IMPORTANT POINT
It is true that the commission of an overt act may not always be necessary to prove that a member of an unlawful assembly shared the common object of the assembly, but then, the minimum that the prosecution must prove is that the persons concerned were members of the unlawful assembly.

JUDGMENT

T.S. THAKUR, J.

1. This appeal by special leave arises out a judgement and order dated 24th December, 2008, passed by the High Court of Calcutta, whereby Criminal Appeal No.291 of 1990 filed by the appellants has been dismissed, in the process confirming the conviction and sentence of imprisonment for life awarded to them by the trial Court for offences punishable under Section 302 read with Section 149 of the IPC, and Sections 148 and 323/149 of the IPC. A fine of Rs.2000/- was also imposed on each one of the appellants, in default of payment whereof the appellants were sentenced to undergo further imprisonment for a period of one year. Half of the amount realised towards fine was directed to be paid to the legal heirs of the deceased in equal share.

2. Facts giving rise to the commission of the offence and the registration of the case alleged against the appellants, as also their eventual conviction and sentence have been stated at length by the trial Court in its judgment and recapitulated even by the High Court in the order under appeal before us. We need not, therefore, recount the same over again except to the extent it is absolutely necessary to do so for the disposal of this appeal.

3. The prosecution case precisely is that one Akalu was in cultivating possession of a parcel of agricultural land admeasuring 21 bighas situated in village Fatehpur, Mouza Lakhipur. Akalu, it appears, was helped by his tillers colloquially called adhiars. Some of the appellants claim to be the pattadars of the said parcel of land. A dispute regarding possession and the right to cultivate had embittered the relations between the appellant-pattadars on the one hand and Akalu and his adhiars on the other. The prosecution story is that on 3rd November, 1978, at about 10.00 a.m., Akalu, along with Budhu Md. (PW-1) and deceased Dabaru and Imamuddin, accompanied by a few others, namely, Jharu, Monglu, Bholu and Lal Khan were working in the disputed parcel of land when twenty four named persons including the appellants and some unnamed persons came to the spot, armed with sharp weapons like bows and arrows, knives, daggers, khapa-ballams and lathis. An altercation ensued between the two parties when the appellants tried to obstruct Akalu and his men from ploughing the land in question. The altercation escalated into a murderous assault by the appellants upon the persons in cultivation of the land who sustained grievous injuries with sharp edged weapons which the appellants’ party was carrying with them. While Dabaru succumbed to his wounds and died on the spot, deceased- Imamuddin breathed his last within an hour thereafter. Other members of the complainant party also sustained several injuries on their bodies.

4. A First Information Report about the incident was lodged by Budhu Md. in which several persons including some of the appellants were named as the assailants. It was also alleged that apart from the persons named in the First Information Report, there were 15-16 unnamed persons who participated in the assault. C.R. Case No.1352/78, corresponding to Case No.4 dated 3rd November, 1978 was accordingly registered by the police at Chopra P.S. and the investigation started, in the course whereof the investigating officer conducted an inquest and got the dead bodies of the deceased subjected to post-mortem examination, apart from making recoveries of the weapons of offence used by the assailants. A chargesheet was eventually filed by the police before the committal Court against as many as 26 persons including the appellants herein. The case was, in due course, committed to the Court of Additional Sessions Judge, Islampur, before whom the appellants pleaded not guilty and claimed a trial.

5. At the trial, the prosecution examined as many as 19 witnesses in support of its case. By its judgment dated 30th May, 1990, the trial Court found 21 out of 26 accused persons guilty of the offence of murder punishable under Section 302 read with