Point of Law: Section 149 of Indian Penal Code provides that if an offence is committed by any member of an unlawful assembly in prosecution of common object of that assembly every person who at time of committing of that offence, is a member of same assembly is guilty of that offence.

JUDGMENT :

(M. Zothankhuma, J.)

1. Heard Mr. P. Kataki, learned counsel for the appellants in Crl.A. No.142/2020 and Crl.A. No.123/2020. Heard Ms. S. Jahan, learned Additional Public Prosecutor, Assam for the respondent no.1.

2. The Crl.A. No.142/2020 has been filed four appellants, while Crl.A. No.123/2020 has been filed by the sole appellant against the same impugned judgment dated 12.02.2020 passed by the Court of the Additional Sessions Judge, Sonitpur, Tezpur in Sessions Case No.249/2016, by which the appellants have been convicted under Sections 302/149 IPC and sentenced to undergo imprisonment for life with a fine of Rs. 5,000/- each, in default to suffer rigorous imprisonment for 3 (three) months. They were also convicted under Section 148 of IPC and sentenced to undergo R.I. for 1 (one) year and to pay a fine of Rs.2000/-each, in default to suffer R.I. for three months. The sentences were to run concurrently.

3. The prosecution’s case in brief is that an FIR dated 24.04.2013 was submitted by PW-2, to the effect that on 24.04.2013 at around 8 a.m., when P.W-2 and her husband were ploughing their land with a tractor, the appellants along with to two other persons, namely Putu Majhi and Sri Mangra Orang attacked her husband with bows, arrows, daos and stick. As soon as her husband fell on the ground, the said persons hacked him to death with a dao. PW-2 also states that though they tried to hack her neck with a dao, she survived. Consequent to the FIR submitted by PW-2, Dhekiajuli P.S. Case No.147/2013 under Section 147/148/149/302/307 IPC was registered.

4. After investigation of the case by the Investigating Officer (IO), the case I.O found a primafacie case under Section 147/148/149/302 IPC against (i) Putu Orang @ Putu Majhi, (ii) Sirlu Orang (appellant) and Habu Orang (appellant). The charge-sheet also stated that as the appellants Kamala Orang, Lakhindar Orang and Mangra Orang could not be arrested, as no evidence of their connection with the case was found.

5. Subsequent to the filing of the charge-sheet, charges under Section 148 read with Section 149 IPC and Section 302 read with Section 149 IPC was framed against the accused (i) Putu Orang, (ii) Sirlu Orang and (iii) Habu Orang on 30.09.2016.

6. Thereafter, the trial proceedings started before the Trial Court. In the evidence adduced by PW-2, PW-2 stated that Putu Orang, Sirlu Orang, Habu Orang, Lakhindar Orang, Kamala Orang and Bhandal Orang had assaulted the husband of PW-2 which led to his death. Accordingly, in pursuant to the evidence adduced by PW-2, the learned Trial Court, in it’s order dated 21.02.2017, held that in terms of Section 319 Cr.P.C., the persons mentioned by PW-2 in her evidence, should also be tried together with the original three persons on whom charges had been framed. In the evidence adduced by PW-2, the name of Mangra Orang did not find mention and accordingly, he was never made an accused in the case.

7. Consequent to the order dated 21.02.2017 passed by the learned Trail Court, charge under Section 148/149 IPC, 149 IPC and 302/149 IPC was framed against (i) Putu Orang, (ii) Sirlu Orang (iii) Habu Orang, (iv) Kamala Orang, (v) Lakhindar Orang and (vi) Bhandal Orang.

8. The learned Trial Court recorded the evidence of 12 (twelve) prosecution witnesses in total. Thereafter, all the accused persons were examined under Section 313 Cr.P.C. Accused Putu Orang expired on 14.11.2019, i.e. before the proceedings before the learned Trial Court was completed.

9. The learned Trial Court passed the impugned judgment dated 12.02.2020 in Sessions Case No.149/2016, convicting the appellants under Section 148 Cr.P.C. and sentencing them to undergo R.I. for one year with a fine of Rs.2,000/-each, in default to suffer R.I. for another three months. They were also convicted under Section 302/149 IPC and sentenced to life imprisonment with a fine of Rs.5,000/- each, in default to suffer R.I. for three months.

10. The basic stand of the learned counsel fo