Crl.A. 98/2007 BEFORE THE HON’BLE MR JUSTICE P.K. MUSAHARY Heard Ms. B. Sarma, learned counsel for the appellants. Also heard Mr. B.B. Gogo i, learned Addl. PP, Assam. 2. Two appellants are before this Court challenging the judgment and order dated 3.5.07 passed by the learned Sessions Judge, Cachar, Silchar in Sessions C ase No. 32/2004 convicting the accused appellant No.1 and sentencing him to unde rgo R.I. for 5 years under Section 304(II) IPC and convicting the accused appell ant No.2 and sentencing him to undergo R.I. for 3 years and to pay a fine of Rs. 1000/-, in default to suffer further R.I. for 1 month under Section 325 IPC. 3. The prosecution story as unfolded from the ejahar is that on 10-12-1999 at 5 p.m. the informant had a quarrel with the accused appellants concerning bou ndary land. The father and elder brother of the informant intervened and it was alleged that the appellant No.1 assaulted Sabir Uddin, an elder brother of the i nformant, by a dao causing serious injuries. At that time the neighbours came an d shifted the injured to the Silchar Medical College & Hospital but on the follo wing day the injured succumbed to his injuries. A crime being Sonai PS Case No.4 81/99 was registered on the basis of the FIR under Section 302 IPC. The police d uly investigated into the occurrence by conducting inquest, preparing sketch map , procuring post mortem report of the deceased and recording the statements of t he witnesses. Thereafter chargesheet was laid under Section 324/325/302/34 IPC. The Judicial Magistrate concerned committed the case to the Court of learned Ses sions Judge, Cachar whereupon a Sessions Case being No.32/2004 was registered. O n consideration of the materials made available by the police, the learned Sessi ons Judge framed charge under Section 302/325/323/34 IPC against the accused app ellants. They pleaded not guilty and claimed to be tried. 4. The learned Trial Court, during trial examined 11 prosecution witnesses including the I.O. and the medical officer. At the conclusion of the trial, upon hearing the learned counsel for the parties and on consideration of the evidenc e and materials on record, the learned Trial Court convicted and sentenced the a ccused appellants as indicated earlier. 5. At the outset Ms B. Sarma learned counsel submits that so far accused ap pellant No.1 Sahab Uddin Borbhuiya @ Fazu Uddin is concerned he has been serving the sentence since 3-5-2007, i.e. since the pronouncement of the judgment by th e learned Trial Court and by now he has been in jail for about 3 years 9 months and he has served the substantial portion of the sentence. Under such circumstan ces, it has been submitted by the learned counsel that the conviction in respect of the accused appellant No.1 may be upheld with modification in the sentence b y way of reducing it from R.I. for 5 years to the period already undergone by hi m. 6. In my considered view it a fair submission on the part of the learned co unsel for the appellants in respect of the appellant No.1 and I am of the consid ered view that since the appellant No.1 has already served the major portion of the sentence, i.e. about 3 years 9 months, the interest of justice would be serv ed if the conviction is maintained with reduction in the sentence, i.e. the peri od already undergone by him. It is ordered accordingly. The accused appellant No .1 be set at liberty forthwith, if his further detention is not required in conn ection with any other case. 7. So far the accused appellant No.2 is concerned, it is submitted by Ms B. Sarma, learned counsel that he has not been named as an accused in the FIR (Ext -1). In the evidence of the prosecution witnesses also he has not been implicate d as an accused person and no such material has been produced against him involv ing him in the alleged incident/offence. The conviction of the accused appellant No.2 under Section 325 IPC is based on no evidence and as such he is liable to be acquitted from the charge. 8. I have screened the evidences adduced by the prosecution with the assist ance of Mr B.B. Gogoi, learned Addl P.P. PWs-8 and 9 are the police officials, P Ws-10 and 11 are the medical officers. The unofficial witnesses PW-1 to PW-7 are related/interested witnesses. There is no independent witnesses produced by the prosecution. The said related witnesses, PW-1 to PW-7, no way in their evidence deposed that they had seen the accused appellant No.2 lending any hand to accus ed appellant No.1 in assaulting the deceased. This appellant No.2 is the younger brother of accused appellant No.1 and there is no material on record that he ai ded or connived his accused elder brother Sahab Uddin Borbhuiya in committing th e crime. 9. What is to be noted is that, no charge has been framed under Section 34 IPC against the accused persons. In absence of Section 34 IPC there cannot be an y conviction on the ground of common intention in committing the offence. Of cou rse this has not been done by the learned Trial Court, but I am mentioning this point only to say that there is no case of committing crime with common intentio n within the meaning of Section 34 IPC. This being the position I am unable to p ersuade myself to uphold the conviction and sentence as awarded by the learned S essions Court vide the impugned judgment and order dated 3-5-2007. The prosecuti on, in my considered view failed to prove the charge under Section 325 IPC again st the accused appellant No.2 beyond any reasonable doubt as required under the criminal jurisprudence and as such the accused appellant No.2 Rafique Uddin Borb huiya @ Tamij Uddin is liable to be acquitted on the benefit of doubt. It is ord ered accordingly. The accused appellant No.2, Rafique Uddin Borbhuiya @ Tamij Ud din be set at liberty forthwith, if his further detention is not required in con nection with other case. Bail bond stands discharged. 10. The appeal stands allowed and disposed of with the aforesaid observation and modification. LCRs may be returned immediately.