ORDER (P.K.Saikia, J) 1. This appeal is directed against the judgment dated 16.06.2010 passed by the learned Sessions Judge, Bongaigaon in Sessions Case No. 36 (A)/ 2005, convicting one Md. Joynal Abedin (herein after referred to as (‘the accused person’) of offence u/s 302 IPC and sentencing him to imprisonment for life and to pay a fine of Rs. 2000/-, in default imprisonment for further period of 1 year. 2. Being aggrieved by and dissatisfied with the aforesaid judgment, the accused/appellant had preferred this appeal citing several infirmities in the judgment under challenge. 3. Heard Mr. R. Ali, learned counsel for the appellant/petitioner. Also heard Mr. D. Das, learned PP appearing for the State of Assam. 4. The brief facts necessary for disposal of the present appeal are that on 22.05.2003 at about 7:00 pm, one Amir Badsha was proceeding to Abhayapuri Bazaar on his bicycle. His co-villager, namely, accused Joynal Abedin on the instigation of the other persons, such as Abdul Jabbar, Ainul Hoque, Syed Ali and Abdul Kalam, gathered on the road in front of the house of one Ranjit Das and gave Amir Badsha 3-4 blows with a spade on his back for which he got injured and fell down on the ground. 5. Being so assaulted, he raised hue and cry for which the persons in and around such place gathered there. Meanwhile, the accused fled from the scene taking advantage of darkness. The injured was immediately taken to Abhayapuri Hospital. However, he died before he reached hospital. An FIR to that effect on being lodged with O/C, Abhayapuri Police Station, same night, he registered the case vide Abhayapuri Police Station Case No. 54/2003 under sections 147/148/302 IPC and order investigation. 6. During the course of investigation, the I.O. visited the place of occurrence, recorded the statement of the witnesses, held inquest on the dead body, prepared a report in that connection, sent the dead body for post-mortem examination and did other needful and on conclusion of the investigation, I.O submitted the charge sheet under section 302 IPC against the accused Joynal Abedin and forwarded him to Court to face his trial. 7. When the Magistrate before whom the charge-sheet was so laid, he committed the case to the Court of Sessions since the offence u/s 302 IPC is exclusively triable by the Court of Sessions. 7. When the Magistrate before whom the charge-sheet was so laid, he committed the case to the Court of Sessions since the offence u/s 302 IPC is exclusively triable by the Court of Sessions. On the commitment of the case and after hearing the learned counsel for the parties, the learned Sessions Judge, Bongaigaon framed charge under section 302 IPC against the accused person and charge, so framed, on being read over and explained to the accused person, he pleaded not guilty and claimed to be tried. 8. During trial, the prosecution examined as many as 19 witnesses including the informant and the I.O. The statement of the accused person under section 313 Cr.P.C. was recorded. The accused denied the allegations brought against him and examined one witness in support of his case. On conclusion of the trial and after hearing the arguments of the learned counsel for the parties, the learned Sessions Judge convicted the accused of the offence under section 302 IPC and sentenced him to punishment as mentioned above. It is that judgment which has been assailed in the present appeal alleging several infirmities therein. 9. Opening up argument on behalf of the accused person, Mr. R. Ali, learned counsel for the appellant submits that the prosecution case is based mainly on dying declaration and the evidence of some of the witnesses. But neither the dying declaration nor the witnesses, aforementioned, could make out the allegations brought against the accused person. Inspite of that, the learned trial Court convicted the accused of offence under section 302 IPC and sentenced him to punishment as aforesaid. He, therefore, urges this Court to acquit the accused person for the offence u/s 302 IPC on setting aside the judgment of the trial Court. 10. On the other hand, learned Addl. P.P, Mr. D. Das appearing for the State argues that the judgment of the trial Court is based on well established evidence on record and the learned trial Court rendered the same keeping in view the laws which hold the fields in question. He, therefore, submits this Court to dismiss the appeal on upholding the judgment of the trial Court. 11. We have considered the rival submissions having regard to the evidence on record as well as the judgment under challenge. He, therefore, submits this Court to dismiss the appeal on upholding the judgment of the trial Court. 11. We have considered the rival submissions having regard to the evidence on record as well as the judgment under challenge. But before we could proceed further, let us have a look at the evidence of principal witnesses on whom prosecution had placed enormous reliance. They are PW-1 Smti. Alekjan Bewa and PW-10 Shri. Parimal Das who claim themselves to be the eye-witnesses to the incident in question. 12. According to PW-1, on the fateful day in the evening at about 7:00 pm, she was in her house. Her husband came out of the house and was proceeding towards Abhayapuri Bazaar. Little later, she heard hue and cry on the road and as such, she rushed to such place and found the accused hitting her husband on his neck with a spade. On seeing her coming, the accused fled from the scene. 13. In the meantime, Asmot Ali and Rahimuddin came there and with the help of those persons, she took her husband to hospital. However, on way to hospital, her husband breathed his last. Thereafter, she filed an FIR with O/C Abhayapuri Police Station. In her cross-examination, she clarified (i) that the incident took place in front of the house of one Ranjit Das, (ii) that on arriving at the place of occurrence, she found Ranjit and Dhanu there and (iii) that those witnesses had died before the trial began. 14. In his evidence, Shri. Parimal Das (PW-10) deposes that on the fateful day, he was in a shop at a place not far away from the place of occurrence. At that time, accused Joynal Abedin came there, asked some questions to Amir Badsha and then hit him by spade on his neck and other body parts. In his cross-examination, he stated that he was sitting in front of the shop of one Dhanu. In his cross-examination, he denied the suggestion that he deposed in the Court as taught by his mother. 15. The other witnesses who were asked to support the prosecution case are PW-2 Surab Ali, PW-3 Md. Ayub Khan, PW-4 Aladi Das, PW-5 Smti. Rashi Das and PW-8 Alikjen Bewa and PW-13 Md. Asmat Ali. PW-2 deposes that on the fateful evening at about 7:00 pm, he was cutting earth near the place of occurrence. 15. The other witnesses who were asked to support the prosecution case are PW-2 Surab Ali, PW-3 Md. Ayub Khan, PW-4 Aladi Das, PW-5 Smti. Rashi Das and PW-8 Alikjen Bewa and PW-13 Md. Asmat Ali. PW-2 deposes that on the fateful evening at about 7:00 pm, he was cutting earth near the place of occurrence. While he was doing so, he saw accused Abedin running towards northern direction. He followed him shouting. On reaching the place of occurrence, he found Amir Badsha lying on the ground in an injured condition. 16. He also saw Alekjen, wife of the victim, pouring water on his mouth. When PW-2 enquired the victim as to how he got injured, the victim told him that accused Joynal Abedin gave him blow with a spade. Thereafter, he was taken to hospital but he died on way to hospital. According to him, he rendered a statement before the Magistrate which he proved as Ext-1. 17. PW-3 Md. Ayub Khan deposes that on the fateful day in the evening, he was working in the backyard of one Ranjit Das. While he was so doing work, he heard hue and cry coming from the road just in front of the house of Ranjit Das. Hearing hue and cry, he along with PW-2 rushed to the road and found Amir Basdha lying on the road in an injured condition. PW-1, PW-10 and one Subhara were there at the place of occurrence at that time. 18. When they asked the victim as to how he got injured, the victim told them that the accused hit him inflicting injuries on him. During the course of investigation, he rendered statement to the Magistrate which he proved as Ext.-2. In his cross-examination he stated that his relationship with the accused was not cordial since the later married for second time. 19. PW-4 Aladi Das deposes that on the fateful day in the evening, she was cleaning the floor of the room of her house. Little later, she saw accused running away from such place. As she came to the place of occurrence which is situated nearby their house, she found Amir Badsha lying on the road in an injured condition. In her cross-examination, she states that her husband Ranjit Das died in an accident. 20. PW-5 is Smti. Rashi Das. Little later, she saw accused running away from such place. As she came to the place of occurrence which is situated nearby their house, she found Amir Badsha lying on the road in an injured condition. In her cross-examination, she states that her husband Ranjit Das died in an accident. 20. PW-5 is Smti. Rashi Das. She is heard saying that on the fateful evening, she was preparing tea in her house. While doing so, she heard hue and cry coming from the road in front of their house. She rushed to such place and found Amir Badsha lying on the road in an injured condition. Alekjan Bewa also reached there by the time and she came to know that accused Joynal Abedin had attacked and injured Amir Badsha in that place on that evening. 21. PW-8 is Alekjen Bewa. According to her, on the fateful evening, she was serving meal to her husband. At that time, she saw accused Joynal Abedin came to their house with a spade in his hand, took water from her and thereafter he left such place. In the meantime, there was hue and cry on the road and after going out of her house, she learnt that Amir Badsha was killed in front of their house. 22. The other witnesses who were also summoned to support the prosecution case are PW-14 Hasan Ali and PW-15 Babul Das. According to PW-14, on the evening in question, while he was returning from the tutorial class, he met Amir Badsha who enquired him as to the place where from he was coming on that evening. Little later, Joynal Abedin crossed him at such a place. Immediately thereafter, he heard hue and cry from the place of occurrence and going there, he found Amir Badsha lying down on the ground in an injured condition. 23. PW-15 is the scribe who wrote the FIR on being told by PW-1. In the FIR, it has been stated that the accused assaulted the husband of informant on the evening of 22.05.2003 with a spade for which the victim sustained wounds on his person and succumbed to injuries same night. 24. PW-16, Shri. Tankeshwar Patgiri and PW-17 Shri. Ganesh Sarkarare Police officials. They are heard saying that on 22.05.2003, in the evening, a boy came to Abhayapuri Police Station and told them that he killed a person. 24. PW-16, Shri. Tankeshwar Patgiri and PW-17 Shri. Ganesh Sarkarare Police officials. They are heard saying that on 22.05.2003, in the evening, a boy came to Abhayapuri Police Station and told them that he killed a person. Therefore, the boy was taken into custody and was detained in the lock-up for taking further necessary action in accordance with law. 25. Sub-Inspector, Sri. Satadal Deka was examined as PW-18. According to him, on 22.05.2003, he was posted as O.C, Abhayapuri Police Station. On that day, in the evening, an FIR was lodged by one Alekjan Bewa. Receiving the FIR, he registered a case, vide Abhayapuri Police Station 54/2003 under section 147/148/302 IPC and endorsed the case to S.I. Badan Ch. Singpho for investigation. 26. Shri. Badan Ch. Singpho, PW-19 deposes that on being entrusted with the case, he recorded the statement of Alekjan Bewa, visited the place of occurrence, conducted inquest on the dead body, prepared a report in that connection and also prepared the sketch map of the place of occurrence. During the course of investigation, he seized a shirt, one spade and one bicycle on the strength of seizure list Ext-6 and Ext-7 and on completion on investigation, he submitted charge sheet u/s 302 IPC against the accused person. 27. The Medical Officer who conducted autopsy on the body of the deceased was Dr. Deepak Kumar Sharma and was examined as PW-12. According to him, on 23.05.2003, he conducted autopsy on the body of the Amir Badsha and found as follows:- “External Appearance: A healthy male dead body with rigor mortis all over the body. External Wound One shaft wound present over back of the neck of size about 5”X3”X4”. Cranium and Spinal Cord Scalp and skull healthy. Cervical 4th and 5th vertebra are fractured and inter vertebra disc is cut completely by the injury. Spinal cord completely severed at lower cervical region Muscles, bones and joints Fracture of the 4th and 5th cervical vertebra already described. Other organs are healthy. In his opinion the death was due to shock and hemorrhage as a result of injury on the neck sustained by the deceased which was ante mortem in nature. Ext. 3 is the Post- Mortem Examination Report and Ext. 3(1) is his signature. During cross-examination, he stated that human body contain more than 200 verves and veins. In his opinion the death was due to shock and hemorrhage as a result of injury on the neck sustained by the deceased which was ante mortem in nature. Ext. 3 is the Post- Mortem Examination Report and Ext. 3(1) is his signature. During cross-examination, he stated that human body contain more than 200 verves and veins. All the nerves goes to the spinal canal and then to brain through spinal cord. If the spinal cord is affected, definitely the injured will sink into coma. In this case as the spinal canal was severed hence the brain automatically collapsed. The 4” deep injury on oesophagus affected the vocal cord.” 28. Above being the evidence on record, let us see how far such evidence makes out the allegations brought against the accused person. In this context, it may be stated that the evidence of the Doctor clearly shows that the deceased died having sustained ante-mortem wounds which were caused by blunt object. His evidence therefore, unmistakably demonstrates that the death of the deceased was homicidal in nature. 29. Now, we need to know who caused the death of person aforementioned. We have found that prosecution has made two pronged attempts to make out the allegations brought against accused person. In the first instance, it relies on the dying declaration which the deceased reportedly made to PW-1, PW-2 and PW-3. According to them, the deceased before his death told them that it was Joynal Abedin who inflicted wounds on him with spade. However, such evidence of PW-1, PW-2 and PW-3 inspires no confidence. 30. In that context, we may look into the evidence of the Doctor. The evidence of Doctor shows that the wounds inflicted on the deceased were so extensive, so severe and so grievous that there is hardly any scope for him to be in sense to narrate incident in question to these witnesses. The fact that he had died even before he reached hospital is forceful testimony to such a proposition. 31. In this context, we may also consider the testimony of the PW-11. In her evidence, PW-11 states that she arrived at the place of occurrence soon thereafter and found Amir Badsha lying on the road in an unconscious state. The fact that he had died even before he reached hospital is forceful testimony to such a proposition. 31. In this context, we may also consider the testimony of the PW-11. In her evidence, PW-11 states that she arrived at the place of occurrence soon thereafter and found Amir Badsha lying on the road in an unconscious state. The evidence of PW-11 further confirms our view that the deceased was not in a position to make any statement as to the assailant or to the incident under consideration. 32. Being so, we are constrained to hold that the contention of PW-1, PW-2 and PW-3 that the deceased made a statement in the nature of dying declaration just before his death cannot be accepted as truthful one. Therefore, we have no hesitation in coming to the conclusion that the alleged dying declaration could not make out the charge, brought against the accused person. 33. This brings us to the next chapter of the present case where we are to see if the oral testimony of other witnesses could make out the charge, leveled against the accused person. On perusal of the evidence of PWs, more particularly, PW-1and PW-10, we have found that those PWs came to the place of occurrence on hearing hue and cry from such place and arriving there, they found accused assaulting the deceased on the road with a spade. 34. It is worth noting that in their evidence, PW-2, PW-4, PW-8, PW-13 and PW-14 depose that moments after the alleged incident, they saw the accused running away from the place of occurrence with a spade in his hand. PW-8 even states that little after the alleged incident, the accused came to her house, took water and left her house hurriedly. 35. On the other hand, all other non-official PW’s stated that on arriving at the place of occurrence soon after incident, they found the deceased in an injured condition on the road in front of the house of Ranjit Das. When all these are considered together, there cannot be any escape from the conclusion that the person who inflicted the wounds on the deceased on the evening aforementioned which occasioned his death later was none other than accused Joyanl Abedin. 36. When all these are considered together, there cannot be any escape from the conclusion that the person who inflicted the wounds on the deceased on the evening aforementioned which occasioned his death later was none other than accused Joyanl Abedin. 36. We may note here that in their evidence, the Police personnel, namely, PW-16 and PW-17 specifically state that the accused surrendered before the Police at Abhayapuri Police Station on 22.05.2003 in the evening. According to them, accused went to Police Station on his own. In the fact and circumstances of the present case, such surrender becomes one more testimony to the fact that author of crime in question is none other than accused Joynal Abedin. 37. The evidence of Doctor reveals that the deceased sustained extensive wounds on his body which were caused by blunt object. The evidence of Doctor too, in the facts and circumstances of the present case, lends credibility to the testimonies of the prosecution witnesses and therefore, such evidence put the prosecution case more and more on firm footing. 38. Though the accused denied having committed the offence attributed to him and although he adduced the evidence of one witnesses in support of his case that on the fateful day Police arrested him from Barpeta Bus Stand and then took to Abhayapuri Police Station to implicate him with the case in question, we have found that the evidence, so rendered by DW-1 is found wholly unequal to the task, assigned. 39. This is because of the fact that his plea aforesaid is found totally incompatible with the evidence, rendered from the side of PWs which are already held to be cogent, consistent and basically truthful and as such, we have no hesitation in rejecting the plea, so raised by the accused person, during the course of trial. 40. Accordingly, we are to hold that prosecution has proved the charge u/s 302 IPC against the persons beyond all reasonable doubt and as such, judgment rendered by the learned trial Court convicting the accused of offence under section 302 IPC and sentencing him to punishment as aforesaid invites no interference from this Court of appeal. 41. Consequently, the appeal is dismissed. 42. Return the LCR forthwith. 43. The State respondent is directed to pay Rs. 50,000/- to the District Legal Services Authority, (DLSA), Bongaigaon. 41. Consequently, the appeal is dismissed. 42. Return the LCR forthwith. 43. The State respondent is directed to pay Rs. 50,000/- to the District Legal Services Authority, (DLSA), Bongaigaon. On the receipt of the same the DLSA, Bongaigaon would make an enquiry as to the legal representative(s) of the deceased and then deliver such amount as an interim measure to the legal representative(s) of the deceased in accordance with the established procedure. 44. In the event of none being found as legal representative(s) of the deceased, the amount aforesaid is to be return immediately to the State respondent.