JOGINDRA DAS Vs. STATE OF ASSAM

JUDGEMENT

(1.) This appeal is directed against the judgment dated 31.5.88 delivered by the Sessions Judge, Cachar, Silchar in Sessions Case Nci.53/87 thereby holding the accused appellants guilty of offence punishable under Section 30)4 Part II, IPC read with Section 149 IPC and sentenced them to undergo two years R J. with fine of Rs.500/- each, or in default in payment of fine, to suffer R.I. for 1 month. It is not indicated in the judgment if the sentences are to run concurrently.

(2.) Prosecution case, as can be gathered from the FIR Ext.1, was that on 22.5.86 around 11 P.M. the accused-appellants came to the house of the deceased, called him out and questioned him about alleged theft of a ear ring of the daughter of one of the accused, namely, Akkoi. It was denied by the deceased as well as his wife, but this denial did not satisfy the complainant. The incident was proceeded by a 'Bichar', a community meeting to resolve the dispute which was not attended by the deceased. The accused- appellant and the deceased are close relations, being first cousin. It was around mid-night that he was called out of his house and given a good thrashing of kicks and blows so much so the deceased started bleeding profusely from his nostril. Somehow the night passed. It was on the next day i.e. on 23rd evening that he started developing some symptoms. He vomited blood and was rushed to hospital where he succumbed to the injuries. On these allegations an ejahar Ext.I was lodged at Katigorah Police Station resulting in registration of a case under Sections 147/149/ 447/302 IPC. On completion of investigation the accused-appellants were charged and tried for the above offence. Their defence at the trial, as can be gathered from their statements recorded u/s 313 Cr.P.C. and the trend of cross-examination was plain denial of the prosecution story, dubbing it as false. Trial Court, however, found them guilty and sentenced them to terms of imprisonment as already noted above. Hence, this appeal.

(3.) Mr B.L. Singh, learned counsel for the appellants has assailed the conviction recorded against the appellants on the following grounds-(i) the FIR (Ext.I) was belated; (ii) eye-witnesses named therein have not been examined by the prosecution and the trial court failed to draw averse inference against the prosecution on that count; (iii) that the medical evidence of PW 9 does not at all support the prosecution case, the trial court was in error in over looking this material infirmity in the prosecution case: (iv) prosecution witnesses being close relations of the deceased are interested in implicating the accused appellants; and (v) that Sections 147 and 149 IPC is not attracted to the facts of the present case, at best the accused appellants can be held liable for their individual acts alone and not vicariously held responsible for the acts committed by others. This constructive liability has been erroneously invoked by the trial court.