JUDGMENT : MD. MUMTAZ KHAN, J. 1. These appeals have been preferred by the appellants assailing the judgment and order of conviction and sentence dated March 11, 1998 and March 12, 1998 respectively passed by the learned Additional Sessions Judge, 2nd Court, Bankura in Sessions Trial No. 3(7) 1993 arising out of Sessions Case No. 2(9) 1991. 2. By virtue of the impugned Judgment appellants were convicted for commission of the offence punishable under Sections 147 of the Indian Penal Code, 302 read with section 149 of the Indian Penal Code, 324 read with section 149 of the Indian Penal Code (hereinafter referred to as the IPC) and were sentenced to suffer imprisonment for life and to pay a fine of Rs. 500/- in default to suffer further rigorous imprisonment for three months each for the offence under Section 302 read with section 149 IPC, rigorous imprisonment for two years with a fine of Rs. 200/-in default to suffer further rigorous imprisonment for two months each for the offence under Section 324 read with section 149 IPC and to suffer simple imprisonment for a period of two months with a fine of Rs. 100/- in default to suffer simple imprisonment for a period of 15 days each for the offence under Section 147 of IPC with a direction that all the sentences shall run concurrently. Accused Kalipada Ghosh was convicted for the offence under Section 147 IPC only and was sentenced to suffer simple imprisonment for a period of two months with a fine of Rs. 100/- in default to suffer further simple imprisonment for a period of 15 days and was acquitted from the charges punishable under Section 302 read with Section 149 IPC and Section 324 read with Section 149 IPC. The period of detention already undergone by the convicts was directed to be set off as per the provisions of Section 428 of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C.). 3. The prosecution case, in brief, is as follows: 4. The period of detention already undergone by the convicts was directed to be set off as per the provisions of Section 428 of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C.). 3. The prosecution case, in brief, is as follows: 4. On October 7, 1989 at about 4/4-30 p.m. in the afternoon there was an altercation between PW 5 and his son PW6 with Bijoy Mondal over the issue of digging soil from a spot attached to the cowshed of PW 5 as a result of which the sons of Bijoy Mondal namely Nabakumar Mondal, Asit Mondal, Sukumar Mondal, Uday Mondal, Gurupada Mondal (appellants in CRA No. 126 of 1998), Nikhil Ghosh, Mritunjoy Ghosh, Murari Ghosh, Sahadeb Ghosh, Joydeb Ghosh (appellants in CRA No. 148 of 1998) and Mahadeb Ghosh, since deceased, being armed with lathi, tangi, ballam attacked PW 5 and PW6 and assaulted them causing bleeding injuries on their head. At that time one Raskar Mondal was returning from the filed. On seeing the incident when he raised alarm, then at the instruction of accused Kalipada Ghosh they also assaulted him on his head severely wounding him. When the villagers tried to rescue Raskar Mondal, sons of Bijoy Mondal assaulted Golak Mondal on his head causing bleeding therefrom. Villagers then took the injured Pramatha Pan, Sukumar Pan, Raskar Mondal and Golak Mondal to the Burdwan Medical College and admitted them at about 9 p.m. and at about 01 a.m. Raskar Mondal expired. 5. On October 8, 1989 at 10.30 hrs. P.W.1, son of the deceased Raskar Mondal, lodged a written complaint (Ext.1) at the Indas Police Station. On the basis of the above written complaint, PW 14 started Indas P.S. Case No. 32 dated October 8, 1989 under Sections 147/148/149/325/326/114/302 IPC against the accused Kalipada Ghosh, Mahadeb Ghosh and the appellants and himself took up investigation of the case. P.W.1, son of the deceased Raskar Mondal, lodged a written complaint (Ext.1) at the Indas Police Station. On the basis of the above written complaint, PW 14 started Indas P.S. Case No. 32 dated October 8, 1989 under Sections 147/148/149/325/326/114/302 IPC against the accused Kalipada Ghosh, Mahadeb Ghosh and the appellants and himself took up investigation of the case. During investigation, PW 14 prepared rough sketch map with index of the place of occurrence (Exhibit 4), examined available witnesses including the complainant and the injured P.W2, P.W.5 and P.W.6, collected report from the B.L. & L.R.O. (Ext.5) of the land in dispute, injury report, discharge certificates (Ext.6), bed-head tickets with connected papers (Exts.7, 7/1, 7/2 and 7/3), seizure list (Ext.8) from ASI, Shankar Chakraborty who seized those papers as per his instruction, inquest report (Ext.9) and the relevant papers of the UD Case from Burdwan P.S. 6. On the same day at 11 a.m., A.S.I. Madan Mohan Mahanta of Burdwan P.S. held inquest over the dead body of the victim Raskar Mondal at the Burdwan Medical College & Hospital Morgue in connection with Burdwan P.S. UD Case No. 652 of 1989 in presence of P.W.3, a hospital 'Dom' and one constable and prepared a report (Ext.9). 7. On the same date at 12.50 p.m., PW 11 (doctor) conducted postmortem examination over the dead body of the victim Raskar Mondal and found following injuries : (1) A surgically interfered and stitched wound 3.5" x scalp deep over the middle and back aspects of the left parietal region. (2) Surgically interfered and stitched wound 2" x scalp deep over the middle of parieto occipital region. (3) Abraded contusion 0.5" X 0.2" over lateral part of right side of forehead close to the right eye brow. (4) Haematoma 5" X 4" over left parieto temporal region. (5) Haematoma 2.5" X 1" over vault of the skull. (6) Fissured fracture 6.8" of the left parietal and left temporal bone at their middle and back parts. (7) Fissured fracture 3" of left side of back of parietal bone region and of middle of the occipital bone with the fracture line was continuous with injury No. 6 above. (8) Extensive extradural haemorrage over left parietal and left temporal region of the brain. (7) Fissured fracture 3" of left side of back of parietal bone region and of middle of the occipital bone with the fracture line was continuous with injury No. 6 above. (8) Extensive extradural haemorrage over left parietal and left temporal region of the brain. (9) Extensive sub-dural sub arachnoid and intra cerebral haemorrhage of both sides of the brain with presence of blood and blood-clot in and around the brain and brain-stem. 8. After postmortem examination doctor opined that death was due to the effects of head injuries, ante-mortem in nature and that injury nos. 1 and 2 might be caused either by a blunt hard substance or a sharp cutting substance while other injuries might be caused by hard and blunt substance like lathi and all the injuries together are sufficient to cause death in ordinary course of nature and the injury no.9 alone can cause death. 9. PW 14, thereafter, on completion of investigation submitted charge sheet against the accused Kalipada Ghosh, Mahadeb Ghosh and the appellants under Sections 147/148/149/325/326/114/302 IPC. 10. On July 30, 1993 charges under Sections 147 and 302 read with section 149 IPC were framed against the accused Kalipada Ghosh, Mahadeb Ghosh and the appellants and on their pleading not guilty trial commenced. Subsequently, on September 7, 1994 also a charge under section 149/326 IPC was framed against the accused Kalipada Ghosh, Mahadeb Ghosh and the appellants to which they pleaded not guilty and claimed to be tried. 11. During the pendency of trial, accused Mahadeb Ghosh died and as such the case against him was filed on September 18, 1995. 12. Prosecution in order to prove it's case examined 14 witnesses and also produced and proved written complaint, formal FIR, inquest report, post mortem report, injury reports, rough sketch map with index, seizure list, dead body challan, statement recorded under Section 164 Cr. P.C. and after completion of examination of prosecution witnesses accused Kalipada Ghosh and the appellants were examined under section 313. Thereafter, accused in support of their claim examined 04 witnesses and then on completion of trial, learned trial judge passed the impugned judgment. Accused Kalipada Ghosh served out the sentence and did not prefer any appeal. 13. Ms. P.C. and after completion of examination of prosecution witnesses accused Kalipada Ghosh and the appellants were examined under section 313. Thereafter, accused in support of their claim examined 04 witnesses and then on completion of trial, learned trial judge passed the impugned judgment. Accused Kalipada Ghosh served out the sentence and did not prefer any appeal. 13. Ms. Minoti Gomes, the learned advocate appearing for the appellants submitted that there was a fight between the sons of Pramatha Pan and Bijoy Mondal over the issue of digging earth and in that fight appellants also sustained injuries. She further submitted that deceased Raskar Mondal was not a party to that quarrel and as he intervened in the fighting between two groups of people some lathi fell on him also and there was no intention to kill him. According to Ms. Gomes, there was no enmity with the deceased and even no such force was applied while hitting on the head of the deceased nor there was any such cut injury and the doctor did not support the history of assault by a tangi. She further submitted that even after sustaining injury Raskar Mondal was alive and he implicated only the appellants Nikhil Ghosh and Sahadeb Ghosh and there was no such allegation against the other appellants. According to Mrs. Gomes, it was an accidental injury and there was no intention to kill him but as he was an aged person and could not bear the injury it resulted in his death, so at best Section 304 part 1I IPC will be applicable and that too only against the appellants Nikhil and Sahadeb besides the offence under Section 324 IPC and for the rest Section 324 read with Section 149 IPC will be attracted. She further submitted that appellants are simple villagers having no criminal antecedents and they are on bail, so considering the age of the case a lesser period of sentence may be passed. 14. Mrs. Gomes relied on the decisions of in the matter of Lavghanbhai Devjibhai Vasava Vs. State of Gujrat, (2018) 2 SCC(Cri) 461 and in the matter of Vijay Pandurang Thakre and Others V. State of Maharashtra, (2017) 2 SCC(Cri) 356 in support of her submissions. 15. Mr. 14. Mrs. Gomes relied on the decisions of in the matter of Lavghanbhai Devjibhai Vasava Vs. State of Gujrat, (2018) 2 SCC(Cri) 461 and in the matter of Vijay Pandurang Thakre and Others V. State of Maharashtra, (2017) 2 SCC(Cri) 356 in support of her submissions. 15. Mr. Neguive Ahmed, learned advocate appearing for the State supported the conviction and sentence imposed upon the appellants and submitted that the sequence of incidents has been described by P.W.1, P.W.2, P.W.3 and P.W.5 and the appellants were armed with lathi, tangi etc and they used those arms in causing injuries on the person of the victims which resulted in their hospitalization. He further submitted that the evidence of the autopsy surgeon (P.W.11) shows the severity with which the victim Raskar Mondal, who was unarmed, was assaulted, so the intention was very much clear to cause his death. He also submitted that evidence of eye witnesses implicating all the appellants can not be ignored and the victim might not had been in a position to take names of all the miscreants because it was head injury. According to Mr. Ahmed, learned trial judge has rightly passed the order of conviction and sentence upon the appellants and there was no impropriety in the same. 16. We have considered the submissions of the learned counsels appearing for the respective parties and went through the evidence and materials on record to consider the propriety of the impugned judgment and order passed by the learned Court below. 17. 16. We have considered the submissions of the learned counsels appearing for the respective parties and went through the evidence and materials on record to consider the propriety of the impugned judgment and order passed by the learned Court below. 17. The learned Court below took into consideration the evidences of the injured P.W.2, P.W.5 and P.W.6 and the other eye witnesses namely P.W.1, P.W.3, P.W.8 and P.W.10 besides the evidence of the doctors (P.W.11 and P.W.12) and the investigating officer (P.W.14) to arrive at a conclusion that it was the appellants who under the leadership of accused Kalipada Ghosh by forming an unlawful assembly and in furtherance of their common object assembled in front of the cowshed of P.W.5, quarreled with him and his son P.W.6 over issue of digging earth and then assaulted them with tangi and lathi and when P.W.2 and Raskar Mondal came there to their rescue they were also assaulted with tangi and lathi causing severe injuries on the person of of Raskar Mondal resulting in his death and thereby committed the offence punishable under section 147, 302 read with 149 and 324 read with 149 I.P.C. 18. On perusal of the evidence of P.Ws. on record together with the evidence of the doctor (P.W.11), the inquest report (Ext.9) and the P.M. report (Ext.2) it appears that the death of the victim Raskar Mondal was due to the effects of head injury, ante mortem in nature. 19. From the evidence of another doctor (P.W.12), the medical reports (Ext.3,3/1,3/2 and 3/3) and the bed-head tickets (Exts.7,7/1,7/2 and 7/3) it appears that on October 7, 1989, Raskar Mondal, Golak Mondal (P.W.2), Pramatha Pan (P.W.5) and Sukumar Pan (P.W.6) were brought in the Emergency Department of Burdwan Medical College and Hospital and on examination he found one lacerated injury over scalp of Raskar Mondal, cut injury over the scalp of Golak Mondal, lacerated injuries over left elbow, over right shoulder and over scalp of Pramatha Pan and one lacerated injury over left side of forehead with haematoma around the left eye and severe swelling of the right forearm of Sukumar Pan and after examination those patients were admitted in the hospital. 20. 20. The circumstances leading to such injuries of the victims has been elaborately described in the letter of complaint (Ext.1) and vividly narrated by the victims P.W.2, P.W.5, P.W.6 themselves and corroborated by the eye witness P.W.1, P.W.3. P.W.8 and P.W.10. 21. According to P.W.1, son of the deceased Raskar Mondal, on October 7, 1989 at about 4/4.30 p.m. there was a quarrel between the son of P.W.5 and the sons of Bejoy Mondal namely, Nabakumar Mondal, Sukumar Mondal, Uday Mondal and Asit Mondal over the issue of taking earth from the southern side of the cow shed of P.W.5 and as such all the accused being led by Kalipada Ghosh assaulted P.W.5 and his son, P.W.6, with lathi and tangi causing bleeding injuries on their head. At that time Raskar Mondal who was returning from the field, on seeing the incident of assault raised alarm, then accused Kalipada Ghosh instructed the other accused to attack his father since he was raising alarm. Accordingly, Nikhil Ghosh gave a blow with a tangi, Sahadeb gave a blow with lathi, Nabakumar gave a blow with tangi and other accused joined in assaulting his father and went on assaulting on different parts of his body causing injuries on his person. In the meantime many villagers including P.W.2, P.W.3, P.W.8, P.W.9, and P.W.13 assembled. Accused then rushed towards P.W.2 and when P.W.2 tried to flee away accused Nabakumar struck him by a tangi causing bleeding injury on his head. Thereafter, all the accused fled away with their weapons. Injured were then taken to the Burdwan Medical College and hospital where his father expired in the night at about 1 a.m. Accordingly, in the morning he went to Indas P.S. and lodged the complaint scribed by P.W.7 as per his dictation. In course of examination before court, he identified the appellants to be the miscreants who committed the offence. He was cross-examined by the defence at length but nothing came contrary to his statements in-chief. 22. According to P.W.2, the injured, on the relevant date and time on hearing alarm he rushed towards the cow-shed of P.W.5 and found sons of Kalipada Ghosh, Bejoy Mondal being armed with tangi and lathi, sons of Asit Ghosh armed with lathi and Gurupada armed with lathi being led by Kalipada Ghosh were assaulting P.W.5 and P.W.6. 22. According to P.W.2, the injured, on the relevant date and time on hearing alarm he rushed towards the cow-shed of P.W.5 and found sons of Kalipada Ghosh, Bejoy Mondal being armed with tangi and lathi, sons of Asit Ghosh armed with lathi and Gurupada armed with lathi being led by Kalipada Ghosh were assaulting P.W.5 and P.W.6. When he raised alarm, accused rushed towards him and Nabakumar gave a blow on the backside of his head with his tangi causing bleeding injury on his head. At that time Raskar Mondal who was returning home from field seeing the incident raised alarm, then Nikhil Ghosh gave a tangi blow on his head, Sahadeb gave a lathi blow on his head and other accused persons jointly began to assault Raskar with tangi and lathi as a result Raskar Mondal fell down on the ground. When the villagers like P.W.1, P.W.8, P.W.9, P.W.13 and others assembled accused left the place. They were taken to Burdwan hospital for treatment where P.W.2 was treated by the doctor and he disclosed to the doctor that he was assaulted by Nabakumar by a tangi. He also identified the appellants in course of his examination before court. He was also cross-examined at length but his evidence too remained unshaken. 23. According to P.W.3, another son of Raskar Mondal on the relevant date and time on hearing cries coming out from the cow-shed of P.W.5, he came out from his house and saw Sukumar Mondal with tangi, Nabakumar Mondal with tangi, Asit Mondal with lathi, Uday Mondal with lathi, Nikhil Ghosh with tangi, Mritunjoy Ghosh with tangi, Murari Ghosh with lathi, Joydeb Ghosh with tangi, Mahadeb Ghosh with lathi, Sahadeb Ghosh with lathi, Gurupada Mondal with tangi were assaulting P.W.5 and P.W.6 on their heads and hands causing severe bleeding injuries. He then rushed towards the place of occurrence and saw P.W.2 was coming towards the cow-shed of P.W.5. Accused then rushed towards P.W.2 and when P.W.2 tried to flee away Nabakumar gave a blow on his head with his tangi. He then rushed towards the place of occurrence and saw P.W.2 was coming towards the cow-shed of P.W.5. Accused then rushed towards P.W.2 and when P.W.2 tried to flee away Nabakumar gave a blow on his head with his tangi. At the very moment his father Raskar Mondal who was returning home, on reaching near the place raised alarm, then accused rushed towards him and Nikhil Ghosh gave a blow of tangi on the head of his father, Sahadeb gave a blow of lathi on the head, Nabakuarm, Uday, Asit, Joydeb, Mritunjoy and others surrounded his father and began to assault him with lathi and tangi on his head as a result his father fell down on the ground. Many villagers came at the place of occurrence and saw the incident. Accused then left the place with their lathis and tangis. The injured persons were taken to the Burdwan Medical College & Hospital where they were admitted and his father expired on the night of the incident. He too identified the appellants in course of his examination before court to be those miscreants who committed the offence. His evidence also remained unshaken during crossexamination. 24. According to P.W.5, another injured, on the relevant date and time when he along with his son (P.W.6) were putting earth on the floor of their cow-shed accused Nabakumar Mondal and Sukumar Mondal armed with tangi, Uday Mondal and Asit Mondal armed with lathi, Kalipada Ghosh and his sons Mritunjoy armed with tangi, Murari armed with lathi, Joydeb Ghosh armed with tangi, Mahadeb Ghosh and Sahadeb Ghosh armed with lathi, Gurupada Mondal armed with tangi came there and began to assault them by give blow on their head, hand and shoulder causing severe bleeding injuries on their person. Hearing their cries when P.W.2 rushed there, accused Nabakumar, Uday Mondal, Asit Mondal and others rushed towards him. Out of fear when P.W.2 tried to run away then Nabakumar gave a blow of tangi on his head. In the meantime Raskar Mondal, who was returning home from field, on reaching near the cowshed raised alarm, then accused Kalipada Ghosh instructed other accused to finish him. Out of fear when P.W.2 tried to run away then Nabakumar gave a blow of tangi on his head. In the meantime Raskar Mondal, who was returning home from field, on reaching near the cowshed raised alarm, then accused Kalipada Ghosh instructed other accused to finish him. Then Nikhil gave a blow of tangi on the head of Raskar, Sahadeb gave a blow by lathi on his head and Nabakumar, Uday, Asit, Mritunjoy, Joydeb and others surrounded Raskar Mondal and began to assault him jointly as a result he sustained injuries and fell down. When the villagers assembled there accused fled away with their weapons. He and other injured were taken to the hospital and got them admitted. He disclosed to the doctor the names of accused Nabakumar, Uday, Asit, Mritunjoy, Joydeb, Nikhil, Murari, Mahadeb, Sahadeb and Gurupada who had assaulted them. He identified the appellants in course of his examination before court. He was cross-examined by the defence at length but the defence failed to impeach his credibility. During cross-examination he clearly stated that he was taking his own earth from his land for putting in his cowshed. He also stated that Golak first came at the place of occurrence and subsequently others came there one by one within a short time and in course of their assault Prithish and Shyamal came to their rescue and made an attempt also. He denied the defence suggestion that he and his son were digging earth from the land of Nirapada and Raskar Mondal and his men were encouraging them to dig earth and for this accused Sukumar and his jamai came there and protested, then he, his son, P.W.2 as also Raskar Mondal attacked them and there was a scuffle in between themselves and in course of scuffle and snatching the spade by accused Joydeb and Sukumar handle his own spade got struck on his head as a result he got injury on his head and fell down on the ground and P.W.2 also sustained injury in course of scuffling by the blade of his spade which was in his hand. 25. 25. According to P.W.6, son of P.W.5 and the injured, on the relevant date and time while he and his father were putting earth in their cowshed sons of Bejoy Kumar, Nabakumar and Sukumar with tangi, Uday and Asit with lathi, sons of Kalipada, Mritunjoy with tangi, Murari with lathi, sons of Ajit, joydeb with tangi, Sahadeb and Mahadeb with lathi, Gurupada with tangi came there and started quarreling with them. Accused Kalipada then instructed the accused to assaulted them and accordingly they began to assault them severely. Mritunjoy Ghosh, Nikhil Ghosh and others assaulted him as a result od which he sustained injuries on his head and hands. P.W.2 seeing the incident rushed to the spot raising cry, then accused rushed towards him. P.W.2 then tried to escape away but in the meantime Nabakumar gave a blow with his tangi on his head. At the very moment Raskar who was returning home with his cattle on seeing the incident raised alarm, then accused rushed towards Raskar and Nikhil gave a blow of tangi on his head and Sahadeb gave a blow of lathi on his head and other accused also assaulted him on his head as a result he sustained severe bleeding injuries and fell down on the ground. Accused then left the place with their weapons. He too identified the appellants in course of his examination before court. He was also cross-examined by the defence at length but his evidence remained unshaken. 26. According to P.W.8, another eye witness, on the relevant date at about 4/4.30 p.m. sons of Bejoy Mondal picked up quarrel with P.W.5 and P.W.6 over an issue of taking earth of the cow-shed. Hearing row he rushed to the place of occurrence and saw Nabakumar Mondal, Sukumar, Nikhil, Mritunjoy, Gurupada, Joydeb Ghosh having tangis, Asit Mondal, Uday, Murari, Sahadeb and Mahadeb having lathi to assault P.W.5 and P.W.6. When P.W.2 proceeded towards cowshed, accused rushed towards him and Nabakumar gave a blow of tangi on his head. At the very moment, Raskar Mondal who was returning with his cattle from the field, on seeing the incident raised alarm, then accused Kali Ghosh instructed others to finish him. When P.W.2 proceeded towards cowshed, accused rushed towards him and Nabakumar gave a blow of tangi on his head. At the very moment, Raskar Mondal who was returning with his cattle from the field, on seeing the incident raised alarm, then accused Kali Ghosh instructed others to finish him. Nikhil Ghosh then rushed towards Raskar Mondal and gave a tangi blow on his head, Sahadeb gave a lathi blow on his head, Nabakumar gave a blow of tangi on his head and the other accused also began to assault him as a result he sustained bleeding injuries and fell down on the ground. P.W.1, P.W.3, P.W.9, P.W.10 and many other villagers assembled at the P.O. and saw the incident. Accused then fled away therefrom. He identified the appellants in course of his examination before court to be those miscreants. He too was cross-examined by the defence and during cross-examination he clearly deposed that he saw the incident of quarrel as also the incident of assault. He also specifically stated that he saw all the accused persons to assault P.W.5 and P.W.6 giving several blows and that tangi and lathi were used simultaneously. He further deposed that P.W.2 was chased by all the accused but only one of them gave a blow of tangi and that Raskar was given blows twice or thrice and also one by one of the group. He also deposed that as soon as P.W.2 tried to escape, he got a blow of tangi by the accused and the other accused were also present at that time. He also deposed that Raskar had no opportunity to protect himself by raising his hands and immediate after assault he fell down on the ground and was further assaulted thereafter and that Raskar was the last victim of assault. 27. According to P.W.10, nephew of Raskar Mondal and an eye witness, on the relevant date and time suddenly he heard alarm coming from the side of the Goalghar of P.W.5. He then came out of the room and found Nabakumar Mondal and Sukumar with Tangi, Murari with lathi, Joydeb with tangi, Sahadeb and Mahadeb with lathi and Gurupada with tangi were assaulting P.W.5 and P.W.6 and when P.W.2 came to rescue them, accused rushed towards him and Nabakumar gave a blow of his tangi on his head. He then came out of the room and found Nabakumar Mondal and Sukumar with Tangi, Murari with lathi, Joydeb with tangi, Sahadeb and Mahadeb with lathi and Gurupada with tangi were assaulting P.W.5 and P.W.6 and when P.W.2 came to rescue them, accused rushed towards him and Nabakumar gave a blow of his tangi on his head. At that time his uncle Raskar who was returning home from the field with his cattle, seeing the incident raised alarm, then Nikhil gave a blow of tangi on his head, Sahadeb gave a blow of lathi and the other accused persons surrounded Raskar and began to assault him and gave blows on his head with the weapons in their hands as a result he sustained bleeding injures and fell down on the ground. Many villagers in the meantime assembled at the place of occurrence and then accused persons left the place with their weapons. He too identified the appellants to be the miscreants in course of his examination before court. During cross-examination he clearly deposed that place of occurrence was about 20/30 cubits from his house and on coming out of his house he saw the appellants to assault P.W.5 and P.W.6. 28. Thus from the above, it is evident that on the relevant date and time while P.W.5 and P.W.6 were putting earth on their cowshed appellants along with other accused came there in a group and picked up quarrel with them over the issue of digging earth and then began to assault them. Hearing their cries when P.W.2 came there, he was chased and assaulted by Nabakumar by tangi and when Raskar Mondal, who was returning from field, on seeing the incident raised alarm he was assaulted by the accused Nikhil by a tangi and by Sahadeb by a lathi on his head and the other accused also assaulted him as a result P.W.2, P.W.5, P.W.6 and Raskar Mondal sustained injuries on their person and had to be hospitalized. From the evidences of the injured P.W.2, P.W.5 and P.W.6 and other eye witnesses namely P.W.1, P.W.3. P.W.8 and P.W.10, we find that they, in course of recording of their evidences before court, identified the appellants to be the miscreants who committed the offence. The elaborate cross-examination of the above injured and the eye witness on behalf of the appellants failed to discredit their testimony in any manner whatsoever. P.W.8 and P.W.10, we find that they, in course of recording of their evidences before court, identified the appellants to be the miscreants who committed the offence. The elaborate cross-examination of the above injured and the eye witness on behalf of the appellants failed to discredit their testimony in any manner whatsoever. There appears no reason why the injured would shield the actual culprit and implicate the appellants. The oral testimonies of the above witnesses also found corroboration from the medical evidence. The weapons used in causing injuries on the persons of the victim, as evident from the evidence on record, were lathi and tangi but the medical evidence on record do not suggest that any of the injured either P.W.2, P.W.5 or P.W.6 sustained grievous hurt as defined in section 320 of IPC. 29. P.W.12 who attended the injured in the Emergency department on the very day of incident found only one lacerated injury over scalp of Raskar Mondal, cut injury over the scalp of P.W.2, lacerated injuries over left elbow, right shoulder and scalp of P.W.5 and one lacerated injury over left side of forehead with haematoma around the left eye and severe swelling of the right forearm of P.W.6. P.W.12 specifically stated on oath that at the time of admission, Raskar Mondal was found conscious and he reported to him that he was assaulted by Nikhil Ghosh and Sahadeb Ghosh by lathi while the patient party who brought the other injured told him that P.W.2 was assaulted by Nabakumar by tangi, P.W.5 was assaulted by Nabakumar Mondal, Asit Mondal, Mritunjoy, Murari Ghosh, Nikhil Ghosh, Joydeb Ghosh, Mahadeb Ghosh, Sahadeb Ghosh and Gurupada Mondal by lathi and P.W.6 was assaulted by Kalipada and his sons by lathi, tangi, khoch etc. However, the claim of P.W.1 that Kalipada instructed other accused persons to assault his deceased father Raskar Mondal and/or that Nabakumar also gave a blow with a tangi on the head of his father and other accused assaulted his father on different parts of his body causing injuries on his person did not find support either from the FIR or the doctor (P.W.12). P.W.5 and P.W.6 also specifically stated that when Raskar seeing the incident raised alarm Nikhil gave a blow of tangi and Sahadeb gave a blow by lathi on his head and other accused surrounded and also assaulted him. 30. P.W.5 and P.W.6 also specifically stated that when Raskar seeing the incident raised alarm Nikhil gave a blow of tangi and Sahadeb gave a blow by lathi on his head and other accused surrounded and also assaulted him. 30. Even P.M. doctor (P.W.11) found injuries only on the head of the deceased and admitted that injury nos. 1 and 2 might be caused either by a blunt hard substance or a sharp cutting substance while other injuries might be caused by hard and blunt substance like lathi and that injury nos.6 and 7 might be caused by a single blow and injury no.9 was not an injury itself rather it is the effect of injuries and so also the injury nos.4, 5 and 8. In view of the above, there appears no reason to disbelieve the statements of the doctor. 31. From the trend of cross-examination it appears that defence has taken the plea of scuffling and assault between two groups over issue of digging earth from their place resulting in injuries on appellants Sukumar Mondal and Joydeb Ghosh also. In support of their above claim they have examined Ward Master (D.W.1) and two Medical officers (D.W.2 and D.W.4) of Bishnupur Sub-divisional Hospital and one Pharmacist (D.W.3) of Laogram Subsidiary Health Centre. But the evidence of Pharmacist is of no value as he has not stated anything in support of claim of the defence nor that of Ward Master who failed to produced any Admission register or any injury report. However, according to Medical officers, Joydeb Ghosh and Sukumar Mondal on being referred from Laogram Subsidiary Health Centre were admitted in the Bishnupur Sub-divisional Hospital on October 8, 1989 with head injury and stitch and both were discharged on October 13, 1989. D.W.2 opined the nature of injury of Joydeb Ghosh to be simple though, during cross he admitted that neither of the above patients were admitted in the hospital by him nor he treated them and only at the time of discharge he examined them. D.W.4 could not recollect whether he at all opened the sitch and admitted that he did not mention in his report the nature, size and depth of the wounds. Interestingly, no cogent evidence was produced by the defence to show the Joydeb Ghosh and Sukumar Mondal's admission or any such treatment by any doctor on October 7, 1989, the very date of incident. 32. Interestingly, no cogent evidence was produced by the defence to show the Joydeb Ghosh and Sukumar Mondal's admission or any such treatment by any doctor on October 7, 1989, the very date of incident. 32. Learned court below taking into account the entire evidence and documents on record did not believe the defence story rather found the appellants guilty of the offence punishable under section 147 IPC as also under section 324 read with 149 IPC and accordingly passed the order of conviction for the said offences. 33. In view of the above, we think that there was no impropriety on the part of the learned Court below to pass the order of conviction and sentence against the appellants under those sections. 34. With regard to issue as to who was responsible for the death of Raskar Mondal, we find from the evidence of the injured P.W.2, P.W.5, P.W.6 and other eye witnesses namely P.W.1, P.W.3, P.W.8 and P.W.10 that they had specifically named Nikhil Ghosh to give a tangi blow and Sahadeb Ghosh a lathi blow on the head of Raskar Mondal and remaining accused to join them in assaulting him on different parts of his body. However, only P.W.1 and P.W8 have also named Nabakumar Ghosh to give a tangi blow on the head of Raskar Mondal in addition to Nikhil Ghosh and Sahadeb Ghosh although the other eye witnesses have not said so. 35. The death of Raskar Mondal was due to the effects of the head injuries as stated by the autopsy surgeon (P.W.11). P.W.12 who attended injured Raskar Mondal on the very date of incident in the emergency department of Burdwan Medical Collage and Hospital also found head injuries on his person. P.W.12 specifically stated on oath that when he attended the patient Raskar Mondal, he was conscious and reported him that he was assaulted by Nikhil Ghosh and Sahadeb Ghosh by lathi and the patient party also reported him that Raskar Mondal was assaulted by Nikhil Ghosh and Sahadeb Ghosh. P.W.12 did not find any sharp cutting injuries on the head of the deceased. History of assault by tangi was not supported by the attending doctor (P.W.12). No other injury was found on the person of Raskar Mondal. The above statements of the doctor went on unchallenged. P.W.12 did not find any sharp cutting injuries on the head of the deceased. History of assault by tangi was not supported by the attending doctor (P.W.12). No other injury was found on the person of Raskar Mondal. The above statements of the doctor went on unchallenged. The claim of P.W.1 that he stated to the doctor the names of all the assailants of his father but the doctor asked him not to disclose all the names after two names were disclosed did not find corroboration from any quarter. Even the doctor (P.W.12) was not challenged on this score. As such, there was no reason to disbelieve the evidence of doctor (P.W.12). 36. Thus from the above it was crystal clear that it were the appellants Nikhil Ghosh and Sahadeb Ghosh who inflicted fatal blows on the head of Raskar Mondal which caused his death. Though, the evidence on record show that other appellants also participated in assaulting the victim but no other injury was found on the person of the victim. Furthermore, learned court below did not believe the prosecution story that accused Kalipada Ghosh asked the appellants to assault Raskar Mondal. Accused Kalipada Ghosh was convicted only for the offence under section 147 of the Indian Penal Code. Prosecution did not prefer any appeal against such conviction of Kalipada Ghosh. 37. Therefore, taking into consideration the evidences and other materials on record, there was no scope for the learned Court below to convict the appellants Nabakumar Mondal, Asit Mondal, Sukumar Mondal, Uday Mondal, Mritunjoy Ghosh, Murari Ghosh, Joydeb Ghosh and Gurupada Mondal under Section 302 read with section 149 of the Indian Penal Code. It was the appellants Nikhil Ghosh and Sahadeb Ghosh only who dealt fatal blows on the head of Raskar Mondal and were responsible for the death of Raskar Mondal. 38. The next issue which requires our consideration is, whether the case falls under Section 302 of the Indian Penal Code or under Section 304 Part II of the Indian Penal Code, as submitted by the learned advocate for the appellants. It has come out from the evidence of eye witnesses that Raskar Mondal was not present when quarrel between two groups of people over digging of earth and incident of assault started. It has come out from the evidence of eye witnesses that Raskar Mondal was not present when quarrel between two groups of people over digging of earth and incident of assault started. At the relevant point of time he was returning home from the field with his cattle when he saw the incident and raised alarm and then he was assaulted. P.W1 also specifically stated that his father was attacked since he was raising alarm. Nothing has been brought on record to show that there was any such enmity between the appellants and deceased Raskar Mondal. Even nothing has been produced from the side of prosecution to show that the appellants had any intention or mens rea to kill Raskar Mondal or premeditation in the commission of crime or any conclusive evidence that appellants had any predetermined motive or enmity to commit such offence. On the other hand it seems incident on Raskar Mondal occurred in a fit of anger on sudden provocation due to his intervention by raising alarm during the quarrel and assault between two groups of people. 39. In such circumstances, taking into consideration the evidences and other materials on record, there was no scope for the learned Court below to convict and sentence the appellants under Section 302 read with section 149 of the Indian Penal Code. The learned Court below failed to consider at the time of passing the judgment that no evidence was brought on record to prove that there had been an intention to cause death and/or that it was a preplanned cold blooded murder on the basis of long time conspiracy. Therefore, the impugned judgment and the order of conviction and sentence under section 302 read with section 149 of the Indian Penal Code only are liable to be interfered with. 40. Accordingly, we affirm the conviction and sentence of the appellants of both CRA 126 of 1998 and CRA 141 of 1998 under Section 147 of the Indian Penal Code as also under Section 324 read with 149 of the Indian Penal Code. 41. We, however, set aside the conviction and sentence of the appellants Nabakumar Mondal, Asit Mondal, Sukumar Mondal, Uday Mondal and Gurupada Mondal (appellant nos. 1 to 5 in CRA 126 of 1998) and appellants Mritunjoy Ghosh, Murari Ghosh and Joydeb Ghosh( appellant nos. 41. We, however, set aside the conviction and sentence of the appellants Nabakumar Mondal, Asit Mondal, Sukumar Mondal, Uday Mondal and Gurupada Mondal (appellant nos. 1 to 5 in CRA 126 of 1998) and appellants Mritunjoy Ghosh, Murari Ghosh and Joydeb Ghosh( appellant nos. 2,3 and 5 in CRA 141 of 1998) for the offence under Section 302 read with section 149 of the Indian Penal Code and acquit them from the said charges and alter the conviction of the appellants Nikhil Ghosh and Sahadeb Ghosh (appellant nos. 1and 4 in CRA 141 of 1998) under Section 302 read with section 149 of the Indian Penal Code to one under Section 304 Part-II of the Indian Penal Code. For the altered conviction, keeping in mind the age of the case and the period spent in litigation, the appellants Nikhil Ghosh and Sahadeb Ghosh are sentenced to suffer rigorous imprisonment for a period of seven years each. All the sentences shall run concurrently. 42. The period of detention of the appellants undergone during the investigation, inquiry or trial be set off against the period of substantive sentence of imprisonment stated herein above, in accordance with the provision of Section 428 Cr. P. C. 43. Appellants, who have not served out the sentence, are directed to surrender before the trial court within one month from the date to serve out the remaining part of their sentence failing which the learned trial court shall take appropriate steps in accordance with law. 44. These appeals are thus disposed of with partial alteration of the order of conviction and sentence as indicated herein-above. 45. Copy of this judgment along with the lower court records be sent down to the trial court by special messenger forthwith for taking necessary action. 46. Urgent photostat certified copy of this judgment, if applied for, be given to the parties expeditiously upon compliance with the necessary formalities in this regard. I Agree : Jay Sengupta, J.