JUDGMENT : KALIDAS MUKHERJEE, J. 1. This appeal is directed against the judgment of conviction and sentence passed by learned Additional Sessions Judge, Nadia, 3rd Court, Krishna nagare sentencing each of the appellants, namely, Balai Ghosh, Mahadev Ghosh, Loharam Ghosh, Naru Ghosh, Jhunu Ghosh and Sankar Ghosh to suffer R.I. for life and to pay fine of Rs.2,000/-in default to undergo R.I. for six months under Section 302 of the Indian Penal Code. The learned Judge also convicted and sentenced Balai Ghosh, Mahadev Ghosh, Naru Ghosh, Jhunu Ghosh, Sankar Ghosh and Jaladhar Ghosh to suffer R.I. for two years each under Section 147 of the Indian Penal Code, with the direction that both the sentences shall run concurrently. 2. The prosecution case, in short, is that Chandi Charan Bera, a constable lodged complaint with Inspector-in-charge of Kotwali P.S., Nadia alleging that on 08.2.1985 at about 12.20 P.M. Sudhir Santra, the Chowkidar of Daluipur village along with 2/3 persons came to the out post and informed that about 200/250 persons of Balainagar village being armed with dhal, lathi, kurbi ramda (bill hook) etc. came to attack the villagers of Daluipur. Those persons informed that on 07.2.1985 at night there was trouble with regard to an open opera performance which was held at Daluipur village and a quarrel started between the villagers of the said two villages. In view of that previous quarrel, the villagers of Balainagar came to attack the villagers of Daluipur. On getting this information, the informant along with constables Uttam Das, Shyamal Bhattacharya, Aloke Sen started for the said village by a vehicle. Having reached Daluipur village they found that about 200/300 people of Balainagar assembled there being armed with bill hook, bows, arrows and guns. They attacked the villagers of Daluipur with those weapons and started firing from their guns. Kartick Sarkar of Daluipur sustained bullet injury. The bullet hit him on the right chest. Having found no other way to disperse the violent mob and to protect the lives and properties of the people, constables Uttam Das and shyamal Bhattacharya opened two rounds of blank fire from their rifles under the command of the informant. But those attackers went on firing from their guns and sten guns aiming at the informant party. Having found no other way to disperse the violent mob and to protect the lives and properties of the people, constables Uttam Das and shyamal Bhattacharya opened two rounds of blank fire from their rifles under the command of the informant. But those attackers went on firing from their guns and sten guns aiming at the informant party. One of the bullets fired by them hit constable Uttam Das on his right arm and, as a result, he fell on the ground with his rifle. Inspite of having sustained bullet injury, Uttam Das proceeded forward bravely, but, he again fell on the ground at Dunirjole field and the miscreants brutally murdered him by inflicting several blows with sharp cutting weapons on his neck. Under the order of the informant, constable Shyamal Bhattacharya fired two rounds and the attackers thereafter fled away. The rioters had taken away the rifle of Uttam Das and 21 cartridges. The informant could recognise Mahadev Ghosh, Balai Ghosh, Jhunu Ghosh, Basudev Ghosh, Loharam Ghosh, Ranjit Ghosh, Subal Ghosh, Matar Ghosh and Sadhan Ghosh of Balainagar village. There were other persons whom the informant could not identify. 3. After receipt of the complaint, Kotwali P.S. Case No. 11 dated 08.2.1985 was started and on completion of investigation charge sheet was submitted. 4. The charges were framed against 36 accused persons under Sections 147, 302/34 of the Indian Penal Code. The accused persons pleaded not guilty and claimed to be tried. 5. Mr. Basu, learned Counsel for the appellants submits that under Section 129 Cr.P.C P.W. 3 being the constable, was not entitled to direct the alleged unlawful assembly to disperse. It is contended that the other constable Shyamal Bhattacharya gave a different version and did not support P.W. 3 and P.W. 29. It is contended that there were inconsistencies and contradictions in the evidence of P.W. 23 and P.W. 29. 6. Mr. Basu submits that the witnesses were examined six days after the alleged incident and there were contradictions in the evidence of P.W. 6 who cannot be said to be the eyewitness. It is contended that P.W. 26 did not sign the inquest report which was a fabricated document. It is contended that there were contradictions with regard to the manner of infliction of injuries. 7. Mr. Basu submits that with regard to the recovery of seized rifle prosecution could not prove to whom it belonged. It is contended that P.W. 26 did not sign the inquest report which was a fabricated document. It is contended that there were contradictions with regard to the manner of infliction of injuries. 7. Mr. Basu submits that with regard to the recovery of seized rifle prosecution could not prove to whom it belonged. It is contended that the alleged place of occurrence is a paddy land mixed with mud and there is nothing to show that the wearing apparels were stained with mud. 8. As regards the evidence of doctor, Mr. Basu submits that there is nothing to show that the entry points of the wounds were blackened or there were charring marks. It is contended that the examination of the accused was not done properly under Section 313 Cr.P.C. 9. Mr. Basu contends that there was serious legal infirmity in the framing of charge, in as much as, the charge under Section 147 and 34 of the Indian Penal Code cannot run together. Mr. Basu contends that the evidence of the alleged eyewitnesses cannot be relied upon because of the inconsistencies and contradictions. 10. Mr. Basu contends that the medical evidence does not come in the aid of the prosecution. 11. Mr. Chatterjee appearing on behalf of the State submits that there was a dispute between the villagers of the two villages Balainagar and Daluipur and in furtherance of that dispute, the villagers of Balainagar with the common object of committing murder came to attack the villagers of Daluipur being armed with deadly weapons. Mr. Chatterjee relied on the evidence of P.W. 3, P.W. 6, P.W. 9, P.W. 10, P.W. 23, P.W. 27 and P.W. 32. It is contended that Uttam Das was not only hit by the bullet but also assaulted by the appellants with the help of deadly weapons. Mr. Chatterjee contends that in a broader sense the witnesses were consistent in their version and the minor contradictions should be ignored. 12. Mr. Chatterjee contends that there was no legal infirmity in the framing of the charge under Section 147, 302/34, in as much as, in the unlawful assembly there was the intention to commit murder and with that end in view the appellants came to attack the villagers of Daluipur with deadly weapons. Mr. 12. Mr. Chatterjee contends that there was no legal infirmity in the framing of the charge under Section 147, 302/34, in as much as, in the unlawful assembly there was the intention to commit murder and with that end in view the appellants came to attack the villagers of Daluipur with deadly weapons. Mr. Chatterjee contends that the mob was violent and the police constables at the beginning of incident opened blank fire, but thereafter Uttam Das was struck with the bullet fired by the appellants. 13. Mr. Chatterjee has referred to and cited the decisions reported in 1973 SCC (Cri) 1033 [Shivaji Sahabrao Bobade Vs. State of Maharashtra]; 1998 SCC (Cri) 790 [Shobhit Chamar and another Vs. State of Bihar]; 1962 SC 1239 [Rama Shankar Singh and others Vs. State of West Bengal]; 1975 Cri.L.J. 246 [Labhchand Shanpat Singh Jain Vs. State of Maharashtra]; 1997 Cri.L.J. 1059 [Sukhadeo Vs. State of Maharashtra]; (2001) 8 SCC 578 [State of Punjab Vs. NAIB DIN]; 1992 Cri.L.J. 3858 [Amarjit Singh and others Vs. State of Punjab]; 2000 C.Cr.LR (SC) 515 [Hukam Singh & others Vs. State of Rajasthan] and 14. Mr. Basu has referred to and cited the decisions reported in (2010)2 CCr.L.R. (SC) 44 [Javed Masood & Another Vs. State of Rajasthan]; (2009)11 SCC 106 [State of Rajasthan Vs. Rajendra Singh]; (2009)3 SCC (Cri) 92 [Ranvir Yadav Vs. State of Bihar]; (2009)3 SCC (Cri) 421 [Ganesh Gogoi Vs. State of Assam]; (2009)3 SCC (Cri) 82 [Shaikh Maqsood Vs. State of Maharashtra]; (2009)2 SCC (Cri) 593 [Inspector of Customs, Akhnoor, Jammu and Kashmir Vs. Yashpal and another] and (2009)2 SCC (Cri) 243 [State of Punjab Vs. Hari Singh and others]. 15. The learned Judge upon consideration of the materials on record passed the impugned judgment holding that there was ocular version of the witnesses and there was no discrepancy in their evidence. The learned Judge held that there was no discrepancy with regard to the injuries between the evidence of the eyewitnesses and the medical evidence. The learned Judge ultimately held the accused persons guilty under Section 147 and under Section 302 of the Indian Penal Code. The learned Judge held that as regards the remaining accused persons the charges under Section 147 and 302/34 were not proved. 16. The learned Judge ultimately held the accused persons guilty under Section 147 and under Section 302 of the Indian Penal Code. The learned Judge held that as regards the remaining accused persons the charges under Section 147 and 302/34 were not proved. 16. It would appear from the evidence of P.W. 9, P.W. 10 and P.W. 32 that a dispute arose between the villagers of Balainagar and Daluipur on 07.2.1985 at night during an opera show. Thereafter on 08.2.1985 the villagers of Balainagar being armed with deadly weapons came to attack the villagers of Daluipur. 17. P.W. 8 Sadhan Kumar Mondal has stated that he saw four police men entering their village and asking the villagers of Balainagar to leave the place. He has further stated that those villagers did not vacate the place and thereafter one constable opened blank fire. He has stated that he came to Dhubulia R.O.P. and lodged information there; thereafter the policemen went to the place of occurrence by a jeep. 18. P.W. 3 Chandi Charan Bera, a constable lodged the F.I.R. It is in his evidence that on receipt of the information he along with three constables Aloke Sen, Shyamal Bhattacharya and Uttam Das went to the said village; on reaching there he found that the villagers of Balainagar armed with deadly weapons were coming from western side; thereafter constable Shyamal Bhattacharya and constable Uttam Das chased them. It is also in his evidence that when those constables heard the sound of firing from the side of Balainagar village, they also opened blank fire. He has stated that when he along with Aloke Sen and the other villagers of Daluipur were proceeding towards the village Balainagar, they reached the middle portion of the field and came to know that one policeman had died; he saw that one constable Uttam Das was lying on the field and the said place was mixed with mud and water; he saw that the neck of Uttam Das was cut and the mark of bullet injury was on his right hand; they took Uttam Das to R.O.P. It is in his cross-examination that the dead body of Uttam Das was brought at R.O.P. at 2.30/3.00 P.M. and the G.D. entry was made. It is in his cross-examination that the head of Uttam Das was not separated from his body at the time when he saw Uttam Das at the P.O.; the neck was slightly attached with the dead body. P.W. 3 has proved the relevant entries in the G.D. 19. It is in the evidence of P.W. 23 Shyamal Bhattacharya that he carried the dead body of Uttam Das from Belpukur outpost to Shaktinaghar Hospital and he identified the dead body before the doctor who held the post mortem examination. 20. P.W. 29 Aloke Sen has stated that on 08.2.1985 he along with Chandi Charan Bera and some other villagers of Daluipur went to the field and found one bullet injury on the right hand of Uttam Das and his neck was cut. 21. P.W. 6 Rabindra Nath Majumdar has stated that the villagers of Balainagar began to shoot arrows and opened fire; he could recognise Mahadeb Ghosh, Balai Ghosh, Jhunu Ghosh, Loharam Ghosh amongst those people. It is also in his evidence that thereafter police opened fire and the said villagers were retreating; one policeman named Uttam Das chased the villagers of Balanagar and he slipped in the paddy field and fell down; Loharam opened fire from the wheat field which was situated by the side of that place; Balai, Jhunu and Mahadeb assaulted Uttam with deadly weapons. In the cross-examination he has stated that after the murder he fled away from the place. 22. It is in the evidence of P.W. 9 that Mahadeb assaulted Uttam with fala; Balai Ghosh assaulted Uttam with ram dao and Loharam Ghosh kicked Uttam Das. Uttam Das fell down in the mud. P.W. 9 has stated that he was at a distance of 20/25 cubits from the place where the assault took place. 23. P.W. 10 has stated that he could recognise Balai, Mahadeb, Loharam, Jhunu Ghosh, Shankar Ghosh and Naru Ghosh; Mahadeb assaulted Uttam with fala; Naru, Balai, Shankar struck Uttam with ram dao. It is in the evidence of P.W. 11 that Loharam opened fire aiming at Uttam Das; Mahadeb Ghosh assaulted Uttam with fala; Balai Ghosh assaulted with bogi (a small dao). 24. It is in the evidence of P.W. 11 that Loharam opened fire aiming at Uttam Das; Mahadeb Ghosh assaulted Uttam with fala; Balai Ghosh assaulted with bogi (a small dao). 24. It is in the evidence of P.W. 20 Kartick Sarkar that he fell down on earth being struck with the arrow shot by Jaladhar Ghosh; at that time Tarak Majumder and Bishu Mondal took him to the hospital and he was medically treated there. 25. It is in the evidence of P.W. 27 that when Uttam Das was proceeding, he fell down on the ail of the paddy land; Loharam came out from the wheat field and opened fire aiming at Uttam Das; Shankar Ghosh assaulted Uttam on his neck with a dao. 26. P.W. 30, Mahadeb Roy, a constable has stated that on 08.2.1985 at about 10.30 A.M. the villagers of Daluipur came and informed that the villagers of Balainagar were coming for assaulting them; constables Chandi Charan Bera, Aloke Sen, Shankar Bhattacharya and Uttam Das went to that place. He remained at the said outpost and was in-charge of the G.D. 27. P.W. 32 Haridas Mondal has stated that Balai Ghosh assaulted Uttam Das with ramdao, Mahadeb struck him with a ballam, Jhunu assaulted him with a tangi and Shankar assaulted with ram dao. It is in his cross-examination that he saw the said incident of assault for 1/2 minutes. 28. It appears from the evidence of P.Ws as discussed above that the incident happened due to previous dispute between the villagers of two villages and on the date of incident the villagers of Balainagar being armed with deadly weapons came to assault the villagers of Daluipur. From the evidence of the P.Ws it is clear that there was evidence of forming of unlawful assembly, the common object of which was to commit murder. From the evidence it is clear that the appellants took part in the incident of murder of Uttam Das. 29. Mr. Basu contends that the charge under Section 147 and 302/34 of the Indian Penal Code is defective. Mr. Chatterjee in this connection has referred to a decision reported in 1992 CR.L.J. 3858 paragraph 10 [Amarjit Singh and others Vs. State of Punjab]. The Hon’ble Apex Court in paragraph 10 of the said decision observed as follows:- “10……………………. 29. Mr. Basu contends that the charge under Section 147 and 302/34 of the Indian Penal Code is defective. Mr. Chatterjee in this connection has referred to a decision reported in 1992 CR.L.J. 3858 paragraph 10 [Amarjit Singh and others Vs. State of Punjab]. The Hon’ble Apex Court in paragraph 10 of the said decision observed as follows:- “10……………………. In inferring the common object of unlawful assembly, various factors depending upon the facts and circumstances of each case have to be taken into consideration. In the instant case these appellants were found to be armed with firearms as well as other deadly weapons. They went in a body and participated in the occurrence. In such a situation even Section 34, I.P.C. is attracted particularly having regard to the fact that four persons were killed and several others received injuries at the hands of the members of the unlawful assembly. The participation of each of these appellants is established. Therefore all of them shared the common object and Section 149 is squarely attracted. In this context we are also not prepared to accept the submission of the learned counsel that the case of A-2, A-4 and A-6 stands on a different footing namely that though they were armed with fire-arms it is not established that they used them. The prosecution witnesses have consistently deposed that they were members of the unlawful assembly and we have already held that the common object of the unlawful assembly was to commit the murder. In such a situation these three accused who were members of the unlawful assembly armed with fire-arms cannot get absolved. …..…” 30. In the instant case it is in evidence that the appellants were armed with deadly weapons and they were members of the said unlawful assembly. The appellants convicted under Section 302 took active part being members of the unlawful assembly in committing murder of Uttam Das. In view of the aforesaid decision, we are of the considered view that once the unlawful assembly is established the non-joinder of Section 149, Indian Penal Code would not be fatal to the prosecution case. The minor contradictions would not cast any shadow of doubt on the veracity of the prosecution case. 31. It is in the evidence of P.W. 22 Makhan Lal Sarkar that on 08.2.1985 one .303 rifle and cartridges were seized by him. The minor contradictions would not cast any shadow of doubt on the veracity of the prosecution case. 31. It is in the evidence of P.W. 22 Makhan Lal Sarkar that on 08.2.1985 one .303 rifle and cartridges were seized by him. He has identified four fired cartridges (material exhibit 1 collectively). P.W. 21 is the Arms expert who examined one.303 service rifle and opined that ammunitions were fired from the said rifle and that the said rifle was in working condition. Exhibit 4 is the command certificate showing that the informant, Uttam Das, Shyamal Bhattacharya and Aloke Sen were detailed for duty on the date of occurrence vide Belpukur R.O.P. G.D. No. 108 dated 08.2.1985. 32. The Autopsy Surgeon (P.W. 40) has stated that on 09.2.1985 he held post mortem examination over the dead body of constable Uttam Das and found the following injuries:- “1. One oval-shaped penetrating wound with margin inverted in the anterior aspect of right arm measuring 1½” X 1” with tearing the muscles there. 2. One oval-shaped penetrating wound on the back of right arm measuring 1½” with everted margin. 3. One penetrating injury over right lower chest in the midaxillary line measuring 1½” X 1” X pleural cavity deep. 4. One oval-shaped penetrating injury over right infra scapular region measuring 1½” X 2” X pleural cavity deep. 5. One cut throat injury in front of neck measuring 6” X 2” cutting the trachea and soft muscles there. 6. One cut injury over right infra auricular region measuring 6” X 2” cutting the muscle there. 7. One cut injury over right mid-auricular region measuring 8” X 3” cutting the right ear and bone there. On dissection the pleural cavity was full of blood and there was tear present in the mid lobe of the right lung. The cause of death was due to shock and haemorrhage as a result of injury sustained which was ante mortem and homicidal in nature. Penetrating wound with margin inverted may be caused by bullet. The remaining injuries may be caused by sharp cutting weapons such as hensua, dao etc. These injuries are sufficient in the ordinary course of nature to cause death. These injuries were over the vital part of the body.” 33. Penetrating wound with margin inverted may be caused by bullet. The remaining injuries may be caused by sharp cutting weapons such as hensua, dao etc. These injuries are sufficient in the ordinary course of nature to cause death. These injuries were over the vital part of the body.” 33. From the evidence of the P.Ws it is clear that Uttam Das sustained bullet injury in the right hand and injuries on neck were caused by sharp cutting weapon. From the evidence of the doctor it would appear that ocular version regarding the injuries inflicted on Uttam Das finds corroboration from the medical evidence. The P.Ws have stated in a natural way and their testimony does not suffer from any serious inconsistency or discrepancy. We are of the considered view that the ocular evidence as adduced by the prosecution is worthy of credence. There is no ground to disbelieve the evidence of the P.Ws. 34. As regards the examination of the accused under Section 313 Cr.P.C. Mr. Basu submits that the substance of the accusation and the incriminating materials were not put to the accused persons and there was noncompliance with the provisions contained in Section 313 Cr.P.C. In this connection Mr. Basu has referred to the decisions mentioned hereinbefore. 35. Mr. Chatterjee submits that unless material prejudice is shown to have been caused for the alleged non-compliance of the provision contained in Section 313 Cr. P.C, the prosecution case would not fail. Mr. Chatterjee contends that the defence could not show that any prejudice was caused for the alleged non compliance of Section 313 Cr. P.C. Mr. Chatterjee has referred to the decisions cited hereinbefore. 36. We have gone through the decisions cited by Mr. Basu and Mr. Chatterjee. We are of the considered view that the learned Trial Judge explained the incriminating circumstances and the substance of the accusation to the accused persons. It cannot be said that the accused persons have been prejudiced thereby in any way. 37. Mr. Basu submits that P.W. 3 was not entitled to order the mob to disperse under Section 129 Cr.P.C. It appears that it was the R.O.P at Belpukur and before leaving the R.O.P for the place of occurrence necessary entries were made in the G.D. After the police personnel reached the place of occurrence, the appellants along with so may people being armed with deadly weapons attacked the police party. The appellants had already opened fire from their firearms. Under such circumstances, the actions taken by P.W. 3 and others cannot be said to have suffered from any serious infirmity which could render the prosecution case wholly unacceptable. 38. Having considered the submission made by the learned Counsel for the parties and on consideration of the evidence on record we are of the considered view that there is no ground to interfere with the findings of the learned Trial Judge. The appeal is dismissed. The appellants are directed to surrender before the learned Trial Court within one month from the date of communication of the order to serve out the sentence. 39. Let a copy of this Judgment along with the lower court records be sent to the learned Court below immediately. 40. Urgent Photostat certified copy, if applied for, be made over to the parties as early as possible.