PARBINA BEGUM Vs. STATE OF ASSAM

JUDGEMENT

(1.) The instant criminal appeal from jail under Sec. 374[2], Code of Criminal Procedure, 1973 ['CrPC', for short] is directed against a Judgment and Order dtd. 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 Sec. 302, Indian Penal Code ['IPC', for short] read with Sec. 34, IPC. By the Judgment dtd. 27/10/2017, both the accused persons including the present accused-appellant, had been convicted under Sec. 302, IPC read with Sec. 34, IPC. By separate Orders on sentence dtd. 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.10,000.00 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 and 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 Sec. 374[2], CrPC separately and the said criminal appeal was registered as Criminal Appeal no. 37/2018. By a Judgment and Order dtd. 22/4/2019 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 coordinate bench of this court, finding his conviction under Sec. 302, IPC read with Sec. 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 Sec. 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 accusedappellant, with the aid of Sec. 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 accusedappellant 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 Sec. 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.