Crl.A. 304/2004 BEFORE HON’BLE MR. JUSTICE H. BARUAH Heard Mr. J.M. Choudhury, learned Senior Counsel assisted by Mr. P. Kataki and M r. D. Bagchi, learned counsel appearing on behalf of the appellants and Mr. B.S. Sinha, learned Additional Public Prosecutor, Assam. 2. Challenging the legality and correctness of the impugned Judgmen t and Order of conviction dated 4/10/04 rendered by the learned Sessions Judge, Cachar, Silchar in Sessions Case No. 10/02 sentencing the appellants to undergo rigorous imprisonment for 5 years and to pay a fine of Rs.2000/-, in default, ri gorous imprisonment for a further period of 6 months each, this present appeal h as been preferred by the appellants in view of the grounds contended and incorpo rated in the Memo of Appeal. 3. The appellants, Birendra Roy @ Birailal Namasudra and Solaram Ro y along with Hironmoy Nath @ Path Nath, Rinku Deb @ Sujit, Benu Bhadra @ Nirmal , Anu Roy, Dhananjoy Namasudra, Pinku Deb, Nipendra Deb and Biddut Namasudra sto od charged for alleged commission of offence under Section 149/302 IPC before th e learned Sessions Judge, Cachar, Silchar for killing one Makaddas Ali Mazumdar on 22nd October, 1995 at 6:00PM at Quarpar Bazar within the jurisdiction of Silc har Police Station. 4. The brief facts leading to the charges run as follows: On 22/10/95, deceased Makaddas Ali Mazumdar had been to the tea stall belonging to one Thakur situated at Quarpar Bazar at about 6:00 PM. At t hat time a rioting was going on in the market. Having heard hue and cry, the ow ner of the tea stall, Thakur closed the door and windows of the shop. But sudden ly accused Biddut, Dhananjoy and other accused persons came and dragged out the deceased Makaddas Ali Mazumdar from inside the tea stall and assaulted him to de ath. Since, Makaddas Ali Mazumdar did not return home on the said night, his so n Nazmul Haque Mazumdar searched for his whereabouts at several places during th e night. On the following morning, he approached the police station where he rec eived the information that his father Makaddas Ali Mazumdar had been killed and removed to Silchar Medical college Hospital. Nazmul Haque Mazumdar immediately ran to the Hospital wherein he found the dead body of his father. Postmortem exa mination was conducted on the dead body of his father by the hospital authority. Nazmul Haque Mazumdar accordingly lodged an FIR (Ext.1) with the Officer-in-Cha rge, Silchar Police Station on 25/10/95. The case was registered accordingly. Investigation proceeded. Police visited the place of occurrence and prepared a s ketch map of the place of occurrence, held inquest on the dead body of Makaddas Ali Mazumdar before conducting the postmortem examination by the hospital author ity. After due investigation of the case, the Investigating Officer submitted t he chargesheet against both the appellants including the other accused persons u nder Sections 149/302 IPC. 5. The case being committed to the Court of Sessions, the learned S essions Judge having found sufficient materials showing involvement of the appel lants and others framed charges under Section 149/302 IPC to which both the appe llants and other accused persons pleaded not guilty and claimed their trial. 6. Altogether 9 witnesses were examined by the prosecution to bring home the charges framed against the accused persons including the Doctor and th e Investigating Officer. 7. Now issue to be decided in this instant appeal is whether the im pugned Judgment and Order of conviction so awarded by the learned Sessions Judge requires interference of this Court in view of the facts and evidence on record . Death is not denied. Evidence of Doctor (PW.9) along with Ext.-4 goes to sho w that deceased Makaddas Ali Mazumdar died as a result of head injury sustained by him. It is found from his evidence that on 24/10/95 he was an Associate Profe ssor of Forensic Medicine at Silchar Medical College and Hospital. On that day , Dr. S.I. Barbhuiya, an Assistant Professor of Forensic Science of the Hospital , who was working under him, was the in-charge of the department. Dr. S.I. Barb huiya, on 24/10/95 conducted postmortem on the dead body of the deceased Makadd as Ali Mazumdar and accordingly submitted a postmortem report (Ext.4) wherein th e signature of Doctor, S.I. Barbhuiya appears. He knows the signature of Dr. S.I. Barbhuiya since he (Dr. S.I. Barbhuiya) was working under him. So, apparen tly the PW.9 did not conduct the postmortem examination on the dead body of the deceased Makaddas Ali Mazumdar rather autopsy was conducted by Dr. S.I. Barbhuiy a, the Assistant Professor of Forensic Science of the Silchar Medical College an d Hospital. The postmortem examination report was proved and marked as Ext.4. The postmortem report (Ext.4) speaks for discovery of 6 numbers of injuries on t he dead body of Makaddas Ali Mazumdar while conducting the postmortem examinatio n by Dr. S.I. Barbhuiya. The injuries were as follows: (1) Incised wound of size 5cm. X 1cm. X muscle deep present in the back of neck in upper part about the middle transversely placed, (2) Incised wound of size 2.5cm. X 1cm. X muscle deep present 4cm above the ri ght elbow, (3) Lacerated injury of size 1.5cm. X 1cm. At right cheek, (4) Lacerated injury of size 1.5cm. X 1cm. X 4cm. Medial to injury No.3 , (5) Contusion 7cm. X 4cm. Right cheek, (6) Incised wound of size 3cm. X 1cm. X skull deep present in the frontal region of scalp and the scalp was found contused underneath. From the testimony of the Doctor, it is also found that all thes e injuries were ante-mortem and homicidal in nature. 8. From the evidence of PW.9 and the injuries so discovered upon th e dead body of deceased Makaddas Ali Mazumdar, we can not come to a conclusion t hat death was not caused as a result of injuries sustained, more particularly, i njuries sustained on his head. 9. The second issue to be decided is that who caused the death of t he deceased Makaddas Ali Mazumdar on the relevant day. In answer to this questi on, we are to look into the evidence of other witnesses available on record. 10. PW.1, Nazmul Haque Mazumdar, the son of the deceased apparently is not an eye-witness to the occurrence. He came to know about the death of his father while he had gone to the police station in search of his father. 11. Evidence of PW.2, PW.3, PW.4, PW.5 and PW.6, in this case, playe d a vital role in proving the charges levelled against the appellants and others accused persons. From a close scrutiny of their evidence, it is found that the y all had witnessed the assault upon the deceased Makaddas Ali Mazumdar while th ey were all in the Bazar. 12. PW.2, Ataur Rahman was a vegetable vendor at the relevant point of time. On 22/10/95, he had been to the Bazar for the purpose of selling veget able etc. While he was in the market, he heard hue and cry in the market and out of fear, shop owners were closing the shutters of their respective shops. Peop le were running chaotically. Out of fear, he also fled away from his shop and c limbed to a nearby tree and from the top of the tree he noticed that Makaddas Al i Mazumdar was being dragged out from inside the Thakur’s tea stall by Biddut , Dhananjoy and Birai. Accused appellants Solaram also joined them. He saw them a ll assaulting Makaddas Ali Mazumdar with deadly weapons. Consequently, Makaddas Ali Mazumdar sustained injuries and succumbed to those injuries instantly. The assailants removed the dead body from the place and left. 13. PW.3, Anam Uddin Laskar calimed to have witnessed the assault up on the deceased by the appellants and other accused persons who faced the trial. PW.4, PW.5 and PW.6 also claimed to have witnessed the assault upon the deceas ed by the appellants. The testimony of these witnesses, therefore make it appar ently clear that it were the appellants and other accused persons, who stood cha rged, caused the death of the deceased Makaddas Ali Mazumdar by resorting to ass ault near the shop of Thakur situated within the market. 14. Mr. J.M. Choudhury, learned Senior Counsel while arguing this ap peal, strenuously argued that the evidence of so called eye witnesses cannot be believed and taken into, considering the facts situation described by them. Fac ts do not suggest that they had actually witnessed the occurrence i.e., the assa ult on the deceased Makaddas Ali Mazumdar, on 22/10/95. 15. Mr. B.S. Sinha, learned Additional Public Prosecutor put a stron g objection against the submission of Mr. Choudhury, in view of the evidence on record, more particularly, the evidence of PW.2, PW.3, PW.4, PW.5 and PW.6. Acc ording to him, there is nothing to disbelief the evidence of PW.2, PW.3, PW.4, P W.5 and PW.6. Their evidence in the fact situation can be believed without any hesitation whatsoever. In the market place people generally run chaotically whe n some incident occurs inside the market. Witnesses being the businessmen earnin g their livelihood by selling vegetables etc. were all along present in the mark et. They might run out of fear, but they witnessed the assault on the deceased Makaddas Ali Mazumdar by the appellants and other accused persons on their own e yes. So, according to him, the argument put forward by Mr. Choudhury that the e vidence of those witnesses cannot be relied upon, is not acceptable. It is furt her submitted by Mr. B.S. Sinha, that all the witnesses, namely, PW.2, PW.3, PW. 4, PW.5 and PW.6 are found corroborative in material particulars and those appea rs to be cogent and sufficient reason to believe them. 16. In view of the rival submissions made by the parties, this Court has carefully perused and scrutinized the evidence of those witnesses. This Co urt does not find any major discrepancies in their evidence, which however, can demolish the case of the prosecution. When the evidence of witnesses are found to be corroborative in all material particulars, the minor discrepancies occurri ng here and there cannot shake/demolish the prosecution case at its root. This Court on meticulous examination of the evidence of PW.2, PW.3, PW.4, PW.5 and PW .6 does not find that the appellants and other accused persons never assaulted t he deceased Makaddas Ali Mazumdar on the relevant day and time. This Court, the refore, does not find any force in the submission of Mr. Choudhury, learned Seni or Counsel for the appellants to disbelief the evidence of PW.2, WP.3, PW.4, PW. 5 and PW.6. 17. Now, it is submitted by Mr. J.M. Choudhury, leanred Senior couns el for the appellants that both the appellants along with other accused persons stood charged under Section 149/302 IPC and when the prosecution, according to t he learned trial court, has proved the case beyond reasonable doubt, difference in awarding punishment to the accused persons found guilty is not acceptable. Re ferring to the operative portion of the Judgment, Mr. Choudhury has submitted th at when the appellants and other two accused were held guilty under Section 304 Part-II/34 IPC, all those accused persons ought to have received a similar punis hment. But the learned trial court, while awarding punishment distinguished the same, which is however, not appreciable. 18. It is to be noted, at this stage that the learned Sessions Judge on the basis of facts and evidence on record convicted Anu Roy and Path under S ection 304 Part-II/34 IPC along with the appellants. Since the accused Dhananjo y and Birendra absconded, no conviction was awarded to them and the remaining ac cused persons were also acquitted from the charges. 19. From the perusal of the Judgment, it is seen that before awardin g the sentence each of the accused persons was heard on the point of sentence an d the accused persons while examined on the point of sentence, pleaded that they were the sole bread earners of their family and thus prayed for lenient punishm ent. 20. The learned trial court having considered their submissions, awa rded the punishment to the present appellants as mentioned above while Anu and P ath were sentenced to undergo rigorous imprisonment for 2 years and to pay a fin e of Rs.1000/- , in default, rigorous imprisonment for a further period of 3 mon ths each under Section 304 Part-II/34 IPC. 21. Mr. J.M. Choudhury, learned Senior Counsel for the appellants wh ile arguing the case also submits that since the learned Sessions Judge dealt wi th the offenders differently and imposed punishment not in the same scale, the a ppellants deserve lesser punishment. Mr. Choudhury further prays before this Co urt to reduce the sentence of the appellants to a sentence already undergone. 22. When all the accused persons are found guilty for a commission o f a particular offence, the punishment should be awarded generally in the same s cale without any distinction. Here, in this case we have found that the learn ed Sessions Judge dealt with the accused persons in different scale in awarding the punishment. 23. Having considered all the matters in its entirety and for the en ds of justice, the sentence of the appellants is modified to a sentence already undergone by the appellants. 24. Both the appellants shall be released forthwith, if they are not required in any other case, 25. In the result, the appeal is partly allowed to the extent of mod ification of conviction and sentence as mentioned above. Send down the LCR fort hwith.