Judgment :-

T.S. THAKUR, J.

1. This appeal arises out of a judgment and order dated 29th June, 2006, passed by the High Court of Judicature at Gauhati whereby Criminal Appeal No.133 of 2005 filed by the appellants has been dismissed and the conviction and sentence of life imprisonment awarded to them by the trial Court for offences punishable under Sections 448, 324 and 302 read with Section 34 IPC upheld.

2. The appeal was initially heard by a Division Bench of this Court comprising S.B. Sinha and H.S. Bedi, JJ., who differed in their conclusions. While S.B. Sinha, J. acquitted the appellants giving them the benefit of doubt, Bedi, J. upheld their conviction and sentence and consequently dismissed the appeal. The appeal has, in that backdrop, been listed before us to resolve the conflict.

3. Briefly stated, the prosecution case is that at about 10.00 p.m. on December 14, 1992, Mohd. Taheruddin (PW2) a resident of village, Changmazi Pathar situate within the limits of Police Station Doboka, District Nagaon in the State of Assam was guarding his paddy crop in his field close to his house. Md. Mustafa Ahmed (PW3), one of the two sons of Mohd. Taheruddin was sleeping at home in one of the rooms while Md. Hanif Ahmed (PW4) was together with one Zakir, said to be a close relative, was sleeping in the kitchen. Sahera Khatoon wife of Mohd. Taheruddin and his daughters Hazera Khatoon, Jahanara Begum, Samana Khatoon and Bimala were sleeping in another room. A mob allegedly comprising nearly twenty people entered the house of Mohd. Taheruddin and forcibly opened the door. Around the same time another house belonging to one Nandu situate at some distance from Mohd. Taheruddin's house was on fire. The prosecution case is that Md. Mustafa Ahmed (PW3) heard accused Gopal Ghose calling for `Munshi' which ostensibly is also how Mohd. Taheruddin was known. Md. Mustafa Ahmed (PW3) is said to have replied that Taheruddin was not at home. Apprehending danger, Md. Mustafa Ahmed escaped from the house but not before Gopal Ghose had injured him with the help of a spear. On his way out Md. Mustafa Ahmed is said to have recognised two persons standing outside the house allegedly armed with dao, dagger etc. Out of the house and in the field, he saw his father Mohd. Taheruddin coming homeward. Md. Mustafa Ahmed told him not to do so for he may be killed by the mob that had attacked the house. Taheruddin paid heed to the advice and watched the incident from a distance. According to his version Rahna Gour, one of the members of the mob, shot an arrow at him which hit his right hand. After the crowd had left the place he shouted to attract the attention of an army vehicle that was passing by and reached the spot only to find his daughters Bimala and Hazera lying dead and his wife Sahera Khatoon lying injured in the middle of a paddy field near the house. He carried her home where she died after some time. Zakir Hussain who was sleeping along with Md. Hanif Ahmed (PW4) in the kitchen was also injured by the mob. According to the version of Md. Hanif Ahmed (PW4) three accused persons, namely, Kailash, Hari Singh and Ratan entered his room and took away Zakir with them. Hanif is said to have stepped out of his house to take shelter behind the banana trees growing near the house and witnessed the entire incident from there. According to his version Gopal Ghose, Kailash Gour, Gundulu Gour, Krishna Gour and Harendra Sarkar assaulted his mother while his sister Hazera Khatoon was attacked by Budhuram Timang, Hari Singh and Rahna. Bimala, the other sister, was similarly assaulted by Gopal, Ratan Das and Harendra Sarkar. The rest of the sisters, however, managed to escape unhurt.

4. The injured were then taken to Nagaon Civil Hospital by the police who had also arrived at the place of occurrence on receipt of intimation about a house having been put on fire in the neighbourhood. The dead bodies were removed in the army vehicle, while Zakir Hussain and Md. Mustafa A