JUDGMENT : Achintya Malla Bujor Barua, J. Heard Mr. MH Rajbarbhuiyan, learned Amicus Curiae for the appellant and also heard Mr. M Phukan, learned Additional Public Prosecutor for the State of Assam. 2. An ejahar dated 20.10.2004 was lodged by one Md. Giyasuddin Barbhuiya stating that at about 6 am on the given day when his nephew Md. Matibur Rahman Barbhuan had gone to his paternal land like in previous years, to cultivate 'Ravi' crops and had started ploughing the land, the accused persons having formed an unlawful assembly and being armed with deadly weapons like dao, dagger, spear, lathi etc. had trespassed the land at about 7 am and asked him to stop ploughing. When the nephew had raised a commotion, his wife Jahanara Begum and himself went to the paddy field to protect his nephew whereupon the accused persons had also assaulted his wife and himself. Later on the wife of his nephew Mustt. Karuna Begum, son Hassan Ahmed and others arrived and asked the accused persons not to assault any further. Thereupon, the accused persons had left the place of occurrence but not before further assaulting and leaving the deceased in a bloody state. 3. Post mortem report states of two injuries i.e. bruised nape of the neck on both sides and one spindle shaped punctured wound 1.3 cm length x 0.5. cm wide and 4 cm deep over left side of neck. The inquest report reveals some further beating marks in the middle portion of the chest and back of the neck and also his back. 4. The informant Gias Uddin Barbhuiya deposed himself as PW-6 and stated that while he was sleeping in the morning, his wife Jahanara Begum had awakened him and told that the accused persons were proceeding with arms to some place. When he came out of his house, he saw that about six to seven persons including the two accused persons were proceeding towards the paddy field and were armed with weapons like stick, bollom etc.. He further deposed that he and his wife Jahanara Begum followed the group of persons and saw that they were on the field of the deceased Motiur Rahman. He also deposed that reaching the paddy field, he saw that the accused persons were assaulting Motiur Rahman and further the accuseds Sona Mia and Abul Hussain had also assaulted him in his hand and shoulder. He also deposed that reaching the paddy field, he saw that the accused persons were assaulting Motiur Rahman and further the accuseds Sona Mia and Abul Hussain had also assaulted him in his hand and shoulder. It was deposed that Motiur Rahman fell down on the ground as a result of the assault and after he fell down, the accused Amrul Hussain dealt a blow on the chest below his throat with a bollom resulting in an penetrating injury. 5. It was deposed by PW-6 that after hearing the alarm raised by him, Hasan Ahmed, Karuna Begum and Hussain Ahmed came to the occurrence and after their arrival, the accused persons had left the place. We have also examined the statements under Section 161 Cr.P.C. of the PW-6 Md. Gias Uddin Barbhuiya and find that to a great extent it is consistent with what he has stated in his deposition at the stage of trial. 6. Pw-7 Jahanara Begum in her deposition had deposed in a contradictory manner by stating that upon hearing commotion, she came out of the house and thereafter along with her husband i.e. Gias Uddin Barbhuiya went to the land of Motiur Rahman which is located at considerable distance from their house. It is deposed that upon arrival, PW-7 saw that accused Amrul and the members of his family were assaulting Motiur Rahman and also saw Amrul stabbing Motiur Rahman in the neck with a spear. When she tried to save herself, Amrul had also struck her in the head. Although the deposition of PW-7 is at a slight variance with that of PW-6 but we are of the view that such variance would not be a material variance to discard the evidence of PW-6. But what is noted is that PW-6 had deposed that he had raised the alarm after Amrul had struck the deceased with his spear/ bollom which must have resulted in the hue and cry. 7. Pw-1 Hasan Ahmed Barbhuiya and PW-2 Musstt. Karuna Begum being son and wife of the deceased in their deposition had stated that after hearing the hue and cry from the paddy field, they went to the place of occurrence and saw that several persons were assaulting the deceased Motiur Rahman. They further deposed that thereafter Amrul had struck Motiur with a bollom and Fakrul had struck him with a spade. They further deposed that thereafter Amrul had struck Motiur with a bollom and Fakrul had struck him with a spade. Although the said two witnesses claimed to be the eye witnesses to the occurrence but we take note of that they were alerted and proceeded to the place of occurrence only after the hue and cry. 8. But on the other hand, PW-6 who is also the eye witness is very specific in his deposition that he had raised the alarm that is hue and cry after Amrul had struck the deceased with a bollom. Accordingly, if deposition of PW-6 is believed , the deposition of PWs- 1 and 2 has to be discarded as they could not have remained present to witness the occurrence as eye witnesses. 9. We also take note of that PW-5 Hussain Ahmed Barbhuiya who also claimed to be a nephew of the deceased Motiur Rahman in the cross had stated that the deceased Motiur Rahman and father of the accused Amrul are sons of two consanguine brothers. He further deposed that the land at which the occurrence had taken place is also a paternal property of the parties and the property had been amicably partitioned a number of years ago. He also deposed that the land located to the east of the land where the occurrence had taken place belongs to him and he had given it to a share cropper. He also deposed that the accused Amrul Hussain and the other members of the family enjoyed possession of the land in which the incident took place and that the deceased Motiur Rahman had his land elsewhere. The said deposition of PW-5 who is otherwise an independent witness and unconnected although related to the deceased clearly reveals that at the time of the occurrence, it was accused Amrul and his family members who were in possession of the land. It being so, it has to be construed that even if the occurrence had taken place in the manner as stated by PW-6, the same has to be construed that it was the accused persons who were defending the possession of the land resulting in the occurrence that took place. 10. It being so, it has to be construed that even if the occurrence had taken place in the manner as stated by PW-6, the same has to be construed that it was the accused persons who were defending the possession of the land resulting in the occurrence that took place. 10. If that is so, even if it is accepted that the occurrence had taken place in the manner as deposed by PW-6, the accused persons were also discharging a right of private defence of their property. Accordingly, we are of the view that given the manner in which the occurrence is deposed to have taken place, the accused petitioners would come within the purview of Exception -2 to Section 300 of the Indian Penal Code. Exception-2 to Section 300 IPC inter alia provides that culpable homicide is not murder if the offender, in exercise in good faith, right of private defence of person or property exceeds powers given to him by law caused the death of the person against whom he is exercising such right of defence without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence. 11. If we arrive at a conclusion that the accused persons are entitled to the benefit of Exception -2 to Section 300, their act of causing death to the deceased would be covered under Section 304 part-II of the IPC. We have also taken note of that the accused/appellants were convicted amongst others under Section 302 read with Section 149 of the IPC. 12. Evidence of PW-6 clearly reveals that the fatal blow resulting in the injury around the neck portion resulting in the death of the deceased was caused by Amrul Hussain when he had struck with a bollom. If Section 149 is applicable, the other accused persons would also be liable for such act along with Amrul Hussain. 13. But what is noticed is that the prosecution had not made out any case of their being an unlawful assembly or further that there was common object of the accused persons to cause the offence. In the absence of the aforesaid two elements, we are of the view that the provision of Section 149 cannot be invoked in the facts and circumstance of the present case. In the absence of the aforesaid two elements, we are of the view that the provision of Section 149 cannot be invoked in the facts and circumstance of the present case. In the event, Section 149 is not applicable, the other accused persons cannot be held liable for the offence committed by Amrul Hussain. But at the same time, if the deposition of PW-6 shows that the other persons had assaulted the deceased with lathi etc. and the post mortem report and the inquest report are also in conformity with the same as there were some other minor injuries in the chest and back of the deceased which may have been caused due to the assault. Accordingly, the other accused persons can be held liable for having committed the offence resulting in such other injuries on the body of the deceased to which again read with the medical evidence is not indicative that the same had caused the death of the deceased. 14. Accordingly, we will have to view that the act of the other accused/ appellants in assaulting the deceased with lathi etc and causing the injuries described in the inquest report and post mortem report to be an act covered by Section 323 of the IPC. Accordingly, we convict the accused / appellant No.1 Amrul Islam Barbhuiya under Section 304 Part-II of the IPC and the accused/ appellant Nos. 2 to 5 i.e. 2.Fakrul Islam Barbhuiya, 3. Aftarun Nessa Barbhuiya, 4. Ranjana Begum Barbhuiya and 5. Makabbir Ali Barbhuiya @ Sona Mia under Section 323 of the IPC. 13. We have been informed that the four accused/ appellants i.e. 2.Fakrul Islam Barbhuiya, 3. Aftarun Nessa Barbhuiya, 4. Ranjana Begum Barbhuiya and 5. Makabbir Ali Barbhuiya @ Sona Mia persons have been undergoing imprisonment for a period of about 10 months and thereafter they were released on bail. It is also informed that earlier they were taken into custody for the statutory period of 3 months during the stage of investigation meaning thereby in total they remained in imprisonment for a period of 13 months. As the Section 323 of the IPC provides for a punishment of imprisonment which may extend to one year or with a fine and as the accused / appellant Nos. 2 to 4 i.e. 2.Fakrul Islam Barbhuiya, 3. Aftarun Nessa Barbhuiya, 4. Ranjana Begum Barbhuiya and 5. As the Section 323 of the IPC provides for a punishment of imprisonment which may extend to one year or with a fine and as the accused / appellant Nos. 2 to 4 i.e. 2.Fakrul Islam Barbhuiya, 3. Aftarun Nessa Barbhuiya, 4. Ranjana Begum Barbhuiya and 5. Makabbir Ali Barbhuiya @ Sona Mia had already undergone imprisonment for more than one year, we set at liberty the said accused/ appellants forthwith. As regards accused appellant No.1 Amrul Islam Barbhuiya , we convict him as indicated above under Section 304 Part-II of the IPC. 14. Accordingly we sentence the appellant No.1 Amrul Islam Barbhuiya to rigorous imprisonment for a period of 6 years and retain the fine of Rs.15,000/- imposed by the learned Additional Sessions Judge in default, a further rigorous imprisonment for a period of 3 months. The period of imprisonment undergone by the accused/appellant No.1 during the investigation or otherwise be set off accordingly. 15. The criminal appeal stands partly allowed to the extent indicated above. 16. A copy of the Judgment shall also be sent to the Superintendent of the concerned jail.