JUDGMENT

NATARAJAN, J. :— This appeal by special leave by the State of Assam is directed against the judgment of the Gauhati High Court allowing the appeal filed by the respondents herein and setting aside their convictions by the Sessions Judge under S. 302 read with S. 149, I.P.C. and S. 304 read with S. 149, I.P.C. and the sentences awarded therefor.

2. The respondents came to be convicted by the Sessions Judge for having caused the death of one Majibur Rahaman and his father Dhansa Sheikh in the following circumstances. On 1-11-70, Dhansa Sheikh (father) and .Majibur Rahman (son) were harvesting the paddy crop in a paddy field at village Katabari. At about 9.00 a.m. the respondents along With 20 or30 others went to the paddy field in question and attacked Dhansa Sheikh and Majibur Rahman with weapons such as daggers, lathis etc. Majibur Rahman died at the scene itself within a short time after the attack. However Dhansa Sheikh survived for some days and died at the hospital on 11-11-1970 in spite of treatment being given to him. After the incident had taken place the family members and some of the villagers took Dhansa Sheikh and the dead body of Majibu Rahman to the house of Dhansa Sheikh.

3. In the afternoon Shri Tarini Hazarika, the Sub-Inspector of Police of Gauhati Police Station came to the village to investigate a case registered against Dhansa Sheikh and Majibur Rahman on a report made at 12.45 p.m. at the police station by respondent No. 2 Mahinuddin. The said report has been marked at Ex. A and therein Mahinuddin has stated that Dhansa Sheikh and Majibur Rahman had trespassed into the paddy field belonging to his nephew minor Thakur Ali and attacked respondent No. I Bhelu Sheikh and respondent No. 3 Naram Ali and caused injuries to them. When the Sub-Inspector of Police reached the house of Dhansa Sheikh, he found Dhansa Sheikh lying injured and Majibur Rahman Iying dead in the house. He therefore, recorded a statement Ex. 7 from Dhansa Sheikh and after returning to the police station, he registered a case against the respondents under Ss. 147/302/326/149, I.P.C. Dhansa Sheikh was sent to the hospital for treatment and Majibur Rahmans dead body was also sent to the hospital for post-mortem examination. P. W. I Dr. Bhattacharjee found two lacerated injuries on the scalp and one abrasion above the right eyebrow of Majibur Rahman. Beneath the lacerated injuries. there was depressed fracture of both the parietal bones. The doctor certified that the death of Majibur Rahman was on account of shock and haemorrhage resulting from the injuries sustained by him. Dhansa Sheikh was given treatment at the hospital but in spite of it he died on 11-11-70. The autopsy on his dead body also was conducted by P.W. Mr. Bhattacharjee. The autopsy revealed that Dhansa Sheikh had sustained fracture of the parietal bones besides fracture of the right clavicle. As in the case of Majibur Rahman, Dhansa Sheikhs death A as also attributed to shock and haemorrhage resulting from the fracture injuries sustained by him.

4. After investigation was completed, the investigating officer referred the case registered on the report of the. second respondent Mahinuddin and laid charge-sheet against the respondents in the case registered on the report given by Dhansa Sheikh.

5. While a charge under S. 302 read with S.149, I.P.C. was framed against the respondents for causing the death of Majibur Rahman, a charge under S. 304 read with S. 149, I.P.C. only was framed against them for causing the death of Dhansa Sheikh presumably because he had survived for about nine days after sustaining the injuries.

6. To prove the case against the respondent, the prosecution examined 14 witnesses. Among them P.W. 6 Imon Nessa, P.W. 7 Rajat Ali and P.W. 13 Gauri Kanta Sora were examined to speak about the paddy field where the occurrence had taken place being in the possession of Dhansa Sheikh. P.W. 8 Safurannessa, P.W. 9 Ragia Begum and P.W. 10 Subrat Ali are respectively