JUDGMENT & ORDER (CAV)

(M. Zothankhuma, J)

1. Heard Mr. P. K. Deka, learned counsel for the appellant and Ms. B. Bhuyan, learned Senior Counsel and Addl. PP for the State.

2. This appeal has been filed against the impugned Judgment dated 24.01.2024, passed by the learned Sessions Judge, Cachar, Silchar, in Sessions Case No. 103/2016, by which the appellant has been convicted under Section 302 IPC and sentenced to undergo rigorous imprisonment for life with a fine of Rs. 10,000/-, in default, to undergo simple imprisonment for three months.

3. The brief facts of the case is that an FIR dated 13.07.2015 was submitted by the informant (PW-1) to the Officer-in-Charge of Sonai P.S., stating that the informant’s family used a road for the purpose of ingress and egress from their house, which was claimed by the 7 accused persons as their land. This resulted in the 7 accused persons trying to occupy the road by force and not allowing the informant’s family to use it. Around 6 pm on 09.07.2015, the appellant with 6 other co-accused persons who were armed with weapons, detained the family members of the informant on the road, while they were coming back to their house from the vegetable field. The 7 accused persons thereafter chased them and trespassed into their house. They assaulted the informant’s family members with lathi, dao and shovel (wooden stick) etc., causing grievous injury on the head of Md. Burhan Uddin Barbhuiya (deceased), who is the elder brother of the informant. The informant’s sister-in-law Jyotsna Begum and nephew Imran Hussain Barbhuiya were also subjected to assault. The informant also stated that the hand of his sister-in-law was also possibly fractured in the assault. After assaulting the family members of the informant, the accused persons opened their alimirah and took away Rs. 50,000/-. They also took a Nokia mobile phone besides causing damage, by breaking the walls and windows of the house as well as the boundary fencing of the house.

4. Pursuant to the FIR, Sonai P.S. Case No. 230/2015 dated 09/07/2015 under Sections 147/148/149/447/341/325/326/379/ 427 IPC was registered and the seven accused persons mentioned in the FIR were arrested.

5. After the investigation of the case by PW Nos. 12 & 13, charge sheet was submitted against all the 7 accused persons, as a prima facie case had been found established against them under Sections 147/148/149/447/34/323/326/379/427 and 302 of the IPC. However, due to the addition of Section 302 IPC, the case was committed to the Sessions Court.

6. After commitment of the case to the Sessions Court, Cachar for trial, the case of one of the accused, Foiz Ahmed Barbhuiya, was forwarded to the Juvenile Justice Board, as he was found to be a minor at the time of the alleged crime.

7. The learned Trial Court thereafter framed charges under Sections 148/447/323/427/302/149/380 IPC against the appellant and the other 5 co-accused persons, who all pleaded not guilty and claimed to be tried.

8. During the trial 15 prosecution witnesses were examined. Co-accused Abidur Rahman Barbhuya expired on 05.09.2018. The examination of the remaining co-accused persons was thereafter done by the learned Trial Court under Section 313 Cr.PC. The learned Trial Court thereafter convicted the accused Moklish Ahmed Barbhuiya only under Section 302 IPC and sentenced him accordingly. However, the remaining 4 other co-accused persons were acquitted of the charges framed against them.

9. The accused Moklish Ahmed Barbhuya, being aggrieved with the impugned judgment and order, has filed the present appeal.

10. The learned counsel for the appellant submits that when the evidence against all the accused persons was the same, in that they had all been identified as assaulters, the learned Trial Court could not have singled out the present appellant for conviction for the death of Md. Burhan Uddin Barbhuiya and acquitted the other 4 persons. He submits that the other co-accused persons have been named as the