The State of Assam vs Harmohan Rajbongshi and Others

S.N. Phukan J.

This is an appeal by the State against the Judgment and order of acquittal passed by the learned Sessions Judge, Nalbari in Criminal Appeal No. 47 (N-4) of 1986 on 25-7-87.

9 (Nine) accused persons were booked for trial before the learned Judicial Magistrate, Nalbari u/s 143/323/IPC in Case No. GR 385/82. The learned trial Court found all the accused not guilty u/s 323 IPC. Regarding charge u/s 143 IPC learned trial Court found all the accused persons except Moti Rajbongshi guilty u/s 143 IPC and convicted them accordingly and sentenced to pay a fine of Rs. 75/- each and in default S.I. for 7 days for each accused persons. In appeal the conviction was set aside.

Heard Mr. Goswami, learned Public Prosecutor. None appeared for the accused-Respondents.

On perusal of the Judgment of the learned lower appellate Court I find that the Court held the conviction u/s 143 IPC alone cannot be sustained unless persons are also convicted under some other section. According to Mr. Goswami the learned lower appellate Court did not consider at all whether any offence under any other section was present in the case in hand.

Section 141 IPC defines unlawful assembly.

According to the said section assembly of 5 or more persons having one of the five specified objects as mentioned in the section as a common object would attract the provision of the said section. Section 143 IPC inter-alia provides that any member of an unlawful assembly shall be punishable with imprisonment of either description for a term which may extend to 6(six) months or with fine or with both.

The essence of this offence is the object of the persons forming assembly, whether the common object is in their mind when they come together, or whether it occurs to them afterwards, is not material. But it is necessary that the object should be common to the persons who are members of the assembly. In other words they should be aware of it and concur in it. A person cannot be deemed to be a member of unlawful assembly unless it is shown that he is aware of the facts that render the assembly an unlawful one and intentionally joins or continues in it.

In the case in hand what was the common object of the assembly has not been made out by the prosecution. The prosecution has also failed to prove that the accused persons were aware of the common object and also agreed with it. There is nothing on record also to show that with the common object in view immediately accused persons committed any offence. Therefore, the main ingredients of Section 143 IPC being absent I entirely agree with the lower appellate Court that it is a fit case for acquittal.

For reasons stated above, I do not find any merit in the present appeal and accordingly dismisses.