JUDGEMENT Neelam, J. :- This appeal is directed against the judgment of conviction and sentence so passed by the learned Sessions Judge, Nalbari on 13-9-93 in Sessions Trial No. 34(N) of 1989, by virtue of which all the above named accused-appellants are convicted under Section 302 read with Section 34 of the Indian Penal Code and they are sentenced to undergo rigorous imprisonment of life and also to pay a fine of Rs. 2,000/- (Two thousand) each in default to undergo rigorous imprisonment for two years. 2. The case of the prosecution, in short, as given by the first informant Sabi Banu Bibi alias Safura Begum the mother of the deceased who figures as P.W. 1 (ejahar Ext. 1) is that in her native village No. 3 Kalipur under Tamulpur Police Station at about 5 O Clock in the morning on 12-10-1987 when her son Baharul Islam had gone to ease himself, all the accused-appellants variously armed seriously injured him by piercing deadly weapon in his chest and abdomen and when he raised alarm the miscreants fled away. The names of the accused-appellants are so detailed in the ejahar with the deadly weapons to be seen in their hands by the first informant at that time. 3. On the basis of the ejahar, initially the case was so registered under Section 147/324/326, IPC when it was so converted into Section 302, IPC because of the death of Baharul Islam taking place the same day in the evening hours in the Gauhati Medical College Hospital, in course of treatment. In course of trial when the case record was so committed to the Court of Sessions it transpires that altogether 13 P.Ws. have been examined out of whom some of the witnesses are on the point of assault and others on the point of locating the appellants fleeing away and so far as P.Ws. 4, 5 and 9 are concerned, they are also on the point with regard to Bahar Ali since deceased making a statement before them just after the occurrence at the place of occurrence itself which is near Kalipur No. 3 Chowk near a drain, of particularly the appellant Hazarat Ali stabbing him seriously and it is claimed that this statement was so given by Bahar Ali, in expectation of his death so hanging because of the serious injuries sustained by him. The learned Sessions Judge, it transpires, after evaluating the evidence on record oral and documentary, came to the conclusion that the prosecution in course of trial and had established the guilt of accused-appellants facing trial with regard to their committing intentionally. The death of Bahar Ali in furtherance of their common intention. This will not be out of place to mention that one Tazir Ali was also initially an accused who died during the pendency of the trial. After convicting the accused-appellant u/S. 302/34 IPC they have been sentenced as detailed above. 4. Mr. P. G. Baruah, learned counsel appearing on behalf of the appellants has submitted that as a matter of fact the prosecution had failed to establish the guilt of the appellants. There was no material before the learned Sessions Judge as to hold that there was meeting of minds by the appellants committing the offence which is alleged to have been committed by them and the major contradictions in the statements of the material prosecution witnesses with regard to the presence of all the accused persons facing trial, also with regard to the overt act attributed against them. It is also claimed that the totality of the series of acts which resulted into the commission of the offence on no account gives a picture with regard to any prior concert so made between the accused-appellants and for convicting a person u/S. 302 read with Section 34 IPC it is not only necessary that the accused persons were found present at the spot but the onus was heavily upon the prosecution as to prove the common intention, as only in such circumstances constructive liability can be fixed up to all of them though act played by the accused persons might be varying in character. In this connection attention was drawn to the evidence of P.Ws. 1 and 2 and it was submitted that appellants who were named to be the persons catching hold the body of Bahar Ali while appellant Hazarat Ali, as claimed, gave a stab blow, is different with that of the names given by P.W. 2 with regard to the appellant catching hold Bahar Ali. As regards distance from which, in the early morning hours of the date of occurrence, the P. Ws. As regards distance from which, in the early morning hours of the date of occurrence, the P. Ws. had an opportunity to see the occurrence, is said to be 20 Tars but P.W. 9 who is the wife of the deceased has given a clear picture claiming the distance from which the occurrence was viewed, to be 200 yards at a road-crossing in Kalipur from the residential house of P.W. 9. It is also projected in course of argument by the learned counsel for the appellants that P.W. 2 who is the daughter of the deceased, is very specific in stating in her cross-examination that the occurrence took place at 5 a.m. and there was darkness yet there. In this background it is submitted that the version of all the P. Ws. claiming to have seen the occurrence with regard to the accused-appellant being found there armed with different weapons, their surrounding Bahar Ali and assaulting him, get falsified because in the darkness yet prevailing at that time of early morning hours of winter season (the month being October), there was no possibility of any man seeing and identifying accused-appellants from a distance of 200 yards. The case of the defence which was so taken in course of trial and which is so repeated even at this stage is that though Bahar Ali was found having several injuries on his person who even breathed his last on the same day, the appellants had not in any way participated in committing the offence. It is as per the case of the defence at the instance of one Haidar Ali, the appellants are falsely implicated with whom the accused persons were not in good terms. Some of the witnesses so examined are seizure-list witnesses. PW. 6 is the scribe of the ejahar, P.W. 11 is the Doctor conducting post-mortem examination and P.W. 13 the Investigating Officer of this case. The material witnesses so examined on behalf of the prosecution such as P.Ws. 1, 2, 3, 5 and 9 are claimed to be the near and dear relations Bahar Ali and they being interested witnesses their evidence be thus not relied upon. The material witnesses so examined on behalf of the prosecution such as P.Ws. 1, 2, 3, 5 and 9 are claimed to be the near and dear relations Bahar Ali and they being interested witnesses their evidence be thus not relied upon. With regard to the injuries so sustained and found on the person of Bahar Ali as detailed in the Post-mortem report so prepared by P.W. 11, it is submitted, that incised wounds on abrasions were also so found on his person over and above the punctured wounds and according to the Medical Officer it is because of the cumulative effect of the injuries so sustained that Bahar Ali breathed his last. In this connection it is submitted that there is no corroboration in the medical evidence with that of the oral evidence so adduced by the prosecution and no satisfactory explanation has come from prosecution side as to explain with regard to incise wounds and abrasions so also found on the person of Bahar Ali. Hence in this background the prayer so made on behalf of the appellants is that they be acquitted. 5. The learned Public Prosecutor, Assam Mr. B. P. Bora, on the other hand, has submitted that by taking into consideration the totality of the evidence so adduced it will transpire that accused-appellants intentionally caused the death of Bahar Ali on the said place, time and date of occurrence which was so witnessed by a good number of PWs and the act was so committed in furtherance of their common intention. It is also submitted that the dying declaration of Bahar Ali was so made which was by way of verbal statement in which he has named the culprit inflicting injuries which was the cause of his death particularly in presence of PWs. 4, 5 and 9 and so far as P.Ws. 5 and 9 are concerned on this issue, they have also well stood the test of cross-examination. Hence the impugned judgment of conviction and sentence so passed be thus upheld. 6. After hearing both the sides learned counsel, we have carefully gone through the evidence available on record. P.W. 1, the first informant happens to be the mother of the deceased. Hence the impugned judgment of conviction and sentence so passed be thus upheld. 6. After hearing both the sides learned counsel, we have carefully gone through the evidence available on record. P.W. 1, the first informant happens to be the mother of the deceased. By going through her evidence with that of the evidence of P.W. 2 who is the daughter of the deceased particularly with regard to the detail of the accused-appellants catching hold of Bahar Ali prior to Hazarat Ali giving a stab-blow, it is found that there is contradiction in the names so uttered by them and there is also major contradiction in their evidences with regard to which accused-appellant carrying which weapons. P.W. 1 has even come forward to say that she has defective eye-sight and this trouble started to her just after the death of her son Bahar Ali. According to her also it was an early morning hour when the occurrence took place. In her cross-examination she has also stated that except accused Saiful Ali, Hasan Ali and Hazarat Ali, she could not see others. As regards P.W. 2 her statement is much relied upon by the learned counsel for the appellants showing that since this witness who is claimed to be an eyewitness by the prosecution has herself come forward to say that darkness was yet prevailing at the time of commission of the offence because of the time being 5 a.m. (an early morning hour of winter season) it was not at all possible for any person as to see the occurrence that too from a distance of 20 tars as claimed by the other material prosecution witnesses and 200 yards as claimed by P.W. 9, the wife of the deceased who also claims herself to be one of the eye-witnesses. This vital part of the aspect, it was emphatically argued, was overlooked by the learned Sessions Judge. This vital part of the aspect, it was emphatically argued, was overlooked by the learned Sessions Judge. After going through the evidence of P.W. 2 we find that she has, in her cross-examination, made such a statement with regard to the darkness even prevailing at the time of occurrence and in such circumstance, we find that there is much of strength in the argument so advanced by the learned counsel for the appellants that visibility of the figure would not have been possible from a distance of 200 yards at that particular time in the early morning hours of winter season and that being so and also in the background of their contradiction so indicated in their statements of the material prosecution witnesses, it was not possible to reasonably believe that the material prosecution witnesses so cited had an occasion to have clear vision of the occurrence taking place from a distance as detailed above at that time when the darkness was yet there. So, taking this view, the issue with regard to the accused-appellants committing the offence in furtherance of their common intention also goes away. We have carefully looked into the post-mortem report and the opinion of the Medical Officer. Good number of incise wounds and abressions were also so found on the person of the deceased but the punctured wound so found were given on the vital part of the body which is so apparent by particularly looking into the injuries Nos. 4 and 5 which are the stab-wounds and in ordinary course were sufficient enough to cause the death of a person. 7. Thus marshalling of the evidence available on record gives a picture, as discussed above, with regard to the witnesses claiming to be eye-witnesses not getting an opportunity to have vivid vision of the occurrence taking place from a distance of 20 tars or 200 yards as coming from the mouth of the witnesses on the point of distance from where the occurrence was seen but the oral declaration so made by Bahar Ali before the witnesses detailed below carried much of importance. That declaration so made by him, in the facts and circumstances of the case can well be said to be a dying declaration which was in the shape of verbal statement and there was danger of death to the life of Bahar Ali in the background of nature of injuries sustained by him when in normal course survival was not expected. This verbal statement, it further transpires, is given by him immediately after the occurrence and no material is there to show that prior to this verbal statement given by Bahar Ali, since deceased, he had a chance to meet any person as to tutor him to falsely implicate somebody and a person on the verge. of death is not also normally expected to commit the sin i.e. of implicating somebody else. The statement so given by Bahar Ali prior to his death in presence of witnesses seems to be out of his free will so expressed without any pressure of utoring. P.W. 4 in his examination-in-chief though has come forward to say that Bahar Ali could tell him at the place of occurrence with regard to appellant Hazarat Ali assaulting him but in his cross-examination, he has come to say that Bahar Ali had not told him with regard to appellant Hazarat Ali, assaulting him rather the woman who had been there told him that Habib Ali had assaulted him. Though on this point, the statement of this witness cannot be relied on but, on the other hand, P.Ws. 5 and 9, namely, Tafiqur Rahman who is the younger brother of the deceased and Mustt. Kadbanu Begum, who is the wife of the deceased, are very clear in their statement and they have also well stood the test of cross-examination. P.W. 5 has come forward to say that Bahar Ali told him, who was in a condition to speak that appellant Hazarat Ali had stabbed him and others, as told by P.W. 5, were waiting having weapons. This witness has also come forward to say that he had also chased appellant Hazarat Ali who had entered into the house of Mahammad where he was overpawered and made over to the police who arrested appellant Hazarat Ali. So far as. P.W. 9 is concerned after giving full details with regard to occurrence taking place she is specific in saying that her husband, i.e., Bahar Ali since. So far as. P.W. 9 is concerned after giving full details with regard to occurrence taking place she is specific in saying that her husband, i.e., Bahar Ali since. deceased told her that appellant Hazarat Ali had stabbed him with knife. She claims to have bandaged her husband's injury with bed-sheet. So, this part of the story as coming from the mouth of particularly P.Ws. 5 and 9 with regard to Bahar Ali since deceased giving his verbal dying declaration specifically pointing out with regard to Hazarat Ali giving him the stab injuries which are also corroborated by the evidence of the Medical Expert (PW 11) cannot be brushed aside on the ground that though before the other witnesses because of the darkness prevailing there might not have been clear visibility but so far as Bahar Ali is concerned who was so attacked had an opportunity to see the assailant who gave stab-blows in the abdomen from a very close range and therefore had thus an opportunity to identify the assailant who is no one else but accused-appellant Hazarat Ali as repeatedly claimed by Bahar Ali in presence of P.Ws. 5 and 9 arriving at the place of occurrence just after the event taking place. 8. Taking that view we are of the opinion that in the background of the evidence available on record the prosecution has thus failed to establish charge so levelled against appellants Hasan Ali, Habibor Ali, Saifullah Ali and Mafizur alias Mafiz Ali as it cannot be said that in furtherance of their common intention they intentionally caused the death of Bahar Ali on the grounds mentioned above. Taking that view the judgment of conviction and sentence so passed against them is thus hereby set aside and all the four accused-appellants indicated above are hereby acquitted. They are also discharged from the liability of their bail bonds. Out of them except appellant Mafizur Alias Mafiz Ali, the others are behind the bar. They be released forthwith if not wanted in any other case. 9. As regards the accused-appellant Hazarat Ali on the grounds mentioned above particularly in the background of dying declaration made by Bahar Ali since deceased as detailed by P.Ws. Out of them except appellant Mafizur Alias Mafiz Ali, the others are behind the bar. They be released forthwith if not wanted in any other case. 9. As regards the accused-appellant Hazarat Ali on the grounds mentioned above particularly in the background of dying declaration made by Bahar Ali since deceased as detailed by P.Ws. 5 and 9 which was so made before them, specifically naming this accused-appellant Hazarat Ali to be the person stabbing him in the abdomen as a result of which he sustained injury and because of the fact that though darkness was still prevailing at about 5 a.m. on the alleged date of occurrence being winter early morning, Bahar Ali at least had an opportunity to have confrontation with the appellant Hazrat Ali from a very close distance, in the surrounding circumstances, we hold that the prosecution has succeeded as to establish with regard to the guilt of accused appellant Hazarat Ali who has committed offence coming under the purview of S. 302, IPC and we hereby convict him under S. 302, IPC and sentence him to undergo rigorous imprisonment for life and to pay a fine of Rs. 2,000/- (Rupees two thousand) also in default to undergo rigorous imprisonment for two years as was awarded by the learned Sessions Judge, Nalbari to him. Since it is submitted that the accused-appellant Hazarat Ali is already in jail, he shall serve the sentence so awarded and shall pay the fine. 10. This Criminal Appeal is partly allowed. 11.D. N. BARUAH, J. :- I agree. Appeal partly allowed.