Both these appeals are directed against the judgment and order dated 16.10.2008 passed by the learned Addl. Sessions Judge (F.T.C.), Sivasagar in Sessions Case No.35(s-s) of 2003, arising out of G.R. Case No.935/2002. By the said judgment, both the appellants were convicted under Section 304 Part-II read with Section 34 IPC and sentenced to imprisonment for 5 (five) years and fine of Rs.3,000/- each with default stipulation.

2. As per the prosecution case, on 15.09.2002, one Dulu Dutta (deceased) was travelling in a bus called “Ma Darshani”. Both the appellants made the aforesaid bus stop at Kenduguri Tiniali and dragged the deceased Dulu Dutta out of the bus and mounted assault on him with a bamboo stick causing serious injuries. Immediately the victim was taken to Demow hospital, wherefrom he was shifted to Medical College Hospital, Dibrugarh, where the victim succumbed to the injuries on 17.09.2002. The younger brother of the victim lodged an FIR (Exhibit-1), on the basis of which police registered a case and after usual investigation submitted charge-sheet against both the appellants under Sections 302/34 IPC. The offence under Section 302/34 IPC being exclusively triable by the Court of Sessions, the learned Judicial Magistrate committed the case to the Court of Sessions.

3. In the course of trial, the learned Addl. Sessions Judge framed charge against both the appellants under Section 302/34 IPC, to which they pleaded not guilty. In order to establish the charge, the prosecution examined as many as 13 witnesses. On appreciation of evidence, learned trial Court convicted both the accused appellants under Section 304 (Part-II) read with Section 34 IPC and awarded sentence as indicated above.

4. Aggrieved by the judgment of conviction and sentence, both the appellants have filed the aforementioned appeals separately.

5. I have heard Mr. B.M. Choudhury and Mr. P Bora, learned counsels for the appellants and Ms. S Jahan, learned Addl. PP, appearing for the State.

6. Learned counsel for the appellant in Crl. A No.180/2008 strenuously argued that there was no evidence of common intention of the appellants to commit the offence under Section 304 part II IPC and the learned trial Court erroneously convicted the appellants invoking provisions of Section 34 IPC. The contention of the learned counsel for the appellant Rajesh Sahu @ Mun Sahu was that there was no involvement of the appellant Rajesh Sahu in assaulting the victim by bamboo stick and therefore, he could not have been convicted for offence under Section 304 (Part-II) by invoking Section 34 IPC.

7. Learned Addl. PP Ms. Jahan supporting the conviction and sentence of the accused/appellant and the reasons assigned by the learned trial Court contended, that the evidences brought on record was sufficient to prove the guilt of the accused beyond all reasonable doubt and therefore, the impugned judgment requires no interference by this Court.

8. I have perused the evidence on record and considered the submission made by the learned counsel for the parties.

9. From the evidence on record it transpires that PW-1 the informant, PW-2, PW-3, PW-5 and Pw-7 were not eye witnesses to the occurrence and they only came to know about the occurrence later on. PW-5 was declared hostile by the prosecution. PW-8 was the witness to the seizure, by which a motor cycle was seized. PW-10 was the doctor and PW-11 and PW-12 were the Investigating Officer. Learned trial Court essentially relying on the oral testimony of PW-4, PW-6 and PW-9 as well as the doctor (PW-10), recorded the conviction of the accused/appellants.

10. PW-4 stated that he was the conductor of the bus in which the victim was travelling. According to him, the victim Dulu Dutta was travelling in the bus. After moving some distance, accused Prakash Chowhan with Rajesh Sahu as pillion rider came in a scooter and overtook the bus. They stopped the scooter on the road obstructing the bus and consequently the driver stopped th