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1. The three respondents-(1) Bhabananda Sarma. (2) Phanidhar Sarma and (3) Harendra Nath Sarma; who are brothers were charged under Sections 302/34 and 323/34. Indian Penal Code and tried by the learned Sessions Judge. L. A. D. Gauhati. On consideration of the evidence on record, the learned Sessions Judge by his judgment and order dated 24-7-68 acquitted the Respondents on benefit of doubt and the present Government Criminal appeal is directed against this order of acquittal.

2. The prosecution case may be briefly stated: On 10-11-67. at about 7 A. M. in the morning. Sashi Mohan Sarma (deceased) was proceeding to their field with some mustard seeds in a 'Kharahi' (basket) for sowing in the field. His elder brother Gopinath Sarma was also going with him taking some cattle to be tethered in the field. They proceeded together about half a furlong from their house by the village path when Gopinath with the cattle left the path and proceeded to nearby field for tethering the cattle and Sashi Mohan proceeded along the path towards their field where their ploughmen were working. In the meantime, the three accused persons, namely (1) Bhabananda Sarma, (2) Phanidhar Sarma and (3) Harendra Nath Sarma chased Sashimohan with weapons in their hands, Bhabananda had a lathi in his hand. Phanidhar had a 'dalibari' (a wooden hammer with a long handle for breaking clods of earth) and Harendra had an iron rod in his hand. Having been so chased by the accused persons. Sashimohan ran towards his brother Gopinath raising alarm all the way.

If the right of private defence was available to Phanidhar and Haren in the instant case as observed by the learned Sessions Judge, their presence cannot be denied and thus their plea of alibi stands negatived on that very ground. Whatever that may be. the evidence on record clearly establishes that all the 3 accused persons, namely. Bhabananda. Harendra and Phani were present at the time of the assault. Let us first consider the question of right of self defence of Bhabananda. The injuries on Bhabananda are 3 ecchymoses and one abrasion at the root of the right index finger and the evidence on this point does not disclose that he received any serious injuries as discussed above. The point, therefore, arises for consideration is as to who were the aggressors in the instant case. The evidence on record shows that Sashi and P. W. 2 proceeded along the path to the field one carrying a Kharahi of mustard seeds and the other with some cattle to tether along the path to some distance and thereafter P, W, 2 sidetracked and left the path and went towards the field to tether the cattle and Sashi was proceeding along the path with the kharahi in hand.