IN THE GAUHATI HIGH COURT

Transcription

1 IN THE GAUHATI HIGH COURT (THE HIGH COURT: ASSAM: NAGALAND: MIZORAM AND ARUNACHAL PRADESH) Criminal Appeal No. 372 of Nogendra Das (Dead) 2. Bina Rani Bina Das W/o Nogendra Das 3. Nibashi Das, W/o Naresh Das 4. Putul Das S/o Late Madan Naresh Das 5. Dulu Das S/o Jaganath Das 6. Parendra Das, S/o Jaganath Das 7. Deleted All are residents of Saligram (Kalain), P.S. Katigorah, District Cachar, Assam. Appellants -Versus- The State of Assam Respondent -BEFORE- HON BLE THE CHIEF JUSTICE MR. AJIT SINGH HON BLE MR. JUSTICE N. CHAUDHURY Advocate for the appellants : Advocate for the Respondent: Mr. LR Mazumdar, Advocate Ms. S Jahan, Additional Public Prosecutor, Assam Page 1 of 21

2 Date of hearing : Date of Judgment : JUDGMENT & ORDER (CAV) (N. Chaudhury, J) As many as 7 appellants jointly preferred this appeal challenging their conviction under sections 447/148/324/323/302/149of the IPC vide judgment and order dated passed by learned Additional Sessions Judge (FTC), Cachar at Silchar in Sessions Case No. 76/2009. In course of pendency of the appeal, appellant No. 1 Nogendra Das died and appellants Putul Das and Nilu Ram Das alias Nilu Das were found to be juveniles in conflict with law at the time of commission of offence. While appeal abated as against appellant No. 1, Nogendra Das in view of his death, the sentence passed against Putul Das (appellant No. 4) and Nilu Ram Das alias Nilu Das (appellant No. 7) are deemed to be of no effect in view of Section 7A(2) of the Juvenile Justice (Care and Protection of Children) Act, Thus, the appeal continues to remain in force as against 4 (four) appellants, namely, Smt. Bina Das (appellant No. 2), Smt. Nibashi Das (appellant No. 3), Dulu Das (appellant No. 5) and Parendra Das (appellant No. 6). 2. The prosecution story is that one Manindra Das, as informant, lodged an ejahar with Officer In-charge of Katigorah Police Station on informing that on at about 5.30 A.M. his father Dhirendra Das along with uncle Rabindra Das went for cultivating their own paddy land near their house when 6 (six) accused persons named in the ejahar assaulted them with dao and dagger Page 2 of 21

3 causing grievouis injuries on their persons. Hearing commotion, his cousins Dulu Das, Nilu Das and brother-in-law Sukendra Das along with uncle Hirendra Das rushed to the spot to save his father and uncle but they were also assaulted and they sustained grievous injuries on their persons. Katigorah P.S. Case No. 282/2003 under sections 147/ 148/ 447/ 326/ 149 of the IPC was registered thereby and after death of Dhirendra Das, section 302 of the IPC was added. 3. In course of investigation, police visited the spot, prepared sketch map, recorded statements of witnesses and after receipt of post-mortem examination submitted charge sheet No. 280/2004 on against all the accused persons under the aforesaid sections of law. The learned Additional Chief Judicial Magistrate before whom the charge sheet was filed, committed the case to Sessions leading to registration of Sessions Case No. 76/2009 in the court of learned Additional Sessions Judge, Cachar at Silchar. The learned Sessions Judge by his order dated framed charges under sections 148/ 302/ 447/ 323/ 324 / 149of the IPC against all the accused persons. On the charges being read over, they pleaded not guilty and claimed to be tried. 4. The prosecution examined 16 witnesses and adduced some documents. The defence adduced no evidence. Having considered these materials available on record, the learned Additional Sessions Judge passed the impugned judgment and order holding all the petitioners guilty of offence under sections 148/ 447/ 323/ 324/ 302/ 149 of the IPC and sentenced them to suffer rigorous imprisonment for life and to pay a fine of Rs. 5,000/- each under sections 302/149 of the IPC, in default, to suffer rigorous imprisonment for 3 months, to suffer rigorous imprisonment for 6 months and fine of Rs. 500/- each under Page 3 of 21

4 sections 324/149 of the IPC, in default, simple imprisonment for 1 month, to suffer simple imprisonment for 3 months and fine of Rs. 500/- each under sections 323/149 of the IPC, in default, simple imprisonment for 15 days, to suffer rigorous imprisonment for 6 months and fine of Rs. 500/- each under sections 148/149 of the IPC, in default, simple imprisonment for 1 month and also to suffer simple imprisonment for 1 month and fine of Rs. 300/- each under section 447/149 of the IPC, in default, simple imprisonment for 15 days. This judgment and order dated has been called in question in the present appeal. 5. We have heard Mr. LR Mazumdar, learned counsel for the appellants and Ms. S Jahan, learned Additional Public Prosecutor. We have also perused the lower court records. 6. PW 1, Manindra Das, is the informant. He stated on oath that his father Dhirendra Das and uncle Rabindra Das went to plough their paddy land on in the morning at about 5.30 A.M. Accused Nagendra Das, Pengu Das, Niru Das, Bina Das, Nibashi Das, Putul Das, Sanku Das, Akalmoni Roy, Khukon Roy, Parindra Das, Dhirendra Das and Dulu Das trespassed into their land where deceased Dhirendra Das and injured Rabindra Das were ploughing. He was working in another plot at a distance of 200 cubits from the place of occurrence. He saw that accused persons came armed with deadly weapons like dao, rod, lathi etc. and assaulted his father. Accused Nagendra Das, Putul Das and Niru Das assaulted his father with iron rod causing severe injuries. His father fell on the ground. At that time, accused Pengu assaulted his brother Pintu Das with iron rod. Hearing commotion, Robendra Das, Lilu Das and Hirendra Das Page 4 of 21

5 came to the place of occurrence and tried to interfere when Pengu Das assaulted Robendra Das causing injury on his head. Lilu Das was also assaulted but he could not say as to who had assaulted him. When other persons came to the place of occurrence, the accused persons went away. He thereafter along with others took the injured persons to Katigorah Police Station and lodged ejahar. Police sent all the injured persons to Silchar Medical College and Hospital for treatment. His father Dhirendra Das succumbed to the injuries at Silchar Medical College after 2/3 days. He proved the ejahar as Exhibit 1. In course of his cross examination, he stated that the place of occurrence is at a distance of 550 cubits to the north-west of their homestead and there were lands of others in between. He denied the suggestion put to him that his father and uncle went to the place of occurrence for dispossessing accused Nagendra and his brother and sister. He denied that the quarrel was as a result of this which was followed by marpit. 7. PW 2, Pintu Das, deposed that he along with his father Dhirendra Das went to plough land when the accused Nagendra Das along with others came and abused them. He saw accused Nagendra Das, Putul Das and Niru Das assaulted his father with iron rod and lathi as a result of which he fell down on the ground. Accused Pengu assaulted him with lathi causing injuries on his back and right hand. He raised alarm and thereupon his uncle Robendra Das, Nilu Das and Hirendra Das came to the place of occurrence. He fell senseless because of the assault. All the injured were thereafter taken to the Katigorah Police Station and then to Silchar Medical College and Hospital for treatment where his father Dhirendra Das died because of the injuries. He denied the suggestion that the deceased along with others went to dispossess the accused persons from the Page 5 of 21

6 place of occurrence. He also denied that accused Nagendra and other accused persons were ploughing the land. He denied the suggestion that they were the aggressors. 8. PW 3, Bipul Ch. Das, stated that he was ploughing his paddy land when he saw Manindra Das was also ploughing his plot at a distance of 10 to 15 cubits. At that time, accused Nagendra Das, Pengu Das, Niru Das, Bina Das, Nibashi Das, Putul Das, Sailen Das, Kuturi Das and three sons of Kuturi Das came to the place of occurrence to plough there. There was a marpit between Nagendra and Putul in one side and the accused persons (sic) in the other side. Hearing hulla, he went to the place of occurrence and found Dhirendra lying on the ground but did not notice injuries on others. According to him, Dhirendra was cultivating the land since before the occurrence. In course of cross examination, he could not say as to whether all the accused persons came together or not. 9. PW 4, Ananga Nath, deposed that at the time of occurrence, he was sleeping at his home. His wife told him that there was a marpit in the field situated on the east of his homestead. He did not go to the place of occurrence hearing hulla because his wife forbade him. However, he saw from the eastern part of his homestead that three persons were assaulting Dhirendra Das. Out of them, one was dark complexioned and tall and other two were short in stature. He could not recognise them but later on he came to know from the villagers that accused Nagendra, his son Pengu and nephews assaulted Dhirendra. He also heard that sons of Dhirendra Das had also sustained injuries. After 5/6 days, he came to know that Dhirendra had succumbed to his injuries. In course of his cross examination, he continued asserting that he had seen the occurrence from Page 6 of 21

7 distance standing on the eastern side of his homestead and further asserted that he saw with his own eyes that accused Nagendra and Pengu assaulted Dhirendra. 10. PW 5, Patindra Roy, deposed that at about 6 A.M. he was going to the house of his uncle Rajendra Roy. On way, he saw Dhirendra and his sons were ploughing the place of occurrence. After he reached the house of Rajendra Roy, he heard noise from the place of occurrence and then rushed to the spot and found Dhirendra was being carried by Pintu Das and Rabindra Das towards their home. He also noticed injuries on the person of Dhirendra Das. He heard that there was a marpit in between the group of Dhirendra and accused Nagendra Das. He also saw Nagendra and his group were fleeing towards their home. 11. PW 6, Robendra Das, deposed that on the date of occurrence at about 6 A.M., Dhirendra Das, Pintu and he went to plough the paddy land. While they were ploughing, accused Kogendra, Putul, Bina Das, Niru Das, Mohisini Das, Dulu, Horendra, Digendra Das attacked Dhirendra being armed with lathi, rod etc. When he tried to interfere accused Putul, Horendra and Dulu Das also assaulted him by giving dao blow. They also assaulted Nilu Das and Sukendra Das with rod and dao causing injuries. He sustained injuries due to assault with rod and lathi as well by accused Putul and Horendra. Hearing commotion, people came and then the accused persons fled away. The injured persons were taken to the Katigorah Police Station and then to Silchar Medical College and Hospital for treatment where Dhirendra succumbed to his injuries after 5/6 days. In course of his cross examination, a suggestion was given to him that the place of occurrence was in possession of the accused Nagendra but he denied it. He Page 7 of 21

8 admitted that the original owner of the land belonged to Deshmukhya family who was their landlord and khatian was issued by the Government in respect of the land. 12. PW 7, Nilu Das, stated that the occurrence had taken place at around 6.30 A.M. Hearing hulla of Pintu Das and Dhirendra Das, he and his brother Dulu Das came out from their house and started for the place of occurrence. When they were at a distance of about 20 cubits from the place of occurrence, accused Dulu and Parindra Das started to assault them. Dulu gave him a blow by a rod on his head causing injury and accused Bina Das gave a dao blow to his brother who also sustained injury on his right and left hand. Sukendra Das was also assaulted by accused Parindra and Pengu. The accused persons were 10/12 in number. They all assaulted Dhirendra, Robendra, Pintu and Harendra. After the villagers came, the accused persons fled away. He was treated in Kalain Hospital for 3 days. 13. PW 8, Dr. B.C. Roy Medhi, held post mortem over the dead body of Dhirendra Das, a male of 65 years. He found following injuries on his person:- 1) Swelling of dorsum of left hand as a whole. 2) 8 cm long stitched wound was found over the vault area of scalp placed 2 cm away and parallel to sagita suture on right side. On removal of the stitches, the wound was found lacerated one with size 8 x 3 cm x scalp deep. 3) 10 cm long stitched wound found on left parietal scalp in the middle part placed perpendicular to sagital sut. On removal of the Page 8 of 21

9 stitches, the wound was found lacerated with depth up to cranial cavity through fracture of the bones of size 10 x 3 cm. 4) Comminuted fracture of left parietal bone of size 7 x 6 cm with missing of fragments exposing the cranial cavity having a blood clot above duramater. 5) Extradural haemorrhage over the left parietal cortex under injury No. 4 in an area of 8 x 7 cm causing flattering of the underlying parietal lobe of brain. In his opinion, death was due to injuries sustained on the head. Injuries No. 2 and 3 were caused by blunt force impact and injuries No. 4 and 5 were result of the injuries No. 2 and PW 9, Dulu Das, stated that occurrence took place at about 6/6.30 A.M. At that time, he was going to jungle for collecting fire wood. On way, he heard hue and cry of Dhirendra Das, Robendra Das, Pintu Das and others and went to the place of occurrence and found Nagendra Das, Putul Das, Sunu Das, Pengu Das, Dulu Das, Parindra Das and Dhirendra Das assaulting Dhirendra Das, Robendra Das and Nilu Das with lathi, roller etc. He intervened when accused Bina Das dealt a dao blow on his right hand. Accused Bina Das attempted to deal another blow on his head but as he obstructed blow fell on his left index finger. In this marpit, Dulu Das, Dhirendra Das, Nilu Das, Sohag Das, Hiru Das, Robendra Das and others sustained injuries. All of them were brought to Katigorah police station and then to Silchar Medical College and Hospital for treatment. He was treated at Silchar Medical College and Hospital for 6 days as an indoor patient. Dhirendra Das succumbed to his injuries after 5/6 days. In Page 9 of 21

10 course of cross examination, a suggestion was given to this witness that Dhirendra and his brother Robendra went to the place of occurrence armed with weapon to dispossess Nagendra but he stoutly denied the suggestion. 15. PW 10, Sukhendra Das, is an injured eye witness. He stated that he was going to his work pushing a handcart at around 6/6.30 A.M. when he saw Nagendra Das and his group were assaulting Dhirendra Das and his men Dulu Das, Nilu Das with lathi etc. Accused Nagendra and Putul assaulted him also on his head with roller. Thereafter they were brought to Kalain P.H.C and therefrom to Katigorah police station and then to Silchar Medical College and Hospital for treatment where Dhirendra Das succumbed to his injuries after 5/6 days. 16. PW 11, Suklal Namasudra, stated that the paddy land where occurrence had taken place belongs to Dhirendra Das. He cultivated the land by taking mortgage from Dhirendra Das about 5 years prior to the date of occurrence. Even at the time of occurrence, the land was in possession of Dhirendra Das. 17. PW 12, Dayamaya Das, deposed that he was at his home at the time of occurrence. However, hearing hulla he came to the place of occurrence and found that accused Nagendra Das gave iron rod blow to Dhirendra Das. The accused Niru Das, Putul Das, Nivashi Das and others were with Nagendra and they also assaulted Robendra Das, Dulu Das, Nilu Das, Pintu Das and Suhag Das. Accused Sanku Das gave him a lathi blow on his right hand. He took treatment at Kalain Hospital. 18. PW 13, Prakash Singh, is a retired Sub-Inspector of Police. He was the Investigating Officer in the case and stated as to how the investigation was made and charge sheet was submitted. Page 10 of 21

11 19. PW 14, Yasin Ali, is a retired Sub Inspector of Police. At the time of occurrence he was the Officer In-charge of Kalain patrol post. Having received the case diary from Katigorah police station, he endorsed the same to O.C., Katigorah Police Station for completing the investigation. He submitted the charge sheet. 20. PW 15, Rakesh Nath, was an Assistant Sub Inspector of Police attached to Katigorah Police Station at that time. He visited the place of occurrence, examined the complainant, sent the injured to Silchar Medical College and Hospital for their treatment, drew a sketch map of the place of occurrence and arrested the accused persons, namely, Nagendra Das and Putul Das and forwarded them to custody. After completing preliminary investigation, he handed over the case diary to O.C., Prakash Singh and thereafter Sub Inspector Yasin Ali submitted charge sheet. 21. PW 16, Dr. Rasheswar Ch. Paul, examined Dulu Das and Nilu Das and found that injuries on their persons are simple in nature. Injury on Dulu Das was caused by sharp weapon whereas injury on Nilu Das was caused by blunt weapon. 22. The learned Additional Sessions Judge thereafter examined accused persons under section 313 of the Code of Criminal Procedure when Nagendra Das made a statement claiming that he had been in possession of land since long. It was his Khatian land. His wife Bina Das had lodged FIR against the accused persons in Sessions Case No. 168/2010 which is also pending before the same court. This shows that there was a cross case at the instance of Nagendra Das wherein he claimed to have been injured. His case was that the land Page 11 of 21

12 belonged to him while deceased Dhirendra Das and others were the aggressors. But having said so, he did not lead any evidence in this case in support of his claim. 23. From perusal of the evidence as referred to above, we find there are as many as 7 witnesses, namely, Manindra Das (PW 1), Pintu Das (PW 2), Bipul Ch. Das (PW 3), Robendra Das (PW 6), Dulu Das (PW 9), Sukhendra Das (PW 10) and Dayamaya Das (PW 12). PWs 1, 2 and 3 stated in one voice that accused Nagendra Das, Putul Das and Niru Das assaulted Dhirendra Das with iron rod causing severe injuries due to which he fell on the ground. PW 6 did not say as to who had inflicted injury on the person of deceased Dhirendra. But he made a general statement that the accused persons assaulted Dhirendra, Robendra, Pintu and Hirendra. He also claimed to have been assaulted by Dulu Das and Parendra Das. Dulu gave a blow by rod on his head causing injury whereas Bina Das gave a dao blow to his brother Dulu Das causing injuries. This witness did not say as to who assaulted Dhirendra to cause his death specifically. PW 9, Dulu Das, was injured and according to him, Nagendra, Putul, Sunu, Pengu, Dulu and Parindra assaulted deceased Dhirendra Das. Bina gave a dao blow on his right hand for which he sustained injury on his right hand as well as left index finger. Thus, this witness spoke in the same tone as PW 6, Robendra Das did. From the evidence of PW 6 and PW 9, it is clear that all the persons were assaulting the deceased and his companions. But the specific allegation is that Bina Das dealt dao blow on the hand of Dulu Das causing two cut injuries which are simple in nature. The testimony of PW 16 reveals that there were two injuries on the person of Dulu Das. One was in the left index finger measuring 2 cm x 1 cm and Page 12 of 21

13 another on the right arm measuring 4 cm x 1 cm. According to PW 16, these injuries were caused by sharp weapon. The ocular evidence of PW 6 and PW 9 in regard to inflicting injuries by Bina Das on the person of Dulu Das by a sharp weapon (dao) is supported by medical evidence. These injuries being simple in nature caused by a dao, the act amounts to an offence under section 324 of the IPC. This witness does not appear to have inflicted any injury on the person of deceased Dhirendra Das. 24. PW 10, Sukhendra Das, supported by PWs 1, 2 and 3 to the extent that Nagendra and his group assaulted Dhirendra and his men Dulu and Nilu with lathi etc. In addition to that accused Nagendra and Putul assaulted PW 10 on his head with a roller. It does not appear that for this injury he had to undergo treatment as an indoor patient. He claimed to have been examined by the doctor of Silchar Medical College and Hospital and then sent back to Kalain P.H.C. According to PW 12 Dayamaya Das, Nagendra gave blow on Dhirendra by an iron rod. Niru Das, Putul Das, Nivashi Das and others assaulted Robendra, Dulu Das, Nilu Das, Pintu Das and Suhag Das. Accused Sanku gave him a lathi blow who does not appear to be an accused in this case. From the testimony of three eye witnesses, namely, PWs 1, 2 and 3, it is clear that it is Nagendra Das (now dead), Putul Das and Niru Das who assaulted deceased Dhirendra with iron rod. According to PW 8, Dr. B.C. Roy Medhi, there are five injuries on the dead body out of which injuries No. 2 and 3 are caused by blunt force. Injuries No. 2 and 3 were on head and it caused the death of Dhirendra Das. These injuries were caused by blunt weapon and so it is established by PWs 1, 2 and 3 that it is Nagendra Das, Dulu Das and Niru Das who had assaulted Dhirendra Das Page 13 of 21

14 resulting in his death. Out of these three persons, Nagendra has died during pendency of the appeal and Putul and Niru have been found to be juvenile at the time of occurrence and accordingly sentence passed against them became ineffective. 25. The question now arises as to whether there was an unlawful assembly by the accused persons. Under section 141 of the IPC, an assembly of five or more persons is designated as unlawful assembly if they have a common object of performing any of the acts as enumerated under the five conditions mentioned therein. Explanation to the section further indicates that an assembly may not be initially unlawful when assembled but subsequently it may turn to be unlawful. The present case may come under third and fourth conditions of Section 141 of the IPC. The common object under the third condition is to commit any mischief or criminal trespass or other offence and under the fourth condition, the common object is to take or obtain possession of any property or to deprive any person of the enjoyment of the right of way or of the use of water or other incorporeal right of which he is in possession or enjoyment. PW 3 being an independent witness, deposed about the occurrence. He is an eye witness. According to him, Manindra was ploughing a plot of land at a distance of 10/20 cubits in the field. At that time, accused Nagendra and his group went to the place of occurrence to plough there. Then marpit took place between Nagendra and Putul on one side and the accused persons (sic) on the other side. PW 3 went there hearing noise and found that Dhirendra was lying injured on the ground. According to him, Dhirendra was cultivating the land before the occurrence. Even PW 11, Suklal Namasudra, deposed that the land on which occurrence had taken place was in Page 14 of 21

15 possession of Dhirendra (deceased). He further asserted that about 5 years prior to the occurrence he had taken the same land on mortgage from Dhirendra and enjoyed it by cultivation. The mortgage was thereafter redeemed and he returned the land to Dhirendra. What is admitted in this case is that the land belongs to Deshmukhya family of the village. According to the accused persons, Nagendra was the recorded tenant and he had a khatian in his favour which, however, has not been exhibited by leading evidence. The case of the prosecution witnesses, more particularly, of PWs 3 and 11 is that Dhirendra was the actual tenant in occupation of the land and he had been cultivating the land all along. While there are 2 independent witnesses testifying prior possession of Dhirendra over the land in question, the defence did not lead any evidence in this regard even after getting an opportunity. Merely, in course of giving statement under section 313 of the Code of Criminal Procedure, accused Nagendra asserted that he was a recorded tenant and that he had a khatian. In view of such evidence, it appears that the land was under possession of deceased Dhirendra and Nagendra came there with others for taking over possession by ploughing. He was accompanied by other accused persons but we do not find any direct evidence as to whether they came together and left together. Even the persons who received injuries along with Dhirendra went to the place of occurrence for different reasons. It is an area where there are paddy fields one after another and the period being a one of agricultural season, people were busy in ploughing their respective plots. We are, therefore, of the view that there was no common object of the accused persons. Nagendra wanted to have the land, there was Page 15 of 21

16 quarrel and as the quarrel grew up, situation deteriorated culminating in a fight between two groups which they might not have foreseen. 26. The learned trial court convicted all the accused persons under section 302/149 of the IPC on the supposition that there was unlawful assembly, although the fatal blows on deceased Dhirendra were inflicted by Nagendra, Putul and Niru only. According to the learned trial court, all the accused persons formed an unlawful assembly and they committed offence in prosecution of a common object and accordingly they came under the purview of Section 149 of the IPC. Section 149 of the IPC are as follows:- Section 149. Every member of unlawful assembly guilty of offence committed in prosecution of common object. If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence. A perusal of section 149 of the IPC reveals that there are following ingredients of the section:- (i) (ii) there has to be more than 5 persons, there has to be a common object, any of the 5 objects as provided under Section 141 IPC, (iii) mere membership of the unlawful assembly at the time of occurrence is enough, no overt act is necessary, (iv) the section applies the principle of constructive or vicarious liability. Page 16 of 21

17 Further, Section 149 IPC consists of two parts, first, if the offence is committed by any member of the unlawful assembly in prosecution of the common object of that assembly and second, if the members of that assembly knew that such offence is likely to be committed in prosecution of that object. In both the caes, every person who at the time of committing that offence, is a member of the assembly would be guilty of that offence. In the instant case, the assembly consisted of many persons, much above the mandatory requirement of 5 persons. 27. What is essential to apply section 149 of the IPC in a given case is to establish that either the members of the unlawful assembly had a common object or that each of the members had the knowledge that such offence was likely to be committed. If prosecution can show by adducing evidence that even one member carried a lethal weapon to the knowledge of the other members of the assembly and thereafter such armed person causes a grievous hurt, in that event, it can be inferred that they had a common object of causing such grievous hurt and in that event mere membership of the unlawful assembly without any overt act, may entail punishment under section 149 of the IPC. 28. It is not easy to arrive at a finding that such an assembly of the accused persons had a common object of killing Dhirendra. PW 3 was specific in saying that they came to plough the land and marpit took place thereafter. As has been discussed above, except Bina Das no other accused persons were found to have carried sharp weapon. The accused persons were basically carrying stick, rod etc. as alleged by the prosecution witnesses. Bina Das inflicted cut injuries on Dulu Das as deposed by the witnesses. There was incised would on the scalp of Page 17 of 21

18 Rabindra Das also. But all these injuries were simple in nature. Hirendra Das had an incised injury on his right ear measuring 1 cm in length and left ear with 2 cm length. This injury was also found to be simple in nature though caused by a sharp weapon. Dulu Das had incised wound over right arm and left index finger which are caused by sharp weapon but simple in nature. There is no incised wound with sharp weapon on the person of deceased Dhirendra Das. He died of injuries inflicted by blunt weapon. He was 65 years of age and could not bear the impact of two injuries on his head caused by blunt weapon. If all the accused persons had the common object of causing death of Dhirendra, in that event, they could have done so by sharp weapon. Even no prosecution witness has stated that all the accused persons came together and Bina Das also came along with other accused persons. Unless there is a specific testimony to the effect that Smt. Bina Das and Smt. Nivashi Das who participated in marpit came with other 6 (six) persons, it is difficult to hold that they were member of the unlawful assembly. As pointed out by PW 3, the accused persons came to plough over the land. They might have bona fide claimed over the land as indicated in statute under section 313 of the Code of Criminal Procedure. It is possible that a free fight had taken place in respect to possession of the paddy land. The two sets of agricultural tenants were aiming at taking possession of the paddy land on assertion of their respective tenancy rights under Deshamukhya family. Fact remains that agriculture is a means of livelihood to both the groups. Once marpit ensued between the two groups centering the possession of the paddy land, PW 3 rushed to the spot. In the absence of any specific evidence to the contrary, a reasonable doubt arises that the two women, namely, Bina Das and Nivashi Das Page 18 of 21

19 might have come to the place of occurrence after hearing commotion. Having considered the evidence on record, it is clear that Nagendra and his party had asserted right over the land while Dhirendra and his group resisted the same. Visualising the situation on the basis of the depositions of witnesses, what can be concluded is that there was a free fight between these two groups and each member of the groups acted in his/her own judgment and this is how injuries on both the sides have resulted. The individual action done by one or more of the members, therefore, cannot bind other members of such assembly which apparently did not have the common object of committing a particular physical injury or form of grievous hurt. Nagendra, Putul and Niru Das may be guilty of offence under section 302 of the IPC for causing death of Dhirendra but since Nagendra has already died and Putul and Niru alias Nilu were juveniles at the time of commission of offence, there is no question of convicting or upholding conviction on them. 29. The only question which remains to be decided as to what would happen to the remaining four appellants, namely, Smt. Bina Das, Smt. Nibashi Das, Sri Harendra Das and Sri Dulu Das. Bina Das apparently inflicted simple injury on Dulu Das by a sharp weapon and so she is guilty of committing of offence under section 324 of the IPC. Since such an act on the part of Bina Das was an individual action, the same cannot bind the other members of the group. PW 1 stated that Pengu assaulted Robendra Das on his head but he could not say as to who had assaulted Lilu Das. PW 2, Pintu Das, said that Pengu chased him and assaulted him with lathi. PW 6, Robendra Das, stated that Putul, Horendra and Dulu assaulted him by giving dao blow. Injuries on Robendra Das have been Page 19 of 21

20 described by PW 16, Dr. Rasheswar Paul as simple injuries caused by sharp weapon. There are two such injuries on his scalp. As Putul was a juvenile only, penal liability remains on Harendra and Dulu Das. If this Harendra is same as appellant No. 6, Parendra, in that event, appellants No. 5 and 6 are also similarly guilty of offence under section 324 of the IPC and not of section 302 of the IPC for the reasons referred to above. Having gone through the impugned judgment, we find that the learned Additional Sessions Judge convicted all the appellants including Dulu Das and Nibashi Das under section 302/149 of the IPC presuming that they had common object of killing Dhirendra Das which conclusion appear to be erroneous to us. There is no specific allegation against Smt. Nibashi Das at all. But she has been convicted only for being a member of unlawful assembly under section 149 of the IPC. As pointed out above, we do not find any common object for causing grievous hurt or murder of Dhirendra at all. Nobody has said that Smt. Nibashi has inflicted any injury to anybody. She has merely been described to be a member of unlawful assembly. If the common object of the unlawful assembly is trespass, in that event, at best she could have been convicted under section 447/448 of the IPC. But we have expressed above that participation of Bina Das and Nibashi Das in the assembly since beginning has not been established. While the male members were busy in ploughing, the two women apparently might have come later on after hearing the commotion and so Bina and Nibashi cannot be convicted with the aid of section 149 of the IPC as no specific evidence has been led in that respect. Conviction of these two women with the aid of section 149 of the IPC, therefore, is set aside and they are acquitted from the charges in this section. Once they are acquitted from charge under section 149 Page 20 of 21

21 of the IPC, consequently they cannot be held guilty under section 302 of the IPC as well. Smt. Nibashi Das is acquitted from all the charges as she has not done any individual act. Conviction of Bina Das, Parendra Das and Dulu Das is maintained under section 324 of the IPC. Consequently, sentence of Bina Das, Parendra Das and Dulu Das is modified to imprisonment for 3 years under section 324 of the IPC. In addition to this, Parendra Das and Dulu Das are also convicted under section 447/448 of the IPC and they are accordingly sentenced to suffer imprisonment for 1 year each in total. 30. All the accused persons have served the sentences already and so they are entitled to be released forthwith unless required in connection with any other case. Issue release order accordingly. 31. The appeal stands partly allowed. 32. No order as to costs. Send down the records. JUDGE CHIEF JUSTICE BiswaS Page 21 of 21