JUDGMENT & ORDER : AJIT SINGH, J. 1. The seven appellants, namely, Hassan Ahmed Laskar @ Hasan Ahmed, Billal Uddin Laskar @ Bilala Ahmed, Sayed Ahmed Laskar @ Sayed Ahmed, Abdul Hakim Laskar @ Abdul Hakim, Hussain Ahmed Laskar @ Hussain Ahmed and Zakir Hussain Laskar @ Zakir Hussain have been convicted under Section 302/149 of the Indian Penal Code and sentenced to imprisonment for life and fine Rs.1,000/- each with default stipulation. They have also been convicted under Section 323/149 of the Indian Penal Code and sentenced to fine of Rs.1,000/- each, with default stipulations. They have further been convicted under Section 148 of the Indian Penal Code and sentenced to fine of Rs.1,000/- with default stipulations. One another accused, namely, Khalil Ahmed died during the trial and as such, prosecution case stood abated against him. 2. The victim of the incident was Taimus Ali Laskar, aged about 60 years. He was a resident of village Baldabadli Pt-III of Hailakandi District. 3. According to the prosecution case, the agricultural field of Taimus was adjacent to the residence of the appellants. As the cattle of appellants used to destroy the crops of Taimus, he erected a fence around his field. On 23.06.2006 at about 7.30 a.m., the appellants dismantled some portion of that fence. Taimus, on coming to know about this, rushed to the appellants to lodge his protest, but the appellants abused him. Taimus, undeterred, reiterated his protest. At that point of time, Khalil asked the appellants to finish Taimus and then he himself suddenly dealt a blow on his head with a lenja (spear). Taimus unable to sustain the head injury fell down on the paddy field whereafter all the appellants assaulted him with their lathis. Abdul Kalam Laskar (PW-2) had accompanied his father Taimus. The appellants assaulted Abdul Kalam Laskar also with their lathis. During the assault, appellant Billal Ahmed caused an injury on the hand of Abdul Kalam Laskar with a spear. Hearing the cries of Taimus and Abdul Kalam Laskar, their wives Rahima and Raisa Begum (PW-1) rushed to the place of occurrence and they were also assaulted with lathis by the appellants. In the assault, Rahima received an injury on her right hand caused with a spear. Appellant Billal even tore the clothes of Raisa turning her nude. Hearing the cries of Taimus and Abdul Kalam Laskar, their wives Rahima and Raisa Begum (PW-1) rushed to the place of occurrence and they were also assaulted with lathis by the appellants. In the assault, Rahima received an injury on her right hand caused with a spear. Appellant Billal even tore the clothes of Raisa turning her nude. All the appellants then thrashed and assaulted Raisa with lathis when she fell down on the ground. On hearing the cries of Raisa, the people gathered at the place of occurrence and seeing them, the appellants including Khalil Ahmed ran away. Taimus and Abdul Kalam Laskar were taken to the Silchar Medical College and Hospital for treatment, where Taimus breathed his last at about 11.30 p.m. In the meantime, Raisa lodged First Information Report Exhibit-1 at Jamira Police Patrol Post, which was subsequently registered at Katlichhera Police Station. In the First Information Report, she named the appellants, Khalil Ahmed and Karima Begum as the assailants. 4. The Station Officer - Abdul Matin Talukdar (PW-6) of the Police Station went to the place of occurrence on the next day. There, he recorded the statements of witnesses, drew sketch map and seized broken bamboo pieces. He also referred the dead body of Taimus for post-mortem examination. 5. Dr. BC Roymedhi (PW-8) conducted the post-mortem examination on the dead body of Taimus and found the following injuries :- a. One cut injury on right parietal region of scalp of size 10cm x 1 cm x scalp deep. b. One patterned bruise of size 7 cm x 2 cm on lateral aspect of upper 3rd of right thigh c. One abrasion of size 1 cm x 0.5 cm and another 1 cm x 1 cm on the dorsum aspect or right wrist joint. The doctor, in his post mortem examination report Exhibit-17, opined that Taimus died due to head injury as described, which was ante-mortem and caused by a sharp cutting weapon. According to him, the other two injuries were caused by blunt force impact. 6. Abdul Kalam Laskar, Raisa and Rahima Khatun were examined by Dr.R Begum (PW-7) on the very date of incident. She in her injury report Exhibit-15 has stated that no injury whatsoever was found on Abdul Kalam Laskar and Raisa Begum. She, however, found one lacerated injury on ring finger of Rahima Khatun. 7. 6. Abdul Kalam Laskar, Raisa and Rahima Khatun were examined by Dr.R Begum (PW-7) on the very date of incident. She in her injury report Exhibit-15 has stated that no injury whatsoever was found on Abdul Kalam Laskar and Raisa Begum. She, however, found one lacerated injury on ring finger of Rahima Khatun. 7. Abdul Matin Talukdar, after arresting the appellants and completing investigation, submitted charge sheet against them and Khalil Ahmed for offences under Sections 147, 148, 324, 325, 326, 354 and 302/149 of the Indian Penal Code. He did not make Karima Begum as accused because she was found to have been falsely implicated by Raisa in her First Information Report. 8. During trial, the appellants abjured their guilt and pleaded false implication. But the trial court relying upon the testimony of prosecution witnesses convicted and sentenced the appellants as aforesaid. The trial court, however, acquitted them of the charges under Sections 354, 324 and 325 of the Indian Penal Code because there was no evidence for these offences against them. 9. It is argued on behalf of the appellants that Khalil Ahmed alone was the perpetrator of crime and for his individual act, the trial court committed an illegality in convicting them. It has also been argued that the evidence of eye witnesses insofar as it relates to appellants stands falsified by the medical evidence. It is further submitted that there is no evidence on record to hold that appellants were members of unlawful assembly and had shared common object with Khalil Ahmed to commit the murder of Taimus. Lastly, it is submitted that the trial court committed an illegality in convicting the appellants for offences under Sections 148 and 323 of the Indian Penal Code as there is no evidence to establish that they had either committed rioting or had caused simple injuries to Rahima. The learned Additional Public Prosecutor, Assam, on the other hand, has defended the impugned conviction and sentence as passed by the trial court. The learned counsel for the informant has also supported the impugned conviction and sentence of the appellants. 10. The main question which calls for our consideration is whether the appellants were members of unlawful assembly and had shared common object to commit the murder of Taimus. The another question is whether the appellants committed rioting and caused simple injuries to Rahima. 11. 10. The main question which calls for our consideration is whether the appellants were members of unlawful assembly and had shared common object to commit the murder of Taimus. The another question is whether the appellants committed rioting and caused simple injuries to Rahima. 11. On perusing the records, we find that Raisa has deposed that on 23.06.2006 at about 7.30 a.m., the appellants dismantled some portion of the fence of Taimus, who, on coming to know about it, went to the appellants to protest, but was abused by them and at that point of time, Khalil Ahmed asked the appellants to finish Taimus. Khalil Ahmed then suddenly inflicted a blow on the head of Taimus with a lenja (spear) , who fell down on the paddy field whereafter the appellants also assaulted him with their lathis. According to the evidence of Raisa, she had accompanied her father-in-law Taimus and when she protested by crying, the appellants also assaulted her and during assault, appellant- Billal Ahmed tore her blouse making her naked. This witness then says that on hearing the cries, her husband-Abdul Kalam Laskar, mother-in-law Rahima and brother-in-law Jamaluddin came to the place of occurrence and they were also assaulted by the appellants. From the evidence of Raisa, it is, thus, clear that the appellants had no prior knowledge about Taimus coming to them and that they had assembled and shared common object with Khalil Ahmed to commit his murder. From her evidence it is also clear that during hot exchange of words between the appellants and Taimus, Khalil Ahmed suddenly dealt a blow on the head of Taimus with a spear. Also though Raisa says that when Taimus fell down on receiving the head injury the appellants assaulted him with their lathis, but except for fatal head injury caused by Khalil Ahmed only two simple injuries and that too on non-vital parts were found. And these simple injuries were one patterned bruise and one abrasion, which could not be possibly the result of alleged repeated blows by different lathis. 12. Abdul Kalam Laskar, as mentioned above, is son of Taimus. At the time of incident, he was working in a paddy field and on hearing the commotion, he proceeded towards the place of occurrence where he found the appellants inflicting blows on Taimus. 12. Abdul Kalam Laskar, as mentioned above, is son of Taimus. At the time of incident, he was working in a paddy field and on hearing the commotion, he proceeded towards the place of occurrence where he found the appellants inflicting blows on Taimus. According to him, the lenja blow hit the head of Taimus due to which he fell down whereafter the appellants assaulted him with lathis. Abdul Kalam Laskar further says that when he along with Raisa rushed to the place of occurrence, the appellants assaulted them also. According to him, when some more persons came to the scene of occurrence, seeing them, the appellants ran away. Abdul Kalam Laskar admitted in his cross examination that he had found Khalil Ahmed to have assaulted Taimus on his head with lenja. From the evidence of Abdul Kalam Laskar it is clear that he reached the place of occurrence after the incident had already commenced. His evidence therefore does not establish that appellants had assembled and shared common object with Khalil Ahmed to commit the murder of Taimus. Moreover, his evidence also establishes that Raisa too had reached the place of occurrence on hearing hue and cry after the incident had commenced. Not only this, his evidence that the appellants assaulted Taimus with lathis does not find corroboration by the post mortem examination report. He is even silent that the clothes of his wife Raisa were torn by appellant-Billal. Had the clothes of Raisa been really torn by appellant-Billal, he would have definitely deposed about it. 13. Ali Ahmed (PW-3) has deposed that at the time of incident, he was in his house and on hearing hue and cry he rushed to the place of occurrence where he saw the appellants armed with lathis and Khalil Ahmed with lenja. According to his evidence, he saw Khalil Ahmed inflicting blows on the head of Taimus with lenja and when he fell down, all the appellants inflicted blows on his person with their lathis. This witness then says that when some people gathered at the place of occurrence, the appellants ran away. In cross examination, he has admitted that after his arrival at the place of occurrence he saw accused persons proceeding towards the place of occurrence from their respective houses. This witness then says that when some people gathered at the place of occurrence, the appellants ran away. In cross examination, he has admitted that after his arrival at the place of occurrence he saw accused persons proceeding towards the place of occurrence from their respective houses. Therefore, from the evidence of Ali Ahmed also it is clear that appellants had neither formed an unlawful assembly nor had shared common object with Khalil Ahmed to commit the murder of Taimus. 14. Another witness Abdul Kalam (PW-4) has deposed that while he was approaching Lala Bazar on the date of occurrence he found the appellants armed with lathis and lenja beating Taimus, Abdul Kalam Laskar, Raisa and Rahima and when he tried to intervene to rescue the victims, the appellants restrained him from doing so. The evidence of this witness is apparently not reliable as the same is not corroborated by medical evidence as no injury was found on the person of Abdul Kalam Laskar and Raisa and no corresponding injuries of lathis were detected on the dead body of Taimus. We have already mentioned above that but for one fatal injury on the head of Taimus and two simple injuries on his non-vital parts, no injuries which could have been caused by repeated blows with lathis were found. And Rahima was not examined by the prosecution to prove injury on her person. 15. Ala Uddin Barbhuiya (PW-5) has deposed that he saw Taimus proceeding towards the paddy field and the appellants breaking the fence erected by him and at that time they were armed with lenjas and lathis. According to his evidence, Khalil Ahmed inflicted a lenja blow on the head of Taimus and when he fell down on the ground, the appellants assaulted him with their lathis. This witness further says that when wife, daughter-in-law and son of Taimus reached the place of occurrence, they were also assaulted by the appellants with lathis. From the evidence of this witness also it is not established that the appellants were members of unlawful assembly and had shared common object with Khalil Ahmed. And, as mentioned above, not one simple injury was found on the person of son and daughter-in-law of Taimus and as wife Rahima of Taimus was not examined by the prosecution, no injury was proved on her person. 16. And, as mentioned above, not one simple injury was found on the person of son and daughter-in-law of Taimus and as wife Rahima of Taimus was not examined by the prosecution, no injury was proved on her person. 16. From a conjoint reading of the evidence of all the aforesaid witnesses, it can be easily perceived that Khalil Ahmed was the person who made the assault on the head of Taimus with a lenja. There is hardly any reliable evidence to show that the appellants had assembled and were waiting for Taimus with a common object to kill him and when he reached the place of occurrence, they attacked him. Rather it is the evidence that on the date of occurrence the appellants dismantled some portion of the fence in the field. Taimus on coming to know about this went to the appellants to object. But the appellants abused Taimus who reiterated his protest. At that point of time, Khalil Ahmed suddenly inflicted a blow on the head of Taimus with a lenja (spear) and Taimus fell down on the paddy field. The medical report shows corresponding fatal injury on the head of Taimus as inflicted by Khalil Ahmed and only two more simple injuries, that too, on his non-vital parts. Had the six appellants assaulted Taimus with lathis after he fell down helplessly, definitely there would have been multiple injuries on his dead body. But the absence of such injuries would go to show that the appellants did not assault him. Besides, no lathi was also seized by the police from the appellants. Moreover, the evidence of Raisa and Abdul Kalam Laskar that the appellants assaulted them and Rahima is also not believable as no injury was found on them by Dr.R Begum, whereas Rahima was not examined by the prosecution as a witness. Therefore, it is doubtful that the appellants were members of unlawful assembly and had shared common object with Khalil Ahmed to kill Taimus. For these reasons, we are also unable to agree with the findings of the trial court that the appellants had committed rioting and caused simple injuries to Rahima. And since Khalil Ahmed died during the trial proceedings, the same were abated against him. 17. The Supreme Court in Thakore Dolji Vanvirji & Ors. For these reasons, we are also unable to agree with the findings of the trial court that the appellants had committed rioting and caused simple injuries to Rahima. And since Khalil Ahmed died during the trial proceedings, the same were abated against him. 17. The Supreme Court in Thakore Dolji Vanvirji & Ors. vs. State of Gujarat, 1993 Suppl (2) SCC 534, in a similar case, where the victim was first assaulted by one of the appellants with a sword on his head and when he fell down, another appellant gave a blow with a barchhi on his face and the other three appellants gave stick blows, held that all the appellants would not be constructively liable for an offence of murder by virtue of Section 149 IPC. According to the eye witnesses, in that case, only one appellant gave the fatal blow and the remaining appellants gave stick blows. All those injuries were not serious and were simple. It was only injury No. 1 which was serious and proved to be fatal. Hence, the Supreme Court observed that although the ambit of Section 149 IPC is wide in its sweep, but in fixing the membership of the unlawful assembly and in inferring the common object, various circumstances also have to be taken into consideration. Having regard to the omnibus allegations against the appellants, who did not cause the fatal head injury, the Supreme Court held that it was not safe to convict every one of them for the offence of murder by applying Section 149 IPC and the common object of the unlawful assembly was only to cause grievous hurt. 18. We, accordingly, set aside the impugned conviction and sentences of the appellants and acquit them of the charges. They are reportedly in jail for more than 5 (five) years and hence be released forthwith.