IMPORTANT POINT
The need for circumstances to be fully established and consistent only with the hypothesis of the guilt of the accused, and the requirement for corroboration of an oral dying declaration by other independent evidence before it can be relied upon.

JUDGMENT :

1. Heard Ms. B. Sarma, learned Amicus Curiae for the appellants. Also heard Ms. S.Jahan, learned Additional Public Prosecutor for the State of Assam.

2. This jail appeal has been registered on receipt of an appeal petition filed by the appellants, namely, Sri Anil Basumatary and Smt. Lakhimaya Basumatary, through the Superintendent, Central Jail, Tezpur, impugning the judgment and order dated 07.05.2019, passed by the learned Sessions Judge, Sonitpur, Tezpur in Sessions Case No. 96/2018.

3. By the impugned judgment, the appellants are convicted under Section 304 Part I/34 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for 7(seven) years each, with a fine of Rs. 5,000/- each and in default of payment of fine to undergo simple imprisonment for 2(two) months each. Both the appellants are presently detained in the Central Jail, Tezpur, Sonitpur.

4. The facts relevant for consideration of the present appeal, in brief, are as follows:-

i. That on 18.02.2018, at about 8:23 PM, one Smt. Junu Musahary had lodged an FIR before the Officer-In-Charge of Missamari Police Station, inter-alia, alleging that on 17.02.2018, at about 10:00 PM, the present appellants engaged in an altercation with the father of the first informant, namely, Keshram Musahary and they also assaulted him causing grievous injuries on his person. As a result the father of the first informant sustained injuries and he died on 18.02.2018. At the time of his death, the deceased was 70 years of age.

ii. On receipt of the said FIR, the Officer-In-Charge of Missamari Police Station registered Missamari P.S. Case No. 29/2018 under Section 302 of the Indian Penal Code and initiated the investigation.

iii. During investigation, the Investigating Officer recorded the statements of witnesses under Section 161 of the Code of Criminal Procedure, 1973. He visited the place of occurrence and drew a sketch map of the place of occurrence. He collected the post-mortem examination report and arrested both the appellants, and ultimately, on completion of the investigation a charge-sheet was laid under Section 302 of the Indian Penal Code against both the above named appellants.

iv. Both the above named appellants faced the trial while remaining on bail granted by the Trial Court on 31.05.2018. After considering the materials on record and hearing both the sides, the Trial Court framed charges under Section 302/34 of the Indian Penal Code against both the above named appellants. When the said charge was read over and explained to them, they pleaded not guilty and claimed to be tried.

v. The prosecution side examined 10(ten) prosecution witnesses to bring home charge against the appellants. The appellants were examined under Section 313 of the Code of Criminal Procedure, 1973, during which they denied the truthfulness of the testimony of prosecution witnesses and pleaded their innocence. However, they declined to adduce any evidence in their defence.

vi. Ultimately, by the judgment which has been impugned in this appeal, the above named appellants were convicted and sentenced by the Trial Court in the manner as already described in Paragraph No. 2 hereinabove.

5. The point for determination before the learned Sessions Judge, Sonitpur, Tezpur in Sessions Case No. 96/2018 was as follows:-

"Whether the accused Anil Basumatary and Lakhimaya Basumatary, in furtherance of the common intention, on 17-02-2018, at about 10 p.m. at No.1 Bherbheri under Missamari PS, assaulted Kesharam Mushahary as a result of which he succumbed to the injuries on the next day i.e. on 18-02-2018 and thereby committed an offence punishable u/s 302/34 of the IPC?”

6. Before considering the rival submissions of the learned Amicus Curiae as well as the learned Additional Public Prosecutor, Assam, let us go through the evidence available on record.

7. PW-1, Nirmal Swargiary, the son-in-law of the deceased, deposed that on 17.02.2018, the deceased Kesharam Mushahary, along with h