JUDGMENT A.C. Upadhyay, J. 1. Heard Mr. Mr. S. D. Choudhury, learned Counsel appearing for the appellants. Also heard Mr. A. Ghosh, learned Additional Public Prosecutor, for the respondent-State of Tripura. 2. This appeal is directed against the judgment and order dated 20.05.2002 passed by the learned Additional Sessions Judge, South Tripura, Udaipur, in Case No. ST.08 (ST/U) of 1993, whereby the accused appellants were convicted under Section 148/324/304 Part-II read with Section 149 of the Indian Penal Code (for short 'IPC') and were sentenced to undergo rigorous imprisonment for one year under Section 148 of IPC and further sentenced to undergo rigorous imprisonment for one year under Section 324 of IPC read with Section 149 and also to pay a fine of Rs.1,000/-, in default, to suffer further rigorous imprisonment of three months, and they were further sentenced to rigorous imprisonment for five years with a fine of Rs.5,000/-, in default, to suffer rigorous imprisonment for one year more, for commission of offence under Section 304 Part-II read with Section 149 of IPC. 3. The prosecution case arose on the basis of a first information report lodged by Shri Sankar Bhowmik on 11.01.1990 at 08-30 pm. The FIR submitted by Shri Sankar Bhowmik reveals that on 11.01.1990 at about 7-00 pm at Dhajanagar market the first informant together with Pankaj Sen, a grocery shopkeeper, and others were having discussion, then all on a sudden the accused-appellants attacked them with sharp cutting weapons, such as, Ramda, Cheni dao, Dagger, Kirich and Ballam(spear), as a result of the said attack, the victims, namely, Pankaj Sen, Aurn Chakraborty, Sankar Bhowmik, Haru Saha and Goutam Chakraborty sustained injuries and were hospitalized at Udaipur and Agartala hospitals. 4. On the basis of the above FIR, the Officer-in-charge of R.K. Pur Police Station, registered a case under Sections 148/149/307/326 of IPC and took up the investigation. However, in the mean time, one among the injured i.e. Pankaj Sen, succumbed to the injuries. During the course of investigation the I/O recorded the testimony of the witnesses under Section161 of Cr.P.C. and also carried out the inquest of the dead body and sent the dead body for postmortem examination and on completion of investigation submitted charge sheet against the accused-appellants and others under Sections 148/149/448/324/325/302 of IPC. 5. During the course of investigation the I/O recorded the testimony of the witnesses under Section161 of Cr.P.C. and also carried out the inquest of the dead body and sent the dead body for postmortem examination and on completion of investigation submitted charge sheet against the accused-appellants and others under Sections 148/149/448/324/325/302 of IPC. 5. The case being exclusively triable by the Court of Sessions, the learned Chief Judicial Magistrate, South Tripura, Udaipur committed the case to the court of learned Sessions Judge, South Tripura, Udaipur and the learned Sessions Judge, South Tripura, Udaipur transferred the case to the Court of learned Additional Sessions Judge, South Tripura, Udaipur for trial. During trial, the learned Additional Sessions Judge, South Tripura, Udaipur framed charge under Section 148/326/302 read with Section 149 of IPC, against the accused-appellants. On reading over and explaining the charge aforesaid, the accused appellants, pleaded not guilty to the charge and claimed to be tried. 6. The prosecution, during trial examined as many as eight witnesses to prove the charge aforesaid. All the prosecution witnesses were duly cross-examined by the learned defence counsel. On conclusion of recording statement of the prosecution witnesses, the learned Additional Sessions Judge, South Tripura, Udaipur, recorded the statement of the accused-appellants under Section313 of Cr.P.C. The accused-appellants took the stand of total denial of the accusation levelled against them. On conclusion of the trial, the learned Additional Sessions Judge, South Tripura, Udaipur convicted and sentenced the accused-appellants as aforesaid, giving rise to this appeal. 7. Learned counsel appearing for the accused-appellants has submitted that the incident occurred as far back as on 11.01.1990 and the learned trial court passed the judgment on 20.05.2002 and by this time so many years has rolled by and the delay occurred due to various factors not attributable to the accused appellants. He further submits that the victim, who allegedly died as a result of the assault made by the accused appellants, was treated in the hospital for a considerable period of time before his death. However, the doctor, who carried out the postmortem examination and was in-charge of the treatment of the deceased, did not produce the bed head ticket of G.B. hospital, Agartala to ascertain the cause of death of the victim. Further, the postmortem examination report of the victim reveals the cause of death of deceased Pankaj Sen due to cardiac respiratory failure. However, the doctor, who carried out the postmortem examination and was in-charge of the treatment of the deceased, did not produce the bed head ticket of G.B. hospital, Agartala to ascertain the cause of death of the victim. Further, the postmortem examination report of the victim reveals the cause of death of deceased Pankaj Sen due to cardiac respiratory failure. Learned counsel for the accused-appellants has pointed out that the Investigation Officer (PW.6) did not make any endeavour to cause serological test of the blood socked earth collected from the alleged place of occurrence and except PW.1, no other victims of the alleged incident were produced by the prosecution side as witness to prove the charge made against the accused-appellants. Learned counsel for the accused-appellants has also pointed out that withholding of the important injured witnesses by the prosecution has cast a serious doubt on the veracity of the prosecution story. 8. By drawing the attention of the Court to the statement given by the witnesses before the I/O during investigation, learned Counsel for the appellants submitted that the prosecution witnesses developed a new story during trial, going back from their earlier statement so given during investigation. In support of his contention, learned Counsel for the appellants, relied on a decision of the Division Bench of this Court (Criminal Appeal No. 12 of 1982, judgment dated 03.08.1993) and prayed for remand of the case to the learned trial Court to enable the defence to confront the investigating officer, who recorded the statement of the witnesses during investigation. Mr. Ghosh, learned Additional P.P., on the other hand, intensely contended that since the I/O (P.W.6) was not confronted with the alleged contradictory statement of the witnesses at the time of his cross-examination, the contradiction sought to be established by the appellants, cannot be taken into consideration at this stage. Learned Additional P.P. pointed out that such relaxation would only enable the appellants to make an ambitious attempt to try to plug the loop holes and thus delay disposal. Learned Addl. PP submitted that eye witnesses to the occurrence proved the charge against accused appellants beyond all reasonable doubt and therefore, there is no scope to interfere with the impugned judgment of the learned Sessions Judge. 9. In order to appreciate the rival contentions made by the parties, I deem it appropriate to discuss the core of the prosecution evidences. PP submitted that eye witnesses to the occurrence proved the charge against accused appellants beyond all reasonable doubt and therefore, there is no scope to interfere with the impugned judgment of the learned Sessions Judge. 9. In order to appreciate the rival contentions made by the parties, I deem it appropriate to discuss the core of the prosecution evidences. One of the victims and eyewitness to the occurrence is PW.1, Sri Sankar Bhowmik . In his deposition, P.W.1 stated that on 11.01.1990 at about 7 pm, he was gossiping along with Goutam Chakraborty, Arun Chakraborty and Pankaj Sen, in the shop of Pankaj Sen situated at Dhajanagar Bazar. Suddenly, accused Timir Chakma, Tapan Das, Debasish Chakraborty, Sankar Bardhan, Goutam Debnath, Bishnupada Dey and Jalal Miah armed with dao and spear attacked them in front of the shop of Pankaj Sen. PW.1 stated that Goutam Debnath and Timir Chakma inflicted dao blows on Pankaj Sen, causing serious injuries on his head and back. Accused appellant Tapan Das inflicted chopper bolw on his left causing serious injuries. P.W.1 further stated that Tapan Das and Timir Chakma also struck "dao" blows on Goutam Chakraborty and Arun Chakraborty, which resulted in causing serious injuries on their persons. PW.1 further stated that the accused-appellants had also assaulted Haru Saha in his shop situated in the said market. He also clarified that although the injured were brought to Tripura Sundari District hospital, Udaipur for treatment, but Pankaj Sen was referred to G.B.hospital for better treatment due to serious ness of his injuries. However, he added that Pankaj Sen succumbed to his injuries on 30.01.1990. PW.1 confirmed that t doctor had given him seven number stitches on the injury sustained by him and he was in the hospital for about five days. P.W.1 also proved the Ejahar, Exbt-, written by PW.3, which was submitted him. 10. When PW.1 was confronted with his statement recorded under Section 161 of Cr.P.C. during his cross-examination. However, such a statement, which was recorded by the I/O, PW.6, during investigation, was not confirmed at the time of cross-examination of the I/O. The cross-examination of this eye witness by the defence could not extract anything substantial to help the defence stand. 11. PW.2 is a businessman by profession and had a shop house situated at a distance of about 15/20 cubits away from the shop of Pankaj Sen. 11. PW.2 is a businessman by profession and had a shop house situated at a distance of about 15/20 cubits away from the shop of Pankaj Sen. According to PW.2, at about 6/7 pm on 11.01.1990, i.e., on the date of occurrence, accused-appellants Goutam Debnath, Timir Chakma, Tapan Das with Chopper (dao) in their hands along with other accused struck Pankaj Sen with dao. P.W.2 further stated that he saw Haradhan Saha (now dead) and Bimal Datta (now dead), being assaulted by the accused appellants. PW.2, further confirmed that Arun Chakraborty, Goutam Chakraborty and Sankar Bhowmik were also attacked and assaulted and as a result of which they had sustained injuries on their persons. But apparently in his cross-examination PW.2 categorically admitted to have stated before the police that at the relevant point of time of the occurrence upon hearing hue and cry and noticing running of people to and fro, he closed the shutter of his shop and remained inside and after 10/15 minutes of the occurrence, when he came out of his shop he learnt that Pankaj Sen, Sankar Bhowmik and Arun Chakraborty, were shifted to hospital. Therefore, testimony of this witness cannot be treated as eyewitness. However, from the evidence of PW.2 it is clear that there was an incident of attack and assault by the accused appellants upon the persons of the injured, who were immediately shifted to hospital for treatment . 12. PW.3 is the writer of the First Information Report. In his deposition he corroborated the version of PW.1 to the effect that on the dictation of the latter he wrote the Ejahar, Exbt-. 13. PW.4, Sri Subhas Ghosh, is another eyewitness to the occurrence. According to PW.4, he was in his shop at Sukanta market at a distance of about 20/25 cubits away from the shop of Pankaj Sen at Dhajanagar market. PW.4 in his deposition stated that on the date of occurrence at about 7 pm he was sitting in his shop. On hearing a hue and cry in front of the shop of Pankaj Sen, he rushed to the place of occurrence, where he saw that the accused-appellants Debasish Chakraborty, Timir Chakma, Tapan Das, Goutam Debnath, Sankar Barchan, Bishnupada Dey, Jalal Miah and Hossain Miah, all armed with dao, ballam, lathi and kirich etc., were damaging the articles of the shop of Pankaj Sen. He also saw the accused-appellants assaulting Pankaj Sen with dao. PW.4 further stated that he had seen Sankar Bhowmik, Arun Chakraborty and Goutam Chakraborty, sitting inside the shop of Pankaj Sen, being assaulted by the accused-appellants. PW.4 further confirmed that he saw Pankaj Sen was lying inside his shop house with bleeding injuries on his person. According to PW.4, he also helped in shifting all the victims to Tripura Sundari District Hospital, Udaipur. P.W.4 also stated that Pankaj Sen, who was shifted to G.B. hospital, died on 30.01.1990. 14. PW.4 in his evidence confirmed that the I/O caused seizure of some blood stained earth, hair and broken glass from the shop of Pankaj Sen by preparing a seizure list, where he put his signature as a witness. Though a few questions were put to PW.4 to prove contradictions in his previous statement before the investigating office, but the learned defence counsel did not make any effort to cross-examine the I/O to confirm the so called contradictory statement made by this witness. However, on careful analysis of the evidence of PW.4, no material inconsistency is found in his deposition to make his testimony unreliable. 15. Learned counsel for the appellant relying on the observation made by a Division Bench of this Court in Cr. Appl.No.12 of 1982 decided on 03.08.1993 (Mritunjoy Chakma Vs. 1 State of Tripura), (2010(1) GLT 252), submitted that the appeal pending before this Court may be remanded to the trial Court to enable the accused appellants to cross examine the I.O. in order to prove the contradictions in the statement of the witnesses . The relevant observation in the aforesaid decision reads as follows: PWs. 2, 4 and 5 deposed that the mother went near the injured and asked him what happened and he told her that mritunjoy (Appellant) stabbed him. . . It was suggested in cross-examination of P. W. 4 that he did not mention about this dying declaration to the investigating Officer. He denied the suggestion. We find a note made in the deposition by the learned Sessions Judge that there was no reference to it in the case diary statement. Of course, it may be open to the learned Sessions Judge for the purpose of verifying whether a correct suggestion was being put to look into the case diary statement. He denied the suggestion. We find a note made in the deposition by the learned Sessions Judge that there was no reference to it in the case diary statement. Of course, it may be open to the learned Sessions Judge for the purpose of verifying whether a correct suggestion was being put to look into the case diary statement. However, we do not think it was any part of the duty of the learned Sessions to make a note. The defence counsel would be well advised in the case of a positive contradiction to get the relevant portion marked tentatively subject to proof. Of course no part of the statement can be marked in the case of an omission. Where the witness denies the contradictory previous statement, it requires proof through the investigating Officer who questioned him. No attempt was made to contradict P. W. 4 with reference to omission in the previous statement. We find that no attempt was made to prove the omission when the Investigating officer was being examined. We would like to point out that even if the defence counsel fails in the discharge of his duty, the learned sessions Judge cannot be a silent spectator. Where it is obvious to him that there is a contradiction as asserted by a witness, he would do well to alert the defence counsel so that requirements of Section 145 are satisfied. 16. In this case, witness P.W.1 was himself an eye witness and a victim of occurrence; therefore, the context in which the evidence of the witness was rejected in Mritunjoy Chakma (supra), cannot be equated and held to be similar in the present case. There is no reason to discard the testimony of eyewitness P.W.1, in toto, applying the above observation of the Division Bench of this Court. The ratio of the decision in Mritunjoy 2 Chakma Vs. State of Tripura (supra) can not be pressed into service to extend any benefit to the accused appellants, at this stage of the appeal, by remanding the case to the trial Court to enable the accused appellants to cross-examine the I.O. 17. From the evidence of P.W. 4 it clearly transpires that he immediately came to the place of occurrence, after hearing the hue and cry and reached the place of occurrence to witness the accused appellants assaulting the injured and the deceased. From the evidence of P.W. 4 it clearly transpires that he immediately came to the place of occurrence, after hearing the hue and cry and reached the place of occurrence to witness the accused appellants assaulting the injured and the deceased. According to him, P.W.4 entered into the shop of Pankaj Sen together with other people of the market and could see Pankaj Sen lying in the floor with bleeding injuries which implies that P.W.4 did reach the place of occurrence at the relevant time to witness the incident. 18. P.W.5, Smti. Anjali Sen, mother of the deceased Pankaj Sen. She is not an eyewitness but in her evidence P.W.5 stated that she met her son at G.B. hospital, Agartala on 13.01.1990, when Pankaj Sen could speak to her and stated that on 11.01.1990 at about 7 pm when Pankaj was entertaining his friends, namely, Arun Chakraborty, Goutam Chakraborty and Sankar Bhowmik with sweets on the occasion of his passing B.A. examination, suddenly he was attacked assaulted by deadly weapons by Debasish Chakraborty, Timir Chakma, Tapan Das, Goutam Debnath, Bishnupada Dey, and one Muslim in his shop. 3 She further confirmed that her son Pankaj Sen died on 30.01.1990. 19. P.W.6 is the Investigating Officer of this case. In his deposition he stated that on 11.01.1990, on receiving a telephonic information from the duty officer of R.K. Pur Police Station regarding an incident of fight at Dhajanagar bazaar consequent admission of some of the victims in Udaipur District hospital for treatment, he rushed to the hospital and found Pankaj Sen, Arun Chakraborty and Sankar Bhowmik in the hospital bed with injuries on their person. PW.6 attempted to record statement of the aforesaid victims but the attending medical officer advised him not to record statement at that stage as the victims were not in a position to make statement. P.W.6 visited the place of occurrence, i.e. Dhajanagar market, and on the way he met victim Haradhan Saha and Goutam Chakraborty and arranged to send them to Udaipur District hospital. . P.W.6 stated that when he visited the hospital he was informed by the attending doctor that Pankaj Sen was shifted to G.B. hospital, Agartala for better treatment. However, in the meantime, Sri Sankar Bhowmik, PW.1 through one Pradip Saha P.W.3, submitted Ejahar, which was received in the police station at 08-30 pm, on the same day. . P.W.6 stated that when he visited the hospital he was informed by the attending doctor that Pankaj Sen was shifted to G.B. hospital, Agartala for better treatment. However, in the meantime, Sri Sankar Bhowmik, PW.1 through one Pradip Saha P.W.3, submitted Ejahar, which was received in the police station at 08-30 pm, on the same day. After registration of the case P.W.6 took up the investigation. On 30.01.1990 P.W.6 received information that Pankaj Sen succumbed to his injuries. On completion of investigation P.W.6 submitted charge-sheet against the accused-appellants. 4 20. PW.7, Dr. D. Debnath, in his evidence deposed that Arun Chakraborty, Goutam Chakraborty, Sankar Bhowmik, Haradhan Saha and Nandu Das, were medically examined by him between 7-00 pm and 8-20 pm at Udaipur District hospital on 11.01.1990. PW.7 further confirmed the injuries sustained by the victims which read as follows : Arun Chakraborty was examined at 7 p.m. There was a lacerated injury over the middle of the ventral expects of the left forearm measuring 1" X ½" X ½". There was another lacerated injury on the left thigh at the middle measuring 2" X ½" X ½". Both the Injuries were simple in nature caused by blunt object. Goutam Chakraborty was examined at 8-05 p.m. - There was a lacerated injury over the left lumber reason- measuring 3" X 3/4" X ½" - only skin depth - simple in nature caused by blunt object of the weapon. Sankar Bhowmik was examined at 7 p.m. - there was one lacerated injury over the left arm at the junction of upper one third and lower two third - measuring 3" X 1" X ½" - muscle involved. There was also loss of muscle (vrachialia) part - The injury was grievous in nature caused by sharp weapon. Haradhan Saha was examined at 8-10 p.m. - there was tenderness in right scapular reason - simple in nature caused by blunt object of a weapon. Nandu Das alias Nanigopal Das was examined at 8-20 p.m. there was tenderness in left forearm at the middle - simple in nature caused by blunt weapon object. The injury of Sankar Bhowmik may be caused by means of dao(Chopper). 21. PW.8, Dr. Nandu Das alias Nanigopal Das was examined at 8-20 p.m. there was tenderness in left forearm at the middle - simple in nature caused by blunt weapon object. The injury of Sankar Bhowmik may be caused by means of dao(Chopper). 21. PW.8, Dr. P.K. Das, in his evidence stated that he conducted postmortem examination on the dead body of deceased 5 Pankaj Sen in the hospital morgue and recorded the detailed report of postmortem examination in the prescribed form, which was exhibited and marked as Exbt.. The postmortem report clearly reveals that the deceased was found with wound measuring 4"x½"x bone deep over right occipital parietal region with fracture, one penetrating wound measuring 1½"x½"x½" below the right scapula, one penetrating wound below the right elbow measuring 1½"x½" x½", stitched lacerated wound ½"x½" over the nose and penetrating wound on the middle of left scapula measuring 1½"x½". The doctor, who carried out the post mortem of the dead body, clearly opined that the death was caused due to cardiac-respiratory failure. 22. Learned counsel for the accused-appellants has submitted that the prosecution by failing to produce the material witnesses, who were injured at the time of occurrence, has created grave doubt in the prosecution story. Learned counsel for the appellants has pointed out that as many as 21 witnesses were named in the FIR, however, at the time of recording of the testimony of the prosecution witnesses only eight witnesses were produced before the Court during trial and the witnesses were not reliable due to inherent contradictions in their statements. Learned counsel has further pointed out that by deliberately withholding the important prosecution witnesses, the prosecution has caused great prejudice in the defence of the accused appellants. Learned counsel has further contended that if those 6 witnesses, which were withheld by the prosecution, would have been examined, they would not have supported the prosecution case. 23. However, the facts remain that there is no specific number of witnesses to be adduced in a criminal trial to prove the charge. Proof of a charge levelled against the accused-appellants, solely rests upon the quality of witnesses produced by the prosecution and not the quantity. 24. In this regard the Supreme Court in the case of Amar Singh v. Balwinder Singh and Ors. Proof of a charge levelled against the accused-appellants, solely rests upon the quality of witnesses produced by the prosecution and not the quantity. 24. In this regard the Supreme Court in the case of Amar Singh v. Balwinder Singh and Ors. (2003)2 SCC 518 , held that the witnesses essential to the unfolding of the narrative on which the prosecution is based must be called by the prosecution, whether effect of their testimony is for or against the case of the prosecution .However, the Apex court clarified that does not mean that everyone who has witnessed the occurrence, whatever their number be, must be examined as a witness by the prosecution. It has been further held that the mere fact that the injured witnesses were not examined cannot lead to an inference that the prosecution case was not correct. The Apex Court held that for not multiplying the number of witnesses no adverse inference could be drawn against the prosecution merely on the ground that other witnesses were not examined. It is, in other words, not necessary to examine all the witnesses to prove a charge. The examination or non-examination of the aforesaid 7 eyewitness, would make no difference in this case and, in my considered opinion there is no ground to disbelieve the complicity of the accused in the occurrence. 25. In respect of the non examination of the eyewitnesses, it appears from the record that out of the injured witnesses, namely, Sankar Bhowmik, Haradhan Saha, Arun Chakraborty, Goutam Chakraborty, only Sankar Bhowmik was examined since Haradhan Saha reportedly died before recording his testimony and Arun Chakraborty and Goutam Chakraborty, could not be brought before this Court as they could not be traced out. In the above factual backdrop, apparently there is no scope to say that the there was an oblique intention for withholding the witnesses. 26. It is very pertinent to note here that in the course of concerted attack by all the accused appellants, accused Tapan Das struck PW.1, by means of a dao, as a result of which he sustained cut injury on his left hand. Such injury is supported by PW.7, the medical expert, who had examined PW.1 and had opined the injury as grievous. Such injury is supported by PW.7, the medical expert, who had examined PW.1 and had opined the injury as grievous. Though the learned defence counsel pointed out that there are contradictions in the statement of the PW.1 regarding causing of injury by Tapan Das, but in my considered view unless such statements are proved by cross-examining the I.O., there is no reason to discard forth right testimony of a witness on mere asking for it. 27. It is pertinent to notice that the accused-appellants attacked and assaulted the injured and the deceased in a body in furtherance of their common object and thus severely injured P.W.1 and others in the incident. Out of the injured Pankaj succumbed to the injuries. Presence only in an unlawful assembly cannot render a person liable, unless there was a common object of the assembly and accused had shared the same or were motivated by that common object. The object has to be one of those specified in Section 141 IPC. It goes without saying, if 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 of the common objects, as specified in Section 141 IPC. There is no general proposition of law to hold a person guilty, unless the causes required for treating an assembly to be an unlawful assembly, is established. The most important cause being the person, who is present in the assembly, should have tacit knowledge that the assembly was unlawful and was likely to commit any of the acts, which fall within the purview of Section 141 IPC. 28. When the above test is applied in the facts and circumstances of the present case, we find that all the accused appellants above named, came in a body and made determined attack on the person of the injured and the deceased, namely, 9 Pankaj Sen (deceased), Sankar Bhowmik and Arun Chakraborty by entering into the grocery shop of Pankaj Sen at Dhajanagar market. 29. 29. Thus we observe from the evidence of the witnesses discussed above that the accused persons with deadly weapons in their hands,formed an unlawful assembly with a common object of assaulting Pankaj Sen, Goutam Chakraborty, Arun Chakraborty, Sankar Bhowmik, who were celebrating the passing of B.A. examination by Pankaj Sen. The evidence adduced by the witnesses clearly reveals that the accused appellants above named committed offence of rioting armed with deadly weapons. 30. Before concluding the discussion it would be pertinent to notice the evidence of PW 8 with regard to the cause of death of Pankaj Death, in the present case, according to the expert witness, P.W.8, was caused due to cardio-respiratory failure due to homicidal head injury. It will, therefore, be necessary for this Court to find out from the evidence on record as to whether any particular accused can be held responsible for causing any injury/injuries to the deceased on the head, which caused the death of the deceased. As already noticed, the prosecution witnesses, though had stated that the accused-appellants along with other accused persons had assaulted the deceased with dao 0 (chopper) on different parts of the body, none of the said witnesses had stated about any particular accused causing injury on the head of the deceased. What becomes known from the above discussion is that the evidence on record does not disclose that the deceased was assaulted with the intention of causing death. At the same time, the evidence on record reveal that the accused-appellants had assaulted the deceased on the head and fracture was caused on the right occipital parietal region by one of blow, which had so fallen on head. What is, however, of vital importance to note is that, out of the two injuries sustained there was only one head injury. 31. It is not, however, discernible from the evidence on record, as to which of the accused-appellant had caused the said head injury. Further more, the deceased died in the hospital, after about 20 days from the date of occurrence. The cause of death is due to cardio-respiratory failure as stated by the doctor P.W.8, conducting the post mortem examination, which implies, the death was not apparently due to the injuries sustained by the deceased. Thus, the death is due to complication in the injuries nearly about 20 days after the incident. The cause of death is due to cardio-respiratory failure as stated by the doctor P.W.8, conducting the post mortem examination, which implies, the death was not apparently due to the injuries sustained by the deceased. Thus, the death is due to complication in the injuries nearly about 20 days after the incident. In such circumstances, if the direct result of death is not the injuries, but because of the complication then certainly the accused-appellant cannot be held guilty for the offence of culpable homicide. 32. In this situation, reliance can be placed on the decision of the Apex Court reported in B.N. Kavatakar and Anr. v. State of Karnataka 1994 Supp. (1) SCC 304; wherein the Apex Court while dealing with a case, where the deceased died due to complication of the injuries, then accused was not found guilty under Section 302 of IPC and held here as below: The next question that comes up for our consideration is what is the nature of the offence that the appellants have committed. The Medical Officer who conducted autopsy on the dead body of the deceased has opined that the death was as a result of septicemia secondary to injuries and peritonitis. As we have indicated above, the deceased died after five days of the occurrence in the hospital. On an overall scrutiny of the facts and circumstances of the case coupled with the opinion of the Medical Officer, we are of the view that the offence would be one punishable under Section 326 read with Section 34, IPC. 33. In view of the above discussion and from the fact that deceased had sustained one injury on head, it clearly follows that accused -appellant shared the common object in causing injuries on the deceased and others present with him and, in such a situation, the accused-appellants, instead of being held guilty of offence under section 304 part II, ought to have been held guilty of the offence committed by them under Section 326 read with Section 149 I.P.C. 34. However, in so far as the assault on other injured is concerned, the evidence of the prosecution is clear and acceptable. However, in so far as the assault on other injured is concerned, the evidence of the prosecution is clear and acceptable. Co-relating the said evidence with the evidence of PW 7, the doctor, who examined the injured, in respect of other injuries suffered by other injured, I am of the view that the accused appellants have been rightly held liable for commission of the offence under Sections148/324 IPC. 2 35. In the result and for the reasons discussed above, I therefore, hold the accused-appellants not guilty of the offence under Section 304 part- II read with Section 149 IPC and I acquit them accordingly of the offence of murder; but I hold them guilty of offence under Section 326 read with Section 149 IPC and convict them accordingly. However, I see no reason to interfere with their conviction under Sections 148/324 IPC. I also deem it appropriate to impose a sentence of rigorous imprisonment for three years on each of the accused-appellants and also to pay a fine of Rest. 5000/- each, in default to under go R.I. for 3 months, for commission of offence under section 326 read with section 149 IPC. The convictions of the accused-appellants under Sections148/324 IPC, as well as the sentence imposed under the aforesaid Sections of the Indian Penal Code are maintained. However, the sentence shall run concurrently. 36. The accused-appellant, who are on bail, shall surrender before the trial court within 15 days from to day, to serve out the sentence. 37. Send down the case record together with a copy of this judgment.