Crl.A. 335/2001 BEFORE HON’BLE MR JUSTICE P.G.AGARWAL ORAL Heard Mr. H.R.A.Choudhury, learned Senior Counsel appearing for the appellants and Mr. P.C.Gayan, learned P.P., Assam. 2. In Sessions Case No. 29(N)/94 eighteen accused persons were trie d by the learned Additional Sessions Judge, Nagaon for commission of offence und er Section 147/ 448/302 IPC. During trial, accused Abdul Rakib died. On conclusi on of trial three accused persons were acquitted and remaining 14 appellants, wh o are before us, have been convicted by the learned trial Court under Section 14 7/448/323 IPC. They have been sentenced to undergo imprisonment for two years fo r the offence under Section 147 IPC and have also been sentenced for one year im prisonment for the offence under Section 448 IPC and 323 IPC, which would run co ncurrently. 3. The deceased Azizur Rahman was serving as Clerk at Ambari High School. On 13.07.90 while he was working in the school, the accused appellants w ent to the school and sought for some records from him. As the victim refused, t hey started altercation with him. The accused persons tried to assault Azizur Ra hman, who took to his heels, but the accused chased him and after assaulting car ried him along with them. Nasir Ahmed Laskar (PW-1), a teacher in the school, wh o saw the incident, tried to intervene, but he was thrown out. PW-1 lodged the F IR whereupon the police started investigation and recovered Azizur Rahman and he was sent to hospital for treatment. The injured was sent back to home after two days. He again suffered pain etc. and was removed to hospital where he died on 19.08.90 i.e. twenty days after the incident. 4. During trial, the prosecution examined as many as 10 witnesses and the d efence examined two. 5. PW-8 Dr. Dilip Kumar Baruah held autopsy on the deceased Azizur Rahman a nd found no injury. The doctor was, however, of the opinion that the death was d ue to perforated duodenal ulcer and its complicacy arising from said ulcer. The trial Court therefore gave benefit to the accused persons and held that this is not a case under Section 302 IPC. 6. So far the incident of assault is concerned, there is evidence of PW-1 N asir Ahmed, who has given a detailed statement which is supported by Rafique Ahm ed (PW-2) another witness. We also find that there is a dying declaration Ext.8, recorded on 11.08.90. The evidence on record further shows that the accused per sons were all outsiders and they had no business in the school and as such, the deceased had rightly refused to show the school records to them whereupon he was assaulted. The deceased might have been suffering from duodenal ulcer and as a result of assault there was perforation on the ulcer, but there is no material t o hold that the accused persons knew about the ulcer of the deceased and hence t he deletion of Section 302 IPC by the trial Court was in accordance with law. 7. In the present case, we find altogether 14 persons have been con victed on the basis of the dying declaration Ext.8. From perusal of the evidence of PW-1 and others along with the dying declaration, we find that there are mat erials against the accused appellant Nos. 1, 3, 6, 7, 8, 9, 11 & 12 only and so far the accused appellants No.2, 4, 5, 10, 13 and 14 are concerned there is no s pecific mention of their names. Accordingly, the appeal filed by appellant No. 2 Sahabuddin Barbhuya; No.4 Abdus Sattar Choduhury; No.5 Botir Ali @ Ataur Rahman ; No.10 Farjan Ali; No.13 Baharuddin Barbhuya and No.14 Ashikur Rahman, is allow ed. Their conviction and sentence are set aside. The conviction of other appella nts namely, No.1 Kirendra Sarkar, No.3 Fakharuddin, No.6 Fakaruddin Ahmed, No.7 Muslimuddin, No.8 Abdul Gafur, No. 9 Abdul Karim, No.11 Noor Islam and No.12 Kut i Miah under Section 147/448/320 IPC is maintained. 8. Coming to the imposition of sentence in respect of accused appel lant Nos. 1, 3, 6, 7, 8, 9, 11 and 12 we provide as follows:- (1) for the offence under Section 147 IPC, these eight accused appel lants are sentenced to undergo imprisonment for one year; (2) for the offence under Section 448 IPC, the these eight accused a ppellants shall undergo imprisonment for six months; and (3) for the offence under Section 323 IPC, the accused appellants sh all undergo imprisonment for one year. All the sentence shall run concurrently. 9. The appellant Nos. 1, 3, 6, 7, 8, 9, 11 and 12 shall surrender bef ore the learned Sessions Judge, Nagaon to serve out their sentence. 10. Send down the records to the learned Sessions Judge, Nagaon, who s hall take the eight accused appellants into custody to serve out the sentence.