JUDGMENT : Mir Alfaz Ali, J. Heard learned counsel Mr. B.M. Choudhury for the appellant in Cri. Appeal No. 277/2016 and learned amicus curiae Ms. B. Sarma for the appellant in Cri. A. (J) 113/2016 as well as Ms. S. Jahan, learned Addl. P.P. for the State of Assam. 2. Both these appeals having arisen out of the judgment and order dated 28.09.2016 passed by the learned Additional Sessions Judge, Golaghat in Sessions Case No. 19/2012, we propose to decide both the appeals by this common judgment and order. 3. An FIR (Ext.3) was lodged on 20.01.2006 by Sukhdev Bauri (PW-3) alleging therein, that the FIR named accused persons, namely, Rina Mahili, Chunu Bora, Jadu Borah, Moina Bora, Bharti Bauri, Petua Borah accompanied by some other persons trespassed into the house of the informant, assaulted the members of his family and took them to the Namghar. The informant, his two sons Mintu and Bhaya and his wife Arati were fastened with the rope at the Namghar and they were assaulted and inflicted injuries. Bhaya was taken to Golaghat Civil Hospital for treatment in serious condition. 4. Based on the said FIR, police registered Borpathar P.S. Case No. 12/2006 under Section 143/147/448/325, IPC. Later on, Bhaya succumbed to the injuries and as such, Section 302, IPC was added and on completion of the investigation, charge sheet (Ext.2) was laid against all the eight FIR named accused persons. The present appellants stood convicted under Section 448/323/302, IPC R/W Section 149/147, IPC by the learned Sessions Judge and following sentences were awarded to the appellants. "............Accordingly the accused persons namely Smt. Rina Mahili and Sri Moina Bora are ordered to suffer simple imprisonment of 3 (three) months for sections 448/149 of the IPC. Simple imprisonment of 3(three) months for section 323/149, Rigorous imprisonment for life and to pay a fine of Rs. 5000/- (Rupees five thousand) i/d S/I. for 2 (two) months for section 302/149 of the IPC and simple imprisonment of 6(six) months for the section 147 of the IPC each ............." 5. Pw-2 Arati Bowri deposed that public called her to Namghar suspecting her to be a witch. Initially, Baba and Rina Mahili came along with some women. According to her Baba assaulted her son Mintu (PW-9). Pw-2 Arati Bowri deposed that public called her to Namghar suspecting her to be a witch. Initially, Baba and Rina Mahili came along with some women. According to her Baba assaulted her son Mintu (PW-9). One Bhaba Karmakar informed the boys who were playing cricket that Mintu assaulted Baba, whereupon, the boys, who were playing cricket came there and Moina Bora assaulted Mintu with cricket bat. She further stated that that her son Bhaya (deceased) was also chased and assaulted. She then went to call the villagers and on her return, she found that Mintu and Bhaya were kept fastened with the post in the Namghar. She further stated that Rina Mahili removed her cloths and thereafter Guna and Rina rubbed "Sorot" leaves (an irritating herbal substance) over her body and also poured water. Rina Mahili also cut her hair. At that point of time, Shiba came and let all of them free. She further stated that her husband was also assaulted. After the occurrence, Bhaya was given primary treatment and on the next day, he was shifted to Golaghat Civil Hospital, where he succumbed to the injuries. In cross-examination she stated, that there were 4000 villagers and almost all the villagers turned up to the Namghar and seeing them, she became unconscious. She also stated during cross-examination, that she did not know as to who beat her son. 6. Pw-3, the informant and the husband of the PW-2 deposed, that when he, his second son Mintu and his wife all were at home, some Bhaba called them to Namghar by sending a notice. He also stated that the accused persons assaulted Bhaya with lathi. In cross-examination, he stated that he sustained injuries at home itself when lot of people came to their house. However, during cross-examination, he admitted to have not stated before police, that he was assaulted at his house. He further admitted in his cross-examination, that he did not see the incident and as such did not know as to who committed the offence. 7. Pw-9, Mintu pleaded ignorance as to how the death of Bhaya was caused. The PW-5 also pleaded ignorance about the occurrence. PW-7 & PW-8 came later on and according to them, they also did not see the occurrence. PW-4 was declared hostile. However, we do not find anything in his evidence, which could be of any help to the prosecution. 8. The PW-5 also pleaded ignorance about the occurrence. PW-7 & PW-8 came later on and according to them, they also did not see the occurrence. PW-4 was declared hostile. However, we do not find anything in his evidence, which could be of any help to the prosecution. 8. Pw-1, Dr. Rupak Bora, who conducted the post-mortem examination on the body of the victim found the following injury. "Swelling of 2 x 2 cm over frontal area of scalp. On section, one haematoma seen, size - 2 x 2 cm. in between scalp and the bone. On dissection of the skull, members is bound to be congested over frontal region with one intracranial blood clot of 2 x 2 cm size. Other organs are found healthy." In the opinion of the doctor, the death was caused due to shock and haemorrhage as a result of head injury sustained by the deceased. 9. Basing on the above evidence, learned trial court convicted the present appellants under Section 302/323/147/148, IPC with the aid of Section 149, IPC. However, acquitted the rest of the co-accused persons with the observation, that their involvement was not proved. 10. When the involvement of the other co-accused persons was ruled out and conviction was recorded on the basis of the individual act of the accused/appellants, there was no scope for invoking the provision of Section 149, IPC, inasmuch as, in order to convict an accused on the basis of constrictive liability invoking the provision of Section 149, IPC, prosecution needs to prove, that there was an unlawful assembly as defined in Section 141, IPC. When the involvement of other accused was ruled out, there could not be any unlawful assembly by two persons. We also noticed that the learned trial court did not record any finding as to the object of the unlawful assembly, which is a sina-qua-non for convicting a person with the aid of Section 149, IPC. The evidence of the PW-2 was, that Baba assaulted his son Mintu, whereas, Bhaba Karmakar informed the boys who were playing cricket, in the neighbourhood, that Mintu assaulted Baba, whereupon the boys who were playing cricket came to her home and Moina assaulted Mintu with the cricket bat. She did not state anything against the other boys. PW-9 Mintu also did not support the PW-2. She did not state anything against the other boys. PW-9 Mintu also did not support the PW-2. In view of the above evidence, learned trial court exonerated the other accused persons and rightly so. Therefore, having regard to the above evidence and also the finding of the learned trial court, we are of the view, that there was no reason for invoking the provision of Section 149, IPC, inasmuch as, the evidence to prove the formation of unlawful assembly was totally absent. When there was no material to invoke the provision of Section 149, IPC, each of the perpetrators ought to have been held liable on the basis of their individual act. 11. Pw-2, though stated in his evidence, that on being informed by one Bhaba Karmakar, the boys, who were playing cricket came there and Moina who was amongst them assaulted PW-9, Mintu, such evidence of PW-2 has not corroborated by PW-9 himself as he never stated that he was assaulted by Moina. Though, PW-2 stated that the victim Bhaya was also chased and assaulted, she did not tell anything, as to who chased or assaulted Bhaya. What we have noticed in the evidence of the PW-2 is that she tried to project more or less two different incidents, one at her residence and the other at the Namghar. The oral testimony of the PW-2 that Mintu was assaulted by Moina at her residence was hardly worthy of inspiring confidence, inasmuch as, Mintu himself did not support such evidence. So far as assault on Bhaya (victim) is concerned, there was no evidence as to who assaulted him. Though the victim sustained an injury on his head purportedly by blunt substance as per medical evidence and later on he died in course of treatment, the fact as to who caused such injury or how the injury was caused remained in mystery. 12. The second episode of the incident as deposed by PW-2 was that all the members of their family were fastened at the Namghar, but she did not say as to who fastened them. Admittedly about 400 people gathered at the Namghar. She further stated that the appellant Rina Mahili and Guna Bora along with others rubbed Sorot leaves on her body and poured water to aggravate the effect of such rubbing. She further stated that Rina Mahili also cut her hair. Admittedly about 400 people gathered at the Namghar. She further stated that the appellant Rina Mahili and Guna Bora along with others rubbed Sorot leaves on her body and poured water to aggravate the effect of such rubbing. She further stated that Rina Mahili also cut her hair. In the meantime, Shiba came and let all of them free and they went home. 13. What we find from the above evidence is that the oral testimony of PW-2 against Rina Mahili to the effect, that she rubbed Sorot leaves, poured water and cut her hair of PW-2 remains uncontroverted. Such evidence, in our considered view, constitute an offence of causing hurt voluntarily, for which, the appellant Rina Mahili shall be liable for commission of an offence under Section 323, IPC. 14. No doubt, a young boy had to meet with an unexpected death, but we find no evidence on record to connect the present appellants with the cause of death of Bhaya alias Birbal. However, the evidence brought on record, in our considered view, as indicated above establishes only the charge under Section 323, IPC against appellant Rina Mahili and therefore, we retain the conviction and sentence of the appellant Rina Mahili. So far the appellant Moina is concerned he is acquitted of all the charges. Rina Mahili also stands acquitted of all other charges except under Section 323, IPC as indicated above. 15. It is submitted at the bar and also appears from the record, that the appellant Rina Mahili has already completed the three months term of sentence under Section 323, IPC imposed by the learned trial court, inasmuch as, she has been in jail for more than two years. Therefore, we direct that both the appellants be released forthwith, if not required in any other case. 16. Criminal Appeal No. 277/2016 stands allowed and Criminal Appeal (J) 113/2016 stands partly allowed to the extent as indicated above. 17. Appreciating the assistance rendered by Ms. B. Sarma, learned Amicus Curiae, it is directed that she be paid Rs. 7500/- for the assistance rendered by her in Criminal Appeal (J) 113/2016, on furnishing of a copy of this judgment. 18. Send down the LCR.