PANDEY MUNDA Vs. STATE OF ASSAM

JUDGEMENT

(1.) This criminal appeal from Jail is directed against a Judgment and Order dt. 14/8/2019 passed by the Court of learned Additional Sessions Judge no. 2 [FTC], Tinsukia in Sessions Case no. 101[T] of 2018. By the Judgment and Order dtd. 14/8/2019, the accused-appellant has been convicted for the offence of murder under Sec. 302, Indian Penal Code [IPC] and he has been sentenced to undergo imprisonment for life and to pay a fine of Rs.5,000.00, in default of payment of fine, to undergo rigorous imprisonment for another 1 [one] year. It has been ordered that the period of detention already undergone by the accused-appellant shall be set-off against the sentence of imprisonment under Sec. 428, Code of Criminal Procedure, 1973 ['CrPC' or 'the Code', for short].

(2.) We have heard Ms. M. Barman, learned Amicus Curiae for the accused appellant and Ms. B. Bhuyan, learned Senior Counsel and Additional Public Prosecutor for the respondent, State of Assam.

(3.) Ms. Barman, learned Amicus Curiae appearing for the accused-appellant has submitted that there was no eye-witness to the incident of alleged murder and the case was based on circumstantial evidence. It is the contention of the learned Amicus Curiae that the prosecution had miserably failed to prove all the circumstances by cogent evidence, thereby, leaving a number of missing links in the chain. But despite such failure, the learned trial court has convicted the accused-appellant for the charge of uxoricide. There was nothing in evidence that the accused-appellant was last seen with the deceased and as such, the accused-appellant is entitled to be acquitted of the charge of murder. The learned Amicus Curiae has referred to the decision in Sharad Birdhichand Sarda Vs. State of Maharasthra, reported in [1984] 4 SCC 116, to contend that the principles laid down therein to prove a case based on circumstantial evidence are not found established in the present case and even if it is found that the plea of alibi taken by the accused is not acceptable then also such failure on the part of the accusedappellant is not to be taken into account as such failure would not strengthen the case of the prosecution in any manner.