JUDGMENT :

[N. Kotiswar Singh, J.]

1. Heard Mr. S. Borgohain, learned counsel for the appellant in Crl.A.(J) 29/2015; Ms. M. Buzarbaruah, learned amicus curiae for the appellant in Crl.A.(J) No.30/2015 as well as Mr. A. Ahmed, learned counsel, appearing for the appellants in Crl.A. No.98/2015. Also heard Ms. S. Jahan, learned Additional Public Prosecutor, Assam, appearing for the respondent No.1 and Mr. D. Baruah, learned counsel appearing for the respondent No.2.

2. These three appeals have been taken up together as these arise out of the same judgment dated 09.03.2015 rendered by the learned Sessions Judge, Jorhat, in Sessions Case No.118(J-J)/2008, by which 4(four) accused, namely, (i) Md. Rustam Ali @ Matu, (ii) Bidya Sagar Rabi Das @ Badam, (iii) Fazlul Ali and (iv) Junu Rahman, have been convicted under various sections of the Indian Penal Code, 1860 IPC (hereinafter referred as IPC).

The appellant in Crl.A.(J) No.29/2015, namely, Md. Rustam Ali @ Matu and the appellant in Crl.A.(J) No.30/2015, namely, Bidya Sagar Rabi Das @ Badam, have been convicted under Sections 302/34 & 380/34 of IPC.

On the other hand, the two appellants in Crl.A. No.98/2015, namely, Fazlul Ali and Junu Rahman have been acquitted of the charge under Sections 302/34 IPC, but convicted under Section 411 of IPC and Section 380 of IPC, respectively.

Crl.A.(J) No. 29/2015

3. Mr. S. Borgohain, learned counsel for the appellant in Crl.A.(J) No.29/2015 submits that apart from the retracted confessional statement of the appellant, none of the prosecution witnesses has leveled any allegation against the appellant and the Trial Court convicted the appellant based on a presumptive fact, which did not exist, relying on the statement of one witness (PW1) that the appellant had whitewashed house of the PW1, who was brought by another appellant (Bidya Sagar) and the PW1 had owed some money for the works done by the appellant Rustom Ali which was paid about 4/5 days before the incident.

Crl.A.(J) No.30/2015

4. Ms. M. Buzarbaruah, learned amicus curiae for the appellant in Crl.A.(J) No.30/2015 has also submitted that the appellant cannot be convicted under Section 302 of IPC in as much as except for the confessional statement of the co-accused, namely, Md. Rustam Ali @ Matu, the other appellant, there is no other evidence to sustain the conviction. It has been submitted that even the aforesaid confessional statement of Md. Rustam Ali @ Matu was retracted by him during the trial and as such, it being a very weak piece evidence it could not be used to convict the appellant Bidya Sagar Rabi Das @ Badam without any corroboration, which is missing.

Crl.A. No.98/2015

5. On the other hand, it has been submitted by Mr. A. Ahmed, learned counsel for the other appellants, namely, Fazlul Ali and Junu Rahman, in Crl.A. No.98/2015 that though the learned Trial Court had acquitted both these appellants of the charge of committing offence under Section 302/34 of IPC, yet convicted them under Section 411 of IPC and Section 380 of IPC, respectively, even though there were insufficient material evidence against them.

6. In order to appreciate the aforesaid submissions advanced, we will briefly refer to the background facts.

The criminal justice system was put into motion after an FIR was lodged on 29.05.2006 by one Priyatam Barhoi (PW-1), the grandson of the deceased woman, namely, Manki Neog, aged about 85 years, alleging that at around 10 o’clock on 29.05.2006 some unknown persons had killed his grandmother by sawing her throat and they also looted movable properties including ornaments, computer, DVD, cash, etc. On the basis of the said FIR lodged, a police case being Pulibar P.S. Case No.77/2006 under Section 396 of IPC was registered in Pulibar Police Station.

Accordingly, the investigation was launched. After carrying out the investigation by examining the relevant witnesses and recovery of stolen goods, on completion of the same, charge-sheet was filed against the aforesaid 4(four) accuse