JUDGMENT :

Malsari Nandi, J.

Heard Mr. A. Bhattacharya, learned counsel for the accused-appellant. Also heard Mrs. B. Bhuyan, learned Additional Public Prosecutor for the State/respondent No. 1 and Mr. J. Das, learned counsel for the respondent No. 2.

2. This appeal has been preferred by the appellant Sri Bimal Krishna Nath who is the elder brother of the deceased against the judgment and order dated 28.06.2013 passed by the learned Additional Sessions Judge No.2, Kamrup(M), Guwahati in Sessions Case No. 300(K-G)/2010, whereby the respondent No. 2 Nurul Islam has been acquitted by the trial court.

3. The brief facts of the case is that on 20.04.2010, S.I. of Police Karuna Bora of Latashil P.S. lodged an FIR before the officer in charge of Latashil P.S. stating interlia that on 18.04.2010, the informant Dr. Arun Kumar Bora, professor of Geology, Cotton College, Guwahati lodged an FIR to the effect that his sister-in-law, Dr. Bivadevi, lecturer of the Geology Department, Cotton College, Guwahati, was found dead in her residence at Professor Colony, Flat Number D-3(Cotton College) which appeared as unnatural death. Accordingly, a case was registered vide Latashil P.S. UD Case No. 03/2010 dated 18.04.2010.

4. During investigation, the investigating officer visited the place of occurrence, examined available witnesses and it was found that the accused, namely Raju Ali @ Julhaz Ali, S/o Nurul Islam of Jania Bajar Barpeta and Md. Nurul Islam, S/o Samsul Haque of Rupakuchi of Barpeta Police Station had committed robbery and murder conjointly to the victim/woman on 17/04/2010 at about 5:30 to 06:00 p.m. while deceased Biva Devi was alone in her quarter.

5. In the course of investigation of aforesaid UD case which is a counterpart of murder, it appears that the aforesaid persons committed the robbery and murder. In the course of investigation, the mobile phone of victim bearing IMEI number 35968100024823/100 had been recovered from the possession of the involved accused Raju Ali @ Julhas which was seized accordingly. It is also alleged in the FIR that the apprehended persons also confessed their guilt and led in the process of investigation.

6. On the basis of the complaint, a case was registered vide Latashil P.S. Case No. 73/2010 under Section 394/302 IPC and further investigation was initiated. It also appears that immediately after the incident, a GD entry was recorded and the inquest was conducted on the dead body of the diseased and subsequently the dead body was forwarded for post-mortem examination. After completion of investigation, charge-sheet was submitted against the accused Raju Ali @ Julhas and Nurul Islam i.e. present respondent No.2 under Section 394/302/34 IPC. As the offence under section 302 IPC is exclusively triable by the court of Sessions, the case was committed accordingly.

7. During trial, prosecution examined 26 witnesses and marked 17 exhibits. On the other hand, the defence did not choose to adduce any evidence in support of his case. It is pertinent to say here that prior to committal of the case, a petition was filed before the learned Magistrate that the accused Raju Ali @ Julhas was minor at the relevant time of incident. In support of the fact, a school certificate was submitted before the learned Magistrate. Accordingly, an inquiry was made. After examining probable witnesses and the documents, the learned Magistrate held that Raju Ali @ Julhas Ali was juvenile on the date of occurrence. Accordingly, it was directed to produce Raju Ali @ Julhas Ali before the Juvenile Justice Board, Kamrup. Hence, the respondent No. 2 only faced the trial before the Sessions Court. Accordingly, charge was framed under section 394/302/34 IPC against the respondent No.2 which was read over and explained to him which he pleaded not guilty and claimed to be tried.

8. After completion of trial, the statement of the respondent No. 2 was recorded under Section 313 Cr.P.C. wherein he denied the allegations of any involvement of committ