Point of Law : It was not permissible for the trial Court to split the same evidence to grant acquittal to one co-accused while convicting the other.

JUDGEMENT :

Suman Shyam, J.

1. Heard Mr. D.P. Chaliha, learned senior counsel assisted by Ms. M. Roy, learned counsel for the appellant. We have also heard Ms. S. Jahan, learned APP, Assam, appearing for the State.

2. This appeal is directed against the judgement dated 10/11/2016 passed by the learned Additional Sessions Judge No. 1, Tinsukia, in connection with Sessions Case No. 127(T)/2003 whereby, the sole appellant Dinesh Gohain was convicted under Section 447/302 of the Indian Penal Code (IPC) and sentence to undergo rigorous imprisonment for life and also to pay fine of Rs. 30,000/-for committing the offence under Section 302 IPC. The accused/appellant was also sentenced to undergo rigorous imprisonment for 3 (three) months and to pay fine of Rs. 5,000/-for committing the offence under Section 447 of the IPC. Both the sentences were to run concurrently.

3. The facts and circumstances of the case, give rise to the filing of this appeal, is briefly indicated herein below. On 27/02/1999, Sri Bitbor Gogoi had lodged an ejahar before the Officer-in-Charge of the Tinsukia Police Station reporting that on 26/02/1999, at about 10-30/11-30 p.m. some unknown miscreants had hacked his younger brother Swadin Gohain and sister-in-law Binapani Gohain on various parts of their bodies with sharp weapons, thereby killing them and left the dead bodies in front of the house and inside the compound of the deceased. Accordingly, a request was made to initiate appropriate action in the matter and apprehend the culprits. Based on the ejahar dated 27/02/1999, Tinsukia PS Case No. 91/1999 was registered under Section 448/302 IPC and the matter was taken up for investigation.

4. During the course of investigation, the Investigation Officer (IO) had arrested 3 accused persons, including the present appellant Dinesh Gohain, on 01/03/1999. However, it appears that all the three accused persons were granted bail by the learned trial Court.

5. Upon completion of investigation, the IO had submitted charge sheet against three accused viz. Dinesh Gohain, Pandit Gohain and Puspadhar Barua under the provisions of Section 448/302/34 of the IPC. However, it appears from the record that two accused persons, viz. Dinesh Gohain and Pushpadhar Barua went absconding, as a result of which, the third accused, viz. Pandit Gohain was alone subjected to trial. On conclusion of trial of Pandit Gohain, the learned trial Court had reached a conclusion that the prosecution had failed to prove the charge brought against him beyond reasonable doubt. As such, by the judgement dated 30/06/2004, accused Pandit Gohain was acquitted. Appellant Dinesh Gohain was re-arrested by the Police on 20/10/2012 and fresh charge was framed against him on 03/10/2012 under Section 447/302 of the IPC. Thereafter, the appellant was subjected to trial which commenced on 07/11/2012. It is, however, not clear from the record as to the fate of the accused Puspadhar Barua, who, according to some witnesses, had expired before he could be subjected to trial.

6. While proceeding against accused Pandit Gohain, the prosecution side had examined 13 witnesses including the minor daughter of the deceased viz. Smt. Malabika Gohain as PW-6, the doctor who had conducted the post-mortem examination (PW-8) and the three Investigating Officers, who had conducted the investigation in connection with Tinsukia PS Case No. 91/1999 and ultimately submitted charge sheet, as PWs 13, 14 and 15. Subsequently, the PW-6 Smt. Malabika Gohain and PW-4 Sri Putu Gohain were re-examined as PWs 10 and 11 respectively during the trial conducted in respect of the present appellant. However, it appears that the other witnesses did not appear during the trial of the appellant Dinesh Gohain despite receipt of summons, as a result of which, the appellant did not get any opportunity to cross examine any of those witnesses. Be that as it may, a bare reading of the impugned judgement goes to show that the learned trial Court had relied upon the