Muslimuddin and Others vs State of Tripura

This appeal is directed against the judgment of learned Additional Sessions Judge. West Tripura, Agartala dated 30.8.1986 passed in Sessions Trial No. 8 (sic)T/5) 84 whereby learned Additional Sessions Judge convicted the Appellants commission of the offence u/s 147 of IPC and also for commission the offence under Sections 149/326 of IPC and sentenced them thereunder to ( sic) R.I. for 6 months and 5 years respectively.

The facts of the case as set-out by the prosecution witnesses may succinctly summarised as follows:

Prior to the occurrence which took place on 14.9.1981 at about 7.30/8 p.m. deceased Ali Noaj had some dispute with accused persons, namely, Muktul Hossen, Alek Hossen, Habil Miah and Farid Mia in respect of irrigating his land. The lands of the aforesaid accused are near the land of deceased Ali Noaj. This dispute for irrigation of the land took place about a year prior to 14.9.81 and with respect to this dispute a criminal case was also pending between the parties.

On 14.9,81 at about 7.30/8 p.m. Nurul Haque the informant (P.W. 1) who is the son of deceased Ali Noaj along with one Basu Choudhury (P.W. 3) of his village Bamarayan started from his house to go to their Club, namely, "Amra Tarun Dal." But as they went near the house of Anu Mia they found Michil Miah, Alek Hossen and Abdul Hakim moving on the road with lethal weapons, namely, lathi, cheni dao etc. in their hands. On seeing them with lethal weapons Nurul and Basu were frightened and hence they hurriedly moved towards the river Gumati. But no sooner had they moved towards the river then Alek Hossen and others started abusing them and at that time many other people came there. It was alleged that accused Muslim Miah assaulted Nurul Haque on his left hand and another person struck a blow on the hand of Basu by means of a dao and Basu in order to save himself jumped into the river. Almost simultaneously the other accused persons came out of the house of Anu Miah with lethal weapons, namely, cheni dao, lathi in their hands. On hearing the shoutings Ali Noaj, the father of Nurul Haque and Sekendar Ali, uncle of Nurul Haque came out of their house and rushed towards the house of Anu Mia. But as soon as they came to the northern side of the house of Anu Miah, the accused persons, namely Fazal Haque, Abdul Kasem, Anu Miah, Kamala Khatun, Muktul Hossen, Habil Miah, Farid Miah alias Basu, wife of Likmat Ali, Abdul Aziz and some other persons came out of the house of Anu Miah with cheni dao, lathi in their hands and attacked Ali Noaj and Sekendar Ali. In course of the attack the aforesaid assailants struck blows on the bodies of Ali Noaj and, Sekendar Ali by means of the lethal weapons they had in their hands. It was alleged that accused persons, namely, Abdul Hakim, Alek Hossen, Amir Hossen, Fazal Haque, Muslim Mia and Abdul Aziz struck blows on the person of Ali Noaj and, accused Fazal Haque, Farid Miah and Habil Miah struck blows on the person of Sekendar Ali by means of lathi and Cheni dao and as a consequence of that violent beating Ali Noaj fell down on the ground and died within a few minutes. Sekender Ali also fell down on the ground due to this violent beating. Some other persons, who also rushed to the scene of occurrence were also not spared. However, hearing the cries raised by Nurul Haque and others some people rushed to the scene of occurrence, but by that time the assailants fled away.

As soon as the assailants left the place of occurrence Nurul Haque (P.W. 1) went near his father and found him in a state of unconsciousness with bleeding injuries on his person. He also found his uncle Sekendar Ali seated beside his father with bleeding injuries on his person. By that time Dulu Mia and some other persons came there and they carried both Ali Noaj and Sekendar Ali by means of a cradle and after crossing the river Gumati they took them to Sonamura P.S. in Rickshaws. In the meantime, Basu Choudhuy (P.W. 3) who also sustained injuries on his person came to the Sonamura P.S. Nurul Haque also accompanied them to the Sonamura P.S, and lodged the F.I.R with O/C, Salil Kumar Ganguli (P.W. 16) narrating the above facts. O/C, after recording the ejahar sent Ali Noaj, Sekendar Ali and Basu Choudhury to the Sonamura Primary Health Centre. But Ali Noaj Passed away before he was taken to the Primary Health Centre. The other two persons, namely, Sekendar Ali and Basu Choudhury were treated in the Sonamura Primary Health Centre and thereafter they were sent to G.B. Hospital for better treatment.

After registering the case O/C sent Sub-Inspector Nitya Nanda Debnath to the village Bamarayan for arresting the accused persons. O/C also sent Sub-Inspector Ratan Deb to the morgue on that night for preparing the inquest report of deceased Ali Noaj. O/C Shri Ganguli (P.W. 16) himself took up the investigation of the case and in course of his investigation he visited the place of occurrence, prepared hand sketch map thereon, recorded the statements of a number of witnesses. But before completing the investigation he was directed to hand over the charge to Sub-Inspector Shri Ajit Choudhury his successor. Sub-Inspector Shri Debnath who visited the place of occurrence as per the direction of O/C Shri Ganguli seized blood stained earth under seizure list. Sub-Inspector Shri Deb also prepared the inquest report of the deceased. Sub-Inspector Ajit Choudhury also could not complete the investigation as he had to hand over the charge of investigation to inspector Shri Naresh Chandra Dutta (P.W. 25). Shri Dutta recorded the statements of a few witnesses. But he also could not complete the investigation as before completion of the investigation he got promotion to the post of D.S.P. So as per the order of S.P. he handed over the case docket to Inspector Shri S.B. Roy Choudhury. (sic) after the promotion of Naresh Ch. Dutta the case was endorsed to D.S.P. Satyendra Deb Barma (P.W. 26) who completed the investigation and submitted the charge-sheet for prosecution of the accused persons numbering 19 for commission the offence under Sections 148/149/324/302 of IPC. Accused persons who were vested were enlarged on bail.

The case being exclusively triable by the court of Session learned S.D.J.M., Imamura committed the case to the court of learned Sessions Judge. Accordingly accused persons also appeared before the learned Additional Sessions Judge to (sic) the case was transferred for disposal.

After perusal of the relevant documents learned Additional Sessions Judge used three distinct charges against all the accused persons. The first charge was u/s 148 IPC for commission of the offence of rioting by forming an lawful assembly; the second charge was framed under Sections 149/302 of IPC for committing murder of Ali Noaj in prosecution of the common object of the unlawful assembly and the third charge was framed against them for commission of the offence under Sections 326/149 of IPC for causing grievous hurt to Basu Choudhury and Sekendar Ali by means of sharp cutting weapons in prosecution of the common object of the unlawful assembly. The charges were read over and explained in Bengali to the accused persons who pleaded not guilty and claimed to be tried.

In order to bring home the charges the prosecution examined 26 witnesses in all and also exhibited the documentary evidence, namely, ejahar, seizure and also exhibited the material objects marked as Ext. M.O. 1 and M.O. 2. The accused persons also examined 4 witnesses in support of their defence. There defence as would appear from the cross-examination, their statements made during the examination u/s 313 of Code of Criminal Procedure and the defence evidence is that they have been falsely implicated in this case due to previous enmity. It was pleaded that they did not participate in commission of the alleged offence. The defence of accused Muktul Hossen and Alek Hossen was that they were not in the village on the date of occurrence.

Learned Additional Sessions Judge, however, after appreciation of the evidence on record arrived at the conclusion that the Appellants formed themselves into an unlawful assembly on the date and time as mentioned in the charge with the common object of beating Ali Noaj and others and that they did commit the murder of Ali Noaj in prosecution of their common object. Accordingly, the learned Add. Sessions Judge held them guilty for commission of the offence u/s (sic) of IPC. He also found them guilty under Sections 149/326 of IPC. Accordingly learned Additional Sessions Judge convicted them and awarded the sentences as mentioned above.

The main-stay of the prosecution consisted of the testimony of Nurul Haque (P.W. 1). Dulu Mia (P.W. 2), Basu Choudhury (P.W. 3), Sekendar Ali (P.W. 4) and Ismil Miah (P.W. 9) who claimed to be eye witnesses of the occurrence. Then there was another set of witnesses who claimed to have reached the scene of occurrence soon after its commission. These are Sirajul Haque (P.W. 7), and Abdul Haque (P.W. 8). The prosecution also relied on the circumstantial evidence (sic) recovery of blood stained dao from the house of one of the accused.

Before entering into the rival contentions it may be mentioned here that there is no dispute that on the date and time as mentioned in the charge Ali (sic) was violently beaten and as a consequence of that beating he died within a few minutes. D.W. 3 Mahammed Dula Kha stated in his examination-in-chief that Ali Noaj of village Bamarayan was murdered about 5 years age. The prosecution witnesses, namely. P.Ws. 1, 2, 3, 4 and 9 deposed that on 14.9.81 around 8 p.m. occurrence took place on the bank of river Gumati where due to violent beating Ali Noaj sustained grievous injuries oil his person and as a consequence of those injuries he died before he was taken to hospital. It is also in their evidence that P.Ws. 1, 3, 4 and 9 were assaulted in course of the occurrence. P.W. 16 Shri Salil Ganguli, O/C of Sonamura P.S. deposed that on that day at about 8.45 p.m. Nurul Haque came to P.S. and along with him Ali Noaj, Sekendar Ali and Basu Choudhury were brought to the P.S. According to him Ali Noaj and Sekendar Ali were in the rickshaw with injuries. So he sent them to Sonamura Primary Health Centre for treatment. But Ali Noaj was found dead when he was brought to the Sonamura Primary Health Centre. P W. 13 Dr. Sailesh Ranjan Das who conducted autopsy on the dead body of deceased Ali Noaj deposed that during his examination he found the following external injuries on the dead body of Ali Noaj:

One clean incised wound with bone fracture (occipto perital region) measuring 20 cm length x 1 cm gap x 2 cm deep (right lobe of the brain affected) and 1.25 cm above the right ear level.

One cut (sharp) injury (incised) un the vertex measuring 5 cm x 1.25 cm gap x scalp deep.

One incised wound ever right maxilla x skin deep; and

One incised wound on the back in the horizontal direction at the level of the T12 with fracture of the vertibrea measuring 15 cm length x 2.5 cm bredth x 6 cm spinal cord was cut,

After dissection of the dead body the Doctor also found eight injuries. The Inspector stated that all the injuries he found on the person of the deceased were (sic)vous in nature and those were caused by sharp cutting weapons like long dao. The doctor also deposed that those injuries were antemortem and homicidal in nature and in his opinion those were sufficient in the ordinary nature of the course cause the death.

O/C, Shri Salil Kumar Ganguli (P.W. 16) deposed that after recording the F.I.R. he sent Sub-Inspector Nityananda Debnath (P.W. 14) to arrest the accused persons. P.W. 14 Shri Debnath deposed that in course of his investigation he went Morgue of Sonamura Primary Health Centre on 15.9.81 at about 7.30 a.m. and getting the dead body of Ali Noaj in the morgue he prepared the inquest report to Ext. P/7) in presence of the witnesses. Ext. P/7 inquest report also shows that Inspector Shri Debnath also found a number of incised injuries on the person the deceased Ali Noaj.

Therefore, in view of all the facts and circumstances it can be safely included that on the date and time as mentioned in the charge Ali Noaj sustained grievous injuries on his person due to violent beating and as a consequence of that violent beating he died within a very short time.

The prosecution alleged that the accused person in prosecution of their common object kilted Ali Noaj by means of lethal weapons and also assaulted P.Ws, 1, 3, 4 and 9. In order to prove the charges the first thing sought to be utilised by the prosecution as a background of this case is that there was enmity between the accused persons and deceased Ali Noaj over the issue of irrigating their lands which are situate near the land of accused. During cross-examination it was also not denied that there was some enmity between the parties and some criminal case was also pending. Rather some of the accused during their examination u/s 313 of Code of Criminal Procedure stated that this case was falsely foisted on account of the previous enmity. A perusal of the evidence of P.W. 1 and 4 also shows that there was an enmity between the parties in respect of irrigating their lands and that some criminal case was also pending between the parties at the time of occurrence. Learned Addl. Sessions Judge also found that such an enmity was there and he held the view that this enmity cuts in both the ways. I think learned Addl. Sessions Judge has rightly made the observation.

However, now it is to be determined as to whether the prosecution evidence was enough to hold that the accused Appellants along with others formed themselves into an unlawful assembly with the common object of beating Ali Noaj and other. It may, however, be mentioned here that ''common object'' as distinguishable from ''common intention'' may develop even in the course of the occurrence itself. Learned Addl. Sessions Judge after elaborate discussion of the evidence on record arrived at the conclusion that the prosecution succeeded in proving the charge that the accused persons along with others formed themselves into an unlawful assembly for beating Ali Noaj and others. Learned Addl. Sessions Judge, however, held that charge in respect of Section 148 of IPC was defective and hence he held the accused persons guilty u/s 147 of IPC instead of Section 148. He however, found the accused Appellants guilty for commisson of the offence u/s 326 read with Section 149 of IPC. The charge u/s 148 as was framed by Mr. R.B. Sinha, the learned Sessions Judge reads as follows:

CHARGE

I, Shri R.B. Sinha, Sessions Judge, West Tripura, Agartala hereby charge you:

Michil Meah, 2. Fazal Haque, 3. Abdul Hakim, 4. Abdul Kasem, 5. Alek Hossain, 6. Muktul Hossain, 7. Habil Meah, 8. Farid Meah, 9. Abdul Aziz, 10. Muslem Miah, 11. Sultan Meah. 12. Sona Meah, 13. Abu Tahir, 14. Kurpan Ali, 15. Amir Hossain, 16. Imam Hossain, 17. Moslem Meah, 18. Siraj Meah and, 19. Anu Meah.

as follows:

Firstly, that you on the 14th day of September, 198 at about 730/800 P.M. at village Bamarayan, P.S. Sonamura were members of an unlawful assembly, and did, in prosecution of the common object of such assembly, viz. in causing death of Ali Noaj and causing hurt to Sikendar Ali, Basu Choudhury and Nurul Hoque, commit the offence of rioting and at that time were armed with deadly weapons to wit-dao, lathi etc., and thereby committed an offence punishable u/s 148 IPC and within my cognizance.

Unlawful assembly as defined u/s 141 of IPC reads as under:

Unlawful assembly. - An assembly of five of more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is -

First - To overawe by criminal force, or show of criminal force the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or

Second - To resist the execution of any law, or of any legal process; or

Third - To commit any mischief or criminal trespass, or other offence; or

Fourth - By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or

Fifth - By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally untitled to do.

It is clear from the provision as quoted above that the assembly must consist of five or more persons having one of the five specified objects as their common object. The essential question in such a case is whether the number of persons who took part in the crime was five or more than five. The identity of the persons who are members thereof relates to the determination of the guilt of the individual used.

Section 148 of IPC envisages that if the members of the unlawful assembly found to be armed with deadly weapon which might cause or likely to cause (sic) shall be punished under this section. Therefore, what is needed to be determined is whether all the members of the unlawful assembly were armed with (sic) weapons. A person cannot, therefore, be held guilty u/s 148 of unless he has a dangerous weapon in his hand. As already state learned Addl. Sessions Judge opined that the charge was defective and hence he convicted the Appellants u/s 147 of IPC instead of Section 148 of IPC. But the charge as quoted above shows that the Appellants alongwith others were charged with having armed with deadly weapons viz. dao lathi etc. The test of determination of deadly weapon is not the purpose for which it is carried, but the nature of the weapon which if used as a weapon is likely to cause death. In the instant case, the charge clearly shows that the Appellants were armed with deadly weapons like dao. The dao which was recovered from the house of accused Anu Miah is one of the deadly weapons and it has been marked as Ext. M.O. 2. This Ext. M.O. 2 dao is, in my opinion, is a deadly weapon, Therefore, on scrutiny of the evidence if it is found that the Appellants were armed with deadly weapons like dao, lathi etc. then they cannot escape the punishment u/s 148 of IPC, I am, therefore, unable to accept the finding of learned Addl. Sessions Judge that the charge was defective.

Learned Addl. Sessions Judge, has however, found the Appellants guilty for commission of the offence u/s 326 read with Section 149 of IPC. Section 149 of IPC provides that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of the 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. As has been defined in Section 141 of IPC, an assembly of five or more persons is designated as ''unlawful assembly'' if the common object of the persons composing that assembly is to do any act or acts stated in the clauses mentioned above. An assembly, as the explanation to the section says, which was not unlawful when it assembled may subsequently become an unlawful assembly. Whoever being aware of facts which render any assembly an unlawful assembly intentionally joins that assembly or continues in it, is said to be a member of an unlawful assembly. The two essentials of the section are the commission of an offence by any member of an unlawful assembly and that such offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed. Not every person is necessarily guilty but only those who share in the common object. The common object of the assembly must be one of the five objects mentioned in Section 141 of IPC. I have already stated above that common object as distinguishable from common intention may develop even in the course of the occurrence itself and hence an inference has to be deduced from the facts and circumstances of each case.

It is clear from Section 149 of IPC that it is a distinct offence that it create a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other members of that assembly. Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial. He is not entitled to put forward the defence that he did not with his own hands commit the offence committed in prosecution of the common object of the unlawful assembly Or such as the members of the assembly knew to be likely to be committed in prosecution of that object.

Keeping the position of law as discussed above I now proceed first to discuss the evidence of the eye witnesses of the occurrence.

The learned Counsel Mr. B. Das as well as Mr. M. Kar Bhowmik appearing on behalf of the Appellants has argued that the evidence of the eye witnesses cannot be relied on to arrive at the conclusion that the Appellants were guilty for commission of the offence as the statements of most of these witnesses were recorded by the Investigating Officer after lapse of a considerable length of time.

P.W. 1 Nurul Haque is the son of deceased Ali Noaj. He lodged the F.I.R, with the O/C, Sonamura P.S. His ejahar which has been marked as Ext.P/1 shows that the occurrence took place at about 7 30/8 p.m. This ejahar shows that he along with his deceased father and other injured persons came to the P.S. at about 8.45 p.m. and lodged this F.I.R. The O/C, Shri Salil Kr. Ganguli (P.W. 16) who recorded the ejahar also deposed that P.W. 1 came to P.S. at about 8.45 p.m. and lodged the F.I.R. with him, It is, therefore, clear that this ejahar was lodged without any practicable loss of time.

P.W. 1 who is one of the eye witnesses to the occurrence deposed that on 14.9.81 at about 7/7.30 p.m. he along with his friend Basu Choudhury (P.W. 3) was going to their club, namely " Amra Tarun Dal". According to him while they were going to the club they saw three sons of Anu Miah, namely, Michil Miah, Abdul Hakim and Fazal Haque and another person namely, Alek Hossen and a few others armed with dao, cheni dao (long type of dao) moving there. On seeing them both of them hurriedly proceeded towards the club, But as they proceeded towards the Club the aforesaid persons on abusing them encircled and attacked. The witness deposed that the assailants encircled them from three sides and the fourth side was river Gumti, So they raised cries, but on hearing the cries raised by them 15/20 more persons came there and at that time accused Muslim Miah, son of Anu Miah struck blow on his hand with a lathi and as a result of that blow his left hand was broken. He further deposed that one of those assailants also struck a blow on the right hand of Basu Choudhury by means of a sharp cutting weapon causing cut injuries on his hand and Basu in order to save himself jumped into the river. He also deposed that one Dula Miah who came there at that time on hearing their cries was also assaulted by one of the assailants.

The witness further stated that at that time he could identify Habil Miah, Parid Miah, Muktul Hossen, Alek Hossen, Amir Hossen, Muslim Uddin, Abdul Warn, Fazal Haque, Michil Miah, Abdul Kasem, Anu Miah, Sultan Miah, Siraj Miah, Sona Miah, Abdul Aziz, AbuTaher, Imam Hossen, Muslim Miah and Korban Ali. According to him at that time his father Ali Noaj and uncle Sekendar Ali came there, but as soon as they came there the accused persons Abdul Hakim, Alek Hossen, Amir Hossen, Fazal Haque, Muslim Miah and Abdul Aziz struck blows on the person of his father with dao and cheni, He claimed that he witnessed this part of the occurrence from a distance of about 8/9 cubits. He also deposed that it was a full moon-lit night and hence it was not difficult for him to identify the assailants as they were previously known to him, His further version is that accused Fazal Haque, Farid Miah and Habil Miah struck blows on the person of his uncle Sekendar Ali by means of cheni dao. According to him at that time the other accused persons were armed with lathi. The witness has been thoroughly cross-examined, but on going through the cross-examination I do not find that the defence could elicit any material thing to discredit his version. It was however, elicited from him during cross-examination that after about two months of the lodging of F.I.R. ho was again examined by the Investigating Officer on 5.11.81. P.W. 25 Shri Naresh Ch. Dutta who partly investigated the case deposed that he re-examined this P.W. 1 on 5.11.81. But the defence did not cross-examine this witness on this point to show any sort of infirmity. The fact remains that this P.W. I was injured due to assault in course of the occurrence and he lodged the F.I.R. without any practicable loss of time. The witness deposed that he sustained injuries on his right hand and head due to lathi blows.

P.W. 13 Dr. Sailesh Ranjan Das deposed that on 14.9.81 he examined this P.W. 1 in Sonamura Primary Health Centre and during examination he found two injuries on the person of this P.W. 1. These are one swelling measuring 3 cm diametre on the right side of the forehead and another fracture injury on the right alna. The doctor deposed that this P.W. 1 reported to him at 10.35 p.m. on that day. The doctor also deposed that due to the fracture injury he referred this patient to G.B. Hospital. Thus, it is found that doctor corroborated the version of P.W. 1 in respect of the injuries he sustained on his person on that day.

According to prosecution P.W. 2 Dula Miah came to the scene of occurrence on hearing the cries. Examined as P.W. 2 Dula Miah deposed that at about 7.30 p.m. he came near their club when he found an assemblage of so many persons to the north of their club and on seeing this he rushed to that side. According to him as he went near P.W. 1 Nurul Haque and P.W. 3 Basu Choudhury he found they were being beaten. He deposed that as he made a query to know what had happened accused Fazal Haque struck a blow on his shoulder with a lathi. He also deposed that at that time he could identify the assailants, namely, Abdul Hakim, Fazal Haque, Abdul Kashem, Muslim Uddin, Michil Miah (all are sons of Anu Miah) and Alek Hossen, Abdul Aziz, Sultan Miah, Siraj Miah, Muktul Hossen and Badhu Miah in that assembly. He further deposed that accused persons, namely, Abdul Hakim, Alek Hossen, Abdul Aziz and Fazal Haque assaulted Ali Noaj. He also stated that he could not say which of the accused was beating with which weapon. But According to him Abdul Aziz had a cheni dao, Alek Hossen had a cheni dao, Abdul Hossen had a cheni dao and Fazal Haque had a cheni dao and lathi. He further deposed that Sekendar Ali was beaten by accused Muslim Miah and Amir Hossen and both of them had lathi and cheni in their hands. During cross-examination it was suggested to this witness that he deposed falsely on account of previous enmity. But what was that enmity has neither been suggested nor could be brought out from the witness by cross-examination. It is, therefore, apparent from the evidence of this witness that in course of the occurrence he was also beaten by one of the accused persons.

P.W. 16 O/C, Salil Ganguli deposed that he also forwarded Dula Miah to the Hospital for treatment. P.W. 13 Dr. Sailesh Rn. Das also stated that Dula Miah was one of the injured persons who was also sent to him by O/C. According to the lector during examination of the person of Dula Miah he found one abresion measuring 1 cm x 4 cm x skin deep over left finger. The doctor opined that this Injury was simple in nature and it was caused by blunt weapon. The doctor thus corroborates the version of P.W. 2 about the assault he sustained on his person. Moreover, it is also clear from the evidence of P.W. 1 that this Dula Miah came to the scene of occurrence on hearing the cries. The cross-examination does not show that this witness (P.W. 2) is either inimical to the Appellants or friendly with the prosecution party. He does not appear to be an interested witness. His statement was of course recorded by P.W. 16 on 18.9.81. But for this simple reason his evidence cannot be rejected. Moreso, he was injured during the occurrence.

P.W. 3 Basu Choudhury is another eye witness to the occurrence. This witness was also assaulted by the accused persons. This P.W. 3 has also supported the version of P.W. 1 by stating that on the aforesaid day at about 7.30 p.m. he along with his friend Nurul Haque, Samaul Haque and Abdul Haque was going towards their club named "Amra Tarun Dal" and as they reached near the house of accused Anu Miah they saw 20/25 persons armed with lathi, cheni dao etc. rushed towards to attack. He stated that on seeing those persons they rushed towards their club. But as soon as they reached on the bank of the river accused Abdul Kashem struck a blow on his person by means of a dao causing severe cut injury. He also deposed that he sustained another cut injury on his left elbow. Therefore, to save himself he jumped into the river. He further deposed that one Abdul Rasid saved Km and brought him out of the water. He also deposed that Nurul Haque was beaten fid according to him at that time he could identify Alek Hossen, Fazal Haque, Abdul Hakim, Muslim Uddin, Amir Hossain, Sona Miah, Sultan Miah, Abdul Aziz Anu Mia and that Alek Hossain had a cheni dao, Fazal Haque and Amir Hossain had dao and others were carrying lathis He also identified all these accused in the dock.

This witness further deposed that he was taken of Sonamura P.S. wherefrom he was first sent to Sonamura Primary Health Centre in a rickshaw and from Sonamura Primary Health Centre he was sent to Melaghar Hospital where he stayed for a few days and thereafter he was sent to G.B. Hospital at Agartala. According to him he was treated in G.B. Hospital for 13 days. But as he could not cured he was sent to Calcutta Medical College Hospital.

The evidence of this witness became a matter of controversy as P.W. 6 Dr. Birendra Ch. Podder during his cross-examination stated that on 13.9.81 he examined this Basu Choudhury in the G.B, Hospital. He also issued a certificate in this regard which has been marked as Ext. D/1. Learned Additional Sessions Judge however, rejected his evidence and I am of the opinion that learned Addl. Sessions Judge rightly rejected the evidence of this Doctor P.W. 6 as on examination of the relevant records it is found that he was actually sent to G.B. Hospital after 14.9.81. P.W. 2 who is one of the eye witnesses to the occurrence stated that one of the accused caused cut injury on his right hand. Accused Kashem is one of the assailants whom P.W. 2 could identify at the place of occurrence,

Further it would be apparent from the evidence of P.W. 16 O/C, Salil Kr. Ganguli that on the date of occurrence at about 8.45 p.m. this Basu Choudhury also came to the P.S. along with other injured persons and at that time he also referred this Basu Choudhury along with others to the hospital for treatment as this witness had a cut injury on his hand.

P.W. 13 Dr, Sailesh Rn. Das deposed that on 14,9.81 he examined Sekendar Ali, Basu Choudhury, Nurul Haque and Dula Mia as they had injuries on their bodies. Doctor deposed that during examination of the person of Basu Choudhury he found one incised wound measuring 15 cm length x 5 x 5 extended upto the bone and the radial nerve was cut. The Doctor stated that it was situate on the right elbow and proximal third of the right forearm. According to the Doctor the injury was grievous in nature and it was caused by a sharp cutting weapon like dao, Doctor also supported the version of P.W. 3 by stating that he was referred to Melaghar Hospital. The doctor has been cross-examined, but even no casual suggestion was given denying the fact that he examined Basu Choudhury on 14.9.81 in Sonamura Primary Health Centre.

Similarly O/C, Salil Kr. Ganguli who forwarded this P.W. 3 to Sonamura Primary Health Centre was not cross-examined on this point. Even no casual suggestion was given to him denying his statement that he sent this P.W. 3 to Sonamura Primary Health Centre on 14.9.81 for treatment. Therefore in view of the evidence discussed above I am of the view that the evidence of P.W. 6 Dr. Birendra Ch. Poddar that he examined Basu Choudhury on 13.9.81 is a false statement. Consequently the letter which he wrote on 12.1.82 marked as Ext.D/1 is not on the basis of any record. It has, however, been argued by the learned defence counsel that the statement of this witness cannot be relied on as his statement was recorded long after the date of occurrence. It is true that the statement of Basu Choudhury was recorded by P.W. 11 on 5.10.81. But it is argued by learned Public prosecutor that this witness was at first referred to Melaghar Hospital and from Melaghar Hospital to G.B. Hospital and therefrom he was referred to Calcutta Medical College. These facts are not disputed. Therefore, even though his statement was recorded after about 21 days the reasons assigned for the delay cannot be lightly thrown away. That apart, his statement has not only been supported by the evidence of independent witnesses as discussed above, but has also been corroborated by the Doctor about the injuries he sustained on his person.

P.W. 4 Sekendar Ali is another eye witness of the occurrence. This Sekendar Ali is the uncle of P.W. 1. It would appear from the evidence of P.W. 1 as discussed above that Sekendar Ali was also beaten by the accused persons by means of sharp cutting weapon and lathi. P.W. 4 deposed that on hearing the cries he along with his brother Ali Noaj came out of the house and as they proceeded a short distance towards the club, namely, "Amra Tarun Dal" he found 8/9 people coming towards them with cheni dao, lathis etc. and soon they attacked his brother Ali Noaj. According to him Fazal Haque struck a blow on the person of Ali Noaj by means of a cheni dao and Amir Hossain, Abdul Hakim, Alek Hossain and Muslim Uddin struck blows on the persons of Ali Noaj with lathis and as a consequence of that beating Ali Noaj fell down on the ground. He also deposed that accused Muktul Hossain and Badu Miah struck blows on his person by means of this and due to that beating he fell down on the ground. He further deposed that I a consequence of that beating his elder brother Ali Noaj died. According to him in hearing their cries some persons came to the scene of occurrence and they took him to the Sonamura P.S. wherefrom they were sent to Sonamura Primary Health Centre. P.W. 16 also deposed that this P.W. 4 is one or the injured persons who reported to the P.S. on that day and he also sent him to Sonamura Primary Health Centre.

P.W. 13 Dr. Sailesh Rn. Das deposed that on 14.9.81 he examined this Vitness and found the following injuries, namely.

One incised wound measuring 7 cm x 1.25 cm x skull deen with a bone on the vertax cut.

One incised wound measuring 1.25 cm x 1 cm on the right ear;

One incised wound measuting 1.25 cm 1 cm x skin deep; and

One incised wound measuring 1.25 cm x 1 cm x skin deep near the right ear.

The doctor stated that all these injuries were simple in nature. He however, referred this patient to Melaghar Hospital as he was under shock.

P.W. 16 deposed that on 15.9.81 he sent a requisition to East Agartala P.S. for recording the dying declaration of Sekendar Ali. This evidence of P.W. 16 thus shows that on 15.9.81 Sekendar Ali was taken to G.B. Hospital. P.W. 5 Dr. A.K, Patnaik also deposed that on 15.9.81 he examined Sekendar Ali in the G.B. Hospital and found a stitched injury on the left temporal region measuring 3" in length extending obliquely to the left parital region. Dr. Patnaik opined that this scalp injury was due to assault. Doctor thus, corroborated the version of this P.W. 4. It also appears from the statement that was recorded u/s 161 of Code of Criminal Procedure that this witness was examined by the O/C, P.W. 16 on 15.9.81 and on that day his statement was recorded. During Cross-examination this fact was not denied. There-fore, in view of the above facts and circumstances I am of the view that there is no scope to argue that there was any inordinate delay in recording his statement.

Learned Counsel for the Appellants did not assign any reason as to why the evidence of this P.W. 4 should be rejected. Therefore, in view of my discussion made above I am of the view that learned Additional Sessions Judge rightly placed reliance on the testimony of this witness.

The next eye witness to the occurrence is P.W. 9 Ismail Miah, This P.W. deposed that P.W. 3 Basu Choudhury is his own brother. According to him on that day at about 7.30/8 p.m. he along with one Abdul Rasid was walking in from of their house i.e. on the eastern bank of Gumati river. He deposed that on hearing the cries both of them rushed towards that direction and at that time he found many persons armed with lathi, long dao, spear etc. on the western side of the house of Anu Miah. According to him those persons encircled P.W. 3 and P.W. 1 and or of those persons, namely, Abdul Kashem struck a blow on the right hand of Basu Choudhury by means of a dao and due to this blow Basu fell on the river. He further deposed that Muslim Miah struck a blow on the left hand of Nurul Haque with a lathi. Thus he also corroborates the version of P.W. 1 that Abdul Kashem struck blow on his (P.W. 1) left hand. P.W. 3 also deposed that there was a fracture on the left alna of P.W. 1. According to him at that time he could identify the persons, namely, Abdul Hakim, Fazal Haque. Muslim Miah, Michil Miah, Abdul Aziz and Badu Miah amongst the persons who encircled Nurul Haque and Basu Choudhury. He also deposed that Ali Noaj was beaten by Abdul Hakim, Hossain, Abdul Aziz and Fazal Haque and that Sekendar Ali was beaten with lathi and dao by Amir Hossen and Muslim Miah. He thus supported the version of P.W. 1, 3 and 4. During cross-examination it was suggested to this witness that Basu Choudhury (P.W. 3) was not present in the place of occurrence. It was also suggested to this witness that Basu Choudhury was admitted into G.B. Hospital on 3.9.81. I have already made my finding in this respect. It has been found by me that Ext.D/1 is a false certificate. Statement of this witness was recorded by O/C, Salil Kr. Ganguli (P.W. 16) on 15.9.81. The cross-examination does not indicate by reason as to why reliance should not be placed on the testimony of this witness.

The next set of witnesses are the witnesses who rushed to the scene of occurrence soonafter its commission. They are P.W. 7 Sirajul Haque and P.W. 8 Abdul Haque. Both of them are the sons of deceased Ali Noaj. P.W. 7 deposed that night of occurrence was the moon-lit night and on hearing the cries he rushed awards the eastern bank of Gumati and as he went to the place of occurrence he found his father lying on the ground with bleeding injuries and his uncle Sekendar Ali was also there with injuries on his head. According to him at that time he found occused persons, namely, Abdul Aziz, Abdul Haque, Michil Miah, Fazal Haque @ Miah, Muslim Uddin, Alek Hossain and Amir Hossain along with others running towards the house of Noor Miah. During identification of the accused persons in the dock he identified Abdul Kashem as one of the assailants, but he identified him as Abu Miah.

Similarly, P.W. 8 who also rushed to the scene of occurrence on hearing the cries stated that as he went near the place of occurrence he found his father and uncle lying on the ground with bleeding injuries on their bodies. He also stated that he found injuries on the hand of his brother Nurul Haque. According to him the (sic) of Anu Miah is at a distance of about 2 kanis from that place. His further (sic)sion is that from his uncle Sekendar Ali he came to know that Amir Hossen, Fazal Haque, Abdul Hakim, Muslim Miah, Abdul Kashem, Michil Miah, Muktul Hossain and Badu Mia fleeing towards the house of Anu Miah. According to him (sic) of them were carrying lathis long dao, dao and spear in their hands.

O/C, Salil Ganguli (P.W. 16) deposed that on 15.9.81 at 9.15 a.m. he visited the place of occurrence which is on the eastern bank of the river Gumati and as he (sic) there he found dry blood on the grass and on the earth. He however did not the blood stained earth and grass as those were already seized by P.W. 14 Nityananda Debnath under seizure list marked as Ext.P-2/1. Ext.P-2/1 seizure list (sic) that it was prepared in presence of the witnesses on 14.9.81 at 21.35 hours. (sic) seizure list also shows that place of occurrence is the eastern bank of the river Gomati.

P.W. 14 Sub-Inspector Nityananda Debnath deposed that after collecting blood stained earth and grass he seized those by means of the seizure list P-2/1 in presence of the witnesses, namely, Ismail Mia, Janab Ali and Michil Miah. P.W. 9 Ismail Miah, P.W. 19 Janab Ali and P.W. 20 Michil Miah also deposed that P.W. 14 collected the blood stained earth and grass from the eastern bank of the river Gumati in their presence and seized those under the seizure list marked as Ext.P-2/1. This seizure list indicates that the place of occurrence is on the eastern bank of river Gumati,

P.W. 16 however prepared the hand-sketch map of the place of occurrence marked as Ext.P/11 with separate index. The point shown in the map by the later ''H'' is the club house. It appears that this club house is on the bank of the river Gumati. From the evidence of the P.Ws. it is clear that the occurrence took place on the bank of the river Gumati at a short distance of this club house.

Now on analysis of the evidence discussed above I find that on the date and time as mentioned in the charge a group of assailants numbering about 15-20 assaulted Ali Noaj, Sekendar Ali, Nurul Haque, Basu Choudhury and Dula Miah and as a conseqence of that beating Ali Noaj died within a few minutes and the rests sustained injuries on their bodies. The prosecution case is that the accused persons with the common object of beating Ali Noaj and others as mentioned above came to the place occurrence with lethal weapons in their hands due to previous enmity and had beaten them by means of lathi, dao etc. The evidence on record has clearly established that the assailants attacked those unarmed persons and had beaten them with lethal weapons like dao lathi etc. It is, therefore, abundantly clear from the evidence on record that the common object of those persons was to beat Ali Noaj, Sekendar Ali, Nurul Haque, Basu Choudhury and Dula Miah.

The evidence on record has cleary established that the assailants were more than 5 in number. P.W. 1 Nurul Haque identified accused Habil Miah, Farid Miah, Muktul Hossen, Alek Hossen, Amir Hossen, Muslim Uddin, Abdul Hakim, Fazal Haque, Michil Miah, Abdul Kashem, Anu Miah, Sultan Miah, Siraj Miah, Abdul Aziz, Abu Taher, Imam Hossen, Muslim Miah and Kurban Ali in that unlawful assembly. He specifically stated that Abdul Hakim, Alek Hossen, Amir Hossen, Fazal Haque, Muslim Miah and Abdul Aziz struck blows on his father and that Fazal Haque, Farid Mia and Habil Miah were beating his uncle. According to him Fazal was giving blow with cheni dao and others were beating with lathis.

P.W. 2 identified Abdul Hakim, Fazal Haque, Abdul Keshem, Muslim Uddin, Michil Miah, Alek Hossen, Abdul Aziz, Sultan Miah, Siraj Miah, Muktul Hossen and Badu Miah in that unlawful assembly.

P.W. 3 identified Alek Hossen, Fazal Haque, Abdul Hakim, Muslim Uddin, Amir Hossen, Sona Miah, Sultan Miah, Abdul Aziz and Anu Miah in that unlawful assembly.

P.W. 4 could recognise the assailants, namely, Fazal Haque, Amir Hossen, Abdul Hakim, Alek Hossen, Muslim Uddin, Muktul Hossen and Badu Miah alias Farid Miah in that unlawful assembly.

P.W. 9 identified Abdul Keshem, Muslim Miah, Abdul Hakim, Fazal Haque, Michil Miah, Amir Hossen, Abdul Aziz, Alek Hossen, Badu Miah alias Farid Miah in that unlawful assembly.

It is abundantly clear from their evidence that all those accused persons we armed with deadly weapons like dao, lathi etc. Therefore, on the basis of the Evidence I have discussed above I find that Appellants membership of the unlawful assembly at the relevant time has been satisfactorily established. The trial court rightly held them as members of the unlawful assembly. It is clear from the evidence have discussed above that all these Appellants actively participated in commission of the offence and they were armed with deadly weapons, namely, dao, lathi etc.

Some of the Appellants, namely, Alek Hossen, Muktul Hossen and Amir Hossen took the plea of alibi. Four D.Ws. were also examined on behalf of the accused persons to show that these Appellants were not in the place of occurrence it the relevant time. I have quite carefully scrutinised their evidence which would be apparent from my discussions made above. It is well settled that a plea of alibi must be proved with absolute certainty so as to completely exclude the possibility of the presence of the person concerned at the place of occurrence. Such however, is not the case here. From my discussions of the evidence it is quite clear that some of the witnesses were injured in course of the occurrence itself. The Supreme Court in the case of Paresh Kalyandas Bhavsar Vs. Sadiq Yakubbhai Jamadar and Others, held that:

It is needless to say that mere interestedness is not a ground to reject the evidence of the eye witnesses particularly those who were injuried. Firstly their presence during the occurrence cannot be doubted. Secondly the injured witnesses would be the last persons to leave out the real culprits and implicate others falsely. However, it becomes necessary to scrutinise their evidence with great care and caution. Normally in a case of this nature the evidence of such witnesses is scrutinised in the light of the medical evidence, their previous statements, the earliest version put forward and other circumstances like the investigation being defective and also the effect of omissions or discrepancies, if any.

It would be quite apparent from the discussions of the eye witnesses made above that the evidence of the injured witnesses has been well supported by the Medical evidence.

Therefore, in view of all the facts and circumstances I find the Appellants guilty for commission of the offence u/s 148 of IPC. The finding of the learned Addl. Sessions Judge in this regard is accordingly modified, and the Appellants are convicted for commission of the offence u/s 148 of IPC and sentenced thereunder to undergo R.I. for 2 1/2 years.

It was however, argued by learned Counsel for the Appellants that learned Addl. Sessions Judge did not make any finding that the assailants had the common object of beating Ali Noaj and others. On the basis of the evidence I have discussed above I however, find that the common object of the unlawful assembly was to beat Ali Noaj and others as mentioned above. I have already stated above that common object as distinguishable from common intention may develop even in the course of the occurrence itself. In the instant case, it has been abundantly proved that the common object of the assembly was to beat Ali Noaj and Nurul Haque and others. The evidence of the Doctor has quite satisfactorily established that Ali Noaj sustained grievous injuries on his person as a consequence of which he died with in no time. Similarly, the doctor''s evidence was quite satisfactorily established that Sekender Ali sustained incised injuries on his person. According to Doctor, P.W. 3 Basu Choudhury sustained grievous injury and P.W. 1 Nurul Haque also sustained fracture injury. Doctor also found injury on the person of Dula Miah.

Therefore, in view of the evidence discussed above there is no scope to say that the Appellants were not the members of the unlawful assembly and that their common object was not to beat Ali Noaj and others. I therefore, find that learned Addl. Sessions Judge rightly held them guilty u/s 326 read with Section 149 of IPC.

Mr. Das, the learned Counsel for the Appellants has argued that the Appellants deserve lenient punishment in view of the fact that this appeal has been heard after about 15 years from the date of occurrence. It is true that the occurrence took place on 14.9.81. But on examination of the order-sheets I find that the learned Counsel for the Appellants was not available on a number of dates when the case was called on for hearing. On 25.10.1995 none appeared. Therefore, the appeal was dismissed. Thereafter this appeal was again restored by a Division Bench by the order dated 13.6,1996. Thereafter also a number of adjournments had to granted on the prayer of learned Counsel for the Appellants. The Appellants are, of course, on bail. So, considering all these aspects I am of the opinion that in view of the gravity of the offence the punishment that has been awarded to the Appellants can not be said to be grossly excessive. I, however, order that the sentences would run concurrently.

In the result, this appeal is dismissed. The Appellants are on bail and hence they shall surrender within a period of 7 (seven) days before the learned Sessions Judge, West Tripura, Agartala to serve out the sentences.