Decided on November 04,1982

STATE OF ASSAM Respondents


R. B. Misra, J. - (1.) Special leave granted printing dispensed with. Copies of paper book used by the High Court while hearing the appeal against appellants have been furnished to us. With the consent of parties, we proceeded to hear the appeal on merits.
(2.) In Sessions Case No. 75 (D) of 1974, 17 accused including accused No. 2 Heramba Brahma and accused No. 3 Amar Singh Brahma (appellants herein) were tried for having committed offences under S. 120-B and Section 302 read with Section 34 of the Indian Penal Code. The learned Sessions Judge convicted accused Nos. 1, 2, 3, 4, 6, 7, 10 and 11 for having committed offences under Section 120-B and Section 304 read with Section 34, I. P. C. and sentenced each of them to suffer rigorous imprisonment for 5 years and to pay a fine of Rs. 500/-, in default to suffer further RI for 6 months for the-offence under Section 302 read with Section 34 of the Indian Penal Code (Sic). No separate sentence was awarded for the offence under section 120-B of the I. P. C. The accused Nos. 5, 8, 9, 12, 13, 14, 15, 16 and 17 were held not guilty of the offences with which they were charged and were acquitted. The accused who were convicted, preferred Criminal Appeal No. 140 (114 ) of 1975 in the Gauhati High Court. The High Court allowed the appeal of accused Nos. 1, 4, 6, 7, 10 and 11 and acquitted them of all the Offences for which they were convicted and set aside the sentence imposed upon them. The High Court upheld the conviction of accused No. 2 Heramba Brahma and accused No. 3 Amar Singh Brahma for the offence under Section 304 read with Section 34 of the IPC and confirmed the sentence imposed Upon them. Hence, this appeal by special leave.
(3.) Briefly stated the prosecution case is that the deceased Santosh Kumar Brahma, former student of Sapatgram Amalgamated Academy accompanied by P. W. 5 Dilip Kumar Brahma visited Sapatgram on June 3, 1972 to meet his friend Dharmeswar who was staying in the hostel. On an invitation by Dharmeswar, all of them visited a theatre at the time of second show and returned to the room of Dharmeswar in the hostel at night. Santosh Kumar and Dilip Kumar slept on the bed of Dharmeswar who shifted to another for accommodating his friends. Some time during the night led by accused No. 3 Amar Singh Brahma, several boys came to the room where deceased Santosh Kumar was sleeping, opened to door called out Santosh Kumar and accused No. 3 Amar Singh Brahma asked him why he had assaulted them previously and that Santosh Kumar would be beaten. All the boys in the room assaulted Santosh Kumar. P. W. 5 Dilip Kumar, companion of Santosh Kumar tried to intervene, but on being threatened, he moved away. Santosh Kumar attempted to escape by running towards the house of the Head Master Shri Panchanan Medhi crying out for help. Shri Panchanan Medhi, Head Master of the Academy woke up from his sleep and emerging from his house, be saw two persons running away towards. the boarding and Santosh Kumar lying injured. He rushed to the dispensary to bring medical help and simultaneously told Shri Sujit Kumar Bose, Assistant Head Master of the school to summon the police. In the mean time, Santosh Kumar succumbed to his injuries. PW 8 Sujit Kumar Bose, the Assistant Head Master gave information at the Police Station and an offence was registered. Autopsy was performed on the dead body of Santosh Kumar by PW 1 Dr. D. N. Sharma. He did not find any external injury, but on internal examination, he found fracture of nasal bone, a linear fracture of frontal bone and internal haemorrhage. In the course of investigation, 17 accused persons including the two appellants were arrested and ultimately sent for trial, with the result as set out hereinabove.;

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