| SooperKanoon Citation | sooperkanoon.com/130657 |
| Subject | ;Criminal |
| Court | Guwahati High Court |
| Decided On | Sep-21-2007 |
| Judge | A.B. Pal, J. |
| Appellant | Gedu Miah |
| Respondent | State of Tripura |
| Disposition | Appeal allowed |
A.B. Pal, J.
1. The challenge in this appeal is to the conviction of the appellant herein under Section 307 and 148 Indian Penal Code (for short, IPC) and sentence of rigorous imprisonment for seven years and six months respectively with a fine of Rs. 5000/- in the judgment dated 11.7.2001 by a learned Additional Session Judge, North Tripura, Kamalpur in Sessions Trial Case No. S.T. 8 (NT/KMP) 2000.
2. On 12.5.1999, in the mid-night, some villagers were guarding their village to check commission of offences like dacoity and burglary by miscreants. The persons guarding the village were Sri Bimal Ghashi (P.W.-2), Dwijendra Das (P.W.-3) and Babul Das (P.W.-4). At about I am they noticed a group of persons coming towards their village. With the light of torch they could identify only one of them, Gedu Miali, the appellant herein. He was known to them from before, being a resident of the adjacent village. He is a fisherman and used to visit the village often. The witnesses aforementioned could not recognize any other member of the said group. According to them Gedu Miah had a dao in his hand. When challenged by the witnesses, the members of the said group assured them they were not thieves. But the witnesses were not convicted. When confronted, one of them opened fire causing simple injuries to Dwijendra Das (P.W.-3) on his left thigh. The witnesses, however, could not say who had actually opened fire. None of them held Gedu Miah responsible for opening fire and causing injuries to Dwijendra Das. After the gun shot, the said group of persons had fled away. Gedu Miah also fled. The injured was taken to hospital where he gradually recovered.
His wife filed the FIR in the following mom-ing in Kamalpur police station setting in motion criminal investigation. Only Gedu Miah could be arrested and booked for the alleged offence. None of the said group of persons could be identified and arrested and no fire arms could be recovered. Gedu Miah was charged with committing offence punishable under Section 148 and 307 of the IPC. He was finally found guilty of the said offences leading to his conviction and sentence which are under challenge in this appeal.
3. I have heard learned Counsel for the parties.
4. The first and foremost question is whether there was an unlawful assembly, bearing in mind that a mere assembly of 5 or more persons by itself does not constitute an unlawful assembly. Section 141 provides that an assembly of five or more persons must have one or more of the five common objects specified in Section 141 IPC in order to designate it as unlawful assembly. Section 141 provides thus:
141. Unlawful assembly--An assembly of five or more persons is designated an 'unlawful assembly', if the common object of the persons composing that assembly is-
First--To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or The Legislature of any State, or any public servant in the exercise of lawful power of such public servant; or
Second--To resist the execution of any law, or of any legal process; or
Third--To commit any mischief or criminal trespass, or other offence; or
Fourth--By means of criminal force, or show of criminal force, to any person to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right or which he is in possession or enjoyment, or to enforce any right or supposed right; or
Fifth--By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.
This definition of unlawful assembly carries much significance in the present case for the reason that the appellant has been punished only because he was allegedly found to be a member of an unlawful assembly one of whom (not the appellant) opened fire from his gun causing injuries to Dwijendra Das (P.W.-3). The deposition of the prosecution witnesses, when scanned, would show that there is no unanimity about the exact number of persons who were found by the witnesses. Dwijendra Das (P.W.-3) told his wife Ka-mala Rani Das (P.W.-l) that some miscreants were found by him coming towards the village being armed with gun and dao and Gedu Miah was with them. In cross-examination part of her deposition she admitted that Gedu Miah was known to her as he used to visit her house. He carried on fish business.
5. According to P.W.-2 Bimal Ghashi there were 5-6 miscreants who were found coming to the village and by the light of torch in their hands they could identify only Gedu Miah. He admitted that Gedu Miah disclosed his identity when challenged. But when other persons fled away after opening fire, Gedu Miah also fled with them.
6. According to Dwijendra Das (P.W.-3), number of those miscreants were 10-12 and he could identify only Gedu Miah, who had a dao in his hand. He asked Gedu Miah why he was there in the village with the miscreants, but just at that time one member of the said group opened fire and then all of them fled away. Gedu Miah also joined them in the retreat.
7. Babul Das, (P.W.-4) stated that 7-8 miscreants were found coming towards the village with dao and gun and could identify only Gedu Miah, the appellant herein.
8. Thus, from the above statements of witnesses it is clear that Gedu Miah is a fish merchant and he used to visit the village of the witnesses. He was known to all of them. As he is a resident of the adjacent village and known to them, he could be identified by the witnesses easily. As none of the strangers could be identified, it is apparent that they were not known to the witnesses. But none of the witnesses stated what could be the purpose of visit of the said persons in the village and whether the same can be said to be one of the five objects mentioned in Section 141 IPC. There is even no whisper in the depositions of the witnesses why they designated those unknown persons as miscreants and why they did not try to ascertain the purpose of their visit. Mere presence of some unknown persons, five or more, does not automatically make them an unlawful assembly unless it can be alleged and proved that one or more of the objects mentioned in Section 141 IPC was their object of visiting the village.
The prosecution witness admitted that at the time of occurrence a pump machine was operating to pump out waters from the pond of one Amal Debnath (not examined). Gedu Miah claimed that he was there near the pond to operate the machine for the purpose of fishing from the said pond.
9. The appellant examined two witnesses who were from his village and were present near the place of occurrence. According to them Gedu Miah was operating the pump. When asked appellant could not tell them why there was a confrontation between two groups of people and who were the strangers. If the evidence of the PWs and the DWs are harmoniously read together, one impression would certainly take shape in favour of Gedu Miah that he was present at the time of occurrence for operating a pump in the pond of Amal Debnath. Admittedly he had no gun in his hand and, therefore, not responsible for opening fire or causing injuries to Dwijenda Das (P.W. 3). According to prosecution his only fault is that he was found in association with a group of unknown persons in the village whose number could not, however, be precisely stated by the witnesses. If there is no unlawful assembly for absence of any of the five objects enumerated in Section 141 IPC or if Gedu Miah is not a member of that assembly, he cannot be held responsible for causing injury to P.W.-3.
10. The night was dark and the source of light was only torch for identification. Identification of Gedu Miah is not in dispute. His presence in the village has been explained by D.Ws. His mere presence in the village in midnight when incidentally, a group of unknown persons also visited the village for unknown purposes cannot be any ground to take the view that he was one of those unknown persons. It is also not possible to say that those unknown persons constituted an unlawful assembly. None of the witnesses did even whisper that the visitors had any of the objects mentioned in Section 141 of the IPC.
11. Learned trial Court, while convicting the appellant, did not consider that there must be sufficient materials to bring home the charge that one or more of the five objects was the purpose of visit of those unknown persons to designate them as unlawful assembly. Under the circumstances a reasonable hypothesis can be drawn that Gedu Miah being a fisherman was present at that time to pump out water from the pond of Amal Debnath for the purpose of fishing and it just happened that some unknown persons also visited the village at that point of time. If mere presence of the witnesses in the mid-night in the village does not make them miscreants, so also mere presence of Gedu Miah in the village does not make him a miscreant only because just at that time a group of unknown persons were found in the village whose identity and purpose of visit could not be ascertained. Such persons cannot, therefore, be said to be 'miscreants' or members of an 'unlawful assembly'. Consequently, Gedu Miah, the appellant herein, cannot be said to be responsible for an act done by any other member of that assembly.
12. For the reasons and discussions aforementioned the judgment impugned does not appear to be based on sufficient evidence and, therefore, the appeal having merit is allowed. The judgment of conviction and sentence against Gedu Miah are hereby set aside and quashed. The appellant is thus set at liberty.
Appeal allowed.
Send down the case records.