T.C. Das, J.
1. Every homicidal action was termed as felonious, unless it was justified or, within the limits described as excusable. A physical attack upon a harmless man causing him to suffer a fatal effect, is termed as heinous and brutal action unexcusable in law without any legal, valid, and exceptionally reasonable cause. If life is taken by an action of atrocious and brutal act, if proved, there is no escape than to suffer the consequence of legal verdict.
2. We are dealing with such a case where the prosecution alleges that the 11 accused persons formed an unlawful assembly and attacked Khumanthem Maimu Singh in a helpless condition by trespassing into his house forcibly, by breaking open the door in a broad day light on 20-5-1974. The prosecution alleges that the brutal death of the above-named Maimu Singh was caused by the accused-appellants and their associates, This is the reason why the accused-appellants were hauled up before the learned Additional Sessions Judge, Manipur to face their trial under the various provisions of the I.P.C. in Sessions Trial No. 71/74/11 of 1974. On completion of the trial, the accused appellants were convicted as under:
(a) Accused-appellant No. 2, Irengbam. Kuber Singh was convicted and he was sentenced under Section 302/149, I.P.C. and under Section 204, I.P.C. separately.
(b) Accused-appellant No. 4, Oinam Tomba Singh was convicted under Section 302/149, I.P.C.
3. Both have been convicted for the imprisonment for life. They were further charged and convicted under Sections 149/326, 448/149 and under Section 148, I.P.C. The learned trial Court passed a separate sentence upon them as well under Section 326/149, I.P.C. to undergo three years rigorous imprisonment along with a fine of Rs. 200/-, in default, to undergo rigorous imprisonment for a period of three months more. Both the accused-appellants were further sentenced under Section 448 read with 149, I.P.C. for one year's R. I. As regards the conviction under 148, I.P.C. they were sentenced to one year R. I., each. The sentences were to run concurrently. A separate sentence was passed against accused-appellant No. 2, Kuber Singh, under Section 324, I.P.C. awarding him a sentence of imprisonment for a further period of one year.
4. The learned trial Court convicted all the remaining accused-appellants under Section 326 read with Section 149, under Section 448 read with Section 149, I.P.C. and also under Section 148, I.P.C. and awarded the sentence in terms of accused-appellants Nos. 2 and 4 so far it related to the above offences. All the sentences were to run concurrently.
5. The accused-appellants being aggrieved by the conviction and sentence passed by the learned Trial Court, have preferred this appeal from Jail. However, Mr. M. Charugopal Singh has appeared on behalf of the appellants as Amicus Curiae.
6. The prosecution case may be summarised thus:
7. On the fateful day on 20-5-1974, while the deceased Maimu Singh was staying at his house at Sandangkhong village with one of his associates, namely, Nongyai Singh, the accused-appellants, along with 40/50 other unknown persons, armed with deadly weapons like dao, sword, thangjou etc., came shouting towards the house of Maimu Singh at about 12.30 P. M. and a few of them forcibly entered into the house of Maimu Singh by breaking open the door of the house. As the door was at that time bolted from inside by his wife Damayanti Devi (P. W. 1) with a desire so that these people, whom she saw from a distance while she went to fetch water, should not at least enter into the house. P. W. 1 apprehended that these accused persons along with others while approaching their house, must have some evil intention or design fo attack her husband, but her efforts failed. According to the prosecution, as the accused persons along with others formed an unlawful assembly by carrying lethal weapons, must had the common intention to inflict injury on Maimu Singh and as such they had to enter the house bv breaking open the door and some of them assaulted Maimu Singh, the deceased and his associate, Nongyai Singh, who happened to be along with Maimu Singh inside the house. The prosecution further alleged that the accused-appellants Nos. 2 and 4, namely, Irengbam Kuber Singh and Oinam Tomba Singh, committed the assault on the person of Maimu Singh by inflicting injury by khukri, dao etc., on the vital parts of his body, namely, neck, head etc. The prosecution further stated that the appellants did not stop there. They further assaulted Nongyai Singh in such a brutal manner as consequence of which he became unconscious. The accused-appellants, according to the prosecution, even then did not stop. They further assaulted Maimu Singh, threw him in the courtyard and in course of that while P. W. 1 protested they inflicted injury on her as a result of which she sustained cut injuries on her hand. The prosecution narrated the story about the particular assault by individual accused upon the deceased Maimu Singh, Nongyai Singh, and Damayanti Devi (P. W. 1).
8. An F.I.R. was lodged by P. W. 2, Th. Ibotombi Singh, at the Moirang Police Station on the same day at about 4.30 P. M. to the said effect. On receipt of the F.I.R. police started investigation and after completion of the investigation submitted charge-sheet against the accused-appellants to stand their trial. This is how the accused-appellants were hauled up to face their trial in the Court of the learned Sessions Judge under various provisions of the I.P.C. as narrated above. The learned Sessions Judge framed charge against the appellants under Section 302/149, I.P.C. because, as a result of injury, Maimu Singh died almost instantaneously before he could be given any medical aid. Another charge was framed under Section 307/149, I.P.C. against the accused-appellants for attempting to commit murder of Nongyai Singh, but subsequently the learned trial Court acquitted the accused persons under the said charge as there was no evidence as to the assault on Nongyai Singh, which position was admitted by the learned Public Prosecutor.
9. We have heard Mr. M. Charugopal Singh, the learned Counsel for the appellants as well as Mr. Th. Munindra Kumar Singh, the learned Public Prosecutor at length. The main plank of the prosecution case was based on the evidence of P. Ws. 1, 3, 6, 7, 9 and 10. The prosecution examined as many as 16 witnesses including the Investigating Officer and the Medical Officers who treated P. W. 1 and held post mortem examination on the dead body of the deceased Maimu Singh. In this appeal the main consideration for us appears to be on two counts, namely, (1) as to whether the material evidence on record either oral or circumstantial, disclosed that these accused-appellants formed an unlawful assembly along with others and in furtherance of their common object, inflicted fatal injury to Maimu Singh which resulted in his death and also inflicted injury to P. W. 1 in course of their unlawful action; and (2) as to whether the eye-witnesses, as termed by the prosecution, could properly identify and detect the accused-appellants and that their individual unlawful activities during the course of occurrence relating to their particular action caused injury and assault upon the couple. Before we deal with the individual action, as narrated by the prosecution alleged to have been committed by the accused-appellants, let us consider as to whether the accused-appellants formed an unlawful assembly with common object in furtherance of which they committed the crime, as alleged. In order to convict the accused-appellants for the offence of forming an unlawful assembly, we have to take the aid of Section 149 I.P.C. Now the question poses before us - what is the duty of the Court in this respect? Certainly, the Court will have to judge the evidence; consider the evidence and the nature and circumstances of the facts of the case and also the different actions alleged to have been committed by the accused-appellants carrying with them, the weapons which may be sufficient to inflict any kind of injury including that which might be fatal, if inflicted. It is now settled law that whenever a Court convicts any person for an offence with the aid of Section 149, I.P.C. a clear finding regarding a common object of the unlawful assembly must be given and the evidence discussed must show not only the nature of the common object but also that the object was unlawful. Before awarding a conviction under Section 149, I.P.C. the essential ingredients of the same provision of law must be established. Section 149, I.P.C. creates specific offence and deals with the punishment of that offence. There must be a common object, (emphasis given on object). This proposition of law finds support from the decision of their Lordships of the Supreme Court in Bhu Deo v. State of Bihar reported in (1981) 2 SCJ 246 : 1981 Cri LJ 725. Judging the evidence of the witnesses from the above angle we are to see as to whether we will be able to find a similar feature in this particular case. A precious life was done to death by the brutal action of the accused-appellants, as alleged by the prosecution. If we find that the prosecution has been able to establish the offence alleged to have been committed by the accused-appellants beyond any doubt, the accused-appellants will have to face the legal verdict for the consequences of their offence.
10. The learned Counsel for the appellants has submitted that the evidence of P. Ws. 1, 3 and 9, whom the prosecution cited as eye-witnesses, should not be believed due to the material discrepancies in their evidence contradicting each other. The learned Counsel relied upon those evidence and referred to us that the evidence of P. Ws. 1 and 9 are contradictory to each other and that the evidence of P. W. 3 is to that extent whose evidence, if read, a doubt will be created that p. W. 9 was not an eyewitness to the occurrence; inasmuch as her name was not mentioned by P.W. 3 as one of the inmates in the house of Maimu Singh. The learned Counsel further referred us the evidence of P.W. 1 and submitted that the presence of P. W. 9 and her brother as the inmates of the house during the occurrence was not mentioned and according to the learned Counsel, two witnesses, namely, P. Ws. 1 and 3 in their evidence failed to mention the presence of P. W. 9 at the place of occurrence, no importance should be given to the evidence of P. W. 9 and it must be presumed that her evidence was not true and it must be either tutored or deliberately false at the instance of the prosecution. The learned Counsel further urged that if the evidence of P. Ws. 1 and 3 can be believed on that score then the evidence of P. W. 9 has to be totally discarded. Therefore, according to the learned Counsel, P. Ws. 1 and 3 are the two remaining witnesses to be discussed in support of the prosecution case. P. W. 3 was not an eye-witness, as submitted by the learned Counsel, and therefore the only witness, P. W. 1, who according to the learned Counsel, is interested and full of exaggeration only to implicate all the accused-appellants by entrusting them to different action showing the assault caused by each of them to her husband and Nongyai Singh as well as to herself and that there being no further corroboration, the evidence of P. W. 1 cannot be the basis to convict the accused-appellants.
11. In course of argument the learned Counsel has also drawn our attention by referring to the medical report, Ext. p/9 and drew our attention that the Autopsy Surgeon in his post mortem report failed to support the contention of P. W. 1 as to the nature of injury inflicted by the accused-appellant upon her husband. The learned Counsel further submitted that the Surgeon who did the post mortem examination has clearly narrated the nature of injuries found on the dead body of deceased Maimu Singh and it is revealed from the said report in item No. 4 under the head 'Injury' only a lacerated wound 10' x 1' x bone deep extending from the right side of the neck across the right side of the face up to infra orbital margin. The submission of the learned Counsel is to the effect that the nature of the injury as found by the Doctor could not tally with the nature of injury alleged to have been inflicted by the accused-appellants upon the husband of P. W. 1 (Maimu Singh) as narrated by her in her evidence. Therefore, without any corroboration on this material particular it could not be held that the nature of injury alleged to have been inflicted by the accused-appellants upon Maimu Singh, could be fatal injury sufficient to cause death and, as such, the learned Counsel has made a submission that under Section 302/149, I.P.C. as found proved by the learned trial Court against the appellants Nos. 2 and 4 is erroneous and cannot be sustained.
12. To appreciate the various contentions raised by the learned Counsel for the appellants let us examine ourselves the evidence of P. Ws. 1, 3, 6, 7, 9 and 10, upon whose evidence the learned Public Prosecutor has also given sufficient stress to base the conviction of the accused-appellants.
13. Turning to the evidence of P. W. 1, Sanasam Ningol Khumanthem Ongbi Damayanti Devi, we find the following facts:
(1) She has stated that on the date of occurrence at about 12.30 P.M. while she went to fetch water from the Imphal River, she saw the accused persons along with others numbering about 20/30, armed with deadly weapons like, dao, khukri, stick etc. coming towards her house shouting the name of her husband to kill him and to burn their house. She has hastened to her house due to fear and no sooner she reached the house, she shut the door and bolted it from inside while her husband and Nongyai Singh were both inside at that time.
(2) The accused persons along with others surrounded their house and accused Tolpishak Singh and Toyai Singh were seen breaking the door which she saw through a hole and after breaking the door, all the accused persons entered inside their house.
(3) The accused-appellant Kuber Singh assaulted her husband with a Khukri on his neck when accused Kuber Singh further aimed his khukri for the second time, she interfered and attempted to resist at which she sustained injury on her left hand between thumb and index finger. Accused-appellant Oinam Tomba Singh assaulted her husband with sword.
(4) Accused-appellant Babu Singh and Biramangol Singh assaulted her husband with dao. Accused-appellants Angou Mia, Rabei Singh, Toyai Singh, Kaman Mia and Leiham Mia made 'Pheijeichingba' (pulling a person by holding opposite hands and legs).
(5) The accused persons after committing assault, threw her husband to the courtyard where she raised hulla saying 'Mee Hatle, Mee Hatle' (man had been killed, man had been killed).
(6) Accused-appellant Rabei Singh and Kaman kicked her injured husband on his private part in order to hasten the death.
14. The above are the actions and parts played by each of the accused-appellants who assaulted P. W. 1, her husband-deceased Maimu Singh, and another inmate Nongyai Singh. However, we are not considering the assaults of the accused persons alleged to have been made on Nongyai Singh as the matter is not before us for consideration. P. W. 1 has also stated as follows:
After a while, Irebot Singh and his brother Tombi Singh came to my house. They took my injured husband inside my house as my husband was not yet dead...After a while my husband succumbed to his injuries and in the evening of the same day a police party and some of my villagers took the dead body of my late husband to Lamphel Hospital.
15. She has stated categorically that Nongyai Singh was residing at her house as 'Tangba' with one daughter for the purpose of cultivation work. According to the prosecution, the daughter, as named by this p. W. 1, is no one other than P. W- 9. This P. W. 1 was treated by the Doctor who certified her injuries on her left hand. The defence cross-examined this witness at length and made faint attempt to bring some discrepancies with regard to the proper identification of the accused and their different actions of assault upon her husband and on her person. The defence suggested while cross-examining her, that the deceased Maimu Singh had enmity with others as he was involved in connection with a murder case and further suggested that her husband was killed by somebody else. There is no material evidence on record to show about the involvement of the deceased Maimu Singh in any criminal case as suggested by the defence. There may be discrepancies here and some, contradictions there in course of deposing in Court by a witness as to the manner and details. In our considered opinion that cannot be a ground to discard the entire testimony of a witness if otherwise it is found that the evidence of the witness is believable, true, untutored and without any malice. The defence failed to suggest any of those disqualifications with regard to the witness P. W. 1. An important factor that cannot be lost sight of is, that this P. W. 1 had no occasion to implicate the accused-appellants for any reason whatsoever. She is a most natural witness who even could not tolerate the inhuman action of the accused-appellants upon her husband and made a vain attempt to protect her husband from the brutal attack as a consequence of which she received injury as narrated by her and supported by medical evidence.
16. Turning to the evidence of P.W. 9, Nameirakpam Leirentombi Devi, we find that she happened to be in the house of deceased Maimu Singh on the date of occurrence along with her father, Nongyai Singh, she has categorically stated in her evidence the following facts:
(1) On the date of occurrence at about 12.30 P.M. about 30/40 persons holding daos, axe etc. rushed to the house of deceased Maimu Singh shouting all the while 'Hatle' (kill).
(2) P. W. X, Damayanti Devi bolted the front door. But some of them broke open the door and about 10 persons entered into the house. During that time her father, Nongyai Singh and Maimu Singh the deceased, were inside the house. Her brother, Ibohal Singh was also inside the house of Maimu Singh. Two school going children, namely, Raghumani Singh and Bhagyabati Devi, the son and daughter, respectively of deceased Maimu Singh, left their house for school after taking their meal.
(3) After entering, some of the accused persons caught hold of Maimu Singh while the rest assaulted him on the head and other parts of the body by dao etc. Her father, Nongyai Singh was also assaulted by them. While P.W. 1 attempted to resist and rescue her husband, one of the culprits assaulted with a dao in her hand.
(4) She knew the accused persons from before the occurrence as they used to visit the house of Maimu Singh occasionally. She named accused Kuber, Tomba, Toyai, Angou Mia and she forgot the names of other persons. She saw the accused Kuber and Tomba Singh assaulting deceased Maimu Singh with 'thang' on his head and other parts of his body.
(5) She could not say the part played by each of accused other than the said two accused as she was getting nervous by then.
(6) Maimu Singh was taken out by the culprits from inside the house and then all the culprits had left the house of Maimu Singh.
(7) Irabot Singh and Tombi Singh rushed in and they took Maimu Singh inside the house. She categorically said that by that time Maimu Singh was no longer alive.
17. This witness, P. W. 9, however, could not give the vivid description as to which weapon was being carried by each of the accused persons except accused Kuber Singh and Tomba Singh, who carried 'thangs' and assaulted on the person of Maimu Singh.
18. In cross-examination, we could find that she properly identified accused Kuber Singh, Tomba Singh, Toyai Singh and Angou Mia. In her further cross-examination, however, she has admitted that she did not state before the police that Raghumani Singh and Bhagyabati Devi, son and daughter, respectively, of Maimu Singh, returned home for taking their meal during their school leizure time.
19. The learned Counsel for the ap-pellants has drawn our attention to certain statements made by lhis witness, namely, about the period of her stay with her grandmother as well as the stay in the house of Maimu Singh. We have gone through the evidence of this witness with regard to the contention as made by the learned Counsel and we do not find any vital discrepancy in this regard. On proper scanning of the evidence of P. W. 9, we do not find any material substance to disbelieve this witness as to the formation of unlawful assembly by the accused-appellants and in furtherance of their common object, inflicting serious injuries to P. W. 1, to her husband and the other inmate, namely Nongyai Singh, in course of which Maimu Singh was done to death. We find sufficient corroboration of the testimony of P. W. 1 and P. W. 9 in material particulars.
20. The prosecution has examined Nongthoujam Sangai Singh, P. W- 10, who has stated that he heard shouting of the persons who were proceeding towards the house of Maimu Singh prohibiting others not to come out. This witness was declared hostile by the prosecution. We have gone through the entire evidence of P. W. 10 and we do not find that this witness was of any help for the prosecution.
21. P. W. 3, Chanambam Leipakma-cha Singh, was undoubtedly not an eyewitness to the occurrence. Though this witness wanted to say something about some of the accused, we do not give any importance to the testimony of this witness. We are of the opinion that this P. W. 3 was either confused or tried to be exaggerated in his statement not based on any material fact, stated to be seen by him.
22. We are now left with the evidence of P. Ws. 6 and 7.
23. P. W. 6 is the minor son of the deceased aged about 12 years. On the date of occurrence, as we find from the evidence, this witness, along with his sister went to school at 9.30 A.M. and while they came in the leisure time they saw about 30/40 persons including the accused persons coming and entering into their house. This witness has stated in his evidence about the coming of the accused persons along with 30/40 others with 'thangs', 'lathis' etc. in their hands, towards their house shouting 'Hatlo' (kill, kill) and no sooner they arrived the house, they surrounded the entire house and some of them broke open the front door and entered inside the house. He has stated further that at that time he was at a distance of 50 ft. away from the house. This witness could recognise all the accused-appellants. According to this witness the accused persons bodily removed Maimu Singh from inside the house to the courtyard at which the witness raised hue and cry and requested the accused-appellants to save the life of his father to which they paid no heed. In cross-examination, the defence could bring out from the mouth of this witness what the prosecution failed to prove. The lacuna having been fulfilled, we have no hesitation to conclude that this P. W. 6 and his sister also witnessed the game played by the accused-appellants during the course of occurrence as they came from school during leizure hours to take their mid-day meal.
24. The evidence of P. W. 7, Khumanthem Bhaigyabati Devi, appears to be more elaborate in this respect as brought out by the defence in course of cross-examination. P. W. 7 in her cross-ex-amination has stated that the recess period of their school is from 12 to 1 P.M. and within the said period she and her brother, P. W. 6, came to take their mid-day meal. The incident occurred at 12.30 P.M. and the said fact has not been controverted by the defence in any manner as we find on going through the evidence on record, more particularly on going through the evidence of this witness.
25. The plea of defence is a simple denial. The further defence of the accused-appellants is that the deceased bore grudge upon the accused-appellants on a land dispute belonging to a cooperative society of which the accused-appellants alleged to be members. It is true that the burden to prove the negative or to prove innocence is not so onerous as that of the prosecution to prove the guilt of the accused. No doubt the burden of proof heavily lies on the prosecution in respect of two items, namely, the legal burden and the burden to adduce evidence which should be convincing, reasonable, truthful, cogent and without any malice.
26. Our attention was drawn to the medical reports and the injury reports as exhibited in this case by the prosecution showing the nature of injury caused to the deceased and to P. W. 1. The Doctor who held the post mortem examination (P. W. 11) opined in his evidence that the death of the deceased was due to fatal injury, namely, injury No. 4 caused to him and that the injury of this nature as injury No. 4 by itself alone was sufficient to cause the death of the deceased. Injury No. 1 was also a fatal injury which alone could have caused the death in the ordinary course of nature. The true version of the Doctor was to the following effect:
The injury on the next i.e. (Injury No. 4) was a fatal injury and by itself alone the death of the deceased could be caused...Injury No. 1 on the parietal area was also one of the fatal and it alone could cause the death of the deceased.
Injury Nos. 1 and 4 are as follows:
1 One lacerated wound over the right parietal area of the skull about 3' above the right ear, dim. - 41/2' x 1' and brain deep.
4. One lacerated wound extending from right side of the neck across the right of the face up to infra orbital margin - 10' x 1' and bone deep.
27. On considering the evidence on record as to the death of Maimu Singh, there is no doubt that he died of injuries which were inflicted on him. The death of Maimu Singh has not been disputed by the defence.
28. We may refer to the evidence of P. W. 12 as well as the evidence of P. W. 16 who are the Investigating Officers in this case. From the evidence of P. W. 12 we find that on receipt of the F.I.R. lodged by P. W. 2 he registered a case and rushed to the place of occurrence and found the injured person. P. W. 12, during the course of investigation collected some information and he seized the material exhibits used as weapons by the assailants. P. W. 16 is another Investigating Officer who noticed blood mark at the place of occurrence in the compound and inside the house of Maimu Singh.
29. The learned Public Prosecutor has referred to us : 1979CriLJ856 and : 1980CriLJ829 : 1980CriLJ735 : 1979CriLJ7 . : 1972CriLJ1313 and : 1973CriLJ17 in support of his contention as to the formation of unlawful assembly as well as the various parts played by the accused-appellants in inflicting injuries to the deceased as well as to P. W. 1. It is settled law that in case of a charge under Section 302 read with Section 149, I.P.C. the prosecution is not obliged to prove which specific overt act was played by which of the accused-appellants. It is sufficient, if it shows that as a participant of the unlawful assembly a particular accused was sharing the common object of the same.
30. We have also gone through the evidence of defence witnesses. The defence has examined as many as 3 witnesses. We have paid our due attention to the deposition of Soram Komol Singh, who was examined as C. W. 1. On going through the evidence of the D. Ws. we do not find any material whatsoever to disbelieve the prosecution story as to the formation of unlawful assembly by the accused-appellants and the assaults committed by the members of the assembly on Maimu Singh and P. W. 1.
31. We have gone through the evidence of all the witnesses and also we have not left the exhibits unnoticed. On proper scrutiny of the evidence we find that all the accused-appellants may not be equally responsible for committing the murder and assault on Maimu Singh as well as P. W. 1. Our considered opinion is that the accused-appellants, named by P. Ws. l and 9, who played different roles during the course of assault can be taken note of. The evidence of P. Ws. to the effect that accused-appellant Rabei Singh and Kaman Mia kicked her husband (Maimu Singh) on his private part remains without any corroboration. This part of evidence remains uncorroborated even by the medical evidence. Therefore, it will be unsafe to hold these two accused-appellants guilty on the said allegation of P. W. 1. Furthermore, their presence in the unlawful assembly appears to be doubtful. We, therefore, hold that accused-appellants Rabei Singh and Kaman Mia cannot be held guilty of the offence alleged by the prosecution, either under Section 326/149 or under Section 448/149, I.P.C. The learned trial Court, according to us, was not correct in holding the two accused-appellants as guilty under the above provisions of the I.P.C. We, therefore, acquit these two appellants, namely, Rabei Singh and Kaman Mia.
32. In case of other accused-appellants, our considered opinion is that the prosecution by adducing evidence, as discussed above, has been able to prove their guilt beyond any shadow of doubt and as such the findings of the learned trial Court cannot be altered. Accordingly the conviction and sentence passed by the learned trial Court in respect of the other appellants are upheld.
33. In the result the appeal so far in respect of appellant Rabei Singh and Kaman Mia is allowed and for the remaining accused-appellants, the appeal stands dismissed. The accused persons (except Rabei Singh and Kaman Mia) are directed to surrender to their bail to serve out the sentence.
K.N. Saikia, J.
34. I agree.