For the Appellants: Mr Gaurav Agarwal, Mrs Charu Ambwani, me Tayenjam Momo Singh, Advocates
For the respondents: Mrs Debojit Borkakati, Advocate.
The conviction of the appellants under section 302/34 of the Indian penal Code (IPC) by the Session judge, North Lakhimpur has been affirmed by the high court sentencing them to life imprisonment along with fine and late stipulation. This, the present appeal by the appellants.
The prosecution supposed that the two deceased, Abdul Motin and Abdul Barek we're assaulted on 5th August 2005 around 6 pm while they were coming back from the market on bicycles along with others Abdul Barek's death was on the spot Abdul Morin died in the hospital during treatment the same night originally there were five named accused persons.
Shri Gaurav Agarwal learned counsel for the appellants submitted that if two of his accused have been acquitted giving the advantage of double based on the same proof the conviction of the appellant is not justified and they two are entitled to acquittal on the advantage of the doubt. There are many inconsistencies in the proof of eye witness The occurrence took place after the darkness inundate making identification doubtful depending on the cross-examination. The prosecution Has not examined either of them. The eye witness has disposed of assault upon the two deceased. The recoveries attributed to the appellants have not been believed it was lastly submitted that no charge had been submitted.
Learned counsel for the state submitted that the eyewitnesses are consistent about the participation of the appellants about the assault. The acquittal of the two co-accused on the advantage of doubt can be of no avail to the appellant given the nature of proof available about the mutual intention is established by the facts that the appellants were armed and lay in wait for the two deceased who were approached while coming back from the market and the assault followed leading to the death of the two.
charges were framed against the five accused under section 147, 341 and 302 IPC the charge under section 341 IPC was held not to have been proved against the accused the session judge acquitted the accused.
In facts to be proved and the evidence to be adducted concerning be charged under section 149 would be same if the charge were under section 34. Then the failure to charge the accused under section 34 could not result in any preconception and such cases, the substitution of second 34 for section 149 must be held to be. a formal matter
Appellant no 3 assaulted Abdul Motion and injured him the injured tried to run away from the place of occurrence he was chased by the accused person and got caught. Mahmud Ali was brutally assaulted he was then dragged to the spot where Abdul Barek was lying the injured was taken to the hospital and died at the same night, In any event, it is apparent that the parties were known to each other before identification in the dust can't be doubted.
Therefore there is no reason to doubt the presence and assault on the two deceased by the appellant to grant them acquittal on any advantage of doubt or equality with the acquitted accused merely because no appeal has been preferred.
That leaves for the consideration he submission of Shri Agrawal the appellant is entitled to acquittal as he can't be said to have shared any similar intentions with appellants and who are liable for their acts same interest include of several persons acting in unison to achieve a common purpose though there is a difference in their roles. The role may be active or passive is not necessary
In Ramaswami Avyangar vs state of T N to establish common intention, it was observed as follows
The act committed by different confederates in criminal action might be different but all must in one way or the other participants and engage in the criminal enterprise, for example, one may only stand guard to prevent any person coming to the relief of the victim or may otherwise facilitate the execution of the common design.
Coming to the facts of the current case the appellant lay in waiting along with the other two appellants who were armed the appellant stopped the teo deceased who were coming back from the market the assault started after the deceased had halted that there was some dispute with relation to money is apparent from the proof of the witnesses Abdul Barek died on the spot as a result of a brutal assault
There is no reason to grant any advantage to appealing on the plea that there is not any role or act of assault attributed to him saying no about the existence of common intentions for that reason
This results that there is no reason to interfere with the supposed and sentences of the appellants this appeal is dismissed.
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