JUDGMENT :

Suman Shyam, J

1. This appeal has been instituted by the Central Bureau of Investigation (CBI) with the leave of this Court, assailing the judgment and order of acquittal dated 22/07/2017 passed by the Court of learned Additional Sessions Judge No. 2, Kamrup (M), Guwahati, in connection with Sessions case No. 9/1999.

2. Heard Mr. R.K.Dev Choudhury, learned Assistant Solicitor General of India (ASGI), appearing for the appellant. We have also heard Mr. A.K. Bhattacharya, learned senior counsel assisted by Mr. B.K. Singh and Mr.D.K. Bhattacharya, learned counsel for the respondent no.1 as well as Mr. D.K. Mishra, learned senior counsel assisted by Mr. A. Shandilya, learned counsel for the respondent no. 2.

3. The facts and circumstances leading to filing of the present appeal may be briefly noticed as follows :On 31/07/1995, at about 10-15 p.m., unidentified gunman shot dead Smt. Karabi Das and grievously injured her daughter Dubori Das @ Chandrani Dharitri Das at their rented house situated at Ambari, behind the AGP Office complex. Karabi Das died on the spot whereas her injured daughter Dubori Das succumbed to her bullet injuries a few minutes later while undergoing treatment at the nearby Wintrobe Hospital.

4. One Manajit Bhagawati (PW-3), a neighbour of the deceased, had orally informed the Latasil Police Station about the occurrence, based on which, GD entry No. 920 dated 31/07/1995 was made by the Officer-in-Charge of the Police Station and a Police party rushed to the place of occurrence. On reaching their, the Police had found the dead body of Karabi Das lying in a pool of blood. On the same evening, Sri Prabal Das, who is the brother-in-law of the deceased Karabi Das, had lodged an ejahar (Ext.-5) before the Officer-in-Charge, Latasil Police Station, stating that at about 10-15 p.m., his sister-in-law Karabi Das, wife of Mr. Ujjal Kumar Das and his niece Ms. Chandrani Dharitri Das had been shot dead by some unidentified gunmen at the place of residence, which is the rented house of Late Manabendra Sarma. It has also been mentioned in the FIR that on reaching the place of occurrence, the informant had found that the dead body of his sister-in-law was lying in their rented house in a pool of blood and his niece as lying dead in the nearby Wintrobe Nursing Home. At the time of the incident, the maid servant Ms. Manju (PW-2) was at the terrace to collect clothes and the husband of the deceased Karabi Das was at Bombay in connection with some work.

5. On receipt of the ejahar (Ext-5), Latasil Police Station case No. 70/1995 was registered by the Assam Police under Section 302 of the Indian Penal Code (IPC) and the usual investigation had commenced. During the course of investigation, the Police had also prepared Inquest report, carried out post-mortem examination on the dead body, seized certain articles, recorded the statement of the witnesses. The Police had also sent Smt. Manju Dey (PW-2) and the minor son of deceased Karabi Das, viz. Angshuman Arbind Das (PW-35) for recording their statement before the Magistrate and accordingly, the statements of those two witnesses were recorded by the Magistrate under Section 164 Cr.P.C. on the next day of the incident i.e. on 01/08/1995. It also appears from the record that the accused nos. 1 and 2 were arrested by the Police but the accused No. 3, viz. Bhupen Medhi could not be found.

6. During the course of investigation, the confessional statement of accused No. 2/respondent no. 2 Fatiur Ali, who was serving as the Driver of the accused No.1/respondent no.1 at the time of the incident, was also recorded under Section 164 Cr.P.C. (Ext.-32). However, at that stage, the investigation in connection with Latasil PS Case No. 70/1995 was handed over to the CBI by the order dated 22/09/1995 passed by this Court in connection with CR No. 3587/1995. Accordingly, CBI case No. RC 9/SCB/1995/Cal was registered against unknown persons on 06/11/1995 based on the FIR (Ext-5) and investigation