Gauhati High Court
Crl.A./260/2016 on 13 June, 2022
Page No.# 1/25
GAHC010208682016
THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Case No: Crl. A. 281/2016
1. Altaf Hussain Barbhuyan @ Alta Hussain And 2 Ors
S/O Abdul Wahid Barbhuiya, R/O Jamalpur Vill., P.S. Dhalai, Dist.
Cachar
2. Abdul Kadir
S/O Late Balu Miya
R/O Jamalpur Vill. P.S. Dhalai
Dist. Cachar
3. Abdul Wahid Barbhuyan
S/O Late Mubarak Ali
R/O Jamalpur Vill.
P.S. Dholai
Dist. Cachar ................................. Appellants
Versus
1. The State of Assam and Anr.
2. Md. Ainul Haque Mazumder
Page No.# 2/25
S/O Late Mayub Raja
R/O Jamalpur Vill.
P.S. Dhalai
DIST. Cachar ..........................................Respondents
And
Crl.A./260/2016
1. Borai Mia @ Giasuddin and 3 Ors.
S/O Late Akkaddas Ali
2. Badal Mia
S/O Late Akaddas Ali
3. Siraj Uddin
S/O Late Aklu Mia
4. Taimush Uddin Barbhuiya
S/O Late Aklu Mia Barbhuiya
All R/O Vill. Jamalpur
P.S. Dholai
Dist. Cachar
Assam.
Versus
1. The State of Assam and Anr.
2. Ainul Haque Mazumder
S/O Late Moyab Raja of Vill. Jamalchar
P.S. Dholai
Dist. Cachar
Assam
PIN 788001 .......................................Respondents
Page No.# 3/25
:: BEFORE ::
HON'BLE THE CHIEF JUSTICE (ACTING) MR. JUSTICE N. KOTISWAR SINGH
HON'BLE MRS. JUSTICE MALASRI NANDI
For the Appellants/Petitioners : Mr. A. Choudhury
Mr. D. Borah ( in Crl.A. 281/2016)
And
Mr. A.R. Bhuyan
Mr. MAI. Hussain ( in Crl.A. 260/2016)
For the Respondents : Mr. P. Borthakur
Date of Hearing : 23.11.2021
Date of delivery of
Judgment and Order : 13.06.2022
JUDGMENT & ORDER (CAV)
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
Page No.# 4/25
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.
Page No.# 5/25
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.
Page No.# 6/25
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.
Page No.# 7/25
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
Page No.# 8/25
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.
Page No.# 9/25
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.
Page No.# 10/25
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
Page No.# 11/25
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
Page No.# 12/25
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.
Page No.# 13/25
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
Page No.# 14/25
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
Page No.# 15/25
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
Page No.# 16/25
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
Page No.# 17/25
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 -
"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
Page No.# 18/25
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 act".
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 -
"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
Page No.# 19/25
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."
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/
Page No.# 20/25
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 -
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.
Page No.# 21/25
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 offence".
Page No.# 22/25
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
Page No.# 23/25
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 - 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
Page No.# 24/25
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
Page No.# 25/25
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.
JUDGE CHIEF JUSTICE (ACTING)
Comparing Assistant
