JUDGMENT :

M. Zothankhuma, J

Heard Ms. B.D. Sarmah, Legal Aid Counsel for the appellant in Criminal Appeal (J) No. 81/2022 and Mr. D.J. Haloi, learned counsel for the appellant in Criminal Appeal No. 36/2022. Ms. B. Bhuyan, learned Addl. Public Prosecutor assisted by Mr. J. Das appears for the State.

2. The two appellants have both been convicted vide Judgment and Order dated 12.01.2023, passed by the Court of the Addl. Sessions Judge, Bijni in Sessions Case No. 329(A)/2018, under Sections 302/34 IPC and sentenced to undergo imprisonment for life with a fine of Rs. 10,000/-each, in default, to undergo Simple Imprisonment for one month.

3. The prosecution case in brief is that FIR dated 17.09.2016 was submitted by the informant (PW-1) to the effect that on 16.09.2016, when he returned home from Tulsijora Bazar at around 8.30 pm, he learnt that his grandson i.e. the appellant in Criminal Appeal No. 36/2022 had come to his house, alongwith the appellant in Criminal Appeal (J) No. 81/2022 and her husband, around 4.30 pm. For easier disposal of these appeals, the appellant in Criminal Appeal No. 36/2022 shall be referred to as ‘X’ and the appellant in Criminal Appeal(J) No. 81/2022 shall be referred to as ‘Y’. The FIR further states that taking advantage of his absence at home, the appellants killed Akhtar Hussain, who is the husband of ‘Y’, by strangulating him with a rope inside his house at around 6:00 pm.

4. Pursuant to the FIR dated 17.09.2016, which was submitted to the Officer-in-Charge, Amguri Police Station, Chirang District, BTAD, Amguri Police Case No. 59/2016 under Sections 302/34 IPC was registered. After investigation was completed by the Investigating Officer(I.O), chargesheet was filed, as the I.O had found a prima facie case against the appellants under Sections 302/34 IPC.

5. Charge under Sections 302/34 IPC was framed against the appellants on 10.04.2019, to which the appellants pleaded not guilty and claimed to be tried.

6. The learned Trial Court thereafter examined 7 prosecution witnesses and after examining the appellants under Section 313 Cr.PC, came to a finding that the appellants had strangulated the deceased with a jute rope. The learned Trial Court thereafter convicted the appellants under Sections 302/34 IPC and imposed the sentences, as mentioned to in the second paragraph.

7. The learned counsels for the appellants submit that there were no eyewitness to the crime and that the jute rope which had been allegedly used for the purpose of strangulating the deceased was not sent to the Forensic Science Laboratory (FSL), for examining whether the same contained the fingerprints of the appellants. They submit that the learned Trial Court had erroneously come to a finding that the appellants were guilty of murder, on the assumption that ‘X’ and ‘Y’ might have been having an illicit affair at the time of the alleged occurrence of the incident, as they had both married after the death of the deceased. They submit that as there is no evidence recorded before the learned Trial Court, with regard to ‘X’ and ‘Y’ ever having an illicit affair during the time of occurrence of the incident, the said premise could not be used as a basis for coming to a finding that an alleged unproven illicit affair was the motive for the crime.

8. The learned counsels for the appellants submit that the learned Trial Court had also convicted the appellants on the basis of the “last seen together” theory, which is not in consonance with the evidence adduced by the witnesses. They submit that the “last seen together” theory would not be applicable to the appellants, as the last person to have seen the deceased was PW-6. They also submit that the evidence of PW-1, PW-2 and PW-6 shows that there is discrepancy with regard to the exact time when the deceased was found dead. They submit that in the cross examination of PW-1, PW-1 had stated that he returned to his house at 7.00 pm and that the time mentioned in the FIR was not correct. In the FIR, t