Heard Mr. P. Kataki, learned counsel for the appellants. Also heard Mr. B. B. Gogoi, learned Addl. Public Prosecutor for the respondent State of Assam.

2. This appeal has been preferred against the judgment dated 27.07.2009 passed by the learned Addl. Sessions Judge, FTC No. 3, Kamrup, Guwahati, in Sessions Case No. 333(K) of 2003 convicting the appellants under Sections 304/323/34 IPC and sentencing each of them to undergo R.I. for 10(ten) years with fine of Rs. 5,000/- each, in default, to undergo R.I. for 1 year under the first count and 3 months R.I. under the second count.

3. The prosecution case in short is that on 18.09.2002 at about 9 PM, while the brother of the informant Sri Thaneswar Malakar asked the accused Pranab Barman to repay the loan amount, he was assaulted with sharp weapon and when he raised alarm, his father Suresh Malakar and brother Sri Ratneswar Malakar rushed to the spot and found him lying on the ground in an injured state. All of a sudden, accused Krishna Barman, Ranjit Barman, Haresh Barman and Tapan Barman, began to assault them with sharp weapons as a result of which their father Suresh Malakar was critically injured. He was shifted to Hajo PHC but succumbed to his injuries. Three other members of Malakar family were also injured. On the following day, Sri Ratneswar Malakar lodged an FIR with Hajo Police Station which was registered as Hajo P.S. Case No. 186/2002 under Sections 32S/326/302/34 IPC. After investigation, charge sheet was submitted and the case was committed to the court of Sessions. The case being made over to the learned Additional Sessions Judge, FTC No. 3, Kamrup, Guwahati, charges were framed under Sections 323/302/34 IPC. The accused appellants denied the charges and pleaded for trial. The prosecution examined in all 12 witnesses including the I.O. and the Medical Officer. The defence also examined 2 witnesses. On consideration of the evidence and materials on record and upon hearing the learned counsel for the parties, the learned trial court awarded conviction and sentence, as stated above.

4. Mr. Kataki, learned counsel for the appellants, submits that the prosecution could not bring home the charge under Section 302/323/34 IPC inasmuch as the alleged occurrence took place suddenly and the deceased was hit at the heat of the moment and there was no intention to kill him to attract Section 302 of IPC. Similarly, there was no pre-plan or meeting of mind of the accused persons for collectively attacking the deceased and his sons and daughter. The accused persons gathered on the spot only when there was a hue and cry just after the scuffle between Thaneswar Malakar and accused Pranab Barman ensued on demand of return of loan amount. All the accused persons cannot be held liable for causing death of the victim Suresh Malakar and as such, the accused persons should have been acquitted or should have been awarded with lesser punishment.

5. The prosecution claims that PWs-1,4 and 6, are eye-witnesses and therefore, it is necessary to appreciate the evidence tendered by them. PW-1 Sri Ratneswar Malakar is the informant and one of the sons of the deceased Suresh Malakar. According to him, his brother Sri Thaneswar Malakar went to the house of accused Pranab Barman/Das demanding return of money which was due to him. The accused Pranab Barman/Das assaulted his brother causing serious injuries on various parts of the body and being attracted by hue and cry, he, along with his sister Kunjalata and father Suresh Malakar, went there and saw the brother Thaneswar Malakar lying on the road in an injured condition with pool of blood. He saw the accused Pranab Barman at the place of occurrence. Meanwhile, the other accused persons namely Tapan Barman, Krishna Barman, Ranjit Barman and Pranab Barman, made a combined attack on the informant and his brother and sister and assaulted them by dao, lathi, etc.. PW-1 categorically stated that accused Tapan Barman/Das assaulted his father