JUDGMENT I.A. Ansari, J. 1. This appeal is directed against the judgment and order, dated 30.05.2002 passed by the learned Ad-hoc Addl. Sessions Judge, Nagaon in Sessions Case No. 45(N)/94, convicting the accused-Appellants, namely, Md. Abdul Karim Chagla, Abdul Subhan, Sunder Ali, Ajijal Hoque, Hussen Ali, Iman Ali, Aman Ali, Moslemuddin, Abdul Hasen and Amin Ali @ Amiruddin under Section 302 read with Section 34 of the IPC and sentencing each of them to suffer imprisonment for life and pay a fine of Rs. 5000/- and, in default of payment of fine, suffer rigorous imprisonment for a further period of one year. The accused Appellant No. 2 Abdul Sobhan has been further convicted under Section 324IPC, but no separate sentence for the offence, so committed, was passed against him. 2. The case against the accused-Appellants, as unfolded at the trial, may in brief be stated as follows: The accused-Appellant No. 1, namely, Abdul Karim Chagla, has a land adjoining the boundary of Saheb Ali (P.W. 1). The accused-Appellant No. 1, namely, Abdul Karim Chagla, along with his younger brother, accused-Appellant No. 2 namely, Abdul Sobhan, reaped away, on 09.12.1992, the paddy grown by Saheb Ali on his said land. On being informed of the same, Saheb Ali visited his said land and, on finding that his paddy had been reaped and taken away by the two accused-Appellants aforementioned, when Saheb Ali was talking to Abdul Hussain regarding cutting away of his paddy by the said two accused-Appellants, the accused-Appellant No. 2 arrived there along with other accused-Appellants, abused Saheb Ali, and even tried to hit Saheb Ali with lathi, but Saheb Ali saved himself by running away from the scene. On the following day, i.e. on 10.12.1992, at about 7 a.m. when Saheb Ali's elder brother, Amiruddin (since deceased) was returning home from the nearby mosque, the accused-Appellants, armed with lethal weapons such as, spear, dao, iron rod, dagger, etc. attacked Amiruddin near a bamboo grove, located at a close distance from a 'tinali' (i.e., tri junction), situated near the house of Amiruddin, and on witnessing the same, when Amiruddin's brothers Saheb Ali and Abdul Rashid, Amiruddin's nephew, Anwar Hussain, and some others went forward to save Amiruddin, the accused-Appellants attacked them also and caused injuries on the persons of Amiruddin, Abdul Rashid and Anwar Hussain. On hearing the hullah raised at the place of occurrence, when the co-villagers of Amiruddin and others arrived at the place of occurrence, the accused-Appellants fled away. Amiruddin and Anwar Hussain, being seriously injured, were first brought to Batardeva Police Station and they were shifted from there to the Civil Hospital, Nagaon. Abdul Rashid aforementioned, then, lodged a written Ejahar (Ext. 1) at the said police station and treating the same as FIR, a case was registered there against the present accused-Appellants except accused Amir @ Amiruddin, whose name had not appeared in the said Ejahar, under Section 147/148/447/324/325/149 IPC. As Amiruddin, later on, succumbed to his injuries Section 302 IPC was added to the case so registered. During investigation police visited the place of occurrence, drew sketch map (Ext. 4) of the place of occurrence and held inquest over the said dead body. The injured were also medically examined. On completion of the investigation, police laid charge-sheet against the present accused Appellants under Sections 147/148/447/324/325/149 IPC. 3. During trial, the accused-Appellants pleaded not guilty to the charges framed against them under Sections 302/324/323 read with Section 34 IPC. In all prosecution examined 9 (nine) witnesses in support of their case. The accused Appellants were, then, examined under Section 313 Code of Criminal Procedure and in there examinations aforementioned, they denied to have committed the offences alleged to have been committed by them, the case of the defence being, in brief, thus: On 10.12.1992 about 7 a.m., when the accused-Appellant No. 1, namely, Abdul Karim Chagla was returning home from the house of Nurul Amin, a head master, he was informed that some occurrence had taken place near his house. When the accused Appellant No. 1 came near his house, he found his brother, accused Appellant No. 2, namely, Abdul Subhan, lying injured at his courtyard and was told that Abdul Sobhan had been picked up from near the bamboo grove, located near their house. As the accused Appellant No. 1 was proceeding towards the police station to lodge an Ejahar, he was way laid and assaulted by Saheb Ali (P.W. 1) Abdul Matleb, Jakir Hussain and others, but he was saved by the people, who were reaping paddy at the nearby paddy fields. The accused-Appellant No. 1, then reached the police station and lodged there a written Ejhahar, which gave rise to a cross-case. The accused-Appellant No. 1, then reached the police station and lodged there a written Ejhahar, which gave rise to a cross-case. So far as the accused Appellant No. 1, Abdul Karim Chagla. In concerned, he was not present, when the fight between Amiruddin (since deceased) and the accused-Appellant, Sobhan Ali, took place. In fact, Amiruddin (since deceased) accompanied by his brother, Saheb Ali and others, had attacked Abdul Sobhan and in the confusion, Amiruddin had died as a result of the assaults sustained by him at the hands of the members of his own group of people, who had come to attack the accused-Appellant, Abdul Sobhan. The defence also adduced evidence by examining as many as five witnesses. 4. On conclusion of the trial, the learned trial Court, on finding the accused Appellants guilty of the offences charged with, convicted them accordingly and passed sentence against them as hereinabove mentioned. Hence, the present appeal. 5. We have heard Mr. J.M. Choudhury, learned senior Counsel, assisted by Mr. N.P. Das, learned Counsel, appearing for the accused-Appellants, and, Mr. F.H. Laskar learned Additional Public Prosecutor, Assam. 6. Let us, first, take not of the medical evidence on record. According to the evidence of P.W. 6 (Dr. Mahim Ch. Bhuyan), who performed the postmortem examination over the dead body of Amiruddin, on 11.12.92 at 2.30 p.m. he found as follows: An average built male body. Rigor mortis present. There were stitched wounds on the scalp of size about 3 inches long. Oedeama (sic) on eye-lids on both sides. Another punctured wound on the right supraclavicular fosse. The right sub-clarion and carotid vessels were punctured. Old blood clot present on the site and in right lung-apex region. There were as many as eight stitches on the scalp region starting from the middle part of the occipital area to the right temporal region. On opening of the scalp, linear fracture was seen on the right temporal bone, which was about 5 inches long. One opening the skull, bone-clotted blood was found on the right side of the brain with congestion and haemorrhage under the meninges and pressing the brain matter. Pleurae and lung congested and old clotted blood found inside the thoracic cavity. The heart and its chambers were empty. Mouth, Pharynx, oesophagus-congested. Stomach and gill tracts empty, liver, spleen pale, Kidney congested and urine bladder was empty. 7. Pleurae and lung congested and old clotted blood found inside the thoracic cavity. The heart and its chambers were empty. Mouth, Pharynx, oesophagus-congested. Stomach and gill tracts empty, liver, spleen pale, Kidney congested and urine bladder was empty. 7. According to P.W. 6, the injuries described hereinabove were ante mortem in nature. In the opinion of the doctor (P.W. 6), the death was caused due to shock following the haemorrhage and the injuries on the vital organs (brains and sub clarion vessels). It was also opined by P.W. 6 that the injuries sustained by the deceased, individually or collectively, were sufficient to cause death. 8. The findings of Dr. Mahim Ch. Bhuyan (P.W. 6) and his opinion with regard to the nature of the injuries sustained by the said deceased and/or his opinion with regard to the cause of death of the said deceased were not disputed by the defence at the trial nor are the same in dispute before us in this appeal. This apart, we do not notice anything inherently improbable or incorrect in the findings, so reached by P.W. 6, and the opinion expressed by him with regard to the nature of the injuries sustained by the said deceased and/or the cause of his death. 9. Coupled with the above, the undisputed oral evidence given by Saheb Ali (P.W. 1), Abdul Rashid (P.W. 2), Abdul Khaleque (P.W. 3), Rausanara Aktara Begum (P.W. 4) and Anwar Hussain (P.W. 5) disclosed that Amiruddin sustained injuries on his person and he was, in injured condition, brought to the hospital, where he sucumbed to his injuries. 10. Thus, the medical as well as oral evidence on record clearly reveal that Amiruddin died due to shock and haemorrhage resulting from the injuries found on his dead body by P.W. 6. 11. Coupled with the above, P.W. 7 (Dr. Kamal Ch. Laskar), who had examined Abdul Rashid (P.W. 2), on 10.12.1992, found the following injuries: One lacerated injury belonged shaped of size 2"×1/8"×1/8" Simple injury, fresh caused by blunt weapon. 12. It is also in the evidence of P.W. 7 that on the same day, i.e. on 10.12.1992 he had examined Md. Anowar Hussain (P.W. 5) too and found as follows: Numbers of piercing wound on the anterior lateral aspect of the upper arm of the dimension of size 1/2"×1/4" in depth. The injuries were grievous in nature and fresh. 13. It is also in the evidence of P.W. 7 that on the same day, i.e. on 10.12.1992 he had examined Md. Anowar Hussain (P.W. 5) too and found as follows: Numbers of piercing wound on the anterior lateral aspect of the upper arm of the dimension of size 1/2"×1/4" in depth. The injuries were grievous in nature and fresh. 13. So far as P.W. 8 (Dr. Indra Mohan Bora), who, too, had examined Anowar Hussain (P.W. 5), is concerned his findings were as follows: 1) Stitched up injury over the anterior lateral aspect of mid-part of left arm 5 in number about 1/2" each in length. 14. It is in the evidence of P.W. 8 that the patient was admitted at civil hospital Nagaon, on 10.12.92 and was discharged on 19.12.92 X-ray of the left arm bone was done (X-ray) plate No. 7605 on 11.12.92) and the report was normal study. 15. It is also in the evidence of P.W. 8 that the age of the injury and type all weapon could not be ascertained as the injuries were already stitched up. 16. Neither the findings of P.W. 6 nor of P.W. 7 were challenged by the defence. This apart, we notice nothing in the findings of P.W. 6 and/or P.W. 9 and/or in the materials on record, which could be taken to have belied the medical evidence on record. 17. Situated thus, we are firmly of the view that P.W. 2 and P.W. 5 had sustained the injuries as described hereinabove by P.W. 7 and P.W. 8. 18. Bearing in mind what we have indicated above, when we turn to the evidence of Abdul Rashid (P.W. 2), younger brother of the said deceased, who too was allegedly injured in the same occurrence and who is also the informant of this case we notice that this witness has deposed that there is a 'tinali' (i.e. tri-junction) near the house of his brother, Saheb Ali (P.W. 1) and a bamboo grove is located near the said 'tinali'. As regards the occurrence, P.W. 2 has deposed that in the month of December, 1992 one day at about 7 a.m., P.W. 2 came to the house of P.W. 1 to take a bi-cycle P.W. 1, who was present at his courtyard, drew the attention of P.W. 2 towards the said 'tinali' (i.e., tri-junction) and P.W. 2 noticed accused Karim Chagla Hussain and Amiruddin at a shop, situated near the 'tinali' (i.e., tri-junction), and also accused Sunder Ali and Subhan standing under the said bamboo grove and P.W. 2's elder brother, Amiruddin (since deceased), coming by the road from the eastern direction after offering his prayer at the mosque. P.W. 2 has also deposed that as soon as his brother, Amiruddin, reached near the place, where accused Sobhan and Sunder were standing, accused Subhan and Sunder attached Amiruddin, accused Sunder having dealt a blow on Amiruddin's head with an iron rod and accused Subhan having hacked Amiruddin on his head with a dao. P.W. 2 has further deposed that he (P.W. 2) along with Sahib Ali (P.W. 1) and his wife Roshanara (P.W. 4), raised 'hullah' and rushed towards the place of occurrence and when Amiruddin, on being so assaulted, attempted to run towards them (i.e. P.W. 2, P.W. 1 and P.W. 4) Amiruddin was obstructed by accused Amir and Hasen and at that point of time, accused Karim Chagla told the other accused persons, "Catch him and do not spare him," whereupon accused Azizul dealt a blow on the back of Amiruddin with an iron rod, accused Hasen inflicted a blow on the neck of Amiruddin with an iron spear and Amiruddin fell down on the ground. It is in the evidence of P.W. 2 that accused Azizul, Hasen and Amir chased them, i.e., P.Ws. 2, 1 and 4, accused Aman attempted to assault Saheb Ali (P.W. 1), but the blow did not fall on Saheb Ali as Saheb Ali warded off the blow with a piece of bamboo. It is in the evidence of P.W. 2 that accused Azizul, Hasen and Amir chased them, i.e., P.Ws. 2, 1 and 4, accused Aman attempted to assault Saheb Ali (P.W. 1), but the blow did not fall on Saheb Ali as Saheb Ali warded off the blow with a piece of bamboo. It is also in the evidence of P.W. 2 that accused Sunder Ali gave a blow on his (P.W. 2's) left leg with an iron rod and when Anwar (P.W. 5.), son of Saheb Ali (P.W. 1), came rushing from his house towards the place of occurrence, accused Sobhan assaulted Anwar with a pocha (a spear-like weapon), which stuck to Anwar's arm and the same had to be, eventually, removed by a doctor. From the evidence of P.W. 2, it also transpires that it was only when they raised 'hullah' and people from neighbhour-hood came that the accused persons fled away. It also transpires from the evidence of this witness that Amiruddin was taken to the courtyard of Saheb Ali (P.W. 1) and from there, Amiruddin and Anwar, both of whom had been seriously injured, were, final taken to the police station and the police, then, sent the said injured persons to Nagaon Civil hospital for treatment. It is in the evidence of P.W. 2 that he lodged an Ejahar with the police, which was written by one Abdul Barik. It is also in the evidence of P.W. 2 that Amiruddin succumbed to his injuries on the following day at the hospital. 19. Close on the heels of the above evidence of P.W. 2, his elder brother, Saheb Ali (P.W. 1) has deposed that on 09.12.1992, accused Karim Chagla and Subhan had illegally cut and removed away paddy from about half-a-katha of his land and he (P.W. 1), having learnt about the same from Nurul Islam, went there and found the mark of cutting away of paddy fix)m his paddy field and, on his way from the paddy field, when he (P.W. 1) entered into the house of Abdul Hussain, accused Sobhan came there and started rebuking him (P.W. 1) and pulled his (P.W. 1's) hair. This witness has also deposed that accused Subhan attempted to assault him, but he fled away from there and on the next day i.e., on 10.12.1992, at about 7 a.m. when he was standing at his courtyard, he saw accused Karim Chagla, Hasen and Amir engaged in talking at a pan shop, situated near the 'tinali', and accused Subhan and Sunder standing behind a bamboo grove, located near the said shop P.W. 1 has further deposed that at that time, his brother, Abdul Rashid (P.W. 2), came to his house and asked him to give his bicycle and, in the meanwhile, he (P.W. 1) saw his elder brother, Amiruddin, coming from the mosque and as soon as Amiruddin reached near the accused, accused Sunder Ali dealt a blow with an iron rod on his head and accused Sobhan gave a dao blow on Amiruddin's head, Amiruddin raised 'hulla' and ran towards the 'tinali', but accused Karim Chagla instigated other accused persons to kill Amiruddin and, then, accused Amir, Abdul Hasen and others surrounded Amiruddin, accused Azizul, Hussain, Iman, Aman, Muslim and others came, Azizul assaulted Amiruddin with an iron rod, Hasen inflicted a blow on the neck of Amiruddin with a spear and accused Sunder, Subhan, Aman, Muslim and Iman chased him (P.W. 1) and Rashid (P.W. 2) aiming to assault them too P.W. 1 has clarified in his evidence that accused Aman attempted to assault him (P.W. 1) with a dao, but as he (P.W. 1) moved back, the blow did not hit him, but accused Sunder Ali dealt a blow on the left leg of Rashid (P.W. 2) with an iron rod. P.W. 1 has further clarified that accused Muslim attempted to assault him (P.W. 1) with a spent but he warded off the blow with the help of a piece of bamboo. 20. It is in the evidence of P.W. 1 that in the meanwhile, his son, Anowar Hussain (P.W. 5) came out on hearing 'hulla' raised by them and accused Subhan, being armed with a pocha, inflicted a blow on the left arm of Anowar, the pocha got stud into the arm of Anowar and it was removed later on. It is also in the evidence of P.W. 1 that when some people, attracted by the hulla raised at the place of occurrence came to the place of occurrence, the accused persons ran away from there. It is also in the evidence of P.W. 1 that when some people, attracted by the hulla raised at the place of occurrence came to the place of occurrence, the accused persons ran away from there. It also transpires from the evidence of P.W. 1 that he saw injuries on the person of Amiruddin, he took Amiruddin to his house and from there, Amiruddin was taken to the police station and, then, to the hospital, but Amiruddin succumbed to his injuries on the next day at the hospital. 21. Turning to the evidence of Anwar Hussain (P.W. 5), who was, admittedly injured in the same occurrence in which Amiruddin had sustained injuries, we find that according to his evidence, on the day of occurrence, he was sleeping inside their house and at around 6/7 a.m., he, having heard 'hullah', came out of his gate and saw accused Hussain Ali, Sunder Ali, Iman Ali, Amiruddin, Hasen, Aman and Sobhan, armed with weapons like spear, pocha, etc., attempting to assault his father, i.e., Saheb Ali (P.W. 1), his father obstructed them with a piece of split bamboo and he (P.W. 5) also noticed Amiruddin lying injured on the road. It is in the evidence of P.W. 5 that he rushed towards Amiruddin, but accused Abdul Sobhan, taking a pocha from the hand of accused Iman, dealt a blow towards his chest and when he (P.W. 5), with a view to saving himself, moved away, the pocha hit his left arm. This witness showed the sign of injury to the Court during the trial. It is also in the evidence of P.W. 5 that the 'pocha' got stuck to his arm and the accused could not pull out the same, but in the meanwhile, a large number of people gathered there and the accused persons fled away. P.W. 5 has deposed that the persons, who had gathered there, tried to bum the handle of the said pocha, but as they failed, they had to cut it and a compounder, Dina Bhuyan of Batardeva hospital, eventually removed the pocha from his arm and, thereafter, he was taken to the police station, wherefrom he (P.W. 5) and Amiruddin were taken to civil hospital, but Amiruddin died on the next day at about 7 a.m. P.W. 5 has also deposed that he (P.W. 5) remained at the hospital for about 10 days for his treatment. P.W. 4 has clarified in his evidence that he saw bleeding injuries on the head and neck of Amiruddin and saw injuries on his back caused by an iron rod. 22. Lending support to the evidence of P.W. 1, P.W. 2, P.W. 4 and P.W. 5, P.W. 3 (Abdul Khalek) has deposed that on the day of occurrence at about 8 a.m., he went to the paddy field for reaping paddy and on his way, he saw accused Sobhan and Sunder standing at the 'tinali', located near the house of Saheb Ali (P.W. 1) and Amiruddin (since deceased) coming, on the road, from eastern direction towards the 'tinali' and as soon as Amiruddin reached near the place, where accused Sobhan and Sunder were standing and asked them as to why the quarrel had taken place on the previous day, accused Sobhan dealt a dao blow on Amriuddin's head and accused Sunder dealt a blow on the back of Amiruddin with an iron rod and, on being so assaulted, when Amiruddin attempted to run away towards the house of Sahib Ali (P.W. 1), accused Karim Chagla, who was standing along with Amiruddin and Hasen, a little away from the 'tinali', came near Amiruddin and told the other accused persons to kill Amiruddin and, then, accused Iman, Aman, Muslimuddin and Hussain came out from the bamboo grove, located near the 'tinali, accused Aman inflicted a blow on the neck of Amiruddin with a spear, Sahib Ali (P.W. 1) and Abdul Rashid (P.W. 2), who had rushed to the place of occurrence, raised 'hulla', but the accused persons, armed with dao, spear, etc, chased them too, Sahib Ali (P.W. 1) warded off the assault on him with a piece of split bamboo and, in the meanwhile, Anowar Husain (P.W. 5), who is son of Saheb Ali, came running them but accused Subhan inflicted a blow with a 'pocha' and caused injury on Anwars arm and accused Azizul gave blow with an iron rod on the leg of Rashid (P.W. 2). It is in the evidence of P.W. 3 that Amiruddin and Anowar were taken to the house of Sahib Ali and then, they were shifted to hospital by a push cart (thela), but Amiruddin died on the next day. This witness has clarified, during his cross examination, that the courtyard of Saheb Ali is located near the road. 23. It is in the evidence of P.W. 3 that Amiruddin and Anowar were taken to the house of Sahib Ali and then, they were shifted to hospital by a push cart (thela), but Amiruddin died on the next day. This witness has clarified, during his cross examination, that the courtyard of Saheb Ali is located near the road. 23. Broadly in tune with the evidence of P.W. 1, P.W. 2 and P.W. 3, P.W. 4 (Roshanara Begum) wife of Saheb Ali (P.W. 1), has deposed that on the day of occurrence at about 7.30 a.m. she came out the her courtyard to feed their cattle and saw accused Sobhan and Sunder standing under a bamboo grove, located near the Tinali Amiruddin (i.e. elder brother of her husband) coming from the eastern side, but as soon as Amiruddin reached near accused Subhan and Sunder, accused Sunder dealt a blow on the head of Amiruddin with an iron rod and accused Subhan dealt a dao blow on Amiruddin's head, Amiruddin tried to run away from there and, at that point of time, accused Amir and Hasen, on the direction of accused Karim Chagla restrained Amiruddin from leaving the place and accused Azizul dealt a blow on the back of Amiruddin with an iron rod, accused Hussain inflicted a blow on Amiruddin neck with a spear and, on witnessing the same, when her husband (i.e., P.W. 1) and Rashid (P.W. 2), who were talking at the courtyard of P.W. 1, rushed towards the place of occurrence, accused Sunder Ali assaulted Rashid with an iron rod and caused injury on his leg and accused Iman, Aman, Azizul and Hasen chased her husband (P.W. 1) to assault him, but her husband, somehow, managed to save himself. P.W. 1 has also deposed that she raised 'hulla' and, then, her son, Anowar (P.W. 5) came out and as soon as he reached near the road, accused Subhan dealt a blow with a pocha on the chest of her son, Anowar, and as Anowar warded off the blow with his left hand, the 'pocha' stuck to his left arm and, then, the accused persons fled away from there, P.W. 4 has clarified, in her evidence, that the pocha was removed from the hand of Anowar later on. P.W. 4 has further deposed that injured Amiruddin and Anowar were taken to Nagaon Civil hospital, but Amiruddin died on the next day at about 8.30 a.m. 24. We have carefully scrutinized the cross-examination of P.W. 1, P.W. 2, P.W. 3, P.W. 4 and P.W. 5 at the hands of the defence, but we notice nothing material in there cross-examination, which could impeach the core of the prosecution's case I am from this, the ocular evidence of the prosecution witnesses, consistent with the medical evidence on record, discloses that Amiruddin had sustained injuries on his head, near his carolid region, i.e. near the neck and also at the clavicular area it clearly surfaces from the evidence on record that the occurrence of assault on Amiruddin took place following the alleged taking away of the paddy by the accused-Appellant Nos. 1 and 2, namely, Abdul Karim and Subhan respectively from the paddy field of P.W. 1 (Saheb Ali). 25. It was attempted to be raised before us that the prosecution had changed the place of occurrence inasmuch as the FIR states that the place of occurrence is the courtyard of P.W. 1 (Saheb Ali), but the evidence on record, discloses that the occurrence took place near the 'tinali' (i.e. tri-junction). While considering the aspect of the matter, it is of utmost importance to note that it has surfaced unscathed from the evidence on record that the 'tinali' (i.e. tri-junction) is situated near the house of P.W. 1 (Saheb Ali) and that the bamboo grove, where the occurrence took place, is located near the said 'tinali' (i.e., tri-junction). Thus, there is ample evidence on record to show that the occurrence took place close to the courtyard of the house of P.W. 1. Viewed from this angle, we do not find that the evidence given by P.Ws. 1, 2, 3, 4 and 5 can be discarded on the ground that the place of occurrence has not been convincingly proved by the prosecution. Viewed from this angle, we do not find that the evidence given by P.Ws. 1, 2, 3, 4 and 5 can be discarded on the ground that the place of occurrence has not been convincingly proved by the prosecution. Moreover, the accused-Appellant, Abdul Subhan, who had allegedly reaped away paddy from the land of P.W. 1, asserted, in his examination under Section 314 Code of Criminal Procedure, that he and his elder brother, Karim Chagla, had reaped away paddy from their own land, Implicit in this assertion is an admission of the fact that some controversy did arise between the accused-Appellants, on the one hand, and the family of Saheb Ali (P.W. 1), on the other, with regard to the alleged reaping away of paddy. 26. It has emerged from the evidence on record that Amiruddin (since deceased) came near the bamboo grove on his way home from the mosque, where the accused-Appellant, Abdul Subhan, was standing with accused- Appellant, Sundar and Amiruddin enquired from them regarding the incident of the previous day in which the accused Appellant, Subhan, accompanied by his brother, accused Appellant Abdul Karim Chagla, had reaped and taken away paddy from the land of P.W. 1. It has also emerged from the evidence on record that it was following this query that Amiruddin was assaulted by the accused Appellants, the assault having commenced at the hands of the accused-Appellant, Sundar and Subhan, accused Appellant Sundar having dealt an iron blow on the back of Amiruddin and accused Appellant, Subhan, having given a blow with dao on Amiruddin's head. In this regard, the accused Appellant, Abdul Subhan, while under examination under Section 313 Code of Criminal Procedure, stated to the effect that they (i.e., the accused Sunder and Subhan) had told Amiruddin that they were not award of the previous day fight and they had also told him that what had happened on the previous day had already happened and there was nothing more to say. Embedded in this assertion is an admission by accuseed Abdul Subhan of the fact that the accused Appellants, Sundar, and the accused Appellant, Abdul Subhan, were, indeed, standing near the bamboo grove and Amiruddin (since deceased) did happen to pass from there on his way from mosque towards his house, and made a query from these two accused Appellants about the previous day's incident. It also clearly emerges from the evidence on record that it was following the query so made by Amiruddin from these two accused Appellants as regards the incident of the previous day that the assaults on Amiruddin, at the hands of accused-Appellant Sundar and Subhan had commenced. 27. Coupled with the above, it is not only the case of the defence that the accused Appellant, Abdul Subhan, was assaulted by a dao by Amiruddin and sustained injuries, but it is also the case of the defence that when the accused Appellant, Abdul Subhan, and Amiruddin (since deceased) were scuffling with each other and Amiruddin was trying to further injure the accused-Appellant, Subhan, with dao and the accused-Appellant, Subhan, was trying to snatch away the dao, P.W. 1 (Saheb Ali) and others arrived near the bamboo grove and it was the spear, which was thrown by P.W. 1 (Saheb Ali) to injure Subhan, which, incidentally, missed Subhan and fell on Amiruddin's neck leading to Amiruddin's death. In his statement under Section 313 Code of Criminal Procedure too, the accused-Appellant, Subhan, has projected the same version of the occurrence, but there is absolutely no medical evidence on record lending even scant support to the claim of the defence that accused Abdul Subhan stood injured at the hands of Amiruddin nor have the defence explained as to how Amiruddin sustained injuries on his head and other parts of his body. So in as the assault on Amiruddin with a blunt weapon like iron rod is concerned, it is possible that the injuries caused by blunt weapon on flashy areas like the blad were not observed at the time of conducting the post mortem examination and it is not, therefore, mentioned by the doctor (P.W. 6), who conducted the post mortem examination. Thus, the version of the occurrence projected by Abdul Subhan is not only belied by the eye witness's account of the occurrence, but also by the medical evidence on record. It is also worth noticing, in this regard, that the defence has not been able to explain even the injuries found on the persons of Rashid Ali (P.W. 2) and Anowar (P.W. 5); whereas the evidence given by the prosecution witnesses convincingly show how the injuries to these two parsons too were caused. 28. It is also worth noticing, in this regard, that the defence has not been able to explain even the injuries found on the persons of Rashid Ali (P.W. 2) and Anowar (P.W. 5); whereas the evidence given by the prosecution witnesses convincingly show how the injuries to these two parsons too were caused. 28. Moreover, the consistent oral evidence on record is to the effect that P.W. 5, (Anowar), who was sleeping in his house, came running to the place of occurrence on hearing hullah, accused-Appellant, Abdul Subhan, taking a pocha from the hand of accused-Appellant, Iman Ali, death a blow towards Anowar's chest, but as Anowar in order to save himself, moved away, the pocha hit his left arm. The witness (P.W. 5) showed the sign of injury on his arm to the Court during the trial. The evidence, so given by P.W. 5 and other witnesses, in this regard, is supported by the evidence of P.W. 7, who examined, on the very day of the occurrence, at about 10.30 a.m., P.W. 5 and found 7 numbers of piercing wounds on the anterior lateral aspect of left upon arm of the dimension of size ½"×¼" in depth. The fact that an injury, such as the one, which was found by P.W. 7 on the person of P.W. 5, could have been caused by a weapon like pocha is not in dispute before us. The evidence, which so surfaced on record, could not be dislodged by the defence by cross-examining P.W. 7 and/or P.W. 5 and/or any other prosecution witnesses. Far from this, the evidence of P.W. 8 (Dr Indra Mohan Bora), who, had examined P.W. 5 on 10.12.1992 itself at about 11th a.m., found stitched up injury over the anterior lateral aspect of mid-part of left arm in number about 1/2" each in length. That apart, the evidence of P.W. 8 shows that P.W. 5 was admitted at civil hospital, Nagaon, on 10.12.92 and was discharged from there on 19.12.92. 29. That the evidence of P.W. 8 proves the injury caused by a weapon like pocha on the arm of Anowar is, in fact, not in dispute. The version of the occurrence projected by the defence, in general, and the accused-Appellant Subhan, in particular, dos not, thus, explain the injuries found on the persons of P.W. 2 (Abdul Rashid) and P.W. 5 (Anowar). The version of the occurrence projected by the defence, in general, and the accused-Appellant Subhan, in particular, dos not, thus, explain the injuries found on the persons of P.W. 2 (Abdul Rashid) and P.W. 5 (Anowar). These are the circumstances, which support the version of the prosecution that it was Amiruddin, who was the victim of assault and not the accused-Appellant, Subhan, and when P.Ws. 2 and 5 came rushing to the place of occurrence to save Amiruddin, they too were not spared and were, indeed assaulted. 30. It is, no doubt, true that there are some discrepancies in the evidence given by prosecution witnesses describing the exact role played by each of the accused Appellants. However, one cannot really ignore that such discrepancies may arise not only from the tendency to exaggerate, but also from the variation in the power of observation of the persons concerned, the power to retain graphically the memory of the entire occurrence in its proper sequence and the possibility of each of the witnesses having not noticed each and every act in the same manner and to the same extent as the other one did. Viewed from this angle, the prosecution has succeeded, we find, in convincingly proving the presence of the accused-Appellants at the scene of occurrence and that too with the common intention to assault Amiruddin and kill him and they were not prepared to accept that any one should intervene in the matter and it was for this determined reason that when P.W. 1 (Saheb Mi), P.W. 2 (Abdul Rashid) and P.W. 5. (Anwar Hussain) came running to the place of occurrence, Saheb Ali (P.W. 1) was attempted to be assaulted, but he escaped Abdul Rashid (P.W. 2) sustained minor injury, while saving himself from the attack and Anwar (P.W. 5) sustained serious injury on his arm. 31. The only major discrepancy, which emerged at the trial is that the mentions the name of one Md. Muslim, son of Late Ismat Ali, but at the trial, the name of Muslim did not figure from the evidence on record; rather, it is accused Abdul Hasen, son of Ismat Ali, who surfaces as one of the assailants involved in the occurrence. Muslim, son of Late Ismat Ali, but at the trial, the name of Muslim did not figure from the evidence on record; rather, it is accused Abdul Hasen, son of Ismat Ali, who surfaces as one of the assailants involved in the occurrence. The role of accused Abdul Hasen and accused Amiruddin, whose names did not appear in the FIR, is that when Amiruddin, on being attacked by the accused-Appellants, Sundar and Subhan (Sundar having dealt a blow with iron rod on Amiruddin's occipital region and Subhan having hacked Amiruddin on his head) tried to run away and Karim Chagla asked the other accused persons to catch Amiruddin and kill him, accused Amiruddin and accused Abdul Hasen (son of Ismat Ali) restrained, at that stage, Amiruddin from running away and it was, then, that Amiruddin was given a blow on his neck with a spear. It is the consistent evidence of P.W. 1 (Saheb Ali), P.W. 2 (Abdul Rashid) and Roshanara (P.W. 4) that the spear blow on Amiruddin's neck was given by accused-Appellant, Hasen. The defence has, in this regard, pointed out that though P.W. 2 (Abdul Rashid), has, now, claimed that Abdul Hussain had given a blow with a spear on Amiruddin's neck, he had made no such statement before the police. This omission cannot, in our firm view demolish the entire evidence of P.W. 2 and/or the evidence existing on record as regards the assault of Amiruddin at the hands of accused-Appellants. Though the evidence of P.Ws. 1, 2 and 4 is that it is the accused-Appellant, Abdul Hussain, who had given blow with a spear on Amiruddin's neck. P.W. 3 has named the accused Appellant, Hasen, as the person, who had dealt the said blow on Amiruddin's neck. In tension-ridden and exciting moments, when an occurrence of the kind, as depicted by the prosecution witnesses, took place, it is quite natural for the witnesses to be not able to recall the events chronologically and with mathematical accuracy. The occurrence, admittedly, took place in the year 1992 and the evidence was recorded in the year 1997. After lapse of 5 years, it is possible for P.W. 3 to commit such an error and this error cannot make any Court throw away, in the absence of any other compelling materials on record, the case of the prosecution. 32. The occurrence, admittedly, took place in the year 1992 and the evidence was recorded in the year 1997. After lapse of 5 years, it is possible for P.W. 3 to commit such an error and this error cannot make any Court throw away, in the absence of any other compelling materials on record, the case of the prosecution. 32. We may also point out that though it is true that the FIR does not disclose the name of Amin alias Amiruddin as an accused, the fact remains that the FIR, while clearly specifying the names of 8 persons as assailants, also mentions therein, in no uncertain words, that some others had also accompanied the accused assailants. This apart, the informant, i.e., P.W. 2, when examined by the defence, was not asked anything about his omission to mention, in the FIR, the name of the accused Appellant Amin @ Amin Ali @ Amiruddin as one of the assailants. In the face of these facts and other materials on record, we find no justification in holding that the evidence given by the prosecution witnesses naming Amin Ali as one of the assailants is false. 33. Turning to the case of the defence, it needs to be noted, if we may reiterate that we have already pointed out above that the version of the occurrence projected by the defence is that deceased Amiruddin was the one, who had assaulted the accused-Appellant, Subhan, which, in turn, led to the injuries on the person of Amiruddin himself causing his death. That apart, two of the accused-Appellants namely, Karim Chagla and Sunder Ali, have taken the plea of alibi. 34. In his statement under Section 313 Code of Criminal Procedure, the accused-Appellant, Sundar Ali, claims that he was a Gram Sevak, he was, at the relevant time, posted at Udali Development Block and on the day of the occurrence, he had attended his duty at Udali. In support of this plea, the accused-Appellant, Sundar Ali, examined D.W. 2 (Habibur Rahman), Senior BDO of Udali Development Block. Let us, now, consider the evidence of D.W. 2. According to this witness, he knew accused Sunder Ali an accused Sunder Ali used to work under him (D.W. 2) as a Gram Sevak. In support of this plea, the accused-Appellant, Sundar Ali, examined D.W. 2 (Habibur Rahman), Senior BDO of Udali Development Block. Let us, now, consider the evidence of D.W. 2. According to this witness, he knew accused Sunder Ali an accused Sunder Ali used to work under him (D.W. 2) as a Gram Sevak. This witness has also deposed that a Gram Sevak works in the field as well as attends office and when they work in the office, they put their signatures in attendance register. D.W. 2 has proved the attendance register of 1992 as Ext. Kha, which shows that accused Sunder Ali was present in the office on 10.12.1992 (i.e., the day of occurrence) from 10 a.m. to 10.30 a.m. 35. In his cross-examination, however, D.W. 2 admitted that he had himself not put his signature, as presiding officer, in the said attendance register on the 9th and 10th of December, 1992 (i.e. the date of occurrence). D.W. 2 has also admitted, during the cross-examination, that Sunder Ali did not put his signature in the column of departure in Ext. Kha on those dates. D.W. 2 has further admitted that he did not know as to when accused Sundar had actually put his signature on Ex. Kha and/or as to where accused Sundar used to reside at the relevant time. 36. Thus, merely because of the fact that the signature of the accused-Appellant Sundar, exists in the said attendance register showing his presence at the office, at Udali, from 10 a.m. to 10.30 a.m. on 10.12.1992, the case of the prosecution cannot be demolished, for the attendance register has been, as indicated hereinabove, not been maintained in accordance with the requirements inasmuch as neither D.W. 2 had signed the attendance register nor did the accused-Appellant, Sundar, recorded his time of departure. It is also not in the evidence of D.W. 2 that the accused Appellant, Sundar, used to reside at Udali at the relevant time and/or that it was not possible for accused Sundar to have reached Udali after the occurrence and put his signature on the attendance register there. It is also not in the evidence of D.W. 2 that the accused Appellant, Sundar, used to reside at Udali at the relevant time and/or that it was not possible for accused Sundar to have reached Udali after the occurrence and put his signature on the attendance register there. This apart, there is not even an iota of evidence on record to show that the distance and/or communication between the place of occurrence and the office of the accused-Appellant, Sundar, was such that it would not have been possible for this accused-Appellant to be present at the place of occurrence at about 7 am. to 7-30 a.m. and yet attain office at 10 a.m. That the evidence adduced, in this regard, by the accused-Appellant, Sundar, can be given no credence at all is also clear from the fact that it was not asserted, on behalf of the accused-Appellant, Sundar, while cross-examining the prosecution witnesses that this accused was not present at the place of occurrence and/or that there was no means of communication between the place of occurrence and Udali. Thus, the plea of alibi taken by the accused-Appellant, Sundar, cannot be said to have been satisfactorily established and this plea cannot be given credence at all in the face of clear and unimpeachable evidence on record that the accused-Appellant, Sundar was one of the persons, who had initiated the assaults on Amiruddin by giving him a blow with an iron rod on his back from behind. 37. When we turn to the plea of alibi taken by the accused Appellant, Karim Chagla, we notice that in support of his plea, he has not only examined himself as D.W. 1, but has also adduced evidence of D.W. 3 (Nurul Amin). 38. The accused Appellant, namely, Karim Chagla (D.W. 1) has deposed that the other accused persons are his relatives and that on 10.12.1992, the incident took place, wherein Amiruddin sustained injuries and he succumbed to his injuries on the next day at the hospital D.W. 1 has also deposed that on the day of occurrence, at about 7 a.m., he (D.W. 1) along with his wife went to the house of Nurul Amin, Head Master (i.e.1 D.W. 3) to see Nurul's ailing wife, wherefrom he came alone and entered into the shop of Ataur and found Amazat inside the shop. D.W. 1 has further deposed that at that time. D.W. 1 has further deposed that at that time. Yunus and Siddique were talking to each other near the shop and Yunus told him that he had heard 'hallah' from the direction of his house and asked D.W. 1 to enquire about it. It is in the evidence of D.W. 1 that when he was proceeding towards his house on the bi-cycle of Yunus, he learnt on his way, from Riazat that a quarrel had taken place between Amiruddin find Sobhan and forbade him (D.W. 1) to go towards his (D.W. 4's) home. It is also in the evidence of D.W. 1 that Amiruddin and Jalal also prevented him from going there and, then, he (D.W. 1) went to his house by the side of the paddy field and, on reaching there, found his brother, Sobhan, with injuries on his person at his courtyard, blood was coming out of the injuries of Sobhan and some persons were present there. This witness has deposed that when he (D.W. 1) was proceeding to lodge an Ejahar with the police station, he was obstructed by Saheb Ali (P.W. 1), Motleb and Jakir Hussain, Motleb threw him from the bi-cycle and, then, a scuffle took place among them and he (D.W. 1) sustained injuries on his person and went to the hospital for treatment. This witness admitted during his cross-examination, that a quarrel had taken place between Saheb Ali (P.W. 1) and the accused-Appellant, Sobhan, on the previous day of the occurrence in respect of their land. 39. What is crucial to note is that D.W. 1 has admitted, during his cross examination, that a case was instituted on the basis of an Ejahar lodge by him and he proved the Ejahar as Ext. Ka. D.W. 1 has admitted that in this Ejahar, he stated that on the relevant day, he was proceeding towards Basic Training Centre Nagaon. This witness has further admitted, during his cross examination, that curfew was imposed on the day of occurrence and all institutes, hotels and training centers were closed. 40. From a care M reading of the evidence of D.W. 1, it transpires that the Ejahar lodged by him clearly states that when he was proceeding towards the Basic Training Center, Nagaon, for lodging the Ejahar, the assault on him had taken place. 40. From a care M reading of the evidence of D.W. 1, it transpires that the Ejahar lodged by him clearly states that when he was proceeding towards the Basic Training Center, Nagaon, for lodging the Ejahar, the assault on him had taken place. The statements so made by D.W. 1, in the Ejahar, belie the evidence, now given by D.W. 1 that he was assaulted by Saheb Ali (P.W. 1), Matleb and Zakir when he was going towards the Police Station to lodge the Ejahar. This apart since the admitted evidence of D.W. 1 is that on the day of occurrence, curfew was imposed and all institutions, hotels and training centres were closed, the question of D.W. 1 going to the Basic Training Centre and/or of accused-Appellant, Sundar (D.W. 1) attending his office at Udali, on the day of occurrence, did not arise at all. 41. Coming to the evidence of Nurul Amin (D.W. 3), we notice that D.W. 3 has deposed that accused Karim Chagla (D.W. 2) went to his (D.W. 3's) house on the relevant day to see his (D.W. 3's) ailing wife, where from D.W. 1 went to meet the head Master of Dhanibhati M.E. School, but he (D.W. 3) did not know where D.W. 1 had actually gone. D.W. 3 has also deposed that after about 5/7 minutes, he heard some 'hullah' from the southern direction of his house, he went there and found Abdul Sobhan, brother of accused, Karim, lying injured at his courtyard, but he did not see Karim Chagla there. Thus, the evidence of D.W. 3 belies the evidence of D.W. 1, who stated in his evidence, that he had gone home and found his brother, Sobhan, lying injured there. 42. It also logically follows from a combined reading of the evidence of D.W. 1, D.W. 2 and D.W. 3 that though in his Ejahar, he has stated that on the relevant day, he was proceeding towards Basic Training Centre, Nagaon, when the occurrence took place, this witness has, now, projected, at the trial, that he was at the house of D.W. 1 and it was while he (D.W. 1) was going to the police station that he had been assaulted. This apart, D.W. 1's own evidence is that curfew had been clamped at Nagaon of the day of occurrence and all institutions, hospitals and even training centres were closed. This apart, D.W. 1's own evidence is that curfew had been clamped at Nagaon of the day of occurrence and all institutions, hospitals and even training centres were closed. Hence, the question of this witness proceeding towards Basic. Training Centre on the day of occurrence and, then, assaults having taken place on him did not arise at all. Thus, the evidence given by D.W.l is nothing but a mixture of half-truth and half untruth and, hence, his evidence can be given no credence at all. Had D.Ws. 1 and 3 been truthful witnesses, then D.W. 3 ought to have found D.W. 1 of the courtyard, where Subhan was allegedly lying injured, but D.W. 1 was not seen there. 43. The defence has also examined Yunus Ali as D.W. 4. According to D.W. 4. on the day of occurrence, in the morning, when he was standing in front of the house of Hasen along with Siddique, he saw some persons running towards the house of Karim Chagla, who was, at that time, inside the shop of Amzat, he called Karim and reported to him about what he had heard and Karim (D.W. 1) proceeded towards his house by his (D.W. 4's) bi-cycle. D.W. 4 claims that he and Siddique also went there and found Amiruddin lying injured at 'tinali', located near the house of P.W. 1 (Saheb Ali) and also found Sobhan lying under a bamboo grove. Thus, D.W. 4 contradicts the evidence of D.W. 3 (Nurul Amin), whose evidence is that he, immediately, on hearing hullah went to the house of D.W. 1 and found Subhan lying injured inside his courtyard, whereas the evidence of D.W. 4 is that Subhan was found lying hear the bamboo grove. Moreover, D.W. 3 did not state that he had found Amiruddin lying at the place of occurrence. Thus, even the evidence of D.W. 4 does not inspite confidence. 44. That D.W. 4 is not a reliable witness is evident from the fact that he admits, in his cross examination, that on the very day of the occurrence, he had gone to the house of Saheb Ali (P.W. 1) also but he claims, at the same time, that he did not ask any question to any one and came back home. It is most unnatural, on the part of D.W. 4 that having seen Anwar and Amiruddin lying injured, he did not make any enquiry from any one as to how these two persons had sustained injuries. 45. When we turn to the evidence of D.W. 5, we find that D.W. 5. (Jalaluddin) is a bi-cycle mechanic. According to him, on the relevant day, at about 7 a.m. he went to his bi-cycle repairing shop and noticed some persons present in front of the house of Saheb Ali, who were armed with weapons like spear, lathi, etc. D.W. 5 has deposed that he saw accused Subhan and deceased Amir scuffling under the bamboo grove and also saw accused Karim Chagla coming towards his (Karim, house on a bi-cycle whereupon he (D.W. 5) and his son, Sirajuddin, and Ainuddin stopped Karim (D.W. 1) and took him to the house of Ainuddin on apprehension that he (Karim) might be also assaulted by the members of Saheb Ali's, family. This version of D.W. 5 does not support the evidence of D.W. 1 inasmuch as D.W. 1 did not say that he was taken to the house of Ainuddin; rather, according to D.W. 1, he was prevented from going towards his house by one Riazat and at that time, Jalal and Ainuddin were also present there and they also prevented him from going towards his house. 46. What crystallizes from the above discussion of the evidence on record, as a whole, is that while the prosecution has convincingly proved not only the presence of accused Appellants at the place of occurrence, but also the assaults, at the hands of accused Appellants, on Amiruddin, Saheb Ali and Anwar resulting into Amiruddin's death, the plea of alibi taken by the accused-Appellants, Karim Chagla and Sundar could not at all be established nor could the defence succeeded in establishing the version of the occurrence projected by them that Amiruddin had sustained injury on his neck and died, accidently, on account of a spear like weapon thrown by Amiruddin's own brother, Saheb Ali (P.W. 1), towards the accused Appellant, Subhan which missed Subhan and fell on Amiruddin's neck. 47. 47. For what have been discussed and pointed out above, we find that the conclusion reached by the learned trial Court that Amiruddin was killed by the accused-Appellants in furtherance of their common intention is justified by the evidence on record and the law relevant thereto. This apart, the evidence on record also convincingly prove that it was the accused-Appellant, Subhan, who had caused injuries to Anowar by apocha and committed thereby an offence punishable under Section324 IPC. Thus, the conviction of the. accused-Appellants and the sentences passed against them, as hereinabove mentioned, deserve no interference in this appeal. 48. In the result and for the reasons discussed above, this appeal fails and the same shall accordingly stand dismissed. 49. Send back the L.C.Rs. Appeal dismissed