High Court
Case Details
Crl.A. 11/2010 BEFORE HON’BLE MR JUSTICE I. A. ANSARI HON’BLE MR. JUSTICE P.K.SAIKIA (P.K.Saikia, J) This appeal is directed against the judgment dated 10.11.2009 passed by Addl. Se ssions Judge, Darrang, Mangaldoi, in Sessions Case No. 58(DM)/2007 convicting th e accused-appellants, viz., (1) Danda Hazarika, (2) Thaneswar Hazarika and (3) P remadhar Hazarika of offences under Sections 302/149 IPC and sentencing each of them to imprisonment for life with a fine of Rs. 5,000/- each in default R.I. fo r another one month for offence under Sections 302/149 IPC. By the same judgment , learned Addl. Sessions Judge, Darrang, Mangaldoi, had acquitted the other accu sed persons, namely, (1) Sri Khiteshwar Deka, (2) Rudra Deka, (3) (3) Naba Hazar ika, (4) Bhupen Hazarika, (5) Benoy Saikia and (6) Moheshwar Saikia of the offen ce under Sections 302/149 IPC. 2. Being aggrieved by and dissatisfied with the aforesaid judgment, the appellants, viz. Premadhar Hazarika, Danda Hazarika and Thaneswar, hereinaf ter referred to as accused persons No. 1, 2 and 3 respectively, preferred this a ppeal citing several infirmities in the judgment, impugned. 3. We may note here that the prosecution did not prefer any app eal against the order of acquittal, recorded in favour of (1) Khiteshwar Deka, ( 2) Rudra Deka, (3) Naba Hazarika, (4) Bhupen Hazarka, (5) Benoy Saikia and (6) M oheshwar Saikia. It may also be mentioned that one Gitu Hazarika and Hirakjyoti Hazarika, juveniles conflicted with law, have been forwarded to the Juvenile Cou rt to be tried in accordance with relevant law and such a case is said to be pen ding at the time of rendering judgment by the Trial Court. 4. The brief facts necessary for disposal of the present appeal are that on 9.8.2003(Saturday) at about 2.30 P.M. one Sarat Saharia, since deceased , was tethering his cows in a field nearby his agricultural farm, Kachomari. Aro und the same time, accused Gitu also came there to tether his cattle on the same plot of land where Sarat Saharia had already tethered his cattle. 5. Seeing Gitu tethering his cattle on the same plot of land, Sarat Saharia asked Gitu to take his cow away from such land. Since Gitu did not pay any heed to the demand made by Sarat Saharia in taking away his cattle from the land aforesaid, a verbal duel ensured between them for which Gitu raised hue and cry to draw the attention of his parents and other family members who too resid e in the vicinity of such place. 6. On hearing the hue and cry, raised by Gitu, accused person 1, 2 and 3 along with Khiteshwar Deka, Rudra Deka, Naba Hazarika, Bhupen Hazarika, Bi noy Saikia, Hirakjyoti Hazarika and Moheshwar Saikia, all being armed with vari ous weapons came to the courtyard of the deceased and started beating him with d eadly weapons in their hands inflicting grievous wounds on him which occasioned his instantaneous death at the place where he was beaten.
Facts
An FIR to that effect on being lodged with the Officer-In-Charge 7. , Mangaldoi Police Station on the same day in the afternoon, Officer-In-Charge. registered a case and ordered one Sri Keshab Chutia, S.I. of Police, to investi gate the same. Being so entrusted, Sri Chutia visited the place of occurrence, h eld an inquest on the dead body, sent the same for post mortem examination and a lso examined the witnesses. But before he could complete the investigation, he w as transferred and as such, he handed over the case diary to the Officer-In-Char ge. for doing further needful. 8. Thereafter, one Karthick Baruah completed the remaining part of the investigation and submitted the charge-sheet under Sections 147/148/447/302 IPC and forwarded the accused persons to the court to stand trial. The Magistrat e before whom charge-sheet was so laid committed the same to the court of Sessio ns since the offence u/s 302 IPC is exclusively triable by the court of Sessions . On the receipt of the case on commitment, learned Sessions Judge, Darrang, Man galdoi transferred it to the file of Addl. Sessions Judge FTC, Darrang, Mangaldo i, for disposal in accordance with law. The learned Sessions Judge on receipt of the case on transfer an 9. d on hearing the parties, framed charge under Sections 302/149 IPC against the a ccused persons, committed the case for trial and charges so framed, on being rea d over and explained to them, they pleaded not guilty and claimed to be tried. I t may be mentioned herein that the accused Hirakjyoti and Gitu having been found to be juveniles were sent to a concerned Juvenile Justice Board for trial in ac cordance with law. 10. During trial, the prosecution has examined as many as 9 witnesses includ ing the informant and the Investigating Officer. The statements of the accused p ersons were recorded u/s 313 Cr.P.C. The accused plea was of denial. In support of their case they, had however, examined six witnesses. On the conclusion of tr ial and on hearing the arguments, advanced by the learned counsel for the partie s, the learned trial court while acquitting the six accused persons aforesaid, c onvicted the accused-appellants of offence under Sections 302/149 IPC and senten ced them to punishment as aforesaid. It is that judgment which has been assailed in the present appeal. 11. Mr. S.N. Deka, learned Sr. counsel appearing for the appellants, has sub mitted that the judgment of the trial court cannot be sustained since it suffers from several infirmities of extremely serious nature. According to the learned counsel for the appellants, the judgment of the trial court is unsustainable in law since there was delay in lodging the case and same remains unexplained and s ince the information, which was treated as an FIR, is hit by Section 162 Cr.P.C. As the very foundation of the prosecution case becomes non-existent, the entire prosecution case bounds to crumble down like a pack of cards. 12. Moreover, the evidence of one of the important prosecu- tion witnesses, namely, PW 1 could not be relied upon since he had no occa sion to see the incident under consideration inasmuch as he concealed himself in a secured place once the incident in question commenced. Similarly, the evidenc e of PW 2 could not be relied upon since she could not have seen the incident pr operly due to her old age. It has also been contended that the prime prosecution witnesses are unreliable since they contradict one another on some fundamental aspects of the prosecution case.
Legal Reasoning
In a recent decision of this court in Kuldip yadav v. State of Bihar to which one of us (Sathasivam, J.) was a party, the principle of constructive lia bility under Section 149 IPC had again received an elaborate consideration. In P ara 39 of the judgment it was held that .(SCC p. 336) (cid:28)39.it is not the intention of the legislature in enacting Section 149 t o render every member of unlawful assembly liable to punishment for every offenc e committed by one or more members . In order to attract Section 149, it must be shown that the incriminating act was done to accomplish the common object of la wful assembly and it must be within the knowledge of other members as one likely to be committed in prosecution of the common object. (cid:29) In Para 40 of the judgment in Kuldip Yadav and earlier decision in Rajen dra Shantaram Tokankar v. State of Maharashtra was noticed, particularly , the o pinion that (Kuldip Yadav case ,SCC p. 337) (cid:28)40 &..’14 & & It is difficult indeed , though not impossible, to collect d irect evidence of such knowledge. An inference may be drawn from circumstances s uch as the background or the incident, the motive, the nature of the assembly, t he nature of the arms carried by the members of the assembly, their common objec t and the behavior of the members soon before, or after the actual commission of the crime’. (cid:28) (Rajendra Shantaram case , SCC p. 263, para14) 45. In Superintendent and Remembrancer of Legal Affairs, W.B. Vs. Mangal P athak & Ors., reported in 1995 Supp (1) SCC 239, Hon’ble Supreme Court has been held that conviction of less than five persons with the aid of Section 149 IPC i s permissible when the participation of more than five persons is established. T he relevant part of the judgment runs as follows:- (cid:28)7. The next question is whether a foolproof case is made out against all the re spondents namely A-1 to A-49. As stated above there was bitter enmity between th e two parties and they were involved in criminal cases. PWs 1 and 12 are admitte dly interested witnesses and their evidence has to be scrutinized with great car e and caution. Generally in such a situation their evidence has to be scrutinize d in the light of Ext. P-1, the medical evidence and to the surrounding circumst ances and with reference to their earlier statements. It has to be noted that in Ext. P-1 only the names of Accused 2, 3, 4, 8 and 9 are mentioned and the names of other accused were not mentioned. Therefore we think it may not be safe to c onvict the other accused whose names were not mentioned in Ext. P-1, PW 1. Then were left with the case of Accused 2, 3, 4, 8 and 9. In Ext. P-1, PW 1 has state d that it was A-8 who first opened the attack and inflicted a blow on the neck o f the deceased. No other overt acts are mentioned obviously because he did not w itness the entire occurrence. PW 12 in his evidence has attributed overt acts to A-2, A-3 and A-8 only. In a case of this nature we think it is safe to convict only those accused to whom specific overt acts are attributed. PW.12 deposed tha t in the flash that A-8 was the first person to inflict a blow on the neck of th e deceased with a tabela as a result of which he fell down. Thereafter PW 12 cau ght hold of A-8 and both of them fell down and A-2 and A-3 inflicted blows with swords on him on the neck and back. At that time he saw PW 1 running away. He co uld not give any other details of the occurrence. Thus it can be seen that thoug h the names of Accused 2,3,4,8 and 9 are mentioned in Ex. P-1 we find from the e vidence of PWs 1 and 12 that the actual overt acts are attributed only to A-2, A -3 and A-8. The medical evidence also corroborates in respect of overt acts comm itted by these three accused. Therefore we think it is absolutely safe to convic t these three accused and give benefit of doubt to others. But by this way we ar e not in any manner doubting the evidence of PWs 1 and 12. By way of abundant ca ution having regard to the fact that they are interested witnesses and after a c areful consideration keeping in view the principles regarding the scrutiny of su ch interested witnesses, the other accused are given benefit of doubt for the ab ove=stated reasons. However, we have no hesitation to accept their evidence as a gainst A-2, A-3 and A-8 to whom specific overt acts have been attributed. In our view, the prosecution has established the guilt of these three accused beyond a ll reasonable doubt. The view taken by the High Court in acquitting all the accu sed, as stated above, is wholly erroneous. (cid:29) (cid:28)8 Now coming to the question of applicability of Sections 302/149 IPC, taking into consideration all the circumstances of the case we are firmly of the view t hat more than five persons participated in the occurrence. Therefore, there is n o difficulty in convicting A-2, A-3 and A-8 under Sections 302/149 IPC. (cid:29) 46. Similar view has been rendered in the case of Bharwad Mepa Dana & Anrs . Vrs. State of Bombay in 1960 2 SCR 172 as well as in the case of Khem Karan & Ors. Vrs. State of U.P & Ors., reported in (1974) 4 SCC 603. In Bharwad Mepa (su pra) Hon’ble Supreme Court held as follows:- (cid:28) & & & &We consider that these observations apply with equal force in the present case, and we do not think that the distinction sought to be made by learned coun sel for the appellant on the basis that in Kapildeo case4 , the prosecution alle gation was that there were 60 or 70 men in the unlawful assembly, makes any diff erence in the legal position. The same view was expressed again by this Court in Dalip Singh V. State of Punjab5; (cid:28)Before Section 149 can be called in aid, the court must find with certainty tha t there were at least five persons sharing the common object. A finding that thr ee of them ’may or may not have been there’ betrays uncertainty on this vital po int and it consequently becomes impossible to allow the conviction to rest on th is uncertain foundation. 19. This is not to say that five person must always be convicted before Section 149 can be applied. There are cases and cases. It is possible in some cases for judges to conclude that though five were unquestionably there the identity of on e or more is in doubt. In that case, a conviction of the rest with the aid of Se ction 149 would be good. But if that is the conclusion it behoves a court, parti cularly in a murder case where sentences of transportation in no less than four cases have been enhanced to death, to say so with unerring certainty. (cid:29) The same view was reiterated in Nar Singh V. State of Uttar Pradesh6. We have st ated earlier what the finding in th present case is; it is a clear finding a fin ding with certainty that the number of person who constituted the unlawful assem bly was more than five, though the identity of four only has been established; a nd the killing was done in prosecution of the common object of the entire unlawf ul assembly. Therefore, we see no serious difficulty in applying Section 149, In dian Penal Code, in the present case. (cid:29) 47. In Dani Singh & Ors Vs. State of Bihar, reported in (2004) 13 SCC 203, the Apex Court has again held that where a charge was framed u/s 149 IPC, and n ot under 34 IPC, the accused person(s) can still be convicted with the aid of Se ction 34 IPC, provided it is established that two or more persons committed offe nce/ offences in furtherance of common intention. The relevant part is reproduce d below:- (cid:28) 17 The legality of conviction by applying Section 34 IPC in the absence of suc h charge was examined in several cases. In Willie (William) Slaney V. State of M .P.5 it was held as follows : (AIR p.137, para 86) (cid:28)86 Sections 34, 114 and 149 of the Indian Penal Code provide for criminal liabi lity viewed from different angles as regards actual participants, accessories an d men actuated by a common object or a common intention; ’and the charge is a ro lled-up one involving the direct liability and the constructive liability’ witho ut specifying who are directly liable and who are sought to be made constructive ly liable. In such a situation, the absence of a charge under one or other of the vari ous heads of criminal liability for the offence cannot be said to be fatal by it self, and before a conviction for the substantive offence, without a charge, can be set aside, prejudice will have to be made out. In most of the cases of this kind, evidence is normally given from the outset as to who was primarily respons ible for the act which brought about the offence and such evidence is of course relevant. (cid:29) (cid:28)18. The above was reiterated in Dhanna v. State of M.P.6 In Dhanna Vrs. State of M.P reported in1996 10 SCC 79, too, Hon’ble Su 48. preme Court held as follows:- (cid:28)9. It is, therefore, open to the court to take recourse to Section 34 of IPC ev en it the said section was not specifically mentioned in the charge and instead Section 149 IPC has been included. Of course a finding that the assailant concer ned had a common intention with the other accused is necessary for resorting to such a course. This view was followed by this Court in later decisions also. (Am ar Singh v. State of Haryana, Bhoor Singh v. State of Punjab). The first submiss ion of the learned counsel for the appellant has no merit (cid:29). 49. Our foregoing discussion, now, reveals that persons less than five can be convicted of any offence/offences with the aid of Section 149 IPC provided i t is established that numbers of unlawful assembly was five or more but identity of some of them could not be ascertained. Our foregoing discussion further show s that before convicting a person with the aid of Section 149 IPC, the court mus t find out the common object of the unlawful assembly. 50. Coming back to our present case, we have found that the prosecution ha s submitted charge-sheet against as many as 11 accused persons including present appellants, their number being 3, seeking their trial for offences under Sectio ns 147/148/149/447/302 IPC. As stated above, two of the accused persons, namely, Gitu Hazarika and Hirakjyoti Hazarika, being found juveniles in conflict with l aw, were sent to Juvenile Court for trial in accordance with relevant law. 51. However, on hearing the parties, learned trial court framed charges ag ainst as many as 9 accused persons under Sections 302/149 IPC. The charges, so f ramed, on being read over and explained to the accused persons, they pleaded not guilty and claimed to be tried. The learned trial court on the conclusion of tr ial while acquitting as many as six accused persons of offence under Sections 30 2/149 IPC, convicted the present accused-appellants, as stated above, of offenc es under Sections 302/149 IPC. 52. Though the learned Trial Court convicted the accused/appellants of offen ce under Sections 302 IPC with the aid of Section 149 IPC, nowhere did it ascert ain the object of assembly aforesaid. As held in Budeo Mandal (supra), we have a lready found that it is mandatory on the part of the Court in seizin with trial of a case involving offence u/s 149 IPC to ascertain the object of such an unlaw ful assembly. 53. This apart, learned trial court which convicted only 3 accused-appellant s of offence u/s 302 IPC with the aid of Section 149 IPC never care to ascertain if the number of unlawful assembly was five or more of which accused-appellants were said to be the members. We have already found that the persons less than 5 can be convicted of any offence/offences with the aid of section 149 IPC, provi ded there is a clear finding that they were part of an unlawful assembly, member s of which were five or more. 54. Since the learned trial court did not ascertain if the number of the mem bers of the unlawful assembly was five or more and since the object of unlawful assembly was not also ascertained, there cannot be any escape from the conclusio n that the judgment of the trial court convicting the accused appellants of offe nce under Sections 302/149 IPC is unsustainable and as such, same is liable to b e set aside. 55. In the result, the judgment of the Trial Court is set aside and the case is remanded back to the trial court with a direction to the Trial Court to proc eed with it from the stage of argument and then to dispose of the same in accord ance with law as indicated above. 56. Since the case under consideration was initiated as back as 2003, the l earned Trial Court is directed to dispose of the matter as early as possible but in no case beyond 6 months from the date of receipt of the LCR. 57. Return the LCR.
Arguments
13. These apart, the evidence of PW 3, who is undoubtedly the star campaigne r from the prosecution side, cannot be relied upon since she was administered oa th without ascertaining if she had attained sufficient maturity to understand th e implication of taking oath inasmuch as she was only a child witness when he r evidence was recorded during trial. On all those counts, the learned counsel f or the appellants submits this Court to set aside the judgment of the trial cour t. In support of his contention the learned counsel for the appellants has reli ed on the decision of Supreme Court in the case of Sukhbir Singh and Anr. Vs. St ate of Punjab reported in 2011 CRI.L.J.2336 and of the Gauhati High Court in the case of Ratan Paul Vs. The State of Tripura reported in [1993] 2 GLR 395. 14. Supporting the judgment, rendered by the Trial Court, learned Addl. Pub lic Prosecutor, Mrs. S. Jahan, argues that the judgment, rendered by the trial c ourt does not suffer from any infirmity whatsoever, requiring this Court to set aside such a judgment. Rather, the evidence on record far too firmly proves the allegations leveled against accused-appellants. Being so, the judgment of the tr ial court invites no interference from this Court of Appeal. She, therefore, urg es this Court to affirm the judgment of the trial court. We have considered the rival submissions, advanced by learned counsel fo 15. r the parties having regard to the evidence on record, both oral and documentary as well as the judgment under challenge. Before we consider the evidence of the evidence of prime prosecution witnesses, we find it necessary to have a look at the evidence of doctor who conducted autopsy on the body of the deceased. 16. The doctor who conducted autopsy on the dead body at the civil hospita l, Mangaldoi was one Dr. Alakananda Goswami who was examined as PW 7. According to him, on 10.08.2003, while working as SDM cum H.O. at Mangaldoi Civil Hospital , he conducted post mortem examination on the body of one Sarat Saharia in conne ction with Mangaldoi PS Case No. 2703/2003 and found the following :- (i) Stab wound over back near inner border of left scapula 1‰ inch X ‰ inch X 3 inches depth with bleeding. (ii) Stab wound over middle boarder of the right scapula ‰ inch X ‰ inch X 3 i nches depth with bleeding. (iii) Lacerated injury over scalp over right partial region 2 inch X 2 inch X ‰ inch depth with bleeding. (iv) Stab wound over right side of chest near right side of the sternum 2 inch X 2 inch X 3 inches depth. (iv) Stab injury over left side of chest below the left clavicle 1 inch X ‰ inch X 3 inches depth with bleeding. Clothes are stained with blood. Injuries are ante-mortem. 17. The evidence of the doctor reveals that death of the deceased was ho micidal in nature and the ante mortem wounds on his body occasioned his death. 17A. So situated, let us examine the evidence of PW 1, Sri Bhul Saikia, PW 2, Smti Kanchan Saharia and PW 3, Smti Namita Deka who are son, wife and granddaug hter of the deceased respectively. According to PW 1, on 8.3.2003, at about 2.30 PM, the incident in question took place. On that day, after closing his shop at Mangaldoi town, he (PW 1) came to his farm house, situated at Kachomari village . At about 2.30 PM, his father went to a nearby land and tethered his cows on t hat plot of land. 18. Accused Gitu Hazarika also came to such land taking his cattle and wante d to tether his cows on the plot of land on which his father had already tethere d his cows. His father, therefore, did not allow Gitu Hazarika to tether his cat tle on the same plot of land on which his father had already tethered his cattle . He did so sensing danger to his cows which were pregnant at that point of time . 19. Accused Gitu took exception to it and got involved in a verbal dual with the deceased and he, thereafter, started shouting, inviting attention of his fa mily members who reside at a place not far away there-from. On hearing hue and c ry, raised by Gitu Hazarika, accused Premananda, Thaneshwar, Naba, Hirak Jyoti, Moheshwar, Hiteshwar and Rudra came there armed with various weapons. Accused Pr emananda was armed with a spear whereas Danda was armed with an iron rod and the rest were armed with bamboo, spears, daos and lathi. At that point of time, the deceased was standing at a place on the south 20. ern side of their compound. The accused persons who came there rushing, broke th e fence on the southern, then entered into their compound and started beating th eir father. They even dragged his father from such place towards a coconut tree within their premises where the accused Danda inflicted dao blow on his head. Pr emananda hit him on his chest as well as on his head. He fell down on the ground and thereafter accused Premananda and others started beating him with weapons i n their hands. 21. Though he saw the incident with his own eyes, he could not gather the co urage to go near the place where his father was assaulted since he was also appr ehending danger to his life as well. He, therefore, concealed himself in the hou se of one Biren Das. His mother also tried to save her husband but in vain since the accused persons also threatened her with dire consequences. In his cross-ex amination, he had admitted that he lodged the FIR at about 6.30 pm but her nephe w informed the police over phone before his lodging the FIR. 22. In his cross examination, he further admitted that there was a c ivil dispute between the accused persons and the deceased since before the alleg ed incident, that in their village there are about 140 families but they did no t have cordial relation with about 30/40 families. It is in his evidence that be fore filing of the Ejahar, he discussed the matter with his uncle Nagen Saharia who accompanied him to the police station on the evening of 9.8.03. The suggesti on that he falsely implicated the accused persons due to some civil disputes was denied by PW1. 23. PW 2 is the wife of the deceased. PW 1 is found saying that on the fatef ul day, at about 3 pm, she was doing some chores in her farm house. Her granddau ghter Namita Deka was there at that time. On the fateful day, the informant who usually resides at their permanent house at Bhebarghat, Mangaldoi town, came to their farm house at about 2 pm. At that point of time, one Gitu allegedly wanted to chain his cow on the same plot of land where her husband had already tethere d his cows. 24. Thus, a quarrel ensued between the deceased and aforesaid Gitu Hazarika over tethering of cows on the same plot of land. Soon, thereafter, Gitu started raising alarm for which accused Premananda, Thaneshwar, Danda, Naba, Bhupen, Hir akjyoti and son of Maheswar came there. Accused Premananda and Thaneshwar were a rmed with a lathi whereas accused Danda was armed with a dao and the rest with c lubs. 25. On arriving at the place of occurrence, accused Danda administered a bl ow by (cid:28)dao (cid:29) on the head of her husband for which he fell down on the ground and thereafter other accused persons started beating him with the weapons in their h ands. Having seen all these, she ran to the accused persons and requested Dhanda not to assault her husband. However, instead of paying heed to her request, the accused Danda ran to her for which she withdrew herself to avoid being assaulte d. 26. Having so beaten the deceased, they dragged him to a nearby coconut tree and then threw his body to the field of one Binoy. In the meantime, her son cam e and requested her to go to the place where her father was lying injured to see if he was still alive. She (PW 2) immediately went there and asked her husband whether he would like to have some water but no reply came from him. Meanwhile, Namita Deka, her granddaughter, also started raising hue and cry. Police was inf ormed and they came to the place of occurrence towards the evening and took the dead body to the Police Station for doing the further needful. 27. In her cross examination, she has stated that one Nagen Saharia came to the place of occurrence and he along with PW 1, PW 2 and her granddaughter Namit a all came to the Police Station on that night itself. It is also in her evidenc e that though her son (PW 1) fled to the house of one Biren as the incident in q uestion was in progress but she remained there all the time. She admitted in her cross-examination that though 15 to 20 persons witne 28. ssed the incident, she could recognize one Amit only. The suggestion that she fa lsely implicated the accused persons had been denied by her. She has, however, a dmitted that though accused Hiteswar (Gaonburah) was at the place of occurrence but he did not participate in assaulting the deceased. PW 3, Smti Namita Deka deposes that on the fateful day, she was 29. in the farm house of the deceased. At about 2.30 pm, she and PW 2 were sitting b eneath the Bakul tree within their compound. At that time, a quarrel broke out b etween the deceased and accused Sri Gitu Hazarika over tethering of cattle on a plot of land in the vicinity of the house of the deceased. Owing to such quarrel , accused Gitu raised hue and cry. Hearing such hue and cry, accused Danda, Prem adhar, Thaneswar and others rushed to such place, armed with various weapons. Ac cused Danda was armed with dao whereas accused Premadhar and Thaneshwar were arm ed with pointed iron rods and others were armed with lathi. On reaching the plac e of occurrence, Danda first administered a dao blow on the head of her grandfat her who immediately fell down on the ground being so hit. 30. Thereafter, accused Thaneswar and Premadhar started hitting injured person w ho had already fallen down on the ground with a pointed iron rod in their hands. Others inflicted wounds on his stomach, legs and other body parts. Thereafter, they dragged the body of the deceased to a paddy field nearby. Though her grandm other (PW 2) tried to prevent the accused persons from assaulting her husband, s he could not prevent them from doing so. 31. On the other hand, PW 1 out of fear took shelter in the residenc e of the nearby people. On that day, at about 7 pm, police came there and took t he dead body to the Police Station. During the course of investigation, police t ook her to the Magistrate where she rendered her statement. She proved her state ment as Ext. 3. In her cross examination, she has stated that when police came t o their house at about 7 pm, they requested PW 1 to write an Ejahar whereupon PW 1 wrote the Ejahar and submitted it to the police. 32. After 4 days of the incident, she was taken to the Magistrate where she rendered a statement before the Magistrate. But she rendered such statements as taught by police officials. In her cross examination, she has further stated tha t about 15/16 persons also came to the P.O. who advised PW 2 to hide herself in the residence of nearby people. However, PW 2 did not pay any heed to such reque st. She, however, admitted that she told the police that she could not identify the accused persons by name and face. 33. PW 4, Shri Nagendra Nath Saharia is the brother of the deceased. Accordi ng to him, on 9.8.03, at about 4.30 PM, he received information from his nephew Dr. Bhupen Sohoria that Sarat Saharia was killed by his neighbors. In the meanti me, Bhuban Ch. Deka, came to his house and informed that Sarat Saharia was kille d because of quarrel with some persons. PW 1 too came to his house and reported the matter to him. He went to the police station along with PW 1, Dr. Bhupen Sah aria, and his son Sushanka. 34. In the police station, the Ejahar was lodged by PW 1. When Sushanka foun d that FIR was not written properly depicting the exact story, he wrote another FIR on which PW 1 put his signature. The FIR, so written by Bhupen Saharia was t herefore destroyed. Though police at the beginning declined to go to the place o f occurrence citing some other urgent work but it at last agreed to go there. On arriving at the P.O., he saw blood marks beneath the coconut tree within the co mpound of the deceased. 35. He also saw the boundary fencing of the compound of the premises of the deceased being broken. He noticed the dead body at a distance of some 40 yards f rom the boundary fencing of the deceased. In his cross examination, he admitted that the original FIR was destroyed since it was not properly drawn up. The sugg estion that in the original FIR, name of all the accused persons were not incorp orated was denied by PW 4. 36. PW 5 is an Upper Division Assistant in the office of Chief Judicial Ma gistrate, Darrang. He deposes that he knew the handwriting of Smti. Sima Das, th e then SDJM, Mangaldoi. On the other hand, PW 6 Smti. Sima Das, SDJM, Mangaldoi disposes that she recorded the statement of Namita Deka which she proved as Ext. 3. According to her, at the time relevant, witness Smti. Namita Deka was a girl of about 11 years of age. 37. PW 8 is the main Investigating Officer who conducted the investigation o f the case under consideration. According to him, on 9.8.2003, he was working as 2nd officer of Mangaldoi Police Station. On that day, the O.C. received the FIR at about 5.30 p.m. He registered the case and entrusted him to investigate the matter. Thereafter, he along with the doctor reached the P.O. at about 6 PM. On arriving at the P.O., he found the dead body of Sarat Saharia in a paddy field a t a distance of 50 meters from his house. He prepared the inquest report in pres ence of the witnesses which he proved as Ext. 2. He also drew a sketch map of the place of occurrence which he proved a 38. s Ext. 5. In the course of time, he recorded the statements of witnesses. In his cross examination, he has stated that no other FIR except the Ext. 1 was receiv ed in the police station. He also stated that no FIR was written by PW 1 at his house when he visited the same on the evening aforesaid. In his cross examinatio n, he has further stated that PW 1, PW 2, PW 3 did not state before him that acc used Rudra was also present. Similarly PW 3 did not name accused Hiteswar as bei ng one of the assailants. 39. PW 9, Sri Karthick Barua is the Investigating Officer. who completed t he remaining part of the investigation and submitted the charge-sheet. He was no t cross examined. 40. Before we proceed further, we need to know when various vicarious liab ilities (also known as constructive liability), talked about in the Penal law, m ore particularly in Section 149 IPC or Section 34 IPC, can be invoked to fasten person/persons for the wrong committed by other person or persons. 41. In the case of Nanak Chand Vs. State of Punjab, reported in AIR 1955 S C 274, the Hon’ble Supreme Court held that whereas Section 34 IPC does not creat e any specific offence, Section 149 IPC does so and as such, there is a clear di stinction between the provisions of Section 34 IPC and 149 IPC. The principal el ement in Section 34 IPC is the common intention to commit crime. Thus, if in fur therance of the common intention several acts are done by several persons result ing in the commission of a crime, each one of them would be liable for that crim e in the same manner as if all the acts resulting in that crime had been done by him alone. 42. In Budeo Mandal & Ors. VS State of Bihar reported in AIR 1981 SC 1219, H on’ble Supreme Court held that before convicting a person with the aid of sectio n 149 IPC, the court must find out the common object of the unlawful assembly. T he relevant part is reproduced below:- (cid:28)Before the High Court could have upheld the conviction of the appellants under section 326/149 of the Indian Penal Code, it should have recorded a clear findin g as to what was the object of the unlawful assembly and if was so whether the o bject was to commit murder, grievous hurt or simple hurt. In these circumstances we find ourselves in complete agreement with the argument of Mr. U.P.Singh, lea rned counsel for the appellants that there is no material to support the convict ion of the appellants under Section 326/149 of Indian Penal Code. We would like to point out that whenever the High Court convicts any person or p ersons of an offence with the aid of Sections 149 a clear finding regarding the common object of the assembly must be given and the evidence discussed must show not only the nature of the common object but also that the object was unlawful. Before recording a conviction under Section 149 of the Indian Penal Code, the e ssential ingredient of Section 141 of the Indian Penal Code must be established. Section 149 creates a specific offence and deals with the punishment of that of fence. There is an assembly of five or more persons having a common object and t he doing of acts by members is in prosecution of that object. The emphasis is on common object. (cid:29) 43. Thus, in Budeo Mandal (supra), Hon’ble Supreme Court has held that Sec tion 149 IPC creates a specific offence and also provides the punishment for suc h offence. Therefore, where a Court convicts any person or persons of offence wi th the aid of Section 149 IPC, a clear finding about the common object of the as sembly is mandatory. This proposition of law has been reiterated in many other s ubsequent pronouncements. 44. Hon’ble Supreme Court reiterated its earlier view in the case of Bhara t Soni and others Vrs. State of Chattisgarh, reported in (2012) 12 SCC 657. The relevant part is reproduced below:- 18.