JUDGMENT :

Heard Ms. Neise Liegise, learned counsel for the appellants and Mr. Veto V. Zhimomi, learned Public Prosecutor, Nagaland for the State.

2. This appeal under Section 374(2) of the Code of Criminal Procedure, 1973 is filed against the impugned Judgment and Order dated 05.09.2019 passed by the learned Court of Principal District & Sessions Judge, Kohima, Nagaland, in GR No. 191/2013 in Case No. 0076/13 convicting the 3 (three) accused persons, namely, Tepuseto Sophie (A-1), Kehosol Tetso (A-2) and Menyungol Tase (A-3) and sentencing each one of them to undergo five (5) years rigorous imprisonment for the offence under Section 364 IPC and to undergo seven (7) years for offence under Section 304 Part(II) IPC and the sentence against them shall run concurrently.

3. The prosecution case in brief is that on 24.10.2013 an information was received by the OC, South Police Station, Kohima, to the effect that one unidentified body of a male was found between Khuzama and Viswema Village near Chowkhwi river bridge. On such information, the Khuzama Police Station party visited the location, had the dead body identified as one Jaimul Islam @ Ibrahim, s/o Abdul Haque of Assam, held inquest over the body and then sent the same for post-mortem Examination at NHAK and thereafter it was handed over to the relative of the deceased. On the same day a written complaint was received from Shri R. Kire, President of ANTA, Kohima unit, and Menuovile Sohu, Action Committee Convener of ANTA. Accordingly, a case was registered as Kohima South Police Station case No. 0076/13 under Section 364/356/392/302/34 IPC.

4. During the course of investigation four (4) accused persons were arrested and after completion of investigation, the I.O. found prima facie case established against four accused persons, namely; (i) Puzoto@Ato, (ii) Kehosol Tetso, (iii) Menyungol Tase and (iv) Tepuseto Sophie and laid charge-sheet against them for offence under Section 364/356/392/302/34 IPC. And since the offence was exclusively triable by the Sessions judge, the case was committed to the Sessions Judge, Kohima. The learned Sessions Judge then framed charge against all the accused persons under Section 364/356/392/302/34 IPC, the charges so framed were read over and explained to all the accused persons to which all the accused persons pleaded not guilty and claimed trial.

5. To establish their case, the prosecution has produced altogether eleven (11) witnesses and examined two (2) Court witnesses. On completion of evidence, the accused persons were examined under section 313 Cr.P.C and recorded their statement whereby all the accused persons had denied the incriminating circumstances put to them. None of the accused had produced any defence evidence.

6. On conclusion of trial, the learned Sessions Court held that the charges brought against the accused persons/appellants have been proved beyond reasonable doubt and accordingly, convicted all accused persons for offence under section 364 IPC and sentenced them to undergo five (5) years of rigorous imprisonment for the offence under Section 364 IPC; the learned court found no case against them for offence under section 302 IPC; however, and 3 (three) accused /appellant were found guilty for commission of offence under section 304 part-II IPC, hence sentenced them to undergo seven (7) years of rigorous imprisonment for offence under Section 304 Part (II) IPC. Aggrieved by the said conviction and sentence, the 3 (three) appellants filed this appeal with the following two prayers: (i) to set aside the conviction under section 364 IPC, and (ii) to reduce the quantum of sentence with respect to the conviction under section 304 Part-II of IPC.

SUBMISSION OF THE LEARNED COUNSEL FOR THE APPELLANTS:

7. With regard to the first prayer to set aside the conviction under section 364 IPC, Ms. Neise Liegise, learned counsel for the appellants made the following submissions:

1. That in the instance case, the act in the incident day was committed