Point of Law: Oral dying declaration is a weak kind of evidence and is not worthy of consideration when exact words uttered by the deceased is not available.

JUDGMENT :

Suman Shyam, J

1. Heard Mr. U.J. Saikia, learned counsel appearing for the appellants in Criminal appeal No. 75/2018. We have also heard Mr. U. Choudhury, learned Amicus Curiae appearing for the appellant in Criminal Appeal (J) No. 22/2018. Ms. B. Bhuyan, learned APP, Assam, has appeared on behalf of the State/respondent no. 1 in both the appeals. None has appeared for the respondent no. 2/informant.

2. These appeals are directed against the common judgment and order dated 16/12/2017 passed by the learned Sessions Judge, Jorhat, in Sessions Case No. 19(J-J)/2015, convicting the three appellants under Section 302/34 of the Indian Penal Code (IPC) and sentencing them to undergo rigorous imprisonment for life and also to pay fine of Rs. 20,000/-each with default stipulation. As such, we propose to dispose of both the appeals by this common judgment and order.

3. The prosecution story, in a nutshell, is to the effect that on 20/12/2014 during the evening hours, an altercation took place in between the accused persons, viz. (1) Sri Prasanta Das @ Sarupai, (2) Sri Akanti Das @ Dipak and (3) Sri Makhan Das on one hand and the victim Debojit Das on the other. At that time, accused Prasanta Das had dealt dagger blows on the vital part of the deceased, as a result of which, the victim was grievously injured. The victim Debojit Das was rushed to the Jorhat Medical College and Hospital (JMCH) for treatment, but the doctors declared him brought dead.

4. On 21/12/2014 Sri Dipak Das, who is a cousin of the victim, had lodged an ejahar before the Officer-in-Charge, Pulibor Police Station reporting the incident. Based on the aforesaid ejahar, Pulibor Police Station case No. 286/2014 was registered under Section 302/34 of the IPC. The matter was entrusted to S.I. Sri Tokheswar Tamuli for carrying out investigation. Upon completion of investigation, the IO had submitted charge sheet against all the three accused persons under Section 302/34 of the IPC. Accordingly, charges were framed against the accused persons u/s. 302/34 IPC, which were read over and explained to them. However, since the accused persons had pleaded not guilty, they were made to face trial.

5. In order to bring home the charge, the prosecution side had examined as many as 10 (ten) witnesses including the IO Sri Tokheswar Tamuli (PW-9) and Doctor Mamta Devi (PW-10) who had conducted the post-mortem examination on the dead body of the victim. After recording of prosecution evidence the statements of the accused persons were recorded u/s. 313 of the Cr.P.C., wherein, they had denied all the incriminating circumstances put to them. Accused Prasanta Das had also stated that it was Babul Das, who had assaulted the victim and fled the scene and he has been falsely implicated in the matter. Upon evaluation of the evidence available on record, the learned Sessions Judge, Jorhat, had held that the prosecution had succeeded in establishing the charge brought against the accused persons u/s. 302/34 of the IPC beyond reasonable doubt. Accordingly, all the three accused persons were convicted u/s. 302/34 IPC and sentenced to undergo rigorous imprisonment for life and also to pay fine.

6. Assailing the impugned judgment and order dated 16/12/2017, Mr. Saikia, learned counsel for the appellants in Criminal Appeal No. 75/2018 has argued that out of the 10 (ten) witnesses examined by the prosecution, as many as four witnesses, viz. PWs - 2, 4, 5 and 7 had turned hostile. According to Mr. Saikia, PW-3 is not an eye witness to the occurrence and the PW-1 was also not present at the scene when the incident took place. Mr. Saikia further submits that the PWs - 3 and 6, had merely seen the accused Akanti Das and Makhan Das fleeing the scene. There is no credible evidence available on record so as to implicate his clients in any overt act carried out with a common intent to murder the victim. Under the circumstances, submits Mr. Saikia, the conviction of the two appellants in Criminal App