Suspicion alone cannot establish guilt; direct evidence is required to prove participation in a crime, especially under Section 34 IPC.

JUDGMENT :

Manish Choudhury, J.

1. The instant criminal appeal from jail under Section 374[2], Code of Criminal Procedure, 1973 ['CrPC', for short] is directed against a Judgment and Order dated 27.10.2017 passed by the learned Additional Sessions Judge no. 1, Nagaon, Assam ['the trial court', for short] in Sessions [T1] Case No. 361[N]/2012. It needs mention that two accused persons including the present accused-appellant, stood the trial in Sessions [T1] Case no. 361[N]/2012 for a charge under Section 302, Indian Penal Code ['IPC', for short] read with Section 34, IPC. By the Judgment dated 27.10.2017, both the accused persons including the present accused-appellant, had been convicted under Section 302, IPC read with Section 34, IPC. By separate Orders on sentence dated 30.10.2017, each of two accused persons had been sentenced to undergo rigorous imprisonment for life each and to pay a fine of Rs. 10,000/- each, in default of payment of fine, to undergo rigorous imprisonment for 6 [six] months each.

2. We have heard Mr. I.A. Hazarika, learned Amicus Curiae for the accused- appellant; and Ms. B. Bhuyan, learned Senior Counsel & Additional Public Prosecutor assisted by Ms. M. Chakraborty, learned counsel for the respondent State.

3. Mr. Hazarika, learned Amicus Curiae appearing for the accused-appellant has submitted that the other accused person, Md. Abdul Motalib subsequent to the Judgment of conviction and Order on sentence passed in Sessions [T1] Case no. 361[N]/2012, had preferred an appeal under Section 374[2], CrPC separately and the said criminal appeal was registered as Criminal Appeal no. 37/2018. By a Judgment and Order dated 22.04.2019 rendered in Criminal Appeal no. 37/2018, the co-accused person, Abdul Motalib [hereinafter referred to as 'the co-accused person', for easy reference] has been acquitted by a co- ordinate bench of this court, finding his conviction under Section 302, IPC read with Section 34, IPC unsustainable in law. It is the contention of the learned Amicus Curiae that with the acquittal of the co-accused person, who stood the trial with the present accused-appellant, the spectre of Section 34, IPC stood removed. Submitting further, Mr. Hazarika has contended that there is no iota of evidence, not to speak of any cogent and reliable evidence, to rope in the accused-appellant for the murder of the deceased who was the husband of the accused- appellant, with the aid of Section 34, IPC. It is contended that there was no eye-witness to the incident, though the incident of assault had occurred inside the dwelling house of the deceased and the accused-appellant. At the time of the incident, apart from the deceased and the accused-appellant, one son and two daughters of the deceased and the accused- appellant were present inside the dwelling house. The incident had occurred in the midnight hours itself. The learned trial court has convicted the accused-appellant on the basis of the testimonies of some of the prosecution witnesses, who suspected an extra-marital relationship between the accused-appellant and the co-accused person, who stood acquitted inter-alia in the absence of any motive. It has been urged that the accused-appellant could not have been convicted with the aid of Section 34, IPC merely on the basis of such baseless suspicion. In such obtaining fact situation, the impugned Judgment of conviction and Order on sentence are not sustainable in law insofar as the accused-appellant is concerned.

4. Au contraire, Ms. Bhuyan, learned Senior Counsel & Additional Public Prosecutor has contended that the incident of murder had occurred inside the dwelling house of the deceased and the accused-appellant in and around midnight. Being an inmate of the house, it was incumbent upon the accused-appellant to offer a plausible explanation as to how the incident had occurred. The learned trial court had recorded the finding that the extra-marital relationship between the accused-appellant and the co-accused pers