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Only persons armed with deadly weapons liable

Appellate Division
 (Criminal)
ABM Khairul Haque CJ
Md. Muzammel Hossain J
SK Sinha J
Judgment
3rd January, 2011.
Mukit and others ........
.........Petitioners
vs
State ..............     
............. Respondent
Penal Code (XLV of 1860) Section 107
Section 148 is attracted only when a rioter is armed with a deadly weapon. A person can not be convicted under this section unless he actually had a dangerous weapon in his hand. Only the actual persons who are armed with a deadly weapons would be liable for the aggravated offence of rioting. .... (16)
Dr. M. Zahir, Senior Advocate. instructed by Mr. Syed Mahbubar Rahman, Advocate-on-Record-For the Petitioners.
No One-For the Respondent
Judgment
SK Sinha, J: This petition for leave to appeal is directed against the judgment and order dated 26th October, 2008 of a Division Bench of the High Court Division in Criminal Appeal No.2213 of 1997 affirming that dated 30th October, 1997 of the learned Additional Sessions Judge, First Court, Sylhet in Sessions Case No.2 of 1994.
2. Facts relevant for the disposal of this petition are that the petitioners were put on trial before the learned Additional Sessions Judge to face charges under sections 148/447 and 302/149 of the Penal Code, accused petitioners Babul and Selu under Section 324 of the Penal Code, accused Angurer Nessa under Section 302/109 of the Penal Code and accused Mukit under Section 302 of the Penal Code, to which, they pleaded not guilty and claimed to be tried. The prosecution in support of its case has examined 13 witnesses but the defence examined none.
3. The learned Additional Sessions Judge on assessment of the evidence on record found the petitioners not guilty of the charge under sections 302/149 of the Penal Code. He, however, found the petitioner Mukit and Angurer Nessa guilty under sections 302 and 302/109 of the Penal Code respectively and sentenced them to imprisonment for life with a fine of Tk. 5,000 in default to suffer rigorous imprisonment for 1 (one) year more, the petitioners Babul and Selu under Section 324 of the Penal Code and sentenced them to suffer rigorous imprisonment for 2(two) years with a fine of Tk. l,000 in default to suffer rigorous imprisonment for 1 (one) year more, all the petitioners under Section 148 of the Penal Code and sentenced each of them to suffer rigorous imprisonment for 2(two) years with a fine of Tk. 1,000 in default to suffer rigorous imprisonment for 3(three) months more, and also under Section 447 of the Penal Code and sentenced them to suffer rigorous imprisonment for 3(three) months with a direction to run the sentences of Mukit and Angurer Nessa concurrently.
4. On appeal from the aforesaid judgment and order of conviction and sentence, the High Court Division, by the impugned judgment maintained the conviction and sentence.
5. According to the prosecution story, on 6th June. 1993 at about 8 a.m. the occurrence took place towards the northern side of the house of Fazir Uddin since deceased over felling and selling of some trees. It is alleged that the accused persons forming an unlawful assembly trespassed into the place of occurrence and at one stage they attacked Fazir Uddin with deadly weapons. It is alleged that Mukit gave a blow with a koach, a pointed weapon, on the chest of Fazir Uddin when Laich Uddin (PWl), the informant, resisted him. At that time accused Babul inflicted a blow with ballom on his chest. Salu inflicted a dao blow on the hand of Maruf Uddin (PW 5), the informant. On hearing cries, it is alleged, other witnesses approached to the place of occurrence and then the petitioners left the place. The victim succumbed to the injuries on the spot.
6. Before we enter into the merit of the case, we would like to observe that the High Court Division committed a fundamental error in affirming the judgment of the learned Additional Sessions Judge so far as it relates acquitting the accused-petitioners of the charge under sections 302/149 of the Penal Code although he found them guilty under section 148 of the Penal Code. Section 146 defines rioting. It says, whenever force or violence is used by ·an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting. The offence involves, the use of force or violence; by an unlawful assembly, or by any member thereof; the prosecution of the common object of such assembly. An unlawful assembly has been defined in section 141 of the Penal Code. To constitute an unlawful assembly, there must be (1) an assembly of five or more persons; (2) they must have a common object; and (3) the common object must be one of the five conditions specified in the section. An assembly' which is originally lawful may become unlawful, if a proposal is made at the meeting to do an act of violence to the disturbance of the public peace and ·the proposal is acted upon. Therefore, the very definition of the offence of rioting in Section 146 involves constructive liability.
7. If any member of an unlawful assembly uses force or violence, all the members of that assembly would be guilty of rioting. The Court can convict those rioters who were armed with deadly weapons at the time of commission of rioting under Section 148 of the Penal Code.
8. The difference between the offences under Sections 148 and 149 of the Penal Code is that Section 149 contemplates only constructive liability whereas section 148 deals with direct liability. Section 149 prescribes for vicarious or constructive criminal liability for all members of such an unlawful assembly. Where an offence is committed by any member of such unlawful assembly in prosecution of the common object of that assembly or such as the members of that as