JUDGMENT : I.A. No. 7173 of 2018 1. This Interlocutory Application has been filed by the appellants interalia with the prayer to recall the order dated 01.05.2018 passed in I.A. no. 9448 of 2017 in this appeal whereby, the bail granted to the appellant no. 3 was also cancelled along with other co-appellants. In this interlocutory application prayer has also been made to release the appellants except the appellant no. 3 on bail. 2. Learned counsel for the appellants submits that the appellant no. 3- Maniruddin Sheikh, son of Late Rustam Sheikh died on 15.11.2006 during pendency of the appeal and in support of their contention, the appellants have annexed Xerox copy of the death certificate issued by the Registrar of births and deaths of Pakur district. 3. Learned counsel appearing for informant also submits that he has knowledge that the appellant no. 3 has died. 4. Considering the fact that the appellant no. 3- Maniruddin Sheikh has died, this appeal abates in respect of the appellant no. 3- Maniruddin Sheikh. 5. Since the hearing of the appeal is being taken up today hence the prayer for bail of rest of the appellants will be considered later on in the day. Cr. Appeal (SJ) No. 760 of 2003 1. Heard the parties. 2. This appeal has been preferred by the appellants being aggrieved by the Judgment of conviction dated 30.04.2003 and order of sentence dated 02.05.2003 passed by the learned Additional Sessions Judge, Fast Track Court No. 1, Pakur in Sessions Case No. 70 of 2001/121 of 2002 whereby and whereunder, learned court below has held the appellants guilty for the offence punishable under Section 148 IPC and under Section 307/34 IPC and sentenced them to undergo rigorous imprisonment for two years for offence punishable under Section 148 IPC and rigorous imprisonment for seven years with fine of Rs. 500/- with default clause for offence punishable under Section 307/34 IPC. Besides the appellant-accused no. 1- Md. Mofijuddin Mullah and appellant-accused no. 8- Rakibul Sheikh have been convicted and sentenced for the offence punishable under Section 324 IPC and sentenced to undergo rigorous imprisonment for two years. 3. 500/- with default clause for offence punishable under Section 307/34 IPC. Besides the appellant-accused no. 1- Md. Mofijuddin Mullah and appellant-accused no. 8- Rakibul Sheikh have been convicted and sentenced for the offence punishable under Section 324 IPC and sentenced to undergo rigorous imprisonment for two years. 3. The case of the prosecution as unfolded in the fardbeyan by the informant is that on 27.02.2001 at about 8.00 A.M., the daughter-in-law of the informant informed him that the appellant-accused persons along with others armed with deadly weapons were abusing the daughter-in-law of the informant and were telling her to vacate her house. At this, the informant along with his sons and other family members and relatives, who are the injured witnesses of the case, went to the place of occurrence and saw that the accused persons armed with deadly weapon were abusing and when the informant forbade them, the accused persons became agitated and assaulted the informant and others accompanying him. There is specific allegation that the accused no. 1- Md. Mofijuddin Mullah assaulted the son of the informant namely Nilu Babu Malita on head with an axe on two places and severely injured him. The appellant –accused no. 8, Rakibul Sheikh also assaulted the other son of the informant namely Mintu Malita on his head by an axe and injured him severely. Seeing the severe condition of these two injured sons of the informant, the doctor referred these two injured persons for better treatment. Bhotu Sheikh assaulted the informant with an iron rod on his back and neck. Others also assaulted the other persons accompanying the informant with rod and other weapons and injured them. All the injured persons were treated for the injuries sustained by them. The appellant-accused persons also looted rice, mustard and utensils etc. worth Rs. 5,000/-. The reason for the assault was land dispute, going on between the parties. 4. On the basis of the fardbeyan, police registered Mahespur P.S. Case No. 8 of 2001 and took up the investigation of the case. Upon completion of the investigation, police submitted the charge-sheet. The case was committed to the Court of Session and charge for the offence punishable under Section 324 of IPC was framed against the appellant-accused person nos. 4. On the basis of the fardbeyan, police registered Mahespur P.S. Case No. 8 of 2001 and took up the investigation of the case. Upon completion of the investigation, police submitted the charge-sheet. The case was committed to the Court of Session and charge for the offence punishable under Section 324 of IPC was framed against the appellant-accused person nos. 1 and 8 only and against all the eight appellant-accused persons, separate charges for the offence punishable under Sections 148, 307/34 and 380 IPC were framed and upon the accused-appellants pleading not guilty to the charges, they were put to trial. 5. In support of its case, the prosecution altogether examined twelve witnesses in this case including the doctor and the Investigating Officer. 6. P.W. 5- Rajak Malita is the informant of the case. He has stated that the occurrence took place at about 8.00 A.M one year and nine months prior to his deposing in the court. The wife of his son- Lala Babu, namely Rajina Khatoon came and informed that the appellant-accused persons along with others were abusing her. At this, PW5 and others went to the house of Lal Babu and forbade the appellant-accused persons and advised them not to do so but they did not listen. Maniruddin Sheikh and Bhotu Sheikh assaulted PW5 with iron rod on his waist and neck. The appellant no. 1- Md. Mofijuddin Mullah with an intention to kill Lilu Babu, assaulted him on his head with an axe twice. Appellant no. 8- Rakibul assaulted Mintu (PW8) with an axe on the head with an intention to kill him. Alia Begum and Matin Salim were also assaulted but PW5 did not disclose who assaulted whom. On alarm being raised, the villagers came. Police recorded fardbeyan of the informant in the hospital. Mintu and Lilu Babu were referred by doctor to Rampur Haat for better treatment. PW 5 identified Maniruddin and claimed to identify rest of the persons. In his cross-examination, PW5 has stated that he was assaulted first by the appellant-accused persons. He did not fall down after receiving the assault nor did he become unconscious. He did not flee away while being assaulted and remained standing. The accused-appellant persons assaulted to their hearts’ content. The police prepared the paper and taking the paper, he went to the hospital. He did not fall down after receiving the assault nor did he become unconscious. He did not flee away while being assaulted and remained standing. The accused-appellant persons assaulted to their hearts’ content. The police prepared the paper and taking the paper, he went to the hospital. His cloth was stained with blood but PW5 cannot say whether blood stained cloth was handed over to the police or not. He is an accused in the counter case. 7. PW 7- Lillu Babu Malita is one of the injured witness of the case. He has said that the occurrence took place at 8.00 AM about two years prior to his deposing in court. He was in his house. His sister-in-law came crying and informed his father that she is being abused. His father (PW5), PW7 and others went there. His father asked the appellant-accused persons as to why they are creating disturbance. Thereafter, Bhotu assaulted the father of PW7 with iron rod on his waist. When PW7 went to rescue his father (PW5), Mofijuddin assaulted PW7 on his head and temple with axe and Rakibul also assaulted the brother of PW7. In his cross-examination, PW7 has stated that first his father was assaulted and thereafter, PW7 was assaulted. He did not become unconscious nor did he make any effort to run away. After assaulting and looting, the assailants went away. They received treatment before arrival of the police. He is an accused in the counter-case. 8. PW8- Mentu Malita has stated that the occurrence took place at about 8.00 AM about two years prior to his being examined in the court. His sister-in-law informed his father that she is being abused. PW8 and others reached the place of occurrence. Bhotu assaulted on the waist of his father-PW5, when PW8 and others went to rescue his father, PW7 was assaulted on his head. PW8 was assaulted with an axe by Rakibul. He has not seen anybody else assaulting. He claimed to identify the appellant-accused persons. In his cross- examination, PW 8 has stated that he is an accused in the counter case. He was not examined by police and he is deposing in the court for the first time. He remained standing there and received assaults. He did not run away. He was assaulted twice with the axe on his head but the assault was not for killing. He was not examined by police and he is deposing in the court for the first time. He remained standing there and received assaults. He did not run away. He was assaulted twice with the axe on his head but the assault was not for killing. The assault was light one. 9. PW2- Rajina Khatoon has stated that the occurrence took place at 8.00 AM about one year and eight months before his deposing in court. The appellant-accused came armed with lathi, axe, rod and entered inside her house. They abused PW2 and brought her out by dragging her. She went to inform her father-in-law. Her father-in-law and brothers-in-law came and told the appellant-accused persons not to abuse PW2. They did not listen. Her father-in-law was assaulted on his back and neck with rod, when her brother-in-law tried to rescue her father-in-law, the appellant-accused persons assaulted on the head of PW7 with an axe. Bhotu assaulted PW5 with rod. In her cross-examination, she has stated that the injured persons went away from the place of occurrence by walking. She further stated that the house in which she resided stands recorded in the name of Rakibul and the land does not belong to her. Rakibul has given that land to PW2 for taking care. She further stated that she was not assaulted. The appellant-accused persons also received injuries. 10. PW 3- Saleem Malita has stated that the occurrence took place at about 8.00 AM one year and eight months prior to his deposing in court. His sister-in-law complained to his father that the accused-appellants are abusing her. PW3 and others went there. His father asked as to why they are abusing then he was assaulted on his back and neck with rod. PW7 and PW8 were assaulted on their head with tangi. PW3 was also assaulted. In his cross-examination, PW3 has stated that he was not examined by police and he was deposing in the court for the first time. Rakibul has given the house to Lal Babu to watch his pond. 11. PW4- Motin Seikh has stated that the occurrence took place at 8.00 AM one year and nine months prior to his deposing in court. The appellant –accused persons were abusing PW2. Bhotu assaulted PW5 with a rod on his waist. The appellant-accused no. 1- Md. Mofijuddin Mullah assaulted PW7 with an axe, causing him bleeding injury. 11. PW4- Motin Seikh has stated that the occurrence took place at 8.00 AM one year and nine months prior to his deposing in court. The appellant –accused persons were abusing PW2. Bhotu assaulted PW5 with a rod on his waist. The appellant-accused no. 1- Md. Mofijuddin Mullah assaulted PW7 with an axe, causing him bleeding injury. The appellant –accused- Rakibul assaulted PW8. In his cross-examination, he has deposed that he has stated before the police who assaulted whom. First of all PW5 was assaulted. Appellant-accused persons also received injuries and they were also admitted in the hospital. PW4 is an accused in the counter case. 12. PW6- Lallu Seikh has stated that the occurrence took place at 8.00 AM two years prior to his being examined in the court. On hearing noise, he reached the place of occurrence and saw the appellant-accused persons assaulting the sons of PW5. In his cross-examination, he has stated that the police did not record his statement. He did not go to the place of occurrence. 13. PW9- Najrul Islam has stated that the occurrence took place between 8.00 AM to 8.30 AM two years prior to deposing in court. He heard that there was occurrence of assault. 14. PW10- Aliya Begum is the wife of the informant. She has stated that the occurrence took place at 8.00 AM about two years prior to her deposing in the court. Her daughter-in-law informed that the appellant-accused persons are abusing her. PW10 and her family members went there. Bhotu and Manir assaulted PW5 with rod. PW7 and PW8 were assaulted on their head with axe. In her cross-examination, she has stated that her daughter-in-law did not tell that the appellant –accused persons wanted to take possession of the house. Rakibul has given land to her son. It was claimed by the accused-appellants that the land has been donated by the government to them. 15. PW 11- Mahafuz Mandal has stated that he does not know about the occurrence and he was declared hostile. 16. PW 1- the doctor- Dr. Vijay Shanker Prasad has examined the injured persons of the case on 27.02.2002 and he found the following injuries on the body of Abdul Matin:- (i) Lacerated wound on the left side of forehead. Size 1” x 1/2”x muscle deep. (ii) Lacerated wound on the left side of the head Size 2” x 1” x muscle deep. Vijay Shanker Prasad has examined the injured persons of the case on 27.02.2002 and he found the following injuries on the body of Abdul Matin:- (i) Lacerated wound on the left side of forehead. Size 1” x 1/2”x muscle deep. (ii) Lacerated wound on the left side of the head Size 2” x 1” x muscle deep. (iii) One lacerated wound size ¼” x ¼” x muscle deep on the right pinna. (iv) One bruise on the back Size 3” x 1” (v) One bruise on the left scapular region Size 2” x 1” Age- within 12 hours may be caused by hard blunt substance. Nature- simple PW1 found the following injuries on the body of Aliya Begum:- (i) One lacerated wound over left eye brow area size ½ “ x ¼ “ x muscle deep. (ii) Swelling of the left cheek. (iii) One bruise with reddish swelling over left forearm size 2” x 1”. Age- within 12 hours may be caused by hard blunt substance. Nature- Simple. PW1 found the following injuries on the body of Salim Malita:- (i) One lacerated wound at the top of the head. Size- 2” x ½” x muscle deep. (ii) One bruise with reddish swelling on the right scapular region in its upper side Size 2” x 1” (iii) Swelling and tenderness of the right hand Age – Within 12 hours, may be caused by hard blunt substance. Nature- Injury no. (i) simple but injury no. (ii) & (iii) opinion kept reserved till further investigation for which patient has already been advised. PW1 found the following injuries on the body of Rajak Malita:- (i) One bruise, size 3” x 1” x reddish swelling on the back. (ii) Swelling with the abrasion on both elbows posteriorly. Age – within 12 hours may be caused by hard blunt substance. Nature- simple PW1 found the following injuries on the person of Mintu Malita:- Injury No. (i)- One sharp cutting wound on the left side of the head. Size 3” x 1” x muscle deep (ii) Swelling with abrasion on the left shoulder. Injury no. (i) may be caused by sharp cutting substance; injury no. (ii) may be caused by hard blunt substance. Nature – Opinion kept reserved till further investigation. Patient has been referred for needful. Size 3” x 1” x muscle deep (ii) Swelling with abrasion on the left shoulder. Injury no. (i) may be caused by sharp cutting substance; injury no. (ii) may be caused by hard blunt substance. Nature – Opinion kept reserved till further investigation. Patient has been referred for needful. PW1 found the following injuries on the body of Lilu Baboo Malita:- (i) One sharp cutting wound on the top of the head. Size 1 ½” x ½” x muscle deep. (ii) one sharp cutting wound on the right side of the head. Size 1” x ½” x muscle deep. (iii) One lacerated wound on the left side of the forehead. Size 1 ½” x ½” x muscle deep. (iv) One lacerated wound on the left eyebrow area. Size ½” x ½” x muscle deep. Age- within 12 hours, may be caused by sharp cutting substance as per injury no. (i) & (ii). Injury no. (iii) & (iv) may be caused by hard blunt substance. Nature- opinion kept reserved till further investigation. Patient has been referred for further needful. PW1 found the following injuries on the body of Maniruddin Seikh:- (i) Lacerated wound ½” x ½” x muscle deep on the left side of the head. (ii) One lacerated would ½” x ¼ ” x muscle deep on the front of the forehead. (iii) One lacerated wound ½” x ½” x muscle deep on the back of the head. Age- Within 12 hours, caused by hard substance. PW1 found the following injuries on the body of Mofijuddin Mulla:- (i) Injury on the right side of the forehead size 1/4” x 1/4” x muscle deep. (ii) Swelling and tenderness of the right forearm. (iii) Swelling and tenderness of the left forearm. Age- Within 12 hours caused by hard blunt substance. Nature- simple PW1 found the following injuries on the body of Samim Mullah:- (i) Injury- one sharp cutting wound size 1/2” x 1/4” x bone deep on the left little finger. (ii) one bruise with reddish swelling on the right thigh size 2” x 1” Age- within 12 hours. Injury (i) may be caused by sharp cutting substance. (ii) may be caused by hard blunt substance. Nature- Injury No. (ii) is simple. Injury-opinion kept reserved till further investigation. Patient has already been advised. PW1 found the following injuries on the body of Rakibul Sheikh:- Injury no. Injury (i) may be caused by sharp cutting substance. (ii) may be caused by hard blunt substance. Nature- Injury No. (ii) is simple. Injury-opinion kept reserved till further investigation. Patient has already been advised. PW1 found the following injuries on the body of Rakibul Sheikh:- Injury no. (i) lacerated wound 1/2” x 1/4” x skin deep on the front side of the forehead. (ii) Swelling of right cheeck. Age- within 12 hours caused by hard blunt substance. Nature- simple. PW1 found the following injuries on the body of Bhotu Sheikh:- Injury (i) one lacerated wound Size 3” x ½ “x muscle deep on the left side of the head. (ii) One lacerated wound 1/2” x 1/2” x skin deep the right eye brow. (iii) One bruise 2” x 1” x reddish swelling and abrasion on the left forearm with tenderness. Age – within 12 hours, caused by hard blunt substance. Nature (i) & (ii) simple in nature injury (ii) opinion kept reserved till further investigation. The PW1 further deposed that the injury reports were in his pen and under his signature. On being proved by the PW1 the injury reports of the injured persons were marked exhibits. 17. PW 12- Shreenivas Yadav is the Investigating Officer of the case. He has stated that on 27.02.2001, Assistant Sub Inspector, Girish Prasad Singh recorded the statement of the PW5. The fardbeyan on being proved by PW 12 has been marked as Exhibit 2. PW12 was entrusted the investigation of the case. The signature of the then officer-in-charge on the formal FIR has been marked as Exhibit 3. He recorded the statements of the witnesses. He inspected the place of occurrence. The Khesra No. of the place of occurrence was 225. He cannot say who is the owner of the place of occurrence land. PW4 did not state before him as to which accused person assaulted whom. 18. After closure of the evidence of the prosecution, the statements under Section 313 Cr.P.C. of the appellant-accused persons were recorded wherein they denied the circumstances appearing in evidence against them and pleaded innocence. 19. In their defence, the appellant-accused persons have examined one witness as DW1- Uttam Kumar Dey, who is a formal witness. He is an advocate’s clerk. On being proved by him, the fardbeyan of Maheshpur P.S. Case No. 9 of 2001 has been marked as Exhibit ‘A’. 19. In their defence, the appellant-accused persons have examined one witness as DW1- Uttam Kumar Dey, who is a formal witness. He is an advocate’s clerk. On being proved by him, the fardbeyan of Maheshpur P.S. Case No. 9 of 2001 has been marked as Exhibit ‘A’. In his cross-examination, he has stated that he cannot say what has been written in the fardbeyan. From the side of the defence, the certificate of Bihar Bhudan Committee and the certified copy of the charge-sheet of G.R. Case No. 86 of 2001 have been marked as Exhibit ‘B’ and ‘C’ respectively. 20. Taking into consideration the evidence available in the record, learned court below convicted and sentenced the accused-appellant as already indicated above. 21. Mr. Vikash Kumar, learned counsel for the appellant-accused persons submitted that learned court below has failed to properly appreciate the evidence in the record. It is further submitted by learned counsel for the appellants that PW8 in paragraph 4, has categorically stated that the accused-appellant persons did not assault the injured persons with an intention to kill rather they assaulted lightly and the fact that though the appellant-accused persons allegedly armed with deadly weapons but they having not made further assault which they could have, had they been having any intention to kill as the alleged injured witnesses did not run away from the place of occurrence, establishes that the evidence in the record is insufficient to establish the charge for the offence punishable under Section 307 IPC, hence, it is submitted that learned court below has erred by convicting the appellant accused-persons under Section 307 IPC. It is further submitted that the prosecution having failed to explain the injuries on the accused and the fact that the appellant-accused persons reached near the place of the occurrence land without any prior meeting of mind to commit any act and as the alleged occurrence took place in a spur of moment admittedly, relating to the land dispute, hence the learned court below ought not to have convicted the accused persons under Section 148 IPC nor should have taken the aid of Section 34 IPC in convicting the appellant-accused persons and in view of the discrepancy in the evidence put forth by the prosecution and the fact that all the injuries sustained by the alleged injured persons were simple in nature and also keeping in view the admitted fact that the appellant-accused persons also sustained injuries and the victims are also accused persons in the counter case, learned court below ought to have acquitted all the accused persons by giving them the benefit of doubt. 22. Mr. R. K. Mishra the learned Addl. PP assisted by learned counsel for the informant, Mr. Gautam Kumar submitted that the witnesses of the prosecution particularly, the PW7 and PW8 were assaulted on their head with an axe by the appellant –accused persons and the informant- PW 5 was assaulted with iron rod there is specific evidence in the record that the accused persons assaulted with intention to kill the PW7 and PW8 and that the repeated blow was inflicted by the appellant –accused persons and there being ample evidence in the record that they formed unlawful assembly and the assault was made in furtherance of their common intention, hence, learned court below has rightly convicted and sentenced the appellant-accused persons and hence, it is submitted by them that this appeal being without any merit be dismissed. 23. Having heard the submission made at the Bar and after going through the record, as already indicated above, it is crystal clear that PW8 has categorically stated that assault was not made with an intention to kill rather the same was light one. The testimony of other witnesses as already indicated above shows that the injured persons admittedly did not run away after being assaulted and the injury reports which have been marked as Exhibit 4 to 4/5 of the injured persons shows that the injuries inflicted were of simple nature. The testimony of other witnesses as already indicated above shows that the injured persons admittedly did not run away after being assaulted and the injury reports which have been marked as Exhibit 4 to 4/5 of the injured persons shows that the injuries inflicted were of simple nature. So, keeping in view the aforesaid facts of the case, this court is of the considered view that the evidence in the record is not sufficient to establish the charge for the offence punishable under Section 307 IPC. 24. So far as the applicability of section 34 of IPC is concerned, it is a settled principle of law that common intention is to be inferred from the circumstances particularly the part played by the accused and its surrounding circumstances namely the nature of weapon used and the injury inflicted as well as the meeting of minds amongst the accused. So far as the applicability of the offence under Section 148 IPC is concerned, it is a settled principle of law that if there is no satisfactory evidence to prove the formation of an unlawful assembly with common object to commit crime and the old fight started suddenly on the spur of the moment in a hit of passion, the accused though more than five in number, can only be held liable for their individual acts and not constructively either under Section 147 or under Section 148 or Section 149 IPC. So far as contention of the appellants regarding failure of the prosecution to explain the injuries on the present accused is concerned, it is not the law that the prosecution case shall fail only because injuries on the person of the accused have not been explained as held in paragraph 59 of Triloki Nath v. State of U.P. reported in (2005) 13 SCC 323 . 25. Now coming to the facts of the case, as already discussed above, there is specific allegation of assault only against three appellant-accused persons. There is specific evidence that appellant no. 1- Md. Mofijuddin Mullah assaulted PW7 on his head with an axe, accused-appellant no. 8 - Rakibul Sheikh assaulted PW8 on his head with an axe and accused-appellant no. 2- Bhetu Sheikh @ Bhutu Sheikh assaulted PW5 with iron rod. There is specific evidence that appellant no. 1- Md. Mofijuddin Mullah assaulted PW7 on his head with an axe, accused-appellant no. 8 - Rakibul Sheikh assaulted PW8 on his head with an axe and accused-appellant no. 2- Bhetu Sheikh @ Bhutu Sheikh assaulted PW5 with iron rod. There is no specific, cogent and convincing evidence in the record regarding the involvement of rest of the accused persons in inflicting any injury to any of the injured persons. In the absence of any cogent evidence put forth by the prosecution against rest of the accused persons except appellant nos. 1, 2 and 8, I have no hesitation in holding that evidence in the record is insufficient to establish any of the charges, for which they faced the trial. Accordingly, I acquit the appellant accused nos. 4 to 7 namely Samim Mullah, Ajimuddin Mullah, Habibul Sheikh @ Hasmuddin Sheikh, Nakir Sheikh @ Nakir Sheikh, of the charges, for which they faced the trial. 26. So far as appellant-accused no. 1- Md. Mofijuddin Mullah, appellant-accused no. 2- Bhetu Sheikh @ Bhutu Sheikh and appellant-accused no. 8- Rakibul Sheikh are concerned, the evidence in the record is sufficient enough to establish the offence punishable under Section 324 IPC. Though there is no specific charge under Section 324 IPC framed against the appellant-accused person no. 2- Bhetu Sheikh @ Bhutu Sheikh, but in the facts and circumstances of the case, the offence punishable under Section 324 IPC is a minor offence of the offence punishable under Section 307 IPC for which he has been charged, accordingly, I hold the appellant–accused Md. Mofijuddin Mullah, Bhetu Sheikh @ Bhutu Sheikh and Rakibul Sheikh guilty for the offence punishable under Section 324 IPC and the sentence of two years passed against the appellant –accused Md. Mofijuddin Mullah and Rakibul Sheikh for the offence under Section 324 IPC is confirmed and the appellant –accused Bhetu Sheikh @ Bhutu Sheikh is sentenced for rigorous imprisonment for two years. The period of custody undergone by the appellant-accused during the trial and the pendency of the appeal be set off from the sentence imposed. 27. Perusal of the record reveals that the appellant –accused no. 1- Md. Mofijuddin Mullah, appellant-accused no. 2- Bhetu Sheikh @ Bhutu Sheikh and appellant-accused no. 8- Rakibul Sheikh are in custody and all the appellant-accused persons except appellant no. 27. Perusal of the record reveals that the appellant –accused no. 1- Md. Mofijuddin Mullah, appellant-accused no. 2- Bhetu Sheikh @ Bhutu Sheikh and appellant-accused no. 8- Rakibul Sheikh are in custody and all the appellant-accused persons except appellant no. 3- against whom, the appeal has abated, are in custody. In view of the acquittal of appellant-accused person nos. 4 to 7, namely Samim Mullah, Ajimuddin Mullah, Habibul Sheikh @ Hasmuddin Sheikh, Nakir Sheikh @ Nakir Sheikh, they are directed to be released from the custody forthwith unless their detention is required in connection with any other case. 28. In the result, this appeal is allowed in respect of appellant-accused person nos. 4 to 7, namely Samim Mullah, Ajimuddin Mullah, Habibul Sheikh @ Hasmuddin Sheikh, Nakir Sheikh @ Nakir Sheikh, and conviction and sentence of the appellant–accused nos. 1, 2 and 8 namely Md. Mofijuddin Mullah, Bhetu Sheikh @ Bhutu Sheikh and Rakibul Sheikh is modified to the extent as indicated above. 29. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy this Judgment. 30. In view of the disposal of this appeal, I.A. no 7173 of 2018 so far as it relates to the prayer for bail of the appellants is concerned, being infructuous stands disposed of.