The main legal point established in the judgment is that the absence of evidence supporting the formation of an unlawful assembly and the lack of a shared common object to cause death led to the acquittal of one accused and the conviction of the others under a lesser charge.

Ansari, J.

1. By the impugned judgment and order, dated 6.1.2000, passed by the learned Sessions Judge, Morigaon, in Sessions Case No. 12/1997, the accused-appellants stand convicted under Sections 302 and 323 read with Section 149 IPC and each of them stand sentenced to suffer, for their conviction under Sections 302/149, imprisonment for life with fine of Rs.2000/- each and, in default of payment of fine, rigorous imprisonment for a further period of six month and to suffer, for their conviction under Sections 323/149 IPC, rigorous imprisonment for three months.

2. The case against the accused-appellants, as unfolded at the trial, may, in brief, be stated as follows:

On 29.9.1993 at about 7.30 am, the present accused-appellants along with accused Nasiruddin and Nizamuddin (since acquitted) came, armed with dao, lathi, spear, etc., to the land of Abdul Khaleque, where Abdul Khaleque used to reside with his family by constructing a house and asked Abdul Khaleque and his family to leave, but Abdul Khaleque reacted by saying that he had already sold the land to Ramzan Ali and his family and Ramzan Ali and his family would not go out, whereupon the accused-appellant, Makbul, ordered the other accused, accompanying him, to beat Ramzan and others and turn them out of the house. On being so asked by the accused/appellant, Makbul, the other four accused persons assaulted Abdul Khaleque with lathis and when Ramzan came forward, he was given blow with a dao on his left shoulder by the accused-appellant, Harej Ali, and the accused/appellant, Hanif, stabbed Ramzan with a spear on his chest. On alarm being raised, the accused-appellants fled away from the scene leaving Abdul Khaleque and Ramzan Ali in injured condition at the place of occurrence. Both the injured were taken to Jagiroad Police Station and therefrom, they were sent to Jagiroad Hospital. While injured Abdul Khaleque survived, injured Ramzan succumbed to his injuries. Abdul Khaleques brother, Abdul Jabbar, lodged a written Ejahar (Ext.1) at the said police station. Police accordingly registered a case and, on completion of investigation, laid charge-sheet against all the accused persons aforementioned including the accused-appellant under Sections147/148/149/447/448/326/302 IPC.

3. During trial, when the charges framed under Sections 147, 148 and 326 as well as 302 read with Section 149 IPC were explained to the accused persons, they pleaded not guilty thereto, the case of the defence being, in brief, thus : The land, where the alleged occurrence took place, used to be in the possession of accused Makbul Hussain, father of the accused Hanif Ali, Hariz Ali, Nizamuddin and Nasiruddin alias Nasir, and on the day of occurrence, at about 7.00 am, when the accused Nasiruddin, Nizamuddin, Hanif and Hariz were in their house along with their mother, Mustt. Haliman Nessa, Abdul Khaleque along with Ramzan Ali and others came to accused Maqbuls house and asked the members of his family to get out of the house, but when Maqbuls family members refused to leave, they were attacked by Abdul Khaleque and Ramzan. When Abdul Khaleque (PW-3) attempted to assault accused, Nasir, with a spear, the spear accidently fell on Ramzan and caused injury on his person. The other accused persons too, namely, Nasir and Hanif, sustained injuries and were medically examined. Thus, Ramzan (since deceased) and Abdul Khaleque were the aggressors and the accused persons were completely innocent. The defence also adduced evidence by examining 5 witnesses.

4. On conclusion of the trial, the learned trial Court, on finding the accused persons, facing the trial, guilty of the charges framed against them under Sections 302 and 323 read with Section 149 IPC, convicted the present accused-appellants accordingly and passed sentences against them, as hereinabove mentioned, but on account of the fact that the two of the accused persons facing the trial, namely, Nasiruddin and Nizamuddin, were found below the age of 16