JUDGMENT Anima Hazarika, J. 1. Two accused were found guilty by the Sessions Judge, Morigaon in Sessions Case No. 30 of 1999 for the offence of murder punishable under Section 302 IPC and sentenced each of them to undergo rigorous imprisonment for life and to pay a fine of Rs. 1000/- each, in default, R.I. for another 6 (Six) months. Both the accused persons filed two criminal appeals under Section 374(2) of the Code of Criminal Procedure being Criminal Appeal No. 173 of 2002 and Criminal Appeal No. 210 of 2002 before this Court assailing the conviction and sentence as aforesaid. 2. The incident occurred on 17.3.1997 at about 7.00 A.M. at Moirabari Bazar. The deceased Keramati Ali Maral was having tea in the tea stall of Dilip Madak at Moirabari Bazar. At that time accused Abdul Hai, Abdul Rashid, Md. Dadul Islam, Md. Ruhul Amin, Md. Mafizuddin and Rahim Faruki entered the tea stall quite all of a sudden and accused Abdul Hai and Abdul Rashid fired at the deceased with pistol, while the other accused assaulted him by stabbing and hacking with dagger, sword etc. Keramat Ali died instantaneously on the spot. On the same day, Nazrul Islam, the son of the deceased (P.W.3), lodged a First Information Report (FIR in short) before the Officer-in-Charge, Moirabari Police Station, wherein he named all the accused as mentioned hereinbefore. It has also been alleged in the FIR that, when the first informant along with the other witnesses offered resistance in order to save Keramat Ali, the accused persons threatened them with pistols. At this, they rushed out of the hotel for their lives, otherwise, they would also have been killed. It was further alleged that the incident took place at the instance and instigation of accused Md. Giasuddin Muktar, A. Jalil and Md. Samsul Haque. 3. On receipt of the FIR, the police registered a case being No. 21/97 and started investigation. During investigation. The Investigating Officer visited the place of occurrence, made an inquest on the deadbody, seized certain articles, examined the witnesses under Section 161 of the Code of Criminal Procedure and submitted chargesheet under Sections 148/149/302/210/448 IPC. Since the case is triable by the Court of Sessions, the case was committed to the learned Sessions Judge, Morigaon. 4. During investigation. The Investigating Officer visited the place of occurrence, made an inquest on the deadbody, seized certain articles, examined the witnesses under Section 161 of the Code of Criminal Procedure and submitted chargesheet under Sections 148/149/302/210/448 IPC. Since the case is triable by the Court of Sessions, the case was committed to the learned Sessions Judge, Morigaon. 4. On committal to the Court of Sessions, the learned Sessions Judge framed charge under Sections302/109 IPC for abetment in the commission of crime against accused Giasuddin Muktar, Abdul Jalil and Samsul Haque where as, the learned Sessions Judge framed charge under Sections147/148/149/302 of IPC against all other remaining six (6) accused persons. During the course of trial, the accused Abdul Hai died and the case was abetted against him and the other accused Ruhul Amin was declared absconder. 5. The remaining accused were put on trial. During the trial, the prosecution in support of its case examined nine (9) witnesses including the Doctor and the I.O., where as, the defence examined one witness in support of their case. The statements of the accused persons were recorded under Section 313 of the Code. 6. The learned Sessions Judge has framed two points for determination which reads as follows: i) Whether the accused persons formed an unlawful assembly with common object? ii) Whether the accused persons in furtherance of common object committed murder of Keramat Ali? 7. While determining the issues, the learned Sessions Judge has held that the accused Abdul Hai was the main culprit who was Subsequently murdered. But the learned Sessions Judge on material evidence on record more particularly, the evidences of P.W.-3 and P.W.- 4 has held that, the accused Mafizuddin and Rahim Faruqui have assaulted the deceased with dagger which resulted in death and accordingly the learned Sessions Judge convicted the two accused persons under Section 302 IPC as aforesaid. In regard to the formation of unlawful assembly, the learned Sessions Judge has come to a conclusion that the unlawful assembly has not been proved by the prosecution and hence acquitted all other accused persons on the ground of benefit of doubt holding that the accused Mafizuddin Islam and Abdul Rahim Faruqui are individually liable for murder of Keramat Ali and convicted the two accused accordingly, sentencing them for life as aforesaid. 8. Mr. 8. Mr. D.K. Saikia, learned Counsel appearing for the accused in Criminal Appeal No. 173 of 2002 and Mr. J.M. Chowdhury, Sr. Advocate assisted by Mr. A. Sharif, Advocate, appearing in Criminal Appeal No. 210 of 2002, have criticized the judgment of conviction and sentence and took us to the evidences of all the prosecution witnesses including the Doctor and the I.O. Their arguments basically rests on the finding of the learned Sessions Judge that, since the prosecution has failed to prove the ingredients of unlawful assembly in the instant case vis-a-vis the evidence of D.W.-1, Siraj Ali would show that an omnibus statements of P.W.-3, P.W.-4 and P.W.-6 cannot be relied upon in convicting the two accused persons in absence of evidence of commission of offence, either individually or jointly and/or any overt act by these two accused persons and hence the judgment of conviction and sentence passed by the learned Sessions Judge is required to be interfered with in exercise of power under appellate jurisdiction. 9. Refuting the argument advanced by the learned Counsel appearing for the accused persons, the learned P.P., Assam has referred the evidences of P.W.-3, P.W.-4, P.W.-6 and the Doctor and submitted that, since the prosecution has proved the assault on the person of the deceased, more particularly by two accused persons which is in consonance with the medical evidence, the conviction and sentence do not require to be interfered with in the facts and circumstances of the case. 10. Considered the argument advanced by the parties, perused the material evidences on record including the prosecution witnesses and the defence witness No. 1, Siraj Ali who happens to be the eye witness of the assault at the time of occurrence. Dissecting the evidences of P.W.-3, P.W.-4 and P.W.-6, it would reveal the following facts viz.; P.W.-3 in his statement in examination-in-chief has deposed that his deceased father had entered the tea stall for taking tea and he and his uncle Sorab Ali, P.W.-4 were in front of the hotel. About ten minutes later Mazammel came near to them. At that time accused Giasuddin, Samsul Haque, Jalil Master, Abdul Hai, Abdul Rashid, Imdadul Islam, Ruhul Amin, Mafizuddin and Rahim Faruqui came to the front of the hotel and accused Giasuddin, Samsul Haque and Jalil Master ordered to catch his father Keramat Ali. About ten minutes later Mazammel came near to them. At that time accused Giasuddin, Samsul Haque, Jalil Master, Abdul Hai, Abdul Rashid, Imdadul Islam, Ruhul Amin, Mafizuddin and Rahim Faruqui came to the front of the hotel and accused Giasuddin, Samsul Haque and Jalil Master ordered to catch his father Keramat Ali. As ordered, the accused Abdul Hai, Abdul Rashid, Imdadul, Ruhul Amin, Mafizuddin and Rahim Faruqui went into the hotel and thereafter Abdul Rashid shot at his father with a pistol. Abdul Hai hit in the chest, hands and legs of his father with a sword. Accused Ruhul Amin, Mafizuddin and Rahim Faruqui struck his father with daggers. He has further deposed that when Imdadul came charging at them he ran away. In the cross-examination, the reply was in the affirmative denying the suggestions. 11. The prosecution has examined Sorab Ali as P.W.-4, who deposed that he was at Moirabari Bazar (Market) in front of the hotel when all the accused persons came all of a sudden from the eastern direction. The accused Giasuddin, Jalil and Samsul pointed out Keramat and directed the other accused persons to hit Keramat and accordingly all six accused went inside the hotel and accused Rashid shot Keramat with a pistol. Accused Abdul Hai hit Keramat with a sword. Accused Ruhul Amin, Imdadul, Mafiz and Rahim Faruqui struck with daggers. P.W.-4 has further deposed that when they were about to go near Keramat, accused Jalil, Samsul, Gias and Muktar asked the others to catch them too. Accused Imdadul came charging to them and they ran away. In the cross-examination when he was confronted with the statement recorded under Section 161 of the Code, he denied the suggestions meaning thereby that the witnesses named the accused who had participated in the commission of offence. 12. P.W. 5, Dr. Mubidur Rahman, who held the post mortem examination on the body of the deceased, had found the following injuries: 1. Sharp cutting injury starting from angle of the mouth to the level of the middle of the neck of 5" length. The depth is whole thickness of the cheek. Blood clot present on the wound. 2. Sharp cutting injury at the level of the 2nd rib (left side) at the nipple linel 1/2 " length and skin thickness which directed laterally. Clotted blood with serosanguious present. 3. The depth is whole thickness of the cheek. Blood clot present on the wound. 2. Sharp cutting injury at the level of the 2nd rib (left side) at the nipple linel 1/2 " length and skin thickness which directed laterally. Clotted blood with serosanguious present. 3. Sharp cutting injury on the left side at the nipple level starting from the left nipple to the right side 3" in length and 5" depth which penetrated the pleurae, pericardium and heat injuring 4th and 5th ribs. 4. Sharp cutting wound at the level of right lower rib which penetrated the pleural cavity and the liver. 5. Sharp cutting injury at the right leg which cut the skin and the tibia at the mid level Size 3" X 2". There was clotted blood present. 6. Oblique sharp cutting injury at the right gluteal region which is 8" in length and 3" depth. There was blood clot at the injury. The direction of the wound was lateral to the medical side. 7. There was scattered sharp cutting injury on the chest wall, abdominal wall, right palm and right index finger. The injuries are antemortem in nature. The death, in the opinion of Doctor, P.W. 5, is due to the haemorrhage and shock as a result of multiple injuries caused by sharp pointed object on his person. In cross-examination P.W. 5 had deposed that none of the injuries is gun shot injury. Injury No. 6 may be caused by heavy knife. All the injuries will lead to profuse bleeding. 13. The prosecution witness, Mozamil Hussain, who was examined as P.W.-6, has deposed that on the day of occurrence, he came out from the house on way to Nagaon and reached Moirabari Bazar, in the Bazar, he was talking with Nazrul Islam, P.W.-3 and Sorab Ali, P.W.-4 in front of the tea stall. When they were talking, all the above named accused persons came to the front of the tea stall from the eastern side and out of them accused Giasuddin, Abdul Jalil and Samsul Haque asked the other accused that Keramat Ali is sitting in The hotel, "kill him". The witness saw Keramat inside the hotel. The other six accused immediately went to the hotel. He heard the sound of gun shots in the hotel. He saw a pistol in the hands of Abdul Rashid. Other accused were armed with daggers and swords. The witness saw Keramat inside the hotel. The other six accused immediately went to the hotel. He heard the sound of gun shots in the hotel. He saw a pistol in the hands of Abdul Rashid. Other accused were armed with daggers and swords. He has further deposed that, when they were about to proceed towards the hotel, accused Imdadul threatened them with pistol. The accused Imdadul asked other accused to kill them and then only they ran towards the west. In the cross-examination, when he was confronted with the statements made under Section 161 of the Code, he denied the suggestions, meaning thereby, that accused persons assaulted Keramat Ali since deceased. 14. P.W. 7, Som Nath Bora is the Investigating Officer who was entrusted with the charge of investigation. He along with the Officer-in-Charge of the police station visited the place of occurrence, made the inquest report, recorded the statement of the witnesses, seized some blood stained clothes, spectacles, a wrist watch among few other items vide Seizure List, Ext. 1. Ext. 1 (2) is his signature. P.W. 7 had failed to apprehend the accused. However, in search of the accused persons, he visited their houses on 17.3.97, 18.3.97, 19.3.97, 20.3.97 and 31.3.97. But he did not find the accused persons. In cross-examination he had deposed that P.W. 3 did not tell that accused Rashid had fired from a pistol. P.W. 3 did not specifically tell that Abdul Hai had hit the deceased with a sword, while Ruhul Amin, Mafizuddin and Rahim had hit with daggers, but he had stated that they had assaulted. P.W. 4 did not specifically told him that Abdul Hai had hit with sword while Ruhul Amin, Imdadul, Mafizuddin and Rahim had hit with daggers. P.W. 6 did not tell that Giasuddin, Samsul and Jalil had ordered to kill him and his companion too. 15. P.W. 8, Rabindra Nath Bezbaruah was the Officer-in-Charge of Moirabari Police Station. Initially on the day of incident he took up the investigation. Thereafter, P.W. 7 did the investigation. After that Uma Rajkhowa was entrusted with the investigation, but he did nothing to investigate into the incident. During investigation, P.W. 8 had examined five witnesses and arrested six accused persons. Thereafter, on his transfer, C.I.D. Inspector, Thaneswar Sarma, had investigated the case and submitted the charge sheet. 16. Thereafter, P.W. 7 did the investigation. After that Uma Rajkhowa was entrusted with the investigation, but he did nothing to investigate into the incident. During investigation, P.W. 8 had examined five witnesses and arrested six accused persons. Thereafter, on his transfer, C.I.D. Inspector, Thaneswar Sarma, had investigated the case and submitted the charge sheet. 16. P.W. 9 took the charge of investigation of the case, when the Moirabari P.S. Case No. 21/97 was forwarded to CID for investigation. During investigation, he had examined some more witnesses and after completion of the investigation, submitted charge sheet. P.W. 9 further deposed that, the witnesses examined by him had already been examined by the Investigating Officer. In the cross-examination, P.W. 9 deposed that he had not examined any new witness. 17. The defence had examined Siraj Ali as D.W. 1 who deposed that, on the date of occurrence, he was waiting for a man in front of the hotel. In the meantime P.W. 1 came and offered to take tea with him and accordingly, he sat for a cup of tea with him at Kalia's hotel. Deceased Keramat Ali was also taking tea in that hotel. At that time accused Abdul Hai and two other unknown persons came there and the deceased said to Abdul Hai "Husiar". Abdul Hai dealt several stabbing blows in the abdomen of the deceased with a sword. D.W. 1 came out from the hotel. At the time of occurrence, he did not see anyone of the accused persons. He did not see anyone of Keramat's family there. In cross-examination he had stated that he could not come to adduce evidence due to rheumatic pain and other suggestions made to him had been denied. D.W. 1 further deposed that, he did not hear any gun shot. 18. A close scrutiny of the entire evidence, of record, would reveal the following facts; a) Keramat Ali has been killed in the tea stall. b) The accused persons named in the FIR were chargesheeted. c) The accused persons and the complainant are known with each others from before since they are all from Moirabari. d) The witness P.W. 3, P.W. 4 and P.W. 6 were present in front of the tea stall. e) These three witnesses have seen the occurrence of assault on the person of the deceased. c) The accused persons and the complainant are known with each others from before since they are all from Moirabari. d) The witness P.W. 3, P.W. 4 and P.W. 6 were present in front of the tea stall. e) These three witnesses have seen the occurrence of assault on the person of the deceased. f) The witness P.W. 3 was very specific in respect of assault by each individual accused persons on the deceased. g) The witness P.W. 3 when confronted with the statements made under Section 161 of the Code, his reply was in the affirmative denying the suggestions. h) The witness P.W. 4 who was in front of the hotel along with P.W. 3 has seen the occurrence and vividly explained the assault by each individual accused persons on the deceased. i) The witness P.W. 5 who held the post mortem examination had found 7 (seven) grievous injuries and he opined that the death was due to the haemorrhage and shock as a result of multiple injuries caused by sharp pointed object on his person. j) The witness P.W. 6 who was in front of the hotel had named all the accused persons who assaulted the deceased. k) The Investigating Officer P.W. 7 has deposed that the prosecution witnesses have made the statements that the accused persons have assaulted the the deceased. l) The defence witness D.W. 1 deposed that Abdul Hai along with two other unknown persons came there and Abdul Hai dealt several stabbing blows in the abdomen of Keramat Ali which contradicts the medical evidence. m) The learned Sessions Judge has seen demeanor of the witnesses and the accused persons during the trial and came to a conclusion that the accused Appellants were the persons who had assaulted the deceased individually. 19. From the analysis of the prosecution witnesses, it is clearly proved that the two accused Appellants have participated in the assault on the persons of the deceased along with other accused, who have been given the benefit of doubt, except the two accused, against whom the conviction and sentence have been passed. In absence of appeal by the State against the acquittal of other co-accused, this Court has no other option but to affirm the conviction and sentence passed by the learned Sessions Judge under Section 302 IPC against the two accused Appellants who are before us in these two appeals. 20. In absence of appeal by the State against the acquittal of other co-accused, this Court has no other option but to affirm the conviction and sentence passed by the learned Sessions Judge under Section 302 IPC against the two accused Appellants who are before us in these two appeals. 20. The learned trial Court held these two accused Appellants guilty under Section 302 IPC by holding that the two accused Appellants would be individually liable for murder of Keramat Ali. However, in our opinion, the present Appellants are not individually liable, but jointly liable for commission of the offence of murder by causing grievous injuries, endangering the life of the deceased with the lethal weapon with a common intention to cause the death. This common intention of both the accused Appellant can be inferred from the evidence of P.W. 3, P.W. 4 and P.W. 6. So, we confirm and upheld the conviction and sentence of the accused Appellants passed by the learned trial Court but we alter the charge from Section 302 IPC to Section 302/34 IPC. 21. In the result the appeals preferred by the two accused Appellants being Criminal Appeal No. 173 of 2002 and Criminal Appeal No. 210 of 2002 fails. The conviction and sentence passed by the learned Sessions Judge, Marigaon in Sessions Case No. 33 of 99 is affirmed. 22. Send down the case records. Appeal dismissed