Malasri Nandi, J
1. Heard Mr. A. Choudhury, assisted by Mr. D. Borah, learned Counsel appearing for the appellants in Crl. A. No. 281/2016 and Mr. A. R. Bhuyan,
assisted by Mr. MAI Hussain, learned counsel appearing for the appellants in Crl. A. No. 260/2016. We have also heard Mr. P. Borthakur, learned
Addl. P.P. Assam appearing for the State/respondents.
2. This judgment shall cover the disposal of the Criminal Appeal no. 281/2016 preferred by accused/appellants 1. Altaf Hussain Barbhuyan @ Alta
Hussain, 2. Abdul Kadir and 3. Abdul Wahid Barbhuyan and Criminal Appeal No. 260/2016 filed by other accused/appellants namely 1. Borai Mia @
Giasuddin, 2. Badal Mia, 3. Siraj Uddin and 4. Taimush Uddin Barbhuiya, arising out of the same judgment dated 12.08.2016 passed by the learned
Sessions Judge, Cachar, Silchar in connection with Sessions Case No. 185/2009 convicting the accused/appellants under Section 302/149 IPC and
sentenced them to undergo imprisonment for life along with a fine of Rs. 5,000/- each with default stipulation.
3. The brief facts of the case is that the informant Ainul Haque Mazumdar lodged an ejahar before the Officer-In-Charge, Dholai Police Station
stating inter-alia that in the early morning of 01.08.1994 his elder brother Nurul Islam along with their agricultural labourers went to plough their paddy
field at Jamalchar. After some time he also went to their paddy field with a spade. Around 6.00 A.M. accused Atabur Rahman came to their house
and falsely reported to his father that the accused persons namely 1. Nizam Uddin, 2. Md. Jalal Uddin, 3. Ramiz Uddin, 4.Badal Mian, 5.Borai Mian
@ Giasuddin, 6. Md. Siraj Mian, 7.Md. Taimuz Uddin, 8. Md. Atabur Rahman, 9. Md. Kadir, 10. Md. Rastum, 11. Md. Nasir Uddin, 12.Md. Alta
Hussain, 13. Md. Abdul Wahid, 14. Md. Abdul Latif, 15. Md. Giyas Uddin and 16. Md. Selim Uddin were assaulting them in the field. On receipt of
the information, his parents rushed to the field. But no such incident noticed as reported. Thereafter, they were ready to return back home. When they
reached in front of the house of Mujammil Ali, the aforesaid accused persons being armed with deadly weapons like dao, spear, lathi etc., suddenly
started assaulting his father. He fell on the ground. Due to the alleged assault his father died on the spot. When he and his mother raised alarm, the
accused persons fled away from the scene.
4. On receipt of the ejahar, a case was registered vide Dholai P.S. Case No. 150/1994, under Section 147/148/302/149 IPC. During investigation, the
Investigating Officer recorded the statement of the witnesses wherein, P.W.-1, P.W-2, P.W-3, P.W-5, P.W-6, P.W-8 and P.W-11 were shown as
eye-witnesses. It appears from the statement of the witnesses that the incident was happened due to previous enmity regarding the landed property.
During investigation, the Investigating Officer also seized one spear from the place of occurrence in presence of the witnesses. Site map was also
prepared. The inquest on the dead body of the deceased was done by the Investigating Officer himself. Thereafter, the dead body of the deceased
was sent for post-mortem examination. During investigation, the Investigating Officer also collected the post-mortem report of the deceased. After
completion of the investigation charge-sheet had been submitted against the aforesaid accused persons under Section 147/148/302/149 IPC out of
which accused Ramijuddin, Badal Mia, Siraj Mia, Md. Taimujuddin, Md. Kadir, Abdul Wahid, Abdul Latib, Md. Selimuddin were shown as
absconders. The charge-sheet has been submitted before the learned Judicial Magistrate 1st Class, Cachar, Silchar, who committed the case to the
Court of Sessions. The learned trial Court framed and explained the charges. The appellants abjured their guilts and claimed that they have been
falsely implicated in this case due to enmity.
5. To substantiate the case of the prosecution, 11(eleven) witnesses were examined and marked eight exhibits and one material object. On the other
hand, the defence did not adduce any evidence in support of their case. The plea of the defence was of total denial.
6. The accused were questioned under Section 313 Cr.P.C about the incriminating evidence and circumstances and the accused/appellants denied all
of them. Upon consideration of evidence adduced by the prosecution, the trial Court held that the prosecution has proved the existence of common
object of the unlawful assembly and that the accused/appellants acted in furtherance of common object and convicted all the accused/appellants under
Section 302 IPC with the aid of constructive liability under section 149 IPC and awarded sentences as aforesaid. Feeling aggrieved with the conviction
and sentence, the present appeal has been preferred.
7. It was urged by the learned counsel for the accused/appellants that the learned trial Court has not correctly and properly appreciated the evidence.
Learned trial Court erred in relying on the statement of so called eye witnesses but there are lots of contradictions in their evidence which does not
inspire confidence. Apart from that all the eye-witnesses i.e. P.W-1, P.W-2, P.W-3, P.W-5, P.W-6, P.W-8 and P.W-11 are relatives of the deceased
and interested witnesses and no any independent witness has been examined though available. It is also the submission of learned counsel for the
accused/appellants that there is no reliable evidence against the present appellants. Learned trial Court has not properly considered the evidence and
material on record. The learned trial Court has failed to consider that the presence of P.W-2 Ashik Uddin, P.W- 8 Rustana Begum, daughter of the
deceased at the time of the alleged incident on the spot is doubtful. It is further submitted that the appellants have been falsely implicated due to
previous enmity regarding landed properties.
8. Learned counsel for the accused/appellants further urged before us that there was no common object to cause the murder of the deceased Mayub
Raja. There is no evidence to show that all the appellants were aware of the common object and they concurred in it. So also there is no evidence to
show that any such common object was developed on the spur of the moment. The evidence on record is also not clear as to who gave the fatal blow.
So looking to the totality of the circumstances, it was not proper on the part of learned Trial Judge to have convicted the accused/appellants under
Section 302 read with Section 149 of IPC.
9. In support of his submission, learned counsel has placed reliance on the following case laws:-
(i) Gajanand and Others Vs. State of Uttar Pradesh reported in AIR 1954 SC695,
(ii) Hawa Singh and others Vs. State of Haryana reported in 1993 Supp (2) SCC 527,
(iii) State of M.P. Vs. Mishrilal (Dead) and Others reported in (2003) 9 SCC 426,
(iv) Bimal Chandra Sarkar Vs. State of Tripura reported in 2010 SCC Online Gau627,
(v) Roy Fernandes Vs. State of Goa and Others reported in (2012) 3 SCC 221.
10. Learned counsel appearing on behalf of the respondent/state has supported the conviction of the appellants and submitted that learned trial Court
has rightly convicted the appellants on the basis of the evidence available on record. It is further submitted that in the report lodged by P.W-1 Ainul
Haque Mazumdar, the appellants have been named in the FIR. The testimony of the eye-witnesses are fully corroborated by the medical evidence. It
is also submitted that from the evidence led by the prosecution it is proved that respondents were the members of the unlawful assembly. They came
armed with deadly weapons. Learned Addl. Public Prosecutor finally argued that there is no ground to interfere in the well-reasoned findings recorded
by the Trial Court.
11. We have considered the arguments advanced by the parties and carefully perused the evidence and materials available in the record of the trial
Court.
12. As regards the homicidal death of the deceased, the eye witnesses i.e. P.W-1, P.W-2, P.W-3, P.W-4, P.W. 9 and P.W-11 categorically stated
that due to the assault hurled by the accused/appellants, the father of the informant i.e. Mayub Raja sustained several injuries on his person resulting in
his death. The P.W-10, Medical Officer also supported the fact by stating that the death of Mayub Raja was spontaneous as a result of anti-mortem
cut injury on his neck caused by sharp cutting weapons, which was homicidal in nature. Thus, from the evidence of Medical Officer it is proved that
the death of Mayub Raja was homicidal in nature.
13. Now the question comes who were the perpetrators of the crime. To prove the fact in question perusal of the evidence of the witnesses are
required.
14. P.W-1, Ainul Haque Mazumder, who is the informant as well as the son of the deceased. He deposed in his evidence that the occurrence took
place on 01.08.1994. On the date of the incident, he along with his elder brother and some labourers went to their cultivable land. It was around 5/6
A.M. At around 6.00 A.M. his father Mayub Raja along with his mother, his sister and Ashique Uddin came to their field. His father asked him as to
whether accused persons were quarrelling with them. He replied to his father that it was false. He also asked his father as to where from he got the
information. His father replied that Atabur reported him that they were assaulted by the accused persons. Then, he along with his mother, father, his
younger sister, Ashique Uddin and Nurul Haque proceeded towards their house. When they reached near the house of Muzammil Ali, Nizam Uddin,
Gias Uddin, Abdul Latif, Ashique Uddin, Nasir Uddin, Rostum Ali, Taimur Uddin, Sirin Mia, Badal Mia, Bodoi Mia, Abdul Wahid, Abdul Latif, Abdul
Kadir, Altaf Hussain, and Selim Uddin restrained their way by showing deadly weapons. They started to assault his father. As a result of which, his
father died on the spot. Thereafter, he lodged the FIR in Dholai Police Station vide Exhibit-1.
15. In his cross-examination, P.W-1 replied that in between, the house of Mujammil Ali and Anam Uddin and their cultivable land, there is a high
hillock. Their cultivable land is to the eastern side of the house of Mujammil Ali and in between there is a hillock. The front side of Mujammil Ali’s
house cannot be seen from the place of their cultivable land. He went to his cultivable land along with one labourer Abdul Bari.
16. P.W-2, is Ashique Uddin. He deposed in his evidence that the incident took place about 18/19 years ago. On the day of occurrence at about 7.00
A.M., the deceased along with his wife, daughter and one Abdur Rahman came to his house and informed him that Atabur Rahman reported that the
accused persons were fighting with his sons. Accordingly, he accompanied them to the place where his sons were working. But they did not see any
fighting. Then, he along with the deceased, his wife, daughter and Abdur Rahman proceeded towards their respective houses. When they reached at
lonely place, Gias, Nizam, Nasir, Siraj and others restrained their way and started assaulting the deceased with deadly weapons. He did not remember
the names of all those persons as he was only 10 years old at that time. Having seen the incident out of fear, he went to his house. The deceased died
on the spot.
17. In his cross-examination, P.W-2 replied that the cultivable land of Mayub Raja, Ainul Haque etc. is about a K.M. away from their house. Their
residential house and the house of Mayub Raja is intervened by 8/10 houses. He could not say if any person other than, Giyas, Nizam, Nashir and
Sigai were present there as he fled away from the scene.
18. P.W-3 is Abdul Rahman Choudhury. He deposed in his evidence that the occurrence took place about 10 years back at about 6/6.30 A.M. At that
time, he alongwith Ashique Uddin Choudury, Joynal Haque and deceased Mayub Raja went to the Paddy field to see the paddy. After an hour at the
time of returning from the paddy field, when they reached in front of the house of Anam Uddin, the accused persons (who are present in the dock
today) arrived there and started to assault Mayub Raja with stick, dao etc. Accused Rustam gave a blow with a dao at the neck of Mayub Raja and
others also assaulted him by means of weapons like dao, lathi, lenja etc. As a result of which, Mayub Raja died on the spot.
19. In his cross-examination, P.W-3 replied that Mujammil Ali is the father of Anam Uddin and they used to reside in different houses. Nurul Islam is
his maternal uncle and the deceased was the father of Nurul Islam. Their house and the house of Nurul Islam is intervened by 8/10 houses. They have
got no cultivable land adjoining the cultivation of Mayub Raja. Their cultivable land is a bit away from the land of Mayub Raja. He (P.W-3) did not
sustain any injury in the attack as they were kept aside and they saw the incident from the nearby jungle.
20. P.W-4 is Md. Tayab Ali Mazumder, who is the brother of the deceased. He was not present on the spot, at the relevant time of the incident. He
deposed in his evidence that on the day of occurrence at about 6.30 A.M. to 7.00 A.M., he was in his house. At that time, Joynal reported him that
Nizam Uddin and Gias Uddin assaulted his father. On receipt of the information, he along with his son Samsul Haque and his wife Faizun Nessa
started to proceed to the spot. When he reached in front of the house of his son-in-law Liakat Ali, he got information that his brother was killed. Later
on, he came to know from his nephew and others that the accused persons namely Nizam Uddin, Gias Uddin, Selim Uddin, Maqbul Hussain, Tamij
Uddin, Siraj Uddin, Atai, Badar Mia and others assaulted his brother as a result of which, he died on the spot.
21. In his cross examination, P.W-4 replied that when he alongwith his elder son and his wife arrived in front of the house of Liakat Ali, at that time
the dead body of Mayub Raja was carried to that place by Muzammil Ali, Siddek Ali, Duloi Mia, Bhola Mia and others.
22. P.W-5 is Md. Nazrul Haque Mazumder. From his deposition, it discloses that the incident occurred on 01.08.19994. On that day at about 6.00
A.M., he went to the house of his brother-in-law Liyakat Ali. At that time, his nephew Abdur Rahman reported that the accused persons namely
Nizam, Gias, Badal Mia and others attacked the deceased and assaulted him. On receipt of the information, he went to the place of occurrence and
found Nizam, Romij, Rustom, Gias, Selim Uddin, Kutu Mia, Kedar Mia, Badal Mia, Gias Uddin, Altai, Silkuti and others assaulting the deceased by
means of dao, lenja, ballam etc. He saw the incident from a distance of 15/20 cubits. Though he tried to resist them but he failed to do so. They also
threatened to kill him. Due to the alleged assault caused by the accused persons, his uncle Mayub Raja died on the spot. On the place of incident, he
also found his aunt Badrun Nessa and Ainul Haque and Nurul Islam. Having seen the incident, he became unconscious. Subsequently, the police came
to the spot and seized one ballam (spear) vide Exhibit-2. He was also present when the inquest on the dead body of the deceased was performed by
police.
23. P.W-6 is Badarun Nessa, wife of the deceased. She also claimed to be the eye witness to the incident. According to her, on the date of incident,
his two sons namely Nurul and Ainul went to their paddy field. After some time one Atabur reported that Nijam, Zia, Kuti, Selim, Siai, Surai, Talmuj,
Rustam, Nasik and others assaulted his sons. On receipt of the information, she along with her husband and her son Joynal and daughter Rustana
rushed to the spot and saw her two sons. On being asked, she came to know that no such incident of marpit had taken place. When they were
returning home and when reached near the house of Aman Uddin, accused persons namely Nijam, Jiar, Kuti, Nilkuti, Siraj, Taliuj Ali, Badal, Bodai,
Rostum, Naski, ramij, Jalal and others armed with deadly weapons, assaulted her husband. In the meantime, her son Najrul came to the spot and tried
to resist them but with of no effect. Her husband died on the spot.
24. In her cross-examination, P.W-6 replied that she could not say whether the inmates of Anam and Mujammil came out at the place of occurrence
at the time of incident or thereafter. The dead body was found in the valley of two tillas.
25. The daughter of the deceased, Rustana Begum was examined as P.W. 8. She deposed in her evidence that in the early morning on the day of the
incident, her brothers Ainul Haque Mazumder and Nurul Haque went to the paddy field. After some time one Attabur reported his father that all the
accused persons assaulted her brothers in the paddy field. On receipt of the information, she along with his father, brother Johirul went there. On
reaching there, she found her two brothers working in the paddy field. On being asked, they told that there was no such incident and asked them to
return back home. At the time of returning when they reached in front of the house of Anam Uddin, the accused persons namely Nijam, Gias, Bodar,
Baroi, Tomu, Nasir, Rostu, Kuti, Bilkuti, Kadir, Ramiz, Altai, Attabur and Selim sorrounded his father and started to assault him with dao, lathi, lenja
etc., and ultimately her father died on the spot.
26. In her cross-examination, P.W-8 replied that the distance in between the house of Anam Uddin and the place where her brothers were cultivating
is less than a mile. She has four own brothers namely Nurul Haque, Ainul Haque, Joynul Haque and Arjul Haque. She has no brother named as
Johirul.
27. P.W-11 is another son of the deceased, Joynul Haque Mazumder. He deposed in his evidence that on the day of the incident in the morning hour,
his brother Ainul and Nurul Islam went to their paddy field which is about one furlong away from their house. At about 7.00 A.M. accused Atabur
Rahman came to their house and informed that Ainul and Nurul Islam were being assaulted by Nizam, Jalal, Altaf and others. On receipt of the
information, his father went out along with him. They were followed by his mother and sister Rustana. On the way to their paddy field he met his two
nephews Ashik Uddin and Abdur Rahman. They also accompanied them to their paddy field wherein they found everything normal. On being asked
by their brothers the reason of their arrival on the spot, his father told that accused Atabur reported him that they were being assaulted by Nizam,
Jalal, Altaf and others. They replied that nothing had happened and the information was wrong. At the time of returning, when they reached in front of
the house of Muzammil, all the accused persons attacked his father armed with deadly weapons. His father fell on the ground and died on the spot. At
that time, his sister Rustana Begum, his mother and his two nephews were on the place of incident. Having heard hue and cry his brother Ainul and
cousin Nazrul Haque Mazumder came to the spot. Out of fear he left the place and went to Dholai P.S. informing about the incident. Police came to
the spot. The dead body was taken by the police. At that time he was reading at class-V.
28. From the evidence of aforesaid witnesses, it is seen that the witnesses examined by the prosecution are all relatives of the deceased. P.W. 1and
P.W. 11 are the sons of the deceased. P.W-2 and 5 are the nephews of the deceased. P.W-3 is the grandson of the deceased. P.W-4 is brother of
the deceased, P.W-6 is the wife of the deceased and P.W-8 is the daughter of the deceased.
29. It appears from the evidence on record that the incident occurred in the morning hour at about 6/7 A.M. Admittedly, the incident took place in
front of the house of Mujammil Ali and adjacent house of his son Anam Uddin. As per evidence of the witnesses, there are house of other persons
adjacent to the house of Mujammil Ali. Mujammil Ali, Anam Uddin and their neighbours used to live with their family but none of the persons reside in
the vicinity were examined in this case. It appears from the evidence of P.W.-1 that he went to his cultivable land along with his labour Abdul Bari. If
it is accepted that P.W.-1 had seen the incident, Abdul Bari had also got the opportunity to see the incident but Abdul Bari was not examined in this
case. Neither he was cited as witness in the charge-sheet nor he was examined by the prosecution to reveal the truth.
30. It is true that one person i.e. Mayub Raja died on the date of incident. It is alleged that all the accused/appellants were involved in causing the
death of Mayub Raja. But there are lots of contradictions in the evidence of the witnesses. According to P.W-1 the incident occurred in front of the
house of Mujammil Ali but P.W-2 stated something different. From his deposition, it reveals that he did not say the incident took place in front of the
house of Mujammil Ali, rather he stated that incident took place in a lonely place. P.W-3 specifically stated that Rustam Ali gave a blow with a dao at
the neck of Mayub Raja causing cut injury on his neck. But other witnesses did not uttar a single word regarding the part played by each of the
accused persons. It is no doubt true that where charge was framed under Section 302/149 IPC, it is not required to prove which of the accused
inflicted what kind of injuries causing death of a person, but it is required to be proved whether such accused persons were present on the spot or not.
In the case in hand, each of the witnesses differ in fixing the names of the accused persons involved in causing the death of Mayub Raja.
31. The question falling for consideration is whether the prosecution succeeded in proving the existence of common object amongst the accused
persons and whether the accused persons acted in furtherance of the common object and that the accused persons knew that the death was likely to
be committed to convict the accused/ appellants u/s 302 IPC with the aid of Section 149 IPC.
32. Section 149 IPC consists of two parts:-
The first part of the section means that there exists common object and that the offence has been committed in prosecution of the common object. In
order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of
which the accused was the member.
The second part of the section means that, even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet
fall u/s 149 IPC, if it can be shown that the offence was such as the members knew was likely to be committed.
33. What is important in each case is to find out if the offence was committed to accomplish the common object of the assembly or was the one which
the members knew to be likely to be committed. Once the court finds that the ingredients of section 149 IPC are fulfilled, every person who at the
time of committing that offence was a member of the assembly has to be held guilty of that offence. After such a finding, it would not be open to the
court to see as to who actually did the offensive act nor would it be open to the court to require the prosecution to prove which of the members did
which of the above two ingredients. Before recording the conviction u/s 149 IPC, the essential ingredients of section 141 IPC must be established.
34. The scope of two parts of section 149 IPC has been explained in Rajendra Shanta Ram Todankar v. State of Maharashtra and others reported in
(2003) 2 SCC 257, Hon’ble Supreme court has explained section 149 IPC and held as under â€
“Section 149 of IPC provides that if an offence is committed by any member of an unlawful assembly in prosecution of that assembly, or such as
the member of that assembly knew to be likely to be committed in prosecution of that object, every person who at the time of committing of that
offence is a member of the same assembly is guilty of that offence. The two clauses of section 149 IPC vary in degree of certainty. The first clause
contemplates the commission of an offence by any member of an unlawful assembly which can be held to have been committed in prosecution of the
common object of the assembly. The second clause embraces within its fold the commission of an act which may not necessarily be the common
object of that assembly, nevertheless, the members of the assembly had knowledge of the likelihood of the commission of that offence in prosecution
of the common object. The common object may be commission of one offence while there may be likelihood the commission of yet another offence,
the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly. In either case every member of the assembly
would be vicariously liable for the offence actually committed by any other member of the assembly. A mere possibility of the commission of the
offence would not necessarily enable the court to draw an inference that the likelihood of commission of such offence was within the knowledge of
every member of the unlawful assembly. It is difficult indeed, though not impossible to collect direct evidence of such knowledge. An inference may
be drawn from circumstances such as the background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the
members of the assembly, their common objet and the behaviour of the members soon before, at or after the actual commission of the crime. Unless
the applicability of section 149 either clause is attracted and the court is convinced, on facts and in law both of liability capable of being fastened
vicariously by reference to either clause of Section 149 IPC, merely because a criminal act was committed by a member of the assembly every other
member thereof would not necessarily become liable for such criminal act. The inference as to likelihood of the commission of the given criminal act
must be capable of being held to be within the knowledge of another member. of the assembly who is sought to be held vicariously liable for the said
criminal actâ€
35. The same principles have been reiterated in state of Punjab v. Sanjiv Kumar alias Sanju and others reported in (2007) 9 SCC 791.
36. Creation of vicarious liability u/s 149 IPC is well decided in the case of Allauddin Mian and others, Sharif Mian and another v. State of Bihar,
reported in (1989) 3 SCC 5, Hon’ble Supreme Court held that â€
“Therefore in order to fasten vicarious responsibility on any member of an unlawful assembly the prosecution must prove that the act constituting
an offence was done in prosecution of the common object of that assembly or the act done is such as the member of that assembly knew to be likely
to be committed in prosecution of the common object of that assembly. Under this section therefore every member of an unlawful assembly renders
himself liable for the criminal act or acts of any other member or members of that assembly provided the same is/are done in prosecution of the
common object or is/are such as every member of that assembly knew to be likely to be committed. This section creates a specific offence and makes
every member of the unlawful assembly liable for the offence or offences committed in the course of the occurrence provided the same was/were
committed in prosecution of the common object or was/were such as the members of that assembly knew to be likely to be committed. Since this
section imposes a constructive penal liability, it must be strictly construed as it seeks to punish members of an unlawful assembly for the offence or the
offences committed by their associate or associates in carrying out the common object of the assembly.â€
37. The same principles were reiterated in the case of Daya Kishan v. State of Haryana reported in (2010) 5 SCC 81 and also in the case of Kuldip
Yadav v. State of Bihar reported in (2011) 5 SCC 324.
38. Whether the members of the unlawful assembly really had the common object to cause the murder of the deceased has to be decided in the facts
and circumstances of each case, nature of weapons used by such members, the manner and sequence of attack made by those members on the
deceased and the circumstances under which the occurrence took place. It is an inference to be deduced from the facts and the circumstances in
each case vide the case of Lalji and others v. State of UP reported in (1989) 1 SCC 437, Ranvir Yadav v. State of Bihar reported in (1995) 4 SCC
392, Rachamreeddy Chenna Reeddy and other v. State of AP reported in (1999) 3 SCC 97.
39. Reverting back to the present case, after going through the evidence in detail we are of the opinion that the prosecution evidence is not sufficient
to conclude that any conspiracy was hatched by the accused/appellants with common object to cause the death of the deceased Mayub Raja. There
was an omnibus allegation against the accused/appellants that on the date of incident while the informant and his parents, sister Rustana Begum were
going towards their house, all the accused/appellants and the other accused persons who were absconding since the date of incident, assaulted Mayub
Raja with deadly weapons like dao, spear etc, causing grievous injuries on his person and he died on the spot. Only P.W-3 had specifically stated that
the accused Rustam gave a blow with a dao at the neck of deceased Mayub Raja causing cut injury thereon which proved fatal as per report of the
medical officer.
40. The Medical Officer was examined in the case as P.W-9 Dr. Y. N. Sinha. From his deposition, it reveals that he conducted post mortem
examination on the dead body of the deceased Mayub Raja and he found the following injuries â€
a. Cut injury left side of the neck along with the second survival vertebrae measuring 25 X 5 cm with cut in skin muscles.
b. Incised wound on left side Scapular region measuring 15 X 3 X 1 cm.
c. Incised wound left parietal region of the scalp posteriorly measuring 7 X 1 cm and Scalp Deep.
d. Incised wound on back lower part placed transversely with cut in fourth number vertebra.
e. Incised wound on left hip laterally measuring 17 X 4 X 3 cm.
f. Incised wound left side of chest girth wall in the lower part measuring 3 X 1.5 X 1 cm.
g. Incised wound in lower part of Chest girth 5cm away from mid line measuring 3 X 1 X 1 cm.
h. Incised wound upper part of abdominal wall on the left side 4.5 cm left to mid line measuring 3 X 1 cm X muscle deep.
i. Incised wound in between cleft of middle and index finger measuring 2 X 1 cm.
j. Incised wound dorsum of left hand measuring 1.5 X 1 X 1cm.
All the injuries are fresh and antimortem in nature caused by sharp weapon. Dr opined that death was instantaneous as a result of antimortem cut
injury in the neck caused by sharp cutting weapon which was homicidal in nature.
41. From the medical evidence, it is clear that the injury sustained by the deceased on his neck was fatal. As we have already stated that except PW3
no other witnesses had stated who inflicted the injury to the neck of the deceased. Admittedly the accused Rustam was not produced before the trial
court. He was shown as absconder in the charge sheet. Now the question comes whether under these circumstances common object of the unlawful
assembly was to cause the death of the deceased and whether every member of the unlawful assembly shared the same!
42. Section 149 IPC reads as under:-
“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 persecution 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 committing of the offence is a member of the same assembly is guilty of the
offenceâ€.
43. As is clear from the plain language in order to attract the provision of the section following ingredients are to be essentially established.
i. There must be an unlawful assembly.
i. Commission of an offence by any member of an unlawful assembly.
ii. Such offence must have been committed in prosecution of the common object of the assembly or must be such as the members of the assembly
knew to be likely to be committed.
44. If these three elements are satisfied then only a conviction u/s149 IPC may be substantiated and not otherwise.
45. In the facts of the present case, we find that common object of the assembly, even if it is presumed that there was an unlawful assembly, has not
been proved. The expression “in prosecution of the common object†occurring in this section postulates that the act must be one which have been
done with a view to accomplish the common object attributed to the members of the unlawful assembly. This expression is to be strictly construed as
equivalent in order to attain common object. It must be immediately connected with common object by virtue of nature of object. In the instant case,
even the evidence is not laid on this aspect. As pointed out in the impugned judgment the learned Trial court was influenced by the fact that one of the
injuries on the person of Mayub Raja was on his neck which became the cause of his death and from this common object was inferred.
46. No doubt section 149 IPC is wide in its sweep but in fixing the membership of the unlawful assembly and in inferring the common object various
circumstances also have to be taken into consideration. Having regard to the omnibus allegation, we think it is not safe to convict every one of them
for the offence of murder by applying the section 149 IPC. On a careful observation of the entire prosecution case including the evidence of the
witnesses, it is seen that the witnesses differ in stating the names of the accused persons who were actually involved in causing the death of Mayub
Raja.
47. P.W-10 is the Investigating Officer, Jayanta Kumar Dutta, who deposed in his evidence that on 01/08/1994 he was posted at Dholai PS. On that
day at about 11:30 Am one Joynul Haq Majumdar came to Dholai PS and verbally reported that on that day in the morning hour at about 8 Am while
his father Mayub Raja was returning from paddy field, on the way, accused Jalal, Nizam, Samed Hussain, Atabur, Kuti , Gias and others assaulted his
father with sticks, dao and Lenja etc, for which he sustained grievous injuries on his person. Accordingly, he recorded GD entry vide Dholai P.S GDE
No â€" 8 dated 01/08/1994. Thereafter, he went to the place of occurrence and found the dead body of Mayub Raja lying on the road with injuries.
He drew sketch map of the place of occurrence vide exhibit 7. He conducted inquest on the dead body of the deceased vide Exhibit 3. Then he sent
the dead body of the deceased for post-mortem examination. He also seized one Ballam vide exhibit 2 from place of occurrence in presence of the
witnesses. He recorded the statement of the witnesses at the place of occurrence. On that very day Ainul Haq Majumdar lodged FIR vide Exhibit 1.
Subsequently he collected the PM report. After completion of the investigation, he submitted the charge sheet against 15(fifteen) accused persons u/s
147/148/302/149 IPC out of which he apprehended only seven accused persons.
48. From the evidence of P.W-10, it reveals that the houses of the deceased and the informant were in village Jamalpur. The place of occurrence was
Jamalpur forest village. The houses of the accused persons were in the village Jamalpur and Narayanpur. The place of occurrence and the locality are
surrounded by trees, bamboo bushes etc and it was a hilly place. But from the evidence of the prosecution witnesses, it reveals that the incident
occurred in front of the house of Mujammil Ali or his son Anamuddin , but P.W-10 did not utter a single word that the incident occurred in front of the
house of Mujammil Ali or his son. According to P.W-10, the place of occurrence was a hilly place and Jamalpur forest village. It is not in dispute that
Mayub Raja died on the date of incident i.e., on 01/08/1994 but there is no evidence to prove that the accused/appellants had any common object to
commit the murder of Mayub Raja which activated all of them to join in furtherance of the common object.
49. As stated earlier first part of section 149 IPC states about the commission of an offence in prosecution of the common object of the assembly,
whereas the second part takes within its fold knowledge of likelihood of the commission of that offence in prosecution of the common object. In the
facts and circumstances of the present case, we are of the view that the prosecution has not proved common object amongst the accused/appellants
and that all of them acted in furtherance of the common object to invoke the first part of the section 149 IPC.
50. Let us consider whether the act of the accused/appellants falls under the second part of section 149 IPC. As members of the unlawful assembly
whether the accused/appellants knew that the offence of murder is likely to be committed. It is a matter of evidence that on receipt of the information
from one Atabur regarding assault towards the son of the deceased, he i.e, Mayub Raja went to his paddy field where his sons were working. On his
arrival on the spot along with his wife and daughter Rustana they did not find any scuffle between the parties. On being asked to his sons by the
deceased it came to their knowledge that it was false information. At the time of returning home the incident occurred. The fact was confirmed by the
P.W-10, i.e, the Investigating Officer that the witness i.e. P.W-1 did not state before him about the aforesaid fact. We have also gone through the
impugned Judgment of the Trial Court but there is no definite finding of the Trial Court that the common object of the assembly was to commit the
murder of Mayub Raja or that the accused/appellants had knowledge that offence of murder was likely to be committed and hence the conviction of
the accused/appellants u/s 302 IPC with the aid of section 149 IPC cannot be sustained.
51. In the result, appeal is allowed. The impugned Judgment dated 12.08.2016 passed by the learned Sessions Judge, Cachar, Silchar in connection
with Sessions Case No. 185/2009 is set aside. The accused/appellants are acquitted and be released forthwith if not wanted in any other case.
52. LCR be returned back.
