JUDGMENT
P.G. Agarwal, J.
1. Heard Mr. A.S. Choudhury, learned senior counsel assisted by Mr. R. Ali for the accused appellants and Mr. P.C. Gayan, the learned P.P.
2. This appeal is directed against the Judgment and Order dated 19.7.2000 passed by the Sessions Judge, Jorhat in Sessions Case No. 81 (J-J)/95 arising out of GLR Case No. 832/94 convicting the accused appellants under Section 148/304/149 IPC and sentencing all the accused appellants to Rigorous Imprisonment for six months each under Section 148 IPC and to undergo Rigorous Imprisonment for 10 years each under Section 304 (Part-I) read with Section 149 IPC and to pay a fine of Rs. 500 each in default further R.I. for one month each.
3. The prosecution case in brief is that on 15.8.1994 in the morning hours while Saulkhowa Deori was proceeding towards the field for ploughing, the accused persons allegedly attacked the deceased and caused injuries as a result of which Saulkhowa Deori died on the spot.
4. PW 1 Dr. A. Neog held the autopsy over the dead body and found the following injuries on the person of the deceased:
Injuries.
1. One incised wound in the lower part after neck front side above the sternal nobs of about 4 CM x 2 CM x 1 CM.
2. One incised wound inter upper part of right thigh posterior side of about 10 CM x 2.5 CM x 2 CM.
3. One incised wound in left deltoid muscles 1.5 CM x 1 CM x 1 CM.
4. One incised wound on the left fore arm at wrist joint 1 CM x 1 CM x 1 CM.
5. In the opinion of the doctor the death was due to shock and haemorrhage as a result of the injuries sustained. The doctor has opined that the injuries were sufficient to cause death in the ordinary course of nature.
6. The learned trial court has extended the benefit that the act does not amount to murder and constitutes the offence of culpable homicide not amounting to murder.
7. In view of the oral and medical evidence on record, the death of the deceased as a result of the injuries sustained has not been disputed.
8. In the present case, there are two eye witnesses in the person of Smti. Aroti Deori (PW 4) and Shri Dulal Deori (PW 2) the son of the deceased. Sri Geda Deori (PW 5) is another eye witness. PWs 4 and 5 are independent witnesses. All the eye witnesses have categorically deposed that all the assaults on the person of the deceased were made by the accused Naba Deori only. The eye witnesses were cross examined at length ; but the defence failed to discredit their testimony. The trial court for the reasons mentioned in the impugned. Judgment relying on the testimony of the eye witnesses held that the accused appellant Naba Deori assaulted the deceased and killed him. We also find that the accused appellant Naba Deori led police to recover the dao and the weapon of assault was recovered as required under Section 27 of the Evidence Act.
9. In view of the tale tell materials available on record, we hold that the conviction of the accused appellant Naba Deori needs no interference.
10. Now coming to the case of other five accused appellants we find that they have been roped in with the help of Section 148/149 IPC. The prosecution has not led any evidence as to their common object of alleged unlawful assembly and the learned trial court has not recorded any specific finding to that extent. The accused persons have been held guilty on the ground of sharing liability/joint liability. The evidence on record shows that there are some land dispute between the parties and some litigation was going on. The requirement of establishing the common object of unlawful assembly has been laid down by the Apex Court in the case of Gangadhar Behera and Ors. v. State of Orissa wherein the Apex Court held as follows:
A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression “in prosecution of common object” as appearing in Section 149 have to be strictly construed as equivalent to “in order to attain the common object” ? It must be immediately connected with the common object by virtue of the nature of the object.
The “common object” of an assembly is to be ascertained from the acts and language of the members composing it and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful. Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident on the spot eo instanti.
11. In the present case, the accused persons were tried for the offence under Section 149/34 IPC and in such cases direct evidence of common object is seldom available and as such the prosecution is required to establish that the act of the accused persons though different, were actuated by some common intention. PW 2 has deposed that all the accused persons accosted his father and accused Naba Deori inflicted dao blow on his father. PW 4 has deposed that the other accused persons caught hold of the deceased and then accused Naba Deori assaulted the deceased by giving dao blow. Thus, we find that the statement of PW 4 that the other accused persons caught hold of the deceased at the time of assault has not been deposed to by the son of the deceased (PW 2) who accompanied his father at the relevant time. The only evidence is that the accused persons were standing near the place of occurrence when the incident of assault took place.
12. As stated above, the prosecution has failed to prove or establish as to the common object of the said assembly. The common object is to be interred from the nature of the assembly and the behaviour of the participants. The members of the unlawful assembly must know what act was going to be committed. The conduct of the accused persons except Naba Deori was that they were standing near the deceased but they did not take part in the incident and none of them assaulted the deceased although it is stated by PW 2 that one of the accused persons was armed with dao and another accused was armed with lathi. Considering the background of existing rivalry between the parties, all the accused persons cannot be convicted merely because they were allegedly present at the scene of incident. There was apparently no overt act on their part and they were not helping the accused Naba Deori in assaulting the deceased.
13. We are, therefore, of the view that criminal liability can not be fastened on the accused appellants, namely, Sri Tikirai Deuri, Sri Jaylal Deuri, Sri Banikanta Deuri, Sri Mridul Deuri and Sri Naren Deuri and the appeal filed by them is allowed and they are set at liberty forthwith and they shall be released from the jail custody forthwith, if they are not wanted in any other cases.
14. So far the accused appellant Naba Deuri is concerned, his conviction under Section 304 (Part I) IPC is affirmed and his sentence is modified to imprisonment for eight years and to pay a fine of Rs. 3,000 in default to undergo further imprisonment for two months.
15. The appeal stands disposed of accordingly. Send down the record’s to the court below for doing the needful in the matter.