P.K.GOSWAMI, J. - (1.)THIS appeal from jail is directed against the judgment of conviction under Section 304 part I read with Section 34 and also under Section 326 read with Section 34, l.P.C. and sentence of rigorous imprisonment for ten years on the first count and three years under the second count to run concurrently passed by the learned Additional Sessions, Upper Assam Districts at Dibrugarh.
(2.)THE prosecution case is that the deceased Bharat Pradhan was in possession of a plot of land with bamboos standing thereon. There was already a dispute with respect to that land for which there was a proceeding under Section 145, Criminal Procedure Code, and the preliminary order was drawn on 14 -5 -1962 and also the land was attached on the same day, as will appear from Exhibit 2. It is said that the accused armed with axes and daos started cutting the bamboos on the land, whereupon the deceased Bharat Pradhan along with others went and protested, at which the accused persons dealt dao and axe blows on Bharat, who succumbed to the injuries. Mahi Chandra Pradhan also was in that group and when he intervened, he was also assaulted and he sustained grievous injuries. After the incident they were both lying injured on the land.
The defence of the accused is that they claim possession of the land and on that day in order to save their crops from damage by cattle they were cutting bamboos on the land to make some fencing.

(3.)INITIALLY there were six accused who were charged, but the learned Additional Sessions Judge acquitted Dhaneswar Goala and Pacha Mura on the view that these two persons were merely labourers and had not shared any common intention to assault the complainant party.
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