JUDGMENT :

S. Serto, J.

This is a criminal appeal directed against the judgment & order dated 03.08.2015, passed by the learned Addl. Session Judge (FTC), Nagaon in Session's Case No. 287(N)/2003, wherein the accused persons except one of them were acquitted of the charges under section 148/149/323/302 IPC.

The appellant is the wife of the victim/deceased.

2. Heard Mr. M.U. Mondal, learned counsel for the appellant. Also heard Ms. B.Bhuyan, learned Addl. P.P on behalf of the State of Assam and Mr. D.K. Medhi, learned counsel for respondents No.2 to 8.

3. The facts which led to the filing of this appeal are as follows;

On 28.11.2000, at 2:00 P.M, one Md. Mamit Ali, lodged an ejahar to the Officer-in Charge of Rupohihat Police Station, stating that at about 1:00 P.M. of that day, Md. Sukur Ali, Md. Sorhab Ali, Ali Akbar, Abdul Hekim, Abdul Mannaf, Idris Ali, Nur Islam, Nurul Hoque and Saidur Islam, having previous grudge, assaulted his uncles namely, Md. Samir Ali, Jamir Ali, Mafiz Ali and Siddique Ali, on PWD road in front of his house causing thereby grievous injuries, therefore, investigation may be conducted and necessary action may also be taken.

On received of the same, FIR Case No. 98/2000, under section 147/148/325 of IPC, was registered against the persons named by the complainant. Later in the day, one of the persons who was stated to have been assaulted by the accused persons namely, Samir Ali died due to the injuries suffered as such, after the investigation was over, charge sheet was submitted under section 147/148/149/323/302 IPC, in the Court of the learned CJM, Nagaon. Since, the case was triable by the Sessions Court, the learned CJM committed the same to the Court of the learned Sessions Judge, Nagaon. The learned Sessions Judge, made over the same to the learned Addl. Sessions Judge (FTC), Nagaon for trial. After all the formalities were completed, the learned Addl. Sessions Judge, (FTC), Nagaon framed the following charges against the accused persons;

"(1) Name of the office of Magistrate etc. I (i) Sri. M.N. Laskar, Addl. Dist. & Session Judge, (Adhoc) Nagaon, Assam

(2) Name of the accused person hereby charge you as follows;

(i) Sukur Ali (2) Surhab Ali (3) Ali Akbar (4) Abdul Hakim (5) Abdul Mannab (6) Idrish Ali (7) Nurul Islam (8) Noor Mahmood (9) Saidur Islam

First: - That you, on or about the on 28.11.2000 at about 1 P.M. at Public road at Lawgaon you committed rioting by deadly weapon

(3) : My cognizance or the cognizance of the Court of Session; and hereby committed an offence punishable under 148 IPC of section the Indian Penal Code, and withins my cognizance.

Secondly:- That you, on or about the same day, time and place you voluntarily caused hurt to Samir Ali in furtherance of common object of all.

and thereby committed an office punishable under 323/149 of IPC section the Indian Penal Code, and withins my cognizance

Thirdly;- That you, on or about the same day and time you caused hurt to Samir Ali who died after 2 days and you caused hurt intentionally for causing death and did murder for furtherance of common object of all.

(4) In cases tried by Magistrate omit "by the said Court"; and thereby committed an offence punishable under 302/149 IPC section the Indian Penal Code, and withins my cognizance.

and hereby direct that you be trieds by this Court on the said Charge. Charge is framed, read over and explained to them to which they pleaded not guilty and claimed to be tried.

Dated this 5th day of 19th Nov'2003 Magistrate."

4. In the impugned judgment, the learned Addl. Sessions Judge (FTC), Nagaon framed three points for determination. They are as follows (reproduced verbatim);

"Now points for determination are as follows;

(i) Whether the accused persons were being the members of an unlawful assembly committed offence of rioting with deadly weapon in prosecution of the common object of such unlawful assembly?

(ii) Whether the accused persons were being the members of an unlawful assembly voluntarily caused hurt to Sa