To convict under Section 148, the prosecution must prove unlawful assembly and its intent, which was not established, leading to an acquittal due to doubts favoring the accused.

JUDGMENT :

KAUSHIK GOSWAMI, J.

1. Heard Mr. M. K. Das, learned Legal Aid Counsel appearing for the appellants. Also heard Mr. P. Borthakur, learned Additional Public Prosecutor for the State respondent.

2. These criminal appeals are being presented against the judgment & order dated 23.08.2011, passed by the learned Sessions Judge, Sivasagar (hereinafter referred to as the “trial Court”), in Sessions Case No.115(S-S)/2006, whereby the appellants/accused persons were convicted under Section 148 of the INDIAN PENAL CODE , 1860 (hereinafter referred to as “IPC”) with simple imprisonment for 6(six) months each, and under Section 304 Part-II of the IPC, read with Section 149 of the IPC with rigorous imprisonment for 4(four) years, with the direction to run both the sentences concurrently.

3. Both the criminal appeals having been arisen out from the aforesaid judgment & order of the trial Court, is being taken up together for disposal by this common judgment.

4. The brief facts of the case are that PW-1 lodged an F.I.R. on 08.03.2004, alleging, inter alia, that on 07.03.2004, the appellants/accused persons No. 1, 3 and 5 in Criminal Appeal No.179 of 2011, along with some others, assaulted his brother Nathu Borgohain (hereinafter referred to as the “deceased”) on his head and various parts of his body with dao, sticks, etc., and thus, caused grievous injury to him, and that after being admitted to the hospital, he expired on 08.03.2004. Accordingly, a case was registered as Sivasagar P.S. Case No.75/2004, under Section 147 /148/149/302 of the IPC. Thereafter, PW-23 conducted the investigation, wherein the statement of the informant and the other witnesses were recorded under Section 161 of the Code of Criminal Procedure (hereinafter referred to as “Cr.P.C.”), and after completion of investigation, submitted a Charge-sheet against all the appellants/accused persons under Section 147 /148/149/341/342/302 of the IPC.

5. Upon appearance of the appellants/accused persons before the trial Court, the trial Court framed charges under Section 148 /342 of the IPC and under Section 302 /149 of the IPC. The prosecution examined 24(twenty four) nos. of prosecution witnesses, who were also cross-examined by the defence side. Thereafter, incriminating evidence was put to the appellants/accused persons under Section 313 of the Cr.P.C., wherein the appellants/accused persons had generally denied all the incriminating circumstances; however, they had adduced the evidence of 3(three) nos. of defence witnesses. Upon completion of trial and hearing both sides, the appellants/accused persons were convicted and sentenced thereof. Against the aforesaid conviction and sentencing order, the present appeals have been filed.

6. Mr. M. K. Das, learned Legal Aid Counsel appearing for the appellants, submits that the prosecution has miserably failed to establish the charged offences beyond any reasonable doubt, and hence, the impugned judgment & order of the trial Court is totally erroneous and perverse. He further submits that there is no evidence whatsoever indicating that the appellants/accused persons had any role to play in the alleged murder of the deceased. He further submits that it has clearly come out from the prosecution evidence itself that one of the appellants/accused persons is a friend of the deceased and after the deceased misbehaved at a wedding in the neighbourhood, he was taken by the appellants/accused persons, including his friend, from there. He further submits that the defence has also, by adducing defence witnesses probabilized the aforesaid defence and the standard of