Crl.A. 204/2004 BEFORE THE HON’BLE MR. JUSTICE RANJAN GOGOI THE HON’BLE MR. JUSTICE A.C. UPADHYAY (Ranjan Gogoi, J.) Criminal Appeal No.204 of 2004 is directed against the judgment and order dated 9.6.2004 passed by the learned Ad-hoc Additional Sessions Judge, Karimganj in Sessions Case No.53 of 2001 by which the five accused appellants h ave been convicted under Sections 148/323/447/302 IPC read with Section 149 IPC. Each of them have been sentenced to rigorous imprisonment for life and to pay a fine of Rs.5,000/-, in default, to suffer rigorous imprisonment for three month s more under Section 302; rigorous imprisonment for six months each under Sectio n 148 IPC; rigorous imprisonment for six months for the offence under Section 32 3 IPC read with Section 149 I.P.C. and rigorous imprisonment for two months unde r Section 447 IPC read with Section 149 IPC. By the aforesaid judgment and order , eight (8) other charge-sheeted accused have been acquitted of the said offence s. Criminal Appeal No.91(J) of 2004 have been filed separately by one of the fiv e accused appellants in Criminal Appeal No.204 of 2004. Both the appeals were, t herefore, heard and are being disposed of by this common order. 2. The prosecution case in short is that on 3.1.1993 at about 5.15 P.M., P.W.4, Smt. Ratna Das, lodged an FIR in the Bazaricherra Police Outpost st ating that at about 7 P.M. of the previous day i.e. 2.1.1993, the accused named in the FIR (which included the accused appellants) came to the courtyard of thei r house and called her father Girindra Das. According to the first informant as soon as her father Girindra Das came out of the house and reached the courtyard, accused appellant Kulesh hit him in the head with a dao. The father of the firs t informant became unconscious and fell down on the ground. Seeing this, her you nger brother Sailendra Das rushed to save his father when accused appellant Abhi nash hit Sailendra with a Ballam (spear). According to the first informant, th e accused persons had hit Sailendra repeatedly with lathi, dao and spear as a re sult of which he died at the place of occurrence. In the first information repor t, it was also mentioned that the eldest brother of the first informant one Shri Nirendra Das and another elder brother of the first informant Samarendra had al so sustained injuries when they tried to save their father and their brother (Sa ilendra) from the assailants. According to the first informant, when she had com e out of the house accused Shri Nagendra Rudra Paul caused injuries to her in th e right elbow by hitting her with a lathi. 3. On receipt of the aforesaid FIR, an entry in the General Diary o f the Bazaricherra Police Outpost (G.D. Entry No.36 dated 3.1.1993) was made and the ejahar was sent to the Officer-in-Charge of the Patharkandi Police Station for registration of a case. Shri Poona Gogoi, S.I. of Police (PW-13), In-charge of Bazaricherra Police Outpost, went to the place of occurrence to investigate t he crime alleged. At the same time, on receipt of the ejahar, Patharkandi P.S. C ase No.4 of 1993 under Sections 147/148/149/ 447/325/326/302 IPC was registered. The police party led by P.W.13, Poona Gogoi on reaching the place of occurrence prepared a sketch map thereof. Inquest was held on the dead body of Sailendra D as which was sent for postmortem examination. The injured including Girindra Das , were sent for medical examination. Girindra Das also having died three days la ter, inquest was held and the dead body was also sent for postmortem examination . Statements of persons acquainted with the incident were recorded by the invest igating officer under Section 164 Cr.P.C. Thereafter, at the conclusion of the i nvestigation, charge-sheet was submitted against 15 accused including the five a ccused appellants. As the offences alleged were exclusively triable by the Court of Sessions, the learned Judicial Magistrate, First-Class, Karimganj by order d ated 21.08.2001 committed the case for trial to the Court of Sessions at Karimga nj. 4. In the Trial Court, charges under Section 148 IPC; Section 447 r ead with Section 149 IPC; Section 323 read with Section 149 IPC; Section 325 rea d with Section 149 IPC and Section 302 read with Section 149 IPC were framed aga inst 14(fourteen) of the charge-sheeted accused. One accused i.e. Rongesh Rudra Paul was declared absconder. The charges framed against the accused persons incl uding the present appellants were read over and explained to which they pleaded not guilty and claimed to be tried. In the course of the trial, 13 witnesses wer e examined by the prosecution. One defence witness was also examined. Thereafter , at the conclusion of the trial, while the accused appellants have been convict ed and sentenced as aforesaid, the remaining 8(eight) accused (one accused Susha nta Rudrapaul) died during the pendency of the trial) were acquitted of the offe nce alleged. Aggrieved by the aforesaid conviction and the sentence imposed, the present appeal has been filed by the five accused appellants. 5. We have heard Mr. J.M. Choudhury, learned senior counsel appeari ng for the accused appellant and Mr. Z. Kamar, learned Public Prosecutor, Assam. To appreciate the arguments advanced by the counsels for the parties, it is nec essary for the Court to briefly notice the main part of the evidence tendered by the prosecution witnesses. 6. P.W. 1, Shri Samendra Das, is the son of the deceased Girindra D as and elder brother of the other deceased Sailendra. In his deposition, P.W. 1 had stated that at about 7 P.M. of the day of occurrence, accused Rabindra Namas udra and Abinash Rudrapaul had gone to their house and had called his father Gir indra. According to this witness, when Girindra came out accused Pramesh and Kul esh hit Girindra with a dao. Hearing the scream of his father, P.W.1 came out, w hen he was hit by accused Abinash and Deepika with a dao. According to P.W.1, he sustained injuries in his hands and legs whereas his father had suffered injuri es on the head. P.W.1 had specifically named all the accused appellants along wi th others as being present at the place of occurrence. P.W.1 had further deposed that because of the injuries sustained by him, he was taken to the Bazaricherra Hospital, whereas his father was taken to the Karimganj Civil Hospital. Accord ing to P.W.1, his father died in the hospital three days later. P.W. 1 had depos ed that later on he could come to learn that his younger brother Sailendra had a lso died at the hands of the accused persons in the course of the same incident. 7. P.W. 2, Deepak @ Dwipon Das in his deposition had stated that a t the time of occurrence he was in the Bazaricherra market. After he had come ho me he could come to learn of the incident. Thereafter he went to the house of Gi rindra Das and found him lying unconscious. According to P.W.2, he found Sailend ra Das lying dead in the house. Furthermore, according to P.W.2, he along with P ranoy Das and Indrajit Das took the injured Girindra and deceased Sailendra to t he Karimganj Civil Hospital. Three days later, the injured Girindra also died. 8. P.W. 3, Shri Nirendra Kumar Das, is the eldest son of the deceas ed Girindra and the eldest brother of deceased Sailendra. According to P.W.3, th ough he lives in a separate house, at about 7 P.M. of the day of occurrence whil e he was in his house he heard the cries of his younger sister Ratna (P.W.4) and his sister-in-law Ms. Champu Rani Das (P.W.5) and the children. Hearing the cri es, he had come to the house of the deceased and found his father and brother ly ing in the vegetable garden. According to P.W.3, at that point of time accused R udrapaul shouted to other accused to assault him i.e. P.W.3. Thereafter, accordi ng to P.W.3, accused Bibhash hit him in the chest with a lathi whereas accused A binash hit him in the head with a dao. He also suffered an assault on his head f rom behind. According to P.W.3, he fell unconscious as a result of the assault a nd regained his senses in the Karimganj Civil Hospital. Thereafter, he was infor med by P.W.4 about the assault on his father and younger brother by the accused persons. 9. P.W.4, Smti Ratna Das, is the daughter of the deceased Girindra Das and elder sister of the deceased Sailendra. According to this witness, at ab out 7 P.M. of the day of occurrence, accused Rabindra, Kulesh, Pramesh and Abina sh came to their house and had called her father Girindra out. According to this witness, as soon as her father Girindra came out of the house, the four accused hit him with dao as a result of which Girindra fell down. P.W.4 having raised a larm, her younger brother Sailendra came out when accused Pramesh hit him in the head with a ballam (spear). According to this witness, accused Subal had presse d down deceased Sailendra with his foot whereas accused Motai pressed the nose o f his brother. Furthermore, according to P.W.4, accused Motai, Bidhan, Sidam, Na gendra and Sibul had struck her with a lathi. Thereafter, according to P.W.4, wh en Sailendra (P.W.1) had come out, accused Deepika and Abinash had hit him in hi s hands and legs with a dao. P.W.4 had further deposed that on hearing the alarm raised by her, her elder brother Nirendra Kr. Das (PW.3) came out from the hous e when he was hit by accused Bibhash in his chest with a lathi. Accused Ajit had also hit Nirendera in his head with a dao. According to P.W.4, all the accused persons unitedly had assaulted her father and her three brothers with dao, lathi , spear etc. 10. P.W.5, Smti Champu Rani Das, is the wife of Samarendra Das (PW. 1). According to this witness, at about 7 P.M. of the day of occurrence, accused Rabindra, Kulesh, Pramesh and Abinash had came and called her father-in-law Gi rindra from the house. According to P.W.5, Girindra was assaulted by accused Pra mesh on the head with a dao. This witness had categorically deposed that Pramesh and Abinash had repeatedly cut Girindra in his head and body. P.W. 5 had furthe r deposed that her brother in law Sailendra had also come out of the house and a ccused Pramesh and Kulesh assaulted him with a spear. According to this witness, her husband Samendra (P.W.1) was hacked in his hand by accused Deepika whereas accused Pramesh had hit her husband in his leg with a dao. Furthermore, accordin g to P.W.5, accused Bibhash and Ajit had assaulted her other brother-in-law Nire ndra (PW-3) in the head with a dao and that when her sister-in-law Ratna (P.W.4) came out, she was also assaulted by accused Nagendra and Sibal with lathis. 11. P.W.6, Shri Pranay Das, in his deposition had stated that about 7 P.M. of the day of occurrence, while he was returning from the Bazaricherra ma rket alongwith his uncle Dhirendra and his cousin Deepak, they heard hue and cry coming out from the house of Girindra. P.W.6 had deposed that when they were cl imbing up to the house, they had seen the accused persons (including the accused appellant) coming down. P.W.6 had deposed that the house of Girindra was locate d in a hillock and that he had seen the accused persons armed with dao, lathis a nd ballam in their hands. According to this witness, the accused persons told th em that they had killed the contractor and his family. On reaching the house of Girindra, according to P.W.6, he could see Girindra lying with injuries in the h ead and Sailendra lying dead with injuries on the head. P.W.6 had further depose d that he found Samendra (P.W.1) with dao injuries in his legs and hands and Nir endra (P.W.3) with cut wounds in his hands. According to P.W.6, he was informed by Ratna (P.W.4) that the accused persons had caused the injuries after which th ey had left the place. 12. P.W.7, Dr. Matindra Sutradhar, had examined Ratna Rani Das (P.W. 4), Samarendra Das (P.W.1) and Nirendra Kr. Das (P.W.3) in the Bajaricherra PHC on 2.1.1993. He had proved the injury reports of P.Ws.4, 1 and 3 as Exts.2, 3 an d 4 with his signatures thereon as Ext.2(1), 3(1) and 4(1). P.W.7 had also exami ned Girindra Das (since deceased) in the PHC on the same day i.e. 2.1.1993. The report of the medical examination of Girindra Das on 2.1.1993 was proved by P.W .7 as Ext.5 and his signature therein as Ext.5(1). The findings of the injuries on Ratna Das (P.W.4), Samarendra Das (P.W.1), Nirendra Kr. Das (P.W.3) and Girin dra Das (since deceased) may be extracted hereinbelow :- Ratna Rani Das (PW-4) : 1. A fresh abrasion 1 x ‰ in the lower part of the rt arm. 2. Swelling & tenderness on rt. Elbow. 3. Swelling & tenderness on the left arm. 4. Fresh swelling with tenderness in the back 4 x 1 by blunt weapon age 1 ‰ old. All are simple injuries. Other: Patients conscious. Pulse : regular B.P. : normal, chest & cus : NAD, Advised X ray for rt. Arm, rt elbow and left arm X ray reports were not produced before me. The Ext.2 is my report, Ext.2(1) is my signature. Samarendra Das (PW-1) : 1. Fresh lacerated injury on the medial side of the left palm 4 x … x ‰ . 2. Fresh lacerated injury just distal to right ankle 2 x ‰ x ‰ . 3. Fresh abrasion in the chin by blunt weapon half an hour old. Clothes wer e blood stained patient was conscious. Pulse & B.p. Normal, Chest & CIS NAD. Oth ers NAD. X Ray of left palm & rt ankle advised. X reports were not produced. The Ext.3 is my report. Ext.3(1) is my signature. Nirendra Kr. Das (PW-3) : 1. Fresh lacerated injury in the frontal region of the midline of the scalp 4 x ‰ x … 2. Fresh lacerated injury on the occipital region of the rt side of the sca lp ‰ x ‰ ‰ 3. Fresh swollen rt arm and redness & tenderness. 4. Fresh swollen in the surrounding area of the rt eye of the eye lid. Whol e area was blackish & tender. Age 1 ‰ Weapon : blunt. Nature : Seemed to be grevious Patient conscious Pulse abnormal B.P. : Below normal. Chest : Clear CUS : Low blood pressured rt eye. Pupil constricted reaction of both the eyes were luggish. Patient referred to KXJ Civil for investigation etc. Ext.4 is the report Ext.4(1) is my signature. Girindra Das (deceased-died after 3 days) : 1. Fresh lacerated injury on the frontal region of the rt. side of the scal p 4 x ‰ ‰ 2. Fresh lacerated injury on the frontal region of left side of the scalp 2 x ‰ x ‰ 3. Fresh lacerated injury on the occipital region of rt. side of the scalp 4 x ‰ x ‰ 4. Fresh lacerated injury on the forehead. 5. Fresh multiple swellings in all the four limbs with redness. 1 ‰ hours o ld. Blunt weapon. Scalp & forehead injuries seemed to be grevious. Limb over seemed to be simple. Patient was semi conscious. Pulse was 100 P.M. regular, B.P. was low. Cl othes were blood stained. Chest : clean. CIS : High blood. High pulse rate. B.P. : Low, Pupils constricted & sluggish light reaction. Patient referred to KXJ Civil for investigation & treatment. Ext.5 is my report of Ext.5(1) is my signature. 13. P.W.8, Shri Dhirendra Das, in his deposition had stated that at about 8.30/9 P.M. of the day of occurrence while he was returning from the marke t, he heard hue and cry in the house of Girindra Das. According to this witness, while he was climbing up the hillock to reach the house of Girindra he had seen some persons climbing down with daos, lathis etc. in their hands. P.W.8 had nam ed the accused including the accused appellants. Thereafter, according to P.W.8, when he had reached the house of Girindra, he found Girindra (since deceased), Nirendra Kr. Das (P.W.3), Sailendra (since deceased) and Samarendra Das (P.W.1) lying on the ground with injuries. 14. P.W.9, Subrata Das, is the son of Samarendra Das (P.W.1). This w itness had deposed about the assault and injuries suffered by his grandfather Gi rindra and his paternal uncle Sailendra on the day of occurrence. 15. While the evidence of P.W.10 would not be very material, P.W.11, Shri Indrajit Das, in his deposition had stated that on hearing about the occur rence he went to the house of Girindra and found that while Girindra was lying u nconscious, Sailendra was lying dead in the courtyard. He was informed by the wo menfolk of the house that it is the accused persons who had committed the assaul t on the injured persons. 16. P.W.12, Dr. (Mrs. Nazma Begum) had performed the postmortem of d eceased Sailendra in the Karimganj Civil Hospital on 3.1.1993. She had also cond ucted the autopsy of the deceased Girindra on 8.1.1993. She had proved the repor ts of postmortem of deceased Sailendra as Ext.6 and her signature thereon as Ext .6(1), whereas the postmortem report of Girindra by P.W.12 was proved by P.W.12 as Ext.7 and her signature thereon as Ext.7(1). The findings of injuries on the deceased, as deposed to by P.W.12, may best be extracted below:- Sailendra Das : The dead body was bealthy Hindu, male whose rigor mortis is present. Eye open, mouth closed. Dried blood seen in the hostrils. A lacerated would seen on the right upper part of occipital area 1 lateral and parallel to the mid line. Size 2 x … x bone deep. On removing the scalp blood collection seen on the po sterior aspect of the head. Beneath the injury the whole length of the occipital bone is fractured with about 2 mm gaping. The fracture line is irregular. On re moving the bone, the membranes beneath are found to be lacerated with sub-dural and sub arachnoid haematoma. The under lying brain is also lacerated. A contusio n 7 x 1 seen over the right scapula parallel to the mid line. Cranium and spinal canal as already described. Thorax :- Walis, ribs and cartilages are healthy. Pleurae, laryax and tracheae, both right and left lungs, & pericardium are healt hy. Heart healthy and contains blood. Vessels healthy. Abdomen :- Walls, peritoneum, mouth, pharynx and oesophagus are healthy. Stomach and its contents healthy containing semi-digested food. Small intestine and its contents is healthy. Large intestine and its contents healthy contains faceal m aterials. Liver healthy and congested. Spleen is healthy and congested. Kidneys congested. Bladder empty. Organs of general, external internal are healthy. Muscles, bones and joints as described in No.1. Opinion :- In my opinion the person died instantaneously as a result of injury t o the vital part of the brain. Ext.6 is my report and Ext.6(1) is my signature. Girindra Das :- External Appearance - The dead body of an average built Hindu male aged about 70 years whose r igor mortis is present. Eyes open, mouth half open, five stitched partially heal ed injuries seen over the scalp. Skin aprasion partially healed over right arm 1 x … . Partially healed skin abrasion over the left shoulder joint size 1/8 1/ 8 . Cranium and spinal canal :- Scalp, skull and vertebrae as described above. Membrane congested. On se ctioning haemorrhagic fluid seen in the sub-arachnoid space. Brain and spinal cord are congested. Thorax :- Walis, ribs and cartilages are healthy. Pleurae congested, right and left lungs are congested. Heart congested and contains blood. Vessels contains blood. Abdomen :- Walls healthy, peritoneum congested, mouth, pharynx, oesophagus are c ongested. Stomach and its contents are congested and empty. Small intestine and its contents are congested. Large intestine and its contents congested and conta ins fecal matter. Liver, spleen, kidney are congested. Bladder is empty. Organs of generation, external and internal are healthy. Muscles, bones and joints :- As described above. Injuries are ante-mortem. Opinion :- In my opinion death is due to sub-archnoid haemorrhage as a result of injuries sustained. Ext.7 is my report and Ext.7(1) is my signature. . In cross-examination, P.W.12 had stated that in her opinion the head injuries on deceased Sailendra Das were caused by blunt object. According t o P.W.12, as the injuries on the deceased Girindra were stitched she was not in a position to opine whether the same were caused by a sharp weapon or by a blunt weapon. 17. P.W.13, Shri Poona Gogoi, is the Investigating Officer of the ca se who apart from deposing with regard to the steps taken in the investigation o f the case had deposed with regard to the statements made before him by the pros ecution witnesses through which the defence had tried to prove omissions in the statements of the said witnesses with reference to their previous statements in writing. 18. The defence examined one witness i.e. one Shri Rakhal Das. Throu gh this witness the defence had tried to prove that the accused Ajit Rudrapaul w as present at a ’kirtan’ held in the house of the defence witness at about the t ime of the occurrence. As the accused Ajit has been acquitted by the learned Tri al Court, the evidence of defence witness will not be very material for the purp ose of present appeal. 19. At this stage, the Court must notice that from the judgment of the learned Trial Court it appears that in respect of the same incident another case was registered at the instance of the accused which was numbered as Session s Case No.52 of 2001. The said case was tried along with the present case. From the judgment, it appears that the accused involved in the aforesaid case i.e. Se ssions Case No.52 of 2001 i.e. the party of the deceased and the injured of the present case were acquitted on the findings that the party of the first informan t in the said case (accused herein) were the aggressors. It would also be signif icant to take note of the fact that in the said case accused appellant Kulesh wa s examined as P.W.2 whereas accused Abinash as P.W.3); the accused appellant Shr i Nagendra Rudra Paul was examined as P.W.4; accused Sibal Rudra Paul was examin ed as P.W.5 and accused Deepika Rudra Paul was examined as P.W.6. In their testi monies, all the aforesaid accused were found to have admitted their presence at the place of occurrence. The findings of the learned Court to the above effect a s recorded in Sessions Case No.52 of 2001 are not open to scrutiny in the presen t appeal in the absence of any appeal against the final judgment and order passe d in the aforesaid Sessions Case No.52 of 2001. 20. In the above facts, the question that would arise for determinat ion in the present appeal is whether the accused appellants had formed an unlawf ul assembly and whether in course of prosecution of the common object of the sai d assembly the offence(s) alleged against them had been committed by any of the accused appellants or whether the offence(s) so committed were known to the accu sed appellants to be likely to be committed in prosecution of the common object of the unlawful assembly. 21. Unlawful assembly is defined by Section 141 of the Indian Penal Code to be an assembly