Crl.A. 142/2003 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY JUDGMENT AND ORDER (ORAL) Heard Mr. P.J. Phukan, learned counsel appearing for the appella nts. Also heard Mr. B.S.Sinha, learned Addl. Public Prosecutor who appears for t he State. 2. This appeal is presented to challenge the order dated 25.2.20023 in Sessions Case No. 50(JJ) of 2000 rendered by the learned Sessions Judge, Jor hat, whereby the accused appellants have been convicted under twin Sections 147 and 304(P-II) of the I.P.C. Under Section 304(P-II), they have been sentenced to undergo R.I. for 3 years and for the conviction under Section 147, 1 year R.I. has been ordered. Both the sentences would run concurrently. 3. The police proceeding in this case was started with an FIR lodge d by Shri Ajit Das, wherein the police was informed that the accused appellants along with other villagers had fatally assaulted the informant’s elder brother Ranjit Das and his dead body was dumped on the road in front of the L.P. School. Pulibor P.S. Case No. 122/98 was accordingly registered and investigation was s tarted. On conclusion of the investigation, chargesheet against 8 accused includ ing the 6 appellants were filed, under Section 147 and 302 of the IPC. After com mitment of the case, the trial started in the Sessions Court at Jorhat. 4. On behalf of the prosecution, 8 witnesses were examined includin g the doctor and the investigating officer. The accused in their examination und er Section 313 Cr.P.C., completely denied the charge. But they did not adduce an y evidence in support of their innocence. 5.1 P.W.1, P.W.2 and P.W.4 the sister, the wife and the mother of th e deceased Ranjit Das were the eyewitnesses. P.W.3 Kalalora Das having resiled f rom the statement made before the police, was declared a hostile witness. 5.2 P.W.5 Dr. Dhiren Das who conducted the Post Mortem Examination o f the deceased gave the evidence on the injuries and opined that all the injurie s were ante mortem in nature and the cause of death was due to shock haemorrhage and comma as a result of the injuries sustained by the deceased. The doctor als o opined that the injuries could have been caused by blunt weapon or violent thr ust or by kick or fist. 5.3. P.W.1 Anjumani Das in her evidence stated that on the morning of the incident, the accused persons and some other villagers suspecting the decea sed to be a cattle thief had tied up the deceased to a betel nut tree and were a ssaulting ( marpit ) him in a group. She deposed that when she wanted to go near her brother, the people gathered including the accused Gajen, Gopal and Bubul t hreatened her with ’Dao’ and sent her away from the place of assault. She furthe r identified all the accused appellants present as the persons who had assaulted the deceased. In her cross-examination, PW-1 stated that because the people had gheroed the witness, they were unable to go near the deceased. 5.4. P.W.2 Jogamaya Das is the deceased’s wife. She saw her husband b eing assaulted by the accused and taken to the house of Kalalora Das. The witnes s saw all the accused persons and few others assaulting her husband. The assault ers were carrying ’Dao’, ’Lathi’, Stick & Bricks. She saw accused Bangali Das as saulting the deceased with a ’lathi’ and accused Basanta Pegu assaulting her hus band with a Katari (iron knife with wooden handle). She saw her husband succu mbing at the spot due to the combined assault. In her cross-examination, P.W.2 s tated that she was not able to go near her husband as the people had kept the wi tness gheroed . 5.5. P.W.4 the 3rd eye witness is the mother of the deceased. She als o corroborated the testimony of the PW-1 and PW-2 and stated that the accused pe rsons were assaulting ( marpit ) her son by suspecting him to be a cattle thief. 6. PW-3 Kalalora Das stated that after hearing some commotion in th e village he reached the spot and found that the cow that went missing a few day s ago was standing there and the deceased who was suspecting to have stolen away his cow was lying in an injured condition. But since the witness resiled from t he earlier version given before the police, he was declared a hostile witness an d subjected to cross-examine by the Public Prosecutor where he stated that the a ccused were his own village boys and are just like his sons and he will feel bad , if they are punished by the Court and he would be happy if they are acquitted. However he feined ignorance on the circumstances as to how the deceased died. 7. PW-5 Dr. Dhiren Das who conducted the Post Mortem Examination on the body of the deceased on 29.10.1998 recorded the following injuries in his m edical report :- A decomposed male body with maggots scrolling putrification has already started. Tongue-protruded and saallen is clinched in between the teeth. Regormortix faded away. On examination of the body : 1. Left maxillo facial swelling. 2. Rigit survical swelling. 3. Fracture of right leg below the knee. 4. Fracture of right forearm above the wrist joint. 5. Deep bruise of left masillo faciel region with the size 2 x 2 . 6. Another deep bruise, size 2 x 1 at the right side of the neck in supr a clavicular area. On examination of the head : There was left scalp bruise with the size 2 x2 for tempro-parietal region with the blood into. Substantaneous tissues and with fracture of underlying skull bon e. The membrane although congested, but putrification has already started. Putri fication of brain has already started. There was collection of blood into the su b dural and sub arachonoid space left tempo-parietal region. On examination of Thorax - there was no such positive finding. On examination of the abdomen and stomach contains gastric secretion. Guts conta ined fecal matters. Liber, splin, kidney were normal. Bladder empty. Organ of ge neration was normal. The injuries described above were antemortem. In my opinion , the death was due to shock, haemorrhage and coma as a result of injuries susta ined. The injuries were sufficient to cause death in the ordinary course. The in juries could have been caused by blunt weapon or violent thrust by kick and fist . The post mortem report was exhibited as Exbt.1 in the Court. 8. P.W.7 Ajit Das is the informant and the younger brother of the d eceased. He learnt of the incident from PW-4 and was also present when the polic e prepared inquest report on the dead body of the deceased. But being a resident of another village Gandheli, PW-7 had not seen the occurrence at Belguri villa ge with his own eyes. 9. PW-8 Jatin Chandra Bora was serving as S.I of police at Pulibar Police Station on 28.10.1998 and after receiving the FIR, the investigation was entrusted to him. He proved the initial statement given by the hostile witness K alalora Das (PW-3) to the police to the effect that when I.O. visited the place of occurrence, the witness had told that after the deceased was caught with the stolen cow, the accused persons administered slaps and kicks to the deceased. 10. Mr. P.J. Phukan, learned counsel appearing for the accused appel lants submits that conviction of the accused appellants cannot be sustained only on the basis of the evidence of PW-1, PW-2 and PW-4 as each of them are closely related to the deceased and in the absence of any independent witnesses, their evidences has to be discarded as unreliable. The learned counsel further submits that there are discrepancies in the testimony of the 3 eye witnesses regarding the manner of assault on the deceased and the weapon used and because of such discrepancies, the testimony of the eye witnesses cannot be relied upon. The learned counsel also contends that the injury report recorde d by the doctor on the dead body of the deceased does not reflect any blade inju ry and therefore the evidence given by PW-1 is wholly unreliable and the same sh ould be discarded. 11. Supporting the conviction, it is argued by Mr. B.S. Sinha, learn ed Addl. Public Prosecutor that for an offence of rioting under Section 147, eve ry member of an unlawful assembly is guilty of the offence of rioting, if force or violence is used by an unlawful assembly or by any member thereof in prosecut ion of the common object of such assembly. It is contended by the Public Prosecu tor that the accused and the other villagers had tied up the deceased by suspect ing him to have stolen away the cattle of Kalalora Das (PW-3). The members of th e unlawful assembly with a common object, used force and violence on the decease d as is established by the medical report and accordingly he submits that the li ttle variation in the evidence of the eye witnesses, could have no material bear ing on the final decision of the Court. The learned Addl. Public Prosecutor submits that when a village mob of 150/200 persons had assembled and were beating up the accused, it is quit e natural that other eye witnesses would not be forthcoming to testify against t he accused persons who are co-villagers. According to him PW-1, PW-2 & PW-4 are natural eyewitnesses and merely because they are related with the deceased, thei r evidence does not become unworthy of reliance. 12.1 From the large number of violent injuries noticed on the body of the deceased, it is apparent that he was suspected to brutal assault by several persons. The assault of the deceased was witnessed by all the 3 eyewitnesses an d they corroborate each other about the assault received by the deceased. It is also on record that the eyewitnesses were kept at a distance and were not permit ted to go near to the deceased. In these circumstances, the little variation in their respective testimony on the weapon of assault, in my view can have no mate rial bearing on the acceptability and the truthfulness of their testimony. 12.2 There is nothing on record to show that the eyewitnesses harbour ed any hostility against the accused persons and yet from an unlawful assembly o f more than 100 people, they chose to name the accused persons as the persons wh o were assaulting the deceased. The injuries noticed on the deceased body are po ssible injuries from the kind of assault that the deceased was being subjected t o, and therefore I see no reason to brush aside the testimony of the eyewitnesse s, merely because there are minor variations and they are closely related to the deceased. 13. It must also be noted that the accused have been charged for rio ting under Section 147 IPC and since the common object of the unlawful assembly for which the accused were members is clearly discernible i.e. punishing a suspe cted cattle thief, each number of the unlawful assembly would be guilty of such violent acts that were undertaken by any member of the assembly, in furtherance of the common object of such assembly. 14. In this case the accused appellants and the unlawful assembly at Belguri village had taken the law into their own hands by not informing the pol ice about the capture of the deceased suspected to have stolen away the cattle o f some co-villagers. Even after they captured the deceased and kept him tied to a betel nut tree, they continued to assault him with various weapons and the bru tality of the assault are clearly discernible from the injuries noticed on the b ody of the deceased. In such circumstances it is difficult to take the view that the members of the unlawful assembly did not have the intention to cause such i njury as is likely to cause death, in which event, the conviction under Section 304(Part-I) would be justified. But they have been convicted by the learned Tria l Court under Section 304 (Part-II) by holding that the accused had the knowledg e that the injuries were likely to cause death but without the intention to caus e death. In this conclusion the Court in my view erred. Considering the fact tha t the accused appellants continued to assault the deceased till he collapsed on the ground and that the deceased died at the very spot, the accused appellant ca nnot be said to be lacking intention to cause death by their assault. Accordingl y the conviction of the accused appellants should be under Section 304(Part-I) i nstead of under Section 304(Part-II) and it is ordered accordingly. But consider ing that the incident happened in the year 1998, I do not feel inclined to impos e a stiffer sentence. 15. For the foregoing reasons, I do not find any merit in this Appea l and the same is accordingly dismissed. The accused appellants who are on bail, shall serve out the remainder of the sentence for their conviction under Sectio ns 304 (Part-I) and 147 of the IPC respectively. Sentence to run concurrently. 16. Send back the LCR.