Gauhati High Court
Sukumar Saha And Ors. vs State Of Tripura on 3 October, 2007
Equivalent citations: 2008(1)GLT104
Author: I.A. Ansari
Bench: I.A. Ansari
JUDGMENT I.A. Ansari, J.
1. By the judgment and order, dated 28.05.2005, passed, in Sessions Trial No. ST 34 (NT/D) of 2004, by the Additional Sessions Judge, North Tripura, Dharmanagar, the present eight appellants stand convicted not only under Section 148, but also under Section 302 read with Section 149 IPC and each of them stands sentenced to suffer, for conviction under Section 148 IPC, rigorous imprisonment for two years and to undergo, for conviction under Section 302 read with Section 149 IPC, imprisonment for life and fine of Rs. 5,000/- with further direction that both the sentences shall run concurrently.
2. The case of the prosecution, as unfolded at the trial, may, in brief, be described thus:
(i) On 14.11.2003, at about 7.30 p.m., the present appellants, namely, (1) Sri Sukumar Saha, (2) Sri Mana Saha @ Abhijit Saha, (3) Sri Bimal Chakma, (4) Sri Hiralal Sarkar, (5) Sri Titan Roy, (6) Sri Jagadish Roy, (7) Sri Kanu Das @ Ramu Das @ Panu Das, and (8) Sri Nepal Sahaji along with Sri Uttam Sarkar, Anil Sarkar and two others, armed with various weapons, such as, daos, lathis, bamboo-made spears, etc., came to the house of one Malati Chakma and set fire to her house. From the house of Malati Chakma, all the accused aforementioned went to the house of Shiba Ratan Chakma, ransacked his house and, then, reached the house of Bijaymani Chakma, assaulted her and also her daughter, Sumita, causing injuries on their person. All the accused aforementioned, thereafter, proceeded towards the house of Basanta Chakma. In order to save his life, while Basanta was running away, he was caught on the road and assaulted by the weapons, which the accused were holding in their hands. Basanta sustained multiple injuries on his body. After the assailants left Basanta, Sukracharya Chakma (PW5), who was on a visit to the house of Basanta and had seen the occurrence of assault on Basanta, raised alarm. Attracted by the alarm so raised by Sukracharya, people gathered there. Injured Basanta was, then, taken to Pacherthal PHC. After providing Basanta initial treatment, he was referred to GB Hospital, Agartala. Injured Basanta remained in coma and while undergoing treatment at the hospital at Agartala, he succumbed to his injuries.
(iii) A written FIR was lodged on the very night of the occurrence, i.e., on 14.11.2003, with the police at Pecharthal Police Station. Based on this FIR, Pecharthal PS Case No. 57/2003 under Sections 148/149/436/307/326 IPC was registered against the present appellants and four others. The police visited the place of occurrence, examined the witnesses and, upon Basanta's death, inquest was held on his dead body and the same was also subjected to post-mortem examination. On completion of investigation, a charge-sheet was laid against twelve persons including the present appellants under Sections 148/149/436/307/302/34 IPC.
3. During trial charges under Section 148 IPC, Section 436 IPC read with Section 149 IPC and Section 302 IPC read with Section 149 IPC were framed. To the charges so framed, all the accused pleaded not guilty and claimed to be tried.
4. In support of their case, prosecution examined as many as 22 witnesses. The accused were, then, examined under Section 313 Cr.P.C. and in their examination aforementioned, they denied that they had committed the offences alleged to have been committed by them, the case of the defence being that they were falsely implicated due to animosity, which the parties had developed following a dispute over their right to operate a local fishery. No evidence was, however, adduced by the defence.
5. On conclusion of the trial, the learned trial Court, having not found adequate materials to sustain the charge under Section 436 read with Section 149 IPC, acquitted all the accused of the same; but, on finding sufficient materials against the present appellants under Section 148 IPC and also under Section 302 read with Section 149 IPC, convicted them accordingly. The rest of the accused including those two, who had not been named in the FIR, were acquitted. Aggrieved by their conviction and the sentences passed against them, the convicted persons have preferred this appeal.
6. We have heard Mr. J.M. Choudhury, learned Senior Counsel, and Mr. A.K. Bhowmik, learned Senior Counsel, appearing on behalf of the appellants. We have also heard Mr. D. Sarkar, learned Public Prosecutor, for the respondents.
7. While considering the present appeal, what needs to be noted is that there are altogether four places of occurrence. All these places are not in close vicinity of each other, for, the houses, where the alleged occurrence took place, were sparsely located. The accused persons had allegedly set fire, first, to the house of Malati Chakma, then, moved over to the house of Shibratan Chakma, ransacked his house and, thereafter, entered into the house of Bijoymoni Chakma, assaulted her and also her daughter, Sumita. It was then that the accused proceeded towards the house of Basanta and assaulted him on the road, while he was trying to run away to the bushes to save his life. None of the witnesses has claimed, nor is there even an iota of evidence on record to show, that the witnesses to the said four different places of occurrence had moved along with the accused or followed the accused from one place to another place. Hence, though the witnesses have described the occurrence of arson, ransacking, assault, etc., which had taken place at difference places, such descriptions are mere descriptions of the occurrences given by the witnesses and none of them can be regarded as, or is a witness (as already indicated hereinbefore), to all the four occurrence, which allegedly took place at four different places.
8. In the present case, as all the appellants stand acquitted of the offence under Section 436 IPC and they stand convicted only under Section 148 IPC and Section 302 read with Section 149 IPC, the evidence, as regards the occurrence of setting fire to the house of Malati Chakma, is, admittedly, not of much assistance, in this appeal, inasmuch as none of the witnesses, who had allegedly seen the house of Malati being set on fire, is an eye witness to the alleged subsequent occurrence of rioting and/or assault on Basanta.
9. Hence, in the present appeal, what needs to be determined is as to whether there is any evidence to sustain the findings of guilt reached by the learned trial Court against the accused-appellants under Section 148 and Section 302 read with Section 149 IPC.
10. While considering the present appeal, what also needs to be pointed out, at the very outset, is that since the sentence passed against the accused-appellants for the offence allegedly committed by them, under Section 148 IPC, was for two years and the accused-appellants have remained in custody of more than two years, the appeal has been essentially argued, on behalf of the appellants, on the charge framed against them under Section 302 read with Section 149 IPC. In the present appeal, we are, therefore, concerned as to whether there was adequate evidence for holding the accused-appellants guilty of having committed offence of murder by causing Basant Chakma's death in prosecution of the common object of the unlawful assembly, which the appellants had allegedly formed.
11. While considering the question posed above, what needs to be noted that it is not in dispute that Basanta Chakma met with homicidal death as a result of the injuries sustained by him. The question, however, as to who were the assailants? In this regard, prosecution relies on the evidence of PW5, PW9, PW10, PW11, PW13 and PW14, who are all claimed to be eye witnesses to the occurrence of assault on Basanta. As far as PW12 is concerned, he is a doctor, who had examined the injured Basanta at Pecharthal PHC on the night of the occurrence, i.e., on 14.11.2003, and PW18 is the doctor, who had performed autopsy on Basanta's dead body. PWs 19,20,21 and 22 are all police officers, who were involved in the investigation of the case.
12. Before we enter into the examination of the evidence of the eye witnesses, certain admitted facts, at the cost of repetition, need to be brought on record. These facts are, in brief, thus: There are four different places of occurrence. There is no evidence that the witnesses had moved from one place to another along with the accused or followed the accused from one place of occurrence to another and had witnessed more than one occurrence. The places of occurrence are not close to each other. In fact, the distance between the house of Bijoymoni Chakma is as far as half-a-kilometer from the house of Sibaratan Chakma, whose wife Biramala Chakma was the informant and whose house was ransacked after the miscreants had allegedly set fire to the house of Malati Chakma. S imi larly, the house of Basanta Chakma is situated at a distance of half-a-kilometer from the house of the said Sibaratan Chakma.
13. Hence, it is clear that unless it is proved, by adducing adequate and convincing evidence, that all the witnesses were present at all the places of occurrence and/or that the accused were present at all the places of occurrence, it could not have been held that all the accused-appellants were present at all the places of occurrence and they could not have been held guilty of committing murder, even if they were guilty of committing the offence of rioting, while armed with deadly weapon, unless cogent evidence is found available on record proving that the object, which all the accused, who had formed the unlawful assembly, shared with each other included the commission of the offence of 'murder' or unless the evidence on record convincingly proves that the accused-appellants knew that the offence of 'murder' was likely to be committed by their unlawful assembly.
14. In other words, unless the prosecution proves that commission of 'murder' was an object, which all the accused shared, or that all the accused knew that 'murder' was likely to be committed by them, it would be impossible to sustain the conviction under Section 302 IPC unless presence of all the accused in the place of assault, on Basanta, is convincingly proved. It is, therefore, clear that even assuming that the present appellants were found to be involved in ransacking the house of Sibratan Chakma or were found to be involved in the occurrence of assault at the house of Bijaymoni Chakma, these facts would not be sufficient to confidently hold that the appellants were guilty of offence under Section 302 IPC read with Section 149 IPC unless convincing evidence on record is found to exist showing that Basanta was killed in prosecution of the common object of the unlawful assembly formed by the appellants or unless all of them is proved to have known that such an offence was likely to be committed in prosecution of their common object or unless there is convincing evidence on record to show that each of the accused-appellants was involved in, or was present at, the place, where Basanta Chakma had been assaulted and injured.
15. An unlawful assembly, under Section 141 IPC, is one which is formed by five or more persons, the object, which must be common to all the members of such an assembly, being one of the five objects as enumerated in Section 141 IPC itself. A common object is the object, which is shared by all the members of an unlawful assembly. Section 149 IPC is, however, a little different in the sense that when an offence is committed by any member of an unlawful assembly in prosecution of the common object, which the members of such assembly share, then, every person, who, at the time of committing the offence, is a member of the assembly will be guilty of the offence committed by any of them. Every member of such an assembly would also be guilt}' of the offence committed by any of them if the members knew that such an offence was likely to be committed in prosecution of the object, which all of them had commonly shared.
16. While common intention requires prior concert of mind, common object does not require common meeting of mind before the act. It is sufficient to attract Section 149 if each member of an unlawful assembly has the same object in view and they act as an assembly to achieve that object. Common object of an assembly has to be ascertained from the acts, language and utterances of the members constituting it, the nature of arms, which they may be carrying, and from consideration of all the surrounding circumstances. Common object may be gathered from the course of conduct adopted by, and behaviour of, the members of the assembly at or before the actual conflict. What was the common object of an unlawful assembly, at a particular stage of an incident, is essentially a question of fact to be determined from a number of factors, such as, the arms carried by the members and the behaviour of the members at or near the scene of the incident. Explanation to Section 141 makes it abundantly clear that an assembly, which was not unlawful, when it was assembled, may subsequently become unlawful. Section 149 consists of two parts, the first part envisages that the offence is committed in prosecution of the object, which the members of the assembly commonly share; whereas the second part of Section 149 IPC envisages a situation, where the offence is one, which the members of the assembly knew was likely to be committed. The word 'knew', however, implies something more than a possibility. Possibi lity that a particular offence maybe committed is not what Section 149 envisages; rather, as observed by Supreme Court, in Mculan Singh v. State of Bihar reported in (2000) 4 SCC (Cri) 1360, to attract the second part of Section 149, positive knowledge is necessary. See also Mizaji v. State of UP .
17. When it is not known as to who had assaulted the deceased or when it is a mystery as to who was the one, at whose hands the deceased received injury, it is not possible to attract Section 34 or Section 149 IPC. See Dharam Pal v. State of Haryana , Shamhhu Kuer v. State of Punjab and Munna Chanel v. State of Assam reported in (2006) 2 SCC (Cri.) 43.
18. We are not unmindful of the fact that under Section 149 IPC and/or Section 34 IPC, a specific overt act, on the part of the accused, is not necessary. This does not, however, mean that it would not be required to prove that either he was present at the place of occurrence or that the offence, which had been committed, was in prosecution of an object, which the accused concerned, being a member of the unlawful assembly, shared or knew likely to be committed.
19. It is, now, well settled law, as observed by the Supreme Court in Bunnilal Chaudhary and Ors. v. State of Bihar , that under Section 149 IPC, the liability of other members for the offence committed during the continuance of the occurrence rests upon the fact whether the other persons knew beforehand that the offence actually committed was likely to be committed in prosecution of the common object. Such knowledge may reasonably be collected from the nature of the assembly, arms or behaviour on or before the scene of occurrence. If such knowledge may not reasonably be attributed to the other members of the assembly then their liability for the offence committed during occurrence does not arise.
20. In the backdrop of the position of law discussed above, when we revert to the case at hand, we notice that there are, at least, two witnesses, namely, PW2 and PW3, who have categorically deposed that though it was not raining, the night of the occurrence was a dark night. It is also not in dispute that in the middle of November, it becomes quite dark before 6.00 P.M.; whereas the alleged occurrence had, admittedly, taken place at around 7.30 P.M.
21. While considering the above aspects of the case, it is important to bear in mind that the learned Public Prosecutor has submitted that the night of the occurrence was the 4th night after the full moon and it can be easily assumed that it was under the moon-light that the appellants had been recognized. We are afraid that this submission cannot be so readily acceded to, for, when the specific evidence is that there was no street-light in the locality concerned and the night was a dark night, though it was not raining, it cannot be held that there was sufficient light to enable the witnesses to see and recognize the assailants, though the accused may have been known to them. This apart, when the alleged occurrence of assault on Basanta took place in a dark night, there was no streelight near the house of Basanta, it was incumbent, on the part of the prosecution, to adduce some evidence to show as to how the witnesses happened to witness the alleged occurrence of assault on Basanta or happened to see and recognize the assailants. In this regard, unfortunately, there is no evidence at all. The learned Trial Court also appears to have remained a recording machine of the evidence, which was adduced, instead of being involved in the trial as a judge, whose duty was to reach the truth without, however, stepping upon the role of the prosecution or the defence.
22. In the light of the above glaringly noticeable facts let us, now, turn to the evidence given by the alleged eye witnesses to the occurrence. We, first, deal with the evidence of Sukracharya (PW5), who is not an inmate of the house of Basanta Chakma, but happened to be present with Basanta, when the accused allegedly reached Basanta's house. PW5 is, thus, a chance witness. According to the evidence of this witness, on hearing hue and cry raised from the house of Bijay Mani Chakma, he went under a cot trying to hide himself there and after a few minutes, he and ' Basanta came out and started going towards the jungle to take shelter, but when Basanta was crossing the road, accused-appellants and some others attacked Basanta with spears, made of bamboo, and, then, accused Sukumar Saha and Mana Saha gave blows by dao and accused Bimal Chakma assaulted Basanta with lathi and after seriously injuring him, the miscreants fled away. PW5 claims that he had seen the assault on Basanta standing behind the bushes, where he had taken shelter, and that after the miscreants had left, he raised alarm and, then, people gathered there.
23. From the narration of facts as deposed by PW5, what becomes clear is that people, according to the evidence of PW5, came to know about the occurrence of assault on Basanta only when PW5 had raised alarm. What is extremely important to note is that the evidence of PW5 gives no indication as to who all had reached the place of occurrence on the alarm being raised by him (PW5). The evidence of PW5 also does not indicate at all that anyone, other than him, was present with Basanta at Basanta's house, when the alleged rioters came to Basanta's house.
24. In the backdrop of what we have indicated above, we, now, turn to the evidence of Basant's widow, Smti Shanti Lata Chakma (PW10). Her evidence, we find, is that the miscreants, first, attacked the house of Malati Chakma, set her house on fire and, then, they moved to the house of Bij ay Moni Chakma, where they assaulted Bij ay Moni's daughter, Sumita, and, then they came to her house, i.e., Basanta's house, and they i.e. (the family members of Basanta) crossed the road and took shelter behind the bushes, but when Basanta was trying to find shelter behind the bushes, the miscreants found him on the road, assaulted him by daos and spears causing serious injuries on his person. PW10 claims that she saw the incident of assault on her husband from behind the bushes, where she was hiding. She also claims to have recognized the appellants.
25. What is, now, of paramount importance to note is that though PW 10 has projected herself as an eye witness to all the incidents, which had allegedly taken place, the fact remains, and as we have already pointed out above, that when her evidence is put to microscopic analysis, it becomes transparent that though she claims that the miscreants had set Malati's house on fire, and then, they had gone to Bijay Moni's house and assaulted Bijaymoni's daughter there, it is quite clear that she does not claim to be an eye witness to any of these two occurrences. She, however, claims that she had witnessed the assault on her husband. In this regard, it is noteworthy that her previous statement made to the police, which stands proved as Exhibit B, shows that her statement before the police was:
I had gone to Ranjit Chakma's house. After sometime, having stayed in Ranjit Chakma's house on returning home again, I met with Shri Sukumar Saha; then I came to know from Sukra Chaja that when my husband Basanta Chakma was fleeing out of fear, on the way he was attacked by Shri Sukumar Saha along with his group consisting of Bimal Chakma, Hiralal Sarkar, Narayan Sarkar, Sirbal Sarkar, Mana Saha, son of Sukumar Saha, and Krishna Saha with dao and lathi in their hands and as a result my husband sustained severe injuries.
26. A bare reading of the statement of PW10, made to the Investigating Officer, leaves no room for doubt that according to her previous statement, she was not present at her house on the night of the occurrence and it was only when she returned home, she come to know from Sukracharya (PW5) that her husband had been attacked by the miscreants. In the face of Exhibit B, there can be no escape from the conclusion that PW10 falsely projected herself as an eye witness to the alleged occurrence of assault on her husband. This impression gets further strengthened from the fact that although the occurrence took place on 14.11.2003, the statement of PW 10 was recorded by the police as late as on 10.02.2004, i.e., after about three months of the occurrence and even in such a belatedly recorded statement, her version of the occurrence, revealed before the police, was that she was not even present at her house, when her husband had been assaulted. This fact also clearly shows, as we have already indicated, in the light of the evidence of PW5, that the evidence given by PW5 gives an impression that none of the family members of Basanta was present at Basanta's house on the night of the occurrence.
27. We, now, come to the evidence of Kalabaran Chakma (PW9), who is the son of deceased Basanta. His evidence is that the miscreants set fire to the house of Malati, then, they moved to the house of Bijoy Moni Chakma, where they assaulted Bijoy Moni's daughter and, thereafter, the miscreants came to his house, (i.e., the house of Basanta) and he (PW9) along with his other family members filed away to the nearby bushes and it was, thereafter, that the accused had came and assaulted his father on the road near his house. On a close scrutiny of the evidence of PW9, we find that he has merely described the occurrence including the occurrence of assault on his father. He has not even whispered that he had himself seen the occurrence of assault on his father. In fact, on a specific query made by this Court, learned Public Prosecutor could not point out anything, in the evidence of PW9, to show that in his evidence, PW9 had claimed to be, or he could be regarded as, an eye witness to the occurrence of assault on hi s father.
28. The learned trial Court, it appears, has mechanically recorded the evidence given by various witnesses without even making an attempt to ascertain whether they were deposing as eye witnesses to the occurrence or they were merely describing various incidents, which had taken place on the night of the occurrence, or as to what was their basis for describing the occurrence. We need to remind at this stage that a trial Judge is not a mere recording machine of evidence; rather, the trial Judge must participate in the trial to ascertain, before a piece of evidence is recorded, as to whether a witness is merely describing an occurrence or he has himself witnessed the occurrence or has heard about the occurrence. Whenever a witness describes an occurrence, it becomes the duty of the Court to find out, before the evidence of such a witness is recorded, as to whether the witness is deposing from what he had seen or on the basis of information or on the basis of rumour.
29. In the face of the evidence discussed above, even PW9 cannot be held to be eye witness to the occurrence of assault on his father.
30. What is, now, of utmost importance to note is that neither in the evidence of PW9 nor in the evidence of PW10, who are son and widow of deceased Basanta respectively, there is any assertion at all showing that PW5 (Sukracharyya) was a visitor to their house on the night of the occurrence or had reported to them about the occurrence. In the face of these unavoidably eye catching facts, no implicit reliance can be placed on the evidence of PW 5.
31. Keeping in view what is indicated above, when we turn to the evidence of PW11, we notice that though he claims to be eye witness to the occurrence of assault on Basanta, he admits, in his cross-examination, that he had not stated before the Investigating Officer that he had witnessed the occurrence. In the face of such categorical admission made by PW11, he could not have been regarded, nor can he be regarded, as an eye witness to the occurrence.
32. The above discussion of the evidence on record, now, takes us to the evidence of PW13. This witness had deposed that the accused came to his house and he saw from the bushes that the accused had put kerosene and set fire to the house of Malati and, then, the accused had gone to the house of Bijoymoni and assaulted her daughter and, then, the accused had moved to the house of Basanta, whereupon he heard hue and cry from the house of Basanta and subsequently, heard that Basanta had been killed.
33. Contrary to what the prosecution had projected, there is absolutely nothing in the evidence of PW13 to show that he was an eye witness to the occurrence of assault on Basanta. Far from this, his evidence clearly shows that after the occurrence of assault on Basanta, he came to learn that Basanta had been killed. In fact, in his cross-examination, he makes it abundantly clear by deposing, in no uncertain words, that he was only a witness to the occurrence, which took place at his house. Thus, PW13 also does not improve the prosecutions case against the accused-appellants as far as the charge framed against them under Section 302 IPC read with Section 149 IPC is concerned. This is yet another example how the learned trial Court has dealt with the case by recording description of the occurrence given by the witnesses as if the witnesses were witnesses to the occurrence. It is only when pointed questions have been asked that the witnesses have conceded as to what they had actually seen and what they had deposed on the basis of the information received. Such recording of evidence is, in a criminal trial, highly improper.
34. Be that as it may, we, now, turn to the evidence of PW14 (Shri Charu Bikash Chakma). According to this witness, when he was present in his house, he saw Malati's kitchen burning and, thereafter, the accused went to the house of Sabita Chakma, assaulted her there and, then, the accused went to the house of Basanta and assaulted him too. Though PW14 has deposed that he saw the incident from some distance, the fact remains that there is nothing clearly discernible from the evidence of PW14 as to which incident he has described or he claims to have been seen. Since there is nothing in the evidence of PW 14 to show that he went to the house of Bijoymony Chakma, where her daughter was assaulted, or moved to the house of Basanta, it becomes clear that his claim that he saw the incident from some distance cannot be confidently held to be an assertion that he was an eye witness to the occurrence of assault on Basanta. When PW 14 has not specifically claimed to have seen the assault on Basanta, he cannot be regarded as an eye witness to the occurrence of assault on Basanta. This apart, and as we have all ready pointed out above, the night of occurrence was, admittedly, a dark night, there was no light near the house of Basanta and, hence, it was incumbent, on the part of the prosecution, to bring on record from PW14 as to how, even if it was assumed that he was present near the house of Basanta, he happened to have seen and recognized the accused-appellants as the assailants.
35. The above discussion of the evidence on record makes us revert to the evidence of PW5. While considering the evidence of PW5, what needs to be reiterated is that PW5, not being a member of the family of Basanta, was, admittedly, not living in the house of Basanta; he was, rather, a visitor to the house of Basanta and claims to be present there at the time, when the alleged occurrence took place.
36. The evidence of PW9 and PW10, i.e., widow and son of deceased Basanta respectively, which we have already discussed above, gives no indication of the presence of PW5 at their house on the night of the occurrence. This apart, in the facts of the present case, when it was, admittedly, a dark night with no streelight, it was incumbent, on the part of the prosecution, to elicit from PW5 or bring on record by any another means as to what was the source of light, which enabled PW5 to see and recognize the assailants, particularly, when PW5 himself admits that he too was running away from the house of Basanta. Thus, the source of light, which helped PW5 see and recognize the assailants, remains unproved.
36. Coupled with the above, what can also not be ignored is that not a single witness has been examined by the prosecution to lend support to the assertion of PW5 that attracted by the alarm raised by PW5, people had gathered at the place, where Basanta had been assaulted or was left lying injured. Not a single witness has deposed that he had seen or met P W5 on the night of the occurrence or that PW5 had reported to him about the occurrence on the very night of the occurrence. The previous statement of PW10, recorded by the police and which we have already referred to, is not substantive piece of evidence and, hence, even the evidence of PW10 does not indicate that PW5 had reported to anyone, on the night of the occurrence itself, that he was a witness to the occurrence of assault on Basanta at the hands of the miscreants.
37. Because of what have been discussed m& pointed out above, we find it frightfully unsafe and too dangerous to place implicit reliance on the evidence of PW5, particularly, when his evidence remains uncorroborated by any direct or circumstantial evidence. Situated thus, it is clear that the evidence of PW5 cannot be made sole basis for conviction of the present appellants nor can the evidence on record, when considered, as a whole, can confidently make one hold that the accused-appellants were the ones, who were present at the place of occurrence. In fact, in the light of the evidence discussed above, we are of the view that it was a fit case, where the learned trial Court ought to have accorded, at least, benefit of doubt to the accused-appellants.
38. In the result, and for the reasons discussed above, this appeal partly succeeds. While the conviction of the accused-appellants under Section 148 IPC and the sentence passed against them on this count is not interfered with, the accused-appellants are held not guilty of the charge framed against thereon under Section 302 read with Section 149 IPC and they are acquitted of the same under benefit of doubt. Let the accused-appellants be set at liberty forthwith unless they are required to be detained in connection with any other case.
39. We may hasten to point out that though, for the purpose of sustaining conviction, for an offence, which is alleged to have been committed in prosecution of a common object, presence of, at the place of occurrence, every person, who forms unlawful assembly, is not imperative, the fact remains that there must be evidence to show that occurrence of assault on Basanta had taken place in prosecution of the common object of the unlawful assembly, which the accused-appellants had formed. In a case of murder, which follows an occurrence of rioting, it is not necessary that all the accused shall be present at all the places of occurrence. Yet, the fact remains that the common object of the assembly was to cause death is necessary to be proved. This is, however, missing in the present case. Send back the LCR.