Sri Suchendra Das vs State Of Assam And Anr
2021 Latest Caselaw 1134 Gua

                                                                         Page No.# 1/19

GAHC010059922019




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : Crl.A./132/2019

            SRI SUCHENDRA DAS
            S/O- SRI BIRESH DAS, R/O- NO. 1 HATIKHULI, P.S. LUMDING, DIST.- HOJAI,
            ASSAM.

            VERSUS

            STATE OF ASSAM AND ANR
            REP. BY THE P.P., ASSAM.

            2:SRI GUNADHAR DAS
             S/O- LATE NIDHIMOHAN DAS
             R/O- NO. 1 HATIKHULI
             P.S. LUMDING
             DIST.- HOJAI
            ASSAM

Advocate for the Petitioner   : MR D TALUKDAR

Advocate for the Respondent : PP, ASSAM



             Linked Case : CRL.A(J)/32/2019

            CHANDAN DAS
            S/O. PRASANTA DAS
            R/O. NO. 1 HATIKHULI
            P.S. LUMDING
            DIST. HOJAI
            ASSAM.


             VERSUS
                                          Page No.# 2/19

THE STATE OF ASSAM
REP. BY PP
ASSAM.


------------

Advocate for : MS. B CHOWDHURY AMICUS CURIAE Advocate for : PP ASSAM appearing for THE STATE OF ASSAM

Linked Case : Crl.A./314/2019

SRI MONILAL DAS AND ANR S/O- LATE MONTU DAS

R/O- NO.1 HATIKHULI P.O- LUMDING

P.S.- LUMDING DISTRICT- HOJAI ASSAM PIN- 782447.

2: SUDIP DAS S/O- BABUL DAS

R/O- NO. 1 HATIKHULI.

P.O.- LUMDING P.S.- LUMDING DISTRICT- HOJAI ASSAM PIN-782447.

VERSUS

THE STATE OF ASSAM AND ANR REPRESENTED BY PP ASSAM.

2:GUNADHAR DAS S/O- LATE NIDHU MOHAN DAS

R/O- NO.1 HATIKHULI

P.O.- LUMDING P.S.- LUMDING Page No.# 3/19

DISTRICT- HOJAI ASSAM. PIN- 782447.

------------

Advocate for : MR. R DEV Advocate for : PP ASSAM appearing for THE STATE OF ASSAM AND ANR

BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM HONOURABLE MR. JUSTICE MIR ALFAZ ALI

JUDGMENT AND ORDER (Oral) Date : 24-03-2021

(Suman Shyam, J)

All these three Criminal Appeals arise out of the common judgment and order

dated 17.01.2019 passed by the court of learned Additional Sessions Judge, Hojai in

Sessions Case No.74(N)/2017 whereby, each of the appellants have been convicted

under Sections 302/201 of the I.P.C. and sentenced to undergo rigorous imprisonment

for life and also to pay fine of Rs.10,000/- each, in default, to suffer simple

imprisonment for three months for the offence under Section 302 IPC. For the offence

under Section 201 IPC the appellants have been sentenced to undergo rigorous

imprisonment for three years and also to pay fine of Rs.6000/- each, in default, to

undergo simple imprisonment for two months in addition. All the sentences were to

run concurrently.

2. We have heard Mr. D. Talukdar, learned counsel for the appellant in Crl.

Appeal No.132/2019, Ms. B. Choudhury, learned Amicus Curiae appearing for the

appellant in Crl. Appeal(J) No.32/2019 and Mr. R. Dev, learned counsel appearing for

the appellants in Crl. Appeal No.314/2019. Ms. B. Bhuyan, learned Additional Public Page No.# 4/19

Prosecutor, Assam, has appeared on behalf of the State in all the three appeals.

3. The prosecution case, in a nutshell, is that the victim Nirjala Das, aged about

41 years, went missing on 12.07.2017 after she had gone to No.1 Hatikhuli Rubber

Garden to collect firewood. When the villagers were searching for her on the next

day i.e. 13.07.2017, they saw a newly dug up pit covered y soil and informed the

Lumding Police Station. The police had arrived at the spot along with the Executive

Magistrate, dug up the pit and took out the dead body of a woman (victim) who was

later identified by the son of the victim.

4. The husband of the victim, Sri Gunadhar Das, had gone to Kolkata at that time

but immediately upon receipt of information about his wife, he returned back to

Lumding and lodged an ejahar with the Officer-in-Charge of Lumding Police Station

on 14.07.2017. In the ejahar dated 14.07.2017, the informant had also mentioned that

he suspected that some unknown miscreants might have killed his wife and buried

her in the hole.

5. It appears from the materials on record that upon receipt of information about

the incident on 13.07.2017, G.D. Entry No.296 was made in the Lumding Police Station

and thereafter, the police had arrived at the spot and exhumed the body of the

victim from a pit in presence of an Executive Magistrate. The ejahar was lodged on

the next day i.e. 14.07.2017 by the husband of the informant. Based on the ejahar

dated 14.07.2017, Lumding P.S. Case No.120/2017 was registered and the police took

up the matter for investigation. During the course of investigation, the I.O. had

recorded the statement of the informant and other witnesses, sent the body for post-

Page No.# 5/19

mortem and thereafter, submitted charge-sheet against four accused persons. Since

the accused had pleaded not guilty and claimed to be tried, the matter went up for

trial.

6. There is no eye-witness in this case and the prosecution case is entirely based

on circumstantial evidence. In order to bring home the murder charge, the

prosecution side had examined 10 witnesses.

7. In their statements recorded under Section 313 Cr.P.C. the accused persons

had denied all the allegations brought against them. During trial, the defence side

had also adduced evidence by examining three witnesses.

8. PW-1, Gunadhar Das, is the husband of the victim and is also the informant in

this case. According to PW-1, the occurrence took place on 12.07.2017 when he was

at Kolkata. Upon receipt of information from his son that his mother went to the jungle

and had not returned till then, he immediately returned back to Lumding on the

following day and found his wife's dead body at the Lumding Police Station. PW-1

has stated that he had found accused Chandan Das at the Police Station but he

could not say how his wife had died as the cause of her death was not known. This

witness had deposed that he had lodged the ejahar on the following day and Ext-1

was the ejahar with his signature in it.

9. PW-2, Garga Mohan Das, was the Circle Officer of Lanka Revenue Circle, who

had conducted inquest over the dead body of the deceased and prepared the

inquest report (Ext-2).

10. PW-3, Jaharlal Das, is known to the informant and the deceased and he has Page No.# 6/19

deposed that the occurrence took place on 12.07.2017. On that day, at about 8.00

p.m. he had received information about the victim going missing when she went to

the forest for collecting firewood. Then, he, along with his son Pipul Das, went to the

house of the informant along with other villagers and thereafter they searched for the

victim but did not find her. On the next morning, the villagers again searched for the

victim in the forest area of Rubber Bagan when they found a newly filled up plot of

land where mustard seeds were spread. They also found an empty packet of turmeric

powder, and an empty packet of salt of Patanjali brand. PW-1 has stated that he

then informed the police of Lumding Police Station whereafter, they came

immediately to the place. On arrival of the police, the Circle Officer of Lanka also

came there and many more local people assembled. With the assistance of a

sweeper the dead body was exhumed from the pit. At that time, the accused

persons were also present on the spot. The dead body was then sent to Nagaon Civil

Hospital for post-mortem and he also accompanied the body. On 15.07.2017, police

seized a "dao" from the house of Chandann Das on the basis of his statement. During

his cross-examination PW-3 has stated that the seized articles were not seized by the

police in his presence and he had only heard about the seizure of the "dao" from

others.

11. PW-4, Nivas Das, has deposed to the effect that on the day of the occurrence

he had heard that the wife of the informant went missing when she went to the

Rubber Bagan for collecting firewood. The villagers searched for her and found a

newly dug up plot of land in the Rubber Bagan and informed the police. Police came

to the place and thereafter, dug up the land where he saw the dead body of Page No.# 7/19

deceased Nirjala. Along with the deadbody one empty packet of salt, one packet of

turmeric, one pair of sleeper, empty plastic bottle (half burned), one Saree and a

Petticoat, in partially burned condition, were also found. Police seized all the articles

after preparing a seizure list wherein he had put his signature. During his cross-

examination, PW-4 has denied any knowledge as to when and who had put the

dead body inside the ditch. This witness has also stated that about 100 villagers and

the police were present at the time of recovery of the dead body.

12. PW-5, Nirmal Das, is the son of the victim and he has stated that his mother

had gone to the Rubber Bagan for collecting firewood whereafter, she went missing.

The villagers searched for her but could not find her on that day. The next day,

deadbody of his mother was recovered by police with the help of villagers from

Rubber Bagan by digging a pit. Circle Officer had conducted inquest in his presence

and he had put his signature in the inquest report Ext-2.

13. PW-6, Prahlad Das, is the V.D.P. Secretary and is also a resident of the same

locality. He has deposed that on the day of occurrence the wife of the informant

went missing when she had gone to the Rubber Bagan for collecting firewood. On

being informed by the son of the victim, villagers tried to search her out but could not

find her on that day. The next morning, the villagers again went searching for her in

the forest area of Rubber Bagan when they found a newly filled in portion of earth.

The police was informed and thereafter, the dead body was dug out from the said

plot of land along with a plastic bottle, one pair of sleeper, some burnt cloths, one

empty packet of turmeric and one empty packet of salt. PW-6 has stated that he saw Page No.# 8/19

the dead body which was in naked condition. The police seized the articles vide Ext-8

(seizure list) wherein he had put his signature. This witness has further stated that on

the next day, accused Sachindra was brought to the Police Station wherein, he had

shown the spot and described how he took the victim there. The accused Sachindra

Das had also narrated how he had perpetuated the offence.

14. PW-7, Sudhir Das, has also deposed on similar lines and has stated that the

dead body was dug out from the newly filled up portion of the earth. Likewise, PW-8,

Hiralal Chauhan, has stated that the dead body of the informant's wife was dug out

from the newly filled up portion of earth inside the forest by the police in presence of

the Circle Officer.

15. The post-mortem examination on the dead body was conducted by Dr. Lalit

Chandra Nath, who was working as the Sub-Divisional Medical and Health Officer at

the B.P. Civil Hospital, Nagaon on 14.07.2017. According to the post-mortem report

(Ext-10), the following injuries were found in the body of the deceased and the

opinion leading to the cause of death has also been mentioned therein:-

"During examination I found -

      1)    Whole body is swollen.

      2)    Multiple blebs are present all over the body.

      3)    Peeling of skin on touch all body.

      4)    Foul smelling and the body fluids coming out from many parts of the body.

      5)    All hair of the scalp is degloving on holding of hair from scalp due to
           decompose.

      6)    Chest wall is swollen with multiple bled with loss of skin.
                                                                            Page No.# 9/19

      7)    There was fracture on hyoid bone.

      8)    Abdomen wall is distended swollen with multiple blebs with los of skin.

      9)    Whole face is swollen and multiple areas of loss of skin.

10) Organs or generation swollen skin with laps and short of external genital and parital parts.

11) Time since death approximately more than 3 days.

In my opinion, the cause of death could not be detected due to decomposition of whole body and viscera's also could not be kept due to soft and friable for F.S.L. test."

16. Sri Ananta Ram Barman is the I.O. in this case who had conducted

investigation and submitted charge-sheet against the four accused persons. The I.O.

was examined as PW-10. The I.O. has confirmed that on 13.07.2017, while he was

working as an attached Officer in the Lumding Police Station, the V.D.P. Secretary of

No.1 Hatikhuli Gaon i.e. PW-6, arrived at the Police Station at about 8.30 a.m. and

informed that one lady from his village viz. Nirjala Das, went missing yesterday when

she went to the forest to collect firewood and on search by the public, a newly dug

up spot in the jungle was found wherein the dead body was suspected to be buried.

On receipt of such information, G.D. Entry No.296 dated 13.07.2017 was made and

thereafter, the PW-10, on being directed to investigate the matter, went to the place

of occurrence and saw that there was a newly dug up place. At that time, the

Additional S.P. and Circle Officer along with a doctor of Lumding F.R.U. also arrived at

the place of occurrence. As per the direction of the Circle Officer, Lanka, the place

was dug up whereafter, the deadbody of the victim was exhumed. The dead body

was identified by the victim's son PW-5. PW-10 has also confirmed that from the spot, Page No.# 10/19

an empty packet of turmeric, an empty packet of salt, one pair of slipper, and empty

plastic bottle, a piece of saree (red and blue coloured) which was partially burned,

a piece of petticoat, also in partially burnt condition, were recovered. He then seized

the articles in presence of the witnesses by preparing a seizure-list and had also

recorded the statement of witnesses. The Circle Officer, Lanka had conducted

inquest over the deadbody whereafter, the same was forwarded to B.P. Civil Hospital,

Nagaon for post-mortem. PW-10 has also stated that on day i.e. 13.07.2017, at about

2.30 p.m., the informant (husband of the victim), had lodged a written ejahar in the

Lumding Police Station and that he had recorded the statement of the informant.

17. PW-10 has further deposed that on that day, the Additional S.P., Hojai had

called for a sniffer dog to find out the culprit and he, along with the Additional S.P.

and Circle Officer, Lanka went together to the place of occurrence. On 15.07.2017,

on secret information, he had apprehended five accused persons viz., Chandan Das,

Mintu Das, Botai Das, Monilal Das and one Suchendra Das. According to PW-10, the

accused persons had confessed their guilt during interrogation. O

18. PW-10 has deposed that the accused, viz., Suchendra Das had confessed that

on 12.07.2017 at around10.30 a.m. he went to the shop of informant Gunadhar Das to

purchase tobacco but the shop was closed. Since he came to know that the wife of

the informant (victim) went towards Rubber Bagan just a few minutes ago, he also

proceeded towards Rubber Bagan. On reaching there, he saw the victim collecting

firewood and accused Monilal was talking to her. A moment later, accused

Chandan Das also came and joined them. After sometime both the accused persons Page No.# 11/19

took the victim inside the jungle. He had also followed them. According to the

accused, he had seen the other co-accused Chandan Das committing sexual

intercourse with the victim and after him, accused Monilal had also done the same.

Later on, Suchendra Das had himself committed sexual intercourse with the victim.

After sometime accused Sudip Das arrived at the place of occurrence and

committed rape upon the victim. Then she became senseless and unconscious. After

that accused Chandan Das had asked the other accused to watch for the people

and he went to his house and brought a "dao", a packet of salt and turmeric

powder and thereafter, strangulated the victim till her death. After that Chandan Das

had dug out a pit where she was buried.

19. According to PW-10, the confession of accused Suchendra Das was

videographed and a compact disc (CD) was prepared which was submitted by him

along with the Case Diary. PW-10 has also stated that after arresting the accused

persons he brought them before the Court with a prayer to remand them for another

10 days which was granted for a period of 5 days. On 16.07.2017 he again

interrogated accused Chandan Das and during his examination this accused had

also confessed his guilt and agreed to lead the police to the recovery of the "dao"

used in committing the offence. Accordingly, the PW-10 along with the O/C and

other staff proceeded to the house of accused Chandan Das on being led by him

and seized the "dao" which was handed over to the I.O. in presence of witnesses.

PW-10 has stated that he has seized the dao.

20. According to PW-10, the accused Sudip Das had also confessed his guilt Page No.# 12/19

during his interrogation in the Police Station and on the same day the said accused

was produced before the Magistrate. Finally, on completion of investigation charge-

sheet was prepared against the four accused persons whereas accused Mintu Das

and Botai Das were not sent up for trial due to want of evidence against them.

21. As noted above, the defence side had examined three witnesses. DW-1,

Suchendra Das, is one of the accused and in his deposition he had stated that on the

date of occurrence i.e. 12.07.2017 he was selling vegetables and DW-2, Sujan Das,

who is also a vegetable seller, was present there. DW-1 has stated that his right hand

was broken in an accident that took place 16 years back as a result of which he is

unable to use that hand. This witness had denied any knowledge as regards the

incident leading to the death of the wife of the informant.

22. DW-2, Sujan Das, has corroborated the evidence of DW-1 and has stated that

on the date of occurrence he was in the market for selling vegetables and the

accused Suchendra Das was also present with him selling vegetable in the market

from 8.00 a.m. in the morning till about 8.30 p.m. in the evening. Thereafter, both of

them returned home at 8/9 p.m.

23. Similarly, DW-3, Chandan Das, another co-accused in this case has also

deposed that on 12.07.2017 he was busy doing his business of selling "chanachur" in

front of Swami Vivekananada School at Lumding Town. On that day he returned

home at 8.30 p.m. and came to know that the wife of the informant was missing. This

witness has stated that he was assisting the people to dig out the dead body of the

victim and he gave a plastic to wrap the dead body after it was dug out. During their Page No.# 13/19

cross-examination, the testimony of DWs-1, 2 and 3 could not be shaken.

24. From a threadbare analysis of the materials brought on record, it could be

seen that the prosecution has basically relied upon the extra-judicial confession,

allegedly made by the accused persons, while in police custody, admitting to their

guilt. It has also been projected that a "dao" was recovered by the police on being

led by one of the accused viz. Chandan Das. Taking note of such materials brought

on record including a CD of the videography showing the confession of one of the

accused, the learned Additional Sessions Judge had convicted the four appellants.

25. In so far as the extra-judicial confession of the accused persons is concerned,

we find from the testimony of the I.O (Pw-10) that the accused Suchendra Das was in

police custody when he had made the alleged confession to the police. Such extra-

judicial confession was also made during the course of investigation of the case by

the police. We find from the record that the learned trial court has relied upon the

extra-judicial confession made by the accused to the police and convicted the

appellants. The relevant observations made by the learned Additional Sessions Judge

in the impugned judgment is reproduced here-in-below for ready reference :-

"Correct it is, Extra Judicial Confession is a confession made out of court, and not as a part of a judicial examination or investigation. Such a confession must be corroborated by some other proof of the corpus delicti, or else it is insufficient to warrant a conviction. It may be made either to the police or to any other person other than judges of magistrate. If voluntary can be relied upon by the court, along with other evidence, in convicting the accused. The confession will have to be proved just like any other fact."

26. From the above, it would be evident that the learned trial court was of the Page No.# 14/19

view that the extra-judicial confession of the accused made to the police while in the

police custody was admissible as evidence and could be proved against the

accused.

27. In the impugned judgment and order dated 17.01.2019 the learned Additional

Sessions Judge has also observed that the confession made by the accused was not

only in presence of police but also before the Circle Officer (PW-2) which had led to

the discovery of facts. The learned Additional Sessions Judge has also held that the

Compact Disc (CD) produced by the prosecution marked as Ext-15, which is the

videography of admission made by one of the co-accused, can be relied upon even

if it was not accompanied by any certificate under Section 65-B(2) of the Evidence

Act, 1872 since the prosecution has proved the case beyond reasonable doubt

based on extra-judicial confession leading to discovery of facts and articles

connected with the crime.

28. As noted above, it is the case of the prosecution that two of the accused

persons viz., Suchendra Das and Chandan Das had confessed before the I.O. to

have committed the crime while they were in police custody. According to PW-10,

accused Chandan Das had also led to recovery of a "dao" used in the offence from

his house.

29. Section 25 of the Evidence Act, 1872, provides that no confession made to a

police officer shall be proved against a person accused of any offence. There is a

similar bar created by section 26 of the Evidence Act. Sections 25 and 26 of the

Evidence Act, being relevant in the context of this case, are reproduced hereunder Page No.# 15/19

for ready reference :-

"25. Confession to police officer not to be proved.--- No confession made to a police officer, shall be proved as against a person accused of any offence.

26. Confession by accused while in custody of police not to be proved against him.--- No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person."

30. From a bare reading of Sections 25 and 26 of the Evidence Act, it is apparent

that no confession made to a police officer or whilst he is in custody of police, unless it

is made in immediate presence of a Magistrate shall be proved against such person.

Sections 25 and 26 therefore, clearly provides a bar on proving any extra-judicial

confession made by the accused in presence of police or whilst in the police

custody.

31. Section 27 of the Evidence Act, 1872, however, carves out an exception to

Sections 25 and 26 which permits the prosecution to prove so much of such

information provided by the accused while in police custody leading to discovery of

any fact in consequence of such information received from the accused person of

any offence.

32. In the case of Geejaganda Somaiah Vs. State of Karnataka, reported in (2007)

9 SCC 315, the Hon'ble Supreme Court had the occasion to examine the question of

admissibility of statements made by accused persons to the police. While dealing

with the question of admissibility of such confession made to a police officer,

following observations were made in paragraph 21, which are reproduced herein Page No.# 16/19

below :-

"21. Section 25 of the Evidence Act mandates that no confession made to a police officer shall be proved as against a person accused of an offence. Similarly Section 26 of the Evidence Act provides that confession by the accused person while in custody of police cannot be proved against him. However, to the aforesaid rule of Sections 25 to 26 of the Evidence Act, there is an exception carved out by Section 27 the Evidence Act providing that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Section 27 is a proviso to Sections 25 and 26. Such statements are generally termed as disclosure statements leading to the discovery of facts which are presumably in the exclusive knowledge of the maker. Section 27 appears to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly it can be safely allowed to be given in evidence.""

33. In the present case, as noted above, the extra-judicial confession was

admittedly and evidently made by one of the accused in the Police Station and in

the presence of police. Although the learned trial court has held that the same was

made in presence of a Magistrate, yet, the PW-2 i.e. the Magistrate did not support

the said assertion. However, even assuming that the Executive Magistrate was

present when such confession was made while in police custody, even then, the

same would be hit by Section 26 of the Evidence Act unless such confession is

recorded in compliance of Section 164 Cr.P.C. There is no other evidence in this case

to show that the accused had made any extra-judicial confession in presence of a Page No.# 17/19

Magistrate. Therefore, the extra-judicial confession of the accused Suchendra Das

was clearly not admissible in evidence.

34. In so far as the discovery leading to recovery of "dao" is concerned, we have

already held that the extra-judicial confession of the accused made to the police

during the course of investigation would not be admissible in evidence. In the State

of Assam, particularly in the semi-urban areas, such type of "dao" is a commonly used

instrument for cutting, which is normally found in every household. Therefore, the

mere recovery of a "dao" from the house of any person, without there being any

cogent evidence to link the same with the commissioning of the offence would not

be of any significance in proving the prosecution case. It is also to be noted that

even the seizure witness of the "dao" has also not been examined by the prosecution

in this case. Therefore, there is considerable doubt as to the seizure of the "dao" as

well.

35. In the present case, evidence on record clearly goes to show that the location

was shown by the villagers, whereafter, the dead body was dug out by the police on

13.07.2017, on the direction of the Circle Officer. The alleged discovery of the "dao"

was made on a later date. For the reasons stated above, we are of the view that in

the facts and circumstances of this case, the alleged recovery of the "dao" on being

led by the accused, even if held to be true, would not come within the sweep of

section 27 of the Evidence Act.

36. It has been projected by the prosecution that the accused had made extra-

judicial confession before the police. Yet, no attempt was made by the I.O to get Page No.# 18/19

such confession recorded before a Magistrate under section 164 of the Cr. P.C. No

reason has also been cited for not doing so. Therefore, we fail to understand, if there

was indeed any confession made by the accused voluntarily then why, instead of

making a vidoegraphy of the same, no attempt was made to record such confession

judicially by following the due process of law.

37. We have held that in view of the bar created by Sections 25 & 26 of the

Evidence Act, the so called extra-judicial confession of the accused made to the

police during the course of investigation was not admissible evidence and hence,

could not have been proved by the prosecution. Therefore, regardless of whether the

CD was accompanied by a certificate under section 65-B of the Evidence Act, by

the same logic, the Ext-15, being the recorded version of such confession of the

accused made before the police, would also be in-admissible in evidence. As such,

we are of the view that the learned trial court was not correct in relying upon the

CD(Ext-15) for convicting the accused persons. If the extrajudicial confession of the

accused while in police custody is discarded, there is no evidence in this case to

prove the charge brought against the appellants.

38. It is no doubt true that the victim had suffered a homicidal death under tragic

circumstances whereby the miscreants had apparently burried the dead body after

committing a heinous offence. However, what must be borne in mind that no person

can be convicted and sentenced to life imprisonment unless the charge is proved

beyond reasonable doubt by leading cogent evidence. In the present case, as

observed above, the prosecution has failed to prove the charge brought against the Page No.# 19/19

accused/ appellants beyond reasonable doubt.

39. For the reasons stated above, we are unable to agree with the conclusion of

the learned Additional Sessions Judge as regards the finding of guilt of the accused.

Therefore, the conviction of the appellants and the sentence awarded to them by

the judgment and order dated 17.01.2019 stands set aside.

The appellants are hereby acquitted and set at liberty.

All the three appeals stand allowed.

However, this order, shall not disturb direction, if any, pertaining to payment of

victim's compensation.

Before parting with the record, we wish to place on record our appreciation for

the services rendered by Ms. B. Choudhury, learned Amicus Curiae, by rendering her

assistance to the Court for disposal of the appeal and direct the Registry to make

available to him, just remuneration, as per the notified rate.

Send back the LCR.

                                 JUDGE                               JUDGE

T U Choudhury




Comparing Assistant