C.R.SARMA, J. - (1.) THIS appeal is directed against the judgment and order dated 27.02.2009 passed by the learned Sessions Judge No. 2 (FTC), Tinsukia in Sessions Case No. 64(CH)/2007. By the impugned judgment and order, the learned Sessions Judge convicted the appellant under Section 376 and 302 IPC and accordingly sentenced him to suffer impris-onment for life and pay fine of Rs. 2,000/- in default suffer rigorous imprisonment for 3 months for his conviction under Section 302 IPC and suffer R.I. for 7 years and pay fine of Rs. 1,000/- in default suffer R.I. for 1 (one) month for his conviction under Section 376 IPC.
(2.) AGGRIEVED by the said conviction and sentence the appellant has come up with the appeal. We have heard Ms. M. Bujarbaruah, learned Amicus Curiae, appearing for the appellant and Mr. D. Das, learned Addl. P.P., Assam appearing for the State respondent. The prosecution case, in brief, is that, on 16.12.2006 at about 2 p.m. the informant's minor daughter (PW-1) went to the garden (Tea garden) for collecting fire wood Smti. Mompi Bhumij (PW-4), Smti. Sunita Mura (PW-5) and Smti. Bandana Mura (PW-6) also went there to collect fire wood, where the appellant, being the single male person, was cutting trees. The appellant, who was cutting trees, in the same place, asked the PW-4 to go home leaving the deceased, on the plea that the deceased wouldgo after some time. Accordingly, PW-4, PW-5, and PW-6 left for their homes, leaving the deceased and the appellant therein. However, the deceased did not return home. On the next morning, at about 8 A.M., the dead body of the deceased was found, lying in a drain of the garden. The body was found without any under garment and her under garment was tied around her neck. Suspecting rape, followed by murder of the deceased, her father (PW-1) on 17.02.2006 lodged an FIR (Ext. 1) with the police.
(3.) ON receipt of the said FIR, police registered a case under Section 376/302 IPC and launched investigation into the matter. Accordingly police visited the place of occurrence found the dead body, lying in a drain, prepared inquest report (Ext. 3), prepared sketch map of the place of occurrence, forwarded the dead body for post mortem examination, examined the witnesses, recorded their statements and arrested the appellant. At the close of the investigation police submitted charge-sheet under Section 376/302 IPC against the appellant. The offence, being exclusively triable by the Court of Sessions, the learned SDJM, Sapakhowa, Sadia committed the case to the Court of Sessions. The learned Sessions Judge framed charges under Section 376/302 IPC. The charges were read over and explained to the accused person, to which he pleaded not guilty and claimed to be tried. In order to prove their case, prosecution examined, as many as, 18 witnesses, including the medical officer (PW-7), who performed the autopsy, the Circle Officer (PW-16), who visited the place of occurrence for conducting the inquest of the dead body and the investigating police officers (PW-17 and PW-18). At the close of the evidence for the prosecution, the accused person was examined under Section 313 Cr.P.C.. He denied the allegations, brought against him and declined to adduce defence evidence. His plea was that he was falsely implicated with the alleged offence in this case. Considering the evidence on record the learned Sessions Judge convicted and sentenced the appellant as indicated above. Ms. M. Buzarbaruah, learned Amicus Curiae, appearing for the appellant, taking us through the evidence, on record, has submitted that there is no direct evidence against the appellant and as such the learned Sessions Judge committed error by holding the appellant guilty of the offence under Section 302/376 IPC. The learned Amicus Curiae has also submitted that the prosecution has failed to substantiate the charges, brought against the appellant, by adducing sufficient cogent and reliable evidence and as such the impugned conviction and sentences can not be maintained. It is submitted, on behalf of the appellant, that the impugned conviction and sentences are liable to be set aside and that the appellant is entitled to be acquitted.;