Point of Law: Prosecution is required to prove the charge beyond reasonable doubt and not beyond all iota of doubt.

JUDGMENT :

SUMAN SHYAM, J.

1. Heard Mr. H.R.A. Choudhury, learned senior counsel assisted by Mr. A. Ahmed and Mr. I.A. Talukdar, learned counsel appearing for the appellants. We have also heard Ms. S. Jahan, learned APP, Assam, who has appeared on behalf of the State of Assam. None has appeared for the informant.

2. The two appellants in Criminal Appeal No. 170/2020 viz. Md. Jalaluddin and Md. Sakil Ahmed have jointly preferred the aforesaid appeal assailing the common judgment and order dated 30.12.2019 passed by the learned Additional Sessions Judge (FTC), Sonitpur, Tezpur in Sessions Case No. 127/2018, convicting both the appellants under Sections 302/201/379/34 of the Indian Penal Code (IPC) for committing the murder of Santosh Rai throwing away the dead body from the hill top and also for stealing the vehicle. The appellants have been sentenced to undergo rigorous imprisonment for life and also to pay fine of Rs. 10,000/- each for committing the offence under Section 302/34 of the IPC with default stipulations. Both the appellants/accused persons were also sentenced to undergo rigorous imprisonment for a period of 7 (seven) years and also to pay fine of Rs. 5,000/- each for the offence committed under Section 201/34 of the IPC and to undergo rigorous imprisonment for 3 (three) years for the offence committed under Section 379/34 IPC. It appears that subsequently, one of the appellants, viz. Md. Sakil Ahmed has preferred a separate appeal against the impugned judgment which was registered as Criminal Appeal No. 66/2021.

3. The prosecution case, in a nutshell, is that at around 05:00 p.m. on 29.04.2017, the two appellants had hired a Swift Dezire vehicle belonging to the PW-6 for going to Shillong and on the way, they had murdered the driver Santosh Rai, threw his body down the hill and took away the vehicle. The stolen vehicle was later recovered from the custody of appellant No. 1 Md. Jalaluddin at Badarpur more than a year later. However, the driver Santosh is still missing.

4. On 01.05.2017, Md. Ainul Haque i.e. the owner of the Swift Dezire vehicle bearing No. AS07-D/9009 had lodged an ejahar before the Officer-in-Charge of Tezpur Sadar Police Station informing that on 29.04.2017, at around 5 p.m. his driver went to Shillong with his Car but since 10 p.m. of that evening, he had lost contact with the driver, who had not returned back with the vehicle. Since he was waiting for the car along with the driver, hence, there was delay in lodging the ejahar.

5. Upon receipt of the ejahar dated 01.05.2017, Tezpur P.S. Case No. 790/2017 was registered under Section 365/379 of the IPC and the matter was entrusted to S.I. Abdul Momin of Tezpur Police Station for carrying out investigation. After about 9 months from the date of commencement of the investigation the stolen vehicle was recovered at Badarpur from the possession of appellant No. 1 Md. Jalaluddin. He was arrested by the Badarpur Police on 28.03.2018 and the vehicle was seized on 29.03.2018 by S.I. Romen Baruah of the Tezpur P.S. Based on the statement of accused Jalaluddin, the co-accused Sakil Ahmed was also arrested around 15 days later. A TIP was conducted, whereby the accused Jalaluddin was identified by PW-5 as one of the persons who had come to the Taxi Stand on 29.04.2017 to hire the vehicle. On conclusion of investigation, the Investigating Officer (IO) had submitted charge sheet against both the accused persons under Sections 365/379/201/302 of the IPC. Since it was a case triable by the Sessions Court, the matter was committed to the Court of the learned Additional Sessions Judge (FTC), Sonitpur. Charges were framed against both the accused persons under Sections 365/379/202/302/34 IPC by the learned trial Court and the same were read over and explained to the accused persons but since they had denied the charges brought against them and claimed to be tried, the matter went up for trial.

6. The prosecution case is entirely based on circumstantial evidence. In order