JUDGMENT : Ujjal Bhuyan, J. 1. Heard Mr. AI Uddin, learned counsel for the appellants and Ms. B Bhuyan, learned Addl. Public Prosecutor, Assam. This appeal has been preferred against the judgment and order dated 24.08.2015, passed by the learned Addl. Sessions Judge, Cachar at Silchar in Sessions Case No. 18/2012 convicting the appellants under Sections 147/148/149, 323/302 of the Indian Penal Code (IPC) and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 3,000/- each, with a default clause for the conviction under Sections 302/149 IPC, together with other lesser sentences, to run concurrently. 2. Prosecution case as is discernible from the First Information Report (FIR) is that on 25.08.2009 at around 4.30 pm, brother of the informant, Rehanuddin Mazumder had a discussion with four of the accused persons pertaining to construction of house. The accused persons became agitated in the course of the discussion and assaulted the brother. At that stage, the neighbours intervened, following which the accused persons moved away; so also the brother. After some time that is around 04.45 pm, father of the informant Abdul Mannaf Mazumder was on his way back home from the market when the accused persons attacked him with dao, dagger, lathi, spade etc. causing grievous injuries on his person. On hearing hue and cry, brother Rehanuddin went out to save his father. Then he was assaulted by the accused persons by dao, dagger etc., which caused grievous injuries to his head and back. The two injured were taken to the hospital whereafter, the FIR was lodged. This led to registration of Barkhola Police Station Case No. 102/2009, under Sections 147/148/149/341/325/326 IPC. 3. When the case was under investigation, brother Rehanuddin died in hospital whereafter, Section 302 IPC was added. On completion of investigation, police submitted charge sheet against the accused persons under Sections 147/148/149/323/302 IPC. 4. Being exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions and thereafter was assigned to the Court of learned Addl. Sessions Judge, Cachar at Silchar for trial. Charges under Sections 148/149/447/323/302 IPC were framed against the accused persons to which they pleaded not guilty and claimed to be tried. 5. In the course of the trial, prosecution examined as many as 13 witnesses, including the official witnesses. Sessions Judge, Cachar at Silchar for trial. Charges under Sections 148/149/447/323/302 IPC were framed against the accused persons to which they pleaded not guilty and claimed to be tried. 5. In the course of the trial, prosecution examined as many as 13 witnesses, including the official witnesses. On conclusion of prosecution evidence, the accused-persons were examined under Section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C.). However, the defence declined to adduce any evidence. 6. After hearing both the sides, learned Addl. Sessions Judge passed the judgment and order dated 24.08.2015 convicting the accused persons under the aforesaid sections of law and sentenced them to undergo rigorous imprisonment, as mentioned above. 7. Hence, this appeal. 8. Appeal was admitted for hearing on 07.11.2015. 9. Detailed submissions have been made by learned counsel for the appellants as well as by the learned Addl. Public Prosecutor, Assam, which have been duly considered. Also perused the materials on record. 10. Before we proceed to the evidence of the witnesses, it would be apposite to refer to the charges framed against the accused persons. Be it stated that four charges were framed against the accused persons. As per first and second charges, on 25.08.2009 at about 04.30 pm at Barjatrapur under Borkhola Police Station, the accused, as members of an unlawful assembly and in prosecution of common object of such assembly, were armed with deadly weapons, like dao, daggers, lathi etc. and thereby committed an offence of rioting punishable under Sections 147/149 IPC. The third charge was that the accused persons being members of an unlawful assembly and in prosecution of common object of such assembly caused hurt to Abdul Mannaf Mazumder and Rehanuddin and thereby committed an offence punishable under Sections 323/149 IPC. The last charge was that being members of an unlawful assembly and in prosecution of common object of such assembly, accused persons intentionally committed murder of Rehanuddin Mazumdar and thereby committed an offence punishable under Section 302/149 IPC. 11. Let us now examine the evidence of the relevant prosecution witnesses. 12. PW-1, Md. Samsul Haque Mazumder was the informant. Deceased was his elder brother. He identified the accused persons present in the dock. One of the accused persons, Motahir Ali has since expired. He, however, admitted that he did not witness the occurrence, as at that point of time, he was at Kalain with his vehicle. 12. PW-1, Md. Samsul Haque Mazumder was the informant. Deceased was his elder brother. He identified the accused persons present in the dock. One of the accused persons, Motahir Ali has since expired. He, however, admitted that he did not witness the occurrence, as at that point of time, he was at Kalain with his vehicle. His younger sister Forhena Begum had informed him over phone that his elder brother Rehanuddin Mazumder and father were assaulted by the accused persons. He had sent one auto driver to his house to bring the injured to Barkhola hospital. But the driver informed him over phone that he was not allowed to enter into the house by the accused-persons. PW -1 then hired a vehicle and first went to Bangarpar Police Out Post for assistance. Thereafter, he went to his house and found his father and elder brother with multiple injuries on their bodies. While his father had injuries in his head, feet, hands and back, his elder brother had cut injuries in both his hands as well as in his head and legs. There was a hole in his head. Both of them were unconscious. According to PW-1, he had carried them to Barkhola PHC by car. At Barkhola PHC, PW-1 was instructed to inform the police first because of which he went to Barkhola Police Station and informed the police. From Barkhola PHC, both injured were forwarded to Silchar Medical College and Hospital where, they were treated as indoor patients. While the father was released after 5 days, elder brother Rehanuddin Mazumder succumbed to his injuries after about 8 days in the Silchar Medical College and Hospital. 13. PW-2 Musstt. Hasna Mazumder was the widow of the deceased. She identified all the accused persons in the dock. According to her, the occurrence took place during the month of Ramjan. At the relevant point of time, she was busy inside the house preparing food for breaking of fast. At that time, she heard scream of her husband for help. She rushed out of her house along with her sister-in-law Forhena Begum. Brother Bappon Ahmed Laskar also joined them. According to her, they saw accused persons assaulting her husband Rehanuddin in a vacant plot of land and all of them were armed with weapons like dao, lathi, lenga (spear), ballom etc.. She rushed out of her house along with her sister-in-law Forhena Begum. Brother Bappon Ahmed Laskar also joined them. According to her, they saw accused persons assaulting her husband Rehanuddin in a vacant plot of land and all of them were armed with weapons like dao, lathi, lenga (spear), ballom etc.. Her husband was being assaulted by the accused persons with all the weapons. When she tried to rescue her husband, she was threatened by the accused persons. Thereafter, she became unconscious. When she regained consciousness, she saw her husband lying in an injured condition. The accused persons were continuing their assault. There was profuse bleeding from the injuries. After departure of the accused persons, she along with her sister-in-law dragged the husband to a little distance from the path. They could not carry him inside the house. Sister-in-law informed brother-in-law i.e., PW -1, who was at Kalain over phone. PW-1 had instructed the driver to come to his house with a van so as to take her husband to hospital. Though the driver came with a van, accused persons threatened him and did not allow him to enter into the house. On being informed by the driver, brother-in-law came to the house with a car after about one and half hours. She stated that she had accompanied brother-in-law to the Barkhola PHC and later to the Silchar Medical College and Hospital. On her narration of the incident, brother-in-law (PW-1) lodged the FIR. 14. In her cross-examination, she stated that between their house and the house of accused Daloi and Pendoi, there was a vacant homestead. Motahir Ali was a resident of the same house with the above two accused. On hearing the scream of her husband when she came out, she saw her husband in the vacant homestead land by the side of the house pond. She became unconscious for a moment whereafter she regained her consciousness. She saw the accused persons voluntarily causing hurt to her husband. 15. PW-3 is Md. Abdul Monaf, father of the deceased Rehanuddin. According to him, at the time of occurrence, he was in a shop; the time was just after Iftar. One rickshaw puller asked him to go home immediately, though he did not disclose the reason for saying so. She saw the accused persons voluntarily causing hurt to her husband. 15. PW-3 is Md. Abdul Monaf, father of the deceased Rehanuddin. According to him, at the time of occurrence, he was in a shop; the time was just after Iftar. One rickshaw puller asked him to go home immediately, though he did not disclose the reason for saying so. While returning, he saw accused Raju, Balai, Pendoi, Abul, Daloi, Motahir, Riju and Biju were assaulting his son Rehanuddin by the side of the road. The accused were armed with dao, stick etc. When he rushed to rescue his son, accused Pendoi inflicted a blow on his head with a stick following which he fell down on the ground. Though he had fallen down, he was in his senses and he saw accused Riju, Balai, Daloi and others were cutting the veins of the hands and legs of his son Rehanuddin whereafter, they left the place. Wife of Rehanuddin also came to the place of the occurrence. Till that time, son Rehanuddin was alive. With the help of the neighbouring people and members of the family, he took the son to the house in a critical condition. Though a vehicle was brought, the accused persons did not allow the vehicle to enter into the house. Another son of PW-3, Samsul, who was at Kalain, brought a vehicle in which injured Rehanuddin was first taken to Barkhola Police Station and thereafter to the Borkhola Hospital. PW-3 was also taken to Barkhola Hospital. From there, both of them were forwarded to the Silchar Medical College and Hospital where PW-3 was treated as an indoor patient for about 4 days. Son Rehanuddin died after 7 days in the Silchar Medical College and Hospital. 15A. In his cross-examination, he stated that he did not know the name of the rickshaw puller, who informed him about the incident. After 4/5 days of the occurrence, police had recorded his statement at the police station. 16. PW-7 is Bapan Uddin. In his deposition, he stated that deceased was his brother-in-law i.e., sister's husband. On the day of occurrence in the evening, he had gone to the house of his sister for "Iftar", since it was the month of Ramjan; it was about 4/4.30 pm. He met his brother-in-law Rehanuddin who went out after some time. 16. PW-7 is Bapan Uddin. In his deposition, he stated that deceased was his brother-in-law i.e., sister's husband. On the day of occurrence in the evening, he had gone to the house of his sister for "Iftar", since it was the month of Ramjan; it was about 4/4.30 pm. He met his brother-in-law Rehanuddin who went out after some time. After about 4/5 minutes, he heard the cry of his brother-in-law to save him. PW-7 along with his sister Hasna and sister-in-law came out and went towards the place of occurrence where they saw Abul, Raju, Balai, Daloi and Mendoi inflicting dao blows at various parts of the body of brother-in-law Rehanuddin. They hit him on his head by a lanza causing penetrating wound for which brain materials came out. He also received cut injuries on his hands and legs. Though a large crowd had gathered, but none came forward to rescue Rehanuddin. At that time, Abdul Monaf, PW-3 i.e., father of Rehanuddin arrived at the place of occurrence where he was also assaulted. 16A. A in his cross-examination, he stated that accused Daloi and Mendoi were next door neighbours of his sister. 17. PW-8 Forhana Begum Mazumder @ Minu was the sister of both the deceased and the informant. When the occurrence had occurred, she was not yet married and was residing in her parental house. At the time of occurrence, she was near the pond of the house when she heard the cries of her elder brother Rehanuddin from outside the house. She called her sister-in-law, who was inside the house whereafter she and her sister-in-law rushed to the place of occurrence where they saw accused Raju, Balai, Abul, Pendoi, Daloi, Saju and Biju assaulting brother Rehanuddin with sticks, spade, dao etc. When they tried to save him, they sustained injuries. Because of the assault, brother Rehanuddin fell down and became unconscious. Even after he fell down, accused Raju cut the veins of the hands and legs of the brother by a dao. When the father PW-3 Abdul Monaf came, he was also assaulted by the accused with sticks because of which he suffered head injury causing profuse bleeding. 17A. In her cross-examination, she stated that at the time of occurrence, no other person came to the place of occurrence. Since it was Iftar time, everyone was at home. When the father PW-3 Abdul Monaf came, he was also assaulted by the accused with sticks because of which he suffered head injury causing profuse bleeding. 17A. In her cross-examination, she stated that at the time of occurrence, no other person came to the place of occurrence. Since it was Iftar time, everyone was at home. She admitted that before the police, she had stated that many persons had gathered but they did not come to the place of occurrence. She also admitted that accused persons had filed a case against her deceased brother, father, brother and sister-in-law. She further admitted that police had filed a case against them before the occurrence had taken place on the allegation that they had used force and violence to obstruct the police from arresting her father and brother. 18. PW-9 Dr. Anupam Paul was the Registrar of the Department of Surgery, Silchar Medical College and Hospital at the relevant point of time. He had deposed before the Court with the Medico Legal Register of Silchar Medical College and Hospital for the year 2009. One patient, namely, Abdul Monaf Mazumder was treated. On examination, it was found that he had one stitch wound over the right frontal region of size 5 cm; tenderness over left posterior chest and tenderness over swollen left arm. All the injuries were found to be simple and caused by blunt object. 19. Dr. Gunajit Das, who had carried out the post mortem examination of deceased Rehanuddin Mazumder deposed as PW-10. He found the following injuries on the body of the deceased:- "(1) Stitched wound of length, 4 cm at the dorsal aspect of elbow left side, on removal of stitches, wound is found infected without healing with contusion of surrounding soft tissues. A lacerated wound 5 x 3 cm exposing bones. Scalp, skull and vertebrae:- Semilunar shaped stitched wound (6 stitches) in the right parietal scalp. On removal of stitches, the underlying parietal bone shows circular ribbling appearance. (Surgical barr hole wound). Scalp contend in surrounding area. Semilunar shaped stitched wound (5 stitches) on the left parietal scalp. On removal of stitches the underlying bone shows circular punctured wound with nippling, appearance at the margins (surgical barr hole) scalp contusion seen at the surrounding areas. Contusion with haemorrhage formation of whole of vertex area of scalp." 20. (Surgical barr hole wound). Scalp contend in surrounding area. Semilunar shaped stitched wound (5 stitches) on the left parietal scalp. On removal of stitches the underlying bone shows circular punctured wound with nippling, appearance at the margins (surgical barr hole) scalp contusion seen at the surrounding areas. Contusion with haemorrhage formation of whole of vertex area of scalp." 20. He opined that cause of death was due to coma resulting from the injuries sustained in the head. All the injuries sustained were ante mortem caused by blunt force impact and homicidal in nature. In his cross-examination, PW-10 was categorical in saying that deceased sustained injuries only by blunt object and there was no cut injury by any sharp weapon. Clarifying further, he stated that there was no injury on the body of the deceased caused by any pointed object like spear. 21. PW-11 Abul Lake Choudhury was the Magistrate who had conducted the inquest over the dead body of Rehanuddin Mazumdar. 22. PW-13 Shyam Babu Sinha was the Investigating Officer. He stated that he had examined the witnesses and had recorded their statements under Section 161 Cr.P.C.. FIR was lodged on 27.08.2009. On 03.09.2009 at about 4.30 am, informant informed him over telephone that victim Rehanuddin Mazumdar had succumbed to his injuries in the Silchar Medical College and Hospital. 23. In his cross-examination, he stated that though he had received the FIR on 27.08.2009 at 09.00 am, he went to the place of occurrence only on 28.08.2009 at 11.00 am and stayed there for about an hour. During his stay, he examined the witnesses Samsul Haque Mazumdar and Hasna Begum Mazumder i.e., PW-1 and PW-2. Statements of the other witnesses were recorded on 03.09.2009. He stated that PW-1 did not state before him that he had instructed one auto rickshaw to go to his residence for taking the victim to Barkhola PHC. He also did not state that accused persons had obstructed the auto rickshaw from entering into the house. PW-1 had stated that he got the information from his sister Farhana Begum. He also did not state that he got information from his sister-in-law and that he had found his elder brother Rehanuddin in an injured condition near the bank of the pond. 24. PW-1 had stated that he got the information from his sister Farhana Begum. He also did not state that he got information from his sister-in-law and that he had found his elder brother Rehanuddin in an injured condition near the bank of the pond. 24. PW-2 Hasna Begum did not state before PW-13 that she had gone to the place of occurrence on hearing hue and cry along with Bappan Ahmed and her sister-in-law. She also did not state before PW-13 that the accused persons had threatened her not to advance. Significantly, she also did not state before PW-13 that she had seen the accused persons assaulting her husband with dao, lanzaetc. 25. Likewise PW-3 Abdul Monaf did not state before PW-13 that he was sitting in the shop of Najmul when a rickshaw puller had informed him about the assault on his son. Rickshaw puller had informed him on the road. He did not state that the accused-persons were armed with dao and lanza. PW-3 did not take the names of Pendoi, Matahir, Riju and Biju. PW-3 did not state that Pendoi gave a blow on the head of Rehanuddin with a stick, though he stated that he was assaulted and that he saw accused persons causing hurt to his son Rehanuddin. He also did not state before PW-13 that he saw the accused persons cutting the veins of the hands and legs of his son Rehanuddin. 26. Likewise, PW-7 Bappan Uddin did not state before PW-13 that brother-in-law's veins were cut. He infact did not say that Rehanuddin's father had come and on seeing the occurrence, had raised alarm and that the accused-persons caused hurt to him too. 27. According to PW-13, PW-8 in her statement recorded under section 161 Cr.P.C. stated that the accused persons were armed with sticks. She did not say that they were armed with spade and dao. She also did not say that her brother fell down on the ground following the assault whereafter accused Raju cut the veins of his hands and legs. However, she stated that the accused-persons had assaulted her father with stick. 28. Accused persons in their examination under Section 313 Cr.P.C. denied the allegation of the prosecution and pleaded innocence. 29. She also did not say that her brother fell down on the ground following the assault whereafter accused Raju cut the veins of his hands and legs. However, she stated that the accused-persons had assaulted her father with stick. 28. Accused persons in their examination under Section 313 Cr.P.C. denied the allegation of the prosecution and pleaded innocence. 29. From a careful examination of the evidence of the prosecution witnesses, particularly the cross-examination of the Investigating Officer PW-13, what comes to the fore is that there appears to be a great deal of exaggeration by the prosecution witnesses of what actually transpired at the time of occurrence. At this stage, we may note that all the prosecution witnesses, barring the official ones, are related to the deceased in one way or the other. It is true that evidence of a relative cannot be discarded on the sole ground of being an interested person and certainly can form the basis of conviction, if it is found to be convincing and reliable. However, to ensure that exaggeration is eliminated, such evidence is required to be examined with a degree of care and caution. The law on this point is well settled and requires no elaboration. 30. From the cross-examination of PW-13, it is clear that the evidence of PWs-1, 2, 3, 7 and 8 are improvements over what they stated before the police under Section 161 Cr.P.C., that too on material aspects. In their statements under Section 161 Cr.P.C., the narrative presented by the prosecution witnesses was that the deceased and subsequently the father were assaulted by sticks. Before the Court, this was grossly exaggerated to include assault by dao, spade, spear etc. It was also stated in Court that veins of the victim's hands and legs were cut by a dao. This exaggerated version is not supported by the medical evidence which categorically ruled out assault by sharp and pointed weapon. The injuries were sustained by blunt object and the death was caused due to coma resulting from injuries sustained in the head. Infact, P.W. 10, the doctor categorically stated that the deceased sustained injuries only by blunt object and there was no cut injury by any sharp weapon, further clarifying that there was no injury on the body of the deceased caused by any pointed object, such as, spear. 31. Infact, P.W. 10, the doctor categorically stated that the deceased sustained injuries only by blunt object and there was no cut injury by any sharp weapon, further clarifying that there was no injury on the body of the deceased caused by any pointed object, such as, spear. 31. We have already noticed that PW-13 had visited the place of occurrence after more than 24 hours and statements of many of the witnesses were recorded several days after the occurrence on 03.09.2009. Neither the dao nor the spade alleged to have been used in the assault of the deceased were seized. No sharp weapons, like spear etc. were seized. Even the stick or sticks by which the deceased was assaulted were not seized. That apart, the victim died on 03.09.2009 though the incident took place on 25.08.2009 after about 9 days of the incident. 32. Therefore, what is discernible from the above is that though there was certainly an assault by the accused persons on the deceased Rehanuddin but the assault was carried out by blunt object which in all probability could be a stick or sticks. When the accused persons had assaulted Rehanuddin, it can safely be inferred from the attending facts and circumstances that they had knowledge that such an assault was likely to cause death or cause such bodily injury as was likely to cause death, though intention to cause death was probably absent. If that be so, death of Rehamuddin because of the assault of the accused persons may not come within the scope and ambit of Section 302 IPC. 33. In such circumstances, we feel that conviction of the accused appellants under Sections 302/149 IPC would not be tenable and instead the conviction may be altered to one under Section 304 Part-II IPC read with Section 149 thereof. Ordered accordingly. Consequently, the sentence of life imprisonment is altered to one of rigorous imprisonment for 5 years. We make it clear that other minor sentences, including the sentences of fine, are not interfered with. The period of detention already undergone shall be set off against the altered sentence. 34. Criminal appeal is allowed to the above extent. Registry to send down the LCR forthwith.