JUDGMENT :

Kardak Ete, J.

Heard Mr. N.N.B. Choudhury, learned counsel representing the appellant. Also heard Ms. S. Jahan, learned Additional Public Prosecutor appearing for the State of Assam. Ms. Hira Baruah Barman was appointed as legal aid counsel for the respondent No. 2 vide order dated 02.09.2021. However, the learned legal aid counsel is absent.

2. This Criminal Appeal has been preferred by the appellant against the judgment and order dated 07.06.2017 passed by the Court of Sessions Judge, Barpeta, Assam in Sessions Case No. 296/2012, whereby the convicts, Shri Mukul Deka and Shri Dipankar Deka have been convicted under Section 34 1 /302/34 IPC, 1860 and sentenced to undergo Life Imprisonment and to pay a fine of Rs. 10,000/-(Rupees Ten Thousand) each, in default to undergo Rigorous Imprisonment for another 6 (six) months each for the offence under Section 302 /34, IPC and to undergo Simple Imprisonment for 1 (one) month each for the offence under Section 34 1 /34 IPC.

3. Be it noted that conviction and sentence of Mr. Dipankar Deka was set aside by the Coordinate Bench of this Court vide Judgment and Order dated 06.02.2020 on the ground that the appellant/convict, Mr. Dipankar Deka was juvenile on the date of commission of the offence and the matter has been remanded to the Juvenile Justice Board to proceed in accordance with law.

4. The case of the prosecution, in brief, is that on 27.07.2008 at about 8:50 PM, while Kushal Deka was returning from Sarthebari market, near Fire Brigade Office suddenly the informant, Smt. Guna Bala Deka heard a sound “Mok namaribi, mok namaribi’”. Hearing the shouting she rushed to the place of occurrence and saw the two accused, Mukul Deka and Dipankar Deka stabbed Kushal Deka on his neck by a sharp cutting weapon restraining him on the road. Seeing her, both the accused persons fled away from the place of occurrence and Kushal Deka died on the spot. Accordingly, wife of the deceased, Smt. Guna Bala Deka lodged an FIR at Sarthebari Police Station on 28.07.2008. An FIR was registered being Sartherbari PS Case No. 111/2008 under Section 34 1 /302/34 IPC, 1860. On completion of the investigation, the police submitted a Charge-sheet against Shri Mukul Deka and Shri Dipankar Deka under Section 34 1 /302/34 IPC on 08.07.2015.

5. The Judicial magistrate First Class, Barpeta committed the case to the Court of Sessions. Charges were framed against the accused persons under Section 34 1 /302/34 IPC. The convicts/accused persons pleaded not guilty and claimed for trial.

6. During the course of trial, the prosecution has examined in all 9 (nine) witnesses including the Investigating Officer. The convicts/accused persons were examined under Section 313 of CrPC. The defence plea is total denial and the accused persons declined to adduce evidence.

7. The Court of Sessions Judge, Barpeta after examination of the deposition and materials available on record, convicted the accused persons/convicts vide judgment and order dated 07.06.2017 under Section 314/302/34 IPC, 1860 and sentenced them to undergo Life Imprisonment and to pay a fine of Rs. 10,000/-(Rupees Ten Thousand) each in default to undergo Rigorous Imprisonment for another