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2018 DIGILAW 1448 (GAU)

Abdul Jalil v. State of Assam

2018-09-27

HITESH KUMAR SARMA, MIR ALFAZ ALI

body2018
JUDGMENT : Mir Alfaz Ali, J. Both these appeals are directed against the judgment and order dated 16.06.2014 passed by the learned Additional Sessions Judge, Silchar, Cachar in Sessions Case No. 48/2007. 2. All the appellants were convicted under Section 148 IPC and under Section 427/447 R/W Section 149 IPC along with other co-accused (not appellant). Further, the appellants, Wajid Ali, Noman Ali, Saiful Islam and Kalamuddin were convicted under Section 302 IPC and appellants Abdul Jalil, Ramijuddin and Kutubuddin were convicted under Section 326 IPC. Learned Sessions Judge sentenced all the appellants to rigorous imprisonment for 6 months under Section 148 IPC, rigorous imprisonment for 2 months under Section 447/149 IPC and rigorous imprisonment for 6 months under Section 427/149 IPC. Appellant Wazid Ali, Noman Ali, Safirul Islam and Kalamuddin were sentenced to imprisonment for life and fine of Rs. 5,000/- with default stipulation under Section 302 IPC and appellants Abdul Jalil, Ramijuddin and Kutub Uddin were sentenced to rigorous imprisonment for 3 years and fine of Rs. 5,000/- with default stipulation under Section 326 IPC. 3. As per prosecution case, some families of the village have been possessing and cultivating a plot of land covered by Patta No. 17 & 18. On 30.10.1998, at about 9 AM, 24 persons named in the FIR, armed with deadly weapons illegally trespassed into the said land and attacked the informant party in order to dispossess them from the said land and inflicted injuries to some of them. As a result of the injuries inflicted by the accused persons, one Sumantha Nath died at the place of occurrence and several others, including Vijay Nath, Moinul Hoque, Abu Bakkar, Burhanuddin, Asu Roy, Alifuddin sustained grievous injuries. The trespassers also demolished the crops cultivated by them. An FIR was lodged on the same day at about 1.30 PM by one Lokeswar Nath (since deceased), on the basis of which, police registered a case and commenced investigation. During investigation, police recorded the statements of the witnesses, prepared inquest report, send the injured for medical examination and the body of the deceased for postmortem examination. Autopsy was done by Dr. K.K. Chakraborty. During investigation, police recorded the statements of the witnesses, prepared inquest report, send the injured for medical examination and the body of the deceased for postmortem examination. Autopsy was done by Dr. K.K. Chakraborty. As per postmortem report, the following injuries were found on the body of the deceased, Sumantha Nath: "(1) cut injury vault of the scalp 5x1 cm x scalp deed (2) lacerated injury right side of forehead 3x2 cm (3) lacerated injury left side of forehead 2x1 cm (4) Abrasion with contusion of left forearm upper half 3x2 cm with fronture of fibular. (5) cut injury left thigh upper half and laterally 2.1/2x1/2x1 cm (6) Abrasion back of chest wall in left scapular region 1x1 cm All the injuries are fresh and antemortem Injury No. 1, 4 and 5 caused by sharp weapon and rest by blunt object. Scalp- as described, contusion under the scalp in frontal and parital area present. Skull and vertebra-healthy. Brain congested, spinal code not examined Subdural haemorrhage in both sides of brain present." In the opinion of the doctor, who conducted the postmortem examination, death was due to shock and hemorrhage as a result of intra-cranial hemorrhage caused by sharp and blunt object and the injuries were antimortem. 4. On completion of the investigation, police submitted charge sheet against 28 persons, out of whom eight accused persons expired during trial and one absconded, whose attendance could not be ensured and eventually 19 accused persons stood trial. 5. In course of trial, charges were framed against the accused persons under Section 448/447/326/427/302 R/W 149 IPC, to which, all the accused persons pleaded not guilty. Nine witnesses were examined by the prosecution and on appreciation of evidence, learned Trial Court convicted 10 of the accused including the present appellants and awarded sentence as indicated above. The rest were acquitted. Out of ten accused persons convicted, 7 are before us. 6. We have heard learned Sr. Counsel Mr. H.R.A. Choudhury, assisted by Ms. S.K. Nargis, learned counsel for the appellants and learned Additional P.P.for the State and Mr. A.R. Sikdar, learned counsel for the informant. 7. Learned Sr. Counsel Mr. H.R.A. Choudhury submitted that there was no legal evidence to warrant conviction of the appellants under Section 302 or 326 IPC. We have heard learned Sr. Counsel Mr. H.R.A. Choudhury, assisted by Ms. S.K. Nargis, learned counsel for the appellants and learned Additional P.P.for the State and Mr. A.R. Sikdar, learned counsel for the informant. 7. Learned Sr. Counsel Mr. H.R.A. Choudhury submitted that there was no legal evidence to warrant conviction of the appellants under Section 302 or 326 IPC. What we could gather from his submission is that, formation of unlawful assembly and conviction of the appellants under Section 148 IPC or under Section 447 and 427 IPC R/W Section 149 IPC have not been seriously contested, inasmuch as, the precise submission of the learned Sr. Counsel was that even if the conviction under Section 427447/448 IPC can be sustained, conviction under Section 302 IPC and 326 IPC are not sustainable at all, for want of evidence. 8. It appears from the impugned judgment, that while recording conviction of the appellants under Section 148 IPC as well as under Section 427/447 R/W 149 IPC, the learned trial court, on the basis of the evidence brought on record, came to the finding, that the offences of mischief and criminal trespass were committed in prosecution of common object of the unlawful assembly formed by the accused appellants. However, learned trial court held that the death and injuries to members of the complainant party were not caused in prosecution of the common object of the unlawful assembly and recorded conviction of the appellants under Section 302 and 326 IPC on the basis of individual overt act or individual liability. Learned trial court observed in the impugned judgment as under: "However, I like to mention that it has not been proved that the common object of the said assembly was to kill Sumantha Nath or any other person. It has also not been proved that the members of the said unlawful assembly had knowledge that such murder might be committed at the time of ousting said Sumantha Nath and Others by the members of the unlawful assembly." 9. Therefore categorical finding of the learned trial court was that the common object of the unlawful assembly was to dispossess/oust the complainant party from the disputed land in question and not to commit murder or any other unlawful act or offence. 10. Learned Addl. Therefore categorical finding of the learned trial court was that the common object of the unlawful assembly was to dispossess/oust the complainant party from the disputed land in question and not to commit murder or any other unlawful act or offence. 10. Learned Addl. Public Prosecutor contended, that such finding of the learned trial court was not correct, inasmuch as, in order to attract the provision of Section 149 IPC for fastening the members of the unlawful assembly with the culpability of constructive guilt, overt act or actual participation by each of the members of the unlawful assembly is not necessary. 11. The two basic ingredients required for convicting a person or persons for an offence on the basis of constructive criminal liability under Section 149 IPC are (i) offence committed by any member of the unlawful assembly (ii) such offence must be committed in prosecution of the common object of the assembly or the members of the assembly must have knowledge, that such offence was likely to be committed in prosecution of the common object. Therefore, before convicting the members of any unlawful assembly the court must give a clear finding as to what was the common object of the unlawful assembly. Unless the "common object" is ascertain, conviction with the aid of Section 149 IPC is not possible. At this juncture it would therefore be apposite to go through the evidence brought on record to see what was the common object of the unlawful assembly. Out of the nine witnesses examined by the prosecution, PW-2, PW-3, PW-4, PW-5 and PW-8 are material. 12. According to PW-2, Bipul Nath, when he himself, his father (deceased) and his brother Bijoy @ Biju Nath (PW-3) were working in their paddy filed, the villagers consisting of 35 to 40 persons, namely, wajid Ali, Nomal Ali, Sona Mia, Ramijuddin, Altafuddin, Tasiuddin, Najimuddin, Tajimuddin, Sirajuddin, Saiful Islam, Kutubuddin, Moinul, Riaj Ali, Kalamuddin, Momiuddin @ Mamu, Abdul Jalil, Ayub Raja, Aminulla, Usuf Ali and Others armed with dao, lathi etc. trespassed into their land and damaged their watch houses. They also rebuked them. According to him, Nomar Ali inflicted injuries on the left arm of his father (deceased) with a sword. Wajid Ali hit on the head of his father with a dao. Thereafter, accused Safir dealt a blow with a 'lenga' on the head of his father. trespassed into their land and damaged their watch houses. They also rebuked them. According to him, Nomar Ali inflicted injuries on the left arm of his father (deceased) with a sword. Wajid Ali hit on the head of his father with a dao. Thereafter, accused Safir dealt a blow with a 'lenga' on the head of his father. After receiving the injuries, when his father fell down and he raised protest, the accused Kolamia hit on his leg with an iron rod. Upon receiving injury, he ran away crossing the river Harang and from across the river, he noticed that Kolamia also gave blow on the chest of his father by a rod. As Bijoy Nath (PW-3) raised alarm, the accused Abdul Jalil dealt a blow on his shoulder with a sword. Ramijuddin also assaulted PW-3 with a sword on his leg. He further deposed that the accused Safiruddin dealt a blow with sword on the testical of his father and Moinuddin hit his father with a wooden ruler. He further deposed that noticing the attack on his father, when Abu Bakkar (PW-5) came forward to save his father, accused Sonamia hit him with a sword and caused injuries on his hand and leg. He further went on saying that Burhanuddin, Arifuddin and Alifuddin raised alarm and they were also assaulted by the accused persons. 13. According to PW-3, Biju Nath they used to guard their vegetable cultivation and on the day of occurrence, a group of 30/35 persons attacked them. He further stated that among the said group of persons, he could identify Kalamuddin, Wajid Ali, Sonamia, Tasimuddin, Ramijuddin, Amiruddin, Sirajuddin, Nomal Ali, Kutubuddin, Kamruj Ali, Tasim Uddin & others. According to him, accused Kalamuddin and Ramijuddin was armed with sword and Kutubuddin was armed with dao. He further stated that the accused persons assaulted him (PW-3) first and thereafter they assaulted his father. According to PW-3, Ramijuddin, Kutubuddin and Kalam assaulted him and his father with dao and sword. After receiving injury he became senseless and did not see the later part of the occurrence. If the oral testimony of the PW-3, that he was assaulted first and he became senseless immediately after receiving the injury, then his testimony about witnessing the accused persons assaulting his father would be hardly believable. After receiving injury he became senseless and did not see the later part of the occurrence. If the oral testimony of the PW-3, that he was assaulted first and he became senseless immediately after receiving the injury, then his testimony about witnessing the accused persons assaulting his father would be hardly believable. According to PW-7, the doctor, Bipul Nath (PW-3) received simple injury of tenderness and swelling on his leg and hand. Thus medical evidence also appears to have negated the oral testimony of this witness, that he was inflicted injury by three persons with sharp weapon like dao and sword. During cross examination, he admitted that there was dispute between the complainant party and some of the accused persons, in respect of the land in question and a proceeding under Section 145/146 CrPC was initiated. He also stated that he did not know the dag number and patta number of the disputed land. PW-3 stated that there was no fencing and they were guarding the land during pendency of the proceeding under Section 145/146 CrPC, as the Magistrate decided the possession in their favour. He further admitted, that accused persons got the judgment in their favour in the court of the learned District & Sessions Judge. 14. According to PW-4, Burhanuddin, hearing 'halla' (noise), he came to the place of occurrence and noticed that quarrel started between the two parties. Seeing the fighting between two groups, he left the place by crossing the river. Later on, he came back and saw that Sumantha Nath was lying dead with multiple injuries on his body. During cross-examination, PW-4 stated that the entire land was jointly possessed by 60/65 families of the village. He also stated to have heard about the litigation in respect of the said land. 15. According to PW-5, Abu Bakkar, while he was in his watch house for guarding his vegetable cultivation, 50/60 persons armed with stick, dao etc. came to the cultivation field of Sumantha Nath and started demolishing the watch house. He further stated that as they tried to resist the accused persons, they inflicted injuries. He also stated that there were watch houses of Sumantha Nath, Asu Roy, Altafuddin and the accused persons destroyed his watch house and assaulted him at the first instance. came to the cultivation field of Sumantha Nath and started demolishing the watch house. He further stated that as they tried to resist the accused persons, they inflicted injuries. He also stated that there were watch houses of Sumantha Nath, Asu Roy, Altafuddin and the accused persons destroyed his watch house and assaulted him at the first instance. According to him, Kharmuj Ali and Ramijuddin inflicted injuries to him by dagger and on receiving injuries he fell down and become unconscious and regained sense at the hospital. Therefore, according to this witness, the accused persons initially destroyed the watch houses and assaulted them later on, when there was resistance from the complainant side. During cross examination, this witness also admitted the factum of criminal proceeding under Section 145/146 CrPC in respect of the land in question. According to him, lower court decided the case in their favour. 16. Pw-8 Ashu Ray deposed that he was in the watch house of his master. According to him, the accused person in large numbers initially entered the land of his master and thereafter they entered the land of Sumantha Nath. He further stated that he was watching the incident from behind the watch house. When he came out he was rebuked by the accused persons and thereafter they assaulted him. 17. A dispassionate scrutiny of the above oral testimony makes it apparent, that so far as the genesis of the occurrence is concerned, oral testimony of the prosecution witness were grossly inconsistent. Nevertheless, what all the prosecution witnesses deposed in one voice was that the accused party, few of whom had arms in hand, came together and started demolishing the watch houses constructed over the land. Admittedly as deposed by PW-3, PW-4 and PW-5, the occurrence took place for possession of land, which did not belong to any individual. It was also admitted position, that there was litigation regarding the possession, and the land in question was under attachment by order of learned Executive Magistrate and initially possession was declared in favour of the prosecution party and after such order, the prosecution party started to guard the land by making temporary watch house to retain possession. It was also admitted position that the order of Executive Magistrate in criminal case declaring possession in favour of the informant party, was set aside by the Sessions Judge. It was also admitted position that the order of Executive Magistrate in criminal case declaring possession in favour of the informant party, was set aside by the Sessions Judge. Accused Sunahar Ali also stated in his statement recorded under Section 313 CrPC, that in the proceeding under Section 145/146 CrPC learned Magistrate decided possession in favour of the complainant party, but the said order was set aside by Sessions Judge. He also stated that, even before handing over possession of the land, the fighting started. What therefore abundantly clear was that two groups of the villagers claimed possession over the disputed land and neither party had settled possession there over. It is also evident from the oral testimony of the PW-5 and PW-8, that accused persons initially demolished the temporary watch houses constructed by them. When they resisted, the accused persons assaulted them. From the evidence of PW-7, the doctor, it was apparent, that besides the deceased, six others also sustained injuries. However, injuries sustained by some of them were superficial in nature. Except the injuries received by the deceased on his head, which caused his death, according to doctor, all other injuries sustained by him were simple being laceration and abrasion. 18. Thus, the admitted facts revealed from the prosecution evidence, were that two rival groups of the village claimed possession over the disputed land, there was litigation, and after the order of the Executive Magistrate, the complainants party possessed the land and when the Sessions Judge set aside the order of the learned Executive Magistrate, the accused party wanted to posses the land by ousting the complainant party and initially they demolished the temporary sheds (watch house) and upon resistance given by informant party, quarrel started. The nature of injuries sustained by the member of the complainant party, coupled with the above admitted facts, clearly suggested that object of the unlawful assembly was not to cause murder or any other offence but to take possession of the land by ousting the complainant party after getting a favourable order from the court of sessions. The nature of injuries sustained by the member of the complainant party, coupled with the above admitted facts, clearly suggested that object of the unlawful assembly was not to cause murder or any other offence but to take possession of the land by ousting the complainant party after getting a favourable order from the court of sessions. In view of the above evidence and admitted facts, learned trial court, in our view, rightly came to the finding that common object of the unlawful assembly was to oust the complainant party from the disputed land and not to commit murder or any other offence, and as such, we do not find any cogent reasons to defer with of the learned Sessions Judge, so far the common object of the assembly is concerned. 19. It is to be borne in mind, that the constructive culpability under Section 149 IPC is not limited to the commission of the unlawful or incriminating act being the common object of the unlawful assembly. The expression "offence committed" "in prosecution of common object" and "the members of that assembly knew to be likely to be committed in prosecution of that common object" make it abundantly clear, that if any other offence is committed to accomplish the common object of the unlawful assembly or the member of the assembly had the knowledge that such other offence/offences is/are likely to be committed in prosecution of the common object, in that case, all members of the assembly shall be constructively liable for such offence committed by any member of the assembly, in order to accomplish the common object. Therefore, there is no quarrel with regard to the legal proposition, as contended by the learned Addl. Public Prosecutor, that for attributing constructive criminal liability under Section 149 IPC, actual participation of each and every members of the unlawful assembly in commission of particular offence is not necessary. What is essential is that all must be member of the unlawful assembly with requisite common object or knowledge. Once these ingredients are fulfilled overt act of each member is not necessary. At the same time it also needs to be kept in mind that mere presence in the assembly or at the place of occurrence shall not render a person constructively liable, unless he shares the common object. 20. The Apex Court in Bhargavan and Others. Vs. Once these ingredients are fulfilled overt act of each member is not necessary. At the same time it also needs to be kept in mind that mere presence in the assembly or at the place of occurrence shall not render a person constructively liable, unless he shares the common object. 20. The Apex Court in Bhargavan and Others. Vs. State of Kerala, (2004) 12 SCC 414 observed as under: "..............Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word 'object' means the purpose or design and, in order to make it 'common', it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression 'in prosecution of common object' as appearing in Section 149 have to be strictly construed as equivalent to 'in order to attain the common object'. It must be immediately connected with the common object by virtue of the nature of the object. It may be modified or altered or abandoned at any stage. The expression 'in prosecution of common object' as appearing in Section 149 have to be strictly construed as equivalent to 'in order to attain the common object'. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149 IPC may be different on different members of the same assembly." 21. It is to be borne in mind, that in order to fasten all the members of the unlawful assembly for offence committed by one of the members of the assembly, the offence committed by such members must have proximity to the common object of the assembly. Therefore, the expression "in prosecution of common object" must be construed strictly and the incriminating act done must be immediately connected with the common object. Though community of object to do an unlawful act is 'sine qua non' for invoking the provision of Section 149 IPC, it may so happen, that community of object may exist upto a particular stage, inasmuch as, the members of unlawful assembly may have community of object, upto certain limit and thereafter they may differ in their object and knowledge. If any member or members of the unlawful assembly commit any offence totally unconnected with the common object, which can neither be said to have been done to accomplish the common object nor any knowledge of such act can be attributed to the member of the assembly, in such case, there would be no question of constructive liability of other member of the assembly. Therefore, in order to attract the provision of Section 149 IPC, prosecution must prove that the offence committed by any member/members of the assembly was immediately connected with the common object of the assembly and such offence was committed only in order to accomplish the common object of the unlawful assembly or it was within the knowledge of the members of the assembly, that such offence/offences was/were likely to be committed in prosecution of the common object. 22. When the common object of the unlawful assembly was to oust the complainant party from the disputed land and evidently some of the members were carrying weapon, it was obvious that use of violence was implicit in the common object itself. Evidently the accused persons initially demolished the temporary 'watch houses' and upon resistance by the complainant party, quarrel started and the members of the complainant party were assaulted. Therefore, offence of causing injuries to the members of the complainant party could by no stretch of imagination be held to be unconnected with the common object of the unlawful assembly in the case in hand. However, from the genesis of the occurrence as deposed by the prosecution witnesses, and the nature of injuries caused to the PW-2, PW-3 and PW-5 and other members of the complainant party as revealed from the evidence of PW-7 (doctor), it is difficult to hold that the death of the victim was caused to accomplish the common object of ousting the accused party from the disputed land or the members of the unlawful assembly had the knowledge, that offence of murder was likely to be committed in prosecution of the common object. In the above facts and circumstances, though, we are in agreement with the learned trial court as to the common object of the unlawful assembly and that death of the victim Sumantha Nath was not caused in prosecution of the common object of the unlawful assembly and the culpability of causing death has to be attributed on the basis of individual overt act leading to the death of the victim, we are unable to concur with the finding of the learned Sessions Judge, that the offence of causing injuries to the members of the complainant party were not committed in prosecution of common object. 23. 23. As already mentioned hereinbefore, the victim Sumantha Nath sustained as many as seven injuries, some of which were not fatal and also simple in nature. As per postmortem report, cause of death of the victim Sumantha Nath was the intracranial hemorrhage caused by sharp and blunt object. Therefore the injuries sustained by the victim Sumantha Nath on his head were solely responsible for the cause of his death. The victim received three injuries on his head i.e. (i) cut injury vault of the scalp 5X1 CM (ii) lacerated injury right side of the forehead and (iii) lacerated injury over the left side of the forehead. In the facts and circumstances of the case, when we are convinced that causing death of Sumantha Nath was not connected with the common object of the unlawful assembly, the question therefore, would necessarily arise, who caused such injuries on the head of the victim, which caused his death. 24. According to PW-2, accused Nomar Ali inflicted injury on the arm of the victim Sumantha Nath. Wazid Ali and Safirul inflicted injuries on his head. The PW-3 deposed that Kalam, Ramij and Kutubuddin were armed with sword and dao and they inflicted injuries to him as well as to his father (victim). According to PW-3, he was assaulted first and after receiving injury he became senseless. When PW-3 became senseless after receiving injuries, question would necessarily arises, how could he see the accused persons inflicting injury to his father. This apart, he has not stated that Kalamuddin inflicted any injury on the head of his father. Apparently, there was no evidence at all, regarding Kalamuddin and Noman Ali inflicting any injury on the head of the victim Sumantha Nath. Evidently, it were Wazid and Safir, who inflicted the fatal injuries on the head of the victim and therefore, they were certainly liable for the consequence of those injuries. In absence of any evidence that Nomar Ali and Kalamuddin inflicted any of the fatal injury on the head of Sumantha Nath, we do not find any reason to hold Noman Ali and Kalamuddin responsible for causing death of Sumantha Nath. 25. No evidence was brought on record to indicate even remotely that the accused Wazid Ali and Safirul, who inflicted injuries to victim Sumantha Nath had any intention to cause his death. 25. No evidence was brought on record to indicate even remotely that the accused Wazid Ali and Safirul, who inflicted injuries to victim Sumantha Nath had any intention to cause his death. That apart, from the nature of injuries inflicted to the victim and the fact and circumstances under which the injuries were caused, it was also difficult to hold that the perpetrator of the offence had any intention to cause such injury, as was likely to cause death or that they had any knowledge that the injuries, in all probability, would cause death. Therefore death of the victim, although, was homicidal, such homicidal, death does not attract Section 302 IPC, because of absence of the essential ingredient to constitute an offence of murder as defined by Section 300 IPC. However, in view of the evidence on record as indicated above, the homicidal death of the victim would attract the provision of Section 299 IPC i.e. culpable homicidal not amounting to murder and the perpetrator of the offence would be liable for committing offence of culpable homicide not amounting to murder. 26. Having regard to the facts, that no reliable evidence could be brought on record to connect the accused Noman Ali and Kalamuddin with the injuries inflicted on the head of the victim, we are unable to concur with the findings of the learned Sessions Judge holding these two accused/appellants liable for causing death of Sumantha Nath. Therefore, having considered the evidence brought on record we hold only accused Wazid Ali and Safiur responsible for causing death of Sumantha Nath. Accordingly, in absence of any intention to cause death or to cause such injury as is likely to cause death, the conviction of Wazid Ali and Safirul is modified and they are convicted under Section 304 II IPC. So far the accused Kamaluddin and Noman Ali are concerned, their conviction under Section 302 IPC is set aside. As indicated above, all the accused persons were liable for causing injuries to the prosecution witnesses, reasons being that such offence/offences was/were committed in prosecution of the common object of the assembly and therefore, the appellants, namely, Nomar Ali and Kalamuddin, though absolved from the liability of causing death of Sumantha Nath,would certainly be liable for the offence of causing injuries to the members of the complainant party. 27. 27. Learned trial court convicted the appellants Ramijuddin, Kutub and Abdul Jalil under Section 326 IPC for causing grievous hurt to PW-3 & PW-5. In order to convict a person under Section 326 IPC, the injury or hurt caused must come within the definition of grievous hurt as defined in Section 320 IPC. Besides proving the injury to be grievous one, prosecution also must prove that such injury/injuries was/were caused by any of the instrument mentioned in Section 326 IPC. According to PW-7, Dr. Badirus Zaman, Abu Bakkar (PW-5), Bijoy Nath (PW-2), PW-3 Bipul Nath and other members of the prosecution party sustained the following injuries. "Ashu Roy 1. A lacerated injury (2"X2X1)CM over the right leg upper frontal aspect 2. Small abrasion right side of chest. Bijoy Nath 1. A lacerated injury (2"X2X1)CM over the lateral aspect of the left leg. 2. A lacerated injury 1 CM X 1CMX1CM( over upper part of the left frontal aspect and lower part of right leg (frontal aspect). 3. A incised injury (2X2X1)" over the left arm latimel aspect. Burhan Uddin 1. Tenderness and swelling over the right leg (lateral aspect) 2. Tenderness and swelling over the left thigh (lateral aspect) Mainul Islam 1. Sharp incised injury 2cm x 1 cm x 2cm over the right elbow joint 2. Tenderness and swelling over the right leg (lateral aspect) 3. A lacerated injury (2x1x1)" over the scalp. Bipul Nath 1. Tenderness and swelling over the right dorsum of left forearm (frontal aspect) and left leg (lateral aspect) Abubakkar 1. Deep lacerated injury from anterior to posterior aspect over the left arm 2. Incised injury (2x1x2) cm over the lateral aspect of the left thigh upper part. 3. A lacerated injury (1.1/2x2x2) cm over the front of the scalp 4. Incised injury (1.1/2x1x1)" over the left leg (anterior aspect) 5. A lacerated injury (1.1/2x2x2)cm over the left hand in between index and middle finger. 6. A lacerated injury (1/1/2x1x1)" over the right shoulder (upper part) 7. Tenderness over the waist, back and hand." 28. 3. A lacerated injury (1.1/2x2x2) cm over the front of the scalp 4. Incised injury (1.1/2x1x1)" over the left leg (anterior aspect) 5. A lacerated injury (1.1/2x2x2)cm over the left hand in between index and middle finger. 6. A lacerated injury (1/1/2x1x1)" over the right shoulder (upper part) 7. Tenderness over the waist, back and hand." 28. The medical evidence of the PW-7 and the injury report, Ext.3 makes it appear that none of the injuries inflicted to the injured as indicated above comes within the definition of grievous hurt under Section 320 IPC and therefore without having established beyond doubt that the injuries inflicted were grievous as defined by Section 320 IPC, the perpetrator of such injuries could not be convicted under Section 326 IPC. The medical evidence makes it abundantly clear, that injuries were caused both by blunt as well as sharp object and some of the injured received injuries only by blunt object. Therefore, the injuries caused to PW-2, PW-3, PW-5 and Others could at best prove charges/offences under Section 324/323 IPC and as such, the accused/appellants would be liable for committing offence only under Section 323 and 324 IPC R/W Section 149 IPC and not under Section 326 IPC. Therefore, in our view, the conviction of the appellant Ramijuddin and Kutubuddin and Abdul Jalil warrants modification as prosecution evidence was inadequate to bring home charge under Section 326 IPC against them. We accordingly, convict the accused Kamaluddin, Noman Ali, Abdul Jalil, Ramijuddin and Kutubuddin under Section 323 and 324 IPC. 29. In view of modification of the conviction of all the appellants the sentence awarded by the learned trial court is also required to be modified. We are of the view that sentence of imprisonment for a period of 5 years to the accused appellant Wazid Ali and Safirul with fine of Rs. 5000/- under Section 304 II and imprisonment for 2 months and 1 month respectively under Section 324 IPC and 323 IPC to the accused appellants Kutubuddin, Ramijuddin, Abdul Jalil, Kamaluddin and Noman Ali would meet the ends of justice. Accordingly appellant Wazid Ali and Safirul are sentenced to rigorous imprisonment for 5 years and fine of Rs. 5000/- each and in default, further simple imprisonment for one months. Accordingly appellant Wazid Ali and Safirul are sentenced to rigorous imprisonment for 5 years and fine of Rs. 5000/- each and in default, further simple imprisonment for one months. Accused appellant Abdul Jalil, Ramijuddin, Kutubuddin and Kamaluddin and Noman Ali are sentenced to imprisonment for 2 (two) months under Section 324 IPC and 1 (one) month under Section 323 IPC. The conviction and sentence of the appellants under Section 148 IPC and under Section 447/427 read with Section 149 IPC as well as sentence under Section 447 IPC are not interfered. However, sentence of imprisonment for period of 6 (six) months under Section 447/427 IPC are reduced to 3 (three) months each. The period undergone by the appellants in custody during investigation or trial stand set off. All sentences of imprisonment shall run concurrently. 30. In the result, both the appeals stand partly allowed. 31. Send down the record with a copy of this judgment and order.