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2019 DIGILAW 974 (JHR)

Barka Hansda v. State of Bihar (now Jharkhand)

2019-05-02

APARESH KUMAR SINGH, KAILASH PRASAD DEO

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JUDGMENT : Heard learned Counsel for the appellant, Mr. Niraj Narayan Mishra and Mr. Arun Kumar Pandey, learned Additional Public Prosecutor representing the State. 2. The original six appellants being aggrieved by the judgment of conviction dated 15.02.1996 and order of sentence dated 26.02.1996 rendered in Sessions Case No.424 of 1986 by the learned Court of Additional Sessions Judge, Pakur, approached this Court. Out of these six appellants only two survive now namely, appellant no.1 (Barka Hansda) and appellant no.3 (Babudhan Hansda) as the other appellants died during pendency of the appeal leading to the abatement of their appeal. Total of seven accused persons were sent-up for trial including the six original appellants and except one Bhadu Hansda, remaining six accused persons were convicted for the charge under Section 302/149 of Indian Penal Code. Accused Chhotka Hansda and Barka Hansda were also held guilty for the charge under Section 148 of the Indian Penal Code. Rest four accused persons out of whom appellants Babudhan Hansda is only alive were held guilty under Section 147 of the Indian Penal Code. All the six accused persons who were convicted under Section 302/149 of the Indian Penal Code were sentenced to undergo life imprisonment with a fine of Rs.500/- each and in case of default to suffer rigorous imprisonment for one year. No separate sentence was awarded for their conviction under Sections 147 or 148 of the Indian Penal Code. The fine amount was to be paid to the family of the deceased. 3. The informant namely, Bhandari Hembram (P.W.7), son of the deceased Charan Hembram in his fardbeyan recorded on Friday 25.10.1985 at 02:00 P.M. before the Officer-In-charge, Litipara Police Station inter alia alleged that at 09:00 in the morning he alongwith his father were ploughing the plot of Mistri Tudu taken on bataidari since last three years when 1. Barka Hansda (appellant no.1) s/o Mangal Hansda (armed with sabbal) 2. Chhotka Hansda s/o Madhur Hansda (armed with sabbal) 3. Mashi Hansda s/o Paltan Hansda 4. Bhadu Hansda s/o Mashi Hansda, 5. Babudhan Hansda s/o Barka Hansda (now appellant no.2), 6. Dukhin Hansda s/o Mangal Hansda, 7. Manjhi Hansda s/o Mandal Hansda 8. Boyla Hansda s/o Mandal Hansda, rest six above, armed with lathi, all residents of Phulpahari, P.S. Litipara, District Shahebganj (now Pakur) came to the field and stopped informant and his father from cultivating the land. Babudhan Hansda s/o Barka Hansda (now appellant no.2), 6. Dukhin Hansda s/o Mangal Hansda, 7. Manjhi Hansda s/o Mandal Hansda 8. Boyla Hansda s/o Mandal Hansda, rest six above, armed with lathi, all residents of Phulpahari, P.S. Litipara, District Shahebganj (now Pakur) came to the field and stopped informant and his father from cultivating the land. Thereafter informant's father stated that he had taken the plot on bataidari. On this Chhotka Hansda armed with sabbal gave a blow on the head of the informant's father and Barka Hansda also gave a blow on the legs and his hands and then all others started assaulting with lathi. In the meantime, Barka Hansda stated that “sale ko jaan se maar do” (kill this bloody person), on hearing which the informant ran shouting towards his village and thereupon villagers Churku Manjhi, Gopal Hembram, Jagan Marandi and others came and the accused persons ran away. Informant has further alleged that his father had received lot of beating and was not in a position to give his fardbeyan. He described several injuries such as (i) incised wound above the left eye, (ii) incised wound on the elbow of the left hand, (iii) injury with blood oozing on the wrist of the left hand, (iv) cut injury on the left leg and chin where the bone had come out and (v) cut injury on the right knee. On these allegations informant asserted that these accused persons have by forming an unlawful assembly armed with sabbal and lathi come to the plot with an intent to murder and thereafter badly assaulted his father, as a result of which he fell down and was bleeding. 4. On these allegations the formal FIR bearing Litipara P.S. Case No.37 of 1985 dated 25.10.1985 has been registered against all the named accused persons initially under Sections 147, 307, 148 and 149 IPC and subsequently after death of the victim Section 302 IPC added vide order dated 29.10.1985. 5. On completion of investigation, charge-sheet bearing No. 2 dated 23.01.1986 under Sections 147, 148, 149 and 302 of the Indian Penal Code has been submitted against all the named eight accused persons. 6. 5. On completion of investigation, charge-sheet bearing No. 2 dated 23.01.1986 under Sections 147, 148, 149 and 302 of the Indian Penal Code has been submitted against all the named eight accused persons. 6. After Cognizance was taken and the case was committed to the Court of Sessions charges were framed on 05.07.2009 by the Court of learned Additional Sessions, Judge, Pakur under Sections 147, 302/149 of the Indian Penal Code against all the eight accused persons. Separate charges were framed against Chhotka Hansda and Barka Hansda under Section 148 of the IPC also on the same date. When the charges were read over to the accused persons and explained in Hindi they pleaded not guilty and claimed to be tried. During trial, one of the co-accused Mashi Hansda died and his case was dropped. 7. In order to prove the charge, prosecution examined altogether nine witnesses, named as under:- Bitti Murmu as P.W.1, Nachon Hansda as P.W.2, Subodh Kumar Banerjee as P.W.3, Gopal Hembram as P.W.4, Mistry Tuddu as P.W.5, Shiv Chaw Kisku as P.W.6, informant, Bhandari Hembram P.W.7, Dr. Madan Mohan Prasad Sinha, Medical Officer as P.W.8 and Ram Kinkar Sinha as P.W.9 and two documents have been exhibited which are signature of Ahmad Hussain Officer-In-charge on the FIR as Exhibit-1 and the postmortem report of the deceased as Exhibit-2 proved by P.W.8, Dr. Madan Mohan Prasad Sinha. 8. After closure of the prosecution evidence the statement of the accused persons was recorded on 13.11.1985 under Section 313 of the Cr.P.C., where they denied their involvement and claimed themselves to be innocent. One defence witness namely, Nepal Murmu was examined on behalf of the accused persons. Certified copy of the order passed in T.R. No.108 of 1982 Cr. Misc. 460 of 1977 by Executive Magistrate, Pakur has been proved and marked as Exhibit-A. Learned trial court upon consideration of the evidence on record and the submission of the parties was pleased to hold the accused persons guilty for the aforesaid charges and sentenced them accordingly as indicated above. As noted earlier out of six appellants, four have died during pendency of this appeal and the present appeal has been argued on behalf of surviving two appellants Barka Hansda and Babudhan Hansda. 9. As noted earlier out of six appellants, four have died during pendency of this appeal and the present appeal has been argued on behalf of surviving two appellants Barka Hansda and Babudhan Hansda. 9. Learned counsel for the appellants has assailed the impugned findings inter alia on the following grounds: according to the learned counsel for the appellants the charge under Section 149 of the IPC for having committed murder in furtherance of the common object of the unlawful assembly does not stand established on the weight of the prosecution evidence brought on record. The medical evidence, postmortem report as Exhibit-2 does not show any injury by lathi, out of nine injuries found on the body of the deceased. As such, it belies the ocular testimony i.e. the presence of the six accused persons as members of the unlawful assembly armed with lathi and in furtherance of the common object alleged to be perpetrated by them to cause the murder of the father of the informant Charan Hansda. Dispute over land is evident from the evidence of the informant and other prosecution witnesses since the informant's father had allegedly taken the land of Misti Tudu on bataidari with whom the accused persons had a grievance. Therefore, false involvement of large number of accused persons all of one or two family cannot be ruled out. In that case, prosecution has not been able to attribute and prove individual roles of individual accused persons including the present two appellants as having inflicted the specific injuries on the body of the deceased. The medical evidence shows cause of death due to shock and haemorrhage, as a result of injury no.(3) only, out of nine injuries. There also, if the prosecution case is believed to be true assumingly, eight persons have been alleged to have committed the assault, two by sabbal and rest by lathi, but the ante-mortem injuries on the body of the deceased do not go to show any such brutal assault by unlawful assembly of six accused persons. Moreover, the case of the prosecution also stands deflated as the victim had not died immediately but survived for some time and died at the hospital. The prosecution has not proved the charge beyond shadow of all reasonable doubt and therefore the impugned conviction cannot be sustained in eyes of law on re-appreciation of evidence by this Court in appeal. Moreover, the case of the prosecution also stands deflated as the victim had not died immediately but survived for some time and died at the hospital. The prosecution has not proved the charge beyond shadow of all reasonable doubt and therefore the impugned conviction cannot be sustained in eyes of law on re-appreciation of evidence by this Court in appeal. Learned counsel for the appellant has further detailed his arguments by referring to the statement of eye-witnesses namely, Bitti Murmu (P.W.1), Nachen Hansda (P.W.2), Gopal Hembram (P.W.4), Shiv Chand Kisku (P.W.6) and informant Bhandari Hembram (P.W.7). Learned counsel submits that though in the fardbeyan the informant alleged assault by sabbal on the legs and hand attributable to appellant Barka Hansda and on the head to the co-convict Chhotka Hembram but in his deposition during trial, he has reversed the role attributable to the accused Barka Hansda and not specifically stated about the nature of assault on any particular part of the body by the accused Chhotka Hansda. In fact during deposition the informant has stated that Barka Hansda assaulted on the back of the head of the victim by sabbal though there is doubt that such an injury was caused as the postmortem report shows some different kind of injury i.e. injury no.(3). Rest of the prosecution witnesses namely Bitti Murmu (P.W.1), Nachen Hansda (P.W.2), Gopal Hembram (P.W.4), Shiv Chand Kisku (P.W.6) who also claimed to have seen the occurrence from near by field do not attribute any specific role to the individual accused persons including the appellant Barka Hansda or the appellant Babudhan Hansda, the two surviving appellants. The nature of assault as stated by these prosecution witnesses is omnibus in nature, though Bitti Murmu (P.W.1), Nachen Hansda (P.W.2), Gopal Hembram (P.W.4), Shiv Chand Kisku (P.W.6) have stated that Barka Hansda and Chhotka Hansda were having sabbal in their hand. P.W.5 is a hearsay witness, the owner of the land namely, Misti Tudu. His testimony does not improve the case of the prosecution. In these facts and circumstances, it is not safe to uphold the conviction of the appellants Barka Hansda and Babudhan Hansda under Section 302/149 of the Indian Penal Code for having caused murder. P.W.5 is a hearsay witness, the owner of the land namely, Misti Tudu. His testimony does not improve the case of the prosecution. In these facts and circumstances, it is not safe to uphold the conviction of the appellants Barka Hansda and Babudhan Hansda under Section 302/149 of the Indian Penal Code for having caused murder. In support thereof reliance is placed upon the judgment in the case of State of Punjab vs. Sanjiv Kumar alias Sanju and Others, 2007 (9) SCC 791 in particular paragraph 8 where the opinion of the Apex Court in the case of Masalti Vs. Uttar Pradesh AIR 1965 SCC 202 has been profitably quoted. On these submissions the impugned findings have been assailed. It is prayed that the appellants deserve to be acquitted of the charge. 10. Learned Additional Public Prosecutor has extensively taken us to the evidence on record in order to substantiate the findings of conviction recorded by the learned trial court. It is submitted that in order to prove the charge of murder with the aid of Section 149 of the Indian Penal Code essentially two ingredients were require to be fulfilled by the prosecution (i) that all the accused persons were members of unlawful assembly and; (ii) they acted in furtherance of their common object of killing the victim Charan Hansda. The prosecution has been able to fulfill both the ingredients. Presence of all the six accused persons and the original appellants herein have been established by the evidence of the informant P.W.7, and other eye witnesses P.W.1 (Bitti Murmu), P.W.2 (Nachen Hansda), P.W.4 (Gopal Hembrem) and P.W.6 (Shiv Chand Kisku). P.W.7 (Bhandari Hembrem) in his deposition has fully supported the initial story set-up in the First Information Report and all the remaining eye witnesses have consistently deposed in favour of the prosecution case. In a case of unlawful assembly it is well settled that specific assaults by individual members of the unlawful assembly cannot be expected to be stated with precision by the prosecution witnesses. In a case of unlawful assembly it is well settled that specific assaults by individual members of the unlawful assembly cannot be expected to be stated with precision by the prosecution witnesses. However, if the prosecution has been able to show that the accused persons forming part of the unlawful assembly acted in furtherance of their common object as described under Section 141 of the Indian Penal Code and caused murder of the victim by use of weapon of assault like sabbal and lathi as in the present case, all of them are liable to face conviction for the charge of murder with the aid of Section 149 of the Indian Penal Code. Prosecution witness no.8, Dr. Madan Mohan Prasad Sinha, who conducted the postmortem on the dead body of the victim on the next date of occurrence i.e. 26.10.1985 at 08:30 A.M. found as many as nine ante-mortem injuries on the dead body described herein:- “(1) One lacerated wound on the left side frontal region scalp 2” x 1” x muscle deep. (2) One sharp cut injury on the left parietal region scalp 2” x 1” x BD. (3) One sharp cut injury on the right side occipitoparietal region scalp 2 ½ ” x 1” x BD. (Parietal bone corresponding to injury fractured). (4) Sharp cut penetrating wound on the posterolateral aspect left arm 1/2” x 1/4” x BD. (5) Two sharp cut penetrating wounds on the dorsal aspect of left palm 1/4” x 1/4” x BD. (6) One sharp cut wound on the left side leg close to ankle (Both bones cut through and lower portion peeping outside the wound 2 ½ “ X 2” x crossed to other side of leg) (7) One sharp cut wound on the anterolateral aspect left leg 1” x 1/4” x BD (8) One sharp cut wound on the anterior aspect right leg 3” x 1/2” x BD (9) One sharp cut wound on the medial side leg right lower portion 1” x 1/4” x BD.” Doctor has opined the cause of death was due to injury no.(3) leading to massive intracranial haemorrhage- shock and death. Time elapsed since death- About twenty four hours. The nature of the injuries on the dead-body substantiate the prosecution case that the assault was made by several persons. Time elapsed since death- About twenty four hours. The nature of the injuries on the dead-body substantiate the prosecution case that the assault was made by several persons. As such, though specific ante-mortem injury by hard and blunt substance may not have been noticed by the Medical Officer, but in the light of the judgment rendered by the Apex Court in the case of Masalti Vs. State of U.P. (Supra), the case of the prosecution cannot be out-rightly rejected, Paras 15 and 16 of the report is referred in support. Rest of the prosecution witnesses who have witnessed the crime from nearby plots, where they were ploughing the field, such as, P.W.1, P.W.2, P.W.4, P.W.5 and P.W.6 have clearly shown the presence of all the accused persons including these two appellants and also described the weapons such as, sabbal and lathi in their individual hands though it was difficult for them to describe specifically the kind of assault by individual persons and on different parts of the body of the victim in such a situation. This is also not a requirement of law in order to prove the charge of murder with the aid of Section 149 of the I.P.C. The time of occurrence, the place of occurrence and the manner of occurrence stand duly established by the weight of prosecution evidence. Therefore, the learned trial court has rightly convicted the accused persons including these two appellants under Section 302/149 of the I.P.C. and other charges. The appeal is devoid of any merit and fit to be dismissed. 11. We have given anxious consideration to the submissions of the learned counsel for the appellants, Mr. Niraj Narayan Mishra and Mr. Arun Kumar Pandey, learned Additional Public Prosecutor representing the State and analyzed the factual and legal grounds urged on their behalf. We have also carefully scanned the entire materials on record which include the fardbeyan, the framing of the charge, evidence of nine prosecution witnesses, two prosecution exhibits, the statement of the accused under Section 313 of the C.P.C., evidence of one defence witness and the defence Exhibit-A also. 12. We have also minutely perused the impugned judgment of conviction and order of sentence in order to test whether the case of the prosecution stands on its own footing and is proved beyond shadow of all reasonable doubt. 13. 12. We have also minutely perused the impugned judgment of conviction and order of sentence in order to test whether the case of the prosecution stands on its own footing and is proved beyond shadow of all reasonable doubt. 13. Upon careful analysis of the materials brought on record, we are in a position to observe as under: the prosecution story is that eight accused persons variously armed with sabbal and lathi (appellant Barka Hansda and deceased-appellant Chhotka Hansda armed with sabbal and rest armed with lathi) came to the plot where informant and his father were ploughing the field of Mithu Hansda taken on bataidari for the last 3 years. As the narrative in the fardbeyan goes further, these accused persons initially asked the informant and his father to stop ploughing the field. Informant's father appears to have resisted it and stated that he was cultivating the land taken on 'bataidari' from Mithu Hansda. Thereafter appellant, Barka Hansda is stated to have assaulted by sabbal on the hands and leg of the informant's father and Chhotka Hansda on the head by 'sabbal'. Rest of them are stated to have assaulted the victim- Charan Hansda by lathi. It is at this stage as per the informant, that Barka Hansda exhorted the accused persons to kill father of the informant, Charan Hansda. Thereafter the informant ran away shouting. Thereafter certain villagers assembled there when the accused persons fled away. Comparing the prosecution story set up in the fardbeyan to the evidence of prosecution witnesses, in particular the informant examined as P.W.7 and other prosecution witnesses, such as, P.W.1, P.W.2, P.W.4 and P.W.6 posing as an eye-witness, we find that though the evidence of these prosecution witnesses established the presence of the accused persons at the place of occurrence, but informant, while deposing as P.W.7, has reversed the role of the appellant, Barka Hansda and attributed assault on the back of the head of the victim by means of 'sabbal' to him. He does not specifically state the nature of assault by the other deceased appellant, Chhotka Hansda said to be possessing 'sabbal' in his hand. This Informant while deposing as P.W.7 has thereafter made omnibus statement about indiscriminate assault by all the accused persons on the victim by means of sabbal and lathi. He does not specifically state the nature of assault by the other deceased appellant, Chhotka Hansda said to be possessing 'sabbal' in his hand. This Informant while deposing as P.W.7 has thereafter made omnibus statement about indiscriminate assault by all the accused persons on the victim by means of sabbal and lathi. Though rest of the prosecution witnesses namely, P.W.1, P.W.2, P.W.4 and P.W.6 have named the weapon of assault in the hands of the individual accused persons, as above, but they have not described the details of the occurrence and attributed individual roles of attack by individual weapons on individual part of the body of the victim. Here learned counsel for the State is right in putting reliance on the opinion of the Apex Court at Para-15 of the case of Masalti (supra) quoted hereunder :- “15. Then it is urged that the evidence given by the witnesses conforms to the same uniform pattern and since no specific part is assigned to all the assailants, that evidence should not have been accepted. This criticism again is not well- founded. Where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants. Besides, if a large crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault. In the present case, for instance, several weapons were carried by different members of the unlawful assembly, but it appears that the guns were used and that was enough to kill 5 per- sons. In such a case, it would be unreasonable to contend that because the other weapons carried by the members of the unlawful assembly were not used, the story in regard to the said weapons itself should be rejected. Appreciation of evidence in such a complex case is no doubt a difficult task: but criminal courts have to do their best in dealing with such cases and it is their duty to sift the evidence carefully and decide which part of it is true and which is not.” 14. Appreciation of evidence in such a complex case is no doubt a difficult task: but criminal courts have to do their best in dealing with such cases and it is their duty to sift the evidence carefully and decide which part of it is true and which is not.” 14. Presence of the accused persons including these two surviving appellants as a member of the unlawful assembly at the place of occurrence has, therefore, been proved by the prosecution and is not a matter of doubt. But whether the unlawful assembly had a common object to murder the victim- Charan Hansda and they acted in prosecution thereof or knew it to be likely to be committed in prosecution of that very object is definitely a matter of speculation. We have reasons to observe that though these accused persons came armed with sabbal and lathi to the place of occurrence, but as per the case of the informant in the fardbeyan i.e. the First Information Story, their object was to stop the informant and his father from cultivating the land of Mithu Hansda. It was only after the father of the informant resisted and justified the cultivation of the said lands on the ground that he had taken it on bataidari from Mithu Hansda, an assault took place by appellant- Barka Hansda by means of sabbal on the hands and legs and Chhotka Hansda on the head of the victim. Though, the informant specifically alleged indiscriminate assault by other accused persons by lathi at that stage, without specifying the names of individual accused persons, but the medical evidence on record in the nature of post-mortem report (Exhibit-2), extracted herein-above, does not show assault by lathi. Injury Nos.(ii) to (ix) are sharp-cutting injuries while injury no.(i) is a lacerated wound on the left side of frontal region scalp 2” x 1” x muscle deep. This injury could be as a result of an assault of the sabbal or perhaps lathi. Proceeding further with the informant's case, as set up in the fardbeyan, we find that it is thereafter alleged that the appellant, Barka Hansda exhorted the accused persons to kill the victim. Thereafter the informant ran away to his village shouting. This injury could be as a result of an assault of the sabbal or perhaps lathi. Proceeding further with the informant's case, as set up in the fardbeyan, we find that it is thereafter alleged that the appellant, Barka Hansda exhorted the accused persons to kill the victim. Thereafter the informant ran away to his village shouting. It is clear that till that stage, the unlawful assembly did not have a common object to kill the victim- Charan Hansda nor could be said that the accused perhaps knew it to be likely to be committed in prosecution of that very object. Prosecution has not been able to show from the evidence on record that such a common object to murder Charan Hansda was formed by the unlawful assembly at the spur of the moment at that stage. 15. Apart from the above, since we have found that out of the total number of nine ante-mortem injuries found on the body of the deceased, rather none of them could be attributable to an assault by lathi, therefore, it is all the more difficult to believe that all these accused persons bore a common object, as members of the unlawful assembly to kill the victim Charan Hansda. The ocular testimony of eye-witnesses, P.W.1, P.W.2, P.W.4, P.W.6 and also P.W.7, the informant though attribute omnibus assault by lathi on other accused persons, but the medical evidence does not corroborate that. In these circumstances, when the charge is of assault by several accused persons, in furtherance of a common object, as members of the unlawful assembly to cause murder of Charan Hansda, we are bound to be guided by the note of caution advised by the Apex Court in the case of Masalti (supra). This has also been followed in the case of Inder Singh and Others Vs. State of Rajasthan, reported in 2015 (2) SCC 734 . In this regard the judgment rendered in the case of Sanjeev Kumar Alias Sanju and Others (supra) (2007) 9 SCC 791 relied on behalf of the appellants also applies to the facts of the present case, where the opinion rendered in the case of Chikkarange Gowda and Ors. Vs. State of Mysore, AIR 1956 Supreme Court 731 and in the case of Masalti Vs. State of U.P., reported in AIR 1965 Supreme Court 202, has also been cited. 16. Vs. State of Mysore, AIR 1956 Supreme Court 731 and in the case of Masalti Vs. State of U.P., reported in AIR 1965 Supreme Court 202, has also been cited. 16. The Apex Court has held herein-above that since the foundation of the applicability of Section 149 I.P.C. is constructive liability, the emphasis is on the common object and not on common intention. The mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141. When common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of section 149. The word object 'means the purpose or design and, in order to make it ‘common’, it must be shared by all.” In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. It may be modified or altered or abandoned at any stage. The expression “in prosecution of common object” as appearing in Section 149 has to be strictly construed as equivalent to “in order to attain the common object”. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. 17. As observed herein-above, we are of the considered view that the unlawful assembly lacked the common object of causing the murder of the victim- Charan Hansda when it initially met. Prosecution has not been able to show by any weight of evidence that the common object of the assembly turned into object of murder of the victim- Charan Hansda when appellant, Barka Hansda exhorted the other accused persons to kill him. 18. We have all the more reasons to say so since even after such exhortation, there is absence of any injury by lathi on the dead-body of the victim. 18. We have all the more reasons to say so since even after such exhortation, there is absence of any injury by lathi on the dead-body of the victim. As such, an unlawful assembly was formed, but it definitely did not have an object to kill the victim- Charan Hembram neither did it turn into the common object of killing him after exhortation of the appellant, Barka Hansda. As such, appellant, Barka Hansda who has assaulted the victim by means of a sabbal, a sharp-cutting weapon along with Chhotka Hansda was individually responsible for causing the murder of the victim- Charan Hansda as the charge under Section 302 read with Section 149 I.P.C. has not been proved against other accused persons. 19. As such, the conviction of the appellant- Barka Hansda is modified to one under Section 302 of the I.P.C. However, as we have held herein-above, appellant -Babudhan Hansda was also part of an unlawful assembly though may not be having the common object of killing the victim- Charan Hansda, he is liable to suffer conviction for the charge under Section 147 I.P.C. Therefore, his conviction under Section 302/149 I.P.C. is set aside. The appellant, Babudhan Hansda is stated to have remained in custody for approximately four months. The trial court has not awarded any sentence under Section 147 of the I.P.C. as against the convicts including the appellant Babudhan Hansda. We are thus, of the considered view that the period of custody undergone by the appellant, Babuudhan Hansda would suffice for his conviction under Section 147 of the I.P.C. The appellant, Babudhan Hansda is, therefore, discharged from the liability of his bail bonds. 20. Appellant, Barka Hansda is convicted under Section 302 of the Indian Penal Code. As such, his bail bonds are cancelled. He should be taken into custody to suffer remainder of the sentence of life imprisonment as already awarded by the learned trial court. 21. In the result, the present Criminal Appeal is partly allowed. 22. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.