The prosecution must prove guilt beyond reasonable doubt; suspicion alone is insufficient for conviction.

JUDGMENT :

M. Zothankhuma, J.

1. Heard Mr. H.R.A. Choudhury, learned Senior Counsel assisted by Mr. I.U. Choudhury, learned counsel for the appellant. Also heard Ms. B. Bhuyan, learned Senior Counsel and Additional Public Prosecutor, Assam assisted by Ms. R. Das, learned counsel for the State respondent.

2. This appeal is directed against the judgment dated 26.09.2022 passed by the learned Sessions Judge, Kokrajhar, in Sessions Case No.54/2017, convicting the appellant under Section 302 IPC for killing his wife by strangulation and sentencing him to undergo rigorous imprisonment for life and to pay a fine of Rs.5,000/-, in default simple imprisonment for 6 (six) months.

3. The prosecution case is that Prosecution Witness (PW) No.1 submitted an FIR dated 27.03.2015, stating that his niece (victim) had been married to the appellant about 2 years back and a baby girl had been born to them. The appellant thereafter, in collusion with his father and two uncles, started torturing the victim mentally as well as physically. Further, the appellant and Md. Rashid Ali, who is the brother of the appellant’s father, had killed his niece and fled, leaving her body inside the house of the appellant. Around 7:00 a.m. on 27.03.2015, the appellant’s father had informed him over mobile that the victim had been killed. On reaching the place of occurrence, PW-1 found the victim dead, with blood coming out from her nose and mouth.

4. Pursuant to the FIR, Kokrajhar P.S. Case No.390/2015 under Section 304 (B) IPC was registered.

5. PW-9 was thereafter entrusted with investigation of the case. After investigation of the case by PW-9, the second Investigating Officer, i.e. PW-11, submitted a Charge-sheet against the appellant and his father Sahadat Ali under Section 304(B) IPC.

6. The learned Trial Court thereafter framed charge under Section 304(B)/34 IPC against the appellant and his father Md. Sahadat Ali on 02.06.2017, to which they pleaded not guilty and claimed to be tried. The learned Trial Court then examined 11 Prosecution Witnesses (PWs) and 2 Defence Witnesses (DWs). The examination of the appellant and his father was also done under Section 313 Cr.P.C.

7. After the evidence of all the witnesses had been taken and the appellant had been examined under Section 313 Cr.P.C, charge was altered by the learned Trial Court on 05.09.2022, from Section 304(B)/34 IPC to Section 302/34 IPC against the appellant and his father, to which they pleaded not guilty and claimed to be tried. The learned Trial Court in it’s order dated 12.09.2022 thereafter recorded the following :

“Accused persons are present

Seen the petition filed by learned counsel for the accused stating that the accused persons are not willing to cross-examine the prosecution witnesses after alteration of charge and requesting to proceed with the case.

Hence PWs need not be recalled.

Reheard both sides.

Fixing : 26.09.2022 for judgment”

8. Thereafter the learned Trial Court passed the impugned judgment by coming to a finding that there was no culpability established with respect to the co-accused Sahadat Ali (father of the appellant) having killed the deceased. On the other hand, the learned Trial Court held that the prosecution had been able to prove beyond all reasonable doubt that the appellant had killed his wife. The appellant was accordingly convicted under Section 302 IPC and sentenced to undergo imprisonment as stated earlier.

9. The counsel for the appellant submits that when a Charge is altered from a less se