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CASE NO.: Appeal (crl.)  1165 of 2005

PETITIONER: Sheo Prasad Bhor @ Sri Prasad

RESPONDENT: State of  Assam

DATE OF JUDGMENT: 08/01/2007

BENCH: G.P.MATHUR & A.K. MATHUR

JUDGMENT: J U D G M E N T  W I T H  

Criminal Appeal No, 1272 of 2005  (Jaharlal Bhor        Vs. State  of Assam) &  Criminal Appeal No. 27 of 2007 @  Special Leave  Petition (Crl.)  No. 1169  of  2006 (Manik Keot Vs. State of Assam)

A.K. MATHUR, J.

               Leave granted in S.L.P.(Crl) No.1169 of 2006.

               These appeals are directed against the Judgment and  Order dated 2.4.2005 passed by learned Single Judge of the Gauhati  High  Court ( High Court of Assam, Nagaland, Meghalaya, Manipur,  Tripura, Nizoram and Arunachal Pradesh)  whereby  learned Single  Judge has dismissed the appeals of the accused persons and  confirmed the conviction and sentence of the accused persons.

               Brief facts giving rise to these appeals are that on  8.6.1991, Smt. Rani Begum lodged a first information report that her  husband, Rehmat Ali went out of the house around 8.00 a.m. for  fishing and around 11.00 a.m. she was informed by Mina Begum that  her husband had been killed by accused Manik Keot, Brajanath  Kurmi and Jaharlal Kurmi and the dead body was packed into a  gunny bag and thrown into a river. The police registered a case and  during investigation the dead body was recovered from the river and  thereafter it was sent for post-mortem examination.  On completion of  investigation, a case was registered against the accused persons  under Sections 147, 302, 201 of the Indian Penal Code read with  Section 149 of the Indian Penal Code (for short, I.P.C.). On  completion of trial, learned Sessions Judge recorded conviction under  Sections 147, 149, 304 Part II and 201, I.P.C. against the accused  persons  and  sentenced them to suffer rigorous imprisonment for six  years and to pay a fine of Rs.2000/- each, in default to suffer further  imprisonment for two years.  The trial court found that  it was not  necessary to record any separate sentence  under  Sections  147/149/201, I.P.C. and sentenced the accused persons under  Section 304, Part II, I.P.C.  only as it was observed that it was  sufficient to meet the ends of justice.  Aggrieved against this order a  joint appeal was filed before the High Court.  Learned Single Judge of  the High Court confirmed  the conviction and sentence of the accused  appellants.  

               It may be mentioned  here that during the pendency of  appeal, appellant Champalal Bhor and Brajnath Kurmi expired,  therefore, the appeal against these two appellants stood abated.         In the present appeals we are concerned with the accused-  appellants,  Manik Keot, Sheo Prasad Bhor and Jaharlal Bhor.

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               We have heard learned counsel for the parties and have  perused the records. Learned counsel for the appellants has taken us  to the evidence of the witnesses and tried to persuade us that all the  witnesses who have been examined by the prosecution were not  worthy of credence as they have improved their statements as given  under Section 161 of the Code of Criminal Procedure (for short,        Cr. P.C.) and under Section 164 Cr.P.C. as well as during the trial.  Therefore, learned counsel for the appellants submitted that these  witnesses  i.e. P.Ws. 2,4,5,6, and 7 are not reliable.  

               We have gone through the statements made under  Sections 161, 164 Cr.P.C. of these witnesses  and before the trial  court, after going through the statements, we are of opinion that the  approach of the learned Single Judge of the High Court appears to be  justified. So far as P.W.2- Faizul Hussain is concerned, he has  named accused Manik Keot  and Jaharlal Bhor.  P.W.3 has also  named  accused Manik Keot and Jaharlal Bhor in the Court though  not before the Police and not before the  Magistrate. P.W.4 has  named accused  Sheo Prasad Bhor, Champalal Bhor and Jaharlal  Bhor. P.W. 6  has also alleged that Champalal Bhor, Manik Keot and  Sheo Prasad Bhor were lifting Rehmat Ali from the spot and were  dragging him to the bank of the river.  He has also stated that  accused Jaharlal also gave a baitha blow  to the deceased and  accused Champalal Bhor  gave a dagger blow  and when he tried to  intervene, he was threatened by accused Sheo Prasad Bhor.   Similarly, P.W.7 has also mentioned that accused Sheo Prasad Bhor  was there and participated in the assault. He also mentioned the  name of Jaharlal Bhor before the Magistrate and the court. His  statement was sought to be controverted by P.W.9 - Investigating  Officer.  Small contradiction and omission are natural when body of  persons attacked deceased.  One has to only assure that there  should not be over implication.  After review of statements by both the  courts below have correctly appreciated the testimony of witnesses.  We have also perused the statements made by the witnesses,  it is  clear that some took part in the assault while others actively assisted  them. When charge under section 149, I.P.C.  is there, it is not  necessary that each one should be assigned  independent part  played in the beating. If it is found that  one of them was a member of  the unlawful assembly and that unlawful assembly assaulted the  deceased which ultimately caused the death of the deceased, then all  who were members of the unlawful assembly can be held liable.   Having regard to the facts and circumstances of the case the view  taken by  the trial court  convicting accused appellant under Section  304 (II) read with Section 149 cannot be said to be bad. The High  Court has rightly observed that it was a case under Section 302,  I.P.C. but since there was no appeal preferred by the State, therefore,  High Court did not interfere with the conviction of the appellants. Be  that as it may, we are satisfied that the learned Single Judge as well  as the trial court  has correctly  appreciated the testimony of the  witnesses  and there is no ground to interfere in these appeals.  Consequently, the appeals are dismissed.