(P.K.Saikia, J)

1. This appeal is directed against the judgment dated 16.06.2010 passed by the learned Sessions Judge, Bongaigaon in Sessions Case No. 36 (A)/ 2005, convicting one Md. Joynal Abedin (herein after referred to as (‘the accused person’) of offence u/s 302 IPC and sentencing him to imprisonment for life and to pay a fine of Rs. 2000/-, in default imprisonment for further period of 1 year.

2. Being aggrieved by and dissatisfied with the aforesaid judgment, the accused/appellant had preferred this appeal citing several infirmities in the judgment under challenge.

3. Heard Mr. R. Ali, learned counsel for the appellant/petitioner. Also heard Mr. D. Das, learned PP appearing for the State of Assam.

4. The brief facts necessary for disposal of the present appeal are that on 22.05.2003 at about 7:00 pm, one Amir Badsha was proceeding to Abhayapuri Bazaar on his bicycle. His co-villager, namely, accused Joynal Abedin on the instigation of the other persons, such as Abdul Jabbar, Ainul Hoque, Syed Ali and Abdul Kalam, gathered on the road in front of the house of one Ranjit Das and gave Amir Badsha 3-4 blows with a spade on his back for which he got injured and fell down on the ground.

5. Being so assaulted, he raised hue and cry for which the persons in and around such place gathered there. Meanwhile, the accused fled from the scene taking advantage of darkness. The injured was immediately taken to Abhayapuri Hospital. However, he died before he reached hospital. An FIR to that effect on being lodged with O/C, Abhayapuri Police Station, same night, he registered the case vide Abhayapuri Police Station Case No. 54/2003 under sections 147/148/302 IPC and order investigation.

6. During the course of investigation, the I.O. visited the place of occurrence, recorded the statement of the witnesses, held inquest on the dead body, prepared a report in that connection, sent the dead body for post-mortem examination and did other needful and on conclusion of the investigation, I.O submitted the charge sheet under section 302 IPC against the accused Joynal Abedin and forwarded him to Court to face his trial.

7. When the Magistrate before whom the charge-sheet was so laid, he committed the case to the Court of Sessions since the offence u/s 302 IPC is exclusively triable by the Court of Sessions. On the commitment of the case and after hearing the learned counsel for the parties, the learned Sessions Judge, Bongaigaon framed charge under section 302 IPC against the accused person and charge, so framed, on being read over and explained to the accused person, he pleaded not guilty and claimed to be tried.

8. During trial, the prosecution examined as many as 19 witnesses including the informant and the I.O. The statement of the accused person under section 313 Cr.P.C. was recorded. The accused denied the allegations brought against him and examined one witness in support of his case. On conclusion of the trial and after hearing the arguments of the learned counsel for the parties, the learned Sessions Judge convicted the accused of the offence under section 302 IPC and sentenced him to punishment as mentioned above. It is that judgment which has been assailed in the present appeal alleging several infirmities therein.

9. Opening up argument on behalf of the accused person, Mr. R. Ali, learned counsel for the appellant submits that the prosecution case is based mainly on dying declaration and the evidence of some of the witnesses. But neither the dying declaration nor the witnesses, aforementioned, could make out the allegations brought against the accused person. Inspite of that, the learned trial Court convicted the accused of offence under section 302 IPC and sentenced him to punishment as aforesaid. He, therefore, urges this Court to acquit the accused person for the offence u/s 302 IPC on setting aside the judgment of the trial Court.

10. On the other hand, learned Addl. P.P, Mr. D. Das appearing for the State argues that the j