JUDGMENT & ORDER : N. Chaudhury, J. Criminal Appeal (J) No.70 of 2012 and Criminal Appeal (J) No.71 of 2012 have arisen out of a common judgment whereby the two appellants of these two appeals have been convicted under Section 302/34 of the Indian Penal Code and they have been sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs.1000/- each, in default, to undergo rigorous imprisonment for sixty days more. The other four accused persons tried in the case, however, were acquitted of all the charges. 2. The prosecution story is that one Girin Buragohain lodged an ejahar with Officer-in-charge of Khelmati Police Outpost on 16.05.2006 at 10.10 a.m. informing that the five accused persons named in the ejahar including the present two appellants had caused grievous injury to his son Pulin Buragohain and one Bijoy Kumar Thakur by hacking with dao. His son succumbed to the injuries in Lakhimpur Civil Hospital and injured Bijoy Kumar Thakur was undergoing treatment in hospital. On the basis of this ejahar Khelmati Police Outpost registered General Diary Entry No.237 dated 16.05.2006 and forwarded the same to North Lakhimpur Police Station for registering a case under appropriate sections of law. Consequently, North Lakhimpur Police Station Case No. 300 of 2006 under Sections 147, 326, 302 IPC was registered and investigation started. Police visited the place of occurrence, recorded statement of witnesses and recovered a knife from accused Angoor Ali. The dead body was sent for post mortem examination. Ultimately, upon completion of investigation charge-sheet was submitted against as many as six accused persons and they are (1) Md. Angoor Ali, (2) Md. Babu Anchari, (3) Md. Moina Anchari, (4) Md. Budu Ali, (5) Md. Sukur Ali and (6) Md. Ramjan Ali. Out of these six accused persons name of Sukur Ali was not mentioned in the ejahar. Be that as it may, the Sub-Divisional Judicial Magistrate, North Lakhimpur, committed the case to the Court of Sessions on 04.06.2011. Sessions Case No. 54(NL) 2011 was registered and charges were framed under Sections 147, 324, 302, 149 of the Indian Penal Code against all the accused persons. The accused persons pleaded not guilty and claimed to be tried. 3. In course of trial prosecution examined as many as twelve witnesses including two medical officers and one investigation officer. 4. We have heard Ms. The accused persons pleaded not guilty and claimed to be tried. 3. In course of trial prosecution examined as many as twelve witnesses including two medical officers and one investigation officer. 4. We have heard Ms. B. Sarma, learned Amicus Curiae on behalf of the appellants and Mr. K.A. Mazumdar, learned Additional Public Prosecutor, Assam in both the appeals. We have also perused the lower court records including the depositions of the witnesses and the statements of the accused persons under Section 313 Cr.P.C. 5. PW 1, Khanjan Rajbongshi, stated that the incident took place at around 12 O’clock at night on 15th May, 2006. He was watching Bihu function held at Shiva Mandir Bus Stand. The incident took place in front of Khelmati Police Outpost. He saw an altercation between accused persons and deceased Pulin. He asked them not to quarrel and proceeded to the stage along with Papu. He heard at that time that there had been a quarrel towards Police Station. He saw deceased Pulin was waiting there holding his head but he did not name anybody on being asked. His head was bleeding. He, however, noted a group of boys but could not recognize them. He along with others hired a tempo vehicle and took injured Pulin to Sabate Civil Hospital and also informed police about the incident. He also donated blood. 6. PW 2 is the informant in the case. According to him, at the time of incident he was at home. After 10.00 p.m. a companion of his son came and informed that Pulin was at hospital. He went to Civil Hospital and found injuries on head, legs and abdomen of Pulin. He was in conscious state and disclosed that Angoor, Babu and others had assaulted him. Thereafter, Dr. Ahmed conducted surgery on him and in the morning hours his son died in the hospital. Thereafter, he lodged the ejahar and Ext-2 is the inquest report. 7. PW 3, Kamaluddin, stated that police recovered a knife from Angoor Ali but he did not witness the act of discovery. Police asked him to sign and he signed on the seizure list. PW 4, Sadak Ali, also spoke in the same tone in regard to putting signature on the seizure list of knife. However, PW 5, Yusuf Ali, deposed that police seized a knife from Angoor Ali which he could recognize if shown. Police asked him to sign and he signed on the seizure list. PW 4, Sadak Ali, also spoke in the same tone in regard to putting signature on the seizure list of knife. However, PW 5, Yusuf Ali, deposed that police seized a knife from Angoor Ali which he could recognize if shown. But he also stated in course of his cross-examination that he did not see recovery of knife and only signed on the seizure list on being asked by police. 8. PW 6, Bijoy Thakur, is an eye-witness. He received injuries on his person. In his examination-in-chief, he stated that three persons caught Pulin and one person dealt blow on him. He pushed one of them aside when Pulin got himself freed from the clutch of the assailants and ran to the Police Station. At that time someone dealt a blow on his (PW 6) back from behind. His companions took both of them to hospital when Pulin asked the doctor and the companions to look after him (PW 6) well. According to him, Pulin sustained injuries on chest, abdomen and legs. In course of cross-examination he stated that two persons were holding Pulin and Angoor Ali dealt a blow. 9. PW 7, Prasanta Gogoi, is a neighbour of the deceased. Having heard about the incident he went to hospital and donated blood to the deceased. He found Pulin talking to his father but in course of cross-examination he stated that he himself did not see Pulin talking to his father as Pulin was inside the operation theatre and he heard other persons saying that Pulin had talked to his father. 10. PW 8, Abul Hussain, stated that Angoor Ali produced knife with which he had killed Pulin and he was present at the time when Pulin had produced the knife to police. He saw Angoor bringing knife from inside the room. He saw the knife and signed on the seizure list Ext-3 wherein Ext-3(2) is his signature. In course of cross-examination he claimed that Pulin had disclosed in hospital that Angoor, Babu and others had assaulted him. 11. PW 9, Abul Kalam alias Papu, could not add anything new to the story. He reached the place of occurrence after the incident had taken place. He held Pulin and took him to hospital. At that time he had been unconscious. 11. PW 9, Abul Kalam alias Papu, could not add anything new to the story. He reached the place of occurrence after the incident had taken place. He held Pulin and took him to hospital. At that time he had been unconscious. He first took him to Happy Nursing Home and then to another nursing home at Nakari but as no doctor was available ultimately Pulin was taken to Civil Hospital. He made statement in court under Section 164 Cr.P.C. At this stage the witness was declared hostile and he was cross-examined both by prosecution and the defence. In course of cross-examination by defence he stated that Pulin had been unable to speak till the last moment. 12. PW 10, Dr. Utpal Kumar Das, examined injured Bijoy Kumar Thakur and found that there was a stab injury on the left side of back one inch lateral and two inches below the last rib. It was of the size of 1½ inches x 1 inch x ¼ inches. The wound was simple in nature and caused by sharp object. Ext-5 is the injury report wherein Ext-5(1) is his signature. 13. PW 11, Imtiaz Ali, was the in-charge of Titasali Outpost. On 14.05.2006 he was working as attached officer in North Lakhimpur Police Station. He was entrusted by the Officer-in-Charge to investigate into the case. He visited the place of occurrence and examined witnesses. He narrated the story of the investigation and claimed that Angoor Ali confessed to him of committing murder and keeping the knife hidden. He produced the knife to him and it was seized vide Ext-3. According to him, there was a single injury on the stomach of the deceased. He emphatically stated that PW 2 or PW 8 did not disclose to him about the oral dying declaration of the deceased Pulin before his father Girin Buragohain. 14. PW 12, Dr. Dhrubajyoti Borgohain, held post mortem over the dead body of Pulin Buragohain and proved the injuries which are as follows :- “On examination I found the following :- a. An average built, colour mix dark and fair skin, pale, rigor mortis present. b. Linear cut mark from umbilicus to supra pubic region. Drainage link left ilioc fossa. Multiple superficial cut scattered the body. c. Linear cut from umbilicus to supra pubic region. d. Masentratic vessels cut. Small hole in the lower abdominal aorta. Blood under diaphragm. b. Linear cut mark from umbilicus to supra pubic region. Drainage link left ilioc fossa. Multiple superficial cut scattered the body. c. Linear cut from umbilicus to supra pubic region. d. Masentratic vessels cut. Small hole in the lower abdominal aorta. Blood under diaphragm. e. Multiple superficial cut mark in the left thigh and right inguinal cut, superficial in nature.” He opined that death was due to haemorrhage and shock due to uncontrolled bleeding from large vessels from abdomen and the injury was ante mortem in nature. 15. In course of examination under Section 313 Cr.P.C. both accused Babu Anchari and Angoor Ali totally denied the prosecution story. They claimed to be innocent. 16. Upon consideration of the aforesaid materials on record the learned trial Court passed the impugned judgment and order dated 09.04.2012 holding that the prosecution failed to prove any charge against accused Md. Moina Anchari, Md. Budu Ali, Md. Sukur Ali and Md. Ramjan Ali. However, prosecution succeeded to prove charge under Sections 302/34 of the Indian Penal Code against accused Angoor Ali and Babu Anchari. He accordingly sentenced them to suffer rigorous imprisonment for life and to pay a fine of Rs.1000/- each, in default, to suffer rigorous imprisonment for sixty days more. 17. The learned Sessions Judge after considering the depositions of the witnesses held that there is no reason to disbelieve the version of PW 8 who is neither an interested witness nor does he had any enmity with accused Angoor and Babu. It is also held by the learned Sessions Judge that since accused could identify Pulin Buragohain in the dark so it was not impossible on the part of PW 6 (Bijoy Thakur) to identify Angoor Ali in the same dark night. This is because this PW 6 stated in course of crossexamination that he saw Angoor Ali stabbing the deceased. But what is important in this case is that in his statement under Section 161 Cr.P.C. this PW 6 did not mention that Angoor Ali stabbed the deceased. It is true that he named all the accused persons but he did not attribute specific allegation to anyone as to who had dealt the blow with knife. But what is important in this case is that in his statement under Section 161 Cr.P.C. this PW 6 did not mention that Angoor Ali stabbed the deceased. It is true that he named all the accused persons but he did not attribute specific allegation to anyone as to who had dealt the blow with knife. It has been pointed out above that all the witnesses of seizure vide Ext-3 refused to prove seizure of knife from the possession of Angoor Ali and thus prosecution could not prove that Angoor Ali had produced the offending weapon to police at any point of time. Learned trial Court has also considered the version of PW 2, PW 6 and PW 8 and held that they are reliable witnesses. According to the learned trial court, their reliable ocular versions have gone unchallenged and there is no reason as to why these witnesses should not be believed by Court. But having gone through the depositions of these witnesses vis-à-vis the deposition of PW 11, Investigating Officer, we find that this inference of the learned Sessions Judge is not based on materials available on record. PW 11 stated in no uncertain terms in course of cross-examination that PW 2 and PW 8 did not disclose to him about oral dying declaration by Pulin Buragohain to his father Girin Buragohain (PW 2). To test the veracity of this deposition of PW 11 we have perused the statements of these witnesses under Section 161 Cr.P.C. whereupon we find that PW 2 and PW 8 did not make any mention before police that injured Pulin Buragohain had spoke to Girin Buragohain, his father, in hospital or that Pulin had disclosed the names of Babu Anchari and Angoor Ali as his assailants. Had Pulin Buragohain made such a statement to his father in hospital, in that event it must have been reflected in the ejahar subsequently filed by Girin Buragohain. The ejahar was filed after Pulin Buragohain was died in hospital. Neither PW 2 nor PW 8 having disclosed such oral dying declaration in course of their statements under Section 161 Cr.P.C. and PW 11 (Investigating Officer) having deposed accordingly there is doubt as to correctness of oral dying declaration by the deceased to his father. The ejahar was filed after Pulin Buragohain was died in hospital. Neither PW 2 nor PW 8 having disclosed such oral dying declaration in course of their statements under Section 161 Cr.P.C. and PW 11 (Investigating Officer) having deposed accordingly there is doubt as to correctness of oral dying declaration by the deceased to his father. It is also doubtful as to whether the deceased was in a condition to speak after the principal blood vessel of his abdomen was severed by stabbing. No question was put to the doctor about the condition of the deceased when he was in hospital. There is no material on record to hold that the deceased was in conscious state or that he could speak to his father. In all probability the depositions of PW 2 and PW 8 in this regard are improvements at trial stage. 18. One thing is certain that names of all the accused persons were mentioned by PW 6 who is the eye-witness of the incident. He said that some people caught Pulin and one of them stabbed at his abdomen. He did not specify in his examination-in-chief as to who had caught the victim and who had stabbed. A general allegation was levelled against all the six accused persons out of whom four have already been acquitted by the learned Sessions Judge. It cannot be lost sight of that the alleged oral dying declaration of the deceased being found to be shrouded under doubt because of probable improvement in course of trial, nothing more remains in record to hold that either Babu Anchari or Angoor Ali dealt the fatal blow to the accused. PW 6 is also not found reliable in view of his shifting stand both in regard to commission of offence and oral dying declaration at hospital. PW 6 claimed that he pushed aside one of the assailants when Pulin ran to the Police Station. On the other hand, PW 1 stated that he found Pulin sitting at the place of occurrence keeping his head on his hands. He was in injured condition and there was blood on his head and over the whole body. He was not in a talking mode at that time. PW 1 claimed to have taken injured Pulin to hospital. Under such circumstances there is clear contradiction between the versions of PW 1 and PW 6. He was in injured condition and there was blood on his head and over the whole body. He was not in a talking mode at that time. PW 1 claimed to have taken injured Pulin to hospital. Under such circumstances there is clear contradiction between the versions of PW 1 and PW 6. Since two views are possible one in favour of the accused has to be accepted and consequently both the accused become entitled to benefit of doubt. 19. Both the appeals stand allowed. The conviction and sentence of accused/appellants Babu Anchari and Angoor Ali are hereby set aside. They shall be released forthwith from jail unless required in connection with any other case. Send down the records.