The court reiterated the principles of common intention and unlawful assembly under Section 149 of the Indian Penal Code, holding that each member of an unlawful assembly can be held responsible for the commission of the actual offence even if he did not actively take part in the incident.

( 1 ) THIS appeal has been preferred against the order of conviction, as passed by the learned Additional Sessions Judge, 3rd court, Birbhum, Suri against the accused/appellants in Sessions Trial no. 4 of May, 2002 whereby the learned Judge, convicted all the accused persons for the commission of offence under sections 302/149 IPC and under section 147 of the Indian Penal Code and sentenced all of them to suffer imprisonment for life and to pay fine for the offence under sections 302/149 IPC and also to suffer R. I. for one year and to pay fine for the offence under section 147 IPC.

( 2 ) ON 8/6/1999 at about 6. 25 a. m. the defacto complainant Smt. Anuva Mete submitted a written complaint to the O. C. Labhpur P. S. stating therein that on that day when her husband's brother Dulal @ dhulo Mete was going to attend nature's call, at that time all the accused persons attacked him out of previous enmity. In order to save his life, dhulo cried for help and entered into the courtyard of Nihar Ghosh. The accused persons entered into the said courtyard chasing Dhulo. The defacto complainant and another also entered into the said courtyard of Nihar Ghosh and tried to save Dhulo, but failed. The accused persons assaulted Dhulo severely by the weapons which were in their hands and as a result of that he died on the spot. It has been stated in the FIR that a long standing dispute was going on in between the parties. On the basis of the said written complaint, Labhpur P. S. Case No. 44 of 1999 dated 8/6/1999 under sections 147, 148, 149, 302 IPC was started against the accused persons and after completion of the investigation charge sheet was accordingly submitted against them. During trial charges under sections 147 and 302/149 IPC was framed against all the accused persons who pleaded not guilty to those charges and claimed to be tried. In order to establish its case, prosecution has examined 14 witnesses. The accused persons have examined one D. W. in support of their case. It appears that the defence has tried to set up a case of innocence and that they have been falsely implicated in connection with this case out of previous enmity.

( 3 ) THE learned Additional Sessions Judge, after considering the entire evidence on record was of the opinion that all the accused persons were guilty of forming unlawful assembly and in furtherance of their common object they caused the death of the deceased by assaulting him with dangerous weapons. This finding of the learned additional Sessions Judge is under challenge, so far as the present appeal is concerned.

( 4 ) WE have heard the submissions of the learned Advocate for both the sides and also perused the entire materials on record. At the very outset, the learned Advocate for the appellants argued that from the materials on record it appears that the accused/appellant Milan Mete alias Bhulu and Kada alias Sukhen Mete were juveniles at the time of commission of the alleged offence and as such their trial along with the other major accused persons is totally illegal and on that ground their conviction should be set aside. In support of his contention Mr. Basu, the learned Advocate for the appellants drew our attention to the examination sheet of the said accused Milan Mete alias Bhulu recorded under section 313 Cr. PC. He pointed out that the age of the said accused was recorded as 17 years and as such there cannot be any doubt that the accused Milan alias Bhulu was minor at the time of the commission of the offence. But we are unable to accept this argument of Mr. Basu. It is the admitted position that the recording of the age in the form of the section 313 Cr. PC is generally done by the ministerial staff of the court concerned and simply because the age has been described as 17 years, that cannot be taken to be the correct position. In order to get the benefit of the Juvenile Justice Act, an accused is duty bound to raise this point before the Court preferably at the very ou