JUDGMENT :

Mohammad Yaqoob Mir, J.

These two criminal appeals are directed against the judgment dated 28.11.2014 passed by the Adhoc Judge, Fast Track Court, West Garo Hills, Tura in terms whereof, three accused namely, Shri Suraj Gupta, Sobraj Sonar and Ajay Das have been convicted for commission of the offences punishable under Sections 302/364-A/201 and 120-B read with Section 34 Indian Penal Code (IPC). The order dated 10.12.2014 is also impugned in terms whereof, accused Shri Suraj Gupta and Sobraj Sonar have been sentenced to life imprisonment both under Sections 302/364-A IPC also have been sentenced to rigorous imprisonment of 7 (seven) years under Section 201 IPC whereas, accused Ajay Das has been sentenced to undergo 14 (fourteen) years rigorous imprisonment both under Sections 302 and 364-A IPC and also rigorous imprisonment of 7 (seven) years under Section 201 IPC. All the sentences have been directed to run currently.

Prosecution case:

2. Information about missing of 9 (nine) years old minor boy Vaibhab Singh @Babu @Vishal, son of Baliram Singh of Fancy Valley Tura resulted in registration of the case No.21/2006. On completion of the investigation, three accused persons namely, Suraj Gupta, Sobraj Sonar and Ajay Das during investigation were established to have committed the offences punishable under Sections 364/302/201/34 IPC. Charge sheet was presented. The charges against the accused persons were framed for the commission of the said offences. The trial ended in conviction vide judgment dated 24.07.2007 passed by the learned Additional Sessions Judge, Tura. All the three accused were sentenced to death under Section 302 IPC. Under Section 364-A IPC were sentenced to imprisonment for life and to pay a fine of Rs.10,000/- in default to undergo rigorous imprisonment for three years. Under Section 201 IPC, all the three accused were awarded imprisonment for 6 (six) years. All the sentences were directed to run currently. For confirmation of death sentence, reference was made under Section 366 Code of Criminal Procedure (CrPC).

3. All the three accused aggrieved by the said judgment and order, had filed three separate appeals before the High Court of Gauhati, Shillong Bench, as it was then, registered as Crl. (Jail) Appeal Nos.(SH) 8, 9 and 10 of 2007. All the three appeals were allowed vide common judgment dated 24.05.2010.In para 26, it had been opined that the statement of the accused persons recorded under Section 313 CrPC are bad, so conviction recorded and sentences awarded were set aside and case was remitted back to the learned Trial Court with a direction to put all the incriminating circumstances to the accused persons in accordance with Section 313 CrPC. Then to ask the accused whether they want to enter upon defence, then to provide them appropriate opportunity to lead evidence in defence. Thereafter, parties be heard. Since the conviction and sentence had been quashed, reference made under Section 366 CrPC was answered in the negative. However, it was made clear that no observation has been made on the merits of the case.

4. Session trial is governed by Chapter XVIII of CrPC. In terms of Section 232 CrPC after taking evidence of the prosecution, examining the accused under Section 313 CrPC, on hearing the prosecution and defence, if there is no evidence, acquittal has to be recorded. Otherwise in terms of Section 233 CrPC, accused has to be called upon to enter upon his defence and adduce any defence he may have in support thereof.

5. It is quite relevant to mention that the earlier trial was found to be bad from the stage of examination of the accused under Section 313 CrPC as a result whereof, conviction and sentence was set aside so in effect, trial was and has been continued from the stage of examination of the accused under Section 313 CrPC.

6. Learned Trial Court (Additional Sessions Judge) examined the accused Ajay Das @Kirtaniya under Section 313 CrPC on 23.08.2011 thereafter the case was transferred t