The conviction of the appellants was set aside for lack of new evidence, highlighting that a trial court cannot alter judgments without substantial new information.

JUDGEMENT :

Michael Zothankhuma, J.

1. Heard Mr. A.M. Bora, learned Senior Counsel appearing for the appellants assisted by Mr. V.A. Chowdhury, learned counsel. Also heard Ms. B. Bhuyan, learned Additional Public Prosecutor for the State.

2. The present appeal is against the judgment and order dated 05.06.2024 passed by the learned Sessions Judge, Barpeta in Sessions Case No.207/2011, by which the appellants have been convicted under Section 147 /302 IPC and have been sentenced undergo life imprisonment with a fine of Rs.10,000/-, in default rigorous imprisonment for 1 (one) year.

3. The case of the appellants is that the present two appellants i.e., Abdul Aziz and Jasmat Ali, along with Joban Ali had been acquitted of the charge under Section 147 /302 IPC by the Court of the learned Additional Sessions Judge (FTC), Barpeta in Sessions Case No.207/2011, arising out of Bahabar P.S. Case No.151/2008, vide judgment dated 28.09.2015, on account of the learned Trial Court having come to a finding that the evidence recorded by the witnesses during the trial showed that two views were possible in relation to the death of the deceased. As the view in favour of the appellants/accused persons were to be adopted in terms of the judgment of the Supreme Court in the case of State through Inspector of Police, A.P. vs. K. Narasimhachary , reported in (2005) 8 SCC 364 , the appellants were acquitted of the offence.

4. The mother of the deceased Mustt Hawa Khatun, who was also the informant and prosecution witness no.16, challenged the impugned judgment dated 28.09.2015 passed by the learned Trial Court in Sessions Case No.207/2011, vide Criminal Appeal No.17/2016 before this Court.

5. This Court, vide judgment and order dated 24.07.2019 disposed of Criminal Appeal No.17/2016, by holding that the evidence recorded by the learned Trial Court was inadequate to arrive at any view of what had happened, let alone forming two views, either in favour of the prosecution or in favour of the accused persons. This Court, thus remanded the matter back to the learned Trial Court for taking further evidence by giving opportunity not only to the prosecution, but also to the accused persons, for discharging the burden under the ‘last seen together theory’ and to explain how the dead body of the deceased was found in the house of the appellant Abdul Aziz. Only after further opportunity was given to adduce further evidence and examination under Section 313 Cr.P.C, was the learned Trial Court to pass a fresh order.

6. Paragraph 11 to 14 of the judgment and order dated 24.07.2019 passed by this Court in Criminal Appeal No.17/2016 is reproduced herein below, as follows :

“11. We also take note of that the said piece of evidence of PW-11 that the three accused persons came and called the deceased Almas and he went with them past 10 o’clock in the night remains unconfronted and unimpeached. Further we also take note of that the dead body of the deceased Almas was found in the house of accused Abdul Aziz and Abdul Aziz was sitting in the same room where the dead body was found. From that point of view also, we are of the view that Section 106 of the EVIDENCE ACT would be applicable in respect of the accused Abdul Aziz to explain as to how the dead body was found in his house.

12. A stand has been taken by Mr. MA Sheikh, learned counsel for the respondent accused persons that the evidence of PW-1 Md. Basiruddin in cross provides that the accused Abdul Aziz had told him that the deceased Almas had entered his house upon being injured by someone outside and after entering, he had died. But again the said statement of PW-1 in cross is not the ev