(C.R. SARMA, J)

These two appeals are directed against the common judgment and order, dated 31.07.2012, passed by the learned Sessions Judge, Nalbari, in Sessions Case No. 98 of 2006 (arising out of GR Case No. 906/2004).

(2) By the impugned judgment and order, the learned Sessions Judge, while convicting the appellants, under Section 302/34 of the Indian Penal Code (for short, IPC), sentenced each of them to suffer rigorous imprisonment for life and pay fine of Rs.1000/- (Rupees one thousand), in default, suffer rigorous imprisonment for another period of two months for their conviction under Section 302/34 IPC.

(3) The learned Sessions Judge also convicted the appellants Mr. John Ali and Mr. Dhan Ali, under Sections 354//34 and 448/34 IPC and sentenced them to suffer rigorous imprisonment for fifteen days under Sections 448/34 IPC and rigorous imprisonment for one month for their conviction under Sections 354/34 IPC.

(4) Aggrieved by the said conviction and sentence, the convicted persons, as appellants, have come up with the present set of appeals.

(5) As both the appeals are arising out of the same judgment and order, based on same facts and as agreed to by the learned Counsel, appearing in both the appeals and also for the sake of convenience, we have heard both the appeals together and propose to dispose of the appeals by this common judgment and order.

(6) We have heard Mr. A. K Bhattacharjee, learned Sr. Counsel, assisted by Mr. A.K. Choudhury, learned Counsel for the appellant in Crl. Appeal No. 180/2012 and Mr. D. Das, learned Sr. Counsel, assisted by Mr. D. Talukdar, learned Counsel, appearing for the appellants in Crl. Appeal No 165/2012. We have also heard Ms. S. Jahan, learned Additional Public Prosecutor, Assam and perused the records.

(7) Mr. A.K. Bhattacharjee, learned Sr. Counsel, appearing for the appellant, in Crl. Appeal No.180/2012, taking us through the evidence, on-record, has submitted that the prosecution failed to prove the case beyond all reasonable doubt and that the learned Sessions Judge committed error by failing to properly appreciate the evidence, on-record.

(8) Mr. Bhattacharjee, learned Sr. Counsel, has strenuously argued that failure of the prosecution to examine the vital witnesses i.e. the other daughter of deceased, who was also claimed to be one of the victims of outraging modesty and the mother of the victim girls, who were present in the house, raises serious doubt about the involvement of the accused persons.

It is also submitted that in view of the discrepancies, noticed in the oral evidence of the witnesses (non official) and the medical evidence, regarding the type of weapon, alleged to be used and the nature of the injuries sustained by the deceased, coupled with the failure of PW-1, PW-2 and PW-3 to support each other’s presence, in the place of occurrence, the prosecution version can’t be accepted.

It is contended that the material contradictions, found in the evidence of PW-5, regarding the type of seized weapon also raise serious doubt about the veracity of the evidence of PW-5. It is further contended that the contradictions with regard to the seized weapons, the evidence given by the non official witnesses and the Investigating Officer and the seizure list negate the prosecution version.

(9) Mr. Bhattacharjee, learned Sr. Counsel, for the appellants, has submitted that failure of the Investigating Officer (I.O.) to identify and exhibit the seized weapons, and the contradictory evidence, given by PWs, regarding type of the weapons, used by the appellants and the medical evidence creates doubt about the prosecution evidence that the fatal injury i.e. incised injury was caused by the appellant.

(10) Referring to the defence evidence, the learned Sr. Counsel, has submitted that the learned trial Judge committed error and illegality by refusing to accept the defence evidence, which remained unchallenged. It is contended that all the Defence Witnesses (DWs) stated tha