JUDGMENT Hon'ble Mr. Justice P.K. Musahary 1. Both the above appeals are directed against the judgment and order dated 11.06.03 passed by the learned Sessions Judge, Karimganj, in Sessions Case No. 67/99, and as such, it is proposed to dispose them of by this common judgment. The appellants, 4 in number in criminal appeal No. 218/03, were convicted U/S 148/ 323/ 304 Part -II/ 149 IPC and sentenced to suffer S.I. for 1 year U/S 148/ 149 IPC, SI for 6 months U/S 323/ 149 IPC and RI for 6 years with a fine of Rs. 1,000, in default, further RI for 6 months each U/S 304 Part -II/ 149 IPC. In Crl.A. No. 19/04, the sole convict/appellant, was convicted U/S 148/ 323/ 304 Part-II/ 149 IPC and sentenced to undergo SI for 6 months U/S 148/ 149 IPC, 3 months SI U/S 323/ 149 IPC and 3 years RI U/S 304 Part-II/ 149 IPC with a fine of Rs. 500/- in default to undergo RI for 1 month more, directing that the sentences would run concurrently. 2. I have heard Mr. HRA Choudhury, learned Sr. counsel assisted by Mr. F. Borbhuiya, learned counsel for the appellants and Mr. D. Das, learned Addl. P.P., Assam. 3. The prosecution case, as unfolded in the FIR is as follows. On 22.10.97, at about 7.30 A.M., the informant's brothers Mokram Ali since deceased) and Aziruddin went to plough their land for winter crops. While they were ploughing, all the accused persons by forming a group armed with weapons suddenly attacked them. The accused No. 1 (Reaz son of Nasar) being armed with dao, chased and assaulted on head, nose and mouth causing injuries to Mokram and Aziruddin. On hearing hue and cry of his brothers, when Nurul Hoque and mother Saiful Bibi went to the place of occurrence, accused Ayaz Ali dealt a spear blow on Nurul Hoque and caused injury to him. Accused No. 6 (Reaz son of Mazid) also dealt a blow on the head of Saiful Bibi and caused injury to her. Hearing hue and cry of Saiful Bibi and Nurul Hoque the informant himself along with his other son Naimuddin and nephew Aziruddin went to the place of occurrence. Then all the accused, in a group gheraoed and assaulted them by stick, spear and pelting stones causing serious injury to them. Hearing hue and cry of Saiful Bibi and Nurul Hoque the informant himself along with his other son Naimuddin and nephew Aziruddin went to the place of occurrence. Then all the accused, in a group gheraoed and assaulted them by stick, spear and pelting stones causing serious injury to them. On hearing their hue and cry, people came and saved them. Makram Ali, Ajiruddin were taken to Nilambari Hospital and then to Karimganj Civil Hospital for treatment. They were treated as Nilambazar Hospital where the injured Mokram Ali died 7 days after the occurrence. A written FIR was lodged by Sirajuddin which was registered as Karimganj P.S. Case No. 473/97 U/S 147/ 148/ 447/ 341/ 325/ 326 IPC. 4. The police after completion of investigation submitted charge sheet against the appellants and 5 others. The offence U/S 302 IPC being exclusively triable by the court of Sessions, the learned SDJM, Karimganj committed the case to the court of learned Sessions Judge, Karimganj, who on perusal and consideration of the materials collected by the I.O., framed charge against the accused persons U/S 148/ 323/ 302/ 149 IPC. The charges were explained and read over to the accused whereupon they denied the charges and claimed to stand trial. 5. To establish the aforesaid charge, the prosecution examined as many as 9 witnesses including 3 Medical Officers and the I.O. The accused persons did not adduce any evidence in support of their defence. 6. On the basis of materials and evidence on record and upon hearing the learned counsel for the parties, the learned trial court passed the impugned judgment and order convicting and sentencing them as stated above. 7. The defence case is that the prosecution party with a view to take possession of the land of accused Reaz, Arjamond and their 2 other brothers (since deceased) by force sent Ansar P.W-3 first to plough the said land which is contiguous to the homestead of the said accused persons. On being objected by Reaz, son of late Naser, Ansar returned home and he came back along with others with deadly weapons, trespassed in to the homestead of the accused Reaz, Arjumond and Hanur and started assaulting the accused appellants causing injuries to them and thereafter, set fire on one of their houses. On being objected by Reaz, son of late Naser, Ansar returned home and he came back along with others with deadly weapons, trespassed in to the homestead of the accused Reaz, Arjumond and Hanur and started assaulting the accused appellants causing injuries to them and thereafter, set fire on one of their houses. Then Ayaz and Reaz, sons of late Majid came from nearby village hearing hulla seeing fire and then the informant's son Nurul Hoque gave a spear blow on the left side of the chest of Reazuddin who was taken into Silchar Medical College Hospital in dying condition. Others were treated at Karimganj. The accused Samsuddin was not present at the time of occurrence. 8. Mr. H.R.A. Choudhury, learned Sr. counsel made the following submissions :- (i) The ingredient necessary to warrant conviction U/S 304 Part-II IPC not being proved by adducing cogent and reliable evidence, the learned trial court acted illegally in convicting and sentencing the appellants and thus the same cannot be legally sustained and the same are liable to be set aside and quashed. (ii) The finding of guilt recorded by the learned trial court against appellants is not based on proper appreciation of evidence on record and as such, conviction and sentence which is under challenge are liable to be quashed and set aside. (iii) The learned trial court having relied on evidence of interested and related witnesses directly involved in the mutual marpit committed grave illegality in law vitiating the entire proceedings and thus the conviction and sentence as awarded is unsustainable in law. (iv) There having no real independent eye witness and there being serious contradictions in the deposition of prosecution witnesses and also tendency of improving the case, the evidence of the prosecution witnesses have rendered unreliable and unbelievable for awarding conviction and sentence and the learned trial court ought not have passed the impugned conviction and sentence against the appellants. (v) The learned trial court overlooked the case projected by the appellants in their defence that the persons from informant's side were aggressors and trespassers as they tried to forcibly occupy the land of the appellants and there is a Title Suit pending regarding the land in question between them and the accused/appellants acted only in their private defence. 9. Mr. D. Das, learned Addl. 9. Mr. D. Das, learned Addl. P.P., Assam submits that the prosecution case was supported by evidence of at least 2 independent witnesses apart from the evidence of 3 eye witnesses who suffered injuries in the physical clash at the place of occurrence and the prosecution succeeded in proving the case against the present appellants which requires no interference in any manner. 10. For the purpose of examining the correctness and otherwise of the above submissions of the learned counsel for the parties, it is imperative to appreciate the evidence of prosecution witnesses which are as follows :- 11. P.W-1, Sirajuddin, is the first informant in this case. As per his evidence the accused persons belong to neighbouring village and so he knows them all. On 22.10.97 at 7.30 AM his brothers Mokram and Aziruddin were ploughing land nearby their house. It was objected by the accused Reazuddin and at that time he was present in his residence. Hearing the hulla he came to the place of occurrence and he saw the accused Reazuddin, Samsul Hoque, Hoqui Miah and Mohoram Ali armed with lathi, dao, jhetha etc. coming to the place of occurrence and attacking his brothers. He saw the accused Reaz giving a dao blow on the head of his brother Mokram. He also saw accused Ayaz assaulting his son Nurul Hoque with spear on the right side of the abdomen while accused (Reaz son of Abdul Mojid) giving lathi blows on the head of his brother Ajiruddin. He also saw the said Reazuddin assaulting his mother Saiful Bibi on her head by dao. Hearing cry for help, some persons namely, Ananta Namasudra, Moinuddin, Abdul Latif, Abu Hannan and several others appeared at the place of occurrence. This witness stated that with the help of other co-villagers he carried the injured persons to Nilambazar Hospital and thereafter informed the O/C Nilambazar P.S. and lodged a written FIR. The injured persons were referred to Karimganj Civil Hospital and his injured brother Mokram Ali was referred to Silchar Medical College Hospital where he succumbed to his injuries after 1 week of the incident. In cross-examination, this witness stated that the land in question was purchased 4 years ago and got his name mutated before 1 year of the incident. The neighbour of the land was one Muslim Ali, who are the brothers of Arjumond, Allauddin and Moharam. In cross-examination, this witness stated that the land in question was purchased 4 years ago and got his name mutated before 1 year of the incident. The neighbour of the land was one Muslim Ali, who are the brothers of Arjumond, Allauddin and Moharam. The said Muslim Ali left the place 8 years ago i.e. in 1991 and he used to live at Singla Cherra under Ratabari PS, which is at a distance of 40 KM from their village. He admitted in his deposition that only " 1/2 jasti " land was purchased from Muslim Ali and the rest part of the land of the Dag is under the possession of Muslim Ali's brother Reazuddin, Arjumond, Moharam and Sona Mia. This witness also admitted that a Title Suit was pending between the parties. The Title suit was instituted by the accused persons just before the incident. 12. P.W-2, Musstt Saiful Bibi, is the mother of Sirajuddin (P.W-1). Her evidence is that on the date of occurrence at 7/8 AM her son Ajiruddin, Mokram and Ansaruddin went to the plot of land for ploughing. The accused Reazuddin (son of Nasar Ali) came over there along with others and raised objection to plouging of the land and as her son refused to oblige, the accused Reazuddin, being agitated, gave a dao blow with its blunt side on the head of Mokram Ali and he fell down. Thereafter, other accused persons namely, Reazuddin, Samsul and Ayazuddin assaulted her son Mokram with lathi and pelting stones. She then attempted to save her son requesting the accused persons not to assault him further. This witness deposed that the accused Mazira Khatun assaulted on her head by a dao. Reazuddin also assaulted on her head with a dao and as a result she fell down. Thereafter she was brought to hospital from where she was referred to Civil Hospital, Karimganj. Her injured son Mokram Ali was sent to Silchar Medical College Hospital where he succumbed to his injury after one week from the date of occurrence. In her cross-examination she stated that the place of occurrence i.e. the plot of paddy land was situated nearby, to the west of the homestead of accused Reazuddin (son of Nasaruddin). She stated that she did not see the burning of house of accused Reazuddin. 13. P.W-3 is Ansar Uddin, nephew of deceased Mokram Ali. In her cross-examination she stated that the place of occurrence i.e. the plot of paddy land was situated nearby, to the west of the homestead of accused Reazuddin (son of Nasaruddin). She stated that she did not see the burning of house of accused Reazuddin. 13. P.W-3 is Ansar Uddin, nephew of deceased Mokram Ali. As per his deposition, on the date and time of occurrence, he went to the place of occurrence with his uncle Mokram Ali, Ajiruddin for ploughing. He corroborated the evidence of P.Ws- 1 and 2. 14. P.W-4, Shri Ananta Namasudra belongs to neighbouring village. As per his evidence he was at village Thamua for the purpose of watching his fishery. He saw Answar Uddin, his uncle Mokram Ali and his brother Ajiruddin coming to plough at a place nearby his fishery at a distance of 1 keir'. At that time, he found an altercation between Mokram Ali and his brothers with Reazuddin (1) regarding plouging of the land. The altercation immediately turn to marpit. The accused Reazuddin (1) assaulted Mokram on his head with a dao. The said accused Reaz (1) assaulted Mokram's brother Aziruddin. Other accused Reazuddin, Ayazuddin and Samsul also assaulted them with lathi. Mokram was also assaulted by a woman by the blunt side of the dao. Hearing hulla, this witness with Hannan Mia, Latif Ali, Abdul Hamid and many other co-villagers came to the place of occurrence. They found Aziruddin and Mokram lying in an injured condition. He further stated that the accused Ayaz gave "jhetha" blow on the right side of chest of Nurul. Mokram Ali's mother came running to the place of occurrence and requested the accused persons not to assault her son further. But without responding to her, accused Majira Khatun gave a dao blow on the head of Saiful Bibi. This witness also stated specifically that the place of occurrence was the paddy land which belongs to Makai Mia, brother of Mokram Ali who were possessing and cultivating the land since long. In his cross examination, he denied that he was very much closely related to the family of the informant Sirajuddin and his brother due to financial interest. He also specifically stated that he did not see burning of house of any of the accused persons. He also stated that he did not notice any injury on the person of any of the accused persons. He also specifically stated that he did not see burning of house of any of the accused persons. He also stated that he did not notice any injury on the person of any of the accused persons. He denied the suggestion that for raising the protest against ploughing by Ansaruddin and others, Mokram (since deceased), Aziruddin, Makai Mia, Sirajuddin, Nurul, Ansaruddin and others assaulted the accused persons and set fire to one of their houses and burnt down. He deposed that he saw the complainant party cultivating the land in question prior to 5/6 years of the date of occurrence. He also deposed that Makai, brother of Mokram Ali, purchased the land in question from one Muslim Ali about 5/6 years prior to the date of occurrence by executing a deed. 15. The prosecution has projected one Abdul Hannan, P.W-6 as an independent witness. He hails from a neighbouring village. As per his evidence at the time of occurrence he was in the house of his sister's husband which he visited on the previous day and stayed there. He saw accused Ansaruddin, Mokram, Aziruddin ploughing their own land. Then he saw the accused Reazuddin and Arjumond coming and preventing them from ploughing the land. Mokram Ali (since deceased) questioned as to why they were preventing them from ploughing their own land. Then a marpit ensued between the 2 groups. This witness saw accused Reazuddin stabbing Mokram Ali with the blunt side of his dao on his head. Subsequently, accused Samsuddin, Ayaz, Reazuddin (2), Arjuamond and Hannur assaulting Mokram with the help of dao, lathi, spear etc. In his deposition, he also stated that other accused Samsuddin, Reaz (2) Ayaz, Arjumond and Hannur Mia assaulted Azirjuddin with dao, lathi spear and he fell down. Accused Majira Begum also assaulted Mokram on his head with the blunt side of dao. Subsequently, the accused Samsuddin, Ayaz, Reazuddin (2), Arjumond and Hanur assaulted Moharam Ali with lathi, spear etc. and he fell down. Accused Majira Begum also assaulted Mokram Ali on his head with dao. Musstt. Saiful Bibi also arrived at the place of occurrence and intervened in the marpit and she was also assaulted by Majira on her head. This witness corroborated the evidence of P.Ws 1, 2, 3 and 4 in material particulars. and he fell down. Accused Majira Begum also assaulted Mokram Ali on his head with dao. Musstt. Saiful Bibi also arrived at the place of occurrence and intervened in the marpit and she was also assaulted by Majira on her head. This witness corroborated the evidence of P.Ws 1, 2, 3 and 4 in material particulars. In cross-examination, he denied the suggestion that Ansar alone came to plough and on being objected, he returned home and then he came back with Mokram, Nurul, Ansar, Siraj, Makai Mia and others armed with deadly weapons and trespassed into the house of accused Reazuddin son of Nasar, and then there ensued a marpit and in such marpit Ajiruddin set fire on the house of the accused Reazuddin. He also denied the suggestion that at that time Nurul assaulted Reazuddin and inflicted injury on his chest and for that he was hospitalized for more than 1 month. 16. From the evidence on record, it is established that the accused Reazuddin lodged Karimganj P.S. Case No. 472/97 which was later on registered as GR Case No. 1131/97 and Sessions Case No. 58/2001. That apart, there is a civil suit pending between the parties. Title Suit No. 168/97 was filed by the accused Reazuddin and his brothers and nephew prior to the date of occurrence which is still pending. The suit is regarding a plot of land. 17. From the FIR filed by P.W-1, Sirajuddin, following facts are found and established. There are three stages in the FIR. They are as follows:- (i) When the informant's brothers Mokram Ali and Aziruddin were ploughing the land, the accused persons being armed with deadly weapons, arrived there and attacked them all on a sudden; (ii) On hearing cries of his brother, his nephew Nurul Hoque and his mother Saiful Biibi rushed to and arrived at the place of occurrence but they were also attacked and injured by the accused; (iii) On hearing the cries of Nurul, Saiful Bibi, informant Sirajuddin, P.W-1, along with his son Naimuddin and nephew Ajimuddin arrived at the place of occurrence and all the accused gheraoed and assaulted them causing severe injuries. On hearing their cries, the witnesses arrived at the place of occurrence. 18. Now, as per the FIR, it is to find out who assaulted whom. On hearing their cries, the witnesses arrived at the place of occurrence. 18. Now, as per the FIR, it is to find out who assaulted whom. The following facts are found in this regard:- (1) The accused Reazuddin inflicted cut injuries by dao on the head, face and nose of both the brothers of the informant causing severe injuries to them. (2) The accused Ayaz inflicted severe injuries on Nurul and accused Reazuddin inflicted stab injury on Saiful Bibi. (3) On arrival of Siraj and Ajiruddin at the place of occurrence all the accused persons gheraoed and assaulted them and on hearing their cries, the witnesses arrived. 19. Now it is to examine whether the witnesses are consistent in their evidence with the allegations made in the FIR. First of all it may be noted that P.W-1 Sirajuddin, P.W-2 Saiful Bibi and P.W-3 Ansaruddin claim themselves as eye witnesses to the incident. P.W-1 Sirajuddin, first informant, stated that at the relevant time his brothers Mokram and Ajiruddin were ploughing their own land and it was objected to by accused Reazuddin but the informant's brother did not pay any heed to them and continued to plough claiming the land to be their own. Hearing hulla at the place of occurrence, the informant came to the place of occurrence and he could see the accused Ayaz, Reaz, Samsul and Hokai Mia, being armed with lathi, dao, Jhetha etc. coming to the place of occurrence and attacking his brothers. He could also see Reaz dealing dao blow on the head of Mokram Ali, Ayaz assaulting Nurul Hoqu by spear on right side of abdomen, accused Reaz, son of Abdul Mozid, giving lathi blows on the head of Aziruddin and assaulting Saiful Bibi on her head by dao. Here it may be noted that P.W-1 Sirajuddin, informant, did not state in the FIR anything about raising objection by the accused Reaz to ploughing of the land by Mokram and Aziruddin which he introduced in his deposition before this court. It may also be noted that in his FIR P.W-1 did not state anything about inflicting injury of any description in presence of Mokram by the accused Reazuddin but he deposed in the court that Reazuddin inflicted dao blow injury on the head of Mokram. 20. Musstt. It may also be noted that in his FIR P.W-1 did not state anything about inflicting injury of any description in presence of Mokram by the accused Reazuddin but he deposed in the court that Reazuddin inflicted dao blow injury on the head of Mokram. 20. Musstt. Saiful Bibi, P.W-2, stated to the I.O. that on her arrival at the place of occurrence, she found her son Mokram lying injured on the ground in an unconscious state, whereas in her deposition before the court she stated that she saw accused Reazuddin being agitated as he was objected to ploughing of the land and dealt a blow by the blunt side of the dao on the head of Mokram who fell down and thereafter, the accused Reazuddin, Samsul and Ayaz assaulted Mokram by lathi and by pelting stones. However, she stated that accused Reazuddin also assaulted on her head by a dao. Ansaruddin P.W-2, deposed, that he came to the place of occurrence to plough their land along with Mokram and Azirjuddin. But in his statement before the I.O. he stated that while he saw ploughing their own land, accused Reazuddin and his wife came near to him and questioned why he was ploughing their land and they slept and dealt fist blows due to which he returned home weeping and reported the matter to his father who was along with three persons at that time. Hearing this, his uncle Mokram, Aziruddin came to the land and he also followed them. On reaching the place of occurrence they asked Reazuddin why he had assaulted Ansaruddin. On being so asked Reazuddin got agitated and assaulted Aziruddin and Mokram Ali and thereafter, the other accused persons arrived at the place of occurrence. 21. The evidence of P.W-1, on the fact of his witnessing the assault on the head of his brother by accused Reazuddin with dao, is not consistent with his own version in the FIR where he stated that on his arrival at the place of occurrence he had witnessed the assault on Mokram Ali and Ajiruddin by the accused Reazuddin or any one of them is not believable. If the informant P.W-1 had at all witnessed the incident with his own eyes, there was no reason whatsoever, to prevent him from mentioning the names of those who inflicted the injury on any one of the injured persons. If the informant P.W-1 had at all witnessed the incident with his own eyes, there was no reason whatsoever, to prevent him from mentioning the names of those who inflicted the injury on any one of the injured persons. In the FIR, names of as many as 14 persons were mentioned in addition to other 15/20 persons whose names were either not known or withheld for reasons best known to him only. But in his evidence he did not even mention that accused Nizam, son of late A. Mozid, Sivai and wife of Reazuddin and Allauddin were present at the place of occurrence. Again he stated in the FIR that he came to the place of occurrence along with his son Naimuddin and nephew Aziruddin but he changed from the statement made in the FIR while he stated in his evidence that he came to the place of occurrence alone just after hearing hulla at the place of occurrence. It can, therefore, easily be stated that the description of the occurrence and arrival of P.W-1 at the place of occurrence and his witnessing the incident, he had 2 different sets of statements. These statements are contradictory and highly irreconcilable. 22. In regard to description of the occurrence and arrival of P.W-1 at the place of occurrence, it is noted that P.W-2 Saiful Biibi, in her evidence did not state that Sirajuddin P.W-1 was present at that time but in her cross-examination she had simply added the name of the informant, P.W-1 along with Mokram Ali and Ajiruddin. Further it is noticed that P.W-1 did not state anything about the presence of Ansaruddin, P.W-3, at the place of occurrence, whereas P.W-2 stated that Ansaruddin accompanied Mokram and Aziruddin while they went to plough. Ansaruddin P.W-3 stated before the I.O. that he went to plough the land whereas in his deposition before the court stated that he went to the land to plough along with Mokram and Ajiruddin. It is found that evidence of the 3 (three) important eye witnesses are at great variance and contradictory to what they had stated before the I.O. and learned trial court. Thus the evidence of P.W-1, P.W-2 and P.W-3, in my considered view, is not at all trustworthy, reliable and inspiring. 23. It is found that evidence of the 3 (three) important eye witnesses are at great variance and contradictory to what they had stated before the I.O. and learned trial court. Thus the evidence of P.W-1, P.W-2 and P.W-3, in my considered view, is not at all trustworthy, reliable and inspiring. 23. The only independent witness in this case is one Shri Ananta Namasudra, P.W-4, who fairly stated in his evidence that there was a " marpit" between 2 groups. He is a co- villager and he was present at the place of occurrence by chance. He is a chance witness. This witness in his cross- examination clearly stated that he did not see the burning of house of any of the accused persons. He also stated that he did not notice any injury on the person of any accused person. He also stated clearly that " prosecution party about 5/6 persons, trespassed in to the house of accused/person and they tried to set fire to their one of the houses and assaulted them and then, some of the family members of the accused, in order to obstruct the prosecution party, pelted some hard object and thus they sustained injuries". From this evidence of P.W-4 it can easily be understood that the prosecution party is the attacker on the defence party, although it is not established that any house of the defence party was set on fire or brunt down. 24. P.W-6, Abdul Hannan, in his evidence also mentioned about marpit between 2 groups. He is not a co-villager. He is a man from other village located at a distance of about 5 K.Ms from the village of the informant. He was not mentioned as a witness in the FIR. He visited the village of the informant on the previous day of the incident and he stayed in the house of Makai Mia, husband of his sister. This Makai Mia is the brother of Mokram (since deceased), brother of informant Sirajuddin. He is, therefore, not an independent witness in real sense rather he is an interested and related witness. 25. It is an established fact that the present accused persons instituted a criminal case, being GR 1131/97 which was registered as Sessions Case No. 58/2001. Simultaneously it was tried by the same court. He is, therefore, not an independent witness in real sense rather he is an interested and related witness. 25. It is an established fact that the present accused persons instituted a criminal case, being GR 1131/97 which was registered as Sessions Case No. 58/2001. Simultaneously it was tried by the same court. In the said case, it was alleged that on 12.10.97 at about 6.30 A.M. the accused persons (informant/prosecution party) numbering 15/20, while they were ploughing on their own land, the first accused Nurul Hoque trespassed into the homestead land and taking an iron spear tried to take a way the daughter of the first informant but her mother prevented them from taking her daughter and in the said incident Nurul Hoque injured the mother by a spear. One Reazudding and Ayazuddin, being the maternal uncle of the girl, who were present at the place of occurrence tried to rescue the girl whereupon Nurul Hoque severely injured both Reazuddin and Ayazuddin. The second accused Aziruddin then entered into the homestead land of the first informant being armed with dao and spear and injured one Majira Begum, wife of Arjumond, brother of first informant on her head. The said Aziruddin even set the house of the informant on fire. The accused, thereafter, gheraoed the first informant, his wife and the other members of their family and assaulted them causing injuries. In the said case, the learned trial court, on the basis of evidence on record, convicted the accused Sirajuddin, Makai Mia and Abdul Kadir U/S 334 IPC for voluntarily causing simple hurt and sentenced them to pay fine of Rs. 500/-, in default, SI for 1 month. 26. From the judgment in the above case, it is found that the present informant and his party were convicted in the cross-case as mentioned above. There is no doubt that they were not so innocent. They caused injury, may be simple in nature, but they have been found to be present at the place of occurrence with intention to dispossess the accused persons of possession of land in dispute and they indulged in the marpit. As stated earlier, the informant party is the first attacker and it was not unnatural that the accused persons resorted to act of private defence to save themselves from the attack/ assault from the other side. As stated earlier, the informant party is the first attacker and it was not unnatural that the accused persons resorted to act of private defence to save themselves from the attack/ assault from the other side. In this regard, I would like to refer the first instance and if at all it took place, there was a slapping and fist blows on Ansaruddin by the accused Reazuddin and his wife. This incident compelled them for approach the court of law for redressal of their grievances against the accused Reazuddin and his wife. The second incident as claimed, arose when Mokram, Aziruddin and Ansaruddin went to the disputed land to challenge the assault on Ansaruddin by the accused Reazuddin and his wife. This aggressive challenge gave rise to immediate provocation and the accused persons attempted to save their lives and it resulted into a quarrel and ultimately fight between the two groups. This was initiated by the first informant and his party. 27. I have discussed and pointed out the contradictions and inconsistencies in the evidence of prosecution witnesses. The prosecution examined P.W-4 and 6 as independent witnesses although their names were not cited as witnesses in the charge sheet. Even if it is found that there is nothing wrong in not mentioning these two persons as witnesses by the prosecution to prove its case against the accused persons, no importance could be given to their evidence as independent witnesses because of the fact that they are not found to be independent in real sense. At least P.W-6, Abdul Hannan, is admittedly the brother-in-law of Makai Mia, who is the brother of Mokram Ali. So also, P.W-4, Sri Ananta Namasudra who was a chance witness. His presence by chance at the time of occurrence is not corroborated by any co-villager. Moreover, his evidence is found to be unreliable in as much as he stated in cross-examination that he noticed no injury on the persons of the accused persons. This apart, his evidence is found to be false on the face of the finding of the court in the cross case where the accused persons (informant in the present case) were found guilty and convicted and sentenced U/S 334 IPC. 28. This apart, his evidence is found to be false on the face of the finding of the court in the cross case where the accused persons (informant in the present case) were found guilty and convicted and sentenced U/S 334 IPC. 28. With the aforesaid contradictions and inconsistencies in the evidence of the prosecution witnesses, it is difficult to hold that the prosecution has been able to establish the charge against the convict/appellants beyond all reasonable doubts. In the recent judgment in the State of U.P. Vs. Preetam and others, reported in (2011) 11 SCC 286 , it has been held that cumalitive effect of all infirmities in the case of prosecution and the probabilities of plea of self defence can render the case of prosecution doubtful and the order of conviction and sentence could be reversed. The prosecution case, in the above cited case was that on a date of occurrence while informant and his nephew were grazing their cattles, the accused came and asked why they were grazing their cattles in his field. The informant told him that they were not grazing in his field and then the accused abused and started beating them. The informant and his nephew retaliated and started beating Preetam. On an alarm his family members, who were present in the vicinity doing work in their fields came to the scene. In the physical clash between the parties 2 persons belonging to the prosecution, died and some of them received injuries. In paragraph 16, the Apex court observed and held as follows- 16. We have considered the submission made by the learned counsel. On a thorough re-examination of the evidence, the High Court discarded the prosecution story as projected through PW 1 Punna. He had stated that Gulab and Chhatrapal had engaged in "marpeet" with Preetam in Dhadhai Haar. Both sides had assaulted each other. Gulab and Chhatrapal had run towards the village. They were followed up to the field of Hirwa by the respondent and were assaulted. This alleged incident in Dhadhai Haar was sought to be proved by PW 3 Kumari Pramod. However, the High Court disbelieved her evidence on the ground that she was unlikely to be present at the scene of the incident. Her name did not figure in the FIR. She had just supported her father and uncle entirely. This alleged incident in Dhadhai Haar was sought to be proved by PW 3 Kumari Pramod. However, the High Court disbelieved her evidence on the ground that she was unlikely to be present at the scene of the incident. Her name did not figure in the FIR. She had just supported her father and uncle entirely. She had improved her version; which did not even tally with the version given by the injured, when they were examined. 29. All the accused persons in this case have been convicted U/S 304 part -II and 323 IPC with the aid of section 148/ 149 IPC. Section 148 provides for punishment of the guilty person(s) of committing offence of rioting armed with deadly weapons or with anything which, used as a weapon of offence, is likely to cause death. Rioting is defined U/S 146 IPC. First there must be an unlawful assembly and subsequently such unlawful assembly or any member thereof must be found using force or violence in achieving a common object. However, member of such unlawful assembly would be punishable U/S 149 IPC. The essence of Sections 146 and 149 IPC is unlawful assembly in prosecution of common object. As regards the allegation of unlawful assembly, the present case is to be considered within the meaning/ definition given U/S 141 IPC. However, member of such unlawful assembly would be punishable U/S 149 IPC. The essence of Sections 146 and 149 IPC is unlawful assembly in prosecution of common object. As regards the allegation of unlawful assembly, the present case is to be considered within the meaning/ definition given U/S 141 IPC. There are 5 (five) illustrations designated as unlawful assembly under the said sections which are reproduced hereunder - First- To overawe of criminal force or show of criminal force, [the Central or any State Government or Parliament or the Legislature of any State ], or any public servant in the exercise of the lawful power of such public servant; or Second-To resist the execution of any law, or of any legal process; or Third- To commit any mischief or criminal trespass; or other offence; or Fourth- By means of criminal force or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth- By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Explanation- An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly The first and second illustrations have no relevance to this case. The relevance of 3rd, 4th and 5th illustrations is to be considered on the face of allegations and evidence on record. So far it is established that there was no unlawful assembly by the accused persons. One of them simply objected to ploughing of land by 3 members of the informant party. There was reinforcement of men in the first informant's party being armed with lathi, spear etc determined to assault the accused persons. The attack came from the informant side and in retaliation the accused persons came down on them. One of them simply objected to ploughing of land by 3 members of the informant party. There was reinforcement of men in the first informant's party being armed with lathi, spear etc determined to assault the accused persons. The attack came from the informant side and in retaliation the accused persons came down on them. There was no pre plan on the part of the defence to launch attack on the prosecution group nor did the defence indulge in unlawful assembly in pursuance of any common object as held in Allauddin Mian Shariff Mian VS State of Bihar, reported in AIR 1989 SC 1456 , there must be a nexus between the common object and the offence committed and unless the prosecution proves such nexus, the individual members would not be liable U/S 149 IPC. The rigor of section 149 IPC has been elaborated in Kuldip Yadav and others Vs. State of Bihar, reported in (2011) 5 SCC 324 . It is held herein that before convicting the accused with the aid of Section 149 IPC, it is mandatory for the court to give clear finding regarding nature of unlawful common object and the incriminating act. The clear position is that in order to attract Section 149 IPC, it must be shown that incriminating act was done to accomplish common object of unlawful assembly and it must be within the knowledge of other members. From the above it is more than clear that the co-relation between the common object and incriminating act must be established. In my considered view, such co-relation is found absent in the case at hand. The consequence of it is that the appellants can not be held liable and punished with the aid of Section 149 IPC. The prosecution is, then, required to establish the individual action and the related liability of each accused person. The prosecution is saddled with duty to spell out, particularly which of the assault(s) or whose assault proved fatal to the deceased. Such statutorily cast duty is not found discharged by the prosecution and as such, I am not persuaded to accept the finding of the learned trial court and its impugned consequential order of conviction and sentence. Moreover, the parties in the present case have a dispute and rivalry over the disputed land since long. Such statutorily cast duty is not found discharged by the prosecution and as such, I am not persuaded to accept the finding of the learned trial court and its impugned consequential order of conviction and sentence. Moreover, the parties in the present case have a dispute and rivalry over the disputed land since long. As the parties are already engaged in legal battle in civil court, they are bound to indulge in exaggeration while making the allegation against each other and include innocent members in the list of guilt. This is a normal tendency and the chance or possibility of such thing taking place cannot be ruled out in the instant case. Taking into consideration and entire facts and circumstances of the case and the evidence available on record, I am not persuaded to accept the findings and conclusions arrived at by the learned trial court. The impugned judgment convicting and sentencing the appellants in my considered opinion are not sustainable in law so much so the prosecution could not establish the charge against the appellants beyond all reasonable doubts and the appellants are entitled to derive the benefit of doubts. Accordingly, the appellants are acquitted on benefit of doubt. It is stated that the appellants are on bail and as such, bail bond executed by them shall stand discharged. The appeals stand allowed. Return the LCRS forthwith. Appeal allowed