Crl.A. 27/2004 BEFORE THE HON’BLE MR JUSTICE AFTAB H. SAIKIA THE HON’BLE MR JUSTICE C.R.SARMA JUDGMENT AND ORDER ( ORAL) Aftab H.Saikia,J. 1. Heard Mr. J.M.Choudhury, learned Sr. Counsel assisted by Mr. B.M.Choudhu ry and Mr. U. Choudhury, learned Counsel for the appellants and also heard Mr. K .C. Mahanta, learned P.P, Assam. 2. The learned Additional Sessions Judge, ( for short, the learned Judge’ ) Cachar at Silchar by his judgment and order dated 4.12.2003 passed in Sessions Case No. 88/99 convicted all the 12 (twelve) appellants herein including one R anu Sarkar who is not before us , under Sections 302/149 IPC, having found them guilty of committing the crime of killing one Haripada Sarkar ( hereinafter ref erred to as’ the deceased ’ ) and sentenced eachl of them accordingly to undergo Rigorous Imprisonment ( for short,’R.I’) for life and to pay a fine of Rs. 100 0/- each, in default of payment of fine , to undergo R.I. for another 6 ( six ) months. 3. The appellants Aditya Sarkar and Dhirendra Das @ Dhirendra Sarkar were also convicted under Section 427 IPC and sentenced to undergo R.I. for 3 ( three ) months each. 4. The above conviction and sentence of the appellants have been founded on the following allegations as alleged in the F.I.R. lodged by one Bishnupada Sa rkar ( P.W-3) on 20.10.98 with I/C Molugram TOP under Silchar Police Station. 5. The abovementioned F.I.R. disclosed that on 19.10.98 when Shyama Puja was going on at the house of the complainant, P.W-3, around 11 or 11/30 P.M, the accused Bidu Sarkar , Gope Sarkar (both of them were found to be absconders and declared proclaimed offenders) and Aditya Sarkar @ Aditya Biswas and Dhiren dra Das being armed with sharp deadly weapons suddenly trespassed into their hou ses and started scolding and beating them. When came out of his house he found a ll those accused persons caused grievous injuries in the head and hands of his f ather Hiramoni Sarkar ( P.W-1) by assaulting him with sharp weapons held by them . They left the place by demolishing idol of Godess Kali . Thereafter half a n hour later all the accused persons namely, 1. Bidu Sarkar, 2. Gope Sarkar, 3. Aditya Biswas @ Aditya Sarkar, 4.Dhirendra Das, 5. Himangshu , 6. Bhanu Sarkar,7 . Kanu Sarkar, 8. Ranu Sarkar, 9. Paresh Sarkar, 10, Gopal Sarkar, 11. Rana Sark ar, 12. Ananta Biswas ,13. Sanjit Sarkar, 14. Giri Sarkar and 15. Haridhan Biswa s being armed with deadly weapons, lathi, sword, dagger, spear etc. and also for ming an unlawful assembly trespassed into their houses and attacked and assaul ted his father, mother, brother and sister-in-law. The accused Bidu Sarkar dragg ed his elder brother Haripada Das ( since deceased) and killed him by assaulti ng in the chest with a sharp dagger. When they raised alarm , neighbours came an d all the accused persons fled away. 6. On the basis of this claim , police initiated the investigation and on completion of the same submitted chargesheet against all the appellants. 7. During the trial the accused Bidu Sarkar @ Bidu Biswas @ Bidhan as well as Gope Sarkar were found to be absconders and declared proclaimed offenders wh en the present appellants faced the trial. 8. The prosecution examined as many as 12 witnesses including P.W-1,Hiramo ni Sarkar, P.W-2 Bijoy Sarkar, P.W-3, Brishupada Sarkar, P.W-4 Kalipada Sarkar a nd P.W-9 Maharatna Biswas as eye witnesses to the occurrence when P.W-10 Dr. K. K.Chakravorty and P.W-12 Dr. Arun Deb Nath, who performed autopsy on the dead bo dy of the deceased and examined the injured P.W-1 Hiramoni Sarkar respectively were projected as official witnesses. 9. The learned Judge having appreciated the evidence on record in its entir ety and also upon hearing the learned counsel for the parties was of the view th at all the appellants were involved in commission of the offence of murder so ch argesheeted against all of them under Sections 302/149 IPC and convicted and sen tenced them accordingly. 10. The aforesaid conviction and sentence have been questioned in this crimi nal appeal. 11. Mr.J.M. Choudhury, learned Senior. Counsel in support of the appeal as w ell as assailing the impugned conviction and sentence has forcefully contended t hat the evidence of so-called eye witnesses P.W-1 to P.W-4 were not reliable , c redible and believable and such testimony as eye witnesses cannot be accepted in the facts and circumstances of this case. 12. While drawing our attention to the deposition of those witnesses word by word, it is argued by the learned Sr. Counsel that the deposition of all those witnesses were full of infirmities, inconsistencies and uncorroborative. He has further contended that since basically all the four witnesses i.e. P.W-1 to P.W -4 were related and interested witnesses, they were tutored and their evidence s cannot be taken into consideration. Rather strong emphasis has been placed by Mr. Choudhury, learned Sr. Counsel that the only ocular evidence of the sole i ndependent witness P.W-9 had its credibility and if the evidence of this witnes s is believed, the testimony of all other 4 ( four) eye witnesses deserve to b e ignored and brushed aside. According to Mr. Choudhury, it was the accused Bi du Sarkar @ Bidu Biswas who inflicted bhujali blows on the chest of the decea sed. P.W-9 in his evidence categorically stated that it was Himangshu only who w ent inside the house and brought the deceased out from inside the house and at the same time he also deposed that accused Kanu and Ranu brought the deceased from inside the house.Amongst all the 7 ( seven ) accused persons named by him namely , Bidu, Himangshu, Sanjit, Aditya, Kanu, Ranu and Gope, one of them stabb ed the deceased on the chest with kiris and at that time deceased felled do wn. The learned Sr. Counsel has also drawn our attention to the medical evidence where P.W-10 Dr. K.K.Chakravorty who conducted autopsy on the dead body of the deceased, found the following injuries on the dead body of the deceased. One penitrating wound present on the left chest wall in upper torn and l aterally 2 c.m. below the lateral left clavicle 3 c.m. X ‰ X apex of left lung margins- regular. On tracing the path it has entered into apex of by lung making a wound 1 ‰ c.m X ‰ X 1 c.m. on the left lung. . 13. Referring to the above single injury, Mr. Choudhury,has stressed that when from the medical evidence, it appears, only one fatal injury was inflicted , it is common knowledge that keeping in view the assault caused on the deceas ed, as narrated by those witnesses, P.W-1 to P.W-4, definitely there ought to have been more injuries i.e. multiple injuries found on the body of the deceas ed. However, all the four witnesses i.e. P.W-1 to P.W-4 adduced to the effect t hat it was Bidhan who gave the fatal single blow being corroborated with the me dical evidence It is stated that there was no intention to kill the deceased. He has also argued that it has come on evidence on record that there was a quar rel occurred between all of them them as regards offering of prasad at the p lace of worship of Kalipuja .It has also argued on behalf of the appellants that P.W-1,P.W-3 and P.W-4 had given a different version as regard to the offen ding weapons .As per P.W-1 bhujali blow was given upon the deceased when ac cording to P.W-4 it was a kiris blow and P.W-3 deposed that it was a chaku blow. 14. That being the true factual position ,according to the learned Sr. Couns el, it is not a case for conviction under Section 302 IPC but it may be a case o f 304 Part-II IPC 15. On the contrary, Mr. K.C.Mahanta, learned P.P,Assam, in support of the c onviction and sentence, has submitted that all those eye witnesses i.e. P.W-1 t o P.W-4 and P.W-9 made a corroborative statements as regard the involvement of the appellants in furtherence of the common object to rope them in the offence under Sections 149/ 302 IPC and since the deceased was killed in consequence of such common object, the learned Judge was totally correct and justified in hand ing down the impugned conviction and sentence upon all the appellants. 16. Countering the allegation as regards the use of the weapons by which b low was inflicted upon the deceased, Mr. Mahanta, learned P.P, has submitted th at it is a minor discrepancy and failing to give the correct name of the weapon cannot be a ground for interference with the impugned conviction and sentence. At any case, it was a deadly weapon as evident from the medical evidence and hence it is submitted by the learned P.P. that the death was culpable homicid e in nature due to the assault on the person of the deceased by a sharp weapon which might be a dagger or bhujali or chaku or kiris . 17. We have given our anxious consideration to the extensive argument so ad vanced on behalf of the learned counsel for the parties as well the learned P.P, Assam. 18. We have seen from the close reading of the evidence of those witnesses b asically P.W -1 to P.W-4 and P.W-9, it is found that they named only one perso n i.e. Bidhan @ Bridhu who inflicted the fatal blow on the person of the decea sed which has been duly corroborated by the medical evidence. However, Bidhan a nd Gope Sarkar was found to be absconders and both of them were declared proc laimed offenders. 19. That being so, the moot question is as to whether the conviction of all those appellants can be sustained under Section 302 IPC by indicting them for their involvement in the offence in furtherence of the common object to attract the provision of Section 149 IPC. True it is that as per evidence of P.W-1 to P. W-4 and P.W-9 all those appellants came to the house of the complainant( P.W-3 ) for the second assault but of them 4 accused namely Bidhan, Gope, Aditya and Dhirendra took active part in search of Haripada and three of them namely Go pe, Aditya and Dhiren entered into the house and brought out the deceased, It is on evidence that it was Bidhan who inflicted bhujali or chaku blow on he chest of the deceased.This evidence however, to some extent has been diluted by the evidence of P.W-9 Maharatna. According to him Bidhan, Aditya,Gope, A nanta and Himangshu came out from the house and at that time P.W-7 restrained all those appellants and amongst the 7 persons one of them struck the deceased with a kiris blow on his chest. Since all the 4 eye witnesses already corrob orated in their evidence as regards the fatal blow, we have unhesitatingly incli ned to hold that it was Bidhan who inflicted the fatal injury along with all tho se appellants herein in furtherence of an unlawful assembly committed such crime so as to indicate their involvement in the offence under Section 149 IP C. We are fully agree with the view taken by the learned Trial Court. 20. Now as regards the conviction of the appellants under Section 302 IPC, t here is evidence that initially there was a quarrel started amongst all of th em pertaining to the distribution of ’prasad’ in Kalipuja and at that time 4 accused persons namely Bidhan, Aditya, Dhhirendra and Gope assaulted P.W-1 whos e injuries has been duly corroborated by the medical evidence of Dr.P.W-12 Arun Deb Nath who found the following injuries on the person of P.W-1. 1. Sharp injury over right side of head about (L X B)=3 C.M. X1/2 C.M. and ano ther about 4 C.M. X 1 C.M. 2. One blunt injury over left side of head. 3. Abrasion over face by theside of both eyes infront of ear. 21. It has come on record by way of suggestion that it was the deceased who earlier chased away of the accused persons and assaulted Gope for making hulla i n the Puja Mandap. Later on a sequal of earlier quarrel with a view to retaliate the earlier grudge, the appellants in a group attacked the house of the decease d and ultimately in the process the deceased was dragged out and it was the Bidh an who thrust the fatal blow. It also appears from the scrupulous scrutiny of the fact situation, there was no intention to kill the deceased keeping in view the single fatal injury inflicted by the appellant Bidhan with a Chaku or, Bhujali blow on the chest of the deceased. There was no word in the evidence as regard the participation of the rest of the appellants in the commission of of fence. 22. Having considered the facts and circumstances in its totallity and also upon hearing the learned Counsel for the parties, we are of the firm view that the offence of committing the crime charged does not fall within the purview o f Section 302 IPC, rather it is a case of Section 304 Part-II IPC . However, mai ntaining the conviction under Section 149 IPC, we intend to convict the appell ants under Section 304 Part-II IPC and accordingly sentenced them R.I. for 6 ( Six) years. 23. In the result, this appeal stands partly allowed to the extent of modifi cation of sentence and conviction as indicated above. 24. Send down the L.C.R. forthwith. 25. At this stage Mr. Choudhury, learned Sr. Counsel has submitted that the appellant Ranu Sarkar, who did not prefer any appeal, may also be given the be nefit of this decision. In making this submission, he has relied upon the decis ions of the Supreme Court reported in (2005) 12 SCC-209 ( Munna Kumar Vs. State of Bihar and (2005) 12 SCC 607 ( Sohan Singh Vs. State of Uttaranchal) . It was held in both the above cited au thorities that non- appealing co- accused would be entitled to the benefit give n to the accused/ appellants who came before the Court in appeal. 26. In view of the above and also having regard to the above cited cases, th e benefit of this decision be also extended to Sri Ranu Sarkar who is non- ap pealing accused.