Point of Law: It is a primary principle that accused “must be” and not merely “may be” guilty before a Court can convict him.

JUDGMENT :

1. Heard Ms. Debashree Saikia, learned Amicus Curiae for the appellant. Also heard Ms. Barnali Bhuyan, learned Additional Public Prosecutor, Assam for the Respondent No.1. None has appeared for the Respondent No.2.

2. This Jail Appeal has been preferred by the appellant Shri Janglu Majowar, through Superintendent, District Jail Sivasagar, against the judgment dated 19.12.2018, passed by the learned Sessions Judge, Sivasagar in Sessions Case No. 208 (S-N) of 2016 (arising out of GR Case No. 560/2015), whereby the present appellant has been convicted under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment of life and to pay a fine of Rs. 5,000/-, in default of payment of fine to undergo simple imprisonment of another period of two months.

3. The facts relevant for adjudication of this Criminal Appeal (Jail), in brief, are as follows:

(i) That, on 21.05.2015 one Shri Bijoy Chik lodged an FIR before Officer-in-charge of Gelakey Police Station, inter-alia, alleging that on that day at around 7.30 pm appellant Janglu Majowar, entered into the house of the elder brother of the first informant, namely Monku @ Mantu Garh and his wife Chalu Garh and killed both of them by hacking them with a “dao’’ and when the appellant was leaving the house after committing the offence, the first informant asked him to stop but the appellant fled away and later on he appeared in the police station.

(ii) On receipt of the said FIR, the Officer-in-charge of Gelakey Police Station registered Gelakey P.S. Case no. 132/2015 under Section 448/302 of the Indian Penal Code and he himself took up the investigation of the said case. Ultimately, on completion of the investigation, charge-sheet was laid under section 448/302 of the Indian Penal Code against the present appellant, in the Court of learned Sub-Divisional Judicial Magistrate (M), Nazira, Sivasagar, who, in due course committed the said case to the court of learned Sessions Judge, Sivsagar.

(iii) The present appellant faced the trial remaining in judicial custody. On 03.02.2018, after considering the materials on record and after hearing both sides, learned Sessions Judge, Sivasagar framed charge under Section 302 of the Indian Penal Code against the present appellant. When the said charge was read over and explained to the present appellant, he pleaded not guilty to the said charge and claimed to be tried.

(iv) During the course of trial the prosecution side examined 13 (thirteen) prosecution witnesses. The accused was examined under Section 313 of the Code of Criminal Procedure, 1973, during which he denied the truthfulness of the testimony of prosecution witnesses and pleaded his innocence. However, by the judgment, which is impugned in the instant appeal, the present appellant was convicted, by the learned Sessions Judge, Sivasagar, under Section 302 of the Indian Penal Code and he was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/-and in default of payment of fine to undergo simple imprisonment of another period of two months for committing offence punishable under Section 302 of the Indian Penal Code.

4. Before considering the rival contentions of learned counsel for both the sides, let us go through the relevant evidence which is available on record.

5. PW-1, Dr. Pradip Kumar Saikia, who is the doctor, who conducted the post-mortem examinations of the dead bodies of both the deceased, has deposed that on 22.10.2015 while he was working as Senior Medical & Health Officer at Sivasagar Civil Hospital, he examined the dead body of Monku Garh, son of late Chakal Garh, in connection with Gelakey P.S. Case No. 132/2015 under sections 448/302 of the Indian Penal Code, on police requisition. His findings, which are relevant for the instant case, are reproduced herein below:

1. External appearance:

Medium built. Rigor mortise present.

2. Injuries:

(i) Sharp deep cut injury over the left shoulder joint. Size 10 cm.

(ii) Sharp