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2003 DIGILAW 273 (CAL)

Banku Behari Maity v. State of West Bengal

2003-05-23

Nure Alam Chowdhury, Sadhan Kumar Gupta

body2003
JUDGMENT Sadhan Kumar Gupta, J. This appeal has been' preferred against the judgment and order of conviction passed by the learned Additional Sessions Judge, First Court, Hooghly in Sessions Trial No. 18 of 1995 whereby he convicted the appellants under section 302/34 of Indian Penal Code and sentenced them to suffer R.I. for life and also to pay a fine of Rs. 2,000/- each. 2. Prosecution case in short, is that on 15.04.1993 at about 18.35 hours one Shri Jaladhar Singh of village Noapara within P.S. Singur submitted a written complaint to the effect that on that day at about 10.30 a.m. he saw his sister's husband Samir Ray having bleeding injuries on his head and also on his elbow. On enquiry, said Samir Ray informed them that while he was returning home, one Sukumar Jana and Dilip Jana of Balidipa village assaulted him with a 'tashala' on the ground that Samir Ray assaulted one lady. He instructed his brother to make arrangement for a Doctor and returned back to his house. At about 11.30 a.m. Sukumar Jana, Dilip Jana, Banka Maity, his two sons, daughter, son-in-law Sisir Parui, Ganesh Maity all of Balidipa village along with Ramu Das of Kaliyara village accompanied by 30/40 persons and armed with bamboos, sticks, 'tashala', swords etc. came to the house of Samir Ray and called him. Seeing that the de facto complainant went to his house and at that time the said mob informed him that they would settle the matter with Samir Ray. Ramu Das called Samir and as such he came out and at that time all those persons caught hold of Samir and took him towards Balidipa village. The de facto complainant and his elder sister, i.e. wife of Samir Ray followed them. After reaching Balidipa village those persons tied up Samir with the trunk of a coconut tree and his hands were also tied. They then started assaulting Samir Ray by fist and blows, by bricks as well as by slippers. The de facto complainant and his elder sister requested them not to assault Samir but they did not pay any heed to it. Suddenly Ganesh Maity took a wooden 'tashala' and hit Samir on his head and as a result of that Samir died on the spot. Seeing all those things, the de facto complainant and his elder sister returned back out of fear. Suddenly Ganesh Maity took a wooden 'tashala' and hit Samir on his head and as a result of that Samir died on the spot. Seeing all those things, the de facto complainant and his elder sister returned back out of fear. Subsequently the de facto complainant reported the matter to the P.S. on the same day at about 18.35 hours. On the basis of the said statement of the de facto complainant, present case was started and after completion of the investigation charge-sheet was submitted against all the accused persons. During trial charge under section 302 read with section 34 of the I.P.C. was framed against all the accused persons. Same was read over and explained to them who all pleaded not guilty to the charge and claimed to be tried. Prosecution in all has examined 12 witnesses to prove the charge against all the accused persons. Defence has not adduced any evidence. Defence case as it has transpired from the trend of cross-examination as well as from the statement made by the accused persons under section 313 Cr.PC., is that of denial and by that they are innocent and have been falsely implicated in this case. The learned Court below after considering all the materials on record came to the conclusion that the prosecution was able to prove the case against the accused persons beyond any doubt and as such he convicted the accused persons while acquitting accused Ramu Das. The said order of conviction has been challenged by the accused/convicts on the ground that the learned Court below was not at all justified in holding the accused persons guilty of the offence under section 302 read with section 34 of the IPC. The point that is to be considered so far as the present appeal is concerned, is, whether the ld. Court below was justified in holding the accused persons guilty for the offence under section 302 read with section 34 of the IPC or not. 3. In order to come to a decision, so far as the present appeal is concerned, first of all we are to look into the evidence that has been brought forward by the prosecution in this case. Prosecution is bound to prove that the accused persons on the date of occurrence in furtherance of their common intention caused the death of the deceased viz. Samir Ray. Prosecution is bound to prove that the accused persons on the date of occurrence in furtherance of their common intention caused the death of the deceased viz. Samir Ray. We have already pointed out that in order to prove its case the prosecution has examined in all 12 witnesses. Let us now look into the statements that have been made by these witnesses in connection with this case. 4. PW.1 is Jaladhar Sinha. He is the de facto complainant of this case. He has stated in his evidence that on the date of occurrence at about 10.30 a.m. he found Samir Ray in injured condition and on his enquiry Samir informed him that Dilip and Sukumar Jana assaulted him over some disputes. According to this witness on that very day at about 11.30 a.m. all the accused persons came together in the house of Samir and on the plea of setting the matter they took Samir with them to their village. One Ramu Das of Kaliyara village assured that there would be a compromise in between the parties. This witness has stated that when the accused persons took Samir with them at that time he along with his elder sister Malati Ray followed them. He has stated that on reaching Balidipa village the accused persons tied Samir with a coconut tree and started assaulting him with fist and blows. He has claimed that all on a sudden accused Ganesh Maity assaulted Samir Ray with a wooden plank on his head and as a result of that he sustained bleeding injury on his head and he fell down and died on the spot. Even thereafter the other accused persons continued to assault Samir. He has claimed that he lodged the FIR with the police and he was also present when inquest report was prepared. According to this witness police seized some articles from the place of occurrence in his presence. This witness has been extensively cross-examined by the defence. In his cross-examination he has stated that there are houses of many persons in between the place of occurrence and the house of the deceased. During cross-examination suggestions were given to this witness that the deceased Samir Ray was involved in many criminal cases including murder cases. This witness has been extensively cross-examined by the defence. In his cross-examination he has stated that there are houses of many persons in between the place of occurrence and the house of the deceased. During cross-examination suggestions were given to this witness that the deceased Samir Ray was involved in many criminal cases including murder cases. It has also been suggested to this witness that deceased Samir Ray was in trouble with the villagers over the catching of fishes from the Ghiya river. This witness stated in his cross-examination that he was not aware about any such dispute with the villagers and the deceased Samir Ray. During cross-examination this witness has claimed that accused Ganesh assaulted Samir with a wooden plank once and thereafter accused Sisir kicked Samir even after he expired. He has admitted that the sword and bhojali which were seized during investigation, were not used by the accused persons in assaulting Samir Ray. He has denied the defence suggestion that he and his sister did not follow the accused persons when they took Samir to Balidipa village. He could not say any thing about the defence suggestion that on the date of occurrence in the morning the deceased Samir assaulted accused Gayatri. This witness in answer to a question put to him by the defence during cross-examination, stated "I cannot say whether Samir was lynched by the villagers of Noapara, Balidipa, Bagdanga and Kashalpur." He has clearly denied the defence suggestion that the accused persons have been falsely implicated in this case as they resisted the assault done by Samir on Gayatri. 5. PW.2 is Rabin Singha. He is the younger brother of the PW.1. He in his evidence has stated that on the date of incident he had been to the house of the deceased Samir Ray when he informed him that he was assaulted by Dilip Jana and as a result of that he sustained injury on his right hand elbow as well as on his head. Hearing that he went to call Doctor Balaram Bhattacharya of the village but the said Doctor was not available and as such he returned back. After his return, he found that the accused persons took Samir Ray to the Balidipa village, thereafter he heard from Madan Das a member of the Panchayat Samity about the incident of assault of Samir Ray at Balidipa village. After his return, he found that the accused persons took Samir Ray to the Balidipa village, thereafter he heard from Madan Das a member of the Panchayat Samity about the incident of assault of Samir Ray at Balidipa village. As such, he being accompanied by Madan Das, went to Singur P.S. and informed the O.C. about the matter. The police went to the Balidipa village along with this PW.2 and reaching there he found that Samir Ray was tied up with rope with a coconut tree and he was lying dead. On enquiry from his elder sister he came to know that the accused persons assaulted Samir with fist and. blows and accused Ganesh assaulted him on his head with a wooden stick and as a result of that he expired. The witness was cross-examined by the defence. In answer to the cross-examination, this witness admitted that he did not state to the police that after returning from Doctor's chamber he found the accused persons taking away Samir along with them to the Balidipa village. 6. PW.3 is Madan Das. He has claimed that in the year of occurrence he was the member of the Gram Panchayat. He in his evidence has stated that on the date of occurrence at about 11 a.m. he found Samir proceeding towards his house by a cycle and at that time he noticed some injuries on his person. This witness has stated that when he was informed about the quarrel between the Samir Ray and the daughter of Banku Maity he went to that house situated at Balidipa village and had a discussion over the matter. It was decided that Banku Maity would lodge a FIR over the matter. When he was returning from there, he found that many persons were proceeding towards Balidipa village and he was of the opinion that the local police should be informed about the matter. He has claimed that he along with PW.2 went to the Singur P.S. and reported the matter to the O.C. Subsequently he came to know that Samir Ray was murdered. This witness could not identify the accused persons as the persons who were taking Samir Ray to the Balidipa village. He has denied the suggestion during cross-examination that deceased Samir Ray was controlling the water and fishes of the river Ghiya. This witness could not identify the accused persons as the persons who were taking Samir Ray to the Balidipa village. He has denied the suggestion during cross-examination that deceased Samir Ray was controlling the water and fishes of the river Ghiya. He has admitted that a representation signed by more than hundred persons was submitted describing Samir as a miscreant and a characterless person. 7. PW.4 is Ananda Maity. This witness has claimed that he reached the P.O. after the incident and found Samir Ray lying dead. He has claimed that the accused persons along with others were present there. So the evidence of this witness is not of much importance so far as the prosecution case is concerned. 8. PW.5 is Tarun Das. According to this witness he found the accused persons dragging Samir Ray to Balidipa village and as such he also followed them. He has stated that Samir Ray was tied with rope with a coconut tree by the accused persons and they then started assaulting him by fist and blows. He has further stated that accused Ganesh Maity assaulted Samir Ray by a wooden plank on his head and as a result of that he fell down with bleeding injury and died on the spot. This witness in his cross-examination has stated that the accused persons assaulted Samir for about 30 minutes by fist and blows. He has also stated that he found sword, knife and lathi in the hands of the accused persons. He has denied the defence suggestion that the accused persons did not assault the deceased Samir Ray. He has further stated that he saw the incident from a distance about 10 cubits. He has denied the defence suggestion that he did not see the incident at all. He has also denied the suggestion that there was no such incident on that day. 9. PW.6 is Surya Kanta Das. He has stated that after hearing the news he went to the spot and found that Samir lying dead. 10. PW.7 is Tapan Maity. According to this witness on the date of incident when he was returning back to his village he found a gathering in front of the house of Samir Ray and the persons who had gathered in that place had arms in their hands. He has identified the accused persons to be the member of the said assembly. According to this witness on the date of incident when he was returning back to his village he found a gathering in front of the house of Samir Ray and the persons who had gathered in that place had arms in their hands. He has identified the accused persons to be the member of the said assembly. According to him the accused persons took away Samir Ray towards Balidipa village. This witness has claimed that he found that the accused persons were assaulting Samir Ray by fist and blows as well as by bricks after Samir Ray was being tied with a coconut tree. He has also claimed that Ganesh Maity suddenly assaulted Samir Ray on his head by a 'tashala' made by wooden plank and as a result of that Samir fell down with bleeding injuries on his person. He has claimed that Samir Ray died on the spot. This witness has denied the defence suggestion that he did not see the incident at all. He has further denied the suggestion that there was no such incident. In answer to a defence question during cross-examination he admitted that he did not try to inform the matter to the P.S. nor he tried to resist the accused persons with the help of Anchal Panchayat and others. He has categorically denied the defence suggestion that the accused persons did not assault Samir Ray at all on that day. 11. PW.8 is Smt. Malati Ray. She is the wife of the deceased Samir Ray. She has stated in her evidence that on the date of incident she first saw some injuries on the head and right elbow of her husband. On enquiry her husband informed her that Dilip Jana and Sukumar Jana injured him while he was returning from Balidipa village. This witness has stated that at about 11 a.m. on the date of incident, accused Dilip Jana, Sukumar Jana, Banku Maity, Habul Maity, Dilip Maity, Ganesh Maity, Sishir Parui and many others came to her house and at that time they had arms with them. Those persons demanded that Samir should come out of his house. At that time one Ramu Das intervened and asked Samir to accompany those persons along with him to Balidipa village for a compromise. Although Samir was reluctant to go, still as per request of Ramu, he agreed to go out of the house. Those persons demanded that Samir should come out of his house. At that time one Ramu Das intervened and asked Samir to accompany those persons along with him to Balidipa village for a compromise. Although Samir was reluctant to go, still as per request of Ramu, he agreed to go out of the house. Thereafter those persons took away Samir to the Balidipa village and this witness along with Jaladhar and Nemai followed them. According to this witness her husband was tied by rope with a coconut tree by the accused persons and thereafter all the accused persons namely Banku Maity, Habul, Dilip, Sukumar, Sishir Parui and Gayatri started assaulting Samir Ray with fist and blows and as well as by kicks and brickbats. She requested the accused persons not to assault Samir in that manner but they did not pay any heed to it. Suddenly accused Ganesh Maity assaulted Samir with a tashala on his head and as a result of that her husband fell down and died on the spot. This witness was cross-examined extensively by the defence. In her cross-examination she has denied that her husband was in the habit of disturbing the ladies of the village. Some questions were also put to her regarding the post antecedent and alleged criminal activities of Samir Ray, which this witness could not answer properly. This witness clearly denied the defence suggestion that she did not see the alleged incident. She has also denied that the accused persons did not drag Samir Ray from his house on the date of incident and thereafter caused his death. 12. PW.9 is Nemai Singh. He is the brother of PW.8. According to this witness, on the date of incident at about 11 a.m. he found 25/30 people assembled in front of the house of the deceased Samir Ray. He has stated in his evidence that the accused persons and others took Samir to the Balidipa village where he was tied with a coconut tree and the said mob started assaulting him by fist and blows as well as by brick bats. He has also stated that suddenly accused Ganesh assaulted Samir with tashala on his head and as a result of that he fell down and died on the spot. In his cross-examination this witness clearly denied the defence suggestion that the accused persons did not assault Samir Ray as alleged. He has also stated that suddenly accused Ganesh assaulted Samir with tashala on his head and as a result of that he fell down and died on the spot. In his cross-examination this witness clearly denied the defence suggestion that the accused persons did not assault Samir Ray as alleged. He has also denied the defence claim that accused Ganesh did not assault Samir with tashala. This witness clearly denied the defence suggestion that he did not see the incident at all. 13. PW.10 is constable K.C. Das. He carried out the dead body for postmortem examination and identified the same before the Doctor. He has also signed as a witness in the seizure list. 14. PW.11 is S.I. Joydeb Goswami. He is the Investigating Officer of this case. According to this witness, during investigation he went to the P.O. and held inquest over the dead body of deceased Samir Ray at Balidipa village. He also seized some articles from the spot under a seizure list in presence of the witnesses. He examined the witnesses under section 161 Cr. P.C. and after completion of the investigation he submitted charge-sheet against the accused persons. During cross-examination this witness has stated that during investigation he came to know that the first incident took place on the date of incident when Samir Ray assaulted Gayatri Parui and her husband Sishir Parui in the morning. He has admitted that the deceased Samir Ray was involved in a murder case of the Singur P.S. This witness has categorically denied the defence suggestion that the FIR of this case was a manufactured document. He has further denied the defence suggestion that he was not informed about the names of the assailants of Samir Ray during his investigation on the spot. 15. PW.12 is Doctor Prabhas Chandra Sarkar. He has conducted the postmortem examination on the dead body of the deceased on 15.04.1993 and found the following injuries:- 1. A lacerated injury 1¼" x ½" deep into the brain matter (6" deep) damaging brain matter and meanings, 1½" above middle of right eye-brow. 2. One lacerated injury 1" x 1½" on parietal region right side 7" above right ear. 3. Multiple abbrasions (minute) all over the body. 4. Bruise discolouration upper eye-lid and eye-brow (left). 5. Multiple fracture of frontal and parietal bone-right side. 16. 2. One lacerated injury 1" x 1½" on parietal region right side 7" above right ear. 3. Multiple abbrasions (minute) all over the body. 4. Bruise discolouration upper eye-lid and eye-brow (left). 5. Multiple fracture of frontal and parietal bone-right side. 16. According to this Doctor the injury No. 1 might have been caused by a blunt substance like piece of wood (Khater Tashala). He has further stated that the other injuries could have been caused by fist and blows, lathi and brick-bats. In his cross-examination the Doctor stated the injury No. 5 was grievous in nature and the same itself could cause death of a person. 17. We have discussed the evidence as adduced by the prosecution in support of its case. There cannot be any doubt that in order to prove its case prosecution is to prove beyond and doubt that the deceased died due to the assault done by the accused persons. Let us now see how far the prosecution has been able to prove its case beyond any shadow of doubt against the accused persons. From the analysis of the evidence, as has been adduced in this case, it appears that the present case has got three different stages. At first, there was a trouble in between the deceased Samir Ray with Sishir Parui and his wife Gayatri Parui in the morning and for that reason the deceased sustained some injuries at that time. The next stage is that the accused persons along with others gathered in front of the house of the deceased and they in fact forcibly took him with them to the Balidipa village. The third and the final stage of the incident was performed when it has been alleged that the accused persons tied with Samir Ray with a coconut tree and then started assaulting him. The evidence, as adduced in this case has clearly established that all the accused persons including the lady accused assaulting the deceased with fist and blows, kicks, chappls and by brick-bats and as a result of that the deceased Satnir Ray sustained multiple injuries on his body. It has further transpired from the evidence on record that when the said assaulting was going on at that time suddenly accused Ganesh Maity assaulted Samir Ray severely on his head by a wooden plank (tashala). It has further transpired from the evidence on record that when the said assaulting was going on at that time suddenly accused Ganesh Maity assaulted Samir Ray severely on his head by a wooden plank (tashala). The witnesses have stated that as a result of that assault by Ganesh, Samir sustained severe injuries on his head and he fell down and died on the spot. For the purpose of the prosecution case, as discussed above, the evidence of the PW.1 Jaladhar Singha, PW.2 Rabin Singha, PW.3 Madan Das, PW.5 Tarun Das, PW.7 Tapan Maity. PW.8 Smt. Malati Ray and PW.9 Nemai Singha are most important, they being the eye-witnesses. We have perused and scanned the evidence of those witnesses very carefully. It appears that all those witnesses clearly stated in their deposition that they found the accused persons to drag Samir to Balidipa village from his house and thereafter he was tied with a coconut tree and the accused persons in a body started assaulting Samir be fist and blows, lathi, brick-bats etc. All those witnesses have been extensively cross-examined by the defence. But to our mind, there is nothing to disbelieve the statements of those witnesses even after cross-examination. Learned Advocate for the appellant argued that although it has transpired from the evidence that there are many houses in between the two villages, still the prosecution preferred to rely mainly on the witnesses who are relatives of the deceased. True it is that it has transpired from the evidence that there are many houses near the place of occurrence. But for that reason it cannot be said that as a matter of rule the prosecution is bound to examine all those villagers in support of its case. We cannot shut our eyes to the crude reality that now-a-days people are reluctant to come forward and depose in a police case particularly when a person has been murdered. As such, in most cases prosecution is compelled to rely on the evidence of the relatives of the deceased. There is no rule that the statements of the relatives of the deceased should be disbelieved on the ground of their being interested in the particular case. As such, in most cases prosecution is compelled to rely on the evidence of the relatives of the deceased. There is no rule that the statements of the relatives of the deceased should be disbelieved on the ground of their being interested in the particular case. In fact, to our mind in same cases the relatives are the best witnesses to prove an incident of murder because of the fact that it is most unnatural that the relatives would falsely implicate some innocent persons leaving aside the actual culprit. Moreover, in our case, we find that besides the evidence of the near relatives of the deceased, prosecution has in fact examined some independent persons to prove the alleged incident. From the evidence on record it is clear that there was an incident involving the deceased and accused Sishir and Gayatri Parui. The witnesses have categorically deposed to that effect. The statements of these witnesses in this respect find support from the statements made by accused Sishir and Gayatri Parui under section 313 Cr.PC. So, admittedly there was a trouble in between the parties in the morning and the some ultimately culminated into the actual incident. So, it cannot be said that the prosecution has set up a fabricated story for implicating the accused persons in this case. If we look into the evidence of the PW.8 Smt. Malati Ray who is the wife of the deceased, then it will appear that she has given a clear and vivid picture regarding the alleged incident. From her evidence, we find that actually the accused persons dragged Samir Ray from his house and took him to Balidipa village where he was tied with a coconut tree and thereafter the accused persons in a body and in furtherance of their common intention started assaulting Samir Ray in various way. The statement as made by this PW.8 has not been shakened even after extensive cross-examination and we find nothing to disbelieve the statement of this witness, who is the wife of the deceased. The other eye-witnesses, as we have mentioned earlier, have clearly and categorically supported the statement as made by the PW.8 Smt. Malati Ray. We find nothing to disbelieve the statements of those witnesses. The other eye-witnesses, as we have mentioned earlier, have clearly and categorically supported the statement as made by the PW.8 Smt. Malati Ray. We find nothing to disbelieve the statements of those witnesses. From the evidence of the PW.8 and from the evidence of the other eye-witnesses, it appears that all the accused persons started assaulting Samir Ray by fist and blows, kicks, chappls, brick-bats etc. and thereby caused severe injuries on his person. The prosecution has further been able to prove that accused Ganesh Maity assaulted Samir with a wooden plank on his head and as a result of that he expired on the spot. So the involvement of the accused persons in the present case i.e. the murder of the deceased Samir Ray has been proved beyond any doubt. Now the defence has tried to justify its action by claiming that the deceased Samir Ray was a notorious and characterless person and was in the habit of disturbing the ladies of the village and as a result of that the villagers of the nearby villages assaulted him and caused his death out of anger. But no such evidence has been adduced to prove this claim. Simply some applications have been proved in this case in order to justify the claim that attention of the higher authorities were drawn to the illegal activities of the deceased Samir Ray. But even for argument sake, if we accept that Samir Ray was a notorious person, then also the law does not permit the accused persons to take the law in their own hands and to cause the death of Samir Ray. As such the accused persons, cannot avoid their involvement, so far as the murder of the deceased of this case is concerned. 18. Now it appears that in this case charge was framed against all the accused persons under section 302 read with section 34 of the IPC. As such the accused persons, cannot avoid their involvement, so far as the murder of the deceased of this case is concerned. 18. Now it appears that in this case charge was framed against all the accused persons under section 302 read with section 34 of the IPC. We have already pointed out that it is a case of the prosecution that all the accused persons committed the offence in furtherance of the common intention of all and as such the learned P.P.-in-charge argued that the learned Court below was perfectly justified in holding the accused persons guilty for the offence under section 302 read with section 34 of the IPC as all of them were present at the time of the commission of the offence and they had completed their pre-arranged plan i.e. to murder the deceased Samir Ray. So far as the present case is concerned, we have already discussed that there is sufficient evidence to show that all the accused persons took part in the commission of the offence. But if we carefully look into the evidence, then it will appear that all the accused persons were assaulting the deceased Samir Ray either by fist and blows or by lathi, brick bats etc. It is clear from the evidence of the Doctor that due to such assault the deceased sustained several injuries including grievous injury like fracture etc. At the same time there is clear and cogent evidence to show that when such type of assaulting was going on, at that time accused Ganesh Maity suddenly assaulted Samir Ray on his head by a wooden plank causing severe injuries and the witnesses have stated that as a result of that Samir Ray died on the spot. If we look into the evidence of the Doctor, then also we will find that the Doctor was also of the opinion that the injury which was on the head of the deceased, was fatal in nature. So the question that is to be considered is, whether for the act of accused Ganesh Maity, all the other accused persons should be held guilty for the offence under section 302 of the IPC or not. So the question that is to be considered is, whether for the act of accused Ganesh Maity, all the other accused persons should be held guilty for the offence under section 302 of the IPC or not. In view of the clear and cogent evidence it may be pointed out here, that there can not be any doubt that Ganesh Maity is certainly responsible for the murder of the deceased and the learned Court below was perfectly justified in holding him for guilty for the offence of murder. Now the question that is to be looked into is whether for this act of Ganesh the other accused persons also should be held vicariously liable or not and whether they should also be convicted for the offence of murder with the aid of section 34 of the IPC. The learned Advocate for the appellant argued that in view of the evidence that has been adduced in this case, the other accused persons cannot be held responsible for the act of Ganesh Maity in causing the death of the deceased. For this, he has cited several decisions reported in AIR 1960 Supreme Court at page 725, AIR 1994 Supreme Court at page 79, 1996 Supreme Court Cases (Cri.) at page 980 and 1994 Supreme Court Cases (Cri.) at page 326. We have considered those decisions carefully. It appears that in all those decisions at has been decided that the provisions of section 34 and section 149 of the IPC is declaratory of the vicarious liability of the members of an unlawful assembly for the acts done in prosecution of the common object or a particular assembly and any offence done in furtherance of the common object or common intention of that assembly will make all the members of that assembly will make all the members of that assembly liable for the actual offence. But at the same time it has been decided by the Hon'ble Apex Court that it should be looked into as to what was the actual intention of that unlawful assembly. Members of an unlawful assembly may have a community of object or intention upto a certain point and for the act done upto that point, all the members of the assembly would be liable for that offence. Members of an unlawful assembly may have a community of object or intention upto a certain point and for the act done upto that point, all the members of the assembly would be liable for that offence. But if something has been done by a particular member of that assembly beyond that common object or intention of that assembly then in that event all the members cannot be and should not be held liable for the actual offence. If the common intention of the assembly was to cause grievous hurt and in fact death was caused by only one of the members of the assembly, for which the other members of that assembly cannot be held responsible for the offence under section 302 read with section 34 or section 149 of the IPC. But they can certainly be held responsible with the aid of these two sections for the offence of causing grievious hurt. On the basis of the ratio decided by the Hon'ble Supreme Court in the decisions as pointed out above, we are to see as to what was the actual intention of the accused persons when they dragged away the deceased Samir Ray from his house to Balidipa village. We have already pointed out that it has been proved by evidence that on that day there was a trouble in between the parties in the morning and out of the said incident the accused persons actually took away Samir Ray from his house. The evidence on record transpires that Samir Ray was tied with a coconut tree and thereafter all the accused persons started assaulting him with fist and blows kicks, by lathis, by chappls as well as by brick bats. The evidence reveals that at that time the accused persons had sword, bhojali and other sharp cutting weapons in their hands. So, if the intention of the accused persons was to kill Samir Ray, they could have easily done that by giving a blow either by the sword or by the bhojali immediately after he was dragged out from his house. Instead they tied him with a tree and started assaulting him in that fashion. So it is clear that their intention was not to murder Samir, but to assault him severely in order to teach him a lesson for his alleged bad behaviour. Instead they tied him with a tree and started assaulting him in that fashion. So it is clear that their intention was not to murder Samir, but to assault him severely in order to teach him a lesson for his alleged bad behaviour. From the evidence of the Doctor it has clearly been established that Samir Ray sustained grievious injury due to the assault done by these accused persons with the help of fist and blows, kicks, chappls and brick bats. So they are certainly liable for causing grievious hurt to Samir Ray. But as in this case Samir Ray died so the learned P.P.-in-charge argued that all the accused persons should also be held guilty for the offence under section 302 IPC with the aid of section 34 of the IPC. But we have already pointed out that in order to convict a person under section 302 with the aid of section 34 of the IPC. the intention is to be primarily considered. We have shown that there was no intention of the accused persons to cause the death of the deceased. Naturally we hold that they are liable to be convicted for the offence under section 325 read with section 34 of the IPC and not under section 302 read with section 34 of the IPC as decided by the learned Court below. 19. But in this case it is an admitted position that Samir Ray died as a result of the injuries sustained by him on the date of the incident. The evidence, as adduced by the prosecution, clearly suggests that it is accused Ganesh Maity who all on a sudden assaulted Samir Ray on his head severely by a wooden plank and as a result of that Samir Ray died on the spot instanteously. The evidence of the eye-witnesses in this respect finds clear support from the evidence of the Doctor who clearly stated that the injury No. 1 which was on the head of the deceased was caused by a piece of wood (Khater tashala). As such, there is no doubt that this act on the part of Ganesh Maity was an independent act and it is completely separate with the act done by the other accused persons. Due to this independent act of Ganesh Maity, deceased Samir Ray died. So this accused Ganesh Maity should be held responsible for the death of the deceased. As such, there is no doubt that this act on the part of Ganesh Maity was an independent act and it is completely separate with the act done by the other accused persons. Due to this independent act of Ganesh Maity, deceased Samir Ray died. So this accused Ganesh Maity should be held responsible for the death of the deceased. As such, we hold that Ganesh Maity should be punished and convicted for the commission of the offence under section 302 of the IPC. 20. Therefore, from our above discussion, we are of the opinion that from the materials on record it should be held that accused Ganesh Maity actually caused the death of the deceased Samir Ray and as a result of that he should be convicted and sentenced under section 302 read with section 34 of the IPC. We find from the judgment of the learned Court below that actually he convicted this accused persons under section 302 read with section 34 of the IPC, along with others sentenced him to suffer imprisonment for life and to pay a fine of Rs. 2000/-. The sentence, as imposed upon him, appears to be justified and as such we do not want to interfere in this respect. But we simply add that accused Ganesh Maity is convicted under section 302 of the IPC. and as because the learned Court below did not mention as to what amount to imprisonment he will suffer in case he does not pay the fine amount, so we like to correct that portion of the sentence by way of modification. We hold that accused Ganesh Maity is convicted under section 302 IPC and sentenced to suffer R.I. for life and to pay a fine of Rs. 2000/- I.d. to suffer further imprisonment for six months. 21. Regarding the other accused persons, we are of opinion that the learned Court below was not justified in holding them guilty for the offence under section 302 read with section 34 of the IPC. We are of opinion that ends of justice will be served if those accused persons namely Banku Behari Maity, Sukumar Jana, Dilip Jana, Pranab Maity alias Habul, Dilip Maity, Sishir Parui and Gayatri Parui are convicted under section 325 read with section 34 of the IPC. We are of opinion that ends of justice will be served if those accused persons namely Banku Behari Maity, Sukumar Jana, Dilip Jana, Pranab Maity alias Habul, Dilip Maity, Sishir Parui and Gayatri Parui are convicted under section 325 read with section 34 of the IPC. As such, we hold that all those accused persons are guilty for the offence under section 325 read with section 34 of the IPC and they are convicted and sentenced to suffer R.I. for two years and to pay a fine of Rs. 500/- each I.d. to suffer further imprisonment of one month each. The order of the learned Court below is modified to that extent. 22. In the result, the appeal succeeds in part. The order of conviction passed by the learned Court below is affirmed subject to the modification that accused Ganesh Maity is held guilty for the offence under section 302 IPC and he is sentenced to suffer R.I. for life and to pay a fine of Rs. 2000/- I.d. to suffer further imprisonment for six months. The other accused persons namely Banku Behari Maity, Sukumar Jana, Dilip Jana, Pranab Maity alias Habul, Dilip Maity, Sishir Parui and Gayatri Parui and held guilty for the offence under section 325 read with section 34 of the IPC and they are convicted accordingly and sentenced to suffer R.I. for two years each and to pay a fine of Rs. 500/- each I.d. to suffer further imprisonment for one month. The accused persons, if on bail are directed to surrender before the learned Court below immediately to serve out the sentence. The period of detention, as already undergone by the accused persons, will be set off as per rule. 23. Let a copy of this judgment along with the L.C.R. be sent to the learned Court below immediately for his taking necessary action. Nure Alam Chowdhury, J.: I agree. Appeal succeeded in part.