M.K. Sharma, J.

1. Leave granted.

The challenge in this appeal is to the judgment of a learned single Judge of the Gauhati High Court, dismissing the appeals so far as the appellants are concerned while directing acquittal of some of the co-accused persons.

2. Eighteen persons faced trial out of which nine were acquitted by the trial Court and the High Court. One of the accused persons died during the trial and seven accused persons, the present appellants were convicted for the offences punishable under Sections 147, 448 and 323 of the Penal Code, 1860 (in short "IPC") and were sentenced to undergo rigorous imprisonment for one year, six months and three months respectively.

3. The prosecution version in a nutshell is as follows : on 30.7.1990 Mohd. Nazir Ahmed, Assistant Teacher of Ambari H.E. School lodged an ejahar, Ext. 1, with the Officer-in-charge, Murajhar Police Station, on the allegations that on the same day at about 10 a.m. in the forenoon, the accused persons committed criminal trespass into the school and tried to give lesson in the classes and some outsider accused persons being armed with iron rod, spear, lathi and firearm gheraoed the school and when the accused teachers entered into the school, the outsider anti-social elements committed criminal trespass into the school and started assaulting the clerk of the school and along with them students also started assaulting the clerk. The clerk was taken away after assaulting him and he was kept confined. The names of the following accused persons were stated in the ejahar i.e. 1. Fakaruddin, s/o Kuti Mia, 2. Fakaruddin, 3. Kirendra Namsudra, 4. Botir Ali, 5. Abdul Gafur, 6. Rezan Ali, 7. Abdul Sattar Hazi, 8. Kuti Mia, 9. Mslim Ali, and 10. Abdul Karim. There is also mention in the FIR that he could identify the other accused persons if they are shown to him.

4. On the strength of the ejahar, a case was registered by the officer-in-charge being Murajhar Police Station Case No. 73 of 90 under Sections 147 /148/447/323/506, IPC. After few days, the injured Azizur Rahman died and therefore, Section 302, IPC was added. The case was endorsed to Shri B. Kalita, Sub-Inspector, of Police to investigate the case. The I.O. visited the place of occurrence, recorded the statements of the witnesses and collected the post-mortem report. After completion of the investigation, Officer-in-charge, Murajhar Police Station submitted charge-sheet against the accused persons under Sections 147/148/447/323/506/302, IPC.

5. On appearance of the accused persons in the Court of the learned SDJM, Hojai, Sankardev Nagar, copies of police papers were furnished to them and as the offence under Section 302, IPC was exclusively triable by the Court of Session, the case was committed to the Court of Session. The learned Sessions Judge transferred the case to the Additional Sessions Judge who framed charges against the accused persons. Since the accused persons pleaded innocence, they were put on trial. Ten witnesses were examined to further the prosecution version. Two witnesses were examined by the accused persons to prove their innocence. The trial Court found the accused guilty and convicted them.

6. An appeal was filed before the High Court. The High Court noticed that the accused persons were convicted on the basis of dying declaration (Ext. P-8). The High Court noted that on a combined reading of the FIR by PW 1 and dying declaration there was enough material against accused-appellants 1, 3, 6, 7, 8, 9, 11 and 12 and inadequate so far as rest of the accused persons who were convicted by the trial Court. Accordingly, the appeal so far as present appellants are concerned was dismissed.

7. Learned Counsel appearing for the appellants submitted that the deceased was suspended from the school. The Inspector of School wrote to the officer in charge of the local police station that the deceased was creating trouble and was causing obstruction in smooth running of the school. PW 2 was appointed as