The burden of proof under Section 106 of the Evidence Act and the appellant's failure to offer a reasonable explanation led to the alteration of the conviction.

JUDGMENT :

Nelson Sailo, J.

Heard Mr. H.R.A. Choudhury, learned senior counsel assisted by Mr. A. Ahmed, learned counsel for the appellant and Mr. M. Phukan, learned Additional Public Prosecutor, Assam for the State respondent No.1. None appears for the respondent No.2, despite notice.

2. This is an appeal filed by the appellant against the judgment and order dated 10.08.2015 passed by the learned Additional Sessions Judge (FTC), Lakhimpur, North Lakhimpur in Sessions Case No.22 (NL)/2014 arising out of GR Case No. 1822 of 2013, whereby the appellant was convicted under Section 302 of the Indian Penal Code (in short 'IPC') and sentenced to undergo rigorous imprisonment for life with a fine of Rs.5000/- and in defult thereto, to undergo rigirious imprisonment for another period of 3 months.

3. The prosecution's case in brief is that on 22.11.2013, one Md. Kaku Mir lodged an FIR with the Khelmati Police Out-post under the North Lakhimpur Police Station stating that one Marjina Begum (the deceased) who was staying as his tenant for about last 8 months was found to have sustained burnt injuries of on her body inside her room on 21.11.2013 about 8.30 p.m. The informant with the help of other local people after breaking open the door, took the deceased and her husband Md. Nur Zamal Sheikh (the appellant) out of the room and to Lakhmpur Hospital by an ambulance in an injured state. However, the deceased succumbed to her injuries and the FIR was filed assuming that it was the appellant who killed her by setting her on fire.

4. On receipt of the FIR, GD entry No.375 dated 22.11.2013 was made by the In-Charge of Khelmati Police Outpost. Thereafter, it was forwarded to Officer In-Charge of North Lakhimpur Police Station for registration of a case and following which, North Lakhimpur P.S. Case No.859 of 2013 under Section 302 of the IPC was registered and the complaint investigated into.

5. The Investigating Officer after completing his investigation submitted a charge sheet before the learned SDJM which was then committed to the learned Sessions Judge, Lakhimpur at North Lakhimpur as the case was exclusively triable by a Session's Court. Thereafter, Sessions Case No. 22 (NL) / 2014 was registered and the learned Sessions Judge on 20.05.2014 framed formal charge against the appellant under Section 302 IPC and to which, the appellant pleaded not guilty and claimed for trial. The case was then endorsed to the learned Additional Sessions Judge (FTC), Lakhimpur, North Lakhimpur for trial.

6. During the trial, the prosecution examined as many as 8 prosecution witnesses including the Doctor who conducted the post-mortem examination on the dead body of the deceased. The defence however on their part did not adduce any evidence. Upon conclusion of the evidence of the prosecution, the appellant was examined under Section 313 of the Code of Criminal Procedure (Cr.P.C.) whereafter, the trial Court vide Judgment and Order dated 10.08.2015 convicted and sentenced the appellant under Section 302 IPC in the manner as already aforementioned. The appellant being aggrieved with the impugned judgment has preferred the present appeal.

7. Mr. H.R.A. Choudhury, learned senior counsel by referring to the memorandum of appeal submits that the learned Trial Court miserably failed to scrutinize the evidence on record in proper perspective and exaggeratedly emphasized the hearsay evidence in coming to its conclusion. He submits that there were no eye witness as regards the person who set fire on the victim but as the appellant was inside the room, the learned Trial Court presumed that the fire was set by the appellant. He submits that the learned Trial Court could not have come to such a conclusion, inasmuch, as the appellant himself sustained severe burnt injuries while trying to save the deceased. The learned senior counsel submits that from the evidence led by the prosecution themselves, the appellant and the deceased were living peacefully as husband and wife and there