JUDGMENT : S. Serto, J. This is a criminal appeal directed against the judgment & order dated 03.08.2015, passed by the learned Addl. Session Judge (FTC), Nagaon in Session's Case No. 287(N)/2003, wherein the accused persons except one of them were acquitted of the charges under section 148/149/323/302 IPC. The appellant is the wife of the victim/deceased. 2. Heard Mr. M.U. Mondal, learned counsel for the appellant. Also heard Ms. B.Bhuyan, learned Addl. P.P on behalf of the State of Assam and Mr. D.K. Medhi, learned counsel for respondents No.2 to 8. 3. The facts which led to the filing of this appeal are as follows; On 28.11.2000, at 2:00 P.M, one Md. Mamit Ali, lodged an ejahar to the Officer-in Charge of Rupohihat Police Station, stating that at about 1:00 P.M. of that day, Md. Sukur Ali, Md. Sorhab Ali, Ali Akbar, Abdul Hekim, Abdul Mannaf, Idris Ali, Nur Islam, Nurul Hoque and Saidur Islam, having previous grudge, assaulted his uncles namely, Md. Samir Ali, Jamir Ali, Mafiz Ali and Siddique Ali, on PWD road in front of his house causing thereby grievous injuries, therefore, investigation may be conducted and necessary action may also be taken. On received of the same, FIR Case No. 98/2000, under section 147/148/325 of IPC, was registered against the persons named by the complainant. Later in the day, one of the persons who was stated to have been assaulted by the accused persons namely, Samir Ali died due to the injuries suffered as such, after the investigation was over, charge sheet was submitted under section 147/148/149/323/302 IPC, in the Court of the learned CJM, Nagaon. Since, the case was triable by the Sessions Court, the learned CJM committed the same to the Court of the learned Sessions Judge, Nagaon. The learned Sessions Judge, made over the same to the learned Addl. Sessions Judge (FTC), Nagaon for trial. After all the formalities were completed, the learned Addl. Sessions Judge, (FTC), Nagaon framed the following charges against the accused persons; "(1) Name of the office of Magistrate etc. I (i) Sri. M.N. Laskar, Addl. Dist. The learned Sessions Judge, made over the same to the learned Addl. Sessions Judge (FTC), Nagaon for trial. After all the formalities were completed, the learned Addl. Sessions Judge, (FTC), Nagaon framed the following charges against the accused persons; "(1) Name of the office of Magistrate etc. I (i) Sri. M.N. Laskar, Addl. Dist. & Session Judge, (Adhoc) Nagaon, Assam (2) Name of the accused person hereby charge you as follows; (i) Sukur Ali (2) Surhab Ali (3) Ali Akbar (4) Abdul Hakim (5) Abdul Mannab (6) Idrish Ali (7) Nurul Islam (8) Noor Mahmood (9) Saidur Islam First: - That you, on or about the on 28.11.2000 at about 1 P.M. at Public road at Lawgaon you committed rioting by deadly weapon (3) : My cognizance or the cognizance of the Court of Session; and hereby committed an offence punishable under 148 IPC of section the Indian Penal Code, and withins my cognizance. Secondly:- That you, on or about the same day, time and place you voluntarily caused hurt to Samir Ali in furtherance of common object of all. and thereby committed an office punishable under 323/149 of IPC section the Indian Penal Code, and withins my cognizance Thirdly;- That you, on or about the same day and time you caused hurt to Samir Ali who died after 2 days and you caused hurt intentionally for causing death and did murder for furtherance of common object of all. (4) In cases tried by Magistrate omit "by the said Court"; and thereby committed an offence punishable under 302/149 IPC section the Indian Penal Code, and withins my cognizance. and hereby direct that you be trieds by this Court on the said Charge. Charge is framed, read over and explained to them to which they pleaded not guilty and claimed to be tried. Dated this 5th day of 19th Nov'2003 Magistrate." 4. In the impugned judgment, the learned Addl. Sessions Judge (FTC), Nagaon framed three points for determination. They are as follows (reproduced verbatim); "Now points for determination are as follows; (i) Whether the accused persons were being the members of an unlawful assembly committed offence of rioting with deadly weapon in prosecution of the common object of such unlawful assembly? (ii) Whether the accused persons were being the members of an unlawful assembly voluntarily caused hurt to Samir Ali in prosecution of the common object of such unlawful assembly? (ii) Whether the accused persons were being the members of an unlawful assembly voluntarily caused hurt to Samir Ali in prosecution of the common object of such unlawful assembly? (iii) Whether the accused persons being the members of an unlawful assembly committed murder by intentionally causing death of Samir Ali in prosecution of the common object of such unlawful assembly? 5. After having discussed the evidence given by the 12 PWs and 3 DWs the learned Addl. Sessions Judge came to the conclusion that the evidence given by the PW No.1 and PW No.2 and the DW No. 1, DW No.2 and DW No. 3 proved that it was late Sukar Ali alone who assaulted the deceased Samir Ali, but regarding the other accused the evidence given by the PW No.1 and PW No. 2 is not corroborated by the evidence given by the other PWs and DWs. Therefore, the charge against them is not proved. Against the above stated findings and conclusion the appellant has raised as many as 15 grounds in the appeal, however, they can be summed up as follows; (i) That the learned trial court failed to appreciate the evidence given by the PW No.1 and PW No. 2 which are also corroborated both by circumstantial evidence and the evidence given by the other witnesses, therefore, the impugned judgment is bad in law and is liable to be quashed and set aside. (ii) That the evidence of DWs corroborated the evidence given by the prosecution witnesses, as such, it is quite clear that the husband of the appellant was murdered by the accused persons because of their personal grudge against him. Therefore, the impugned judgment, deserves to be quashed and set aside and hold all the accused persons guilty of the offences charged against them. (iii) That after the impugned judgment was passed, the appellant and her family members have been under constant threat from the accused persons, but the appellant being the wife of the deceased/victim has been compelled to file the appeal to bring justice on the accused persons. All these circumstances reveals that the accused persons are feeling guilty of the offence charged against them. (iv) That there is no contradiction between the evidence given by the PWs and DWs but the learned trial court failed to appreciate the same. All these circumstances reveals that the accused persons are feeling guilty of the offence charged against them. (iv) That there is no contradiction between the evidence given by the PWs and DWs but the learned trial court failed to appreciate the same. (v) That out of 12 PWs, 9 of them were of independent witnesses and they all had deposed against the accused persons, as such, the learned trial court should have convicted them of the charges against them. Having failed to do so, he has committed error in law. Therefore, the impugned judgment deserves to be quashed and set aside. 6. Mr. M.U. Mondal, learned counsel appearing for the appellant submitted that when direct evidence of eye witnesses on the occurrence of a crime is available little discrepancies or inconsistencies here and there in the evidence of the witnesses, like, as to who held what weapon and who did what will not make any difference. The learned counsel further submitted that in the present case, the PW No.1 clearly stated that the accused persons assaulted his uncle Samir Ali (the deceased) with lathi and caused injuries over his head, and in fact, he narrated the sequence of the event by stating that the accused Sukur Ali assaulted his uncle first and it was followed by Sorhab Ali and thereafter, the other accused, and this evidence of the PW is supported by the evidence report given by the Doctor who conducted the post mortem on the death body of Samir Ali who stated that there were multiple injuries on the head of the deceased which caused his dead. As such, there is no reason to doubt that the accused persons had committed the offence charged against them. Hence, it is quite clear that the learned trial court had committed gross error while appreciating the evidence and that has led him to arrived at the wrong conclusion which would result in miscarriage of justice unless it is quashed and set aside or rectified. The learned counsel, submitted also that in such a case, the appellate court has ample power and jurisdiction to review the evidence on record and the conclusion drawn, as per the relevant law. The learned counsel in support of his submission cited the judgment of the Hon'ble Supreme Court passed in the case of Suraj Singh Vrs- State of U.P, (2008) 16 SCC 686 . The learned counsel in support of his submission cited the judgment of the Hon'ble Supreme Court passed in the case of Suraj Singh Vrs- State of U.P, (2008) 16 SCC 686 . The paragraphs on which the learned counsel heavily relied upon are paras-10 (sub paras- 12, 16, 20, 27, 34, 35, 36, 37, 42), 11, 13, 14.20 & 21 and 17. Only the relevant portions of the paragraphs are reproduced here below; "10. 12. In view of rival submissions of the parties, we think it proper to consider and clarify the legal position first. Chapter XXIX (Sections 372-394) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the present Code") deals with appeals. Section 372 expressly declares that no appeal shall lie from any judgment or order of a criminal court except as provided by the Code or by any other law for the time being in force. Section 373 provides for filing of appeals in certain cases. Section 374 allows appeals from convictions. Section 375 bars appeals in cases where the accused pleads guilty. Likewise, no appeal is maintainable in petty cases (Section 376). Section 377 permits appeals by the State for enhancement of sentence. Section 378 confers power on the State to present an appeal to the High Court from an order of acquittal. The said section is material and may be quoted in extenso: '378. Appeal in case of acquittal.--(1) Save as otherwise provided in sub-section (2) and subject to the provisions of sub-sections (3) and (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any court other than a High Court, or an order of acquittal passed by the Court of Session in revision. (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal, subject to the provisions of sub-section (3), to the High Court from the order of acquittal. (3) No appeal under sub-section (1) or sub- section (2) shall be entertained except with the leave of the High Court. (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. (5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal. (6) If, in any case, the application under sub- section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub- section (1) or under sub-section (2). ............................................................................ 16. It cannot, however, be forgotten that in case of acquittal, there is a double presumption in favor of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless he is proved to be guilty by a competent court of law. Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the trial court. ............................................................................. 20. The Committee, however, cautioned appellate courts and stated: (IA p.404) "But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favor of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice." ............................................................................. 27. In Atley Vs. State of U.P, (1955) AIR SC 807 this Court said: '5...........In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417, Criminal Procedure Code came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order. It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well-established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanor of witnesses whose evidence have been recorded in its presence. It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal. If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated." ............................................................................ 34. Putting emphasis on balance between importance of individual liberty and evil of acquitting guilty persons, this Court observed as follows: '6. Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defense and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defense and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs thro' the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then breakdown and lose credibility with the community. The evil of acquitting a guilty person light-heartedly, as a learned author (Glanville Williams in Proof of Guilt) has saliently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted 'persons' and more severe punishment of those who are found guilty. Thus, too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that 'a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent....' In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents." ...................................................................................... 35. In K. Gopal Reddy v. State of A.P, (1979) 1 SCC 355 , the Court was considering the power of the High Court against an order of acquittal under Section 378 of the present Code. After considering the relevant decisions on the point it was stated as follows:- '9. The principles are now well settled. 35. In K. Gopal Reddy v. State of A.P, (1979) 1 SCC 355 , the Court was considering the power of the High Court against an order of acquittal under Section 378 of the present Code. After considering the relevant decisions on the point it was stated as follows:- '9. The principles are now well settled. At one time it was thought that an order of acquittal could be set aside for 'substantial and compelling reasons' only and courts used to launch on a search to discover those 'substantial and compelling reasons'. However, the 'formulae' of 'substantial and compelling reasons', 'good and sufficiently cogent reasons' and 'strong reasons' and the search for them were abandoned as a result of the pronouncement of this Court in Sanwat Singh v. State of Rajasthan, 1961 3 SCR. In Sanwat Singh case this Court harked back to the principles enunciated by the Privy Council in Sheo Swarup v. R. Emperor and reaffirmed those principles. After Sanwat Singh v. State of Rajasthan this Court has consistently recognized the right of the appellate court to review the entire evidence and to come to its own conclusion bearing in mind the considerations mentioned by the Privy Council in Sheo Swarup case. Occasionally phrases like 'manifestly illegal', 'grossly unjust', have been used to describe the orders of acquittal which warrant interference. But, such expressions have been used more as flourishes of language, to emphasis the reluctance of the appellate court to interfere with an order of acquittal than to curtail the power of the appellate court to review the entire evidence and to come to its own conclusion. In some cases (Ramaphupala Reddy v. State of A.P, (1971) AIR SC 460) Bhim Singh Rup Singh v. State of Maharashtra, it has been said that to the principles laid down in Sanwat Singh case may be added the further principle that 'if two reasonable conclusions can be reached on the basis of the evidence on record, the appellate court should not disturb the finding of the trial court'. This, of course, is not a new principle. It stems out of the fundamental principle of our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt. If two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. This, of course, is not a new principle. It stems out of the fundamental principle of our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt. If two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. But, fanciful and remote possibilities must be left out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favor of the accused must be as nearly reasonably probable as that against him. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt. It is, therefore, essential that any view of the evidence in favor of the accused must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable." (Emphasis supplied). 36. In Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225 , this Court said: "7.........While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then-and then only reappraise the evidence to arrive at its own conclusions." 37. In Allarakha K. Mansuri v. State of Gujarat, (2002) 3 SCC 57 , referring to earlier decisions, the Court stated: '7. The paramount consideration of the court should be to avoid miscarriage of justice. A miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view based upon conjectures and hypothesis and not on the legal evidence, a duty is cast upon the High Court to reappreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether the accused has committed any offence or not. In a case where the trial court has taken a view based upon conjectures and hypothesis and not on the legal evidence, a duty is cast upon the High Court to reappreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether the accused has committed any offence or not. Probable view taken by the trial court which may not be disturbed in the appeal is such a view which is based upon legal and admissible evidence. Only because the accused has been acquitted by the trial court, cannot be made a basis to urge that the High Court under all circumstances should not disturb such a finding." .............................................................................. 42. From the above decisions, in Chandrappa and Others. v. State of Karnataka, (2007) 4 SCC 415 , the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal were culled out: (1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favor of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. 11. "22. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to "proof" is an exercise particular to each case. Referring to the interdependence of evidence and the confirmation of one piece of evidence by another, a learned author says [see "The Mathematics of Proof II": Glanville Williams, Criminal Law Review, 1979, by Sweet and Maxwell, p.340 (342)]: "The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A junior may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than innocent people who make confessions, and guilty rather than innocent people who run away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other." 23. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. 24. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the Judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice. This position was illuminatingly stated by Venkatachaliah, J. (as His Lordship then was) in State of U.P. v. Krishna Gopal. 13. So far as discrepancy between ocular evidence and medical evidence is concerned, this Court in Kamaljit Singh v. State of Punjab, (2003) 12 SCC 155 observed as under: "8. It is trite law that minor variations between medical evidence and ocular evidence do not take away the primacy of the latter. Unless medical evidence in its term goes so far as to completely rule out all possibilities whatsoever of injuries taking place in the manner stated by the eyewitnesses, the testimony of the eyewitnesses cannot be thrown out. (See Solanki Chimanbhai Ukabhai v. State of Gujarat, (1983) 2 SCC 174 . The position was illuminatingly and exhaustively reiterated in State of U.P. v. Krishna Gopal, (1988) 4 SCC 302 ). When the acquittal by the trial court was found to be on the basis of unwarranted assumptions and manifestly erroneous appreciation of evidence by ignoring valuable and credible evidence resulting in serious and substantial miscarriage of justice, the High Court cannot in this case be found fault with for its well-merited interference. 14. "20. When the acquittal by the trial court was found to be on the basis of unwarranted assumptions and manifestly erroneous appreciation of evidence by ignoring valuable and credible evidence resulting in serious and substantial miscarriage of justice, the High Court cannot in this case be found fault with for its well-merited interference. 14. "20. Coming to the plea that the medical evidence is at variance with ocular evidence, it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which had to be tested independently and not treated as the "variable" keeping the medical evidence as the "constant". 21. It is trite that where the eyewitnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bentham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eyewitnesses' account would require a careful independent assessment and evaluation for its credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the "credit" of the witnesses; their performance in the witness box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. 17. In State of U.P. v. Suhar Singh, (1987) AIR SC 191 it was observed that when there is direct evidence of eye witness available the inconsistency relating to distance from which the gunshots were fired is of no consequence when the prosecution evidence pertaining to assault by guns and pistol substantially tallied with the medical evidence. The present case belongs to that category." 7. Further, the learned counsel for the appellant also submitted that just because some of the P.Ws happens to be relatives of the victim it those not mean that their evidence cannot be relied upon. In support of the learned counsel cited the judgment of the Hon'ble Supreme Court passed in the case of Khurshid Ahmed Vs.- State of Jammu & Kashmir, (2018) 7 SCC 429 . In support of the learned counsel cited the judgment of the Hon'ble Supreme Court passed in the case of Khurshid Ahmed Vs.- State of Jammu & Kashmir, (2018) 7 SCC 429 . The relevant paragraphs relied upon by the learned counsel are paras-31, 32, 33, 35, 37, & 38. The contents of the paragraphs are reproduced here below; "31. There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the witnesses had reason to shield actual culprit and falsely implicate the accused [See : Harbans Kaur & Anr. v. State of Haryana, (2005) 0 CriLJ 2199. 32. If the evidence of an eyewitness, though a close relative of the victim, inspires confidence, it must be relied upon without seeking corroboration with minute material particulars. It is no doubt true that the Courts must be cautious while considering the evidence of interested witnesses. In his evidence, the description of the incident by PW9 clearly portrays the way in which the accused attacked the deceased causing fatal head injury as propounded by the prosecution. The testimony of the father of deceased (PW9) must be appreciated in the background of the entire case. 33. In our opinion, the testimony of PW9 inspires confidence, and the chain of events and the circumstantial evidence thereof completely supports his statements which in turn strengthens the prosecution case with no manner of doubt. We have no hesitation to believe that PW9 is a 'natural' witness to the incident. On a careful scrutiny, we find his evidence to be intrinsically reliable and wholly trustworthy. 35. When analyzing the evidence available on record, Court should not adopt hyper technical approach but should look at the broader probabilities of the case. Basing on the minor contradictions, the Court should not reject the evidence in its entirety. Sometimes, even in the evidence of truthful witness, there may appear certain contradictions basing on their capacity to remember and reproduce the minute details. Particularly in the criminal cases, from the date of incident till the day they give evidence in the Court, there may be gap of years. Hence the Courts have to take all these aspects into consideration and weigh the evidence. Particularly in the criminal cases, from the date of incident till the day they give evidence in the Court, there may be gap of years. Hence the Courts have to take all these aspects into consideration and weigh the evidence. The discrepancies and contradictions which do not go to the root of the matter, credence shall not be given to them. In any event, the paramount consideration of the Court must be to do substantial justice. We feel that the trial Court 37. The power of the appellate Court in an appeal against acquittal is the same as that of an appeal against conviction. But, in an appeal against acquittal, the Court has to bear in mind that the presumption of innocence is in favor of the accused and it is strengthened by the order of acquittal. At the same time, appellate Court will not interfere with the order of acquittal mainly because two views are possible, but only when the High Court feels that the appreciation of evidence is based on erroneous considerations and when there is manifest illegality in the conclusion arrived at by the trial Court. In the present case, there was manifest irregularity in the appreciation of evidence by the trial Court. The High Court based on sound principles of criminal jurisprudence, has interfered with the judgment of acquittal passed by the trial Court and convicted the accused as the prosecution was successful in proving the guilt of the accused beyond reasonable doubt. 38. In view of the foregoing discussion and a conspectus of all the material would pave way to conclude that the prosecution has proved the case beyond reasonable doubt and the appeal preferred by the accused is bereft of any substance and accordingly dismissed". 8. The learned counsel for the appellant further submitted that no compensation has been paid to the victim's family, either by the accused or the Government. Therefore, appropriate direction may be given so that adequate compensation may be given to the family member of the victim. The learned counsel in support of his submission cited the judgment of the Hon'ble Supreme Court passed in the case of Suresh & Another vrs State of Haryana, (2015) 2 SCC 227 . The relevant paragraphs relied upon are paras-13, 16, 17, 18 & 19. The contents of the paragraphs are reproduced here below; "13. The learned counsel in support of his submission cited the judgment of the Hon'ble Supreme Court passed in the case of Suresh & Another vrs State of Haryana, (2015) 2 SCC 227 . The relevant paragraphs relied upon are paras-13, 16, 17, 18 & 19. The contents of the paragraphs are reproduced here below; "13. It would now be appropriate to deal with the issue. The provision has been incorporated in the Cr.P.C. vide Act V of 2009 and the amendment duly came into force in view of the Notification dated 31st December, 2009. The object and purpose of the provision is to enable the Court to direct the State to pay compensation to the victim where the compensation under Section 357 was not adequate or where the case ended in acquittal or discharge and the victim was required to be rehabilitated. The provision was incorporated on the recommendation of 154th Report of Law Commission. It recognizes compensation as one of the methods of protection of victims. The provision has received the attention of this Court in several decisions including Ankush Shivaji Gaikwad vs. State of Maharashtra, In Re: Indian Woman says gang-raped on orders of Village Court published in Business and Financial News, Mohommad Haroon vs. Union of India. 15. We are informed that 25 out of 29 State Governments have notified victim compensation schemes. The schemes specify maximum limit of compensation and subject to maximum limit, the discretion to decide the quantum has been left with the State/District legal authorities. It has been brought to our notice that even though almost a period of five years has expired since the enactment of Section 357A, the award of compensation has not become a rule and interim compensation, which is very important, is not being granted by the Courts. It has also been pointed out that the upper limit of compensation fixed by some of the States is arbitrarily low and is not in keeping with the object of the legislation. 16. We are of the view that it is the duty of the Courts, on taking cognizance of a criminal offence, to ascertain whether there is tangible material to show commission of crime, whether the victim is identifiable and whether the victim of crime needs immediate financial relief. 16. We are of the view that it is the duty of the Courts, on taking cognizance of a criminal offence, to ascertain whether there is tangible material to show commission of crime, whether the victim is identifiable and whether the victim of crime needs immediate financial relief. On being satisfied on an application or on its own motion, the Court ought to direct grant of interim compensation, subject to final compensation being determined later. Such duty continues at every stage of a criminal case where compensation ought to be given and has not been given, irrespective of the application by the victim. At the stage of final hearing it is obligatory on the part of the Court to advert to the provision and record a finding whether a case for grant of compensation has been made out and, if so, who is entitled to compensation and how much. Award of such compensation can be interim. Gravity of offence and need of victim are some of the guiding factors to be kept in mind, apart from such other factors as may be found relevant in the facts and circumstances of an individual case. 17. We are also of the view that there is need to consider upward revision in the scale for compensation and pending such consideration to adopt the scale notified by the State of Kerala in its scheme, unless the scale awarded by any other State or Union Territory is higher. The States of Andhra Pradesh, Madhya Pradesh, Meghalaya and Telangana are directed to notify their schemes within one month from receipt of a copy of this order. 18. We also direct that a copy of this judgment be forwarded to National Judicial Academy so that all judicial officers in the country can be imparted requisite training to make all provisions operative and meaningful. 19. In the present case, the impugned judgment shows that the de facto complainant, PW-2 Raman Anand, filed Criminal Revision No.1477 of 2004 for compensation to the family members of deceased Devender Chopra and his son Abhishek Chopra. The same has been dismissed by the High Court without any reason. In fact even without such petition, the High Court ought to have awarded compensation. There is no reason as to why the victim family should not be awarded compensation under Section 357-A by the State. The same has been dismissed by the High Court without any reason. In fact even without such petition, the High Court ought to have awarded compensation. There is no reason as to why the victim family should not be awarded compensation under Section 357-A by the State. Thus, we are of the view that the State of Haryana is liable to pay compensation to the family of the deceased. We determine the interim compensation payable for the two deaths to be rupees ten lacs, without prejudice to any other rights or remedies of the victim family in any other proceedings. 9. The learned counsel for the respondents/accused, submitted that the learned trial court, by taking into consideration the entire evidence on record, had rightly come to the finding that it was Sukur Ali (one of the accused) alone who assaulted the deceased/victim, therefore, interference of this Court on the impugned judgment is not called for. Elaborating his submission, the learned counsel submitted that the evidence of the PW No.1 and PW No. 2, and the evidence of the DWs clearly shows that it was only Sukur Ali who assaulted the deceased/victim. and that the evidence of PW No.1 that he saw Sukur Ali first assaulting the victim/deceased and it was followed by Sorhab Ali and thereafter the other accused persons is not supported or corroborated by the evidence given by other witnesses. Therefore, the learned trial court was justified in having acquitted the accused persons. Keeping this in view, this court, ordinarily ought not to interfere in the findings and conclusions drawn by trial court. In support of his submission, the learned counsel cited the judgment of the Hon'ble Supreme Court in the case of Sunil Kumar Sambhudayal Gupta (Dr.) & Other vrs State of Maharashtra, (2010) 13 SCC 657 . The relevant paragraph referred to by the learned counsel are paras-38 & 39 of the judgment. The contents of the two paragraphs are reproduced here below; "38. It is a well-established principle of law, consistently re-iterated and followed by this Court that while dealing with a judgment of acquittal, an appellate court must consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. It is a well-established principle of law, consistently re-iterated and followed by this Court that while dealing with a judgment of acquittal, an appellate court must consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. Even though the appellate court is entitled to consider, whether in arriving at a finding of fact, the trial Court had placed the burden of proof incorrectly or failed to take into consideration any admissible evidence and/or had taken into consideration evidence brought on record contrary to law; the appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. The trial court which has the benefit of watching the demeanor of the witnesses is the best judge of the credibility of the witnesses. 39. Every accused is presumed to be innocent unless his guilt is proved. The presumption of innocence is a human right. Subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence in India. The nature of the offence, its seriousness and gravity has to be taken into consideration. The appellate court should bear in mind the presumption of innocence of the accused, and further, that the trial court's acquittal bolsters the presumption of his innocence. Interference with the decision of the Trial Court in a casual or cavalier manner where the other view is possible should be avoided, unless there are good reasons for such interference". 10. The learned Addl. P.P, Ms. B.Bhuyan submitted that evidence given by the PW No. 1 and PW No. 2 are sufficient proof of the charges against the accused persons, therefore, there is no need of looking for any corroboration. The learned Addl. P.P, also went on and submitted that the two witnesses are eye witnesses to the incident and there is no evidence contradicting their evidence, therefore, the evidence given by them are reliable and are sufficient to hold the accused persons guilty of having committed the offences charged against them. The ld. Addl. The learned Addl. P.P, also went on and submitted that the two witnesses are eye witnesses to the incident and there is no evidence contradicting their evidence, therefore, the evidence given by them are reliable and are sufficient to hold the accused persons guilty of having committed the offences charged against them. The ld. Addl. PP also submitted that in fact, the evidence given by the DWs supported the evidence given by the two eye witnesses, therefore, it can safely by concluded that the accused persons had committed the offences charged against them. 11. The charges framed against the accused persons are of the offences punishable under section 148/323/302/147 of IPC. Section 148 of IPC provides punishment for offence of rioting being armed with deadly weapon. The section reads as follows; "148. Rioting, armed with deadly weapon.- Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both". Rioting is defined under section 146 of IPC. The section reads as follows; "146. Rioting.-Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting". Reading together of the two sections makes it clear that the offence of rioting armed with deadly weapon is committed when any member or members of an unlawful assembly being armed with deadly weapon or anything which used as a weapon of offence is likely to cause death used force or violence in prosecution of their common object. The next offence charged against the accused persons is the offence punishable under section 149 of IPC. The section reads as follows; "149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.-If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence". The words of this section make it clear that every member of unlawful assembly shall be guilty of any offence committed by any member of unlawful assembly if the same is committed in prosecution of the common object of that assembly or if members of such assembly knew that such offence is likely to be committed in prosecution of their common object. The next offence charge against the accused persons is the offence punishable under section 323 of IPC. The content of the Section 323 of the IPC reads as follows; "323. Punishment for voluntarily causing hurt.-Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both". This section provides the punishment that may be given to a person who voluntarily caused hurt. The offence voluntarily causing hurt is provided in section 321 of IPC. The section reads as follows; "321. Voluntarily causing hurt.-Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt". It is clear from the words of the section, that whoever does any act with the intention of causing hurt to any person or with the knowledge that he is likely to cause hurt to any person and actually caused hurt to that same person he is said to have committed the offence of voluntarily causing hurt. The last offence charge against the accused persons is the offence punishable under section 302 of IPC which provides punishment for the offence described under section 300 of IPC. The contents of the section 300 of IPC are given here below; "300. The last offence charge against the accused persons is the offence punishable under section 302 of IPC which provides punishment for the offence described under section 300 of IPC. The contents of the section 300 of IPC are given here below; "300. Murder.-Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or- (Secondly) -If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or- (Thirdly) -If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or- (Fourthly) -If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Exception 1.- When culpable homicide is not murder.-Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos: First.- That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly.- That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly.- That the provocation is not given by anything done in the lawful exercise of the right of private defence. Exception 2- Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes 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. Exception 3.- Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. Exception 4.- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner." 12. From the facts and circumstances of the case and the charges framed against the accused persons, the issues or the points that would need to be determined are; (i) Whether the accused persons had committed rioting on 28.11.2000 on PWD road at Laogaon, and (ii) Assaulted Samir Ali, Jamir Ali, Mafiz Ali, and Siddique Ali and caused injuries over their bodies which resulted in the death of Samir Ali and thereby committed the offences charged against them. 13. To determine the issues stated above, the facts and circumstances and the evidence available in the record are examined as follows; To begin with ejahar lodged by one, Md. Abdul Hamid Ali to the Officer-in-charge of Rupohihat Police Station is reproduced herein below; "EJAHAR To, The Officer-in-charge Rupohihat Police Station. Sd/- Md. Hamid Ali Ext.1(1) Sd/- Illegible 21.02.2000. Complainant : Md. Abdul Hamid, S/o. Md. Mahar Ali, R/o. Laogaon, Mouza-Khatowal, P.S Rupohihat, Dist- Nagaon (Assam). Accused; (1) Md. Sukur Ali, (2) Md. Sorhab Ali, (3) Ali Akbar- all three sons of Md. Abbas Ali, (4) Abdul Mannaf, (5) Abdul Hekim -both sons of late Sagar Ali, (6) Idris Ali -S/o. Md. Hasmat Ali, (7) Nur Islam, (8) Nurul Hoque, (9) Saidur Islam -all three are sons of Md. Aamjat Ali. All are residents of Laogaon, Mouza-Khatowal, P.S Rupohihat, Dist- Nagaon (Assam). Sir, Humble submission is that at about 1 pm today i.e. on 28.11.2000, the aforementioned accused persons, having previous grudge, assaulted my uncles Md. Samir Ali, Jamir Ali, Mafiz Ali and Siddique Ali on the P.W.D road in front of my house thereby causing them grievous injuries. I, therefore, pray to you to investigate into the matter, take necessary action and oblige. Sd/- Md. Samir Ali, Jamir Ali, Mafiz Ali and Siddique Ali on the P.W.D road in front of my house thereby causing them grievous injuries. I, therefore, pray to you to investigate into the matter, take necessary action and oblige. Sd/- Md. Abdul Hamid Ali. 14. The complainant who lodged the ejahar was examined as PW No.1. In his examination-in-chief, the complainant/PW No.1 stated that the incident occurred at around 1:00 P.M of one day about three years and eight/nine months ago, on the road, in front of their house and he was present at the place of occurrence. The witness further stated that the accused persons Sukur Ali, Surman Ali, Ali Akbar, Abdul Mannan, Abdul Hekim, Idris Ali, Nuru, Nur Islam and Saidur Islam assaulted his uncle Samir Ali with lathis on the road in front of their house and caused injuries on his head. He also stated that the accused Sukur Ali assaulted first and accused Surab followed and thereafter, all the accused persons assaulted the victim. The witness also stated that the injuries sustained by (the deceased) Samir Ali was severe and he fell down, therefore, they took him to Rupai Police Station and lodged an ejahar at the same Police Station. The witness exhibited as Ext. 1 the ejahar and his signature on the same as Ext. 1(1). The witness further stated that from the Police Station, Samir Ali was taken at Ruphahihat Hospital but he was not admitted, instead he was referred to Nagaon Civil Hospital and after being kept there for one day he was taken to Hoiborgaon Nursing Home but there also he was not admitted and he died while he was being brought to Guwahati for treatment. The witness also stated that in the same incident the accused persons also assaulted his uncle Mafiz Ali. Lastly, the witness stated that the deceased Samir Ali also told the Police about the incident and Police examined him. In his cross examination, the witness stated that the ejahar was not written by him and he also admitted that in the ejahar he did not mention as to which of the accused persons assaulted the victim and in what manner. The witness further admitted that he did not mention in the ejahar as to what weapon the accused persons assaulted the victim and the reason why the fighting took place. The witness further admitted that he did not mention in the ejahar as to what weapon the accused persons assaulted the victim and the reason why the fighting took place. The witness further, admitted that he did not mention in the ejahar that he was present at the place of occurrence at the time the incident took place. On a specific question, the witness also admitted that he did not mention in the ejahar that Sukur Ali assaulted the victim and accused Surhab Ali followed and thereafter the other accused persons also assaulted him and after that the victim fell down instantly and was brought to the Rupahihat Police Station. The witness also stated that the Police did not examine him though he has stated in the examination in-chief that he was examined. The witness further stated that his uncles Samir Ali, Jamir Ali, Mafiz Ali and Siddique Ali were all present at the place of occurrence from the beginning of the incident. He also confirmed what he stated in his examination-in-chief that he was present at the place of occurrence. The witness stated also that there was no enmity between his family and the accused persons and they were in visiting terms. The witness denied the suggestion that the accused persons had not assaulted his uncle and he had not seen it. He, however, stated that he had no idea as to why his uncle was assaulted in that manner. He also denied the suggestion that he had not accompanied the victim (the deceased) to the hospital and he had given false evidence. In his further cross examination, he vehemently denied that his statement was recorded by the Police but stated that he was verbally examined. He also denied that he did not state before the Police that he was present at the place of occurrence and that it was Sukur Ali who assaulted Samir Ali (the deceased) first and it was followed by Surhub Ali and the same was also told by the deceased to the Police. 15. Pw No. 2; the witness stated that the complainant is his nephew and Samir Ali (the deceased) was his brother. The witness thereafter, stated that the incident happened around 1:00 P.M. of the first day of 'Ramzaan' month, about four years ago, beside the road near the house of Mohar Ali and Umar Ali at Langaon Village. 15. Pw No. 2; the witness stated that the complainant is his nephew and Samir Ali (the deceased) was his brother. The witness thereafter, stated that the incident happened around 1:00 P.M. of the first day of 'Ramzaan' month, about four years ago, beside the road near the house of Mohar Ali and Umar Ali at Langaon Village. The witness further stated that his house and Samir Ali's house are adjacent to each other and at the time the incident occurred, they heard a sound of commotion from the western side of their enclosed yard. and on hearing the same, he and Samir (the deceased) went out to see what had happened. On reaching the place of occurrence, he saw Sukur Ali, Surab Ali, Hekim Ali, Mannaf Ali, Nuru, Nur Islam, Saidul Islam, Idrish Ali and Ali Akbar, armed with lathis and raising a commotion in front of the houses of Umar Ali and Mahar Ali. Seeing them in such manner, he and the deceased Samir Ali requested them to leave, but instead of paying heed to their request they assaulted Samir Ali causing injury of three inches deep on his head and due to the same he fell down on the ground. He also stated that the accused persons tried to assault him also but he somehow managed to escaped from their lathi blows. He reiterated his statement that he himself saw the accused persons assaulting Samir Ali at that place of occurrence and also stated that Harun Rashid, Bilal Uddin, Siddique Ali, Abdul Hussain, Munnaf Ali and the complainant Abdul Hamid also saw the occurrence of the incident. The witness further stated that the deceased Samir Ali sustained multiple injuries on his head and the accused persons after having caused the injuries went away from the place of occurrence. He also stated that soon thereafter, the injured Samir Ali was brought to Rupahi Police Station and Abdul Hamid lodged an ejahar. and thereafter, the Officer-in-charge of the Police Station sent Samir Ali to Rupahihat Hospital from where he was again taken to Nagaon Civil Hospital. He also stated that soon thereafter, the injured Samir Ali was brought to Rupahi Police Station and Abdul Hamid lodged an ejahar. and thereafter, the Officer-in-charge of the Police Station sent Samir Ali to Rupahihat Hospital from where he was again taken to Nagaon Civil Hospital. The witness stated further that since the injuries on the head of Samir were grievous in nature, he was referred to Gauhati Medical College but while on the way he died at Sonapur.So the dead body was brought back to Rupahi Police Station and from there it was taken to Nagaon Civil Hospital where post-mortem examination was conducted. The witness, then stated that the accused persons assaulted him and Samir Ali(the deceased) without any fault on their part and Samir Ali died as a result of the injuries inflicted on his head. The witness concluded his examination-in-chief by stating that the Police recorded his statement and conducted the investigation at the place of occurrence. In his cross examination, the witness stated as follows; That the road on which the incident occurred runs from Beltol to Rupahi via Langaon and it is a kutcha road, covered with bricks and gravels. The witness further stated that on the south of the road the house of Samir Ali (the deceased) and his house are located and the grocery store of one Abdul Hussain is situated near the place of occurrence. The witness further stated that the houses of Umar Ali, Mohar Ali, Abdul Hussain and Mufiz Ali are also situated near the place of occurrence. The witness then stated that the distance between the place of occurrence and house of Samir Ali (the deceased) is about 50 meters and in between the two places the house of Surab Ali, Amir Hussain, Karim Ali, Atar Munaf, Nur Islam, Nur Muhammad, Abdul Malek, Abdul Khalek, Tayeb Ali, Jahar Uddin, Munia Sheikh, Samar Uddin and Husar Uddin are situated. The witness further stated that there are no big trees but coconut tree and betel nut trees near the place of occurrence. The witness also stated that at the time of occurrence Mir Hussain, Moulabi Jakir Hussain and Shamu Sheikh were also present at the place of occurrence and only about 20 to 25 persons including the accused persons were present, but after the occurrence of the crime lots of people numbering about 200 came to the spot. The witness also stated that at the time of occurrence Mir Hussain, Moulabi Jakir Hussain and Shamu Sheikh were also present at the place of occurrence and only about 20 to 25 persons including the accused persons were present, but after the occurrence of the crime lots of people numbering about 200 came to the spot. The witness reiterated that the accused persons were armed with lathis but admitted that he cannot ascertain with what the lathis were made of. The rest of the statements made in the cross examination were denial of the suggestions made by the learned counsel of the defense on the statements made in the examination-in-chief and the same are reproduced here below; ".......................................................................... It is not a fact that I did not tell Police that hearing commotion to the south of our house, Sameer and I went to the road to see what had happened. It is not a fact that I did not tell Police that going to the place of occurrence we saw nine accused persons, armed with lathis, raising a commotion. It is not a fact that I did not tell Police that when we requested the said nine accused persons to go away from there, they started to assault us. It is not a fact that I did not tell Police that as a result of the assault inflicted on Sameer Ali by those nine accused persons, he (Sameer Ali) fell down on the ground. It is not a fact that I did not tell Police that though the accused persons attempted to assault me, but it did not hit me. It is not a fact that I told the Police that I had fled the scene. It is not a fact that I did not tell the Police that I had myself seen those nine accused persons assaulting Sameer Ali as a result of which he sustained head injury 3" (inches) deep. It is not a fact that I did not tell Police that Harun Rashid, Bilaluddin, Siddique Ali, Mufiz Ali, Abdul Hussain, Hamid and others had seen the occurrence. It is not (sic) a fact that those nine accused persons assaulted Sameer Ali with lathi as a result of which he sustained injury in his head and that he succumbed to those injuries. It is not (sic) a fact that those nine accused persons assaulted Sameer Ali with lathi as a result of which he sustained injury in his head and that he succumbed to those injuries. Prior to the occurrence, we i.e. Sameer Ali and I did not have any dispute with the accused persons. We had cordial relation with the accused persons. I don't know as to why the accused persons had assaulted (Sameer), Mohar Ali, is deceased's elder brother as well as of mine. It is not a fact that without seeing any incident. I have falsely stated that I have seen the occurrence." In his further cross examination, the witness stated as follows; "It is not a fact that I stated before the Police that when I went to save (Sameer), they rushed at me and so I fled from there." 16. Pw No.3; the witness stated that he knew both the informant and the accused persons and the incident occurred at about 1:00 to 1:30 P.M of one day, 4 to 5 years ago. He also stated that when he was proceeding towards Rupahihat Market, after offering 'Namaj', he saw a gathering of about 200 to 300 people and a scuffle happening so he went away. However, he did not know as to who were involved in the scuffle and who had assaulted whom. In his cross examination, he stated that he did not see the fight but later on he came to know that Samir Ali had died. He also stated that he did not notice whether the accused persons, Hamid and Jamir (the complainant/ PW No.2) were present at the place of occurrence or not. 17. Pw No. 4; the witness stated that he knew both the complainant and the accused persons and the incident occurred on 31.03.1999. He also stated that though he did not remember the exact date the incident occurred at their gateway at about 1:30 to 2:00 P.M. The witness then stated that after hearing 'hulla' in front of his house he came out from his house and saw lots of people numbering about 200 to 250 people. But when he reached the place of occurrence someone hit him on his back and due to fear he returned home. He however, stated that he did not know who hit him. But when he reached the place of occurrence someone hit him on his back and due to fear he returned home. He however, stated that he did not know who hit him. The witness further stated that though he came to know later on that someone assaulted Samir Ali and as result he died, he did not see who had assaulted him. In his cross examination, the witness stated that he did not see Hamid and Jamir i.e. the complainant and the PW No.2 at the place of occurrence. He reaffirmed that lots of people gathered there at the place of occurrence. The witness further stated that he did not notice the accused persons at the place of occurrence but he noticed that some of the people who gathered there had weapons in their hand and due to fear he left the place. 18. Pw No.5; the witness stated that he knew the complainant and that the crime took place at about 1:00 to 2:00 P.M. of one day, 4 to 5 years ago. He also stated that an altercation took place between Mohar Ali and Mannaf and at that time about 300 to 400 people gathered and thereafter a fight took place and due to fear he left the place. He further stated that later on, he heard that Sameer Ali died but he did not know as to who had killed him. In his cross examination, the witness stated that he had not seen Hamid and Jamir there but he did not know if they reached there later on. 19. Pw No.6; the witness stated that the incident occurred about 5 to 6 years ago and he knew the complainant and the accused persons. The witness also stated that an altercation took place between Mohar Ali and Manaf and because of that lots of people, nearing about 300 to 400, gathered at the place of occurrence and, at that time, he was in his shop and he saw the fight, but he did not know who assaulted whom. He also stated that later on he came to know that Samer Ali had died but he did not know who had killed him. In his cross examination, the witness stated that the house of Hamid and Jamir are situated near his shop but they reached there after the occurrence. 20. He also stated that later on he came to know that Samer Ali had died but he did not know who had killed him. In his cross examination, the witness stated that the house of Hamid and Jamir are situated near his shop but they reached there after the occurrence. 20. Pw No.7; the witness stated that he knew the complainant and the accused persons and the incident took place about 5 years ago. He also stated that an altercation took place between Mohar and Mannaf and following the same, lots of people numbering about 100 to 150 gathered. The witness further stated that though he did not see the fight he heard that Samir had been killed. He also stated that he did not know who had killed him. In his cross examination, the witness stated that he saw the incident from a distance of about 40 Nals (1 Nal = 12 feet). 21. Pw No. 8; this PW is the Doctor who conducted the post-mortem examination on the dead body of Samir Ali. He stated that on 30.11.2000 he was functioning as S.D.M & H.O in the Civil Hospital, Nagaon. The witness then stated that on that day, the dead body of Samir Ali was identified by a Constable No. 1354 namely, Dimbeswar Saikia and Siddique Ali, the younger brother of the deceased and on his examination, he found the following; "The dead body was found in good condition. Rigor Mortis present. (1) Haemetome right and left perietal bone region of the scalp. Size right 3" x 3"/Left 2" x 2". (2) Haemetome occipital bone region of the scalp. Size 2" x 2". (3) Fracture right and left perietal bone. (4) Fracture occipital bone. (5) Haemorrhage both the cerebral Haemisphere. Left heart empty and right contains lung clothed blood. Other organs are healthy. The injuries were homicidal and anti mortem in nature." The witness stated also that in his opinion, the death of Samir Ali was due to shock and hemorrhage caused by the head injuries sustained. He exhibited the post mortem report as Ext. 2 and his signature on the same as Ext. 2(1). In his cross examination, the witness stated that there was no seal on the postmortem report. He exhibited the post mortem report as Ext. 2 and his signature on the same as Ext. 2(1). In his cross examination, the witness stated that there was no seal on the postmortem report. He also stated that in the Injury No.1 as given above, he found two injuries one on the right and the other on the left and the injury on the occipital area may alone cause death. He also stated that the other injuries may not cause death. He admitted that he did not mention the time of death of the deceased. 22. Pw No.9; this witness is the son of Md. Mohar Ali one of the brothers of (the deceased) Samir Ali and who is stated to have had an altercation with one of the accused Mannaf according to a PW No.2, P.W.No.5, P.W.No.6 and P.W.No.7. This witness stated that he knew the accused persons and the complainant. He also stated that the occurrence took place about 6 years ago and on the day the occurrence took place at about 12:00 to 1:00 P.M. there was a quarrel between his father and the accused persons in front of his house and there was altercation between them. However, on his intervention they left the place. After that he went towards Masjid and while he was still on his way he heard that his uncle Samir Ali had been killed. He also stated that he did not see the occurrence of the incident and he did not know who killed Samir Ali. He further stated that Samir Ali is his paternal uncle. In his cross examination, the witness stated that Hamid Ali (the complainant) is his younger brother and PW No. 2 (Jamir) is his paternal uncle. He also stated that he did not see them at the place of occurrence at the time when altercation between both sides took place. 23. Pw No. 10; this witness is not an eye witness. The witness stated that he knew the accused persons and the complainant and the incident occurred about 5 to 6 years ago. He also stated that at the time the incident occurred he was at the paddy field. 23. Pw No. 10; this witness is not an eye witness. The witness stated that he knew the accused persons and the complainant and the incident occurred about 5 to 6 years ago. He also stated that at the time the incident occurred he was at the paddy field. The witness also stated that he arrived home after the occurrence of the incident and he came to know only thereafter that a quarrel between the accused and his father and some other persons took place and his uncle Samir Ali was killed. After having stated as such he clarified that he did not see the occurrence of the incident and he did not know who killed Samir Ali. In his cross examination also he stated that he did not see the occurrence of the incident and he did not see the accused persons. 24. Pw No. 11; this PW is the Investigating Officer who investigated the FIR case. The witness stated that on 28.11.2000 when he was posted as S.I of Police at Rupahihat Police Station the Officer-in-charge of the same Police Station received a written FIR from the complainant Abdul Hamid and after the same was registered he was entrusted with the investigation. The witness further stated that as soon as he took up the investigation he took the deceased/the victim for medical treatment and thereafter, he visited the place of occurrence and recorded the statements of the witnesses and also prepared a sketch map which he exhibited as Ext.3 and he also exhibited his signature on the same as Ext. 3(1). The witness, then stated that the injured Samir Ali died on the way to Gauhati Medical College Hospital. He also stated that the dead body was brought to Ruphahihat Police Station where he conducted the inquest. He exhibited the inquest report and his signature on the same as Ext. 4 and Ext. 4(1) respectively. The witness further stated that he sent the dead body of Samir Ali for post mortem, vide Challan Ext.5. Thereafter, he also stated that he arrested the accused persons and forwarded them to Court and after completion of the investigation he submitted the charge sheet under section 147/148/149/323/302 of IPC. In his cross examination, he stated that there are several houses and shops and one Mosque near the place of occurrence. Thereafter, he also stated that he arrested the accused persons and forwarded them to Court and after completion of the investigation he submitted the charge sheet under section 147/148/149/323/302 of IPC. In his cross examination, he stated that there are several houses and shops and one Mosque near the place of occurrence. He also stated that Abul Hussain, the PW No.6 has shop near the place of occurrence. He further stated that the houses of the accused persons namely, Idrish Ali, Sukur Ali and Surhab are also situated near the place of occurrence. The witness also stated that the PW No.1/Jamir Ali did not state before him that after hearing hulla from the western side of his house he and Samir Ali went out towards the road. He also stated that Jamir Ali did not state before him that when they asked the nine accused persons to go away from the place of occurrence they assaulted them rather it was stated that when he (Jamir Ali) tried to prevent the accused persons from assaulting Samir Ali, they assaulted him. He went on to state that Jamir Ali did not state before him that there was depression on the head of Samir Ali of about three inches depth due to the assault by lathi. The witness further stated that Jamir Ali also did not state before him that Harun Rashid, Bilaludddin, Siddique Ali, Mofiz Ali, Abul Hussain and Hamid Ali also saw the occurrence. The Investigation Officer also stated that the Thana is located at about the distance of 5 Kms west and he started for the place of occurrence at about 2:30 P.M from the Police Station and arrived there at 2:55 P.M. He further stated that he recorded the statement of the witnesses on that day in separate sheets. In his further cross examination by the Addl. District & Sessions Judge, the witness stated that Abdul Hamid (the complainant) in his statement under section 161 Cr.P.C did not disclose before him that Sukur first assaulted the deceased and it was followed by Surhab. The witness also stated that Abdul Hamid did not disclose in his statement under section 161 Cr.P.C about Samir Ali and also the place of occurrence. The witness also stated that Abdul Hamid did not disclose in his statement under section 161 Cr.P.C about Samir Ali and also the place of occurrence. Regarding the other witness namely, Jamir Ali the witness stated that Jamir Ali disclosed in his statement under section 161 Cr.P.C that when he went to save he was also chased but he somehow escaped.The witness also, stated that the witness Jamir Ali did not disclose to him that Samir Ali fell down after he was assaulted by nine accused persons. Further, the witness stated that Jamir Ali did not disclose that though the accused persons tried to assault him he was not hit by any of their blows. The witness then also stated that the witness Jamir Ali did not disclose that there was depression of about 3 inches on the head of the deceased Samir Ali. Lastly, the witness stated that the witness Jamir Ali did not disclose that Harun Rashid, Bilal Uddin, Siddique Ali, Idrish Ali, Surhab Ali also witnessed the occurrence. 25. Pw No.12; this witness is the Doctor who examined the other persons who were alleged to have been injured due to assault of the accused persons in the fight. The witness stated that on 02.12.2000, he was attached to Rupahihat State Dispensary as M & H.O-1 and he examined Jamir Ali, aged about 40 years, S/o. Md. Yad Ali of village Laogaon, under Rupahihat Police Station and recorded his finding as follows; "Only tenderness found on the back of chest on right side. Opinion; No injury was found". He also stated that on the same day he examined Md. Siddique Ali, aged 30 years, S/o. Yad Ali, of village Laogaon, under Rupahihat Police Station and recorded his finding as follows; "No external injury was found on his person". The witness further stated that on 28.11.2000, he examined Md. Samir Ali, aged about 35 years, S/o. Yad Ali of village Laogaon, under Rupahihat Police Station and found as follows; "The injured person was referred to Civil Hospital, Nagaon". Further, the witness stated that on the same day, he examined one Md. Mofij Ali, aged about 27 year, S/o. Yad Ali, of village Laogaon, under Rupahihat Police Station and recorded his finding as follows; "One wound over vault of skull. Size 3 Cm x 1/2 Cm x 1/2 Cm. Margin is irregular. Blood clot found. No active bleeding seen. Further, the witness stated that on the same day, he examined one Md. Mofij Ali, aged about 27 year, S/o. Yad Ali, of village Laogaon, under Rupahihat Police Station and recorded his finding as follows; "One wound over vault of skull. Size 3 Cm x 1/2 Cm x 1/2 Cm. Margin is irregular. Blood clot found. No active bleeding seen. Age of the injury was 2 to 4 hours which was caused with stick. Opinion; The injury is simple and caused by blunt object." The witness also stated that on the same day he examined Md. Safiqul Islam, aged about 24 years, S/o Umar Ali, of village Laogaon, under Rupahihat Police Station and recorded his finding as follows; "Bruise 2 x 2 Cm, over right forearm. Age of the injury was about 2 to 4 hours. Opinion; The injury was simple and caused by blunt object". The witness thereafter, exhibited the injury report of Jamir Ali and Siddique Ali as Ext.2 and his signature as Ext. 2(1). He also exhibited the injury report of Samir Ali and Mofij Ali as Ext. 3 and his signature as Ext.3(1). The witness also exhibited the injury report of Safiqul Islam as Ext. 4 and his signature as Ext. 4(1). In his cross examination, PW stated that he examined Jamir Ali and Siddique Ali on 02.12.2000 and the injury report was signed by him on 25.12.2000. He further stated that the injured Siddique Ali, Samir Ali and Mofij Ali were brought to him by Home Guard Abdul Rahman. He also stated that the injured Samir and Mofij were brought on 28.11.2000 and he signed on the injury report on 25.12.2000. Further, the witness also stated that in both the injury reports there was no mention of case number and G.D number. The witness further stated that according to the injury report exhibited as Ext.3 there is no mention of injury found on Safiqul Islam but he found the injury on the person of Mofij Ali. He admitted that he did not mention the basis of the age of the injuries as mention in the injury report. The witness affirmed that Safiqul Islam was examined on 28.11.2000 at about 4:30 P.M and he was brought by one Rustam Ali. The witness further stated that the age of the injuries sustained by Safiqul Islam was between 2 to 4 hours. The witness affirmed that Safiqul Islam was examined on 28.11.2000 at about 4:30 P.M and he was brought by one Rustam Ali. The witness further stated that the age of the injuries sustained by Safiqul Islam was between 2 to 4 hours. The witness, then stated that such injury found on the person of the injured may be caused by a fall on a hard substance. 26. The defense produced and examined only 3 DWs and the evidence given by them are reproduced here below; DW No.1; the witness stated that he knew the complainant and the accused persons. He also stated that about 15 years ago, one day at 1:00 P.M. while he was sitting in front of the Mosque after offering his prayer, suddenly he heard a noise of hulla from the eastern direction of the Mosque. On hearing the same, he went out to the place and found Sukur Ali with lathi in his hand and giving lathi blow to Samir Ali (the victim). He further stated that thereafter, hulla began and on being afraid of the danger to his life he left the spot. He also stated that about 200 to 250 persons were present at the spot and he did not witness the presence of the accused persons at the site of the incident. The witness further stated that he was accompanied by Bilaluddin and Hafizuddin at the place of occurrence. He then stated that when he arrived at the place of occurrence, besides Sukur Ali, Surhab Ali, other persons were also present. Lastly, he stated that after the occurrence took place he never saw any discussion taking place about the same in the village. In his cross examination, DW stated as follows; That at the time when the incident occurred he was in the Mosque for prayer and the distance between the place of occurrence and the Mosque is about 150 meters. He also stated that on his arrival at the place of occurrence he did not see any other persons who sustained injury except Samir Ali. He then went on and stated that when he reached the place of occurrence he found Bilaluddin, Hamid, Hafizuddin and few other persons. The witness further stated that he did not receive any summon from the Court to depose and it was not a fact that he deposed on the dictum of the accused. He then went on and stated that when he reached the place of occurrence he found Bilaluddin, Hamid, Hafizuddin and few other persons. The witness further stated that he did not receive any summon from the Court to depose and it was not a fact that he deposed on the dictum of the accused. He also denied the suggestion that at the relevant point of time he was not present at the place of occurrence. DW No.2; the witness stated that he knew Abdul Hamid, Sukur Ali, Jamir Ali, Saiful Islam, Bilaluddin and he also knew the accused Nur Islam, Siddique, Surhab Ali, Nur Md. Abdul Hakim and Idrish Ali. The witness further stated that the occurrence took place about 15 years ago, and on that day at about 1:00 P.M. he was proceeding towards the market and while he was on his way he saw a quarrel taking place and the quarrel was amongst 200 to 250 persons. The witness also stated that there was a hue and cry. Further he, also stated that amongst others he saw Sukur Ali with lathi in his hand. The witness, however, stated that he did not see the other accused persons and he could not remember the name of the people present there. The witness lastly, stated that he did not see Hamid, Bilaluddin and Saiful present at the place of occurrence. In his cross examination, the witness stated that all the accused persons are inhabitants of his village and he was asked by them to depose and as per their request he had come to Court. He denied the suggestion that he was not present at the place of occurrence at the relevant time and he was deposing as dictated by the accused persons. Lastly, he also denied the suggestion that he was giving false evidence. DW No.3; the witness stated that he knew Abdul Hamid and he is his cousin brother. The witness, then stated that one day at about 14 to 15 years ago, the incident occurred at about 1:30 P.M. on the road in front of the house of Hamid Ali. The witness also stated that at the relevant point of time he was present at the house of Mohar Ali who is the father of Abdul Hamid. He also identified Abdul Hamid as the informant. The witness also stated that at the relevant point of time he was present at the house of Mohar Ali who is the father of Abdul Hamid. He also identified Abdul Hamid as the informant. The witness, then stated that he heard a noise of quarrel taking place on the road and on hearing the same he went out and saw Sukur Ali and Samir Ali exchanging hot words. He also stated that Sukur Ali had lathi in his hand and that he assaulted Samir Ali causing injury on his head. The witness added that at that meantime many people had gathered there and the accused persons were also present. The witness also stated that in the meanwhile, Samir Ali fell down and was unconscious. He then went on and stated that Surhab Ali was not present at the site of the occurrence. The witness lastly, stated that Sukur Ali who is the brother of Surhab Ali and about 200 to 250 persons including the accused persons were present. In his cross examination, the witness stated that the Police visited the place of occurrence but he did not meet the Police. The witness further stated that he was brought by the accused persons to depose before the Court. He however, denied the suggestion that he did not see the occurrence and he deposed at the dictum of the accused persons. On the query made by the Court, the witness stated that he did not make any attempt to lift Samir Ali (the victim) from the place of occurrence to his house after having found him fallen on the ground in unconscious condition, as he was minor at that relevant point of time. 27. We are conscious of our role sitting as Appellate Court over judgment of a criminal trial court wherein only one of the accused has been held guilty and the rest of them have been acquitted. In view of the principle of law settled by the Hon'ble Supreme Court in the case of Ramesh Babulal Doshi versus- State of Gujarat, reported in (1996) 9 SCC 225 , our duty first of all is to find out whether the findings of the trial court are palpably wrong, manifestly erroneous, or demonstrably unsustainable. and thereafter, if our finding on the question is in the negative the order of acquittal would not to be disturbed. and thereafter, if our finding on the question is in the negative the order of acquittal would not to be disturbed. However, if we find that the order of acquittal cannot at all be sustained in view of any of the infirmities mentioned above then we would be required to reappraise the evidence to arrive at a conclusion of our own. 28. We have pursued the judgment under appeal and we find that the learned trial court came to the conclusion that the eye witness account of two PWs i.e PW No.1 & PW. No.2 was not supported by other witnesses, therefore, their evidence regarding the commission of the crime by the accused persons except Sukur Ali cannot be relied upon. This conclusion or finding of the trial court in our view is palpably wrong, manifestly erroneous or demonstrably unsustainable, because eye witness account need no further corroboration if the same is trustworthy and can be relied upon. It is settled principle of law that eye witness account has to be carefully and independently assess and evaluated for its credibility which should not be adversely pre judge making any other evidence, including medical evidence, as the sole touchstone for the test of the credibility. The evidence of eye witness must be tested for its inherent consistency and the inherent probability of the story. Therefore, the trial court having made credibility of the eye witness account of the two PWs dependant on the evidence given by the other witness, as stated above, is palpably wrong, manifestly erroneous or demonstrably unsustainable. In view of the above reasons and conclusions, we are of the view that the judgment & order is unsustainable as far as it relates to the 8(eight) accused who were acquitted. 29. Having found the judgment & order of the trial court palpably wrong, manifestly erroneous or demonstrably unsustainable we now proceed to reappraise the evidence available in the record. PW No. 1 and PW No.2 are the eye witnesses to the occurrence of the incident and as per their evidence their houses are situated just near the place of where the incident occurred. Therefore, the eye witnesses account cannot be taken lightly unless there are reasons to doubt or to conclude that they cannot be trusted. PW No.1 had stated that the incident occurred in front of their house and he was present at the place of occurrence. Therefore, the eye witnesses account cannot be taken lightly unless there are reasons to doubt or to conclude that they cannot be trusted. PW No.1 had stated that the incident occurred in front of their house and he was present at the place of occurrence. He also stated that all the accused persons were armed with lathi at the time of occurrence and they assaulted his uncle (the deceased) Samir Ali. The witness also stated that it was the accused Sukur Ali who assaulted his uncle first and it was followed by accused Sorhab Ali and thereafter, all the other accused persons. Further, from his evidence, it appears that he was one of them who took the injured Samir Ali to the Police Station first and to the hospital thereafter. In his cross examination, he admitted that the ejahar was not scripted by him and he did not mention the name of the accused persons and they were armed with lathi while assaulting the victim. He also admitted that he did not mention the reason for the fighting and the fact that he was present at the time of occurrence and the sequence of the assault. He also stated that the Police did not examine him. Further, he also stated that his uncles namely, Jamir Ali, Mofiz Ali and Siddique Ali including the victim, were present at the place of occurrence. The witness also mentioned that the accused persons are from his village and they were also his neighbors and they had no enmity between them. In fact he also stated that they had visiting terms with one another. He denied the suggestion that his uncle was not assaulted by the accused persons. He also denied the suggestion that he did not tell the Police that he was present at the place of occurrence and that it was accused Sukur Ali who assaulted first and then followed by the accused Sorhab Ali thereafter. On careful consideration of the evidence of this PW what has clearly emerged is that he was present at the place of occurrence and he saw how the event unfolded and ended so vividly. He is neither contradicted nor discredited in his cross examination and we find no reason to doubt his evidence. On careful consideration of the evidence of this PW what has clearly emerged is that he was present at the place of occurrence and he saw how the event unfolded and ended so vividly. He is neither contradicted nor discredited in his cross examination and we find no reason to doubt his evidence. However, from the evidence of the witness what we can see is that the accused persons had no motive and intention in committing the offence. Because he had clearly stated that there was no enmity between his family including his uncles and the accused persons. It appears from the sequence of the occurrence that the killing of the victim was a chance happening. This will be reexplained a little more in detail later in the judgment. The fact that he did not mention the details of the incident in the ejahar will not diminish the value or credibility of his evidence. Because, one is not expected to narrate all the details of a crime in the ejahar, for to require such would be unreasonable. Sometime ejahar is submitted by somebody who was not present at the place of occurrence and sometime, though, it may be submitted by someone who was present he or she may not remember everything in detail at that moment. Ejahar is just to initiate a criminal case or to start the process of a criminal case rolling. To find the details is the work of investigation and to sieve the chaff from the grain is the duty of the Court. 30. Now coming to the evidence given by PW No.2, it appears that on hearing a commotion from the place of occurrence, he and Samir Ali who is his nephew and who later on became the victim and whose house was adjacent to his house, went out to see what had happened. And, on reaching the place, he saw all the accused persons armed with lathi and raising a commotion in front of the house of Umar Ali and Mahar Ali. It also appears that he and the deceased requested the accused persons to go away from the place but their request was responded with assault of lathi blows which hit Samir (the deceased) on his head and as a result, sustained head injuries and fell down while he himself escaped the same. It also appears that he and the deceased requested the accused persons to go away from the place but their request was responded with assault of lathi blows which hit Samir (the deceased) on his head and as a result, sustained head injuries and fell down while he himself escaped the same. Further, it appears from the statement of the witness also that all the accused assaulted the victim with lathi. We also find from the evidence of the witness that he reaffirmed his statement that he saw the assault of the deceased by the accused persons. Further, the evidence of the witness also reveals that he was one of the persons who took the victim to the Police Station and then to the hospital in the course of which the victim died. The statement of the witness in his cross examination reveals that he is so sure of the place of occurrence, the time of the actual occurrence and the number of persons present. He in fact stated that when the incident occurred about 20 to 25 persons along with the accused persons were present and thereafter lots of people numbering about 200 persons came to the place of occurrence. It can also be seen from the cross examination that the witness reaffirmed his statement given in the examination-in-chief that the accused persons were armed with lathis though he admitted that he would not be able to ascertain as to what the lathis were made of. The witness in his cross examination confirmed all that he had stated in his examination-in-chief. Further, the witness like the PW No.1 also stated in his cross examination that he and Jamir Ali (PW No.1) did not have any dispute with the accused persons prior to the occurrence and they had cordial relationship. There is nothing in his cross examination which contradicted or discredited his statement given in the examination-in-chief. We also did not find any inconsistency in the statement of the witness on the relevant facts and circumstances. The evidence of the PW No.2 and PW No.1 corroborated each other and both the evidence taken together leave no room to doubt that the accused persons had assaulted (the victim) Samir Ali on the day of occurrence and due to that he suffered head injuries and died. The evidence of the PW No.2 and PW No.1 corroborated each other and both the evidence taken together leave no room to doubt that the accused persons had assaulted (the victim) Samir Ali on the day of occurrence and due to that he suffered head injuries and died. The evidence of these two PWs are also supported by the evidence given by the Doctor who conducted post mortem on the dead body of the victim/Samir Ali. The Doctor, as already given above was examined as PW No.8 and from his evidence one can see that there was not only one injury on the head of the deceased/victim but multiple injuries. These multiple injuries shows that it was not only Sukur Ali who assaulted the victim/deceased but the other accused persons as well, as stated by the two eye witnesses. Further, it, must not be forgotten that PW No. 2 and the deceased went to the place of occurrence together and it was right in front of his eyes that the incident occurred. This evidence of the PW, therefore, unless contradicted or otherwise has to be believed and there is no reason to discard or even doubt. It stands firmly on its own and moreover, it is supported by the evidence given by the other PWs. 31. The evidence of PW No.3 that he did not notice the two PWs i.e. PW No.1 and PW No.2 at the place of occurrence, in no way contradicted or renders their evidence untrustworthy or doubtful, because, his statement in examination-in-chief reveals that he did not exactly reached the place of occurrence as he went away after seeing the scuffle from a distance. Further, his statement also reveals that he saw about 200 to 300 people gathered there. In that kind of gathering, it would be difficult to ascertain the presence of one or two persons. Therefore, to say that because of his evidence, the two PWs i.e. PW No.1 and PW No.2, were not present at the place of occurrence at the relevant time would be most unrealistic and unreasonable. 32. In that kind of gathering, it would be difficult to ascertain the presence of one or two persons. Therefore, to say that because of his evidence, the two PWs i.e. PW No.1 and PW No.2, were not present at the place of occurrence at the relevant time would be most unrealistic and unreasonable. 32. Further, the statement of PW No.4 that he did not see Hamid and Jamir at the place of occurrence cannot also be taken to mean that the witness was so sure of their presence or absence at the place of occurrence because he stated in this examination-in chief that when he reached the place of occurrence he saw about 200 to 300 people gathered there and someone hit him on his back and because of that he returned home. In that kind of situation, it is most probable that the witness would not have been able to see the presence of the two witnesses. Therefore, his statement as stated above cannot be taken to meant that the two witnesses were not present at the place of occurrence. 33. Further, from the evidence of PW No.5 what can be seen is that there was an altercation between Mohar Ali and Mannaf and that had resulted into group fighting in the presence of about 300 to 400 people, and that the witness, out of fear went away, but heard later on that Samir Ali had died. In his cross examination, he stated that he had not seen Hamid and Jamir i.e. two PWs (PW No.1 & PW No.2). However, he stated in his examination-in-chief that it is quite possible that he may not have seen the presence of the two PWs. That would not in any way weaken the evidence of the two witnesses. Because, as stated by the witness in his examination-in-chief there were about 200 to 300 people present and in that mammoth presence of people it is quite possible that the witness could not have seen the two witnesses. Moreover, the witness stated that he immediately left after the fight took place. Therefore, he could not have identified each and every person present there. 34. Moreover, the witness stated that he immediately left after the fight took place. Therefore, he could not have identified each and every person present there. 34. Further, from the examination-in-chief of PW No.6 also what one can see is that he saw an altercation of Mohar Ali and Mannaf in the presence of 300 to 400 people which was followed by a fight and he came to know about the death of the victim only later on. However, from the cross examination of the witness, it can be concluded that houses of the two PWs i.e. PW No. 1 and PW No.2 are situated near his shop that is near the place of occurrence. From this it can safely be concluded that in all probability the two PWs would have been present at the time of occurrence. Therefore, we are of the view that the evidence given by these PWs in no way diminish the credibility of the evidence given by PW No.1 and PW No.2. 35. From the evidence of PW No.7 what one can see is that he saw an altercation taking place between Mohor Ali and Mannaft but he was not present when the fight took place. This evidence of the PW 7 does not in any way diminish the credibility of the evidence of PW No. 1 and PW No. 2 rather it supports the fact that the occurrence took place and in that the victim died. In fact, from the evidence of the PW No.3, PW No. 4, PW No. 5 & PW No. 6 including this witness one can conclude without any shadow of doubt that there was a fight between the two groups and the victim died as a consequence thereof. 36. From the testimony of the three PWs i.e.PW Nos. 5, 6 and 7 it appears that before the victim was assaulted there was an altercation between two persons namely, Mohor Ali (relative of the victim group) and Mannat @ Mannab (one of the accused). Now, coming to the evidence of the 3 DWs, we do not find anything in them which would discredit or diminish the veracity of the evidence given by the 2 eye witnesses. Now, coming to the evidence of the 3 DWs, we do not find anything in them which would discredit or diminish the veracity of the evidence given by the 2 eye witnesses. DW 1 stated that after offering prayer in the Mosque and on hearing a noise of commotion he went to the place of occurrence and found Sakur Ali (one of the deceased accused) assaulting the deceased Samir Ali with a lathi and thereafter, he saw the hulla began. Being afraid of danger to his life he left the place. He also stated that he saw about 200 to 250 persons and he could identify Sakur Ali and Surahb Ali. In his cross-examination he stated that except the victim Samir Ali, he did not see anybody who sustained injuries. He also stated that he saw Bilaluddin, Hamid (the complainant), Hafisuddin and few other persons. From overall reading of the evidence given by this witness what one can conclude is that after one of the accused Sakur Ali assaulted the victim with a lathi there was a big commotion and thereafter being afraid of danger to his life he left the place. Therefore, his evidence cannot be taken to mean that the other accused were not involved in the assault of the deceased victim. It could have been after he left that the other accused persons continued with the assault. This evidence of the witness only strengthens the prosecution case that it was Sakur Ali who first assaulted the deceased victim and it was followed by the other accused. Further, the evidence of this witness also supports the evidence given by PW 1, who is the informant in the case because he stated that he saw Hamid (PW 1/the informant) at the place of occurrence. Therefore, there is no reason to doubt the eye witness account of PW 1 (the informant). 37. Dw 2 is the witness who came to the witness box on the request of the accused person. He stated that while he was proceeding to the market he saw a quarrel taking place amongst 200 to 250 persons. He also stated that amongst the people present there he saw Sukur Ali (the deceased accused) with lathi in his hand. He also stated that he did not see the other accused persons there. He stated that while he was proceeding to the market he saw a quarrel taking place amongst 200 to 250 persons. He also stated that amongst the people present there he saw Sukur Ali (the deceased accused) with lathi in his hand. He also stated that he did not see the other accused persons there. It appears from the evidence of this DW that he did not see the actual occurrence of the incident as seen by others. The only thing he saw was there was a quarrel and Sukur Ali was with a lathi in his hand. There is nothing in the evidence given by this witness which would discredit or diminish the veracity of the evidence given by the 2 eye witnesses and the other witnesses. We may also conclude that the evidence of this witness supports that there was a quarrel and a commotion arising out of it amongst 200 to 250 people and the accused Sukur Ali was with a lathi at the relevant time. 38. Dw 3 stated that on the day and time the incident took place, he saw a quarrel taking place between Sukur Ali (one of the accused) and Samir Ali (the victim deceased). He also stated that Sukur Ali had a lathi in his hand and he assaulted Samir Ali with it causing thereby head injuries. He also stated that the other accused were also present there but he did not see Surhab Ali, one of the accused. In his cross examination the witness stated that he was brought by the accused persons to depose before the Court. It appears from the evidence of this witness that he is not an independent witness. However, taking the totality of his evidence, 2 things can be taken, that he saw Sukur Ali assaulting Samir Ali causing head injuries and he also saw the other accused persons present there. There is nothing in this evidence which can be taken to mean that the other accused persons did not join in the assault of the victim. Rather, it only adds credence to the prosecution case that it was Sukur Ali who assaulted the victim first and thereafter the other accused. 39. There is nothing in this evidence which can be taken to mean that the other accused persons did not join in the assault of the victim. Rather, it only adds credence to the prosecution case that it was Sukur Ali who assaulted the victim first and thereafter the other accused. 39. From the above discussions of the evidence given by the witnesses, the chain of events can be constructed as follows:- First, on 28-11-2000 at about 1 PM, on the PWD road at Nagaon near the house of the informant there was an altercation between Mohar Ali, (the elder brother of the deceased victim), Samir Ali and uncle of Abdul Hamid (informant/PW 1) and Abdul Mannaf @ Mannaf, one of the accused. Second stage:- the altercation brought the other accused with lathis in their hands and that led to formation of an unlawful assembly of violent nature which constitutes rioting and on hearing the noise PW No.2 Zamir Ali (one of the brothers of the deceased victim) and Samir Ali whose houses are adjacent to one another and situated near the place of occurrence came out to see what was happening at the place of occurrence and when they saw the accused persons armed with lathi and raising commotion told them to go away. But the accused persons who are all close relatives and whose tempers were already high because of the earlier incident which took place between Mohar Ali and Mannaf responded with lathi charge on the 2 persons who were none other than close relatives of Mohar Ali. 40. From the facts and circumstances of the case and the evidence available one can conclude that there was an unlawful assembly formed for commission of a common object which led to a riot wherein persons who were involved were armed with deadly weapons which can cause serious bodily injuries that can cause death of a person and members of such assembly actually used the same on the victim which caused his death. Therefore, we are of the view that the only conclusion that can be drawn is, the accused persons are guilty of having committed the offence punishable under sections 148 and section 304 part II of IPC read with section 149 of the same code. Therefore, we are of the view that the only conclusion that can be drawn is, the accused persons are guilty of having committed the offence punishable under sections 148 and section 304 part II of IPC read with section 149 of the same code. The reason for the conclusion that the accused persons had committed the offence punishable under Section 304 part II of IPC and not the offence punishable under Section 302 IPC is because the purpose of the unlawful assembly and rioting was to settle a score with Mohar Ali with whom one of the accused Mannaf had an altercation earlier and not the victim. The accused persons had not come for the victim. The fact that they assaulted the victim was only a chance happening and without any premeditation. This can be seen from the evidence that there was an altercation between Mohar Ali and one of the accused Mannaf a little earlier before the actual occurrence. In all probability the reason the accused persons came to the place of occurrence with lathis in their hand was to give a thrashing to Mohar Ali or to cause grievous injuries on his body which can cause his death. But unfortunately the victim and the PW No. 2 came out on hearing the commotion and told them to leave the place and that provoked them and that led them to assault the victim and caused the injuries which led to his death. From this no pre-meditation on the part of the accused persons to kill the victim can be made out rather from the evidence it appears that the killing of the victim was not with intention pre-conceived but a chance happening or an happening at the spur of the moment. 41. We are, therefore, unable to held the accused persons guilty of having committed the offence punishable under Section 302 of IPC. However, since there are sufficient evidence proving that the accused persons had killed the victim we are of the view that they are guilty of having committed culpable homicide punishable under Section 304 Part II of IPC. We therefore, held them guilty of having committed culpable homicide not amounting to murder which is punishable under Section 304 Part II of IPC. 42. For the reasons stated above, the impugned judgment of acquittal of respondent Nos. We therefore, held them guilty of having committed culpable homicide not amounting to murder which is punishable under Section 304 Part II of IPC. 42. For the reasons stated above, the impugned judgment of acquittal of respondent Nos. 2 to 8 passed by the learned Additional Sessions Judge, FTC Nagaon in Sessions Case No.287 (N) 2003 arising out of G R Case No.98/2000 is hereby set aside and quashed. 43. In view of the conclusions drown we sentenced the accused persons to simple imprisonment for a period of 2 years for having committed the offence punishable under Section 148 of IPC read with Section 149 of the same Code and we also sentenced them to imprisonment for a period of 7 years and a fine each of Rs. 5000/-for having committed the offence punishable under Section 304 Part II of IPC read with Section 149 of the same Code and to a further imprisonment of another 6 months in case of default in payment of the fine amounts. All the terms of the sentences will run concurrently. The respondent Nos. 2 to 8 shall surrender before the learned Additional Sessions Judge, FTC, Nagaon forthwith in connection with the Sessions Case No.287 (N) 2003 arising out of G R Case No.1767/2000 (noted above) to serve the sentence. 44. Considering the provisions of Section 357 A of Cr.P.C and the Notification of the Political (A) Department, Government of Assam No. PLA. 524/2015/Pt/190 (ECF-38361) dated 01.02.2019 we direct the Government of Assam to pay Rs.5,00,000/- by Account Payee-Draft in any Nationalised Bank of India as victim compensation to the appellant Fatema Khatun, wife of the deceased victim Samir Ali through the State Legal Services Authority, Assam and the learned Additional Sessions Judge, FTC, Nagaon on her proper identification. 45. Registry to return the LCR forthwith, along with a copy of this judgment to learned Addl. Additional Sessions Judge, FTC, Nagaon