Point of Law : Conviction set aside - Prosecution has failed to prove the charge brought against the accused persons beyond reasonable.

JUDGMENT :

Suman Shyam, J.

Heard Mr. U. Choudhury, learned Amicus Curiae appearing for the appellant in Crl. Appeal (J) No.84/2018 and Ms. R. D. Mazumdar, learned Amicus Curiae appearing for the appellant in Crl. Appeal (J) No.105/2018. We have also heard Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam, appearing for the State.

2. Both these jail appeals are directed against the common judgment dated 06.07.2018 passed by the learned Additional Sessions Judge, Nagaon in Sessions Case No.26/2017 convicting both the appellants under Section 302/34 of the Indian Penal Code for committing the murder of Monoranjan Deka and sentencing them to undergo rigorous imprisonment for life and also to pay fine of Rs.5000/-each with default stipulation. Crl. Appeal (J) No.84/2018 has been preferred by appellant Ram Krishna Laskar (A-1) whereas Crl. Appeal (J) No.105/2018 has been preferred by co-accused/appellant Pranjal Laskar (A-2).

3. The facts of the case, in brief, is that on 10.08.2016 the father of the victim viz., Sri Ratneswar Deka had lodged an ejahar before the Officer-in-Charge of Nagaon Sadar Police Station Nagaon alleging that on 09.08.2016 while his son Monoranjan Deka (Babu) was watching T.V. in his own house, the accused persons, who live adjacent to his house, had called his son at around 9.00 p.m. At around 12 at night, the A-1 had informed his son-in-law, who stays in the nearby house, that his son Babu was lying unconscious in the backside of the house of the 2nd party. Immediately, they had arrived at the place of occurrence and found his son lying in a pool of blood with grievous injuries on his head and near the right ear. They immediately took him to B. P. Civil Hospital, Nagaon where the doctors declared him dead. The informant had also stated that he suspected that the 2nd party had hacked his son to death with sharp weapon in a pre-planned manner by calling him away from the house with a conspiracy. In the ejahar dated 10.08.2016, the name of the two appellants have been mentioned as 2nd party/accused.

4. On the basis of the ejahar dated 10.08.2016, Nagaon Sadar P.S. Case No.2033/2016 was registered under Section 302/34 IPC. The matter was then taken up for investigation. Upon completion of investigation, the Investigating Officer (I.O.) had submitted charge-sheet against the two appellants as well as another accused person viz., Liladhar Deka. The learned Sessions Judge had accordingly framed charge against all the three accused persons under Section 302/34 IPC. Since the accused persons had pleaded innocence, the matter went up for trial. At the conclusion of trial, the learned Additional Sessions Judge has held that the prosecution has succeeded in establishing the charge brought against both the appellants under Section 302/34 IPC. However, accused Liladhar Deka was acquitted on benefit of doubt by holding that the prosecution has failed to prove the charge brought against him.

5. Assailing the impugned judgment the learned Amicus Curiae for both the appellants have argued that this is a case of no evidence against in as much as the prosecution has also failed to establish the charge brought against the appellants by adducing cogent evidence on record. Notwithstanding the same, the appellants have been convicted merely on the basis of “last seen together” theory which cannot be the sole basis of conviction under Section 302 of the IPC. By relying upon the decision of the Hon’ble Supreme Court rendered in the case of Kanhaiya Lal vs. State of Rajasthan reported in (2014)4 SCC 715 as well as the subsequent decision of the Division Bench of this Court rendered in the case of Shyamal Das vs. State of Assam reported in 2017 STPL 11901 Gauhati Ms. Mazumdar has argued that “last seen together” circumstance is a week piece of evidence and that the prosecution has failed to establish any other circumstances for holding the appellants/accused persons guilty of committing murder of the deceased. The mere fact that th