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2003 DIGILAW 262 (CAL)

JYOTISH BERA v. STATE OF WEST BENGAL

2003-05-23

GORACHAND DE, NARAYAN CHANDRA SIL

body2003
GORACHAND DE, J. ( 1 ) THIS appeal is directed against the judgment and order dated 9/04/1996 passed by Shri S. S. Sinha, Ld. Additional Sessions Judge, 2nd court, Midnapore in Sessions Trial No. XIX of April, 1992 which arose out of Nayagram p. S. Case No. 39 of 1990 dated 20-12-90 corresponding to G. R. Case No. 482 of 1990 of the Court of the Ld. SDJM, Jhargam convicting thereby all the appellants of the charges for commission of offence punishable under Sections 148 and 302/149 of the indian Penal Code and sentencing each of them to undergo Rigorous Imprisonment for a term of two years for the offence punishable under Section 148 of the Indian Penal code and also sentencing them to undergo imprisonment for life for the offences- punishable under Sections 302/149 of the Indian Penal Code. It was directed in the order that both the sentences were to run simultaneously. ( 2 ) ONE Soumendra Nath Das, Block Development Officer of Nayagram and Officer in-Charge of Nayagram panchayat Samity went to the Nayagram Police Station and handed over a written complaint at 09. 00 hrs. on 20-10-90 alleging that 20-10-90 was fixed on behalf of Panchayat Samity for taking charge of sailing of boat at Dahivasra ghat and accordingly, at 8. 30 a. m. he went to the police station with Sri Mrinal Patra, secretary of the Panchayat and asked the officer-in-Charge of the police station to accompany them. The Officer-in-Charge of the police station informed him that the car had been sent to some other place for a special work for which he would start when the car would come back. Accordingly, the Block development Officer asked Shri Patra to come with the vehicle of the police station after its arrival. But Shri Patra accompanied the Block Development Officer by his car. At about 8. 45 a. m. , both of them reached near Dahi ghat and leaving the vehicle on the road, started to go on foot for the ghat as the road was broken. On the way they met Jyotish Bera, President of Nayagram fishermen Co-operative Society and started to proceed along with him. Shri Patra was standing on the road and was talking to two persons. On the way they met Jyotish Bera, President of Nayagram fishermen Co-operative Society and started to proceed along with him. Shri Patra was standing on the road and was talking to two persons. The BDO proceeded further and having heard one hue and cry, he looked behind and saw that some persons armed with tangis, spears and axes came running and attacked Shri Patra. As a result of that attack, Shri Patra sustained bleeding injuries on head. The BDO asked the attacking persons to stop after proceeding some distance and saw that the body of Shri Patra fell down on the nearby field in bleeding condition. Later on he came to know that Mrinal patra died on that spot in that condition. At that time two persons threatened the BDO with bows, arrows and tangis and asked him to leave that place and also threatened him that his fate would be like that of Shri Patra unless he left that place at once. At that time, jyotish Bera also associated himself with the attacking persons and asked the BDO to leave the place and also threatened him. Being frightened, he left that place and stated everything before the Officer-in-charge of the Police station. On the way, the BDO also heard-that one Bimal Bolai was one of the attacking persons. On the basis of the said written complaint, nayagram P. S. Case No. 39/90 dated 20-10-90 under Sections 147, 148, 149/302 of the Indian Penal Code was started. ( 3 ) THE case was investigated by the police. In. course of investigation, the dead body was recovered from the field and sent for post mortem examination. Several witnesses were examined. Weapons of offence were recovered and as many as 25 persons were arrested in connection with the case and ultimately, charge-sheet No. 38 of 1991 dated 31-12-91 under Section 148/149/302 of the indian Penal Code was filed against the present seven appellants and also against one Kalipada Bera. However, prayer was made for discharge of the rest of the arrested persons. After supply of the copies of the case was committed to the Court of Sessions by an order dated 26-3-92. Since all the eight persons were on bail, the Id. However, prayer was made for discharge of the rest of the arrested persons. After supply of the copies of the case was committed to the Court of Sessions by an order dated 26-3-92. Since all the eight persons were on bail, the Id. SDJM at the time of committal of the case to the Court of sessions allowed the prayer of the accused persons to remain on the previous bail till the order of confirmation by the Id. Sessions judge, Midnapore. ( 4 ) BEFORE the Sessions Court, all the eight accused persons appeared and they were allowed to remain on the same bail and the case was transferred to the Additional sessions Judge, 2nd Court, Midnapore. Charges under Section 148 of the Indian Penal Code and S. 302/149 of the Indian Penal Code were framed against the eight accused persons on 9-6-92. All the accused persons pleaded not guilty to the charges and claimed to be tried. Accordingly, 22 witnesses were examined on behalf of the prosecution. Excepting the accused Kalipada Bera the remaining seven accused persons were examined under Section 313 of the Code of Criminal Procedure. No witness was produced on behalf of the defence in spite of giving ample opportunity and ultimately, after hearing the argument, the Id. Additional Sessions judge found all the seven accused persons guilty to the charges levelled against them and convicted them, in the manner indicated herelnabove. ( 5 ) BEING aggrieved by and dissatisfied with the said order of conviction and sentence, the present appeal was preferred by all the seven convicted person During the pendency of this appeal the appellant no. 7, Sarat Bera was reported to be dead. Before entering into the merits of the appeal, we deem it proper to point out that the accused No. 8 in the charge-sheet namely, kalipada Bera, was arrested by the police and produced before Court on 14-9-91 and on the basis of an order passed by the Id. Sessions Judge, he was released on bail on 25-11-91. It is already stated above that the charge in this case was framed against him along with the seven other accused persons. The evidence on behalf of the prosecution was adduced against all the eight persons facing the trial. Sessions Judge, he was released on bail on 25-11-91. It is already stated above that the charge in this case was framed against him along with the seven other accused persons. The evidence on behalf of the prosecution was adduced against all the eight persons facing the trial. In course of examination of the accused persons under Section 313 of the Code of Criminal Procedure, Kalipada bera submitted that he was aged about 17 years. The Id. Additional Sessions Judge by his order No. 23 dated 2-9-93 pointed out that such a plea of minority was not taken by Kalipada Bera earlier. However, the Id. Additional Sessions Judge opted to ascertain the age of Kalipada Bera, and thereby directed the Superintendent of Midnapore state Hospital to fix up a date for ascertaining the age of the said Kalipada Bera. Kalipada Bera was also directed to appear before the SDJM, Jhargram for the said purpose. Since no report was received and the sessions Trial was at the stage of conclusion, the Id. Additional Sessions Judge by his order No. 33 dated 22-8-94 directed splitting up of the record of the accused Kalipada bera with a further direction that the case against the remaining seven accused persons would proceed. The ossification report along with X-ray plate were received by the additional Sessions Judge on 10-1-95. Since the Id. Public Prosecutor filed a petition before the Court that the radiological report in respect of the accused Kalipada Bera was vague, indefinite and absurd, by Order No. 42 dated 28-12-95, the Id. Additional Sessions Judge opted to call the radiologist for proving the report sent by him. But the matter did not proceed further. Ultimately after the close of the argument, on prayer of the id. Public Prosecutor the prayer of the accused Kalipada Bera alleging himself to be a minor was allowed by Order No. 72 dated 22-3-96 and a direction was issued that the question-of minority would be determined by the Id. SDJM Jhargram and a further direction was issued to the office to open another file, in respect of the accused kalipada Bera after splitting up from the present case. Thus the case against Kalipada bera was split up and in the body of the judgment,. the Id. SDJM Jhargram and a further direction was issued to the office to open another file, in respect of the accused kalipada Bera after splitting up from the present case. Thus the case against Kalipada bera was split up and in the body of the judgment,. the Id. Additional Sessions Judge pointed out that the accused Kalipada Bera was excluded from the evidence in view of the order No. 72 of 22-3-96. ( 6 ) NEITHER of the parties was able to throw any light as to the fate of the accused kalipada Bera and the case directed to the split up against him. It is expected that appropriate steps have already been taken against Kalipada Bera in terms of the order passed by the trial Court. Hope the trial court as well as the prosecution will taken care in this regard. ( 7 ) IT is already stated above that for proving the charges levelled against the seven accused persons, the prosecution examined as many as 22 witnesses including the autopsy surgeon (P W-19) and the Investigating Officer (PW-22 ). Before scanning the evidence of these witnesses, we deem it proper to examine the post mortem report which was clarified and proved by the autopsy surgeon (PW-19) and marked as Ext. 7 in the case. From the Ext. 7 and the evidence of PW-19, it is proved that the post mortem examination was held over the dead body of one Miral Kanti Patra on 21-10-90 at about 12. 05 p. m. The body was identified before the autopsy surgeon by constable No. 1322, Sanjoy Kumar De of Nayaram police Station (PW-20 ). On examination the pw-9 found the following four injuries. " 1. An incised injury placed horizontally on the forehead 5" x1/2" cranial cavity from the middle of the right eye-brow extending to the left. 2. An incised injury placed vertically 4" x 1/2 x cranial cavity extending from the end of the above injury downwards just leading to the left eye upto the middle of the left cheek. 3. A horizontal incised injury extending from the middle of the left cheek passing backwards below the left ear to the occipital bone measuring 12" x 1/2 cranial cavity. 4. A horizontally placed incised injury extending from the middle of the left eye brow passing backwards upto the occipital area about 10" 1/2"x cranial cavity. 3. A horizontal incised injury extending from the middle of the left cheek passing backwards below the left ear to the occipital bone measuring 12" x 1/2 cranial cavity. 4. A horizontally placed incised injury extending from the middle of the left eye brow passing backwards upto the occipital area about 10" 1/2"x cranial cavity. "it was clarified by the PW-9 that as a result of the assault, a small skull near the lower end of the head was hanging and brain matter expansion from the crenial cavity was detected. It was also clarified that all the injuries could be caused by tangl like the one, material exhibit I and the material exhibit VIII which were shown to the PW-19. So the autopsy surgeon opined that the injuries were supposed to cause instantaneous death. It was also indicated in the postmortem report that the death was due to shock and haemorrhage and the head injuries which are ante-mortem and homicidal in nature. So from the evidence of the autopsy surgeon as corroborated by the post mortem report, it can safely be concluded that Mrinal Patra was murdered. ( 8 ) THE PW-20, Sanjoy Kumar De, a police constable proved that he was present at the time of preparation of the inquest by the police officer, SI, Sitanath Das. The PW-20 clarified that Saibal Patra (PW-13) who was the brother of the deceased identified the dead body before them and thereafter, the dead body was given in the custody of the pw-20 who took it to the Jhargram S. D. Hospital and identified the dead body before the post-mortem doctor. He also pointed out that the dead body was recovered from a paddy field. ( 9 ) SRI Saibal Patra af PW-13 also stated that he identified the dead body of Mrinal patra at the time of preparation of the inquest report by the police personnel. He also narrated how the dead body with bleeding injuries was lying in the paddy field near dahighat. ( 10 ) ). So it is established that Mrinal Patra was murdered and his dead body was lying in the field near Dahighat and it was recovered from that field on 2nd Kartick 1397 B. S. corresponding to 20-10-90. It is also clarified by the PW-13 that the appellant No. 1 jyotish Bera was the President of the nayagram Matsajibi Sambaya Samity. So it is established that Mrinal Patra was murdered and his dead body was lying in the field near Dahighat and it was recovered from that field on 2nd Kartick 1397 B. S. corresponding to 20-10-90. It is also clarified by the PW-13 that the appellant No. 1 jyotish Bera was the President of the nayagram Matsajibi Sambaya Samity. The appellant No. 2 Bimal Chandra Dolai was the Secretary of the said Samity and the other accused persons were the members of the said Samity. It is clarified that there was a ferry ghat in between Bhasra Ghat and Dahighat and it being a Government property, the Zilla Parishad controlled that ghat. The PW-13 further, stated that every year auction is called and in 1396 B. S. one kumud Mahapatra (PW-14) was the highest bidder. Since the ferry ghat was under the control of the Sambaya Samity in the preceding year. The said Kumud Muhapatra did not get possession of the ferry ghat for which a complaint was made before the B. D. O. and also to Mrinat Patra. It is also stated that the said Kumud Mahapatra was threatened by the President, Secretary and members of the Matsajibi Samity with dire consequences in the event he attempts to take possession. It is also clarified that Marinal Patra tried to take possession through the Panchayat samity for which the President, Secretary and members of the Samity became very angry with him. So it is alleged that the murder of Mrinal Patra, when he went to take such possession on 2nd Kartick 1397 b. S. along with the B. D. O. , was the outcome of such enmity. ( 11 ) ). The P. W. 14, Kumud Mahapatra practically reiterated the facts disclosed by the P. W. 13 as regards control of the ferry ghat by the Matsajibi Samabaya Samiti in 1395 B. S. The subsequent highest bidding by him was in 1396 B. S. It is also clarified that litigation is pending between the matasajibi Samity and also Kumud' mahapatra and the Government. The accused Jyotish Bera in his cross-examination under Section 313, admitted that he was the President of the said Matsajibi samity at the relevant time and that on the issue of taking control of the ferry ghat a litigation was pending before the High Court, documents are also produced on behalf of the defence that there was a litigation on the issue of control of the ferry ghat between the said Samabaya Samity and the Government and others. In the backdrop of these facts the evidence adduced by the witnesses is to be assessed. ( 12 ) ADMITTEDLY. Mrinal Patra was the extension Officer of the Panchayat Samity. The eye-witnesses (P. W. 1, P. W. 3, P. W. 4 and P. W. 7) also clarified that the saw Mrinal patra near Dahighat on the date of the incident. It is also stated by these eye witnesses that Mrinal Patra was assaulted by a group of persons near Dahighat. So the time and place of the crime of murder have been established beyond any reasonable doubt. The manner of assault is also clarified by the said eye witnesses. It is clarified by the, eye witnesses that the,assailants gave tangi blow on the "head of Mrinal Patra after which he fell down with bleeding injuries on the field and died. The description of the assault is also corroborated by the ;post mortem report. Thus, the prosecution has been able to prove that Mrinal Patra was murdered in the morning of 20-10-1990 by a group of persons. So the next question is who are the assailants ? ( 13 ) IT appears from the judgment of the trial Court that the learned Sessions Judge noticed three injuries though the autopsy surgeon on the basis of the post mortem report proved the four injuries on the upper part of the victim. The learned Additional sessions Judge did not clarify the part played by Jyotish Bera. The learned counsel for the appellant made a forceful argument on this score and contended that the finding of guilt against Jyotish Bera is without any basis. The learned Additional sessions Judge did not clarify the part played by Jyotish Bera. The learned counsel for the appellant made a forceful argument on this score and contended that the finding of guilt against Jyotish Bera is without any basis. On the other hand, the learned Public Prosecutor appearing on behalf of the State, tried to argue that on the basis of the evidence adduced by the P. W. 1 and P. W. 2 as well as the other witnesses, it can be said that Jyotish Bera was the main brain of the incident. It is also argued on behalf of the State that the evidence on record is sufficient to indicate that on the issue of taking possession of Dahighat, there was tension between Matsajlbi samity and the Government as the highest bidder (P. W. 14) could not get possession of the ferry ghat. So from the argument of the prosecution it appears that an attempt has been made to entangle Jyotish Bera with the alleged offence since he was the President of the Samabaya Samity. The prosecution also tried to indicate that Jyotish Bera threatened the P. W. 1 near the spot after the alleged assault and that the assailants came to the spot on being called by Jyotish Bera as evidence by the P. W. 2. So, let it is be considered how far prosecution has been able to prove the charges against Jyotish bera. ( 14 ) IN the FIR, the B. D. O. (P. W. 1) stated that while Jyotish Bera was with him and was proceeding towards the ferry ghat being attracted by one hue and cry he looked behind and found that some persons armed with tangis and axes came near Mrinal Patra and started to assault him. At that time the b. D. O. was at a distance of 10-15 metres from Mrinal Patra. When the BDO asked the assailants to stop, two of them threatened him. It is also stated that at that time Jyotish bera associated himself with the attacking persons and asked him to leave that place with the threat his fate would also be the same of that of Shri Patra. When the BDO asked the assailants to stop, two of them threatened him. It is also stated that at that time Jyotish bera associated himself with the attacking persons and asked him to leave that place with the threat his fate would also be the same of that of Shri Patra. In his examination-in-chief, the BDO (P. W. 1) stated that when he was'at a distance of 10-15 metres from Mrinal Patra and was talking with jyotish Bera, he saw that some persons surrounded Mrinal Patra with arms in their hand and started assaulting him. The p. W. 1 asked the assailants not take the law in their own hand. At that time, Jyotish Bera and his associates threatened the BDO that he would also face the same fate. So from the evidence of the P. W. 1, it is clear that as jyotish Bera asked the P. W. ,1 to leave the place to avoid the fate of Mrinal Patra, it was believed by the PW 1 that Jyotish Bera was siding with the assailants. But there is nothing in the evidence of PW1 to show or indicate that the assault on Mrinal Patra was perpetrated at the instance of Jyotish Bera. ( 15 ) THE P. W. 2 Anadi Kakran was a local resident and in his examination-in-chief he claimed that Jyotish Bera was shouting with the BDO. It is also claimed by the P. W. 2 that when BDO and Mrinal Patra was proceeding, he heard that Jyotish Bera was expressing his grievance against Mrinal Patra. It was also stated that Jyotish Bera thereafter called the villagers to kill Mrinal Patra and after hearing such a call, the assailants bimal Dolai, Sadananda Bera, Suru Bera and Mantu Guin came to the spot carrying arms in their hands and started assaulting mrinal Patra. In the cross-examination, the pw-2 claimed that he stated before the police that Jyotish Bera and Sarat Bera was shouting by saying "salaka mar" (kill the rascal ). But from the evidence of the I. O. (PW-22), it appears that such a statement was not made by the PW-2 before him. So this statement is undoubtedly in the nature of embellishment. It is also to be noted that the PW-2 was answering the call of nature when he heard the voice of Jyotish Bera. But from the evidence of the I. O. (PW-22), it appears that such a statement was not made by the PW-2 before him. So this statement is undoubtedly in the nature of embellishment. It is also to be noted that the PW-2 was answering the call of nature when he heard the voice of Jyotish Bera. So it is not an authentic version of PW-2 that Jyotish Bera called the villagers to kill mrinal Patra. The other three eye witnesses namely, Bharati Pariary (PW-3), Arati mahapatra (PW 4) and Renubala Pariary (PW 3), Arati Mahapatra (PW-4) and Renubala pariary (PW-7) never claimed that Jyotish bera took any part of in the alleged assault. So from the evidence of PW-1, PW-2, PW-3, PW-4 and PW-7, it is not at all possible to entangle Jyotish Bera directly with the alleged assault. On the other hand, it is sufficiently clear that Jyotish Bera was with the pw-1 when Mrinal Patra was assaulted at a distance. So Jyotish Bera did not take any active part in the alleged offence. True it is that the other assailants were members of the Samiti of which Jyotish Bera was the president. But there is no evidence to connect Jyotish Bera with the alleged assault. Mere strained relationship between Jyotish bera with Mrinal Patra cannot connect the former with the alleged offence without any proof. ( 16 ) THE respondent State tried to argue that on the basis of the statement of Jyotish bera recovery of arms was made under Section 27 of the Evidence Act. It is also pointed out that Jyotish Bera made a statement before the witnesses of seizure that at his instance, mrinal Patra was killed. But the alleged statement of Jyotish Bera cannot be relied upon inasmuch as he was in the custody of police at the relevant time. We are also not getting any corroboration of the point of assault by Jyotish Bera. Moreover, such a qestion was not put to Jyotis Bera while examined under Section 313 of the code of Criminal Procedure. But the alleged statement of Jyotish Bera cannot be relied upon inasmuch as he was in the custody of police at the relevant time. We are also not getting any corroboration of the point of assault by Jyotish Bera. Moreover, such a qestion was not put to Jyotis Bera while examined under Section 313 of the code of Criminal Procedure. So after scanning the evidence of the eye witnesses and the circumstances, we fail to connect Jyotish bera with the alleged offence though the fact remains that Mrinal Patra was murdered while Jyotish Bera was talking with the b. D. O. The alleged threat on the BDO by jyotish Bera indicates that Jyotish Bera was asking the BDO to leave the place for avoiding the fate of Mrinal Patra. It may be a threat or an advice at the spot where the assault on Mrinal Patra was going on. The evidence given by the PW 1 as regards association of jyotish Bera with the assailants is nothing but embellishment as clarified by the I. O. (PW22 ). ( 17 ) WE have already dismissed that jyotish Bera cannot be entangled with the alleged offence. But the other accused person and the part played by them have been clarified by the other eye witnesses, namely, pw-2, PW-3, PW-4 and PW-7. The presence of other accused persons with arms in their hands before the assault has been proved by the eye witnesses. Similarly, the fleeing of the other accused persons from the spot after the alleged offence is 'also proved by the PW-5 and'pw-6. It also transpires from the evidence of the eye witnesses that initially the accused Bimal Dolai, Sadananda bera, Mantu Guin and Suru Bera with tangis and axes in their hands attacked Mrinal patra first arid subsequently the other accused persons joined them with bow and arrow and all of them were present at the time of incident. After the arrest of the accused persons the arms were also recovered on the basis of their statements, and those arms were identified in course of the evidence. The autospy surgeon (PW-9) also opined that the injuries found on the deceased could be inflicted by those weapons. After the arrest of the accused persons the arms were also recovered on the basis of their statements, and those arms were identified in course of the evidence. The autospy surgeon (PW-9) also opined that the injuries found on the deceased could be inflicted by those weapons. So from the evidence of the eye witnesses and the evidence adduced by other witnesses before and after the incident are sufficient to complete the chain thereby proving that the other accused persons with the common object to kill Mrinal Patra assembled at the spot and actually, being a member of the unlawful assembly took part in assaulting mrinal Patra to death. ( 18 ) THE learned counsel for the appellants placing reliance on the decision of kalachand v. State of Tripura reported in 2001 SCC (Cri) 1585 : (2000 Cri LJ 4994) tried to argue that in the absence of any evidence all the accused persons cannot be found guilty under Section 302/149 or under Section 148 of the Indian Penal Code. Reliance was also placed on another decision of the Apex Court reported in 2002 SCC (Cri) 936 : (2002 Cri LJ 560), (Sukhan Raut y. State of Bihar), in support of the contention that it is not possible to infer from the evidence adduced that every member of the unlawful assembly had the common object of committing the murder. But it is rightly analysed by the learned Public Prosecutor that chain of evidence, the presence of the accused persons with arms before the incident, their assembly at the spot at the time of the incident and subsequent departure are sufficient ingredients for the inference that every member of the said unlawful assembly had the common object of committing the murder. It is also rightly argued that the evidence on record are sufficient to implicate the other accused persons present at the spot with bow and arrow and it is enough to show that they were sharing common intention with real killers. ( 19 ) IT was also argued on behalf of the appellants that the statement of the accused persons leading to the recovery under Section 27 of the Evidence Act having hot been produced and proved, no reliance should be placed on that part of the evidence. ( 19 ) IT was also argued on behalf of the appellants that the statement of the accused persons leading to the recovery under Section 27 of the Evidence Act having hot been produced and proved, no reliance should be placed on that part of the evidence. It is also argued that since all those evidence were not put to the accused persons in course of their examination under Section 313 of the cr. P. C. , the accused persons did not get any opportunity to Clarify the situation and as such, they are entitled to get the benefit of doubt. On this score the learned Public Prosecutor rightly placed reliance on a decision of the Apex Court in State of Punjab v. Naib din, 2001 AIR SGW 3928, to show that there was no failure on the part of the trial Court to put to the accused persons question of vital nature and as such, the conviction need not be set aside. It is true that the evidence adduced by the witnesses on few minor points were not put to the accused persons while examining under Section 313, of the Code. But those questions can not be construed to be of vital nature. Accordingly, we do not find any reason to take, steps for undoing or connecting the lapses. The not putting of minor questions under Section 313, practically has no impact on the overall aspect of this case. Even if the particular minor item of evidence is kept aside, the remaining evidence is sufficient to bring home the guilt of the accused persons and as such, it is rightly argued that these lapses do not matter much and can be sidelined justifiably. It appears that the trial Court after analysing the evidence on record rightly and justifiably came to a conclusion that the charges levelled against the other appellants have been proved beyond any reasonable doubt. ( 20 ) IN view of the "discussions hereinabove made, the evidence adduced in the case and law on the point, it can safely be concluded that the prosecution has been able to prove the charges levelled against the appellants Nos. 2 to 7. ( 20 ) IN view of the "discussions hereinabove made, the evidence adduced in the case and law on the point, it can safely be concluded that the prosecution has been able to prove the charges levelled against the appellants Nos. 2 to 7. We are confident that none of these accused persons are entitled to get any benefit of doubt and as such, their conviction and sentence are liable to be confirmed only with the rider that the sentences imposed by the trial Court under Section 148 of and under Section 302/149 of the Indian Penal Code are to run concurrently in place of simultaneously as ordered by the trial Court since the punishment under Section 148 practically merges with the life sentence under Section 302/ 149 of the Indian Penal Code. ( 21 ) HOWEVER, in respect of the appellant no, 1 Jyotish Bera, it has been clarified that it is, not possible to Find him guilty under section 148 or under Section 302/149 of the Indian Penal Code and as such, he is liable to be found not guilty to the charges levelled against him. The learned Public prosecutor made an attempt to show that the conduct of the appellant No. 1 Jyotish bera immediately after the incident is sufficient to show or indicate that he was the main brain behind the offence. From the evidence of the police officers , the learned public Prosecutor pointed out that Jyotish bera along with other accused persons absconded immediately, after the incident. It is pointed out that PW-21 stated that as per direction of the Officer-in-charge of the Police Station, he went to serve warrant proclamation and attachment in respect of sadananda Bera , Sarat Bera, Jyotish Bera and five others and that he searched for those persons but could not find them in the village. So by this solitary statement, it cannot be said that Jyotish Bera absconded immediately after the incident. On the other hand, the lower Court record indicates that being aware of the fact that Jyotish Bera and others were wanted by the police, Jyotish bera surrendered in Court on the basis of a surrenderor Petition on 26-2-1991. Similarly on 27-2-1991, Sarat Bera, Sadananda bera and Suru Bera surrendered before the court and all were taken into custody. On the other hand, the lower Court record indicates that being aware of the fact that Jyotish Bera and others were wanted by the police, Jyotish bera surrendered in Court on the basis of a surrenderor Petition on 26-2-1991. Similarly on 27-2-1991, Sarat Bera, Sadananda bera and Suru Bera surrendered before the court and all were taken into custody. However, on 14-6-1991 they were released on bail by an order of the learned Sessions judge and prior to that few of the other accused persons were enlarged on ball on 19-5-1991. Be that as it may, it is a settled principle of law that abscondance immediately after a particular crime may be a relevant fact and should be taken into consideration in an appropriate case provided there are other materials against such abscond-ers. It is already discussed above that there was no direct evidence against Jyotish Bera and as such, even if he absconded immediately after the alleged offence, it cannot be construed to be sufficient to prove the guilt of the accused Jyotish Bera. ( 22 ) IN view of the discussions hereinabove made, we come to the conclusion that there is no reason to interfere with the finding of the trial Court against the appellants Nos. 2, 3, 4, 5, 6 and 7 and accordingly, the conviction and sentence against each of them are hereby confrimed with the rider that sentences imposed under Section 148 and under Section 320/149 of the Indian Penal Code are to run concurrently in place of simultaneously as ordered by the trial Court. However, the conviction and sentence passed by the trial Court against the appellant No. 1 are hereby set aside and he is acquitted and be released from his bail bond, ( 23 ) SINCE the appellant No. 7, Sarat Bera is reported to be dead. and none of the near relatives of the said accused has applied to the appellate Court for leave to continue the appeal, the appeal shall stand abated against him under Section 394 of the Code of Criminal Procedure. ( 24 ) THE appeal is accordingly allowed in part on behalf of the appellant No. 1, Jyotish bera and the appeal by rest of the appel lants is hereby dismissed. ( 24 ) THE appeal is accordingly allowed in part on behalf of the appellant No. 1, Jyotish bera and the appeal by rest of the appel lants is hereby dismissed. Let a copy of the judgment along with the lower Court record be sent to the trial Court forthwith through the learned Chief Judicial Magistrate for surrender of the convicted persons and serving out the sentences imposed. Order accordingly.