JUDGMENT Aftab H. Saikia, J. 1. All these criminal appeals, namely, Crl Appeal No. 69(J)/05, Crl Appeal No. 117/05, Crl Appeal No. 135/06, Crl Appeal No. 140/05 and Crl Appeal No. 141/05, have been preferred against the judgment and order dated 31.5.2005, passed by the learned Sessions Judge, Karimganj in Sessions Case No. 53/02 convicting the appellants therein under Section 302 / 149 / 326 of the Indian Penal Code (for short 'IPC') for the offence of killing of one Biju Deb (hereinafter referred to as 'the deceased') and causing grievous hurt to Bappa Deb (PW-2) and thereby sentencing them to undergo rigorous imprisonment for life and to pay fine of Rs. 5000/- each, in default, to suffer further imprisonment for one year under Section 302, IPC. The learned Sessions Judge also convicted the accused/appellants under Section 326 / 149, IPC and sentenced them to undergo rigorous imprisonment for 5 years and to pay fine of Rs. 3000/- each in default, to suffer further period of simple imprisonment for 6 months. 2. This set of appeals having arisen out of the same fact situation, was heard analogously and accordingly all these appeals are disposed of by this common judgment and order. 3. Heard Mr. J.M. Choudhury, learned Senior Counsel assisted by Mr. A.M. Bora, Advocate representing the appellants in Crl Appeal No. 135/05, Crl Appeal No. 138/05 and Crl. Appeal No. 140/05; Mr. S.C. Biswas, learned Counsel for the appellant in Crl. Appeal No. 117/05; Mr. P. Mahanta, learned Counsel appearing as Amicus Curiae in Crl. Appeal No. 69(J)/05 and Mr. S.K. Medhi, learned Counsel appearing for the appellant in Crl. Appeal No. 141/05. Also heard Mr. K.A. Mazumdar, learned Addl. Public Prosecutor, appearing for the respondent State of Assam. 4. Facts, in brief, as narrated in the Ejahar lodged on 18.2.2000 by one Nirmal Deb (PW-1), the father of the deceased Biju Deb and the injured Bappa Deb (PW-2), is that on the night i.e. 17.2.2000 some miscreants namely (1) Tukan (2) Sabyasachi (3) Babu (4) Ratan Das, (5) Debu, (6) Ajay Das (7) Kanai, (8) Jahar Deb and few others in a body, with an intention to kill Biju (deceased) and Bappa Deb (PW-2), all of a sudden, attacked them with dao, sword, 'bhojali' etc. causing grievous hurt on different parts of their bodies in a place situated between Ghosh Diary and Kamala Hair Cutting on the Station Road, Karimganj. Alarm being raised people assembled at the place of occurrence and the miscreants fled away. Both the sons of the informant (PW-1) were brought to the Karimganj Civil Hospital, where the doctor declared Biju (since deceased) dead, while Bappa (PW-2), who suffered grievous injury was sent to Silchar Medical College Hospital for medical treatment. On the basis of the FIR the police registered Karimganj P.S. Case No. 73/2000 under Section 147 / 148 / 149 / 326 / 307 / 302, IPC. 5. On completion of the investigation, the police submitted charge sheet. The case being exclusively triable by the Court of Sessions was committed to the Court of learned Sessions Judge, Karimganj and the learned Sessions Judge framed charges under Section 307 / 149 / 302, IPC, to which the accused pleaded not guilty. 6. The prosecution examined as many as 15 witnesses including PW-2 Bappa (injured), PW-3 Haren Laskar; PW-4 Rupak Kumar Dey, who were projected as eye-witnesses, PW-5 Dr. Lipi Deb, who conducted autopsy on the dead body of the deceased; PW-11 Dr. Siddhartha Sankar Bhattacharjee, who examined the injured Bappa Deb (PW-2) and PW-14 Someswar Boro, the Investigating Officer, as witnesses to prove the charges. In their examination under Section 313 Cr PC the accused persons denied the allegations. 7. Defence examined three witnesses namely-DW-1 Aminul Rashid Choudhury, DW-2 Dr. Abdul Salam Barbhuyan and DW-3 Nakul Muhipal. 8. We have heard all the learned Counsels representing the appellants including the accused/appellants Ratan Das and Kanai Das as well as the learned Public Prosecutor, Assam. 9. A careful perusal of the impugned judgment and order, reveals that the conviction and sentence is primarily based on evidences of PW-2, PW-3 and PW-4, who claimed to be eye-witnesses. Therefore, we feel inclined to scrutinize the evidences of these witnesses. Having scrupulously gone through the evidence of these witnesses, we find that PW-2 categorically stated that it was Babu (the appellant in Crl. Appeal No. 138/05), who, with the sword in his hand, had hit Biju (deceased) on his right elbow when Tukan (appellant in Crl Appeal No. 140/05) had hit the deceased on his left chest with a bhojali. Having scrupulously gone through the evidence of these witnesses, we find that PW-2 categorically stated that it was Babu (the appellant in Crl. Appeal No. 138/05), who, with the sword in his hand, had hit Biju (deceased) on his right elbow when Tukan (appellant in Crl Appeal No. 140/05) had hit the deceased on his left chest with a bhojali. In so far as the PW-3 is concerned, he testified that it was only Tukan who hit the deceased with the 'bhojali' in his hand. Interestingly, he narrated a contrast story. Being an eye-witness he claimed that he saw Babu, Tukan, Sabyasachi, Raju and others assaulting the deceased and Bappa (PW-2) and that seeing the PW-2 being assaulted with a bhojali, he became unconscious. But, at the same time he asserted that he saw Bappa trying to save the deceased while Babu, Tukan, Sabyasachi, Raju and others gheraoed him. 10. Having confronted with all those different versions, as narrated by these three witnesses, it is necessary to look into the injuries sustained by the deceased. PW-5 the Medical Officer, who examined the deceased found the following injuries: "(1) One sharp cut injury about 5 cm x 4 cm x bone deep over right elbow joint cutting sharply the lateral contest of right humerous bone exposing the elbow cavity. (2) On 7th intescastal space left side transversely placed along nipple line 3 cm x 1.5 cm x 5 cm oval shape 11. From the medical evidence, it is found that two injuries were sustained by the deceased i.e. firstly on the right elbow of the deceased; the second injury was on his chest. According to Bappa (PW-2), who also sustained injury, accused Babu had caused the injury on the right elbow of the deceased while accused Tukon had caused the chest injury with a 'bhojali' (sword like weapon) and he s(i.e. PW-2) was assaulted on his right hand with a sword by Babu, while Tukon had hit on his buttock with a 'bhojali'. He further stated that he was hit on the right side of his face with a sword by Babu, while Sabyasachi hit him on the back side of his head with a Dagger. According to this witness, other accused had surrounded and kicked him. He further stated that he was hit on the right side of his face with a sword by Babu, while Sabyasachi hit him on the back side of his head with a Dagger. According to this witness, other accused had surrounded and kicked him. But, PW-3, who was also examined as an eye-witness gave a different story by saying that Tukon had hit Biju (the deceased) on his head with a 'bhojali' and that Bappa (PW-2) was also hit with a 'bhojali' by the other accused persons. He failed to state anything against Babu in respect of the injuries caused to the deceased Biju. He did not exactly state the role played by other accused persons except Tukon. 12. PW-4 stated that on hearing 'hulla' he went out of shop and saw Bappa and Biju being bitten up by Babu, Tukon, Sabyasachi, Rupam, Ajoy, Ratan and Ors. who were armed with sword, 'bhojali' and dagger. He further stated that he did not say who had assaulted Biju, but he could see that Babu, Tukon, Sabyasachi, Rupam and Ratan beating Bappa while other accused had gheraoed Bappa. Hence, according to PW-4, Bappa (PW-2) was bitten up by Babu, Tukon, Sabyasachi, Rupam and Ratan, but Bappa (PW-2) himself did not state that other accused persons except Babu, Tukon and Sabyasachi had beaten him. 13. As discussed above, PW-3, another eye-witness, did not state anything against Babu assaulting Biju with a sword. If PW-3's evidence is believed, it will lead to hold that all the accused persons had assaulted Bappa with nothing other than 'bhojali', but this has been belied by Bappa himself. 14. In view of the above, scrutinizing the evidence on record, we consider it appropriate to hold that Babu had caused cut injury on the right elbow of the deceased while accused Tukon had inflicted the chest injury on the deceased with a 'bhojali'. Though PW-2 stated that accused Tukon and Sabyasachi assaulted him on the buttock and back side of his head, PW-3, who claims to be an eye-witness stated that PW-2 was assaulted with a 'bhojali'. He did not state anything as to who had caused the said injury. Therefore, there is no sufficient corroboration in the evidence of PW-2 to believe that accused Babu had caused the injury on his hand and face of PW-2. 15. He did not state anything as to who had caused the said injury. Therefore, there is no sufficient corroboration in the evidence of PW-2 to believe that accused Babu had caused the injury on his hand and face of PW-2. 15. PW-4 stated that all the accused appellants including Babu, Tukon, Sabyasachi, Rupam and Ratan had bitten Bappa (PW-2). But, the PW-2 himself did not state that Rupam and Ratan had beaten him. In view of the above, we find no corroboration in the evidence of this witness to hold that other accused, except Babu and Tukon, had assaulted Bappa (PW-2). 16. In the light of the above discussions, it is found that there is sufficient corroboration in the evidence to hold that accused Babu and Tukon had assaulted the deceased and the PW-2. The medical evidence i.e. the evidence of PW-11 reveals that PW-2 sustained grievous injury caused by sharp weapon as well as simple injuries. From the evidence of PW-2, it is found that he was assaulted by Babu with a sword on his hand. The medical evidence reveals that the PW-2 sustained incised wound on left dorsal of his hand and the said injury was grievous in nature caused by sharp weapon. Further, the injury caused on the hand of the deceased was also grievous in nature which was caused by sharp cutting weapon and the said injury was caused by Babu. Therefore, it appears that Babu had given only one blow on the hand of the deceased and one blow on the hand of the PW-2. The said act on the part of the accused appellant aforesaid does not indicate that he had any intention or object to cause death of the deceased. In fact he caused grievous injury by sharp cutting weapon in respect of PW-2 when he tried to save the deceased. From the evidence on record it is further revealed that the accused appellant Tukon had inflicted only one injury on the chest of the deceased with a 'bhojali'. Had he any intention to kill the accused probably he would have repeatedly assaulted him. From the circumstances and the attending fact situation it cannot be inferred that the appellant caused the injury with an intention of causing death. Had he any intention to kill the accused probably he would have repeatedly assaulted him. From the circumstances and the attending fact situation it cannot be inferred that the appellant caused the injury with an intention of causing death. It can at best be inferred that the act of accused appellant was done with the knowledge that it was likely to cause death, but without any intention to cause death or to cause such bodily injury likely to cause death. Hence, it cannot be safe to hold that accused, in fact had the intention to cause death. 17. After giving a careful thought to the nature of offence, we are of the considered view that the offence committed by the accused appellant Tukon in respect of the deceased would more appropriately fall under Section 304 Part II IPC. From the evidence on record it is found that Babu had caused injury on the hand of the deceased, that too on the elbow joint, and on the hand of Bappa i.e. PW-2. This clearly indicates that there was no intention to kill either the deceased or the PW-2. Hence the said injuries caused by Babu, in respect of the deceased and Bappa (PW-2), indicates the commission of offence under Section 326, IPC. The facts and circumstances of the case, and the evidence on record, does not reveal any substantive materials to reasonably believe that the accused appellant had the common object of causing death of Biju and assault to Bappa. The evidence of PW-2 clearly reveals that while he along with the deceased and others were taking tea, the accused persons who came in a group had searched for Biju (the deceased). This is sufficient to hold that the accused appellant had no intention to cause any harm to the PW-2. 18. From the evidence on record, it is found that PW-2 sustained injuries while he tried to intervene to rescue the deceased while the accused Babu and Tukan assaulted the deceased. Though Tukan assaulted on the vital part of the deceased, Babu assaulted on hand. Hence, there is no evidence to believe that the accused appellants had formed an unlawful assembly for prosecuting common object of causing death to the deceased and physical harm to PW-2. 19. Though Tukan assaulted on the vital part of the deceased, Babu assaulted on hand. Hence, there is no evidence to believe that the accused appellants had formed an unlawful assembly for prosecuting common object of causing death to the deceased and physical harm to PW-2. 19. It is also brought to our notice, from scrutiny of the evidence that no case under Section 149, IPC has been made out against the appellants. We also find that no case of common object to commit offence has been made out. Hence, we find no sufficient evidence to hold that the appellant had committed offence in furtherance of common object. Accordingly, the conviction of the appellants under Section 149, IPC stands quashed. 20. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he had shared the same or was actuated by that common object and that object is one of those set out in Section 141, IPC. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149, IPC. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more with the common objects, as specified in Section 141, IPC. It cannot be laid down as a general proposition of law to hold a person, unless the commission of an overt act is proved against such persons, who is alleged to be a member of an unlawful assembly, to be member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141, IPC. 21. In view of the above, we hold the accused Babu guilty of the offence under Section 326, IPC and the accused appellant Tukon guilty of the offence under Section 304 Part II, IPC and accordingly we modify the impugned order of conviction passed in the judgment and order and thus convict the accused appellant Babu under Section 326, IPC and Tukan under Section 304 Part II IPC. The sentences on both counts are modified to the period already undergone by them. 22. In the light of the discussions made above, Crl. Appeal No. 69(J)/2005, Crl. Appeal No. 117/2005, Crl. The sentences on both counts are modified to the period already undergone by them. 22. In the light of the discussions made above, Crl. Appeal No. 69(J)/2005, Crl. Appeal No. 117/2005, Crl. Appeal No. 135/2005 and Crl. Appeal No. 141/2005 succeeds and stand allowed. Insofar Crl. Appeal No. 138/2005 and Crl. Appeal No. 140/2005 are concerned, these appeals stand partly allowed with the modification of sentence as indicated above. 23. Before parting, we would like to record our appreciation to the valuable service rendered by Shri P. Mahanta, who argued before us as Amicus Curiae along with learned Senior Advocate Mr. J.M. Choudhury. We, therefore, order that Mr. Mahanta shall be entitled to his professional fees quantified at Rs. 5000/- (Rupees five thousand only). Registry is directed to send down the records.