Point of Law : Evidence available on record cannot be split to grant benefit to some co-accused while maintaining the conviction of another who stand on the same footing and deserves parity in treatment

JUDGEMENT :

Suman Shyam, J.

Heard Mr. B. Narzary, learned senior counsel assisted by Mr. S. Chouhan and Mr. P. Mazumdar, learned counsel appearing for the appellant. Also heard Ms. S. Jahan, learned Addl. Public Prosecutor, Assam representing the State. None has appeared for the informant/respondent No.2.

2. By the judgment dated 14.11.2018 passed by the learned Additional Sessions Judge, Udalguri in connection with Sessions Case No.01(U)/2015 the sole appellant was convicted under Sections 302/201 of the Indian Penal Code (IPC) for committing the murder of Ramchandra Gorh and for concealing his dead body. For the offence committed under Section 302 of the IPC, the appellant, viz., Jakhunda Narzary was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/-with default stipulation, whereas, for the offence committed under Section 201 of the IPC, he was awarded the sentence of rigorous imprisonment for three years and to pay fine of Rs.5000/-with default stipulation. All the sentences to run concurrently. The four other co-accused persons viz., Gaikher Narzary, Sanjib Mochahary, Raja Narzary and Uday Narzary were acquitted in respect of the charges framed against them under Sections 302/201/364/34 IPC due to lack of evidence.

3. The prosecution case, briefly stated, is that on 16.04.2005 the deceased Ramchandra Gorh was forcefully taken away, by around 12 persons belonging to the Bodo community, to a nearby L.P. School. Thereafter, he was assaulted on his head which ultimately led to his death. Subsequently, the body of Ramchandra Gorh was buried in a nearby area. On 18.04.2005 the daughter of the deceased viz., Smti Basanti Gorh had lodged an ejahar with the In-Charge of Bhairabkunda Police Outpost. On receipt of the ejahar, G.D. Entry No.271 dated 18.04.2005 was made in the Bhairabkunda Outpost and thereafter, the same was forwarded to the Officer-in-Charge of Udalguri Police Station for registering a proper case. Based on the aforesaid ejahar, Udalguri P.S. Case No.44/2005 was registered against five accused persons under Sections 364/302/201 of the IPC and the case was taken up for investigation. On completion of investigation the I.O. had submitted charge-sheet against five accused persons viz., Jakhunda Narzary, Gaikher Narzary, Sanjib Mochahary, Raja Narzary and Uday Narzary.

4. On committal of the case to the Court of Sessions, the learned Sessions Judge had framed charges under Sections 302/201/34 IPC against all the five accused persons. However, since the accused persons had pleaded not guilty and claimed to be tried, the matter went up for trial.

5. The prosecution case is based on circumstantial evidence. In order to bring home the charge, the prosecution side had examined as many as 18 witnesses including the doctor who had conducted the post-mortem examination on the dead body (PW-15) and the I.O. who had conducted the investigation (PWs-16). After recording the evidence of the prosecution witnesses the statements of all the five accused persons including the appellant herein, were recorded under Section 313 of the Cr.P.C. whereby, they had denied the incriminating circumstances put to them. The defence side, however, did not lead any evidence.

6. On conclusion of trial, the learned Additional Sessions Judge, Udalguri had found the appellant Jakhunda Narzary guilty of offence committed under Sections 302/201 of the IPC and sentenced him as aforesaid. However, as mentioned hereinbefore, the other four accused persons were acquitted. Aggrieved by the judgment dated 14.11.2018, the instant appeal has been preferred.

7. Mr. Narzary, learned senior counsel appearing for the appellant has argued that the conviction of the appellant is dehors any evidence available on record. According to the learned senior counsel, the prosecution has failed to prove the charge brought against the appellant by adducing circumstantial evidence. It is also the submission of Mr. Narzary that an Assistant Sub-Inspector