The central legal point established in the judgment is the determination of common intention in a criminal assault case, considering the nature of injuries, weapons used, and the formation of common intention at the spur of the moment.

JUDGMENT :

(M. Zothankhuma, J.)

Heard Mr. J. Roy, learned Senior Counsel for the appellants. Also heard Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam for the State/respondent No.1 and Mr. N. Ahmed, learned Amicus Curiae for the respondent No.2.

2. This appeal has been filed against the judgment dated 21.12.2016 passed by the Additional Sessions Judge, Bilasipara, Dhubri in Sessions Case No.132/2006, by which the appellants Satyen Das @ Satyendra Narayan Das and Balen Das @ Bulen Das have been convicted under Sections 323/34 IPC and sentenced to undergo rigorous imprisonment for 1(one) year. The other two appellants, namely, Manoj Das and Khargeswar Das have been convicted under Sections 302/34 IPC and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.5,000/-(Rupees five thousand) each, in default of payment of fine, they are to suffer rigorous imprisonment for 6(six) months. The appellants Manoj Das and Khargeswar Das were also convicted under Sections 323/34 IPC and sentenced to undergo rigorous imprisonment for 1(one) year.

3. It may be mentioned here that the appellant Satyen Das is the father of the other appellants, i.e. Manoj Das, Khargeswar Das and Bulen Das.

4. The prosecution case, in brief, is that an FIR dated 16.05.2003 was submitted by the wife of the deceased, Prosecution Witness (PW) No.7 to the In-charge of the Raniganj Police Out Post. The FIR stated that around 5 P.M. on 15.05.2003, the appellants who were their neighbours assaulted the informant’s husband in his house, making him unconscious. While fleeing from the place, they also assaulted the informant’s relative, Shri Pratap Das (PW-3) who worked in their house. The informant also stated that all the appellants were armed with lathis and spears. Her husband was given medical treatment and as per doctor’s advice, they were taking him to Dhubri for better treatment. However, the informant’s husband died on the way.

5. In pursuance to the FIR, Bilasipara P.S. Case No.76/2003 under Sections 302/323/34 IPC was registered on 17.05.2003. After investigation of the case by the Investigating Officer, who found a prima-facie case against the appellants under Sections 323/302/34 IPC, he submitted the charge-sheet.

6. The learned Trial Court framed charges under Section 302 IPC read with Section 34 IPC and Section 323 IPC read with Section 34 IPC against all the appellants, to which they all pleaded not guilty and claimed to be tried.

7. The learned Trial Court thereafter examined 9(nine) Prosecution Witnesses (PW) and after examining the appellants under Section 313 Cr.P.C., came to a finding that the prosecution had been able to bring home the guilt of the appellants Satyen Das @ Satyendra Narayan Das and Balen Das @ Bulen Das under Sections 323 IPC read with Section 34 IPC. The learned Trial Court also came to a finding that Section 302 IPC had not been proved against the above two appellants. However, in respect of the appellants Manoj Das and Khargeswar Das, the learned Trial Court came to a finding that they were guilty of the offence under Sections 302/34 IPC and 323/34 IPC.

8. Subsequent to the conviction of the appellants in terms of the findings of the learned Trial Court, the appellants were sentenced, as reflected in the foregoing paragraphs.

9. Being aggrieved by their conviction and sentence, the present appeal has been filed. Mr. J. Roy, the learned Senior Counsel for the appellants submits that the evidence of the witnesses show that the assault made on the deceased had started with the cows of the appellants and the cows of the deceased fighting one another. It was due to the owners of the cows joining the fray that the appellants had suddenly, in the heat of the moment, assaulted the deceased. He submits that there was no pre-mediation or intention to kill the deceased and as such, the appellants should not have been convicted under Section 302 IPC, but could have been convicted under Section 304 Part II IPC.

10