Point of Law: Provisions of Section 106 of Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within knowledge of a person, burden of proving that fact is upon him.

JUDGMENT :

Kardak Ete, J.

Heard Mr. K.K. Mahanta, learned Senior counsel assisted by Mr. N. Begum, learned counsel for the appellants and heard Ms. B. Bhuyan, learned Additional Public Prosecutor for the State of Assam.

2. This appeal from Jail has been preferred by Md. Abdul Hekim and Md. Abdul Rahim assailing the judgment and order dated 13.05.2019 passed by the Court of Sessions Judge, Nagaon in Sessions case no. 387(N) of 2012 whereby the appellants namely Md. Abdul Hekim and Md. Abdul Rahim along with 4 (four) other accused namely Sahed Ali and Azizul Hoque @ Aijul Hoque, Miya Hussain and Habibur Rahman have been convicted under Section 302/201/34 IPC, 1860 for committing the murder of Azibur Rahman and sentenced to undergo rigorous imprisonment for life and also to pay fine of Rs. 10,000/-each and in default, rigorous imprisonment for another six months. The accused persons have also been sentenced to undergo rigorous imprisonment for three years and also to pay fine of Rs 1000/-each, in default, rigorous imprisonment for another one month under section 201/34 IPC, 1860.

3. The case of the prosecution, in brief, is that on 14.04.2008, the informant Mustt Rumena Khatoon lodged an FIR before the Dhing P.S alleging that there arose some dispute and the deceased, Azibur Rahman was in bad terms with the accused persons namely Md. Fakaruddin, Md. Abdul Hekim, Md. Abdul Karim, Md. Abdul Rahim, Md. Habibur Rahman, Md. Azizul Hoque @Aijul Hoque, Miya Hussain and Sahed Ali with regard to certain issues for some time. After such dispute, the accused persons have been looking for an opportunity to cause harm to him. It is further alleged that on 13.04.2008, at around 7:00 pm, the above accused persons came to their house in group and called her husband namely, Azibur Rahman on the pretext of discussing certain important matters. Then when her husband took out his bicycle, she held a lamp to show him the road to outside and she saw the accused persons in the gleam of the lamp, but for the whole night her husband did not come back. As such, in the morning, she intimated the matter to other people and the people caught and interrogated Md. Habibur and Azizul Hoque who in turn admitted that they had killed her husband and buried him. Thereafter, the accused persons Md. Habibur and Azizul Hoque were handed over to the Police.

4. On receipt of FIR, the case was registered being Dhing P.S. Case no 61/2008 under section 302/201/34 IPC, 1860. After completion of the investigation, the Investigating Officer has filed a charge-sheet on 31.01.2010 against the accused persons namely Md. Fakaruddin, Md. Abdul Hekim, Md. Abdul Karim, Md. Abdul Rahim, Md. Habibur Rahman, Md. Azizul Hoque, Miya Hussain and Sahed Ali while the accused persons Md. Fakaruddin and Sahed Ali were shown as absconder. The Judicial Magistrate First Class, Nagaon committed the case to the Court of Sessions, Nagaon on 16.10.2012.

5. The accused Sahed Ali subsequently appeared during the trial while the accused Md. Fakaruddin remained absconder. Based on the charge-sheet, charges were framed against the accused persons Md. Abdul Hekim, Md. Abdul Karim, Md. Abdul Rahim, Md. Habibur Rahman, Md. Azizul Hoque, Miya Hussain and Sahed Ali and the same was read over and explained to the accused persons, to which they pleaded not guilty and claimed to be tried. The matter went up for trial. It is noted that during the proceedings of the trial, the accused Abdul Karim expired, as such, the case against him got abetted recorded vied order dated 08.07.2015.

6. During the course of trial, the prosecution has examined in all 9 (nine) witnesses. The statements of the accused persons under section 313 Cr.PC were also recorded. The defence plea is total denial, no evidence has been adduced by the accused persons. Upon consideration of the evidence adduced on records, the learned Trial Court concluded that considering the facts and circumstances of the case and the evidences and materials available o