Raju, J. - (1.) These two appeals are at the instance of twelve accused, who remained convicted throughout after acquittal at different stages of the remaining accused out of the total number of 25 who stood charged before the learned Sessions Judge, Barpeta, for offences under Ss. 302 and 201 read with S. 149 of the Indian Penal Code (for short IPC).
(2.) The necessary facts for appreciating the grievance of the appellants are that the case had its origin initially with a G.D. Entry No. 115 on 3-8-1989 registered at Barpeta Police Station at 6.30 p.m. on verbal information followed by a formal written FIR that was lodged by one Rupchan Mia, on the same day at 7.00 p.m. As per the version of the FIR on the fateful day, i.e. 3-8-1989, at about 4.00 p.m. when three persons viz. Tara Mia, Saket Ali and Owaz Khan were fishing in the Dhaneswari Beel, the accused armed with sticks, spears and other deadly weapons attacked those persons inflicting serious injuries resulting in their death and thereafter dragged the dead bodies and threw them in the Pahumara River. At the time of occurrence, hue and cry was also said to have been raised attracting crowd, which included witnesses Manowara Begum and Hussain Mia and the accused were said to have attacked the above two and also caused injuries on their person as well. In the FIR, reference was said to have been made to 24 persons by name and others generally, as the accused responsible for the incident and after completing the investigation, charge was laid on them viz. about 26 under the provisions noticed above to face trial before the trial Court. Since one of them by name Abdul Latif, who was also included in the charge-sheet, died during pendency of proceedings, the trial was confined to the remaining 25.
(3.) During the trial, the prosecution examined about 11 P.Ws. to substantiate the charge, of whom P.W. 1, P.W. 2, P.W. 8 and P.W. 9 claimed to be the eye-witnesses for the occurrence and P.W. 5 and P.W. 6 were the Medical Officers, who conducted the post-mortem examination. It appears that despite serious efforts, during the course of investigation, only the bodies of Saket Ali and Owaz Khan alone could be recovered from the Nakhanda river, but that of Tara Mia, could not at all be retrieved. The learned trial Judge, after considering the materials on record, by his judgment dated 10-2-1999 in Sessions Case No. 13 of 1994 found that the prosecution established its case against 16 enumerated accused and acquitted about 9 of the accused on the view that the evidence could not establish and prove the charges against them beyond reasonable doubt. The convicted persons were each sentenced to life imprisonment with a further fine of Rs. 2,000/-, in default of payment to further suffer six months R.I. under S. 302 read with S. 149, I.P.C. For the conviction under S. 201 read with S. 149, I.P.C., they were sentenced to five years R.I. along with a fine of Rs. 1,000/- each and three months R.I. in default of payment of the same. The convicted accused filed two separate appeals viz., a group of 10 - Crl. Appeal No. 57 of 1999 and the remaining 6 - Crl. Appeal No. 68 of 1999. A Division Bench of the Gauhati High Court by a common judgment dated 9-1-2002 chose to confirm the conviction and sentence in respect of 12 accused, who are appellants before this Court, acquitting four more by giving them benefit of doubt in addition to those acquitted by the trial Court.;