JUDGMENT Mir Alfaz Ali, J. - Heard Mr. A Choudhury and Mr. LR Mazumder, learned counsel appearing for the appellants and Ms. S Jahan, learned Addl. Public Prosecutor, Assam. 2. This appeal is directed against the judgment and order passed by the learned Sessions Judge, FTC, Silchar in Sessions Case No.154/2010, whereby learned Sessions Judge convicted the present appellants under section 302/147/148/323/325 IPC read with section 149 IPC and sentenced them to imprisonment for life and fine of Rs.20,000/- with default stipulation under section 302 IPC. The appellants were further sentenced to pay fine of Rs.1,000/- each under section 147/148/323 IPC in default to simple imprisonment for three months. They were also sentenced to rigorous imprisonment for three years and fine of Rs.5,000/- with default stipulation under section 325 IPC. 3. As per the prosecution case, on 06.12.2008, when Rafique uddin (Pw-6) and Pw-1 were coming from Silchar and reached in front of the house of Abdul Malik Mazumder, Pw-6 was hit by appellant Abdul Malik Mazumder by his bicycle, whereupon an altercation ensued between the accused Malik and Pw-6. At that point of time, all the accused persons named in the FIR being armed with lathel weapons, restrained Pw-6 and assaulted him. Having received the information about the occurrence, Romij Uddin (deceased) and his son Pw-8 and Pw-7 came to the place of occurrence and when they enquired the appellant about the incident, all the accused persons named in the FIR assaulted them with iron rods, spear, stone etc. As a consequence of the assault, Riaz uddin (deceased) sustained serious injuries and he was immediately taken to police station and then shifted to Silchar hospital, where the doctors declared him dead. The FIR (Exhibit-2) was lodged by Pw-3 on the basis of which Silchar PS Case No.2500/2008 was registered under sections 147/148/149/341/325/302 IPC. During investigation, police recorded the statement of the witnesses, seized some blood stained clothes, send some of the witnesses for recording their statement under section 164 Cr.P.C., prepared the inquest report and send the injured for medical examination and the body of the deceased for conducting the post-mortem examination. 4. Pw-9, Dr. Gunojit Das, who conducted the post-mortem examination on the body of the deceased, Ramiz Uddin Laskar found the following injuries: wxyz "(i) Pressure abrasion of size 6 x 4 cm. At the right side of front of forehead 2 cm. above lateral of eyebrows. 4. Pw-9, Dr. Gunojit Das, who conducted the post-mortem examination on the body of the deceased, Ramiz Uddin Laskar found the following injuries: wxyz "(i) Pressure abrasion of size 6 x 4 cm. At the right side of front of forehead 2 cm. above lateral of eyebrows. zyxw wxyz (ii) Lacerated injury at scalp at the right frontal area 2 x 1 cm. scalp deep 1 cm. above injury No. (1). zyxw wxyz (iii) Pressure abrasion of size 6 x 1 cm. at the lateral aspect of left forearm at the middle part." zyxw wxyz In the opinion of doctor, death was due to coma resulting from the head injuries. All the injuries were anti mortem in nature caused by blunt impact and the time of death was about 16 to 24 hours before the post-mortem. zyxw 5. Pw-11, Dr. Anupam Paul, who examined the prosecution witnesses, PW-8, Ripon Uddin Laskar and PW-6, Rafique Uddin Laskar found as follows: wxyz "Ripon Uddin Laskar: zyxw wxyz (i) Lacerated injury left occipital region of size 3 x 1 cm. Rafique Uddin Laskar: zyxw wxyz (i) Abrassion of the right knee joint of size 1 x 2 cm. In the opinion of the doctor, the injuries were simple and fresh caused by blunt weapon. " zyxw 6. Pw-13, Dr. Arun Kumar Sipani deposed that the prosecution witness No.7, Bahar Uddin Laskar was examined by Dr. Swapan Pran Saikia, at SMCH, who found the following injuries: wxyz "(i) Pain, swelling, abnormal movement lower forearm. zyxw wxyz (ii) Bony crepitus, tenderness on pulpation in upper 3rd forearm." zyxw 7. On conclusion of investigation, charge-sheet was laid against the eight accused persons named in the FIR who eventually stood trial before the court of Session. Learned Sessions Judge framed charges against all the charge-sheeted accused under Section 147/148/341/323/325/302, read with Section 149 of the IPC to which they pleaded not guilty. During the course of trial, one of the accused namely, Jamir Uddin, expired and the trial proceeded against the present appellants. 8. 13 witnesses were examined by the prosecution and on appreciation of evidence, learned sessions judge convicted the appellants and awarded sentence as has been indicated above. 9. We have considered the submissions made by the learned counsel for the appellants and the learned Additional Public Prosecutor and also scrutinized the evidence brought on record. 10. 8. 13 witnesses were examined by the prosecution and on appreciation of evidence, learned sessions judge convicted the appellants and awarded sentence as has been indicated above. 9. We have considered the submissions made by the learned counsel for the appellants and the learned Additional Public Prosecutor and also scrutinized the evidence brought on record. 10. On perusal of the impugned judgment and the assessment of the evidence, we find that PW-1, PW-3, PW-6, PW-7 and PW-8 were the eye witnesses and the learned sessions judge basically relying on these five witnesses and the medical evidence, recorded the conviction of the appellant. Therefore, we consider it appropriate to have a relook at the oral testimony of these five vital witnesses. 11. First eye witness, examined by the prosecution is PW-1, Sabana Ajmin Laskar. she testified that on the date of occurrence at about 4.30 pm when she was returning home along with his father (PW-6) and reached the place of occurrence, accused, Abdul Malik Mazumdar, who was riding a bicycle, dashed PW-6 and consequently he fell on the ground. PW-6 got angry and dealt a slap to the accused, Abdul Malik Mazumder, whereupon the accused Abdul Matlib, Abul Hussain, Zakir Hussain, Hiramoni and Jamir Uddin came and assaulted PW-6. She further stated that thereafter they called Abdul Jabbar, who also assaulted her father (PW-6). According to her, the accused persons assaulted PW-6 by giving hand blows and also throwing bricks and stones at him. She informed his cousin Rippon (Pw-8) and Ramij Uddin Laskar (deceased) about the occurrence over phone. According to her, having come to know about the occurrence, Moin Uddin Lalskar and Bahar Uddin Laskar PW-3 and PW-7 respectively, came there by a motor cycle and asked the appellants whether they would amicably settle the matter. Then all of the accused persons started assaulting Moin Uddin and Bahar Uddin, who also sustained injuries. When the deceased, Ramij Uddin Laskar intervened, Abdul Jabbar instructed the appellants to finish him and then the accused Abul Hussain gave a blow on the head of the deceased Ramij Uddin Laskar with a piece of wood and receiving the injury, he fell down on the ground. He was taken to the hospital where the doctor declared him dead. When the deceased, Ramij Uddin Laskar intervened, Abdul Jabbar instructed the appellants to finish him and then the accused Abul Hussain gave a blow on the head of the deceased Ramij Uddin Laskar with a piece of wood and receiving the injury, he fell down on the ground. He was taken to the hospital where the doctor declared him dead. During cross-examination of these witnesses, it was elicited that the pharmacy of PW-3, Moin Uddin Laskar was at a distance of 400 meters from the place of occurrence. It was also elicited during her cross-examination, that after the occurrence, PW-6 was brought to the pharmacy of Moin Uddin Laskar, (PW-3). It was further elicited during cross-examination that the accused persons collected bricks, stones etc. from the place of occurrence. It was also elicited during cross- examination that deceased Ramij Uddin as well as other witnesses initially came to the pharmacy of Moin Uddin Laskar, where they found the injured Rafiquddin (PW6). The previous statement of the PW-1, confirmed through the investigating officer shows that she did not tell before the police regarding Abdul Matlib, Abul Hussain, Zakir, Hiramoni assaulting his father with bricks and stones, nor she stated that Abdul Jabbar instructed the accused person to finish Ramaj Uddin Laskar. 12. Pw-3, Moin Uddin Laskar was the first informant, who lodged the FIR, Ext-1. He deposed that having come to know, that his uncle Rafiq Uddin Laskar, PW-6 was assaulted, he along with his father Ramiz Uddin younger brother Ripon Uddin Laskar went to the place of occurrence followed by PW-7, Bahar Uddin Laskar and found Rafique Uddin in the veranda of the pharmacy. He further stated that Romiz Uddin asked him to go to the accused persons to enquire whether they were interested to settle the matter amicably. On being asked by his father, he along with PW-7, Bahar Uddin Laskar went to the place of occurrence, which was in front of the house of the appellants, but as soon as they arrived the place of occurrence, all the accused persons started assaulting them with lathi, ''borga'' etc. Having seen the assault, PW8, Ripon Uddin Laskar and PW-6, Rafiq Uddin Laskar as well as deceased Ramiz Uddin Laskar also went and they were also assaulted by the accused persons and as a result of such assault, his father Ramiz Uddin Laskar (victim) sustained grievous injury. Having seen the assault, PW8, Ripon Uddin Laskar and PW-6, Rafiq Uddin Laskar as well as deceased Ramiz Uddin Laskar also went and they were also assaulted by the accused persons and as a result of such assault, his father Ramiz Uddin Laskar (victim) sustained grievous injury. Besides the victim, PW-6, PW-7 and PW-8 also sustained injuries. He further stated that accused Abul Hussain Mazumdar assaulted his father with a piece of wood. When he fell down, other accused also assaulted him. During crossexamination of these witnesses, it was elicited that when he along with his brother went to the place of occurrence on being instructed by his father (deceased) there were 20 to 25 persons present at the place of occurrence. 13. Pw-6, Rafiq Uddin Laskar stated, that when he reached near the shop of Abdul Matlab Mazumdar, accused Abdul Malik knocked him with the bicycle from behind and consequently he fell down to the ground. He further stated that when he raised objection as to why he was dashed, the accused persons Abdul Zabbar, Hira Moni Mazumder, Abdul Hussain, Zakir Hussain Mazumder, Abdul Malik Mazumder, Zamir Uddin Mazumder rebuked him by using dirty language and also assaulted him with lathi, borga etc. He further stated that after the assault, he left the place and reached the pharmacy of Moinul and her daughter (PW-1) informed Ramiz Uddin (victim) about the occurrence. Having received the information about the occurrence, Ramiz Uddin came there by a car followed by his sons, PW-3, PW-7 and PW-8. Romiz Uddin instructed his son to go to the accused person and to ask whether they were interested to settle the matter amicably and when PW-3, PW-7 and PW-8 went to the place of occurrence, they were assaulted by the accused persons. Having seen the accused persons, assaulting PW-3, PW-7 and PW-8, Romiz Uddin also ran to the place of occurrence to intervene and to settle the matter amicably, whereupon Abdul Hussain assaulted him with a piece of wood. 14. Pw-7 stated that having come to know about the occurrence, over phone, he along with his brother Ripon Uddin Laskar and his father Ramiz Uddin went to the place of occurrence and found Rafiquddin (PW-6) with injuries in front of the pharmacy of Moinul. 14. Pw-7 stated that having come to know about the occurrence, over phone, he along with his brother Ripon Uddin Laskar and his father Ramiz Uddin went to the place of occurrence and found Rafiquddin (PW-6) with injuries in front of the pharmacy of Moinul. He also stated, that having come to know about the occurrence from PW-6, when he along with Moinuddin and Ripon Uddin went to the place of occurrence, accused Abdul Matleb Mazumdar, Abdul Hussain Mazumder, Jakir Hussain Mazumder, Hiramoni Mazumdar, Abdul Jabbar Mazumdar, Abdul Malik Mazumder and Jamiruddin Mazumder started assaulting them. He also stated that Abdul Hussain Mazumder initially assaulted him with a lathi and receiving the injury he fell down. During his cross examination, it was elicited that his residence was at a distance of one and half kilometre from the place of occurrence. 15. According to PW-8, Ripon Uddin Laskar, when he reached the pharmacy of Dr. Moinul after getting the information, he found the PW-6 infront of the pharmacy. In the meantime, PW-3 & PW-7 also arrived there in a motorcycle. He further stated that on being instructed by his father, he along with PW-3 & PW-7 went to the place of occurrence by one motorbike and as soon as they reached the place of occurrence infront of the shop of Abdul Matlib Mazumdar, the accused persons, namely, Abdul Matlib Mazumdar, Abul Hussain Mazumdar, Zamir Uddin Mazumdar, Hiramoni Mazumdar, Abdul Zabbar Mazumdar, Abdul Malik Mazumdar started assaulting them with lathi, borga etc. Having seen them assaulted when Rameez Uddin Laskar (deceased) rushed to the place of occurrence to intervene, Jakir hit him by a brick and Abul Hussain Mazumdar hit on the head of his father with a piece of wood and he fell down on the ground receiving the injury. 16. Pw-2, PW-4 & PW-5 were the post occurrence witnesses and they did not have the opportunity to see the occurrence. 17. A dispassionate scrutiny of the oral testimony of all the five witnesses, who projected themselves as eye witness, crystalises that the occurrence took place twice and admittedly the first part of the occurrence was witnessed only by the PW1 and PW-6. Admittedly, the first part of the occurrence started when Abdul Malik Mazumdar, a young boy of 13/14 years dashed Rafikuddin (PW-6) with his bicycle, whereupon Rafiq Uddin Laskar assaulted Abdul Malik Mazumdar by giving a slap. Admittedly, the first part of the occurrence started when Abdul Malik Mazumdar, a young boy of 13/14 years dashed Rafikuddin (PW-6) with his bicycle, whereupon Rafiq Uddin Laskar assaulted Abdul Malik Mazumdar by giving a slap. When PW-6, Rafiq Uddin Laskar assaulted Abdul Malik Mazumdar for hitting him by his bicycle, the other appellants, namely, Abdul Hussain Mazumdar, Abdul Matlib Mazumdar, Jakir Hussain Mazumdar and Hiramoni came out and assaulted Rafiq. Therefore, the alleged assault by the appellants was evidently by way of retaliation, inasmuch as, other appellants were not present at the place of occurrence and they came to the place of occurrence, only when PW-6 assaulted Abdul Malik. It is also evident from the sketch map (Ext.9) that the place where Abdul Malik Mazumdar dashed Rafiq Uddin by his bicycle was infront of the house of the Abdul Malik, Abdul Matlib, Jakir Hussain etc. and they have also their shops adjacent to their residences. What thus transpires from the sketch map and the evidence of PW-1 and PW-6 is that the occurrence took place infront of the house of Abdul Matlib, Jakir Hussain and Hiramoni. Although, both PW-1 & PW-6 stated, that all the appellants assaulted Rafiq (PW-6) with fist, blows and pelting stone etc., the medical evidence, as deposed by PW-11 shows, that Rafiq Uddin sustained only a superficial injury i.e. abrasion on of the right knee joint, which according to the doctor could also be caused by dashing against hard substance. As already indicated above, PW1 did not implicate the appellant Matlib, Zakir and Hiromoni in his previous statement recorded under Section 161 CrPC. In the facts and circumstances of the case, the medical evidence as to injury sustained by PW-6 also assumes significance, reason being that had 5/6 persons assaulted PW-6 with fist blows and stone etc., there could not be a single superficial injury of abrasion only on the knee joint of the PW-6. Therefore, the nature of injury sustained by PW-6 also raises serious doubt about the veracity of the oral testimony of the PW-1 & PW-6 that all the appellants assaulted PW-6. 18. Therefore, the nature of injury sustained by PW-6 also raises serious doubt about the veracity of the oral testimony of the PW-1 & PW-6 that all the appellants assaulted PW-6. 18. It is in the evidence of PW-3, PW-6 PW-7 & PW-8, that after receiving the injury, Rafiq Uddin left the place of occurrence and reached the pharmacy of PW-3, were he was sitting and PW-1 informed Ramijuddin (deceased) and his son about the occurence, whereupon all of them came to the pharmacy of Moinul, where they found Rafiq Uddin sitting. Evidently, the pharmacy of Moinul, where Rafiq Uddin was sitting after the first part of the occurrence was at a distanced of about 400 meter from the place of occurrence. Admittedly, after getting the information that Rafique (PW-6) was assaulted, PW-3, PW-7, PW-8 and the deceased Ramizuddin came to the pharmacy of Moinuddin, where PW-6 and PW-1 were waiting after the first round of the occurrence. According to PW-1, PW-3, PW-6, PW-7 & PW-8, Ramizuddin instructed his sons (PW-3, PW-7 & PW-8) to go to the place of occurrence i.e. near the house of the appellants to enquire, as to whether they were agreeable to an amicable settlement and accordingly, when PW-3, PW-7 & PW-8 went to the place of occurrence, they were assaulted. Although, PW-1, PW-3, PW-6 & PW-8 deposed, that they went to ask the appellants as to whether they were agreeable to settle the matter amicably, and the appellants assaulted them, PW-7 did not support their version, inasmuch as, according to PW-7, having come to know about the occurrence from Rafikuddin, he along with his two brothers, PW-8 & PW-3 went to the place of occurrence near the house of the appellants to ask about the occurrence and they were assaulted. Although, PW-3 Moin Uddin Laskar stated in his evidence that on the instruction of the victim Ramijuddin, he along with his two brothers went near the house of the accused persons to discuss about the amicable settlement, in the FIR lodged by him (PW-3), he did not state that they went to the place of occurrence to enquire about any amicable settlement nor he stated about Ramizuddin sending them for any amicable settlement. According to PW-8, he along with PW-3 & PW-7 went to ask the appellant about amicable settlement, whereas, according to PW-3, he and PW-7 went for asking about the settlement and others including PW-8 went later. 19. In view of the above evidence, in our considered opinion, the story, which the prosecution witnesses sought to project, that the second round of occurrence took place when they went to enquire about the willingness of the appellant for amicable settlement is hardly inspiring confidence, for three reasons, firstly, the story of requesting the appellant for amicable settlement was apparently introduced for the first time in court and secondly, the oral testimony of the prosecution regarding their request for amicable settlement suffered from inconsistencies and thirdly, such a plea according to us suffers from the vice of inherent improbability, inasmuch as, when according to prosecution witness all the appellants assaulted PW-6 and appellants were the offenders, why the prosecution witness would go in a group to request for an amicable settlement. What therefore emerges from the evidence of the PW-1, PW-3, PW-7 & PW-8 is that they have been trying to suppress the real genesis of the second part of the occurrence. Therefore, the falsity of the prosecution story as to the genesis of the second part of the occurrence and the conduct of the prosecution witnesses, PW-3, PW-6, PW-7 & PW-8 in going to the place of occurrence, which was admittedly infront of the house of the appellant, for the second time, suggests the possibility of the prosecution witnesses themselves being aggressor for the second part of the occurrence. 20. Evidently, the occurrence initially started from a trivial issue of Abdul Malik Mazumdar, a young boy of 13/14 years hitting PW-6 Rafiq Uddin Laskar with his bicycle, and it was Rafiq Uddin, who first slapped Abdul Malik Mazumdar, a minor boy, whereupon the accused persons came out from their houses and assaulted the PW-6. Admittedly, the occurrence took place infront of the house of the appellants and they were initially not at the place of occurrence. The appellants came out from their respective houses situated in the proximity of the place of occurrence, only when the PW-6 assaulted Abdul Malik, a minor boy on trivial matter. Admittedly, the occurrence took place infront of the house of the appellants and they were initially not at the place of occurrence. The appellants came out from their respective houses situated in the proximity of the place of occurrence, only when the PW-6 assaulted Abdul Malik, a minor boy on trivial matter. Therefore, the facts and circumstances under which the occurrence took place, and the superficial injury sustained by PW-6 demonstrated that the alleged assault of Rafique (PW-6) by the appellants was nothing but an incident, which suddenly took place, because of the PW-6 assaulting a minor boy on a trivial matter. If the second part of the occurrence is taken into account, evidently the appellants were in their house near the place of occurrence and it were the prosecution witnesses, who were residing at a distance of one and half kilometer, came to the pharmacy of Moinul, and then all of them went to the place of occurrence to charge the appellants, whereupon the second part of the occurrence took place. What is therefore abundantly clear that the first part of the occurrence took place suddenly on a trivial issue and in the second part of the occurrence, prosecution witnesses themselves were the aggressor, therefore, evidently, there was no ingredient to invoke the provision of Section 149 IPC. 21. In order to invoke the provision of Section 149 IPC, firstly that there must be an unlawful assembly in terms of Section 141 IPC, secondly commission of offence by any member of the unlawful assembly, thirdly such offence must be committed in prosecution of the common object of the assembly or the member of the assembly must have the knowledge that such offence is likely to be committed. Therefore, the essence of the provision of Section 149 IPC to saddle constructive liability, is the common object. Before invoking the provision of Section 149 IPC, in order to fix vicarious liability on any person for the act of others, all the three essential requirements of constructive liability must be satisfied and the court has to give a definite finding as to the formation of unlawful assembly and as to what was the object of the unlawful assembly. Without a definite finding that there was an unlawful assembly and as to what was the common object, conviction cannot be recorded with the aid of Section 149 IPC. Without a definite finding that there was an unlawful assembly and as to what was the common object, conviction cannot be recorded with the aid of Section 149 IPC. In the present case, we notice, that the learned trial court did not record any finding as to what was the common object of the assembly. Be that as it may, we have already noticed that first part of the occurrence took place suddenly on a trivial issue of assaulting a minor boy by the PW-6, and in the second part of the occurrence the complainant party were the aggressor and as such in our considered opinion there was no materials to attract the provision of Section 149 IPC and therefore, each of the appellant shall be liable for his own acts. 22. As already indicated above, involvement of all the appellants in the first part of the occurrence was doubtful, inasmuch as, only one superficial injury was sustained by the PW-6. Regarding the second part of the occurrence, the consistent evidence of the prosecution witness was that only Abul Hussain hit the deceased Ramijuddin and PW-7 with a piece of wood and the injury caused to Ramijuddin became fatal. Although, the PW-1, PW-3 & PW-7 deposed that Abul Hussain assaulted Ramijuddin (deceased) on being instigated by Abdul Jabbar, none of them stated in their previous statement about Abdul Jabbar instigating Abul Hussain to assault Ramijuddin. Therefore, the testimony of the PW-1, PW-3 and PW-7 that Jabbar instigated Abul Hussain to assault Ramijuddin is hardly inspires confidence, inasmuch as, other witnesses who were also present did not state that Abdul Jabbar instigated Abul. Therefore, evidently, it was only the accused Abul who inflicted injury to the victim Ramijuddin with a piece of wood, which ultimately became fatal. Evidently, when the complainant party went to charge the appellants the occurrence took place in course of sudden fight and as such, apparently there was no premeditation or intention on the part of the appellant Abul Hussain to cause death of the victim Ramijuddin. Having regard to the nature of injury and the weapon used, it is also difficult to hold that the accused Abul had intention to cause such bodily injury as was likely to cause death. However, it is difficult to say, that he at least did not have the knowledge that the injury was likely to cause death. Having regard to the nature of injury and the weapon used, it is also difficult to hold that the accused Abul had intention to cause such bodily injury as was likely to cause death. However, it is difficult to say, that he at least did not have the knowledge that the injury was likely to cause death. Therefore, in absence of any premeditation and intention to cause death or intention to cause such bodily injury as is likely to cause death, the accused Abul also could not have been convicted under Section 302 IPC for murder, inasmuch as, the injury was inflicted in course of a sudden fight by giving a single blow . So far the other appellants are concerned, evidently, they had no role in causing injury to the deceased. Therefore, conviction of the appellants under Section 302 IPC is not sustainable. Accordingly we set aside the conviction of all the appellants under Section 302 IPC. We also set aside the conviction of the appellants under Section 148/147/325 IPC, inasmuch as the basic ingredient of the charge under Section 147 and 148 IPC being the unlawful assembly is found absent in this case. We also do not find any material for commission of offence under Section 325 IPC, inasmuch as, grevious hurt as defined in Section 320 IPC has not been proved beyond doubt. Therefore, we convict the appellant Abul Hussain under Section 304 Part-II. However, having regard to the injuries sustained by the prosecution witnesses and the involvement of all other appellants conviction under Section 323 IPC is sustained against all the appellants. 23. Having regard to the facts and circumstances under which the offence was committed, we are of the considered opinion that the sentence which the appellant Abul Hussain has already undergone shall meet the ends of justice. Accordingly, we sentence the appellant Abul Hussain under Section 304-II IPC for the period which he has already undergone in custody during investigation, trial and after conviction. For the charge under Section 323 IPC, the appellants are sentenced to simple imprisonment for one month. Accused Abul Hussain be released forthwith, if not required in any other case. As regard the other appellants, since they have already served their sentence under Section 323 IPC, and presently on bail, their bail bond shall stand discharged. 24. Accordingly, the appeal stands partly allowed. 25. Send back the LCR.