GHANAKANTA KATAKI AND ANOTHER Vs. THE STATE

JUDGEMENT

(1.) THE appellants, Ghanakanta Kataki alias Jahua and Ghanakanta, Deodhi Phukan, were convicted by the learned Sessions Judge, U.A.D., u/s. 302, I.P.C. read with S. 34, I.P.C. at a trial held with the aid of a Jury and each sentenced to transportation of life. The appellants have appealed on the ground that the learned Sessions Judge has misdirected the jury on the question of the applicability of S. 34, I.P.C. to the facts of this case, a misdirection which has resulted in an erroneous verdict by the jury, and that if the plea of misdirection is sustained, the evidence led by the prosecution does not justify the conviction.

(2.) THE case of the prosecution was that on 1 -8 -49, shortly after dark, the 2 appellants, along with others, waylaid the deceased Sahadeb when he was returning from the house of one Joyram Phukan and belaboured him; the deceased received severe injuries on the head resulting in the fracture of the cranium, as a result of which he died almost instantaneously. It was alleged that on the cries of the deceased, one Nabakanta Phukan, a brother of the deceased who was living in a house some 80 yards away, and another person called Tikheswar were attracted to the scene of the offence. Shortly afterwards one Jayram and Sashidhar Mohon also came to the scene. Nabakanta and Tikheswar proceeded to the Moran Out -Post which they reached early in the morning the following day. Nabakanta, the brother of the deceased, lodged the F.I.R. On the completion of the investigation, the two appellants and some others who have been acquitted, were sent up for trial. At the trial, the learned Sessions Judge framed a charge against the appellants under S. 302, I.P.C. read with S. 34, I.P.C. The learned Judge's summing up to the Jury on the question of the applicability of S. 34, I.P.C. to the facts of this case, is in these terms :

(3.) NABAKANTA Phukan, the brother of the deceased, has stated in his evidence that on 1 -8 -49 the deceased went to the house of one Joyram Phukan to give him some fish, and shortly afterwards he heard his brother crying "I am struck, I am dying". According to him, he ran out and saw his brother being struck by appellant No. 1, Ghanakanta Kataki, whom he recognised, with an axe, and the appellant No. 2 and his companions, some 6 or 7 in number, whom he did not recognise, running away from the scene. In his First Information Report, however, Nabakanta Phukan did not say that the appellant No. 1, Ghanakanta Kataki, had struck his brother. The evidence of Tikheswar, the other alleged eye -witness, is also to the same effect.