Point of Law: It would always be open for prosecution to decide on quality and quantity of evidence that they wish to lead in order to establish charge and this Court cannot comment on such aspect of matter, as long as it is found that charge has been proved beyond reasonable doubt based on evidence brought on record.

JUDGMENT :

Suman Shyam, J.

1. Heard Mr. Mrinmoy Dutta, learned Amicus Curiae appearing for the appellant. We have also heard Ms. B. Bhuyan, learned senior counsel and APP, Assam, assisted by Mr. J. Das, appearing on behalf of the State of Assam. None has appeared on behalf of the respondent no. 2.

2. By the impugned judgement dated 28/09/2018 passed by the learned Additional Sessions Judge, Bajali, Pathsala in sessions case No. 102/2017, the sole appellant was convicted under Section 302 of the IPC for committing the murder of his minor daughter and sentenced to undergo rigorous imprisonment for life and also to pay fine of Rs. 5000/-, in default, to undergo simple imprisonment for one year.

3. The brief facts and circumstances of the case, leading to filing of this appeal, are as follows :

4. On 24/07/2016, Ms. Asma Khatun i.e. the wife of the accused/appellant and the mother of the victim had lodged an ejahar before the Officer-in-Charge, Bhawanipur Police Out Post reporting that at around 7-45 a.m. on that day, the accused took her daughter Suhana Akhtar (aged 2.5 years) to the nearby shop telling that he would buy her some biscuit and killed the child on the way by stabbing her on the chest with a sharp weapon. Thereafter, the accused had injured himself pretending to have attempted suicide.

5. Based on the ejahar dated 24/07/2016 pertaining to the Bhawanipur Out Post GDE No. 516, Barpeta Police Station case No. 1482/2016 was registered under Section 302 of the IPC. The matter was then taken up for investigation by the Police. On completion of investigation, I.O. had submitted charge sheet against the accused Ayub Hussain @ Ayub Ali under Section 302 of the IPC for committing the murder of his minor daughter Suhana Akhtar. Based on the charge sheet submitted by the Police, the learned trial Court had framed charge against the accused/appellant under section 302 of the IPC, which was read over and explained to the accused persons, to which, he had pleaded not guilty and claimed to be tried.

6. During trial, the prosecution side had examined as many as 14 witnesses including the informant Ms. Asma Khatun (PW-2), the doctor who had conducted the Post-Mortem examination on the dead body (PW-1) and the IO, who had carried out investigation and submitted charge sheet (PW-14) in the case. Thereafter, the statement of the accused/appellant was recorded under Section 313 of the Cr.P.C., wherein, the accused had denied all the incriminating circumstances put to him. The appellant/accused, however, did not adduce any evidence although he was offered opportunity to do so.

7. On conclusion of trial, the learned Additional Sessions Judge, Bajali, Pathsala, had found that the charge brought against the accused/appellant was proved beyond reasonable doubt. Accordingly, the learned trial Court had convicted the appellant/accused under section 302 IPC and sentenced him in the manner indicated herein above. Being aggrieved by the impugned judgement dated 28/09/2018, the appellant has preferred the instant appeal.

8. By referring to the impugned judgement, Mr. M. Dutta, learned Amicus Curiae, appearing for the appellant, has argued that save and except the testimony of PW-2, there is no other evidence available on record which implicates the appellant/accused in this case. In view of the fact that some of the villagers have deposed before the Court by stating that they have heard that it could be either the appellant or his wife i.e. the PW-2 who might have killed the child and in view of the explanation furnished by the accused/appellant while recording his statement under Section 313 Cr.P.C. by stating that it was his wife i.e. the PW-2, who had killed the child and assaulted him with a “Chaku” and later on, got married with another boy with whom she was having illicit relationship, there is a genuine doubt arising in this case as to the true identity of the culprit. As such, Mr. Dutta has argued that it is a fit case where the appellant/accused des