N. Chaudhury, J.

Criminal Appeal (J) No. 6 of 2014 and Criminal Appeal (J) No. 7 of 2014 are directed against a common judgment and order dated 17.12.2013 passed by learned Additional Sessions Judge (FTC) No. 2, Tinsukia in Sessions Case No. 35(T)/2012 under Section 302/34 of the IPC. By the impugned judgment and order, the learned Sessions convicted Pratap Karmakar, the appellant in Criminal Appeal (J) No. 6/2014 and Biswadev Karmakar, the appellant in Criminal Appeal (J) No. 7/2014 under section 302 of the IPC and sentenced them to suffer rigorous imprisonment for life and also to pay a fine of Rs. 5,000/- each, in default, to suffer rigorous imprisonment for 4 months each.

2. The prosecution story is that one Dipali Mahali, as informant, lodged an ejahar with the Officer In-charge of Doomdooma Police Station on 14.08.2011 at about 11.45 A.M. informing that on 08.08.2011 at around 9 P.M., one Jiban Karmakar, Pratap Karmkar and Beswadev Karmakar of Badlabheta Spring Line, severely assaulted her husband Sunil Mahali suspecting that the victim had committed rape on Minu Karmakar, a 17 year old daughter of Pratap Karmakar. They brought him injured condition and dropped at the door step of the informant and again staged assault on him causing grievous injuries in her presence. Upon receipt of the ejahar, the police registered Doomdooma Police Station Case No. 241/2011 under section 325/34 of the IPC and got the injured victim admitted into Badlabheta Hospital. As the condition of the victim deteriorated, he was shifted to Longswal Central Hospital at Hapjan. At that stage, the statement of the victim was recorded by the Investigating Officer. Ultimately, on 19.08.2011 i.e. 11 days after hospitalization, the victim succumbed to the injuries whereupon police added section 302 in the case. Police held inquest and post mortem examination of the dead body and after recording statements of witnesses submitted charge sheet against Pratap Karmakar and Biswadev Karmakar vide charge sheet No. 8 dated 30.01.2012 but prayed for dropping the name of Jiban Karmakar as no material was available against him. The charge sheet was filed against the accused persons alleging commission of offence under section 325/302/34 of the IPC and so the learned Chief Judicial Magistrate, Tinsukia by his order dated 28.02.2012 committed the case to Sessions leading to registration of Sessions Case No. 35(T)/2012. By his order dated 21.03.2012, the learned Additional Sessions Judge (FTC) No. 2, to whose court the case was transferred, framed charges against appellant Pratap Karmakar and appellant Biswadev Karmakar under section 302/34 of the IPC. The charges were explained to the accused persons whereupon they pleaded not guilty and claimed to be tried.

3. In course of trial, prosecution examined 7 witnesses whereas defence examined 2 witnesses. Having examined the accused persons under section 313 of the Code of Criminal Procedure and upon appreciation of the evidence led by the parties, the learned Additional Sessions Judge passed the impugned judgment and order holding both the accused persons guilty of committing offence under section 302/34 of the IPC and sentenced them to suffer rigorous imprisonment for life and to pay a fine of Rs. 5,000/- each, in default, to suffer rigorous imprisonment for 4 months. This judgment of conviction and sentence has been challenged by the 2 accused persons separately. Both these appeals, therefore, are taken up together for disposal and are being disposed of by a common judgment.

4. We have heard Ms. A Das, learned Amicus Curiae for the appellant, Pratap Karmakar in Criminal Appeal (J) No. 6/2014 and Mr. A Sharma, learned Amicus Curiae, for the appellant Biswadev Karmakar in Criminal Appeal (J) No. 7/2014. We have also heard Mr. K Konwar, learned Additional Public Prosecutor for Assam in both the cases. We have also perused the lower court records.

5. The conviction of the accused persons are based on the depos