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2012 DIGILAW 768 (GAU)

Mogjul Ali v. State of Assam

2012-06-20

AMITAVA ROY, P.K.MUSAHARY

body2012
JUDGMENT Amitava Roy, J. 1. The accused/appellants who stood trial in Sessions Case No. 45/04 along with one Abdulla Hoque under Section 147/148/149/323/325/302 of the Indian Penal Code (for short, hereinafter referred to as the IPC) have been convicted by the judgment and order dated 6.9.2006 rendered in the said proceeding under Section 302/323/325/34 IPC and sentenced to suffer (i) rigorous imprisonment for life for their conviction for murder and to pay a fine of Rs.1000/-, in default, rigorous imprisonment for three months; (ii) rigorous imprisonment for six months for their conviction for causing simple injury; and (iii) rigorous imprisonment for five years for causing grievous hurt and to pay a fine of Rs.500/-, in default, rigorous imprisonment for two months. Their co-accused Abdulla Hoque was, however, exonerated of the charges. Thus, being aggrieved, they are in appeal. We have heard Mr. N. Ahmed, learned counsel for the accused/appellants and Mr. KA Mazumdar, learned Addl. Public Prosecutor, Assam for the State. 2. The prosecution case is traceable to the GD. Entry No. 379 dated 24.10.99 recorded at the Rakshasmari Police Out Post on the basis of wireless message reporting a clash between two factions of Muslim community at Amtol Bajaligaon under Dhekiajuli Police Station in the district of Sonitpur. Investigation commenced on the basis thereof and in the next morning at about 8.30 a.m. the FIR pertaining to the incident was lodged by one Md. Sahjahan Ali addressed to the Officer-in-Charge of Rakshasmari Police Out Post to the effect that in the previous evening of 23.10.99 his co-villager Rahman Ali's cattle had strayed into the paddy field of Md. Alimuddin and destroyed the same. Later in the evening at about 7 p.m. Md. Jalil Sheikh had informed Md. Alimuddin, Md. Musa Ali, Md. Khalekuddin and Md. Mumtaza Ali that there would be a meeting in the house of Maqjul regarding building of a mosque. The FIR discloses that accordingly these persons went to attend the meeting where Md. Mahir Ali, Md. Alfaz Hussain, Md. Abbas Ali, Md. Nur Islam, Md. Magjal Haque, Md. Abdul Haque, Md. Kalimuddin Sheikh, Md. Rahman Ali, Md. Jalil Sheikh were already present being armed with 'dao' and 'lathi'. It was alleged in the FIR that these persons in a body hacked the informant's elder brother Musa Ali to death and further caused severe injuries to six persons, namely, Md. Alimuddin, Md. Mumtaz Ali, Md. Magjal Haque, Md. Abdul Haque, Md. Kalimuddin Sheikh, Md. Rahman Ali, Md. Jalil Sheikh were already present being armed with 'dao' and 'lathi'. It was alleged in the FIR that these persons in a body hacked the informant's elder brother Musa Ali to death and further caused severe injuries to six persons, namely, Md. Alimuddin, Md. Mumtaz Ali, Md. Muhammad Ali, Ms. Halima Khatun, Ms. Gulecha Khatun and Ms. Samastabhan by assaulting them with 'dao'. That the informant too was dealt a 'dao' blow but had escaped luckily was mentioned in the FIR. 3. On the basis of this information which was preceded by the GD Entry as above, Dhmekiajuli P.S. Case No. 171/99 under Section 147/148/149/302/326 IPC was registered and on the conclusion of the investigation, chargesheet was laid against the accused/appellants along with Abdulla Hoque, Abbas Ali, Altaf Hussain and Nur Islam under Section 147/148/149/326/302 IPC. The accused/appellants and Abdulla Hoque were charged under the above provisions to which they pleaded 'not guilty' and claimed to be tried. At the trial, the prosecution examined twenty witnesses including the Investigation Officers and the doctors who had treated the injured and performed the post mortem examination. The statements of the accused persons under Section 313 CrPC were thereafter recorded. The accused persons elected not to adduce any evidence in defence. By the impugned judgment and order there were convicted and sentenced as above. The three other chargesheeted accused persons were declared absconders. 4. The rival submissions ought to be outlined at the threshold to assist the analysis of the evidence on record for an appropriate adjudication. Impeaching the decision assailed in the instant appeal, the learned counsel for the appellants has dismissed the case of the prosecution to be unworthy of any credit, its witnesses having contradicted each other on material particulars. Not only the prosecution witnesses, according to Mr. Ahmed, have been irreconcilably inconsistent with regard to the place of the alleged occurrence, the varying number of the injuries sustained by the deceased as evident from the ocular testimony, the post mortem and the inquest reports cast a serious doubt on the veracity of the prosecution case. According to the learned counsel, the evidence of P.W.1, P.W.3, P.W.9 and P.W.11 projected as eye witnesses to the incident being not only incompatible with each other, the same renders their presence at the place of occurrence doubtful. According to the learned counsel, the evidence of P.W.1, P.W.3, P.W.9 and P.W.11 projected as eye witnesses to the incident being not only incompatible with each other, the same renders their presence at the place of occurrence doubtful. Further, the failure of the prosecution to explain the injuries on one of the accused/appellants, namely, Kalimuddin is fatal, he maintained. Without prejudice to these pleas, Mr. Ahmed has urged in particular that as none of the prosecution witnesses has attributed any specific role of the accused/appellant Mogjul Ali, there was no basis for recording his conviction. The prosecution having failed to establish either explicitly or implicitly the formation of an unlawful assembly with the common object of committing the assaults on the deceased and others, as alleged, the learned Trial Court fell in gross error in convicting and sentencing the accused/appellants with the aid of Section 34 IPC, he insisted. Moreover, as the Investigating Officer(s) failed to seize the blood stained earth of the place of occurrence, the wearing apparels of the deceased and the weapon of assault, there was no perceptible nexus between the alleged incident and the accused/appellants for which they are entitled to clean acquittal. According to the learned counsel, apart from the inherent contradictions and inconsistencies in the testimony of the prosecution witnesses, their version at the trial being a visibly improved one when compared to their statements recorded in course of the investigation, no reliance can be placed on them, he maintained. Mr. Ahmed, to reinforce his contentions, placed reliance on the decision of this Court in Mintu Hazarika Vs. State of Assam, 2002 (3) GLT 80. 5. Mr. Mazumdar per contra has contended that having regard to the charges framed against the accused/appellants and the evidence of the prosecution witnesses, more particularly P.W.1, P.W.3, P.W.9 and P.W.11, the learned Trial Court was perfectly justified in convicting and sentencing them for the offences proved and, thus, no interference therewith is warranted. The learned Additional Public Prosecutor emphasized that the evidence on record not only appropriately laid the immediate preface for the incident of murderous assaults by the accused/appellants and their companions resulting in the death of Musa Ali and the injuries suffered by others, the sequence of events demonstrably establish formation of an unlawful assembly by them (accused/appellants) and others with the common object of committing the crime. Mr. Mr. Mazumdar, therefore, has urged that as the accused/appellants and their cohorts as members of the unlawful assembly had been charged inter alia under Section 149 IPC, proof of their individual roles in the assaults was inconsequential and all were equally and vicariously liable for the offending act of the others. The learned Public Prosecutor has argued that even assuming that Section 34 IPC was not attracted to the facts of the case, the conviction of the accused/appellants with the aid of Section 149 IPC is permissible in the face of the overwhelming evidence on record and, thus, having regard to the heinous nature of the offence committed, no interference with the impugned judgment and order is called for in the interest of justice. 6. To effect a comparative evaluation of the arguments advanced, a brief survey of the evidence on record is indispensable. P.W.1, Md. Sahjahan Ali, brother of the deceased as well as the informant deposed that on the date of the incident at about 4 p.m. the cattle of the accused/appellant Rahman Ali had trespassed into the paddy field of his (P.W.1) maternal uncle Alimuddin and had destroyed the crop. In connection with the said incident an altercation took place between Alimuddin and Rahman Ali in the evening, whereafter, at about 7 p.m. accused/appellant Abdul Jalil called his maternal uncles Alimuddin, Khalekuddin, Mumtaz Ali and his elder brother Musa Ali to a meeting convened for the purpose of discussing the issue of building a mosque. According to this witness, his maternal uncles declined to go for which accused/appellant Abdul Jalil forcibly took Mumtaz Ali to the house of Mokjul. The witness further deposed that a little later he heard hue and cry from the house of Mokjul, whereafter, he along with his maternal uncles and his brother Musa Ali rushed to the place. The witness stated that no sooner they had reached the house of Mokjul, accused/appellant Rahman Ali came running and dealt a 'dao' blow on him which, however, missed him as he moved aside. The witness stated that simultaneously accused/appellant Kalimuddin inflicted a 'dao' blow on his left arm, whereafter, accused/appellant Rahman Ali assaulted his elder brother Musa Ali with a 'dao'. Accused/appellant Rahman Ali, according to the witness, inflicted another 'dao' blow on his elder brother's head. The witness stated that simultaneously accused/appellant Kalimuddin inflicted a 'dao' blow on his left arm, whereafter, accused/appellant Rahman Ali assaulted his elder brother Musa Ali with a 'dao'. Accused/appellant Rahman Ali, according to the witness, inflicted another 'dao' blow on his elder brother's head. The witness stated that as the injured fell down on the ground, accused/appellants Rahman Ali and Kalimuddin started hacking him (Musa Ali) with 'dao' causing as many as 14 injuries on his body. The witness stated that thereafter these two accused/appellants fled from the scene and as he (witness) held his severely injured elder brother, Nijam Ali arrived at the spot. Having heard of the quarrel his parents also turned up, whereafter, they shifted the injured Musa Ali to the house of Saha Ali and bandaged the wounds. The witness stated that he then went to the police station after informing it of the incident verbally. On his return, according to the witness, he saw his maternal uncles along with his elder sister Halima Khatun and his cousin sister Gumesha Khatun with cut injuries for which they were later shifted to the hospital for treatment. The witness stated that at about 3 a.m. police from the Rakshasmari Police Out Post visited the place of occurrence and, amongst others, seized a dagger, a ballam (spear), arrow fitted with feather, plastic slippers, a switch and a piece of broken wood therefrom. The witness also proved the seizure list (Exhibit-1) with his signature thereon as well as the FIR (Exhibit-2). He identified as well as the seized articles. In cross-examination, this witness while denying the suggestion to the effect that the version narrated by him at the trial had not been stated before the police in course of the investigation, admitted of not having disclosed to the police that the accused/appellant Jalil had forcibly taken Mumtaz Ali to the place of occurrence and that his parents had visited the place of occurrence after the incident had subsided. 7. P.W.2, Alfaz Ali is not an eye witness to the incident. He, however, deposed about the trespass of accused/appellant Rahman Ali's cattle into the paddy field of Alimuddin earlier in the afternoon of the date of the incident. 7. P.W.2, Alfaz Ali is not an eye witness to the incident. He, however, deposed about the trespass of accused/appellant Rahman Ali's cattle into the paddy field of Alimuddin earlier in the afternoon of the date of the incident. He further stated that later in the evening accused/appellant Rahman Ali, Abdul Jalil, Kalimuddin and others came to the house of Alimuddin and picked up a quarrel, whereafter, Musa Ali intervened and pacified them. The witness stated as well that thereafter accused/appellant Abdul Jalil came and called Alimuddin, Mumtaz, Khalek and others to the mosque informing that a meeting would take place there. The witness further stated that when Alimuddin and others declined to go, accused/appellant Abdul Jalil dragged Mumtaz away by holding his hand and soon thereafter hearing hue and cry from the house of Mokjul, Musa Ali, Sahjahan and his (P.W.2) wife rushed to the spot. The witness stated that sometime thereafter Nizam Ali and Sahjahan Ali came back carrying Musa Ali in a severely injured condition who a little later died in the courtyard of Saha Ali. In cross-examination, this witness disclosed that the night of the occurrence was a moonlit one and that Saha Ali's courtyard was soiled with blood of Musa Ali. He denied the suggestion of not stating before the police that accused/appellant Abdul Jalil had just before the incident come to his place to call Alimuddin, Mumtaz and Khalek for the meeting. 8. P.W.3, Musstt. Amana Khatun, mother of the deceased reiterated the incident of the afternoon of the date of the occurrence in which the cattle of accused/appellant Rahman Ali had destroyed the standing paddy of Alimuddin, her younger brother. The witness stated that in the evening accused/appellant Rahman Ali. Alimuddin, Kalimuddin, Abdul Jalil and others came to their place and quarreled with Alimuddin on which her son Musa Ali (since deceased) intervened and defused the situation, whereafter, all dispersed. A little later accused/appellant Abdul Jalil returned and called Alimuddin, Mumtaz, Musa and Khalek who were present in her (P.W.3) house for a meeting to be held at the mosque. The witness stated that Abdul Jalil held Mumtaz by his hand and took him to the meeting as represented. According to her, a little later she heard hue and cry from the courtyard of Mokjul on which Musa Ali, Sahajahan Ali and herself went there. The witness stated that Md. The witness stated that Abdul Jalil held Mumtaz by his hand and took him to the meeting as represented. According to her, a little later she heard hue and cry from the courtyard of Mokjul on which Musa Ali, Sahajahan Ali and herself went there. The witness stated that Md. Sahajahan Ali and Mumtaz were thereafter assaulted with 'dao' but as she was a little away she could not recognize the assailants. She, however, stated to have seen accused/appellant Rahman Ali and Kalimuddin assaulting Musa Ali with a 'dao'. She stated as well that it was a moonlit night. While deposing that soon thereafter Musa Ali died in the courtyard of Saha Ali out of the injuries sustained. She stated as well of the injuries sustained by Halema Khatun, Gulesa Khatun, Md. Ali and Mumtaz Ali. In cross-examination, the witness disclosed that the occurrence took place in the courtyard of Mokjul. She denied the suggestion of having omitted to mention before the police that she had not seen who had had cut Musa. She denied the suggestion as well that she had not seen the occurrence. 9. The evidence of P.W.4, Malek Ali does not deserve an elaboration as he is not a direct witness of any of the incidents on the date of the occurrence. P.W.5, Musstt. Shokbhan Nessa is also not an eye witness to the incident, her testimony being confined to the factum of death of Musa Ali. According to her, the deceased bore cut injuries on his person and his left hand was almost severed from his shoulder. According to her, before his death the deceased asked for water which she offered. 10. P. W.6, Dr. Jitendra Saharia who had examined seven injured persons including accused/appellant Kalimuddin described the injuries found on their bodies. As would be evident from his testimony, most of the injured examined by him suffered lacerated injuries and tenderness of some parts of their bodies. Mahammad Ali, however, suffered fracture of the right ulna and Md. Alimuddin Ali compound fracture of the skull. Smastabhan Nessa suffered a fracture of the right forearm. The injuries of accused/appellant Kalimuddin was tenderness over left shoulder joint. 11. P.W.7, Dahijul Seikh is a seizure witness of plastic slippers, four arrows, a hammer fitted with a wooden log etc. effected by the police at the place of occurrence. 12. P.W.8, Md. Alimuddin Ali compound fracture of the skull. Smastabhan Nessa suffered a fracture of the right forearm. The injuries of accused/appellant Kalimuddin was tenderness over left shoulder joint. 11. P.W.7, Dahijul Seikh is a seizure witness of plastic slippers, four arrows, a hammer fitted with a wooden log etc. effected by the police at the place of occurrence. 12. P.W.8, Md. Ali stated that when on hearing hue and cry from the house of 'accused person' he went to the place of occurrence Abbas (absconder accused) and Mafajul struck him on his shoulder, forehead and heel with a 'dao'. While stating that he was treated at the hospital for the injury sustained, the witness disclosed that in the incident Musa Ali had died and as learnt by him Samastabhan, her daughter Halima and Mumtaz Ali had also sustained injuries. In cross-examination, the witness denied the suggestion that Mafazal had not caused any injury to him with a sharp weapon. 13. P.W.9, Nizam Ali while reiterating the incident of trespass of the cattle of accused/appellant Rahman Ali into the paddy field of Alimuddin and a quarrel consequent thereto in the evening which was resolved by his elder brother Musa Ali, deposed that soon thereafter accused/appellant Abdul Jalil had come to their place and called them to a meeting to be held at the mosque. He affirmed that when they declined to go, accused/appellant Abdul Jalil took Mumtaz along with him by dragging him by his hand, whereafter, a hue and cry was heard from the house of Mokjul. The witness stated that on hearing commotion, he along with his brother, Musa Ali, mother Amena Khatun and Sahajahan Ali rushed to the place of occurrence and as they reached the spot, accused/appellant Kalimuddin came in a run and inflicted a 'dao' blow on the left shoulder of Musa Ali. The witness stated that accused/appellant Rahman Ali then gave a blow on the head of Musa whereupon he fell down. The witness testified that even thereafter accused/appellant Kalimuddin and Rahman Ali dealt several 'dao' blows on the injured as a result whereof he in all sustained 14 cut injuries. The witness stated that Abbas (absconding accused) also struck Mumtaz with a dagger and accused/appellant Mahir gave a 'dao' blow to his elder sister who had by then reached the spot. The witness testified that even thereafter accused/appellant Kalimuddin and Rahman Ali dealt several 'dao' blows on the injured as a result whereof he in all sustained 14 cut injuries. The witness stated that Abbas (absconding accused) also struck Mumtaz with a dagger and accused/appellant Mahir gave a 'dao' blow to his elder sister who had by then reached the spot. As Samasthabhan also arrived at the place of occurrence, according to the witness, accused/appellant Nur Islam, Abbas (absconding accused), Altaf Hussain (absconding accused) assaulted her with dagger and 'dao'. That Abbas (absconding accused) also inflicted a cut injury on the hand of Gulecha was also stated by this witness. He stated further that his maternal uncle Alimuddin was assaulted on his head by accused/appellant Abdul Jalil with a 'lathi'. The witness deposed about seizure of arrow, slippers and hammer by the police as well as the inquest done on the body of deceased Musa Ali. In cross-examination, this witness stated that the incident had taken place in the paddy field. He denied the suggestion of the defence that no incident had taken place on the paddy field near the house of Mafajul. The witness admitted that the quarrel had started over the trespass of the cattle of accused/appellant Rahman Ali in the paddy field of Alimuddin and destruction of the standing crop. 14. P.W.10, Gulecha Begum deposed that on reaching the place of occurrence i.e. the house of Maqjul after hearing hue and cry along with her father Alimuddin, mother Samasthabhan and Halima, accused/appellant Abdul Jalil inflicted a 'dao' blow on Alimuddin and was joined in the assaults by accused/appellant Mahir, Altaf (absconding accused) and Abbas (absconding accused). The witness stated that when she tried to intervene, accused/appellant Mahir inflicted a cut blow on her left palm with a 'dao'. The witness in her cross-examination admitted of not having seen any other incident. She stated that the assault on her father Alimuddin had taken place on the road near the house of Maqjul. 15. P.W.11, Musstt. Halima Khatoon stated that in the late evening of the date of the occurrence while she was sleeping, she heard hue and cry from the house of Maqjul whereafter she along with her mother, father and brothers reached that place. The witness stated to have seen accused/appellant Rahman Ali and Kalimuddin assaulting her brother Musa Ali. As the injured fell she held him. The witness stated to have seen accused/appellant Rahman Ali and Kalimuddin assaulting her brother Musa Ali. As the injured fell she held him. At that accused/appellant Mahiruddin came and inflicted a 'dao' blow on her right hand for which she had to take treatment at the Guwabati Medical College & Hospital for 15 days. The witness in her cross-examination clarified that her brother Musa Ali was assaulted in the paddy field which was adjacent to the road. 16. P.W.12, Samastabhan Nessa stated that earlier to the incident, in the late afternoon of the date of the occurrence there was an altercation between accused/appellant Abdul Jalil and Mumtaz Ali on the incident of trespass of the cattle of accused/appellant Rahman Ali into the paddy field of Alimuddin and that deceased Musa Ali pacified them. The witness stated that at about 8/8.30 p.m. Abdul Jalil called away Mumtaz Ali whereafter an incident of assaults took place in the house of Maqjul. On hearing hue and cry, according to the witness, she along with her husband went to the place of occurrence and when they asked about the reason for the assaults, accused/appellant Abdul Jalil whacked her husband with a plough. The witness stated that subsequent thereto, Nur Islam (absconding accused) also dealt a 'dao' blow on her husband's head. As she intervened to protect her husband, accused/appellant Mahir Ali inflicted a 'dao' blow on her arm. According to this witness, accused/appellant Mahir, Abbas and Altaf also cut her left hand with 'dao'. That Gulecha who was with them was also assaulted on her hand by accused/appellant Mahir was stated by the witness. She deposed about the assault on Mumtaz by the accused persons as well. She stated that deceased Musa Ali bore several cut injuries and that all those injured had to take medical treatment. 17. P.W.13, Md. Anar Hussain, a witness to the seizure by the police of a sal wood 'lathi', a hammer, bamboo switch, a pair of plastic slippers and four arrows vide Exhibit-1 identified the seized articles in the Court. 18. P.W.14, Md. Alimuddin, as the Trial Court has recorded, was unable to speak and expressed himself by gesticulation. He indicated that accused/appellant Abdul Jalil and Maher Ali had assaulted him on his head and neck. 19. 18. P.W.14, Md. Alimuddin, as the Trial Court has recorded, was unable to speak and expressed himself by gesticulation. He indicated that accused/appellant Abdul Jalil and Maher Ali had assaulted him on his head and neck. 19. P.W.15, Mamtaz Ali while reiterating the incident of trespass of the cattle of accused/appellant Rahman Ali into the paddy field of Alimuddin claimed to have settled the dispute late in the evening in the house of Musa Ali. According to this witness, thereafter, accused/appellant Abdul Jalil called him to a meeting at the mosque and as he accompanied Abdul Jalil and had reached near the house of Maqjul, accused Abbas (absconder) struck him with a dagger from behind. The witness stated that on being assaulted he raised hue and cry on which Alimuddin, Musa Ali, Halima, Gulecha Khatun and Samastabhan rushed to the place of occurrence. According to this witness, he could not recall as to who assaulted him thereafter but stated that he sustained two injuries in his right arm-one in the left and also on his head and neck. The witness further stated that in the incident Md. Ali sustained injuries on his head and that Halima, Gulecha and Samastabhan were also injured. He stated that Musa Ali was killed. In cross-examination, this witness stated that he was not aware as to who had assaulted Gulecha, Halima, Samastabhan and Sahajahan Ali. 20. P.W.16, Dr. A.K. Boruah who had performed the post mortem examination on the dead body deposed to have found the following injuries: External appearance: A young male body in fresh condition with presence of rigor mortis with the following injuries. (1) Left arm completely separated from the shoulder joint, cutting all the major vessels and nerves. (2) Sharp cut over left forearm on the ulna border of 4" size (bone deep). (3) 3" size sharp cut over the scalp of left knee between little and the viz. finger. (4) 3" size sharp cut over the head. (5) 1½" size sharp cut on the right knee and 1" size sharp cut at the left knee. Other organs are healthy. 3" size sharp cut over the scalp left side. Injuries are antemortem in nature and caused by sharp cutting instrument. According to him, the death was due to shock and haemorrhage as a result of cutting of left brakod artery. 21. P.W.17, Ms. Other organs are healthy. 3" size sharp cut over the scalp left side. Injuries are antemortem in nature and caused by sharp cutting instrument. According to him, the death was due to shock and haemorrhage as a result of cutting of left brakod artery. 21. P.W.17, Ms. Mohela Khatoon deposed that in the late evening of the date of occurrence accused/appellant Abdul Jalil had called her maternal uncle Mumtaz Ali from his house and had assaulted him with a 'dao'. She stated further that accused/appellant Nur Islam, Abdul Jalil, Abbas and Altaf (both absconding accused) also assaulted Smasthabhan, Gulecha and Halima when they arrived at the place of occurrence. 22. P.W.18, Keshab Baidya is one of the Investigating Officers who referred to the verbal information on which the GD Entry was made. He stated as well about the inquest conducted by him on the dead body, examination of the witness and preparation of the sketch map. He proved the seizure of the aforementioned items from the place of occurrence and proved the FIR as well. The contradictions suggested by the defence vis-a-vis the prosecution witnesses were also proved with reference to the Case Diary. 23. P.W.19, Bipin Kr. Bhuyan who had submitted the chargesheet proved the same to be Exhibit-8. P.W.20, Kamal Ch. Bora who had taken up the investigation in between on the transfer of the officer concerned in-charge thereof, proved the GD Entry (Exhibit-9). 24. The accused/appellants in course of their statements recorded under Section 313 CrPC denied the correctness of the incriminating circumstances recorded at the trial and claimed to be innocent. They, however, did not adduce any evidence in defence. 25. We have noted the arguments advanced as well as the evidence on record, both oral and documentary. The incident of assault, as demonstrated by the materials on record, is evidently a precipitation of intervening events traceable to the trespass of the cattle of the accused/appellant Rahman Ali into the paddy field of Alimuddin and destruction of the standing crop. The simmering discontentment that followed since the afternoon of that fateful day lingered till early evening and speciously seem to have subsided on the intervention of the deceased Musa Ali but did not die down. The simmering discontentment that followed since the afternoon of that fateful day lingered till early evening and speciously seem to have subsided on the intervention of the deceased Musa Ali but did not die down. Evidence is in abundance to establish that as the evening grew the accused/appellants along with others assembled at the place of occurrence and accused/appellant Abdul Jalil visited the house of the deceased to call him (deceased), Alimuddin, Md. Khalekuddin and Mumtaz Ali to a meeting to be held at the local mosque. While Mumtaz accompanied Abdul Jalil, the others stayed back only to rush to the house of Maqjul immediately thereafter on hearing hue and cry therefrom. The evidence of the prosecution witnesses establish beyond doubt the presence of the accused appellants along with Abbas Ali (absconder), Altaf Hussain (absconder) and Nur Islam at the place of occurrence being armed with sharp cutting weapons. The evidence of P.W.1, P.W.3, P.W.9 and P.W.11 though marginally divergent, in substance substantiated the charge of several assaults by accused/appellants Rahman Ali and Kalimuddin Sheikh on deceased Musa Ali with 'daos' as a result whereof he suffered serious bleeding injures all over his body so much so that his left hand got almost severed from his shoulder. That the accused/appellants had also assaulted Alimuddin (P.W.14), Mumtaz Ali (P.W.15), Halima Khatun (P.W.11), Gulecha Khatun (P.W.10) and Samastabhan Nessa (P.W.12) is evident from the testimony of these witnesses. 26. Having regard to the backdrop of the incident of assault, the armed assembly of the accused/appellant and others was unmistakably an unlawful one as envisaged in Section 141 IPC animated with the common object of wreaking vengeance on Md. Alimuddin and other members of his group. In this view of the matter, minor inconsistencies and contradictions ascribing specific roles to them (accused/appellants) and their associates in narrating the incident, according to us, would not wholly discredit the prosecution case. This is more so as the prosecution, to reiterate, has established beyond doubt that the accused/appellants along with Abbas, Altaf and Nur Islam (absconders) were in a body present in the assembly being armed with deadly weapons. The variations in the number of injuries found on the dead body as disclosed in the ocular evidence, the post mortem report and the inquest report in this premise is also not of any decisive consequence against the prosecution. The variations in the number of injuries found on the dead body as disclosed in the ocular evidence, the post mortem report and the inquest report in this premise is also not of any decisive consequence against the prosecution. It is in evidence that the place of occurrence is located on the road nearby the paddy field and the house of Moqjul. The reference thereof made by the witnesses differently i.e. paddy field, road and house of Moqjul too cannot be construed to be fatal to discard the prosecution case. Having regard to the fact that the prosecution witnesses who had seen the occurrence and had suffered assaults are rustic villagers, marginal incompatibilities in their versions while narrating the progression of events comprising the incident as a whole, according to us, only lend credence thereto. The omissions made by them in their statements before the police pertaining to the constituent phases of the incident, having regard to the overall testimony of the prosecution witnesses at the trial also do not enure to the benefit of the accused/appellants. 27. On a totality of the above considerations, however, we are of the view bearing in mind the intervening developments culminating in the incident of assaults, that the accused/appellants cannot be held guilty of the offence of murder under Section 302 IPC. It is evident from the materials on record that the two factions remained confrontative throughout the day eventually resulting in a spate of assaults unleashed by the accused/appellants and their associates. It is understandable, considering the issue which enraged the assailants, that they were highly provoked by the developments during the day and eventually in a body vented their ire accompanied by assaults on Musa All and his family members and relatives. We are, therefore, of the considered opinion that the accused/appellants are liable to be convicted under Section 304(I) read with Section 141/147/148/149 of the IPC vis-a-vis the offence committed against deceased Musa Ali. They are also liable to be convicted under Section 323/325 read with Section 141/147/148/149 of the IPC for their assaults on the injured named above. 28. Having regard to the nature of the injuries sustained by Musa Ali, we are of the view that the accused/appellants ought to be sentenced to suffer ten years of Rigorous Imprisonment and to pay a fine of Rs.1000/-, in default, to suffer six months' further imprisonment. 28. Having regard to the nature of the injuries sustained by Musa Ali, we are of the view that the accused/appellants ought to be sentenced to suffer ten years of Rigorous Imprisonment and to pay a fine of Rs.1000/-, in default, to suffer six months' further imprisonment. For their conviction under Section 323/335 read with Section 141/147/148/149 of the IPC, in our view, it would meet the ends of justice if they are made to suffer imprisonment for a period of one month and six months and fine of Rs.500/- and Rs.100/- each, in default to undergo imprisonment for 15 days and one month correspondingly. All the sentences would run concurrently. 29. Needless to say, the period already done by the accused/appellants in custody would be set off against the duration of imprisonment awarded by this Court. The appeal is partly allowed to the extent indicated above.