JUDGMENT Anima Hazarika, J. 1. These two criminal appeals have been preferred by three accused persons, namely Bhaity Saikia (Crl. Appeal No. 332/2002), Indra Saikia and Bihua Saikia (Crl. Appeal No. 349(J)/2002), challenging the legality and validity of the judgment of conviction rendered by the learned Sessions Judge, Golaghat in Sessions Case No. 19 of 2002 whereby and whereunder the appellants herein were found guilty of having committed an offence punishable under Sections 302/34 of the Indian Penal Code, 1860 (IPC for short) and each was sentenced to undergo imprisonment for life and to pay a fine of Rs.1000/-, in default to undergo RI for another 2 (two) months. The appellants were further convicted for offence punishable under Sections 447/34 of IPC and each was sentenced to undergo R.I. for 1 (one) month making it clear that the sentences under the sections as mentioned above would run concurrently. 2. Both the appeals being directed against the same judgment as indicated hereinabove, the appeals were heard analogously and disposed of by this common judgment. 3. The prosecution version as unfolded during trial is as follows: The complainant Lakhi Gogoi, PW-1 lodged an FIR on 22.9.1999 with the Officer-in-Charge (O/C for short), Naojan Police Outpost contending inter alia that his father Tankeswar Gogoi returned home around 1:00 a.m. on 20.9.1999 after attending the birth anniversary celebration of Shri Shri Shankar Deva at the Namghar and after reaching home his father lay asleep on a bench in the courtyard, whereupon the accused persons came armed with weapons viz. dao, khukri, dagger etc. and assaulted him on various parts of his body and killed him by cutting his genital organs. The FIR further disclosed that the accused had also assaulted his mother (PW-2) and his younger sister (PW-6) and injured them seriously and the accused had threatened to finish all the members of his family. Six accused named in the FIR are: (1) Bihua Saikia. (2) Indra Saikia. (3) Dev Saikia. (4) Jitu Saikia. (5) Jun Saikia. (6) Bhaity Saikia. 4. Upon receipt of the FIR, the O/C of the Naojaon Police Outpost made a G.D. Entry No. 307 dated 22.9.1999 and sent the same to Sarupathar Police Station wherein the same was registered as Sarupathar PS. Case No. 68/99 under Sections 147/148/149/447/326/302, IPC. The O/C, Naojan Police Outpost took the responsibility of investigation of the case. (6) Bhaity Saikia. 4. Upon receipt of the FIR, the O/C of the Naojaon Police Outpost made a G.D. Entry No. 307 dated 22.9.1999 and sent the same to Sarupathar Police Station wherein the same was registered as Sarupathar PS. Case No. 68/99 under Sections 147/148/149/447/326/302, IPC. The O/C, Naojan Police Outpost took the responsibility of investigation of the case. The Investigating Officer (I.O. for short) arrived at the place of occurrence, made spot inspection and prepared the inquest report of the dead-body of Tankeswar Gogoi vide Ext. 3. The dead-body was sent to Golaghat Civil Hospital for postmortem examination. The postmortem of the dead-body of Tankeswar Gogoi was conducted by Dr. Prodip Kumar Baruah. Smti. Sonmai Gogoi and Smti. Renu Gogoi who received injuries were also examined by Dr. Danda Gogoi at Borpathar State Dispensary. Their injury report are Ext. 5 and Ext. 6. The I.O. had arrested three accused viz. Bihua Saikia, Indra Saikia and Bhaity Saikia. The other accused Jitu Saikia could not be apprehended and was declared absconder. During the course of investigation, the I/O seized a dao from Bihua Saikia, two bamboo lathis and a four feet long lathi vide Ext. 7, 2 and 8 respectively. After completion of the investigation, the I.O. submitted charge-sheet against the accused persons. 5. The case being triable by the Court of Sessions, the Sub-Divisional Judicial Magistrate, Sarupathar committed the case on 15.3.2002 to the learned Sessions Judge, Golaghat being G.R. Case No. 117/99. Finding a prima facie case against the accused persons, they were charged under Section 302 read with Section 34, IPC, Section 447/34 and Section 323/34, IPC. The charges being read over and explained to the accused persons they pleaded not guilty and claimed to be tried. 6. In support of the prosecution version, Lakhi Gogoi (PW-1), son of the deceased, Sonmai Gogoi (PW-2), wife of the deceased Tankeswar Gogoi, who had sustained injures, Padma Bora (PW-3), relative of the deceased, Romen Gogoi (PW-4) son of the deceased, Champa Gogoi (PW-5), daughter-in-law of the deceased, Renu Gogoi (PW-6), daughter of the deceased, who had also sustained injuries, Deba Kanta Konwar (PW-7), relative of the deceased, Dr. Prodip Kr. Baruah (PW-8), who held the post-mortem examination on the body of the deceased Tankeswar Gogoi, Dr. Danda Gogoi (PW-9) who examined the injured Sonmai Gogoi (PW-2) and Renu Gogoi (PW- 6) and Prabin Ch. Prodip Kr. Baruah (PW-8), who held the post-mortem examination on the body of the deceased Tankeswar Gogoi, Dr. Danda Gogoi (PW-9) who examined the injured Sonmai Gogoi (PW-2) and Renu Gogoi (PW- 6) and Prabin Ch. Ds (PW-10) who conducted the investigation were produced. The accused persons were examined under Section 313, Cr PC, who denied the allegations and contended that they have been falsely implicated in this case due to enmity/grudge. 7. Lakhi Gogol, PW-1, the informant, Sonmai Gogoi, PW-2 and Renu Gogoi, PW-6 claimed to be eye-witnesses of the occurrence. PW-1 in his deposition during the trial, has deposed that he knew the accused since they are from the same village. His father was killed by accused Bihua, Indra Saikia, Jitu Saikia and Bhaity Saikia in the courtyard of their house. The occurrence took place three years ago. The date of occurrence was Monday. PW-1 came back from Namghar and went to sleep at his home. His mother, PW- 2, younger sister PW-6, elder sister of his sister-in-law Padma Bora, PVV-3 were present at home. His father Tankeswar Gogoi, since deceased, was not present till he went to sleep. His father came afterwards and lay asleep in the courtyard. As usual, his mother laid his bed outside the house. It was around 1 a.m. in the night. At that time hearing the hue and cry, he came out and saw that his father was lying on the ground. The mother and younger sister were present there. Then he saw the accused persons were cutting and assaulting his father by means of lathis. The accused also assaulted his mother. Accused Bihua had cut his father with a dao, Indra has assaulted with a lathi while Jitu cut with a Khukri. But he did not see Bhaity. PW-1 has further deposed that accused Bihua cut his mother with a dao and younger sister was cut by accused Jitu and they were medically examined. He lodged the ejahar (vide Ext. 1). The police seized two lathis from their house (material Exts: 1 and 2 are two lathis). During cross-examination nothing incriminating could be brought out by the defence. PW-1 has denied all the suggestions put to him. He lodged the ejahar (vide Ext. 1). The police seized two lathis from their house (material Exts: 1 and 2 are two lathis). During cross-examination nothing incriminating could be brought out by the defence. PW-1 has denied all the suggestions put to him. When asked about a case filed by the wife of the accused Bihua against his father and another case under Section 107, Cr PC for assaulting accused Jitu Saikia, he replied that he was not aware about filing of those cases. 8. PW-2 Sonmai Gogoi deposed that on the day of occurrence, the birth anniversary of Sankardeva was celebrated at Namghar. The villagers went to Namghar including her husband. She did not go because the guests from Balijan came to their house to witness the celebration. Around 1:00 a.m. in the night, her husband came back home and she was aware of his return. She did the sleeping arrangements for him outside the house. At that time her daughter Renu, dauther-in-law's elder sister Padma were present in the house. Her daughter-in-laws elder brother Deba Konwar came and entered into her house. Her son was present at that time. She heard hue and cry outside the house. She came outside the house and saw that accused Jitu Saikia, Bihua Saikia and Indra Saikia were inflicting cut injuries to her husband by means of dao, khukri etc. Her husband fell down on the ground from the bench. She had requested them not to inflict any assault on her husband. But the accused assaulted her also and her right hand was cut and she fell down. The accused were her neighbours. When her daughter Renu came out and asked the accused not to cut her father, the accused assaulted her. PW-2 has further deposed that she was in the hospital for four days due to the injuries inflicted by the accused. In the cross-examination she has admitted that she did not notice who was armed with dao and khukri. She has further stated that the case filed by the accused against her husband was settled and they won the case. The other suggestions put to her have been denied. 9. In the cross-examination she has admitted that she did not notice who was armed with dao and khukri. She has further stated that the case filed by the accused against her husband was settled and they won the case. The other suggestions put to her have been denied. 9. PW-3 is not the eye-witness to the commission of crime though she heard the hue and cry outside the house wherefrom she heard the voice of Bakho saying that her father had been cut and thereafter she left the house through backdoor. The evidence of PW-3 thus did not help the prosecution case. 10. The deposition of PW-4 relates to dying declaration of his father Tankeswar Gogoi. PW-4 deposed that after celebrating the birth anniversary of Shri Sankar Deva at Namghar, he came to his residence and found that his father was lying in the courtyard in an injured condition with injuries in legs, hands and head smeared with blood. His father asked him to take him inside the house and on query about assault he told him that Bihua Saikia, Indra Saikia and Jitu Saikia had cut him. When asked about mother and sister his father told him that the accused had also assaulted them. At 3:30 a.m. his father succumbed to his injures. In the cross-examination he denied the suggestions. 11. PW-5 Smti. Champa Gogoi has narrated the same story of celebration of birth anniversary of Sankar Deva in the Namghar and further stated that when she came back, she did not find anybody at home and saw that her father-in-law was groaning and on query, father-in-law told her that accused Bihua, Indra, Jitu and Bhaity had cut him. She saw bleeding injury on the person of her father-in-law. As there was nobody in the house, she left for her maternal's aunt's house. She found mother and sister in an injured condition. On enquiry both of them told her that the accused had also assaulted them and said that the accused had cut father-in-law. In the cross-examination the suggestions put to her have been denied. 12. PW-6 is the daughter of the deceased Tankeswar Gogoi. PW-6 deposed that on the day of occurrence a 'Bhaona' was organized on the occasion of the birth anniversary celebration of Shankar Deva. On that day there were guest in their house viz. Deba Konowar and Padma Borah. In the cross-examination the suggestions put to her have been denied. 12. PW-6 is the daughter of the deceased Tankeswar Gogoi. PW-6 deposed that on the day of occurrence a 'Bhaona' was organized on the occasion of the birth anniversary celebration of Shankar Deva. On that day there were guest in their house viz. Deba Konowar and Padma Borah. On that fateful night, the deceased was at Namghar. Being tired she went to sleep alongwith Padma Borah. Her mother PW-2 did sleeping arrangements for father. When PW-6 was in a half sleeping state, she heard her father calling her by name and saying that he was dying. Then she heard the voice of the accused saying they would finish. Immediately she went out to her father and saw that accused Indra, Bihua, Bhaity and Jitu were cutting her father by means of a convex dao. Her father fell down on the ground from the bench. Thereafter she immediately requested 'moha (maternal aunt's husband) Indra Saikia not to cut her father. PW-6 repeatedly requested the accused, whereupon, Bhaity Saikia told to cut the male members only and not to cut the female members. Accused Bhaity assaulted her with a lathi on her head. She fell down on the floor which caused injury on her breast. When her mother requested not to cut her father, the accused Jitu stabbed her with the fore-point of a dagger and her mother fell down. Thereafter PW-6 once again requested the accused not to cut father and on that accused Indra charged at her and she ran away and hide herself under a pushing cart at the house of Joy Chandra Chetia, her 'moha'. After a while she called "moha" who opened the door and took her inside the house and in the next morning she came to know that her father died. She alongwith her mother availed treatment at Sarupathar Civil Hospital for the injuries caused upon them by the accused persons. In the cross-examination she deposed that accused Bihua, Indra and Jitu Saikia were standing nearby. They had dao like weapons in their hands. The suggestions put to her by the defence was denied except the facts narrating the assault by Bhaity, Endra and Bihua to her. 13. In the cross-examination she deposed that accused Bihua, Indra and Jitu Saikia were standing nearby. They had dao like weapons in their hands. The suggestions put to her by the defence was denied except the facts narrating the assault by Bhaity, Endra and Bihua to her. 13. PW-7 Deba Kanta Konwar, who came to his sister's place to witness the 'Bhaona' on the occasion of celebration of birth anniversary of Sankar Deva has deposed that he heard the shouting of deceased Tankeswar Gogoi, wife and daughter saying "save ! save". When he came out he saw the deceased and his wife were lying there. He saw three outsiders going from the campus of the family. His deposition about three persons going out from the campus of the family has relevance in the matter of deciding the case. 14. The autopsy on the dead-body of the deceased Tankeswar Gogoi was done by PW-8 Dr. Pradip Kr. Baruah. PW-8 has found the following injures: (a) Clean margin wound of size 5" x ½" x 3" underlying bone fracture membrane torn, brain matter exposed on right frontal area of head anterior posteriorly above hair line; (b) Clean margin wound of size-12" x 2" x 4" on the right side of abdomen 2½" below and lateral upto the right flank, underlying intestine comes out through the wound; (c) Clean margin wound of size 2" x ½" x bone deep on left shoulder area; (d) Clean margin wound of size-4" x ½" x bone deep on thigh 1" above knee joint; (e) Wound of size - 2" x ½" x bone deep on 9th and 10th cervical spine on back side; (f) Wound of size-2" x 1" x ½" on medial side of left buttock. According to PW-8 all the injuries are anti-mortem in nature and caused by sharp cutting weapon/instrument and in his opinion the cause of death was due to shock and hemorrhage as a result of the injures sustained by the deceased. He has proved the post-mortem report (Ext. 4). During cross-examination the defence has put it only one question in regard to weapon used to which he replied that nature of weapon is mentioned in the report. He has not mentioned the word sharp cutting, but mentioned the clean margin of the wounds. 15. Another doctor was examined by the prosecution relating to the injuries sustained by PW-2 and PW-6. He has not mentioned the word sharp cutting, but mentioned the clean margin of the wounds. 15. Another doctor was examined by the prosecution relating to the injuries sustained by PW-2 and PW-6. The Doctor, PW-9 has deposed that on 28.9.2001 he has examined PW-2 Sonmai Gogol and found the following injury: (a) One incised wound on right side of the scalp, caused by sharp cutting weapon. Nature of injury was simple and age of the wound within 24 hours. Ext. 5 is the medical certificate issued by him. The said witness PW-9 has further examined PW-6 and found the following injury. (a) One abrasion wound in the chest caused by blunt weapon. In his opinion, nature of injury was simple and age of the wound within 24 hours. Ext. 6 is the medical certificate issued by him. In the cross-examination nothing adverse has been brought against the prosecution. 16. The Investigating Officer was examined as PW-10 by the prosecution. In his deposition he has deposed that on 28.9.1999 at about 5:00 a.m., PW-5 came to the police outpost at Naojan and verbally informed that last night their neighbour Bihua Saikia accompanied by his brothers and sons had cut to death her father-in-law Tankeswar Gogoi. The accused had also cut her mother-in-law and younger sister and injured them. The I.O. made a G.D. Entry and took the responsibility of investigation. Accordingly he went to the place of occurrence and held inquest on the dead-body (Ext. 3). Thereafter he had sent the dead-body to Goiaghat Civil Hospital for autopsy. He had interrogated the witnesses and sent Sonmai and Renu Gogoi to the hospital for medical examination. The day after the day of occurrence when the investigation was started, deceased's son Lakhi Gogoi had formally lodged an ejahar in the outpost (Ext. 1). PW-10 deposed that during the course of investigation he had seized a 'dao' from accused Bihua Saikia (Ext. 7) and material Ext. 3 is the said dao. He had also sized two bamboo lathis (Ext. 2). Material Ext. 1 and 2 are the said lathis. He had further seized a four feet long lathi vide Material Ext. 4. Ext. 8 is the seizure list. He had arrested three accused persons and committed them for trial and on his transfer Prabin Chandra Tamuli submitted the charge-sheet (Ext. 11). In cross-examination he has denied the questions put to him. 1 and 2 are the said lathis. He had further seized a four feet long lathi vide Material Ext. 4. Ext. 8 is the seizure list. He had arrested three accused persons and committed them for trial and on his transfer Prabin Chandra Tamuli submitted the charge-sheet (Ext. 11). In cross-examination he has denied the questions put to him. He had further stated that PW-6 did not tell the name of Bhaity Saikia to him. 17. The learned trial Court after going through the material evidence on record examined the accused persons under Section 313of the Cr PC and convicted them under Sections 302/34 and 447/34, IPC, holding that the prosecution has failed to establish the charge under Section 323/34 against the accused persons and hence the instant appeal challenging the legality and validity of the impugned judgment of conviction and sentence as aforesaid. 18. Assailing the judgment of conviction and sentence, Mr. N.C. Phukan, learned Counsel appearing on behalf of the accused appellant Bhaity Saikia and Mr. P. Kataky, learned Amicus Curiae, appearing on behalf of the accused appellants Indra Saikia and Bihua Saikia have placed the evidence of the prosecution witnesses, more particularly, the evidence of eye witnesses vis-a-vis the other witnesses. The Counsel took up the evidence of PW-1, who deposed that accused Bihua, Indra, Jitu Saikia and Bhaity Saikia had cut his father to death in the courtyard of their house. Admittedly he came back from Namghar and lay asleep. PW-1 was not present in the house and occurrence took place at 1:00 a.m. when their guests PWs-3, 4, 5 and 7 were present but did not notice who had made the assault on the deceased. Similarly PW-2 and PW-6 have deposed that they have seen the occurrence which is improbable in view of the charge of assault on the person of PW-2 and 6 having not been proved, more so, when they are highly interested persons. In absence of independent witnesses to the alleged occurrence it would not be safe to convict the accused with the aid of Section 34, IPC. 19. Mr. In absence of independent witnesses to the alleged occurrence it would not be safe to convict the accused with the aid of Section 34, IPC. 19. Mr. Phukan, learned Counsel appearing for the accused appellant Bhaity Saikia has drawn the attention of the Court to the GD Entry made by the I.O. on the verbal complaint of PW-5 wherein she has named Bihua Saikia accompanied by his brothers and sons, whereas, in the FIR, PW-1 has named 6 (six) accused persons. The I.O. has submitted charge-sheet against 4 (four) accused persons. Though the name of Bhaity Saikia has been mentioned by PW-1 in his deposition but subsequently admitted that he did not see Bhaity Saikia. Similarly PW-2 did not mention the name of Bhaity Saikia as an assailant. PW-3 is silent in regard to the name of accused persons. PW-4 in his deposition disclosed the name of Bihua Saikia, Indra Saikia and Jitu Saikia as told by the father in the form of dying declaration. PW-5 named 4 (four) accused persons including Bhaity as told by the deceased when lying in the floor. PW-6 in her deposition though mentioned the name of the accused Bhaity Saikia in the examination-in-chief, but in cross-examination she has named three accused persons wherein Bhaity's name did not find place though she has deposed that Bhaity has assaulted her which the prosecution has failed to establish. The deposition of I.O. is very specific denying the involvement of Bhaity Saikia as recorded under Section 161 of the Code. The statement made under Section 313 of the Code would belie his (Bhaity Saikia) presence at the time of commission of offence and hence vehemently argued that judgment of conviction in regard to Bhaity Saikia deserves to be interfered with by the appellate Court. 20. Learned Counsel appearing on behalf of the accused appellants would further argued that all the eye-witnesses have deposed that the accused were armed with dao, khukri and lathi and the accused have assaulted the deceased with the weapons armed with them. Who had inflicted the fatal blow could not be ascertained from the prosecution witnesses and the medical evidence is silent about the weapon used as described by PW-8. Who had inflicted the fatal blow could not be ascertained from the prosecution witnesses and the medical evidence is silent about the weapon used as described by PW-8. Therefore, it cannot be attributed that the criminal act is done with common intention by the accused persons and they cannot be convicted with the aid of Section 34, IPC more so, when PW-1, PW-2 and PW-6 are all claimed to be eye-witnesses. 21. Learned Counsel have further argued that the convex dao vide seizure list Ext. 7 i.e. material Ext. 3 was seized from accused Bihua Saikia; material Ext. 1 and 2 vide seizure list Ext. 2 were seized lathis from the place of occurrence and material Ext. 4 vide seizure list Ext. 8 is seized lathi from accused Indra Saikia on being identified by him and therefore the assault on the person of the deceased and the medical evidence does go to show that Bihua Saikia if at all believed is the lone culprit in the commission of offence and hence prayed for acquittal of other accused. 22. Learned Counsel appearing for the accused appellants have submitted that the trial Court lost sight of the fact that PWs-1, 2 and 6 have not spoken the truth. The scenario described by them does not fit in with the prosecution version. It is pointed out that the manner of attack and infliction of injuries as stated by the PWs-1, 2 and 6 do not fit into the medical evidence and the dying declaration before PW-4 and 5 by the deceased and the persons named as accused on the basis of dying declaration are not admissible in evidence and they cannot be convicted on inadmissible evidence and therefore urged upon the Court to interfere with the judgment of conviction and sentence. 23. Mr. K.A. Mazumdar, learned Additional Public Prosecutor, Assam on the other hand, supported the judgment of the trial Court and submits that it is not a fit case of acquittal in view of the deposition of eye-witnesses vis-a-vis the medical evidence which would go to show that the brutal murder had been committed by the accused in the instant appeal. 24. Considered the submissions advanced by the parties. We have also analysed the material evidence on record deposed by the prosecution witnesses. The evidence of eye-witnesses i.e. PW-1, PW-2 and PW-6 clearly bring out the accusations against the appellant viz. 24. Considered the submissions advanced by the parties. We have also analysed the material evidence on record deposed by the prosecution witnesses. The evidence of eye-witnesses i.e. PW-1, PW-2 and PW-6 clearly bring out the accusations against the appellant viz. Bihua Saikia, Indra Saikia and absconded accused Jitu Saikia. The accusation in the commission of crime by Bhaity Saikia could not be proved beyond all reasonable doubt. We have minutely scan the evidence of the eye-witnesses including the evidence of PW-4 and 5. PW-1 in examination-in-chief did make accusation against the accused Bhaity Saikia, but in cross-examination he has not implicated Bhaity Saikia. PW-2 on the other hand did not make any accusation against Bhaity Saikia both in examination-in-chief as well as cross-examination. PW-6 did disclose the name of Bhaity Saikia in the commission of crime and simultaneously deposed that Bhaity Saikia has assaulted her. The said accusation of assault on her could not be proved by the prosecution, more so, when she did not make any accusation against Bhaity Saikia at the time of examination under Section 161, Cr PC as revealed by PW-10, the I.O. during cross-examination. 25. Apart from the evidence of eyewitnesses, other two witnesses viz. PW-4 and PW-5 made accusation against Bhaity Saikia which was again based on dying declaration made by the deceased. The said dying declaration being not admissible in evidence it would be unsafe to convict the accused Bhaity Saikia in view of his statement under Section 313, Cr PC. 26. The prosecution has proved the assault and the weapon used in the commission of offence. The seizure lists vide Ext. 2, 7 and 8 (Material Exts. 1, 2, 3 and 4 respectively) would show that the weapons used in the crime were recovered from Bihua Saikia, Indra Saikia and from the place of occurrence. Therefore, the entire documentary evidence viz. GDE, FIR, ocular evidence and the evidence of PW-3 and 7 did not make any accusation against the involvement of Bhaity Saikia in the commission of crime. The prosecution having failed to establish the involvement of Bhaity Saikia beyond all reasonable doubt, the Court thinks it fit to acquit the accused Bhaity Saikia from the charges under Sections 302/34 and 447/34, IPC in the facts and circumstances of the case. 27. The prosecution having failed to establish the involvement of Bhaity Saikia beyond all reasonable doubt, the Court thinks it fit to acquit the accused Bhaity Saikia from the charges under Sections 302/34 and 447/34, IPC in the facts and circumstances of the case. 27. The question raised on behalf of the accused appellants in regard to ingredient of Section 34, IPC in the case in hand and their participation in furtherance of common intention, it is well established that Section 34, IPC has been enacted on the principle of joint liability in the doing of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34, IPC if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. The existence of a common intention amongst the participants in a crime is the essential element for application of this section. In the case in hand, it has been clearly established by the prosecution that the accused Bihua Saikia, Indra Kanta Saikia and Jitu Saikia were in furtherance of their common intention did the commission of offence by trespassing the house and assaulting Tankeswar Gogoi, resulting in death. Therefore, the learned trial Court is justified in placing reliance on the evidence of PWs-1, 2 and 6 and holding the accused Bihua Saikia and Indra Kanta Saikia guilty of offence charged against them. But the conviction of accused Bhaity Saikia under Section 302/34 and 447/34, IPC could not be proved by the prosecution witnesses beyond all reasonable doubt and therefore the accused Bhaity Saikia is entitled to be acquitted from the charges framed against him. 28. In the result, the Crl. Appeal No. 349(J)/2002 stands dismissed in respect of accused appellants Bihua Saikia and Indra Kanta Saikia upholding their conviction and sentence passed by the learned Sessions Judge, Golaghat. But the conviction and sentence passed against accused appellant Bhaity Saikia is set aside and quashed by giving benefit of doubt as stated hereinabove and he is entitled to get the acquittal from the charges leveled against him. But the conviction and sentence passed against accused appellant Bhaity Saikia is set aside and quashed by giving benefit of doubt as stated hereinabove and he is entitled to get the acquittal from the charges leveled against him. It is stated by the learned Counsel that accused Bhaity Saikia is in jail. He be released forthwith, if not wanted in any other case. Crl. Appeal No. 332/2002 is thus allowed. 29. Before parting with the judgment, we would like to put on record our appreciation to Mr. P. Kataky, learned Amicus Curiae for his valuable assistance rendered to arrive at a conclusion as indicated above. Accordingly, we order that he is entitled to get his professional fee which is quantified at Rs.5000/-. 30. The Registry is directed to send down the records immediately. Appeal allowed.