Judgment : ASHIM KUMAR BANERJEE.J Thirty-nine accused were initially charged under Sections 148, 149, 302 and 323 of the Indian Penal Code. After completion of examination of the prosecution witnesses the learned Judge acquitted twenty accused under Section 232 of the Criminal Procedure Code observing that there was no evidence as against them. Three accused died in course of trial. Remaining sixteen accused were proceeded and they were ultimately convicted by the learned Judge. Hence, this appeal by sixteen accused being the appellants above named. Perusal of the written complaint depicts that Abhoy Chandra Das, a school teacher made a written complaint to the Police on November 16, 1978 at about 9.30 a.m. to the effect that a group of persons belonging to CPIM Party were cutting away Paddy from the Barga land belonging to Abhoy. Abhoy along with PW-2, 4, 8 and 16 as well as Jogendra Kumar Das and Jadunath Das, brothers of Abhoy tried to resist them. The accused under the leadership of Subol Chandra Mondal the appellant no. 6 attacked them with Tungi, Lathi and Arrow, as a result Jogendra and Jadunath died on the spot. The learned Judge held all the sixteen accused guilty of the offence under Section 148, 149, 302 and 323 of the Indian Penal code. For the offence committed under Section 148 each one of them was sentenced to suffer rigorous imprisonment for three years. For the offence committed under Section 302 read with Section 149 for the murder of Jogendra each one of them was sentenced to suffer imprisonment for life coupled with a fine of rupees two thousand and in default to suffer rigorous imprisonment for six months. For the offence committed under Section 302 read with Section 149 for the offence for committing murder of Jadunath all of them was sentenced to suffer for imprisonment for life and to pay fine of rupees two thousand and in default to suffer rigorous imprisonment for six months. For the offence committed under Section 323 read with Section 149 inter alia for assaulting Brojen, each one of them was sentenced to suffer rigorous imprisonment for one year. Similarly, for assaulting Sudhir and Rajen, one year each rigorous imprisonment was imposed upon them. The learned Judge observed that the substantive sentence of imprisonment would run concurrently. Altogether twenty-four witnesses were examined by the prosecution. PW-1 (Abhoy Ch. Similarly, for assaulting Sudhir and Rajen, one year each rigorous imprisonment was imposed upon them. The learned Judge observed that the substantive sentence of imprisonment would run concurrently. Altogether twenty-four witnesses were examined by the prosecution. PW-1 (Abhoy Ch. Das) supported his complaint during trial. He was consistent in his deposition. He reiterated what he had stated in his written complaint, discussed above. PW-2 (Brojendra Kr. Das) was injured in the incident. He was a colleague of Abhoy teaching in the same school. His brother PW-16 also received injury. He was treated by Dr. M.M. Mondal (PW-21). PW-3 (Jotish Mohan Das) observed the incident from a distance of 150 to 200 cubits from his house. According to him, the assailants attacked Jogendra and assaulted him when he ran away and entered the house of the witness. PW-4 (Sudhir Chandra Das) another eye-witness categorically deposed that Subol had ordered “Sesh Kore Dao” (finish off). He also corroborated PW-1 about the incident. In addition, he stated that he was compelled to make a declaration that he was released. The witness was a Gram Panchayat member. The witness also sustained injury, however did not go for treatment. He was compelled to write on a paper that he had come there with his associates for causing assault. The accused initially staggered the paddy in the house of Sushila Dalui and then started taking those away from that place. He reported the matter to the Police. He also made statement before the learned Magistrate under Section 164 of the Criminal Procedure Code on the happening of the incident. PW-5 (Jaladhar Das) being an eye-witness confirmed that the accused attacked Jogendra and Jadunath by arrow, tungi, lathi and they succumbed to the injury on the spot. The witness signed the seizure list. PW-6 (Chittaranjan Biswas), did not personally see the incident, however, confirmed that the incident had occurred on the barga land belonging to Abhoy. He left the place when the persons rushed towards them with the slogan “Inclub Jindabad”. PW-7 (Brojendra Kumar Das) was also an eye-witness. He was working in the field next to Abhoy. He narrated the occurrence and also made statement under Section 164 of the Criminal Procedure Code before the learned Magistrate. He also confirmed Subol having said “Sala, Toder Kaifiat Dite Hobe?”. PW-8 (Pulin Behari Das) was also a school teacher. He witnessed the incident. He was working in the field next to Abhoy. He narrated the occurrence and also made statement under Section 164 of the Criminal Procedure Code before the learned Magistrate. He also confirmed Subol having said “Sala, Toder Kaifiat Dite Hobe?”. PW-8 (Pulin Behari Das) was also a school teacher. He witnessed the incident. He corroborated the earlier witnesses discussed above. He also narrated the incident to the Police. He also specifically stated that the assailants were led by Subal. He named some of the assailants. PW-9 (Shyam Sakhi Das) was the unfortunate widow of Jadunath. According to her, on being informed about the incident by Abhoy and Pulin, her husband left the house. PW-10 (Sachindra Kumar Das) was another villager. He also witnessed the incident and corroborated the earlier witnesses. PW-11 and 14 (Jamaluddin Sekh and Sk. Afsor Ali) also witnessed the incident whereas PW-13 (Priyalal Das) left the place immediately after the trouble started. PW-15 (Manoka Bala Das) was the unfortunate widow of Jogendra. Her husband was also on the spot. After getting the news she rushed to the spot and saw her husband dead. PW-16 (Rajendra Kr. Das) also sustained injury. Neighbours took him to the Primary Health Centre where he was treated. He was then referred to Pathar Pratima Hospital and then to Diamond Harbour Hospital. He was in hospital over twenty-one days. The Investigating Officer examined him. He narrated the incident to the doctor at the Primary Health Centre where he was treated. PW-18 (Mahendra Kr. Das) also confirmed the incident. PW-20 (Dr. R.N. Roy) held the post mortem of Jogendra and Jodunath and confirmed the injuries appearing on the dead body being the cause of the death. PW-21 (Dr. M.M. Mondal) treated Brojendra at the Primary Health Centre whereas Dr. Sibsankar Sarkar examined Rajendra at Diamond Harbour Hospital. PW-23 (Dr. M.L. Chowdhury) attested the Injury Report given by Dr. Sib Sankar Saha being PW-22. PW-24 (Nisith Basu) was the Investigating Officer. He acted on the written complaint received from Abhoy. He registered a case and then proceeded to make inquiry, ultimately thirty-nine persons were charged by him. Each and every incriminating evidence was put to the accused under Section 313. They denied the allegation and pleaded innocence. On analysis of the evidence the learned Additional Sessions Judge, Alipore held all the sixteen persons guilty of the offence and sentenced them accordingly as referred to above. Each and every incriminating evidence was put to the accused under Section 313. They denied the allegation and pleaded innocence. On analysis of the evidence the learned Additional Sessions Judge, Alipore held all the sixteen persons guilty of the offence and sentenced them accordingly as referred to above. The learned Judge was of the opinion that the prosecution could prove that sixteen accused persons were members of an unlawful assembly. They were guilty of rioting being armed with deadly weapons like lathi, bow, arrow, sphere, tangi etc. and as such they were guilty of the offence committed under Section 148. Similarly, they were guilty of the offence under Section 302 read with Section 149 as they committed murder of Jogendra and Jadunath. They were also guilty under Section 323 for assaulting Brojendra, Rajendra and Sudhir. They were however acquitted of the charge of committing assault of Jotish Mohon. Being aggrieved and dissatisfied with the judgment and order of the Additional Sessions Judge, Alipore, the sixteen convicts preferred the instant appeal being the appellants above named. Mr. Jyotirmay Adhikary, learned counsel appearing for the appellants contended as follows:- (i) Neither the prosecution did prove that the victims were Bargadars nor the owners came to their support. (ii) The learned Judge failed to appreciate that before fixing up the responsibility overt acts done by each of the accused were necessary to be considered. (iii) The appellants were entitled to harvest the Paddy when the victim group attacked them and there was a free fight attracting benefit of Exception 4 of Section 300. (iv) There was substantial improvement on the version of the complainant during trial as he had failed to disclose material particulars in his complaint. (v) There were contradictions in between the statements made before the Police under Section 161, and their statements before learned Judge during trial. (vi) Even if the statement made under Section 164 was taken as sacrosanct, no specific overt act was spelt out fixing up responsibility of each of the accused. Elaborating his argument, Mr. Adhikary contended that the prosecution failed to prove that the victim group led by the complainant was Bargadar on the subject land and did cultivate the said land. The owners of the said land did not come forward to support their claim. Hence, the very basis of the incident was wrong, as depicted by the prosecution. Mr. Adhikary contended that the prosecution failed to prove that the victim group led by the complainant was Bargadar on the subject land and did cultivate the said land. The owners of the said land did not come forward to support their claim. Hence, the very basis of the incident was wrong, as depicted by the prosecution. Mr. Adhikary further contended that it was the case of the prosecution that the appellants were harvesting Paddy and they tried to resist such harvesting. From the said statement it would be clear that the attack came from the victim group and as such the appellants were entitled to resist them as and by way of defence attracting Explanation 4 of Section 300. He further contended that the complainant initially did not mention the names of the appellants and their respective overt acts and subsequently tried to improve his statement during trial. Such attempt would belie the case of the prosecution as normal human conduct would not suggest improvement. Mr. Adhikary further contended that once there was an unlawful assembly, so held by the learned Judge, in absence of specific overt act being clearly found in the trial, it would not be wise to acquit one batch and convict the other. Pertinent to note, out of thirty-nine accused sixteen were convicted. Mr. Adhikary lastly contended that on analysis of evidence in case this Court would not find favour with his argument and come to conclusion that the appellants were responsible for the murder of Jadunath and Jogendra, this Court should modify the conviction and sentence from Section 302 to Section 304, Part-II as the Post Mortem Report would show that the injuries were caused by blunt substance and not caused by any sharp cutting weapon, being the cause of the death. Mr. Usuf Ali Dewan, learned counsel being ably assisted by Ms. Minoti Gomes, opposing the appeal on behalf of the prosecution, contended that the learned Judge considered the overt act of each of the accused, so came out during trial and as such fixed the responsibility as discussed in the judgment. Mr. Dewan further contended that the eye-witnesses was consistent in giving elaborate narration of the incident. The injuries were grievous. The defence did not attempt to portray that it was a mutual fight between two groups. Hence, their contentions were not tenable. Mr. Mr. Dewan further contended that the eye-witnesses was consistent in giving elaborate narration of the incident. The injuries were grievous. The defence did not attempt to portray that it was a mutual fight between two groups. Hence, their contentions were not tenable. Mr. Dewan further contended that in case of a group fight the appellants could have also sustained injury. No injury was caused to any of the appellants, at least not claimed by them. Hence, the concept of “group fight” was far from truth. He also disputed the contention of Mr. Adhikary that the injuries were not caused by sharp cutting weapon. On the issue of improvement of the version of the complainant, Mr. Dewan contended that FIR was nothing but a first hand information to be sent to the Police Station to make the Investigative Agency active. The informant, however, was entitled to give detailed narration of the incident at the time of trial. There was nothing irregular in absence of any inconsistency and/or contradiction in those statements. Replying to the contentions of Mr. Dewan, Mr. Adhikary contended that there was delay in examining the injured by the doctor. It would suggest that such injury was superficial. The so-called eye-witnesses were relatives of the victim and there bound to be exaggeration. The villagers not related to the victims, were never examined. PW-7, 11 and 14 were outsiders. Out of them PW-14 was not examined by the Police under Section 161 whereas PW-7 and 11 made contradictory statements during trial. Hence, the contentions of the prosecution did not have any basis. Mr. Adhikary, in support of his contentions, relied on the following Apex Court decisions:- (i) All India Reporter 1993 Supreme Court Page-302 (Ramaotar –VS- State of Madhya Pradesh) (ii) All India Reporter 1993 Supreme Court Page-400 (Sarman and Others –VS- State of Madhya Pradesh. The learned advocates for the prosecution cited the following decisions:- (i) 2005 Supreme Court Cases (Criminal) Page-812 (Jai Karan and Others –VS- State of Uttar Pradesh) (ii) 2008 Volume-I Supreme Court Cases (Criminal Page-362 (Vikram & Others –VS-State of Maharashtra) Appellants nos. 5, 13, and 14 already died as contended by Mr. Adhikary. He undertook to file necessary Death Certificate in respect of the said appellants before the Court below. Hence, we are only concerned with the rest thirteen appellants. We have considered the rival contentions. We have carefully examined the evidence. 5, 13, and 14 already died as contended by Mr. Adhikary. He undertook to file necessary Death Certificate in respect of the said appellants before the Court below. Hence, we are only concerned with the rest thirteen appellants. We have considered the rival contentions. We have carefully examined the evidence. Let us first consider each of the appellants and their involvement in commission of the crime. Appellant no.1 (Panchanan) was specifically named by PW-4, 5 and 7. The informant being PW-1, Abhoy Charan in his complaint named the appellant no.1 being a member of the assembly. He, however, did not mention any overt act by this appellant. During trial also, PW-1 did not specifically allege any overt act being done by appellant no.1. If we consider the statements of PW-4, 5 and 7 we would find that the witness Sudhir Chandra Das was injured in the incident. He almost corroborated PW-1 Abhoy. He also specifically named Subal leading the accused team. According to him, Subal ordered to finish them off. According to him, he saw Panchanan being present there. He specifically mentioned about Dhananjoy, Fozlu being armed with weapons. Similarly PW-5, Jaladhar and PW-7 Brajendra who was also injured in the incident, did not specifically mention about any overt act of Panchanan. In such event, we are of the view that when the incident occurred in broad day light in an open field there bound to be assembly of villagers who might be onlookers. Mentioning of the name of the Panchanan, that too by only three witnesses, in our considered view, was not sufficient to implicate him and convict him for the offence committed inter alia, under Section 302 and/or Section 326. We are also not sure whether he was a member of the attacking group or not as his name was not uttered by any other witnesses including the FIR informant. Similarly, the appellant no.15, Mukundo was not named by any one except PW-7. Jaladhar. In case of appellant no.16 Prankrishna, Abhoy mentioned his name whereas Jaladhar, PW-5 stated that Prankrishna was responsible for injuring Sudhir, Rajen and Brojen. Significantly, neither Sudhir nor Brojen did say so. Rajen, however, categorically said that Prankrishna assaulted him. According to him, Sudhir was dragged by Fazlur and Ramjan. The specific assertion by Rajen did not have any corroboration from the other witnesses. Significantly, neither Sudhir nor Brojen did say so. Rajen, however, categorically said that Prankrishna assaulted him. According to him, Sudhir was dragged by Fazlur and Ramjan. The specific assertion by Rajen did not have any corroboration from the other witnesses. From a sum total of the evidence we thus find that Panchanan, Mukundo and Prankrishna were entitled to the benefit of doubt and the learned Judge was not right in convicting them. Thus, it takes us to the issue of the rest ten appellants being appellant nos. 2, 3, 4, 6, 7, 8, 9, 10, 11 and 12. We find that the witnesses were consistent on the issue of leadership. All consistently stated that Subal (Appellant no. 6) led the group and ordered his associates to “finish them off”. Involvement of the said appellants were specifically mentioned by the eyewitnesses. Let us set out the extract of the analysis. Sl. No. Appellants Witnesses implicated the appellants in their deposition 2. Subhas Pramanik PW1, PW2, PW5, PW7, PW8, PW10, PW11, PW16 3. Gobinda Debnath PW4, PW5, PW8, PW11, PW16 4. Raimohan Hasda-(He threw arrow to Jogendra Das) PW7, PW8, PW10, PW11, PW16 6. Subal Mondal-(leader of the Association) PW1, PW2, PW3, PW4, PW5, 7. Gopal Naiya PW1, PW2, PW5, PW7, PW8, PW10, PW11, PW16 8. Sk. Idrish PW1, PW2, PW4, PW5, PW8, PW10 9. Fajlul Rahaman PW1, PW2, PW4, PW5, PW7, PW8, PW10, PW11, PW16 10. Dhananjoy Debnath PW1, PW2, PW5, PW7, PW8, PW10, PW16 11. Lakshman Hasda-(He threw arrow to Jogendra Das) PW1, PW2, PW4, PW5, PW10, PW11, PW16 12. Giasuddin Haldar PW2, PW5, PW7, PW8, PW10, PW16 We, thus, independently find that the above ten appellants did have a significant role to play in the matter of commission of the crime and the prosecution was able to prove the same. Lot was said by Mr. Adhikary on implication of each of the accused. It is true that when an organized gang forming an unlawful assembly within the meaning of Section 148/149, commits a crime inter alia, under Section 326 and Section 302 it would be difficult for the victim group to specifically pin down each and every overt act of each of the members of the assembly, particularly when they were being chased and attacked by the accused group. What is required in a trial, is, involvement of each of the accused so narrated by the witnesses including the injured witnesses and those evidence are consistent having corroboration from each other. A minor discrepancy in describing an overt act would not deserve acquittal. Here thirty-five persons were named in the complaint being associated by ninety-six/ninety-seven. Ultimately, thirty-nine persons were charged with the offence. During trial, the learned Judge found twenty-three accused were not implicated by the eye-witnesses including the injured witnesses and the learned Judge was right in acquitting them of the charges. Sixteen appellants were held guilty of the offence in view of their names being taken by the witnesses. Out of those sixteen, three died during pendency of the appeal. Hence, we refrain from making any comment on them. We have already observed that appellant nos. 1, 15 and 16 were entitled to have a benefit of doubt in absence of any specific corroboration by the other witnesses as discussed above. The rest ten appellants were specifically mentioned by the witnesses including the injured witnesses having sufficient corroboration from the other witnesses. When a group of persons being members of an unlawful assembly committed a crime it would not be possible for each of the witnesses to mention specifically, each one of the accused. What is required was that whether a particular accused was mentioned by any witness specifically accusing him for committing an overt act and such statement was having sufficient corroboration from a host of witnesses. In such case, the Court was competent to sign the judgment of conviction considering the involvement of the accused so narrated by the witnesses. In our view, the prosecution was able to satisfy such test in respect of the ten appellants mentioned above. The decision in the case of Ramaotar (Supra) and Sarman and Others (Supra) were cited by Shri Adhikary to support his contention that it was a fit and proper case for converting the conviction and sentence from Section 302 to Section 304, Part-II. We are unable to apply the ratio in the instant case. On analysis of the evidence we are convinced that neither the appellants were entitled to benefit of Explanation 4 of Section 300 nor it is a fit and proper case to describe the incident as “accident” or “unintentional” attracting lesser punishment under Section 304 Part-II. We are unable to apply the ratio in the instant case. On analysis of the evidence we are convinced that neither the appellants were entitled to benefit of Explanation 4 of Section 300 nor it is a fit and proper case to describe the incident as “accident” or “unintentional” attracting lesser punishment under Section 304 Part-II. From the analysis of evidence it is clear that the appellants did not receive any injury. Hence, the concept of mutual fight or attack by the victim group was not tenable. From the consistent evidence of the witnesses to the effect that Subal ordered to finish them off, we are unable to find out any scope of application of the said ratio by modifying the conviction and imposing a lesser punishment under Section 304 Part-II. In the case of Jai Karan and Others (Supra), the Apex Court observed that when there was any contradiction, inconsistency, exaggeration or embellishment that would, per se, not vitiate the trial when the offence was proved by expert report being the medical evidence as well as the ocular testimony. In the case of Vikram & Others (Supra) the eye-witnesses were examined in Court after about two and half years of occurrence. The Apex Court observed that contradictions and omissions in their deposition would not lead to a conclusion that the Appellant had been falsely implicated. In our view, the Appellants nos. 2, 3, 4, 6, 7, 8, 9, 10, 11 and 12 were rightly convicted and sentenced by the learned Judge and we do not find any scope of interference. The appeal thus fails in respect of Appellants nos. 2, 3, 4, 6, 7, 8, 9, 10, 11 and 12 and is dismissed. The appeal is also dismissed in respect of Appellant nos. 5, 13 and 14 as they died during pendency of the appeal. The appeal is partly allowed by acquitting the Appellants nos. 1, 15 and 16 by giving them the benefit of doubt. In case the Death Certificates are not produced before the Court below in respect of Appellants nos. 5, 13 and 14 the Court below would cause necessary inquiry with regard to the death and take steps accordingly. The sureties are discharged in respect of the Appellant nos.1, 15 and 16. Their Bail Bonds are cancelled. The appellants nos. In case the Death Certificates are not produced before the Court below in respect of Appellants nos. 5, 13 and 14 the Court below would cause necessary inquiry with regard to the death and take steps accordingly. The sureties are discharged in respect of the Appellant nos.1, 15 and 16. Their Bail Bonds are cancelled. The appellants nos. 2, 3, 4, 6, 7, 8, 9, 10, 11 and 12 are directed to surrender before the Court below for suffering of the remainder part of the sentence. In default, their sureties are directed to produce them in Court for the said purpose, in default the Court below would take appropriate steps by issuing necessary Warrant of Arrest and/or proclamation in accordance with law. Let a copy of this judgment along with the Lower Court Records be sent down at once for information and necessary action. Urgent xerox certified copy will be given to the parties, if applied for. Raghunath Ray, J I agree.