JUDGMENT : Suman Shyam, J 1. Heard Mr. U.J. Saikia, learned counsel appearing for the appellants in Criminal appeal No. 75/2018. We have also heard Mr. U. Choudhury, learned Amicus Curiae appearing for the appellant in Criminal Appeal (J) No. 22/2018. Ms. B. Bhuyan, learned APP, Assam, has appeared on behalf of the State/respondent no. 1 in both the appeals. None has appeared for the respondent no. 2/informant. 2. These appeals are directed against the common judgment and order dated 16/12/2017 passed by the learned Sessions Judge, Jorhat, in Sessions Case No. 19(J-J)/2015, convicting the three appellants under Section 302/34 of the Indian Penal Code (IPC) and sentencing them to undergo rigorous imprisonment for life and also to pay fine of Rs. 20,000/-each with default stipulation. As such, we propose to dispose of both the appeals by this common judgment and order. 3. The prosecution story, in a nutshell, is to the effect that on 20/12/2014 during the evening hours, an altercation took place in between the accused persons, viz. (1) Sri Prasanta Das @ Sarupai, (2) Sri Akanti Das @ Dipak and (3) Sri Makhan Das on one hand and the victim Debojit Das on the other. At that time, accused Prasanta Das had dealt dagger blows on the vital part of the deceased, as a result of which, the victim was grievously injured. The victim Debojit Das was rushed to the Jorhat Medical College and Hospital (JMCH) for treatment, but the doctors declared him brought dead. 4. On 21/12/2014 Sri Dipak Das, who is a cousin of the victim, had lodged an ejahar before the Officer-in-Charge, Pulibor Police Station reporting the incident. Based on the aforesaid ejahar, Pulibor Police Station case No. 286/2014 was registered under Section 302/34 of the IPC. The matter was entrusted to S.I. Sri Tokheswar Tamuli for carrying out investigation. Upon completion of investigation, the IO had submitted charge sheet against all the three accused persons under Section 302/34 of the IPC. Accordingly, charges were framed against the accused persons u/s. 302/34 IPC, which were read over and explained to them. However, since the accused persons had pleaded not guilty, they were made to face trial. 5. Upon completion of investigation, the IO had submitted charge sheet against all the three accused persons under Section 302/34 of the IPC. Accordingly, charges were framed against the accused persons u/s. 302/34 IPC, which were read over and explained to them. However, since the accused persons had pleaded not guilty, they were made to face trial. 5. In order to bring home the charge, the prosecution side had examined as many as 10 (ten) witnesses including the IO Sri Tokheswar Tamuli (PW-9) and Doctor Mamta Devi (PW-10) who had conducted the post-mortem examination on the dead body of the victim. After recording of prosecution evidence the statements of the accused persons were recorded u/s. 313 of the Cr.P.C., wherein, they had denied all the incriminating circumstances put to them. Accused Prasanta Das had also stated that it was Babul Das, who had assaulted the victim and fled the scene and he has been falsely implicated in the matter. Upon evaluation of the evidence available on record, the learned Sessions Judge, Jorhat, had held that the prosecution had succeeded in establishing the charge brought against the accused persons u/s. 302/34 of the IPC beyond reasonable doubt. Accordingly, all the three accused persons were convicted u/s. 302/34 IPC and sentenced to undergo rigorous imprisonment for life and also to pay fine. 6. Assailing the impugned judgment and order dated 16/12/2017, Mr. Saikia, learned counsel for the appellants in Criminal Appeal No. 75/2018 has argued that out of the 10 (ten) witnesses examined by the prosecution, as many as four witnesses, viz. PWs - 2, 4, 5 and 7 had turned hostile. According to Mr. Saikia, PW-3 is not an eye witness to the occurrence and the PW-1 was also not present at the scene when the incident took place. Mr. Saikia further submits that the PWs - 3 and 6, had merely seen the accused Akanti Das and Makhan Das fleeing the scene. There is no credible evidence available on record so as to implicate his clients in any overt act carried out with a common intent to murder the victim. Under the circumstances, submits Mr. Saikia, the conviction of the two appellants in Criminal Appeal No. 75/2018 with the aid of section 34 of IPC is wholly unsustainable in the eye of law and hence, liable to be set aside by this Court. 7. Mr. Under the circumstances, submits Mr. Saikia, the conviction of the two appellants in Criminal Appeal No. 75/2018 with the aid of section 34 of IPC is wholly unsustainable in the eye of law and hence, liable to be set aside by this Court. 7. Mr. U. Choudhury, learned Amicus Curiae, appearing on behalf of the appellant Sri Prasanta Das in Criminal Appeal (J) No. 22/2018 has argued that there is no eye witness to the occurrence. Although PW-6 had mentioned that he had seen the appellant Prasanta Das with a sword in his hand at the place of occurrence, yet, the description of the weapon does not match with the seized weapon which is a “Knife”. Urging that there are material contradictions and omissions in the testimony of PWs - 1 & 3, Mr. Choudhury has submitted that the charge under section 302 of the IPC brought against his client could not be established by the prosecution beyond reasonable doubt. Therefore, the conviction of the appellant Prasanta Das is liable to be interfered with by this Court. In support of his argument, Mr. Choudhury has placed reliance on a decision of this Court rendered in the case of Haren Kalita Vs. The State of Assam reported in 1981 CRI. L.J. 1110 to contend that conviction of a person merely on the ground that he was seen running away from the place of occurrence would be impermissible. 8. It is also the submission of Mr. Choudhury that the oral dying declaration allegedly made by the victim could not be proved by the prosecution in accordance with law. The PW2, who had allegedly heard the victim making the dying declaration had been declared as a hostile witness and therefore, his testimony cannot be relied upon. Moreover, submits Mr. Choudhury, the exact words of the victim in his dying declaration are not available on record so as to implicate the accused person. According to the learned Amicus Curiae, in the absence of proper evidence to establish the nature and content of dying declaration, the same cannot be used for conviction of the accused. 9. Ms. Moreover, submits Mr. Choudhury, the exact words of the victim in his dying declaration are not available on record so as to implicate the accused person. According to the learned Amicus Curiae, in the absence of proper evidence to establish the nature and content of dying declaration, the same cannot be used for conviction of the accused. 9. Ms. B. Bhuyan, learned APP, Assam, on the other hand, has argued that there are sufficient materials available on record to sustain the conviction of appellant Prasanta Das, inasmuch as the testimony of PWs-1, 3 and 6 unequivocally establishes the fact that the said appellant/accused person was not only present at the scene at the time of the incident but he was also carrying a “knife”(Sword) in his hand. The learned APP has, however, submitted in her usual fairness that save and except the testimony of two witnesses, viz. PWs-1 and 3, who had stated that the other two accused persons, viz. Akanti Das and Makhan Das were fleeing the scene, there is nothing on record to implicate the said appellants. 10. We have considered the submissions advanced by the learned counsel appearing for both the sides and have also carefully gone through the materials available on record. 11. At the very outset, it needs to be mentioned herein that although the prosecution had examined PW-3 as an eye witness to the occurrence, yet, from a careful reading of his testimony in the light of the statements made by this witness under Section 161 Cr.P.C. before the Police, we are of the view that he is not an eye witness to the occurrence but had reached the place of occurrence after the incident took place. What would, however, be pertinent in this case is to examine as to whether, PW-1 had actually seen the occurrence and, if so, whether his testimony could be relied upon so as to convict the appellants. In order to answer the aforesaid question, it would be necessary for us to briefly re-evaluate the evidence available on record. 12. PW-1 Sri Ankur Das has deposed that the victim was his elder brother (cousin). The occurrence took place less than a year ago during the evening hours at about 6 p.m. At that time, it was close to darkness. 12. PW-1 Sri Ankur Das has deposed that the victim was his elder brother (cousin). The occurrence took place less than a year ago during the evening hours at about 6 p.m. At that time, it was close to darkness. On that day, he along with his deceased brother had gone to the shop to buy some household articles and on the way, the three accused persons had assaulted Debojit Das with fists and blows and thereafter, accused Prasanta Das had pierced a pointed knife in the belly of his brother (victim). PW-1 has also stated that the pointed knife (churi) was in the hands of accused Prasanta Das. After the assault, his elder brother (cousin) fell on the ground. On seeing the incident, he had cried for help. At that time, his parents Sri Bijit Das and Smt. Niju Das had arrived at the place of occurrence upon hearing him shout. Immediately thereafter, the victim was taken to the JMCH for treatment. He was admitted in the hospital but had succumbed to his injuries on the next day. PW-1 has also deposed that the Police had arrived at the place of occurrence and seized the pointed knife from a nearby pool, situated near the place of occurrence. He had put his signature in the seizure list Ext.-1 by means of which the knife was seized by the Police and material Ext. 1 was the aforesaid pointed knife. 13. During his cross-examination by accused Akanti Das and Makhan Das, PW-1 had denied the suggestion made to him to the effect that he did not state before the Police that on the day of the incident, he had accompanied his deceased brother to the nearby shop to purchase some household articles. This witness had deposed that he was all along present with his deceased brother and there was no altercation between the deceased and the accused persons. The PW-1 has, however, admitted that he did not state before the Police that both the accused persons had caught hold of his deceased elder brother and thereafter, accused Prasanta Das had pierced the pointed knife into the body of his brother. 14. The PW-1 has, however, admitted that he did not state before the Police that both the accused persons had caught hold of his deceased elder brother and thereafter, accused Prasanta Das had pierced the pointed knife into the body of his brother. 14. During his cross examination by accused Prasanta Das, he has denied the suggestion made to him to the effect that he did not state before the Police that accused Prasanta Das had pierced the pointed knife into the body of his elder brother; that he was all along present with his brother; that he did not go with his elder brother to the shop. PW-1 has also denied that he had falsely deposed before the Court on being tutored by his parents. 15. The next witness i.e. PW-2 is Bitu Das, who is also related to the victim. This witness had stated before the Police that on the day of the occurrence, at about 7 p.m. he was present at his home and at that time, he had heard shouts coming from the side of the road. On hearing the shouts, he immediately came out of his house towards the road and had witnessed the accused persons, viz. Prasanta Das @ Sarupai, Sri Akanti Das and Sri Makhan Das fleeing away from the place of occurrence. He had witnessed some persons near the place of occurrence and proceeded towards them. There he witnessed Debojit Das lying on the ground in a pool of blood. He then took him (victim) on his lap and thereafter, Debojit Das, in a helpless condition, had stated before him that the three accused persons had assaulted him with a pointed knife on different parts of his body. However, during his deposition before the Court, this witness did not say so, as a result of which he was declared as a hostile witness. 16. PW-3 Sri Ratan Das is another witness who was also related to the victim. He knew the accused persons Sri Prasanta Das, Sri Akanti Das and Makhan Das. PW-3 has deposed that on the day of the incident, he was present in his home and was watching TV. At that time he had heard Ankur Das shouting. Then he immediately came out of the house and went towards the place of incident. There, he witnessed Makhan Das and Akanti Das fleeing away from the spot. PW-3 has deposed that on the day of the incident, he was present in his home and was watching TV. At that time he had heard Ankur Das shouting. Then he immediately came out of the house and went towards the place of incident. There, he witnessed Makhan Das and Akanti Das fleeing away from the spot. PW-3 has further stated that he had also witnessed Sri Prasanta Das inserting a “khukri” in the stomach of the victim Debojit Das. When he went near the spot, accused Prasanta Das wanted to flee the spot leaving behind the “khukri(knife)”. The injured was then immediately taken to the JMCH by himself and some villagers as well as the family members of the victim in a “Magic Van” but on reaching the hospital, the doctors had declared him as brought dead. During his cross examination by accused Prasanta Das, this witness has denied the suggestion that he did not state before the Police that at the time of the incident, he was present at his home; that he did not hear the shouts of Ankur Das from the spot and thereafter came out of his house ; that he did not witness accused Prasanta Das inserting a Khukri in the stomach of the deceased; that he did not witness accused Prasanta Das with a Khukri in his hand ; that he did not witness the incident of murder from a distance of about 10 ft. PW-3 has also stated that he has no enmity with the accused persons. 17. During his cross examination by accused Akanti Das and Makhan Das, PW-3 has denied the suggestion that he had not stated before the Police that at the time of the incident, he did not witness both the accused persons, viz. Akanti Das and Makhan Das fleeing away from the place of occurrence. This witness has remained firm during his cross-examination and was also consistent in his deposition. 18. PW-4 Sri Gunadhar Das has stated before the Police that on the day of the incident i.e. on 20/12/2014 at about 7 p.m., he had heard people shouting and immediately rushed to the spot and witnessed the accused persons, viz. Sri Prasanta Das @ Sarupai Das, Sri Akanti Das and Sri Makhan Das assaulting Debojit Das with fist blows, due to which, he (victim) had received grievous injuries. Sri Prasanta Das @ Sarupai Das, Sri Akanti Das and Sri Makhan Das assaulting Debojit Das with fist blows, due to which, he (victim) had received grievous injuries. The victim was shifted to the hospital for medical treatment. However, during his deposition, PW-4 did not support the prosecution case, as a result of which he was also declared as a hostile witness. Likewise, PW-5 Dilip Pathak, who is a resident of the same village where the accused persons and the victim used to live, also did not support the prosecution case during his deposition, as a result of which, he was also declared as a hostile witness. Similar is the case with Sri Sobha Kanta Das (PW-7), who also did not support the prosecution case during trial, as a result of which, he was also declared as a hostile witness. 19. PW-6 Sri Sajuli Das is the father of the victim. This witness has deposed before the Court that the incident took place about 2 years back at about 7 p.m. On the day of the incident, he had returned home after his daily works. His son (victim) had also returned home and told him that the accused Prasanta Das, with another boy, had demanded Rs. 20/-from him but he did not pay any money to the accused. After some time, his son came out of the house and soon thereafter, he had heard Babul Das shouting saying that his son had been assaulted by accused persons, viz. Prasanta Das, Akanti Das and Makhan Das (by pointing at all the accused persons present in the dock). After hearing Babul Das shout, he immediately rushed to the place of occurrence and saw the accused Akanti Das and Makhan Das were running away from the place. PW-6 has stated that he had also seen accused Prasanta Das holding a “sword” in his hand. He had seen that his son was lying on the ground. He then grabbed his son. PW-6 has also stated that he did not have any enmity with the accused persons nor was he aware if his son had any enmity with the accused persons prior to the date of occurrence. 20. He had seen that his son was lying on the ground. He then grabbed his son. PW-6 has also stated that he did not have any enmity with the accused persons nor was he aware if his son had any enmity with the accused persons prior to the date of occurrence. 20. During his cross-examination by accused Prasanta Das, this witness had denied the suggestion that he did not see accused Prasanta Das holding a sword in his hand which he had seen from a distance of about 10 ft; that Babul Das who was accompanying his son did not shout and raise alarm saying that accused Prasanta Das and two co-accused persons had assaulted his son or that he did not witness the incident of assault from a little distance. During his cross examination by Akanti Das and Makhan Das, PW-6 has stated that the Police did not record his statement as he was unconscious for many days. 21. PW-8 Smt. Guno Das is the mother of the victim. She has deposed before the Court that on the date of the incident she was present at home and was sleeping on the bed since she had undergone a surgery few days ago. At that time, her son had returned home after his daily works and told her that on the way, accused Sarupai Das (Prasanta Das) had demanded Rs. 20/-from him. According to PW-8, the accused Prasanta Das had threatened her son by saying that he would kill him if he did not pay Rs. 20/-as demanded by them. Thereafter, her son went out of the house to buy some lemons for her. After some time, Babul Das came running towards their house and shouted that her son has been murdered by accused Prasanta Das. PW-8 has further deposed that deceased Debojit Das was her only son. At the time of the incident, her husband was also present in the house. After hearing the news, her husband went out of the house. She became unconscious for about 3 days. After about a week, she came to know that her son had been shifted to the hospital for treatment. After she had regained her consciousness, her husband told her about the incident and told her that her son had expired. Later on, she came to know that the accused persons had murdered her son with the help of “Aashtra” (weapon). After about a week, she came to know that her son had been shifted to the hospital for treatment. After she had regained her consciousness, her husband told her about the incident and told her that her son had expired. Later on, she came to know that the accused persons had murdered her son with the help of “Aashtra” (weapon). 22. Cross examination of this witness was declined by accused Akanti Das and Makhan Das. During her cross-examination by accused Prasanta Das, PW-8 had denied the suggestion that she did not state before the Police that her son had told her that accused Prasanta Das had demanded Rs. 20/-from him saying that if he refused to pay the same, then he would be killed; that Babul Das came shouting after some time saying that her son had been murdered by accused Prasanta Das; that her son had been assaulted by the accused persons with the help of “Aashtra”. 23. Pw-9 Sri Tokheswar Tamuli is the IO in this case. PW-9 has deposed to the effect that on 20/12/2014, he was posted at the Pulibar Police Station as an attached Officer. On that day, the Officer-in-Charge of Pulibar Police Station, viz. Sri Hrishikesh Hazarika had received an information, based on which, GD entry bearing no. 538 dated 20/12/2014 was made. During the course of investigation in connection with Pulibar PS case No. 286/2014, he had visited the place of occurrence, seized one pointed knife (churi) from the place of occurrence vide seizure list Ext. -1. The IO has confirmed that on 21/12/2014, Sri Dipak Das had lodged an ejahar, based on which, Pulibar PS case No. 286/2014 was registered. Inquest was done on the dead body in presence of Executive Magistrate Sri Samiran Bora and Ext.-2 is the Inquest Report. He had recorded the statement of the accused persons as well as the witnesses, seized the wearing apparels of the deceased i.e. one yellow and blue colour sporting with blood stain and torn mark on the back side, one jumper with a cut mark on the back side, which was seized vide seizure list Ext-5. On conclusion of the investigation and after collecting the post-mortem report, he had submitted charge sheet against the accused persons under section 302/34 of the IPC. 24. On conclusion of the investigation and after collecting the post-mortem report, he had submitted charge sheet against the accused persons under section 302/34 of the IPC. 24. During his cross examination, the IO has proved the following contradictions in the statement of the hostile witnesses i.e. PWs 2, 4, 5 and 7 :- “Witness Sri Bitu Das (PW-2) during his statement under Section 161 Cr.P.C. stated. 24. During his cross examination, the IO has proved the following contradictions in the statement of the hostile witnesses i.e. PWs 2, 4, 5 and 7 :- “Witness Sri Bitu Das (PW-2) during his statement under Section 161 Cr.P.C. stated. before me that - “on the date of occurrence at about 7.00 P.M. he was present in his home and at that time he heard shouts coming from the side of road; that on hearing the shouts he immediately came out of his house towards the road and witnessed the accused persons namely Prasanta Das @ Sarupai, Akanti Das and Makhan Das fleeing away from the place of occurrence; that he witnessed some persons hear the place of occurrence and proceeded towards them; that there he witnessed Debojit Das lying on the ground in a pool of blood; that he took him in his lap and thereafter Debojit Das in a helpless condition stated before him that the three accused persons named above had assaulted him with a pointed knife (churi) on different parts of his body; that family members of Debojit Das arrived at the place of occurrence and thereafter he was shifted to hospital where he succumbed to his injuries; that thereafter police arrived at the place of occurrence and recovered one pointed knife (churi) from near a culvert which is situated near the place of occurrence and seized the same where he put his signature as a seizure witness.” Witness Sri Gunadhar Das (Pw-4) during his statement under Section 161 Cr.P.C. stated before me that - “on the date of incident i.e. on 20/12/2014 at about 7.00 P.M. he heard shouts of many people and immediately rushed to the spot and witnessed the accused persons namely Prasanta Das @ Sarupai, Akonti Das and Makhan Das assaulting Debojit Das with the help of fist blows for which he received grievous injuries on his person; that he was immediately shifted to the hospital for medical treatment; that on being informed police went to the house of accused persons but by that time they had fled away from their respective houses and also that the family members of accused persons and deceased had previous enmity between them.” Witness Sri Dilip Pathak (PW-5) during his statement under Section 161 Cr.P.C, stated that - “on the date of incident he was present in his house and at about 7.00 P.M. he heard hue and cry coming from the side of road and accordingly he came out of his house and proceeded towards the place of occurrence; that he noticed accused persons namely Prasanta Das @ Sarupai, Makhan Das and Akanti Das @ Dipak fleeing away from the place of occurrence after assaulting Debojit Das with the help of Khukri; that he noticed Debojit Das falling down on the ground after the assault with grievous injuries on his person; that he was thereafter taken to the hospital by the family members; that he succumbed to his injuries in the hospital and also that there was previous enmity between the accused persons as well as the deceased, for which, many meetings were held in the village.” Witness Sri Subha Kanta Das (PW-7) during his statement under Section 161 Cr.P.C. stated that - “on 20/12/2014 at about 7.00 P.M. he heard shouts coming from the side of pucca road of Borhuj Gaon and thereafter proceeded towards the place of occurrence; that he came to know from the villagers that Prasanta Das @ Sarupai, Akonti Das and Makhan Das had assaulted Debojit Das with the help of sharp cutting instrument together with fist blows for which he had been badly injured; thereafter the assailants fled away from the place of occurrence; that the villagers with the help of police sent the injured to Jorhat Medical College & Hospital for medical treatment where the injured Debojit Das succumbed to his injuries; that all the three absconded accused persons had murdered the injured Debojit Das.” 25. During his cross-examination, PW-9 had also categorically deposed that witness Ankur Das (PW-1) did not state before him that he had accompanied the deceased to purchase some articles from the nearby shop; that the accused Prasanta Das had pierced the “Churi” in the body of the deceased and that he was present at that time. 26. Dr. Mamata Devi (PW-10) was the Medical Officer on duty at the JMCH, Department of Forensic Medicine on 21/12/2014 when the dead body of deceased Debojit Das was brought for conducting post mortem. According to PW-10, the following wounds along with their position, size and character were found in the dead body :- “Wounds, position-size and character (1) A perforating wound of size 3.5 cm x 2 cm which is cavity deep, spindle shaped present over left side of upper part of abdomen located 12 cm left to midline and 11 cm below left nipple. Margin of the wound is clean cut, well defined and inverted (entry wound). Tract of wound - The wound passes through left side of abdomen, pericardium, heart, pleura, right lung between 6th & 7th intercostals space and exit through right side of back of chest 1 cm from midline and 9 cm from spine of 7th cervical vertebrae, margin of the wound is clean cut, well defined, everted. The wound is 3.2 cm x 1.8 cm in size, spindle shaped (exit wound). Direction of the injury :- Front to back, left to right and below upward. (2) An incised wound of size 6 cm x 3 cm bone deep is present over base of thumb, on the right side, margin of which is clean cut and well defined. NB- Clotted blood is adherent to wound margin which resist washing under tap water.” 27. PW-10 had opined that the cause of death was due to haemorrhage and shock as a result of injuries sustained over the body as described in the post-mortem report. All the injuries were ante-mortem and caused by sharp-cutting pointed weapon and were homicidal in nature. Approximate time since death was 12-24 hours. PW-10 has also proved the postmortem report Ext.-7. During her cross-examination, PW-10 has stated that the injuries on the body could not have been caused by the deceased falling on any sharp pointed object. 28. All the injuries were ante-mortem and caused by sharp-cutting pointed weapon and were homicidal in nature. Approximate time since death was 12-24 hours. PW-10 has also proved the postmortem report Ext.-7. During her cross-examination, PW-10 has stated that the injuries on the body could not have been caused by the deceased falling on any sharp pointed object. 28. After analyzing the evidence available on record, the learned Sessions Judge has held that the factum of previous enmity between the victim and the accused persons was established from the testimony of PW-1, who was present all along with the deceased; PW-1 had seen the incident where the accused persons had given fist blows to the victim and thereafter, accused Prasanta Das had pierced the pointed knife in the stomach of the victim, as a result of which, he fell down on the ground and seeing the incident, PW-1 had raised an alarm; that from the evidence of PW-3 it is apparent that on hearing the commotion, he had rushed toward the place of occurrence and had witnessed accused Makhan Das and Akanti Das fleeing the place and had also witnessed accused Prasanta Das inserting a “Khukri” in the stomach of Debojit Das; that the evidence of PW-3 finds due corroboration from the evidence of PW-6; that PW-4 even-though declared as a hostile witness had stated before the Police that he had seen cut injury on the stomach of Debojit Das, which finds due corroboration from the evidence of PWs-1, 3 and 6; that there was no possibility of any third person committing the murder and finally that the evidence of PW-10 shows that the deceased could not have received the injuries by falling on any sharp pointed object. The learned Sessions has accordingly held that although there are minor contradictions in the testimony of PW-1 and notwithstanding the fact that PWs 2, 4, 5 and 7 had become hostile witnesses, from the evidence available on record, it is proved beyond reasonable doubt that it is the accused persons who had acted with a common intention and fatally assaulted the victim leading to his death. On such basis, all the accused persons have been convicted under Section 302/34 of the IPC and sentenced as aforementioned. 29. At the very out-set, it deserves to be mention herein that the informant in this case, viz. On such basis, all the accused persons have been convicted under Section 302/34 of the IPC and sentenced as aforementioned. 29. At the very out-set, it deserves to be mention herein that the informant in this case, viz. Sri Dipak Das has not been examined as a witness. However, in the ejahar dated 21/12/2014, it has been clearly mentioned that it is accused Prasanta Das, who had stabbed the victim with a dagger in his belly grievously injuring him. The ejahar does not mention about the other two accused persons, viz. Akanti Das and Makhan Das. 30. The testimony of PW-1 has been heavily relied upon by the learned Sessions Judge. However, we find that on date on which his evidence was recorded i.e. 24/06/2015, PW-1 was a minor aged about 13 years. It is not discernable from the record as to whether, the learned Sessions Judge had put questions to the child witness so as to assess his mental faculty. However, from the deposition of PW-1 it appears that his testimony has been consistent. The same does not appear to be the outcome of tutoring and the learned Sessions Jude was also apparently satisfied with the competence of the child witness to testify. Although not reflected in the deposition, it is possible that after some interaction, the learned Sessions Judge was satisfied with the competence of the witness to depose before the Court and accordingly, went on to record his statement. The learned counsel for the appellant/defense counsel has not raised any objection on count of competence of PW-1 to depose nor did the defense counsel confront the witness with any question regarding his competence to depose while conducting his cross-examination. Situated thus, we are not inclined to go into this aspect of the matter at this stage merely because the deposition of PW-1 does not contain, questions, if any put to him by the learned Sessions Judge to assess his mental faculty. 31. PW-1 has deposed to the effect that the three accused persons had assaulted his elder brother Debojit Das with fist and blows and thereafter, accused Prasanta Das has pierced the pointed knife in the stomach of his brother. During his cross examination he has stated that he did not say so before the police. 31. PW-1 has deposed to the effect that the three accused persons had assaulted his elder brother Debojit Das with fist and blows and thereafter, accused Prasanta Das has pierced the pointed knife in the stomach of his brother. During his cross examination he has stated that he did not say so before the police. However, from the Case Diary we find that PW-1 did mention before the I.O. that on 20/12/2014 at around 7.00 P.M. suddenly he had heard his “dada” (elder brother) Debojit scream. Then he ran and under the light from the nearby house, he could see that the accused (1) Sri Prasanta Das, (2) Sri Akanti Das and (3) Sri Makhan Das were together assaulting the victim with a knife and fist blows and felled the victim in the nearby culvert. He had seen the incident under the light. From the above, it is apparent that PW-1 had seen the incident and he was present at the P.O. when the incident took place. Therefore, although there are some contradictions and exaggeration in his testimony, yet, we find that he had remained firm on the fact that he had seen the accused persons assault the victim with fist blows and knife. 32. From the evidence of PW-3, we find that he had reached the spot immediately after the incident and in all probability had seen Makhan Das and Akanti Das fleeing the spot. This witness has claimed to have seen the accused Prasanta Das inserting “Khukri”in the stomach of the victim Debojit Das. During his cross examination, the testimony of this witness could not be shakened by the defence side. That apart, the version given by PW-1 also finds due corroboration from the testimony of PW-3. Although PW-6 has also claimed to have seen the accused Prasanta Das with a sword in his hand, we are not inclined to place much reliance on the above testimony of PW-6. The distance between the house of PW-6 and the P.O. in more than a kilometer and therefore, it is highly unlikely that after the incident the accused would still be standing there with a knife in his hand for substantial amount of time so as to allow the people gathered there to see him. Secondly, the description of the weapon given by PW-6 does not match the sized weapon. Secondly, the description of the weapon given by PW-6 does not match the sized weapon. However, if the evidence of PWs 1 and 3 is read in conjunction with the testimony of the IO (PW-9), than it becomes amply evident that the accused Prasanta Das was not only present at the place of occurrence but he was also seen to be carrying “knife” in his hand, which was apparently used to inflict stab injury upon the victim leading to his death. 33. From the medical evidence brought on record, the homicidal death of victim Debojit Das has been established beyond doubt. There is no dispute as regards the time and place of occurrence. PWs 6 and 8 i.e. the parents of the victim have adduced evidence which goes to show the accused Prasanta Das and his associates had demanded a sum of Rs. 20/-from the victim and on his refusal to pay the amount, they had threatened him of dire consequences. Therefore, there is reliable evidence to show that there was a quarrel between the victim and accused Prasanta Das just before the occurrence and to that extent the motive of the accused is also established. Moreover, the witnesses PW-1 and 3 had seen only the accused Prasanta Das with a knife in his hand at the place of occurrence which also goes to show that while the other two accused persons, viz. Sri Akanti Das and Sri Makhan Das might have been involved in a scuffle with the victim and in all probability had also dealt fist blows on the victim, yet, the fatal blow in the vital part of the body was dealt by Sri Prasanta Das with the knife he was carrying in his hand. This we say so because the post-mortem report mentions presence of single stab injury in the vital part of the body of the victim. 34. From a careful evaluation of evidence available on record, we are of the unhesitant opinion that the prosecution has succeeded in establishing the chain of circumstances so as to prove beyond reasonable doubt that it is none other than the accused Prasanta Das who had assaulted the victim with a pointed weapon (knife) causing grievous injury on the vital parts of his body leading to his death. It has also been established from the evidence on record that there was a quarrel between the victim and the accused Prasanta Das regarding demand for payment of money i.e. Rs. 20/-and the aforesaid quarrel, in all likelihood, had led to the incident leading to the death of the victim. 35. In the above context, it would further be pertinent to note herein that while recording his statement under Section 313 Cr.P.C., accused Prasanta Das, while denying the incriminating circumstances put to him, had also taken a stand that it was Babul Das, who was seen to be engaged in an argument with the victim Debojit Das and when he asked the reason for such argument, at that time Babul Das came towards him, as a result of which, he ran away towards his house. Before he could reach his house, Babul Das had started shouting that he (accused) had assaulted Debojit Das. 36. The aforesaid explanation of the accused Prasanta Das, apart from being wholly untenable in the facts and circumstances of the case, also appears to be an attempt to conceal the truth. We say so for the following reason : Firstly, it has come out from the evidence of PWs - 6 and 8 that it was none other than Babul Das who had raised an alarm saying that the victim had been grievously assaulted by the accused persons. On such alarm being raised by Babul Das, the villagers and family member of the victim rushed to the place of occurrence where some of the witnesses, viz. PWs-1 & 3 had seen the accused Prasanta Das present there with a “knife” in his hands. Unless accused Prasanta Das had assaulted the victim, we do not find any reason to assume that Babul Das would falsely implicate him so as to screen the real culprit. At the same time it would be quite absurd to presume that Babul Das had himself assaulted the victim with a sharp weapon and then raised an alarm drawing the villagers to the P.O. Accused Prasanta Das has not denied his presence in the place of occurrence and there is also no foundation laid in the cross-examination of the PWs to suggest that he was not present at the place of occurrence on the date and time of the incident. If that be so, it was incumbent upon the accused Prasanta Das to offer some plausible explanation as to what had actually happened at the scene and how the victim had sustained grievous injury. However, instead of doing so, the accused appears to have offered a completely untenable and improbable explanation. The aforesaid conduct of the accused, in our considered opinion, would have to be treated as an additional link in the chain of circumstances proved by the prosecution side pointing towards the guilt of the accused Prasanta Das. 37. Having held as above, the next question that would now have to be considered by this Court as to whether the evidence available on record is sufficient to sustain the conviction of the appellants, viz. Akanti Das and Makhan Das. In this context, it is to be noted herein that the only evidence available against these two appellants is to the effect that some of the witnesses, viz. PWs 1, 3 and 6 had seen them fleeing the place of occurrence immediately after the incident. Although PW-1 has stated that the aforesaid two accused persons had assisted the other accused, viz. Prasanta Das in dealing out fist blows to the deceased, yet, there is nothing to show that the aforementioned accused persons had assaulted the victim with an intent to cause death to him. Rather, the post-mortem report mentions of a single incised injury clearly suggesting that the victim was fatally injured by sharp weapon by one of the accused persons i.e. Prasanta Das. Therefore, the possibility of accused Akanti Das and Makhan Das assaulting the victim with the intention to cause death to him can be safely ruled out in this case. 38. It is no doubt correct that PW-2 has mentioned about a dying declaration made by the victim while he was being carried to the hospital. However, what is to be noted herein that the exact words in which dying declaration was allegedly made by the victim is not available on record. 39. In the case of Waikhom Yaima Singh Vs. State of Manipur [2011 Crl. J. 2673 ] the Supreme Court has observed that oral dying declaration is a weak kind of evidence and is not worthy of consideration when exact words uttered by the deceased is not available. In the present case also, the exact words uttered by the deceased is not available. State of Manipur [2011 Crl. J. 2673 ] the Supreme Court has observed that oral dying declaration is a weak kind of evidence and is not worthy of consideration when exact words uttered by the deceased is not available. In the present case also, the exact words uttered by the deceased is not available. Even if the version of the PW-2 is to be taken on the face value than also it is not clear as to what was the nature and role played by the three accused persons in the incident. Coupled with that, the PW-2 has also been declared as a hostile witness thereby altogether diminishing the credibility of this witness. Under the circumstances, in the absence of any corroboration from independent and reliable witness, we are of the view that it will be wholly unsafe for the Court to convict the two appellants in Crl. Appeal No. 75/2018 for committing the murder of the victim Debojit Das with the assistance of Section 34 of the IPC on the basis of oral dying declaration particularly when there is nothing to indicate any overt act on the part of these appellant showing their common intention to cause death to the victim. 40. The incident which took place on 20/12/2014 is no doubt a very tragic one where the PWs-6 and 8 had lost their only son. The occurrence apparently took place over a quarrel involving a petty issue. However, regardless of how tragic the incident is, it is the salutary principle of Criminal Law Jurisprudence that no person can be convicted for murder charge and made to suffer rigorous imprisonment for life unless the prosecution succeeds in establishing the charge brought against them beyond reasonable doubt. In our considered opinion, the prosecution has failed to establish the charge brought against the appellants Sri Akanti Das and Sri Makhan Das under section 302/34 of the IPC beyond reasonable doubt. We, therefore, hold that the conviction of the aforesaid two appellants is unsustainable in the eye of law and therefore, calls for interference by this Court. However, for the reasons discussed herein before, we hold that the charge brought against appellant Sri Prasanta Das u/s. 302 IPC has been proved beyond reasonable doubt by leading cogent evidence on record. 41. We, therefore, hold that the conviction of the aforesaid two appellants is unsustainable in the eye of law and therefore, calls for interference by this Court. However, for the reasons discussed herein before, we hold that the charge brought against appellant Sri Prasanta Das u/s. 302 IPC has been proved beyond reasonable doubt by leading cogent evidence on record. 41. In the result, the impugned judgment and order dated 16/12/2017, in so far as the same relates to conviction and award of sentence to the accused persons is concerned, viz. Akanti Das and Makhan Das, is hereby set aside. The two appellants are set at liberty. 42. In so far as the conviction of accused Prasanta Das is concerned, we affirm the same along with the sentence awarded by the learned trial Court. 43. With the above observations, both the appeals stand disposed of. 44. Before parting with the record, we wish to put on record our appreciation for the valuable assistance rendered in this case by Mr. U. Choudhury, learned Amicus Curiae and direct the Registry to make available to him, just remuneration for the services rendered, as per the notified fee of Amicus Curiae. Send back the LCR.