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Gauhati High Court · body

2009 DIGILAW 243 (GAU)

Noor Ahmed Borbhuyan v. State of Assam

2009-04-07

AMITAVA ROY, H.BARUAH

body2009
JUDGMENT 1. The appellants being aggrieved by their conviction under Sections 148/149/323/325/302 of the Indian Penal Code (for short hereafter referred to as 'the Code' as well) and sentences awarded correspondingly ranging from rigorous imprisonment for six months till life and fine from Rs. 500 to Rs. 5000 in default to suffer rigorous imprisonment for varying periods as referred to in the impugned judgment and order dated 9.9.2003 passed by the learned Session Judge, Hailakandi, Assam, in Sessions Case No. 21/2000 are in appeal for redress. 2. We have heard Mr. J.M. Choudhury, senior advocate assisted by Mr. B.M. Choudhury, Advocate for the appellants and Mr. K.C. Mahanta, learned Public Prosecutor, Assam. 3. The prosecution case is founded on an FIR lodged by one Md. Ismail Ali with the Officer-in-Charge Katlicherra Police Station on 10.5.1994 alleging that at about 8 A.M. that morning while he along with his father, paternal uncle and brothers were ploughing their land the accused appellants along with 13 others forming an unlawful assembly and armed with deadly weapons trespassed thereon and in a body attacked them as a result whereof, the informant along with one Kutub Ali, Asab Ali, Moinul Haque, Surman Ali, Ibrahim Ali, Jakir Hussain, Nekmula Bibi and Kamlarunnesa sustained serious injuries. It was alleged in the FIR that the accused persons had attacked with the intention to murder all of them. 4. On the said information Katlicherra Rs. Case No. 77/94 under Sections147/148/149/447/325/326/307 of the Code was registered and on completion of the investigation, charge sheet was laid against the accused appellants and eight others. All the charge sheeted accused persons having been committed to the court of Sessions for trial, charges with different heads against them were framed by the learned Session Judge, Hailakandi, on 18.2.2000. To be specific, the learned court below arraigned the accused persons under Sections 148/149/323/325/302 of the Code. The charges having been denied on being explained to the accused persons, the prosecution took to trial in course of which it examined 13 witnesses. A number of documents were also exhibited. The statements of the accused persons were thereafter recorded under Section 313 of the Code. They, however, declined to adduce evidence in defence. 5. The learned Trial court, after hearing the Learned Counsel for the parties and on a consideration of the materials on record, by the impugned judgment and order convicted only the accused appellants. The statements of the accused persons were thereafter recorded under Section 313 of the Code. They, however, declined to adduce evidence in defence. 5. The learned Trial court, after hearing the Learned Counsel for the parties and on a consideration of the materials on record, by the impugned judgment and order convicted only the accused appellants. 6. Mr. Choudhury has persuasively urged that it being apparent from the evidence on record that both the parties had staked a claim on the land on which the incident had occurred and that the prosecution had failed to prove the exclusive possession thereof by the informant and his party, Section 149 of the Code is not attracted and, therefore, the Conviction of the accused appellants thereunder is ex-facie illegal and unsustainable in law. Referring to a cross case initiated on an FIR lodged by the accused appellants over the same incident on which the informant and other witnesses in the instant proceeding had also been charge sheeted, the Learned Senior Counsel contended that there being a free fight between two warring factions over the possession of the land involved, the learned court below erred in proceeding on the premise that the accused appellants were the aggressors and this having vitiated the impugned judgment and order, the same is liable to be interfered with in the interest of justice. Mr. Choudhury insisted that the materials on record being demonstrable of the fact that two of the accused appellants have land abutting the one on which the incident had occurred, the failure of the prosecution to examine Rabindra Paul and Mofur Ali from whom Kutub Ali, PW2, had purchased the same and had obtained possession thereof is fatal. The mere fact that immediately before the occurrence, the informant party had been on the land would thus not render the accused appellants intruders thereon in face of a subsisting dispute between the parties pending adjudication in a court of law, he urged. As irrefutable proof of the possession of the informant and/or his family members, of the land in a criminal case of trespass and assault by an unlawful assembly is an indispensable essentiality, the prosecution having failed to discharge its burden in this regard in the case in hand, the conviction of the accused appellants under the umbrage of Section 149 of the Code is obviously illegal, he urged. Referring to the evidence inter alia of PW3, Md. Ibrahim Ali Mazumdar, Mr. Choudhury has pleaded that the death of Mojaid Ali, one of the members of the accused party as alleged in the occurrence is admitted. He further contended with reference to the injuries sustained by other accused persons as admitted by some of the witnesses of the prosecution, that in absence of any explanation therefor, Section 149 of the Code would stand excluded in its application to the facts and circumstances of the case. According to Mr. Choudhury, the prosecution witnesses have admitted a free fight between the parties and, therefore, though subject to proof and depending on the injuries sustained by the members of the prosecution party, the accused appellants in their individual capacity may be accordingly convicted and sentenced in law, they cannot be collectively condemned for the independent acts of others with the assistance of Section 149 of the Code. With particular reference to the testimony of P Ws 1, 2, 8 and 5 claimed to be eye witnesses as well as injured in the occurrence, Mr. Choudhury drew the attention of this Court to the statements of the Investigating Officer, PW11 proving vital contradictions in their narrations pertaining to the assaults made pleading that thereby they stood wholly discredited and that therefore reliance on their versions by the learned court below is apparently flawed. He argued that even if the evidence of PW4, as a whole is accepted, considering, the injuries referred to in the post mortem report, it cannot be construed by any means that the accused appellants or any one or more of them inflicting the same had the necessary intention of committing murder. The Learned Senior Counsel insisted that had it been so with so many persons converging on Moinul Ali allegedly with deadly weapons, he would have sustained many more fatal injuries on his body. While insisting that the conviction of the accused appellants under Sections 149 and 302 of the Code is wholly unsustainable, the Learned Senior Counsel pleaded that even assuming that they are guilty of their individual acts, having regard to the fact that they are already in custody for over five and half years as on date, their sentence of imprisonment ought to be limited to the period undergone. 7. 7. The learned Public Prosecutor in reply has emphatically argued that having regard to the nature of the offences committed and the manner of perpetration of the same, no interference with the impugned judgment and order is warranted, the prosecution having able to prove the charges to their hilt. According to him, the sequence of events clearly proclaim that the accused appellants along with others in a body and armed with deadly weapons had trespassed into the land of the informant and his family members in their possession and had mercilessly unleashed on them murderous assaults and as their mens rea stands proved their conviction and sentence is sustainable in law. Mr. Mahanta sought to impress upon this Court that the litigation between the parties pending at that point of time related to a different plot of land and that therefore the plea of a subsisting dispute over the ownership and possession of the site of occurrence is wholly unfounded. In support of his submissions, the learned Public Prosecutor placed reliance on a decision of the Apex Court in State of Orissa v. Arjun Das Agarwal and Anr. AIR 1999 SC 3229 . 8. Before recording our final conclusions on an evaluation of the arguments advanced, expedient it would be to marshal the evidence in its bare essentials. 9. PW1, Ismail Ali, stated on oath that on 10.5.1994 while he and his brother Innus Ali were preparing the land involved along with his father Kutub Ali, the accused appellant and a few others in a body trespassed onto it being armed with dao, lathi, lenga etc. The accused appellant No. 1 ordered the others to catch hold of Kutub Ali and to assault him. Immediately thereafter he released a lathi blow on the head of Kutub Ali and the accused Amir gave a lenja blow on his head. According to the witness, the accused appellant safiqur also dealt a lenja blow on the head of Kutub Ali. While the injured fell on the ground and the others raised hue and cry, Moinul Haque, Surman Ali, Asab Ali, Ibrahim Ali rushed to the spot. The witness stated that Jamir Uddin hit him with a lathi on his hand. The accused appellant Noor Ahmed also gave two lathi blows on his fingers of the right hand. While the injured fell on the ground and the others raised hue and cry, Moinul Haque, Surman Ali, Asab Ali, Ibrahim Ali rushed to the spot. The witness stated that Jamir Uddin hit him with a lathi on his hand. The accused appellant Noor Ahmed also gave two lathi blows on his fingers of the right hand. As Moinul entreated, the accused party not to assault Kutub Ali, the accused appellant Noor hit him on his head with a lathi. According to the witness. Amir Uddin and Safiqur also gave a lenja blow on Moinul. He stated that the accused Jamir Uddin also hacked Moinul with a dao. Asab Ali was also hit with a lathi by the accused appellant Noor Ahmed and the accused appellant Ayaj Ali assaulted him as well. The witness further stated that the accused appellant Ayaj Ali and Noor Ahmed also assaulted Surman Ali. The accused appellant Niaj Ali, according to the witness, also gave a lenja blow on the leg of Surman Ali, his brother. Nekbula Bibi and Kamlarun Nessa were also assaulted by accused appellant Hilaluddin. According to him, Moinul was also assaulted by Mojaid Ali, a member of the accused party. 10. This witness proved the FIR, Exhibit-1, and stated that after 4/5 days of the occurrence, Moinul succumbed to the injuries at Silchar Medical College Hospital. He stated that they had purchased six kedars of land out which his father Kutub Ali had purchased two kedars from one Rabindra Paul since 20 years back and the remaining four kedars from Mofur Ali. He claimed that they were in possession of the land from before. He, however, admitted that from the place of occurrence in the north is the land of Ayaj Ali and in the south is the land of Jamir Uddin, accused appellant Nos. 3 and 7 respectively. 11. In cross-examination, this witness stated that out of 21 accused persons named in the FIR, five did not take part in the fight. He denied the suggestion that Mojaid Ali, the brother of the accused persons had died in the occurrence. He contradicted himself by stating that the land to the north of the place of occurrence belonged to Noor Ahmed. He, however, insisted that the occurrence had taken place on the land purchased by them from Rabindra Paul. He denied the suggestion that Mojaid Ali, the brother of the accused persons had died in the occurrence. He contradicted himself by stating that the land to the north of the place of occurrence belonged to Noor Ahmed. He, however, insisted that the occurrence had taken place on the land purchased by them from Rabindra Paul. He stated that Mofur Ali at that point of time was residing at Nischintapur. He also admitted of the pendency of the civil suit regarding the homestead land in the court of the learned Civil Judge, Hailakandi, after the incident. He also referred to a "bichar" (village Panchayat) pertaining to the occurrence but disclosed that no settlement could be arrived at. The witness again contracted himself by stating that the occurrence had taken place, which they had taken on mortgage from Mofur Ali as well as the purchase from Rabindra Paul. 12. This witness was also confronted with discrepancies and omissions on his part relating to the assaults in course of the occurrence in his statement under Section 161, Cr.PC before the Police. 13. PW2, Kutub Ali, corroborated PW1 on his presence oh the land along with him and one Innus Ali prior to the incident. He also stated that the accused appellant Noor Ahmed had directed his accomplices to assault whereafter a torrent of attacks with deadly weapons flowed in course of which he, Asab Ali, Moinul, Nekbulban Bibi, Kamlarun Nessa got seriously injured. He stated that they were first taken to the Katlicherra Primary Health Centre whereafter, he Moinul Haque and Surman Ali were referred to Silchar Medical College. The witness confirmed that the injured Moinul ultimately expired at Silchar Medical College Hospital after five/six days of the occurrence. He also reiterated the 'version of PW1 with regard to the purchase and possession of six kedars of land. He stated of having purchased twelve and half Bighas of land from Mofur Ali before one year of the occurrence and that a civil suit involving his homestead was pending in a civil court. He admitted that Mofur Ali was a permanent resident of village Monacherra at a distance of 30 kms from the place of occurrence. This witness denied the suggestion of not having purchased any land from Mofur Ali or that he had been handed over the possession thereof by his aforenamed vendor. He admitted that Mofur Ali was a permanent resident of village Monacherra at a distance of 30 kms from the place of occurrence. This witness denied the suggestion of not having purchased any land from Mofur Ali or that he had been handed over the possession thereof by his aforenamed vendor. He admitted of being one of the accused persons in the cross case. He, however, conceded that there was a "huge marpit" (fight) and that he did not know as to who had sustained injuries. This witness too was confronted with omissions on his part in the process of narrating the actual incident before the Police in course of his examination under Section 161 of the Code of Criminal Procedure. 14. PW3, Md. Ibrahim Ali Mazumdar, testified that on the date of occurrence, his father Kutub Ali Mazumdar along with his brother Ismail Ali and Innus Ali were cultivating their land. While he was on his way to the field taking tiffin for them, he saw the accused appellants and others trespassing into the land with deadly weapons and attacking his father Kutub Ali. He also gave his own version of the incident and the attacks made by the members of the accused party in the process in course of which he, Kutub Ali, Ismail Ali, Innus Ali, Asab Ali, Surman Ali, Moinul Haque were all assaulted and, therefore, sustained injuries. The witness also stated that his grand mother Nekbula Bibi and her daughter Kamlarun Nessa on their visit to the place of occurrence were not spared and sustained injuries following assaults made by the accused persons. He stated that they were first shifted to the Katlichera Primary Health Centre by the Police and thereafter to the Hailakandi Civil Hospital for treatment. As the condition of Moinul Haque, Kutub Ali Mazumdar and Surman Ali were considered to be serious, they were shifted to the Silchar Medical College Hospital where Moinul Haque eventually succumbed to the injuries on 16.5.1994. This witness also iterated statements made by PW1 and PW2 of having purchased six kedars of land from Rabindra Paul and Mofur Ali. He claimed possession thereof by his father and brothers. This witness produced copies of documents said to be purchased deeds identified as marked "E", "X", "Y" and "Z". In cross-examination this witness conceded that Mozaid Ali had died but expressed ignorance as to whether out of the occurrence. He claimed possession thereof by his father and brothers. This witness produced copies of documents said to be purchased deeds identified as marked "E", "X", "Y" and "Z". In cross-examination this witness conceded that Mozaid Ali had died but expressed ignorance as to whether out of the occurrence. He denied the suggestion that the land of the place of occurrence had always been in the possession of the accused having been purchased by them. He was also confronted with omissions said to have been made by him while narrating the incident before the Police. 15. PW4, Asab Ali, is the brother of PW2, Kutub Ali and father of the deceased Moinul Haque. He deposed that on the date of the occurrence at about 8 A.M., he saw Kutub Ali along with his sons Ismail Ali and Innus Ali on their paddy fields. While they were preparing the land, he heard a hue and cry from his house which is near the place of occurrence. On coming out of his house, he saw that accused appellant Noor Ahmed, Safiqur Rahman, Niaj Ali, Ayaj Ali, Hilal Uddin, Abdul Jalil, Abdul Mojid and others armed with deadly weapons had come over the land and were assaulting Kutub Ali. The witness stated that he and his son Moinul Haque then rushed to the place of occurrence and as Moinul raised protest, the accused appellant Noor Ahmed hit him with a lathi and Safiqur gave him a lenja blow. The witness stated that the accused appellant Jamir Uddin swung a dao blow on Moinul. Niaj Ali also assaulted him. The witness stated that he was assaulted by the accused appellant Noor Ahmed by lathi. He further stated that Kutub Ali, Ismail Ali, Innus Ali and his son Moinul Hoque were also assaulted by the accused appellants. He also stated that his brother Surman Ali was assaulted by the accused appellants. He deposed that Moinul eventually succumbed to the injuries at Silchar Medical College Hospital after four/five days of the occurrence. He also substantiated the testimony of other witnesses about the treatment of the injured at the Silchar Medical College Hospital. He corroborated the testimony of P Ws 1, 2, 3 and 4 about the purchase of six kedars of land in two parts from Rabindra Paul and Mofur Ali and asserted that his brother has been possessing the same from before the date of occurrence. He corroborated the testimony of P Ws 1, 2, 3 and 4 about the purchase of six kedars of land in two parts from Rabindra Paul and Mofur Ali and asserted that his brother has been possessing the same from before the date of occurrence. This witness in cross-examination confirmed the presence of Mozaid Ali and that he had sustained minor injuries in course thereof. He denied the suggestion that the land of the place of occurrence belonged to accused appellant Noor Ahmed, and others on purchase and that that the same had been in their possession. This witness was also confronted with several omissions stated to have been made relating to the incident while disclosing the same before the Police. 16. PW5, Surman Ali, stated that on the date of the occurrence in the morning while he was grazing buffaloes, Kutub Ali and his sons Ismail and Innus were ploughing their land. On hearing a hue and cry, he saw the accused appellants and others assaulting them. As Moinul and his father Asab Ali rushed to the spot they were also assaulted. The witness stated that on seeing the occurrence, he also went to the site and was hit with a lathi by the accused appellant Noor Ahmed. He stated that Ayaz Ali also assaulted him with a lathi and Niyaz Ali with a lenja. The witness stated that he had seen a few women also being assaulted. He stated that the accused appellants Noor Ahmed, Safiqur Rahman, Jamir Uddin and Amiruddin hit Moinul on his head with lathi and others with lenja. According to him, the accused appellant Jamir Uddin also assaulted him with a dao. He stated that as a result of the assaults, he and Kutub Ali, Asab Ali, Moinul, Ismail, Ibrahim were injured. He stated that his mother also sustained injuries on her head. He reiterated that they were sent to the Hailakandi Civil Hospital for treatment and therefrom he along with Moinul and Kutub Ali were shifted to the Silchar Medical College Hospital where Moinul expired after five six days. His evidence with regard to the purchase and possession of the land by the informant and his family were in the same lines as that of the other witnesses. He further admitted that the accused appellant Ayaz and Jamir Uddin had lands to the north and south of the place of occurrence. His evidence with regard to the purchase and possession of the land by the informant and his family were in the same lines as that of the other witnesses. He further admitted that the accused appellant Ayaz and Jamir Uddin had lands to the north and south of the place of occurrence. In cross-examination while this witness feigned ignorance of the death of Mozaid Ali at the place of occurrence, he also admitted of a cross case against Kutub Ali and his sons. He further expressed ignorance about the injuries sustained by any of the accused persons. He denied the suggestion that he along with Kutub Ali and his sons in an attempt to occupy the land of accused appellant Budul, Noor Ahmed and others had killed Mozaid Ali. This witness was also confronted with several omissions claimed to have been made in his statement before the Police pertaining to the incident. 17. PW11, Shri Sushanta Nath Choudhury, the Investigating Officer, in his evidence referred to the steps taken by him stage wise in course of the investigation till the submission of the charge sheet. He proved amongst others, the omissions in the statement of PW1, 2, 3 and 5 in detailing the incident and more particularly the nature and extent of the involvement of the accused appellants in the incident and their individual acts of perpetrating assaults oh the members of the prosecution party. 18. We have very closely examined the said omissions after juxtaposing the same with the evidence of these witnesses at the trial and are of unhesitant opinion that the same (omissions) are in the nature of serious and irreconcilable contradictions with a total annihilative effect rendering them (PW1, 2, 3 and 5) unworthy of any credence vis-a-vis the incriminating roles attributed to the accused appellants in the occurrence. 19. PW6, Dr. Kousik Ranjan Bhattacharjee, deposed about the examination of Innus Ali and Kamlarun Nessa. According to him, these two persons sustained injuries as hereinbelow. Sl. No. Name Injury 1 Innus Ali 1 Lacerated injury on upper part and back side of right forearm 6.5 c.m. x ½ c.m. x skin deep. 2 Abrasion, two in number (a) Right temporal region 1/2 c.m. diameter" (b) ....(illegible) fellengia joint of index finger 1 c.m. x ½c.m. The injuries were certified to be fresh and simple and caused by a blunt object. Sl. 2 Abrasion, two in number (a) Right temporal region 1/2 c.m. diameter" (b) ....(illegible) fellengia joint of index finger 1 c.m. x ½c.m. The injuries were certified to be fresh and simple and caused by a blunt object. Sl. No. Name Injury 2 Kamlarunessa Abrasion on left side of forehead. 1" x ¼" in size. The injury was certified to be fresh and simple and caused by blunt weapon. 20. PW7, Dr. Dulal Mukherjee, proved the injury report, Exhibit-2, vis-a-vis Kutub Ali, Asab Ali Majumder, Surman Ali, Ibrahim Ali, Nabinnussa, which disclosed the following injuries. PW7, Exhibit-2 Name Injury Remark Kutub Ali Head injury Referred to, Silchar Medical College and Hospital. Asab Ali Mazumdar 1 Lacerated injury. 1" x 1" x 1/2" 2. Swelling right hand Surman Ali Head injury Referred to Silchar Medical College and Hospital. Ibrahim Ali 1. Lacerated injury on the scalp. 1" x 1" x 1" 2. Small laceration on right finger 21. PW12, Dr. Mujibur Rahman Majarbhuya, proved Exhibit-8 to be the medico legal register of Hailakandi Civil Hospital containing the entries relatable to Kutub Ali, Asab Ali, Surman Ali, Ibrahim Ali, Nakbul Nessa. The entries in this register in substance disclose as hereunder: Kutub Ali Head injury Referred to Silchar Medical College and Hospital Asab Ali 1. Lacerated injury. 1 x" 1 x" ½" 2. Swelling right hand Surman Ali Head injury Referred to Silchar Medical College and Hospital. IbrahimAli 1. Lacerated injury on the scalp. 1" x 1" x 1" 2. Small laceration on little finger NekbulaBibi Lacerated injury on scalp. 1½" x 1" KemlarunNessa 1 Lacerated injury on right fore arm 2. Contusion on the back. 3. Tenderness on the chest and abdomen NurulHaque Abrasion on the nose 22. PW13, Dr. Pulin Ch. Kuwar, stated to have examined Surman Ali and Kutub Ali Majumdar. He proved Exhibit 9 and 10 as the reports containing his findings. He stated to have issued the death certificate of Moinul Haque, Exhibit 11 and also proved the post mortem report, Exhibit 12. The witness stated that the post mortem examination was conducted on Moinul by Dr. K.K. Chakraborty who at the relevant time was the Associate Professor of the Silchar Medical College and Hospital. The injuries deducted by this witness on Asab Ali and Surman Ali are summarized as hereinbelow. Name Injury Weapon Asab Ali Mazumdar 1. Laceration over forehead. 1" x ½" x ½" Simple. K.K. Chakraborty who at the relevant time was the Associate Professor of the Silchar Medical College and Hospital. The injuries deducted by this witness on Asab Ali and Surman Ali are summarized as hereinbelow. Name Injury Weapon Asab Ali Mazumdar 1. Laceration over forehead. 1" x ½" x ½" Simple. Blunt 2. Laceration over right elbow. 1" x 1" x 2". Fracture of upperend right ulna. Grievous. Blunt 3. Laceration over right leg. 1" x 1" x 1". Simple Blunt 4 Laceration over right parietal region. 1" x 1" x 1" with fracture of the right parietal bone. Grievous. Blunt Surman Ali Blunt injury. Abrasion. 1" x 1" x 1". Simple. Blunt 23. The post mortem report, Exhibit 12, discloses the following injuries borne by the dead body of Moinul Haque. (1) Stitched wound (torn) parietal region of the scalp (torn) 1 c.m. in length. (2) Stitched wound left parietal region of the scalp measuring 6 c.m. in length. (3) Stitched wound 2. c.m. below the injury No. 2 measuring 3 c.m. in length. (4) Stitched wound 1 c.m. (torn) the injury No. 3 measuring 2 c.m. in length. (5) Stitched wound (torn) of the scalp measuring 6 c.m. in length. Stitched of the wounds removed the wounds are appeared to each margin and the (torn) of the wounds found (torn). Caused by sharp weapon injury (1 to 5). (6) Abrasion with inflammation left elbow in back 2 c.m. x 1cm. (7) Contusion on the whole left (torn). Greenish in colour. (8) Contusion on the left shoulder over an over (torn) of 10 cm x 6 cm. Greenish in colour. (9) Abrasion with dry scab on the (torn)...region measuring 2 cm x 1cm. (10) (torn) left lateral side of neck in upper half, 2 cm x 2cm, Greenish in colour. 24. The injury Nos. 1 to 5 were said to have been caused by sharp weapons and those at Sl. Nos. 6 to 10 by a blunt object. In post mortem examination fracture of parietal and frontal bone was ascertained and extradural hemorrhage on right frontal area and subdural haemorrhage on the both side of the brain were found present. In the opinion of the Doctor performing the examination, death was due to (sic) as a result of ante mortem intracranial haemorrhage caused by ante mortem injury sustained on the head. The injuries were certified to be homicidal in nature. In the opinion of the Doctor performing the examination, death was due to (sic) as a result of ante mortem intracranial haemorrhage caused by ante mortem injury sustained on the head. The injuries were certified to be homicidal in nature. 25. The identification of the place of occurrence and the combative confrontation of the parties are clearly evidenced by the materials on record. That a cross case had been instituted on the information lodged with the Police by the accused appellants in which the informant and his family members have been charged sheeted is also a mater of record. Though both the parties have vied for the land involved, vis-a-vis the factum of possession, the scale tilts a little in favour of the informant. P Ws 1, 2, 3, 4 and 5 noticeably are consistent in this regard. They too have been categorical in denying the suggestion to the contrary. Notwithstanding the non-examination of Rabindra Paul and Mofur Ali on which a great emphasis has been laid on behalf of the accused appellants, in our opinion, this omission is not totally extinctive of the evidence forthcoming through these witnesses on this aspect of the debate. The testimony of P Ws 1, 2, 3, 4 and 5 proves that prior to the incident, the informant and his family members were in possession of the land and working on it. Even assuming that the accused appellants along with others had visited the land on the date of occurrence to resist any attempt on the part of the informant and his family members to occupy the land in question, which they (accused appellants) were under the bona fide impression to be theirs, in absence of any tangible evidence in support of their previous possession thereof, in our estimate, the plea of right of private defence to property would not be available to them. A pending litigation per se would not entitle them to avail the said plea more so as in the instant case when according to the prosecution, the civil suit pertained to a different plot of land. The evidence on record substantiates the charge that the accused appellants along with others had rushed to the place of occurrence armed with deadly weapons in a body. The fact that a free fight ensued thereafter, cannot ipso facto render Section 149 of the IPC in the facts and circumstances of the case inapplicable. The evidence on record substantiates the charge that the accused appellants along with others had rushed to the place of occurrence armed with deadly weapons in a body. The fact that a free fight ensued thereafter, cannot ipso facto render Section 149 of the IPC in the facts and circumstances of the case inapplicable. 26. The FIR, however, does not indicate the individual assaults by the accused persons named therein. Innus Ali, Nekbula Bibi and Kamlarun Nessa though said to have been injured in the episode have not been examined by the prosecution. As stated above, the evidence of PW1, 2, 3 and 5 cannot be acted upon qua the roles of the accused appellants in the actual infliction of assaults as the same in view of massive contradictions in the form of omissions in the stage wise narration of the incidents rendering them unreliable. The evidence of PW4, which remain unscathed from any such impairment, discloses the involvement of the accused appellant as hereinbelow. 1. Noor Ahmed, Safiqur Rahman, Niaj Ali, Ayaj Ali, Hilal Uddin had assaulted Kutub Ali. 2. Moinul Hoque was assaulted by Noor Ahmed by lathi, Safiqur Rahman by lenja, Jamir Uddin by dao. Niaj Ali is said to have also assaulted him. 3. Noor Ahmed assaulted Asab Ali Mazumdar with lathi. 4. Accused appellants along with others had assaulted Ismail Ali, Innus Ali, Mainul Haque and Surman Ali. 27. So far as Moinul Haque is concerned, it is apparent from the medical evidence that he died out of ante mortem head injuries resulting in intracranial hemorrhage. The injuries on the head of the deceased as the post mortem report discloses, ranges in size from one c.m. to six c.m. caused by sharp weapon. These injuries, according to the medical evidence, were the cause of his death. 28. The injuries sustained by others namely Kutub Ali, Ismail Ali, Innus Ali, Surman Ali and Asab Ali Majumder are simple and grievous as the case may be. 29. The complicity of the accused appellant, in view of the exclusion of the testimony of P Ws 1, 2, 3 and 5, thus would have to be ascertained on the statement of PW4 read with that of the medical experts and the supporting reports. 30. That there was a free fight between the two groups over their rival claims of possession of the land involved is more than apparent. 30. That there was a free fight between the two groups over their rival claims of possession of the land involved is more than apparent. It is clearly conceivable that members of the warring groups on the spur of the moment and in the fit of rage must have traded deadly attacks with whatever weapons were handy. The injuries detected on the head of the deceased, in our opinion, however, belies the charge that the accused appellant or his assailants had an intention to murder him. Had it been so, in view of the weapons wielded by them, the injuries would have been much more grievous as several assailants allegedly had pounced on him therewith. Be that as it may, the manner in which the accused appellants had conducted themselves it is clear therefrom that they too intended a violent and gory clash with full knowledge with the consequential assaults with the deadly weapons in their possession might result in death as well as grievous injuries to the other side. The sharp cut wounds on the head of the deceased therefore can be easily construed to be with the knowledge that the same in the ordinary course of events would result in his death. Considering the progression of events leading to the actual occurrence, we are therefore inclined to sustain the plea of lack of intention on the part of the accused appellant in inflicting the cut wounds on the deceased. 31. The above notwithstanding, in the face of our view on the availability of Section 149 of the Code to the prosecution we do not feel persuaded to deal with the accused appellant on the basis of their individual acts, their involvement in the occurrence being otherwise established. Noticing the injuries sustained by the deceased and others as recorded hereinabove, we conclude that it would be in the ends of justice if the conviction of the accused appellants is converted to one under Section 304Part-II of the IPC, 148, 149, 323 and 325 of IPC. 32. The accused appellants are in custody for over five and half years as on date. We are, however, not inclined to sustain the contention that their corporal sentence ought to be limited to the period undergone. 32. The accused appellants are in custody for over five and half years as on date. We are, however, not inclined to sustain the contention that their corporal sentence ought to be limited to the period undergone. On a totality of the considerations alluded as above, we feel that they ought to be awarded rigorous imprisonment for eight years for their offence under Section 304, Part-II and 149of the Code and fine of Rs. 1000 in default to suffer another rigorous imprisonment for another one month. They are also convicted for this offences under Section 323, 325 read with Section 148 of the Code and sentenced to six months imprisonment and fine of Rs. 500 in default to undergo further imprisonment for 15 days. All the sentences would run concurrently. The period already served would, needless to say, be set off from the sentence hereby awarded. The appeal stands allowed to the extent indicated hereinabove. Appeal allowed.