them. Therefore, this last seen together theory is applicable here. It was also directed to that the said accused persons to advance explanation that what happened thereafter. But the accused persons did not advance any explanation.” 10. Therefore, this last seen together theory is applicable here. It was also directed to that the said accused persons to advance explanation that what happened thereafter. But the accused persons did not advance any explanation.” 10. The learned Trial Court thereafter came to a finding that as the appellants Abdul Aziz and Jasmat did not advance any explanation with regard to the ‘last seen together theory’, the ‘last seen together theory’ was applicable to the facts of this case, without any additional evidence being recorded by the learned Trial Court. 11. The learned Senior Counsel for the appellants submits that this Court had remanded the case back to the learned Trial Court for taking additional/fresh evidence, so that the learned Trial Court could come to a proper finding as to whether the appellants were guilty/not guilty of the charge under Section 147 /302 IPC. When no additional evidence was adduced, the learned Trial Court could not have come to a different finding by way of the impugned judgment. He thus submits that the learned Trial Court could not have reviewed it’s own decision, passed vide the earlier judgment dated 28.09.2015, in the absence of any additional/fresh evidence, in terms of Section 362 Cr.P.C. 12. The learned Additional PP, submits that there is no infirmity with the impugned judgement and order dated 05/06/2024, in convicting the 2 (two) appellants, while acquitting the third co-accused, even though, no additional evidence was adduced by the prosecution or the defence on the case being remanded to the learned Trial Court for a fresh consideration. She submits that the judgement of this Court dated 24/07/2019 passed in Criminal Appeal No. 17/2016 allowed the learned Trial Court to come to a different finding on facts. She submits that the entire evidence that had been recorded in the first round of litigation could be considered afresh by the learned Trial Court and the learned Trial Court could come to a different finding in view of the decision of this Court in Crl. Appeal No. 17/2016. She accordingly submits that as the learned trial Court has only followed the diktat of this Court in Crl. Appeal No. 17/2016, there is no review of the judgement and order dated 28/09/2015 passed by the learned Trial Court in Sessions Case No. 207/2011. 13. We have the learned counsels for the parties. 14. Appeal No. 17/2016. She accordingly submits that as the learned trial Court has only followed the diktat of this Court in Crl. Appeal No. 17/2016, there is no review of the judgement and order dated 28/09/2015 passed by the learned Trial Court in Sessions Case No. 207/2011. 13. We have the learned counsels for the parties. 14. A perusal of paragraph 11 to 14 of the judgement and order dated 24/07/2019 passed in Crl. Appeal No. 17/2016 clearly shows that this Court was of the view that based on the evidence adduced by the learned Trial Court, no view could have been made by the learned Trial Court with regard to whether the evidence favoured the accused or the prosecution. It was on that reasoning, this Court had directed the learned Trial Court to consider the matter afresh, after additional evidence was adduced by the prosecution and the defence. However, as can be seen from the records, no further evidence was adduced by the prosecution or the defence. 15. Keeping the above fact in view, we are of the opinion that there was no basis for the learned Trial Court to have suddenly convicted the appellants when it had acquitted the appellants in the first round of litigation. The evidence being the same in both rounds of litigation, two different views/findings could not have been conjured up on the basis of the same set of evidence. Section 362 Cr.P.C. states as follows :- “ 362. Court not to alter judgment . - Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.” 16. In view of the above reasons, we are of the view that the basis for the learned Trial Court in convicting the appellants under Section 147 /302 IPC has not been made out. The reasoning of the learned Trial Court is perverse and is not in consonance with the directions, observations and findings of this Court in the judgement dated 24/07/2019 passed in Criminal Appeal No. 17/2016. 17. For the reasons stated above, we set aside the impugned judgement and order dated 05/06/2024 passed by the learned Sessions Judge, Barpeta in Sessions Case No. 207/2011. 17. For the reasons stated above, we set aside the impugned judgement and order dated 05/06/2024 passed by the learned Sessions Judge, Barpeta in Sessions Case No. 207/2011. The sentence inflicted upon the appellant is consequentially set aside. The appellants are acquitted from the charge under sections 147/302 IPC. The appellants should accordingly be released from judicial custody immediately, if not released on bail earlier. 18. Send back the TCR.