J. Sangma, J.— By judgment delivered on 20.5.93 in Sessions Case No.42/90 the learned Sessions Judge, Karimganj, (Shri IA Ansari) convicted and sentenced the appellants - (1) Rustom Ali, (2) Abdul Sattar, (3) Md. Makmad Ali, (4) Abdul JaMjar, (5) Md. Fachan Ali and (6) Maklis Ali under sectten 302/ 149 IPC for life. Further he convicted and sentenced Abdul Jabbar (appellant No. 4) and Maklis Ali (appellant No.6) under section 324 IPC to R1 for one year and convicted and sentenced Fachan Ali (appellant No. 5) under section 323 DPC to RI for 6 months. There was no sentence of fine. It was ordered that the sentences would run concurrently. All the appellants are serving the sentence in jail. 2. In brief the case for prosecution can be stated thus : On 10.3.85, Abdul Kadir (PW 4) complained to eldermen of village Jakiwalla that his elder cousin brother, Abdul Sattar (appellant No.2) played eve-teasing to his wife, Farzun Nessa. On that complaint the village elders called Abdul Sattar to appear before them at 9/9.30 AM of 11.3.88 for settlement by Bichar. So Abdul Kader and Abdul Sattar and their men came to the place of Bichar. Before starting Bichar, me eldermen (Mohammad, Insan, Yasin, Abdul Khalegue and Surman Ali) who came to hold the Bichar asked each party to make security deposit of Rs.500/-. Sattar took objection to the demand. Surman Ali was the father of Abdul Kader; he d wanted that the security amount should be enhanced. Quarrel then ensued and the appellants (who are party of Abdul Sattar) started assault with dao, lathi, jatria and huja and inflicted injuries on Surman Ali, Insan and Yasin Ali, the three eldermen, and on Kutub Ali. The four injured were produced before PS. The police made GD Entry No. 245 dated. 11.3.88 and sent the injured to Patharkandi Health Centre which in turn sent Surman Ali to Karimganj Civil Hospital, where he died at midnight of 11.3.88. At 1 PM of the next day (12.3.88), Jawid Ali (PW 6) gave FIR (Ext. 1). Upon which Patharkandi PS registered case No.38/88 against the six appellants, Ajimuddin and Abdul Khaleque, who were named in the FIR as accused. In the Court it was GR Case No.177/88. ASI, G. Deka, made inquest report (Ext 3) on 12.3.88 in the hospital and the Doctor (PW2) also did the post mortem on the same day. 1). Upon which Patharkandi PS registered case No.38/88 against the six appellants, Ajimuddin and Abdul Khaleque, who were named in the FIR as accused. In the Court it was GR Case No.177/88. ASI, G. Deka, made inquest report (Ext 3) on 12.3.88 in the hospital and the Doctor (PW2) also did the post mortem on the same day. Daring the day time of 12.3.88, the IO prepared / sketch map of the place of occurrence (Ext. 2) and, after investigation, submitted charge sheet under section 147/148/149/325/326/302 IPC against the six appellants. The CJM of Karimganj committed the case to Sessions Court. After the Doctor (PW 2) completed the post mortem on Surman's dead body, Abdul Sattar (appellant No. 2) also lodged a cross FIR (Ext.. 4) at 8.30 PM of 12.3.88, giving the names of (1) Farjum Bibi, (2) Md. Rashir Ali, (3) Md. Surman 8 Ali, (4) Md Kutub Ali, (5) Md. Insan Ali, (6) Md. Yasin AM, (7) Md. Jawid Ali, (8) Md. Aptar Ali, (9) Md. Abdul Kadir, (10) Md. Sukkur Ali, (11) Md. Allauddin and (12) Md. Majir Ali as accuseds. The gist of the FIR was this : "White. Abdul Jabbar and I were returning home in the afternoon of Thursday (10.3.88) Farjun Bibi, the wife of my cousin brother Abdul Kadir, shouted that I had teased her by showing my private part and on the next day (11.3.88) while Maklis Ali and I were proceeding to Makacherra to cut thatch, Tasbir called us from near the house of Surman Ali for Bichar by eldermen for alleged teasing of Farjun Nessa, We came to the place of Bichar; but suddenly Tasbir shouted 'maro saladar' '(kill the bastard). Thereupon the accuseds severely attacked us with lathi, jetha, dao and gun from all sides. We sustained-injuries. Finding no way out we pulled out bamboo posts from the fencing for self defence but took shelter by entering the house of Rustom Ali and then ran to jungle for safety. Hearing our hue and cry my father Samar Ali, uncle Amin Ali, Rustom Ali and Kalai Mia came and took us to Neelam Bazar Hospital. Delay took place in lodging this FIR because I was under treatment at Nilam Bazar Hospital. Sd/ Abdul Sattar 12.3.88" On this cross FIR also Patharkandi PS registered case No.39/88. Hearing our hue and cry my father Samar Ali, uncle Amin Ali, Rustom Ali and Kalai Mia came and took us to Neelam Bazar Hospital. Delay took place in lodging this FIR because I was under treatment at Nilam Bazar Hospital. Sd/ Abdul Sattar 12.3.88" On this cross FIR also Patharkandi PS registered case No.39/88. After investigation the IO dropped Farjun Bibi from the case and later submitted a delayed charge sheet against the other ten accuseds under section 147/341/323 IPC. The Magistrate to whom the charge sheet was submitted committed the case to Sessions Court because it arose out of the same incident and it became Sessions Case No. 21/92. It was separately tried by Sessions Judge. Appellants did not say that the trial ended in conviction of the accuseds. 3. In the present case (S .C .No. 42/90) the Sessions Judge, Karimganj, framed charge on 11.12.90: (1) Under sections 147/149/302 IPC against the six appellants for forming unlawful assembly and committing the murder of Surman Ali by rioting, (2) Under section 324 IPC against Abdul Jabbar for pausing hurt to Kutub Ali by huja, (3) Under section 324 IPC against Maklis for causing hurt to Insan Ali by a dao and (4) Under section 323 IPC against Huchan Ali for causing hurt to Kutub Ali by lathi. As all the appellants pleaded not guilty, the prosecution examined 10 PWs. The Court recorded the statement of defence of each appellant under section 313 CrPC but they did not examine witness for defence. The defence plea, as noted by the learned Sessions Judge was, while Abdul Sattar, Abdul Jabbar and Makmad Ali were proceeding to Makacherra forcutting thatch and passing near Surman Ali's house, Surman Ali (deceased), Kadir Ali, Kutub Ali and others suddenly assaulted them and it ensued into a fight in which appellants also sustained injuries. 4. The learned Sessions Judge found from the evidence of PW 1 (Dr. 4. The learned Sessions Judge found from the evidence of PW 1 (Dr. Saroj Kanti Das): (1) that Kutub Ali (PW 3) sustained - (a) a sharp incised would near the elbow of right hand, (b) one abrasion over right scapular region of back; the injuries were simple, (2) that Insan Ali sustained - (a) one sharp incised wound over right parietal region, of scalp, (b) one haemotoma over left shoulder; his injuries were also simple and (3) that Yasin Ali sustained (a) one haemotoma over left parietal region of scalp, (b) one stab wound over back of knee, at medial side and (c) one stab wound over back of knee at its lateral side; his injuries were also simple. From the evidence of PW 2 (Dr. Surjit Das) who performed the post mortem of Surman Ali's dead body, he found that injury on the head of Surman Ali was sufficient to cause death in the ordinary'course and that he died due to shock and haemorrhage of that head injury. After finding the injuries, he found that PWs 3,4,6,8 and 9 were present in the occurrence arid their evidence proved that Abdul Jabbar, Abdul Sattar and Makmad Ali came to the place of Bichar by concealing huja at nearby jungle and, as soon as the eldermen asked both the parties to make security deposit, Abdul Jabbar brought out huja by rushing to that jungle and assaulted Surman AH with huja on the head and Abdul a Sattar assaulted with dao on Surman's head. He found that the other four appellants did not prevent the assault on Surman Ali by Abdul Sattar and Abdul Jabbar. So, he held that all the appellants had "pre-planned, pre-consulted, pre-arranged and coldly deliberated" to commit the murder of Surman Ali and committed it with common object and that the appellants did not themselves sustain injury and gave a false cross FIR (Ext. 4) only for the purpose of defence. Thus he convicted the six appellants under section 147/149/302 IPC for murder of Surman Ali by rioting. Further he convicted Jabbar under section 324 IPC causing hurt to Kutub Ali and convicted Maklis Ali under section 324 IPC for causing hurt to Insan Ali by a huja. He convicted Maklis Ali under section 323 for causing hurt to Kutub Ali by lathi. Hence this appeal. 5. Mr. Further he convicted Jabbar under section 324 IPC causing hurt to Kutub Ali and convicted Maklis Ali under section 324 IPC for causing hurt to Insan Ali by a huja. He convicted Maklis Ali under section 323 for causing hurt to Kutub Ali by lathi. Hence this appeal. 5. Mr. AM Mazumdar, the learned counsel stated that the evidence of the 'so called' eye witnesses was weak and contradictory and it could not relied on for conviction particularly under section 147/149 or 302 IPC. He, therefore submitted that the learned Sessions Judge committed error in convicting the appellants on such evidence. Mrs. K. Deka, the learned PP supported the conviction and sentence. According to her the conviction and sentence under appeal was warranted in view of the Session Judge's finding that the appellants committed the crime "with pre-plan, pre-arrangement, pre-consultation and cold deliberation". Both sides argued only on facts without placing reliance on any authority. We, therefore have to reappreciate the evidence of PWs 3,4,6, 8 and 9 on whose evidence the learned Sessions Judge recorded the conviction. PW 3 (Kutub Ali) stated this : "Alternation took place as the accused persons did not agree to make security deposit of Rs. 500/-. Abdul Jabbar took out a huja from the jungle in front of the place of occurrence and hit with it on Surman's head and, as Surman fell down, Abdul Sattar hit with dao on his head. When I resisted Abdul Jabbar, hit on my elbow with huja and Huchan Ali hit me on the waist with lathi. Maklis hit me with blunt side of a dao, I fell down. When Mohammad, Yasin and Insan resisted, Maklis took dao from Fachan (appellant No. 5) and hit Insan. Makmad also hit Insan and Yasin with huja. Hue and cry was raised and I became unconscious." in cross-examination he gave this reply : "Abdul Jabbar and Abdul Sattar were going to Makacherra for cutting thatch. Abdul Sattar had a dao under his arm. At the time of coming to trial other accuseds did not have anything in their hands. Amin Ali (not accused) brought jetha (spear) and gave it to Hachan Ali. Mohammad Ali brought a dao, I cannot say how long the fight lasted. It is not a fact that I did not see who assaulted whom." PW 4, Abdul Kadir is the son of deceased Surman Ali. Amin Ali (not accused) brought jetha (spear) and gave it to Hachan Ali. Mohammad Ali brought a dao, I cannot say how long the fight lasted. It is not a fact that I did not see who assaulted whom." PW 4, Abdul Kadir is the son of deceased Surman Ali. He made the complaint against Abdul Sattar to village elders for teasing his wife. He gave this statement: "Mohammad, Abdul Khaleque, Yasin and Insan were present in the trial. Accused persons, Surman Ali, Amin Ali, my father Surman, Kutub and I were there. Accused persons did not agree to make security deposit of Rs. 500/-. Abdul Jabbar hit Surman with huja on the head. As Surman felt down, Abdul Sattar dealt a cut blow with dao on his head. When my uncle Kutub Ali resisted, Abdul Jabbar hit his right elbow with a huja. Fachan Ali hit with lathi on the back of Kutub Ali and Maklis Aii dealt blows with blunt side of my uncle's dao on his back. When Insan and Yasin Ali resisted, Fachan took away the dao from Maklis's hartd and dealt a cut blow on Insan's head. Maklis struck Insan with lathi. Abdul Sattar hit Insan on the leg with a kucha (kind of spear). Rustom AH (appellant No. 1) hit Insan with a lathi. As hue and cry was raised people came and took the injured persons to the PS from where the daroga sent them to Neelam Bazar Hospital. As the case of my father was serious he was shifted to Karimganj Hospital." In cross-examination he gave this reply : "It is not true : (1) that I did not tell the police that Abdul Sattar assaulted Surman with dao on the head and when Kutub Ali resisted Fachan Ali hit him (Kutub Ali) with a lathi on the back; (2) that I did not tell Police that Maklis hit on Insan's head with dao and on his back v/ith lathi; (3) that I did not tell Police that Sattar hit Yasin on the head with kucha and Rustom had hit him with a lathi. The assault lasted for 10/15 minutes including exchange of words." PW 6, Jawaid Ali, stated thus : "The elders who presided the trial were Mohammad Ali, Insan and Khaleque. The assault lasted for 10/15 minutes including exchange of words." PW 6, Jawaid Ali, stated thus : "The elders who presided the trial were Mohammad Ali, Insan and Khaleque. I came to the place of upon hearing scream and saw Jabbar dealt blows on Surman's head with a huja and Sattar dealt cut blows with dao on his head and Maklis dealt blows on Kulub's back waist of Kutub with a lathi and Makmad struck on the leg of Yasin with kucha and Maklis dealt cut blows on Insan's head with dao. In cross-examination he gave this reply : "Mohammad Ali informed the accused in the morning of Friday that trial would be held at the field. When I came the assault was almost over; and Surman, Kutub and Insan Ali were lying on the ground. It is not true that we surrounded and assaulted the appellants." PW 8, Insan Ali, is one of the eldermen who came to hold the Bichar.He said this : "At 8.30 0' Clock a Bichar was held. Mohammad Ali, Rustom Sarajit Ali, Amin, Makmad, Abdul Jabbar, Maklis, Yasin Ali were present. Mohammad Ali asked both the parties to deposit Rs.500/- for security. Over this matter an quarrel ensued between the two parties. Abdul Jabbar brought out a huja from nearby bush and struck on Surman's head and Abdul Sattar hit on Surman's head with a dao when Kutub Ali intercepted, Abdul Jabbar hit him on the hand with a huja. Fachan beat Kutub with lathi. Maklis took a dao from Abdul Sattar's hand and struck me, Makmad hit me on the left with a lathi. Abdul Sattar struck me on the thigh with a kucha. Sattar struck my brother Yasin with kucha. As there was scream the accused persons left." In cross-examination the gave this reply : "Abdul Khaleque and Mohammad Ali were impartial. Abdul Sattar had a dao in his hand; others did not have anything in their hands. Surman Ali was hit with dao and huja. The assault lasted for 5 or 10 minutes. Makmad and Amin Ali ran to Rustom Ali's homestead and brought lathi." PW 9, Yasin Ali, is also one of the eldermen who came to settle the matter by Bichar. Surman Ali was hit with dao and huja. The assault lasted for 5 or 10 minutes. Makmad and Amin Ali ran to Rustom Ali's homestead and brought lathi." PW 9, Yasin Ali, is also one of the eldermen who came to settle the matter by Bichar. He stated thus : "Abdul Khaleque, Insan, Surman, Kader, Kutub and accused abdul Sattar, Jabbar, Hughan, Makmad Ali, Amin and others came to Bichar but now Mohammad Ali, who among the elders was to hold the Bichar, is dead. When both parties were asked to make security deposit of Rs.500/- Surman suggested for enhancing the amount. An altercation then took place and Abdul Jabbar hit Surman on the head with huja and Sattar also struck Surman with dao on the head. When Kutub resisted, Abdul Jabbar hit him with kucha. Maklis dealt blows on Insan's head with dao." In cross-examination he gave this reply : "Mohammad Ali informed that a trial would be held in the morning. Mohammad, Surman, Kutub, Jawaid, Insan Ali and I went together. Accused Sattar had a dao in his hand; others did not have anything in their hands. As security deposit was not made, an altercation started and assault began." PW 10, Shri Parthsarathi Das, is the IO he stated : "At 1.30 PM of 11.3.88, Surman, Kutub, Insan, Yasin came to PS in injured condition and they were sent to Patharkandi Health Centre; but from there Surman Ali was sent to Karimganj Civil Hospital. At this place it may be noted that the FIR (Ext. 1) which was lodged after 24 hours did not mention about Abdul Jabbar's bringing out a huja from nearby jungle. The IO prepared sketch map of the occurrence (Ext. 2) but did not show the jungle/bush in that map. He did not also tell that Kutub (PW 3) and Insan (PW 8) had told him that Jabbar brought out the huja from a nearby jungle d or bush. He did not seize the huja or other weapon." The IO did not list Abdul Khaleque (eldermen) as PW in the charge sheet as he was also accused in the FIR (Ext. 1). The prosecution could not examine Mohammad Ali (another eldermen) as he had died before the trial. 6. He did not seize the huja or other weapon." The IO did not list Abdul Khaleque (eldermen) as PW in the charge sheet as he was also accused in the FIR (Ext. 1). The prosecution could not examine Mohammad Ali (another eldermen) as he had died before the trial. 6. Now after re-appreciation of the evidence of the above-named PWs we have formed the opinion that questions that fall for determination in this appeal are : (1) Whether the four other appellants could be convicted under section 302 IPC for the act of Jabbar and Sattar by applying section 147/149 IPC. (2) Whether the assault by Jabbar and Sattar amounted to murder. 7. Question No. 1: It held in AB Nikam vs. State of Maharastra, 1979 CrI LJ 72 that unlawful assembly is the sine qua non to constitute offence under section 146 IPC (rioting). In Munir Khan vs. State, AIR 1971SC 335 it was held that in a sudden and mutual fight there is no common object and the accused are to be convicted for their individual acts. In the instant case the evidence which we have reproduced only showed that Sattar carrying a dao, was going with Jabbar to Makracherra for cutting thatch; and on way they came to the place of Bichar. The other appellants came there to witness the Bichar and they did not have anything in their hands. Evidence of PW 3 shows that Mohammad Ali (one of the eldermen who came to hold Bichar) also had a dao and Amin (not accused) gave jetha to Hachan Ali. Evidence of PW 4 also showed that Maklis usecl Kutub Ali's dao and the evidence of PW 8 showed that Makmad and Amin brought lathis from Rustom Ali's hou§e. None of the PWs said that Jabbar and Sattar had grudge against Surman Ali and that the appellants had assembled somewhere before coming to the place of Bichar and decided to kill Surman Ali. The evidence given by PW 3 and 8 show that appellants came by concealing weapons at nearby jungle is also unconvincing. On the whole evidence rather show that the quarrel took place all on a sudden when demand for security deposit was made. The evidence given by PW 3 and 8 show that appellants came by concealing weapons at nearby jungle is also unconvincing. On the whole evidence rather show that the quarrel took place all on a sudden when demand for security deposit was made. Therefore, the findings of the learned Sessions Judge that all the appellants came to the place of Bichar with common object of murdering Surman Ali "after having pre-consultation, pre-plan, pre-arrangement and cold deliberation" in the unlawful assembly, is not correct. So we set aside the conviction and sentence under section 147/149/302 IPC of the four appellants (Rustom Ali, Makmad Ali, Hachan Ali and Maklis Ali) and acquit them of those charges. 8. Question No. 2 : Section 299-300 : All murders are culpable homicide; but all culpable homicides are not murder - Reazuddin vs. Emperor, II (1910) Crl LJ 295 (Cal): 6 Indian Cases 251. The Supreme Court said in State of AP vs. R. Runayya, 1977 Crl LJ 1: AIR 1977 SC 45 : "Court should decide the question - whether the facts bring the case within the ambit of any of the four clauses of definition of murder as contained in section 300. If the answer be in the negative, the offence would be culpable homicide not amounting to murder punishable under Part I or II of Section 304." In Ghulam Haider vs. Emperor, AIR 1938 Sind 63, it was held : "When it is reasonably doubtful upon the evidence of the prosecution whether this intention is present, then the accused is entitled to the benefit of that reasonable doubt and he must be acquitted of the charge of murder even it he is to be convicted of the charge of culpable homicide not amounting to murder." In Chamru Budhwa vs. State of MP, AIR 1954 SC 652 also, it was held : "Even though the circumstances were such as not to bring the case within exception 1 to section 300 IPC the crime was committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the accused having taken undue advantage or acted in a cruel or unusual manner thus bringing the case within exception 4 thereto with the result that the offence committed was culpable homicide not amounting to murder. The accused therefore could not be convicted of having committed the offence of section 302 IPC and that he could be convicted only 304 part II IPC." 9. In the instant case the occurrence took place when the elders, after coming to hold the Bichar, demanded security deposit of Rs. 500/-. It is also on the evidence of PW 9 that when Abdul Sattar protested to the demand, Surman Ali wanted enhancing of the security deposit amount. So a quarrel ensued and in the heat of passion Abdul Jabbar and Abdul Sattar swung into action each striking with dao on the head of Surman Ali. So, on evidence, it is reasonably doubtful whether intention was present. Applying the rule laid down in AIR 1938 Sind 63 and AIR 1954 SC 652 (both supra), we are of the view that the two appellants, Abdul Jabbar and Abdul Sattar, did not have pre-intention and it happened in the heat of passion upon a sudden quarrel and therefore they are entitled to get benefit of the reasonable doubt that their act amounted to murder. They could not, therefore, be convicted under Section 302 IPC and could be convicted only under section 304 Part II IPC. Accordingly, we alter their conviction under section 302 IPC to one under section 304 Part II IPC and reduce the sentence to RI for 6 (six) years. They shall continue to be in jail to serve this reduced sentence. 10. After the sentence of the said four appellants under section 147/149/ 302 IPC is set aside, their conviction under section 323/324 IPC remained. But since the judgment was passed on 20.5.93, they have by now already served out that sentence. It is not, therefore, necessary to examine the case of their conviction under section 323/324 IPC. So, the four appellants (Rustom Ali, Makmad Ali, Fachan Ali and Maklis Ali) shall now be released from the jail.