Jharkhand High Court
Tr vs The State Of Jharkhand on 8 February, 2021
IN THE NIGH COURT oF JHARKHAND AT RANCH?
(Criminal Appellate Jurisdict ion}
Aequittal Appeal Na.23 of 2004
With
Criminal Revision No. 374 of 2004
fudgment of aoquittel dated 28.12, S¢H hs
{Heard through V.C on O1% & 02° Februsss APY,
in Acquittal Appeal No.23 of 2004:
er Esh 3 X evs Foy wae
State of Jharkhand . Appellant
AEDT ES
Ve ersus
i. Jaglal Hember am, son of ater Hembram
2. KRande Gag (Tune Gagrai, sen of Durga
Sagar Gleadd}
3. Shiva Hembror my, san of Patar Hembrom {dead}
4, Passing Hex nibrom, son of Budhram Gapgrai
S. Sanil: Hembr ram i Suni Kumar Hermibrorn,
'
SU of Passing He miram
a Hem ore SON or oe kun Gaerai
Tikun Cagrai, s Son ofl Late oR am Singh Gagre
. © Durga Gagrai (de ad}
fe Thun Gagrai
2 Ram Singh Gagral
+ Reraikiia, Distt West
, Respondonts
Bs
AND
in Criminal Revision No.374 of 2004;
Tr
Budhni Kui, daughter of Late Ratho Gograi, resident of v
E J&PS-Ker aikella, Distt.-Singhbhurm West " Betitio,
Versus
. The State of Jharkhand
. Jaglal Herbs rem, son of Late Patar Hembram
Kandey Gorrar @ Tun Gaorrai, son of Late Durga Oagral ide
a Hermbram, son of Late Patar Hembrom idead)
y 3 Hes m2 abr am, son of Late Sonia Herbrom
NW Kurnar Hembram, son of Sri 2
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ami ae Mariki Gaprai, son af Late Tkan oy
Mumeru 'Gostal, son af Late Budhrs am Gagral
. Pueun Gaerai, Son of Late Ram nigh Gagrail
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ate | "Ram Singh ¢ Mapral
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PMEQNESS gf 2 # t. AS oy 8Qag pe HEN were pasted for hear ng. Today, as fate weuie are ne ws ing towards ¢ guillotine. We have penned We feel thar the Present cs AYSEEDY Seems to af such accuser acquitted by the trig] SOOHIr would be reach} ig the age af 85 Years g SERRE SS SPS 3 Se THis is a sts x¥ Of brutal igny delusion that they were Practicing witchcraft Over Budhni uj alsa refe rrecd as Gagrai i} is the info Wriant On the has sis af hey fardhevan Which was recarded at OF 2002, Bandgaon (Reraikellay pos Case No, Se ae registered under Sechions 147 /14R SP 14OFaSyy £3 Indian Penal Code and sectiany 3 Lod (Dagin} Practices Act, 1999 Hembrom, Sunil Herm brom (ed Hen abrorn, Mangra vagral, Rundi ya Gagrai, » Ton Carr eye Tunny Gagrai, Passing Gasr:
Sukhilal agra The jn formant has state the accused PETSONS armed with let, bhote and A Rouse early Torning at about O00 AM and star ted seed ERASE :
father and ¢ tiother, They killed then; Saying that they iUness ta Madhn Hembrom by playing witche raft over vf os further stated tha Pike accused persons carried the de pointing t vestigation charge-sheet was filed on 24.10 2QO2 s above-named ACCUBEd persons, except Passing AET Badu Rary Kandiyang, Bapn; a Lothar and Pa x 80 foune invalyed j9 the OCCLIPence and, < were framed arainst Weve gecused RPEPSONS Under x re i439 149/ FO? §SOS/2Q1 of the Indian Penal Cade and sec 4 of) the Prevention of Witch { (Dsain} Practices 8 Act, vide artes 31.08 20 OS. Badu Ram Kandlyang died immediately the vide order dated 23.07 2003 the record was spht tee SORES SDR St Bo tly Revidon JUTIES TR < .2
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og actor h aD Ot rae SUT E £ ssed in 8 Gapr x > io Ga to Ga te ric rs PSs framed a 5 ad LORS x A} :
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02.2004 p sedi & 3 ¥ aah RCI LD = nik ¥} sharp cut wound over the ck SFOS CUE fans read w shh SO) af the Coce of Criminal Procedure.
6. The provisions of the put ne Hmitation on th appeal against as a rule of prudence restraints have been prescribed. Lord Russell af x written that the High Court in its conduct of the appeal sheauis a venee weak Wik.
hep t yoke syd digs He aN PEA PA NS > ACE PD GOOTaQanne Ww TRIES ang ete eae ceed} 2» rules and principics well recognised im the administration of justice. Since Swarup" has been followed by the Courts in India. In oN 2 State of Punjale™ "the Hon'ble Supreme Court has « before interfering in appeal with am arder of acquittal Court must examine not emiy the questions of law anc fac their aspects but must also closely ard carefully ecxan reasons which impelled the lower Courts to acquit the sect should interfere only if satished after such exarmahan conclusion reached by the lower Court that the muilt of 1 aS has not been proved is unreasonable. In yet another epixt "Ghurey waiou, State ef UP' the Hon'ble Supreme © obascry ed that the Appellate Court in dealing with the cs an ris have acryultted the accused should § . rind that the trial Court's acquitta) bolsters the presumyp Laat the accused is Innocent. Theugh the High Court would be ¢ to reappreciate the entire evidence independently and come to own conclusion once the appeal against acquittal is enier we all know, if is alsa well-settled that the Appellate Court nat ordinarily interfere with a judgment of acquittal in a ca a two views are possible even though the tral Court's view t appear 'more probable ane'. As a cerollary to this, we may & ena urt believes that there is same Neat the Ap spela ate €%e pointing the accusing finger towards the accused the ach rittal recorded by the trial Court cannot be interfered w wed a kee eo these principles in mind ard new psan me SEC ASG & proseoution evidence Laid ciurme the trial, re Buring the trial, PW who is daughter of the :
we has stated in the Court that Mangal Singh Hembrom and Hen 'brom dragged her parents outside the house and then oN ok eS accused started assaulting them. Their dead bodies were taker as away by the accused towards forest, maha. She has stated that the house of Passme Hemdrom was if front of her house about 30 5
-
alsn nearby. She has further stated that there was ho is brothe he came out from his house and s > danda, Phufal, fangi and baw & arrows.
af the house and dragged "his wile"
eh her the accused assaulted Kim. In his cross-exariination, he AAS stated that his Rouse is adjacent to the house of his be 7-8 hands away, the house of Mangal Singh Hembrom was at 4 feet and the house af Passing } rt OLED opposite to bis house. PWS who is son of the deceased has § that tne accused armed with weapons came, brake oper tie and dragged out his parents from the hause. They killec ¢ them anc * carried their dead bodies ta the forest. He has further sts fee) Madho Hembrom was i] and the accused were suspech mother had played witchcraft on him. in his cross-exs has however admitted that he did not tell the police about the dispute over a pathway befween his father and Passing Nem The accused killed his parents near the hause of Mar TE on aeny Peep ee eee byt pee Sob ee Hembrom which is about vareds saw blood at the place of ocmurrence, im her house and she has witness at her vporameah. She has alse state:
ed gut Rote Gagrai and Pal henase and assaulted them near the house of Pass and Mangal Singh Hernbrom. She has alsa stated that the accuscd é rts es rts 7 ws YS LS oe vee yee wee eooei oe eee ne seer ye re vines XS at ae .
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' vee, law that their testimony is required to be examined with reliability of the evidence of PW3 who was of fender m accurrence, we would simply say that sects Evidence Act is a complete answer fa the plea by reason of tender age a witness r endeared incompetent to give evidence. We have maticed fra:
deposition o fF PWS that considering his tender age the le the 7 Court The age of a child is 5 defintely for 8 r;
wee ne ok > oad om "
faa rtm, a ms fant on pete rh wv 4h r age maay be swayed away by what others may tou ont, yim, but there is ne trace of Gatering in the testumony at
12. The evidence of the informant im the « my the del fence with that thet ® APE SeTIOUS mconsistenc 18 i the wearyic described by her, such as, whether the oeourrerice has tk inside the house or near the house of Mangal Singh Herm Pray father was assaulted first or the mother. fy ie FX fardbeyan, PW has stated that 'the accused started a parents inside the house, But in the Court she Ras 5 3s of her Rouse. PWe, PAWS and PW have s sauiited mear rye Roto Gagral and | of therm close examination of the testirnany of these x eee.
at similar questions in different larms Prasec He utien witnesses to confuse them and from them are projected as contradictions m their teatimony. The relevance ol F the place of oecurrence in a criminal case chan one reason. In order to establish presence of the wl the time and place of cecurrence the prosecution is sccurrence. A defence may be set daries af the place af qeeee wane aegnittat a gpoat Bon Siow ROSS Week fin Revision Ra. 2S of rence, The prosecution wW Jtnesses are inmates of the 3 ineident occurred at around 04-00 AM. The presence of Sts POMERUTIOT WHTESSES in their house in the wee hau eee peter rye oF OF 2002 canneat be doubted. They are the competent wrlnry who can tell the Court what had happened there. in the in peebve accused were invetved and Rote Gagre al and have receiv ed several injuries. The informe ant has state accused stormed | the house and caught hold of her parents, § PWS and PW have stated that the accused dragged Palo G and Rete Gagrai outside the house and attacked them. The os ys episode must have continued for some time and the witnesses had sufficient tame to identify the accused. in these facts a ite sy difference in the place of oncurre;nce | is immaterial The gecx location of the hause of Falo Gagrai and Marge Singh Hem sora OF Passing Hembram Was ammiaterial and staternent of the inform that she hid inside the room wold not cloud her stand £ mn ey witness ~ she has seen the accused in the hose.
vadar i State of Bikar" the victim was killed near & KRahus t and his dead body was recovered from & nearby Ves witnesses had seen the accused carrying the dead body and bled SERITES were found at both the places. in the First bxtc Report there was Ne mermtion about geasanit near a Kanu ¢ The Hon'ble Supreme Court has held that absence of blood trails * bepween the bwo places and non-mentioning of the Kal se the First Information Report were rot ¢ encugh to doubt che 6 OCCHATENCES.
13. She informant has atated in the Cross-Ons aminasor owas a dark cloudy night and difficult fa see Mec aroy objects. TERS evidence has been pressed by the respondents out of propertion {9 contend that i was impossible for the informant © accused. In the first piace, the respondents are ooewdll nany of them were residing in the near vicinity. FS anc ANS have deposed in the Court that there was electricily i tae house - PW2 is specific fhat in the night the Ra Arpiitet Ags tn, Rewitiyn No. OY Or in me house. After eliciting from the irdormant that t ay Hi was diffiealt fo see nearby stopped her examination om this p ether there was sufficient leht to mot pul to her. The occurrence has taker around O4¢:00-04:30 AM in the month af Juby wher sun * 9 AM to OS:58 AM and if is cammion knoawis ay .
Whee des i he SLE time ¢ sf oce Urremmece.
id. The learned trial Judge has found the SST fous en the ground that the place where slater 8 tudhni Kui was recorded by the Investigating WS TO proved | r the prosecution, is. A Pirst Infermation Report contains the infor mation received in relation to the cormmis sion of < we offence al el its witiity curing the trial is:
information Report is nat a substantive net contain the niinute details of the oncurrence, it conta name of all accused persens; - ane what would be af such omissions is a matter for appreciation af evider present case, the defence fas failed to demonstrate that :
= of F Budhni Kui in the Court was so dramatically opp or that there was such delay in lndging the leads to an inference that the accused persons were TYEE this case after due deliberations.
ek, is. The statement of Budhni Kani in the Court that 1D: Oo AM the police came in the village when she statement is the main peascan fo dentbt fardbeyan was recorded, The fordbeyan of Buc hn laid in evidence, duly proved and mar wed ag Exhibit ts re ecords that statement of Budhni hui Singh, oefficer-in-charge of Keraisena & BS at A * wt FOF 2002 in the police : wien. The investigating Paaad senceed m the Court that at about 09.00 AM B aera ot Beer See hy oye cy sey mek be ee Shao 3 yy Seer eRe grurder ef Ber hather arg mother. The information was pee oe (Budhni {ui} came to the pouce station and gave information recercded in station diary and her statement in "Ho* ba translated by NRishor Ge and reduced into wrt fardbeyan. He has further stated that the fardbeyan was oe Easing? Bie hye Klieher (Sarai se Une) oe eee co Badhr 4 Kut by Bisher Gagrat us her aangliag zy * . vat Peep tisgae ky ory "e hk PL Ya ¥en unders stood the same she pul her thumb impression LT Ia ae Court, the avfermant has owned her fardbeyan. PW Cragral has deposed in the Court that he had gone to stahiors to Jods IN. farmation about the ocomurrence atidi at that & Buedhad Kul was also with hirn Brom the records, we x ai ' . officer reached village Bangrasai at about 1a:
and as stated by Budhni Kui her statement was rec eordes police, The slatement of Budhni Kul appearing in paragrap of her erass-examination apparently has ee *3 restatemen wt recarded by the investigating officer uridier Thy of the Code of Crimimal Procedure, and not about he PAPAL aph mo. Sp that s ef Passing Hembrem ty which she has stated Unt oN ecasions s she did tell narne of Passing Hembrom to the poauce y aye a}, Her statement im paragraph no. 9 reaffirms Ural fer "yestatement" was taken by the investigating officer, ermal procechure adopted by every ivestigaliig cae me taking charge af the investigation. One sentence m ibe :
eS of Budhni Kui - and, which at the first glance dags mot Su) Bs put to her as fer evidence questiynvanswer er farm as is being done m most WS pic! ked up by the prose cution case, That is Cary be appreciated. The evi idence must | Court should endeavour to HAP ee sHmes apgear ta be ince yt mano -abrasior 5 should be ignored. Th roe EP and quality ity of his evidence are affected when the withess Se seal or, when he improves or omits or exag pyates from His previcus statement ta such arm extent that Ris evidence im becomes "contradictory"
pene <F x ey se bees tenes wee FASE RO OY es A WES S TYMEY PROT DOSSOSS oo Pe not say every ecourrence before the police or in the Court. The test witness is net decided by any mathematical tool ans upon precision in his evidence would be an impractic A witness may seem to have given verated vere aceurrence or he may say something whieh compared of other wiihesacs pear Inconsistent amissicn or exaggeration in inconsisien which may amount to contrac 8 KL, section 162 of the Code of Criminal procedure indicates Wat vanes omission tu state a fact or circumstance e by a : vs statement miey amouni to corlradictien, w Same appears to be significant or otherwise relevant ~ % omission armounts to contradiction in the particu CHies stion ef feet. Burn, dS has said that x Son can never be identical. SP yt ger een 'eortradi <i et doubts te rest and held that all omissions are not oa fo Creu ig was observ ed that cantrad:
an ing up of one statement against another and neo . 2 3 Ta, TTS ab ALL EP Singh' the witness stated im the Court about soe gun fram. the accused and he was contradicted by ataternent w therein he frac met s of the gun. The Hon'ble Supreme Court has held that om i pom Has to ui Kulis a@ figment a a AtaguHiat Aged SS Sai sdy Becktns Ne. SES of SEIN and nat real, is. SHD Rarther, the praserution story was doubted : ihe gr ound that the mivestigating officer has mot found breken im the house a! deceased. In dealing with the merits * ' et St Pye PERE MS Sas CON tention, we have closely examined evisience of the pre witnesses and find that there i: evidence which was missed out by the learned trial that the prosec CHIGH whine breaking the deer and no broken deur was found bs the investigating officer, but the doubt is removed wher we testimony of PW aecused stormed eross-exanminatian that are vill ager s, they hel from tribal ar witnesses. When they said that the ac the house they dic not mean that the door itself was $ Furthermore, the learned trial Judge has erronecusiy PW has prafected a new case because he referred fo the woman oS ho was killed as his wife. The wife af PWR was examines orbs and she has stated in her evidence that Roto Gagrai was PRN brother-in-law. The discrepancy in the name of Palo Gagrai agral - Spoken by PWS) and PW2 calling witness ard sought a mist ake in recording | of Reto Gagrai, his brother, and not im his house.
the woman who was killed in the occurrence was ot Noto Gag rar, bath parents of PW and PWS.
during the trial identity of the deadl persons was mot c x 18, The recovery af dead bodies af Ene instance os Hembrom was disbeliewed by the learned trial Juc were > t z 2 Kan Hasse aya > € r t yeah APO n et reread x ¥ OQ rs kaS EN Te ¥ We FAETAl € 1S i > y he OS os Use = <3 oe ; ereieead - Pe eh SENS ie Acted Appt Ne 23 of SSS te Reviiean Ra, SPA af Bod Sa.
PWS has stated that he put his signature on a blank pa aforesaid statements of PWS and PWS in their cross-examins sis ay yy yr of ey tives i A ygty Or oe ES ee ONS eb EP ea ge would mm mo way challenge the prosecution case that imetarice of Siaanil Hembrorm the dead bodies were reco, grosesulion ovidence is that the dead bodies were found im a dich which was covered by stane. Passing Hembrom Sturel Hembrom were present there when the dead bodies were reco arel this part of evidence of PWS has remained unchallens plea was s raised | that in the Inquest it is mot recorded that 0 x.
recovered at the bostance of the aceousect im our opinion, there ig no requirement in law to make s in the inquest report. The P behind conducting the inquest is Ba wo ene pee we Bae be oo en on we Che pass ee tend weet es Lhe 7 % oh fa asesrtaim whether 4 OITeMMShanes Or aM UATiat apparent cause of death. The invest evidence on recovery of the dead bodies and he has clearly slated that Sunt Nembram suffered a disclasurs + in Sadan Kecha forest covered that the place from where the s shown by Sunil Hembrom. To perceive evidence witnesses ¥ vith initial doubt is an archaic notion'" a:
¢ t ' < « offieer that the accused has made at his painting the dead boaclies were recoverea Are & ae substantive plece of evidence ~ though, major part of Ins of the Investigating officer would be hearsay. In the above tacts, & must be held that the dead bodies af Roto Gagrai and | were recovered at pointing of Sunil Hembrom.
we ae beet geet.
bee' peed we ai. Section OF of the Indian Evidence Act which gee.
par went ban imposed by sections 25 and 26 makes ac:
ag rach of the information whether it ee os Avuited Apyead Na. SS ef ROS With Cn Revision Na. SPS of SERS COPE ssian or not which relates distinctly to the f fact discovered is COMSEQRENC € of the formation provide ed by the accused w hile eustedy, In his seonfessional statements before the investig:
g officer Sunil Hembrom has said that he can take him to the ¢ where the dead bodies were concealed and get these recoverect.
The recavery ef the dead bodies from a ditch cover ed by stone inside the forest ¢ at the imstance of Surul Hembrom lends assures + the credibility of his staternent made before the Inveshigad: afficer. The place where the dead bodies were conce aled becamis known te the investigating officer for the first time from the Aisclasure of Sunil Nembrom and, ther efore, ik would Fall wyricies SXPTESLIG 1 fact diseovered' under section 27 of the Indian Evic Act. Thee onfession¢ ai statement vide Exhibit-6 and recovery dead bodies at the instance of Sunil Hembrom are MeN Ma! ting materials against him, but he has failed to ole EX xplanation how he could know that the dead badies were in a ditch covered by stone inst de the forest. He was par ay the unlawful assembly which forced inside the house af the decease' and it is the prosecution evidence t that after committing murcer Rate Gagrai and Palo Gagrai the ace waged carried their dead bodies em a cot towards the forest. The confessional statement © 7 Share te ee Ss deees Hermbront and recovery of the dead bocies at his Instance [raw Y forest are in fume with the pr asecution Story. 4 ®Paorurian. © x » Ste ane 'ehe statement made by the accused that the dead body WAS thrown inte & river was challenged by fhe defences om ground that this was tao bread a statement to leaci te discov ery. The Hon'bic Supreme Court held that the accused § ash led the police to the spot where the des id body was thrown Aye therefore disc! asure statement of the < accused Was admissibis.
aa The admission of guilt, that is, Confession as evil a orn sonal ial has always occupied an important place ~ IS SA that the use of confession 9 law was riot & artier than Tacos are Stuarts. The Latin phrase "optunum habermus testent co reum® which means "we have the best witness, & COMME SMT Jag ats 5, 4 eS oof 5G Ky tees i 2 se a oye > oS oe xe tn Reviien Ha.
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t 4 ore oy eat ais aa Ped, ved, pk Y K QS rom was ill, Y voelunt RE 8 x £ aay 52 SLeTNeY 3 et & We % oo x POPES, AT SP ore ee te & tee al st shew, ae Hemi * sh, os MD ¢ firmed th an qe nt as jen yor re Snel! w < ay St ¢ poe Arak, ny ay > SHC 8 fed as a8 positive Lt Test) .
Le idles 2 gs a 4 has tat ort expe Ss 5 .
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i Sur Hembrer & snc PWS Ras af . 85 B1OTL ATL ww SRUPUN ATR the S st the dead boc at the ¢ x y .
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t 4 * bes AIRE TAL TLIC P EERE RP AA A ree z qa} was called and he performed puja In the cross-cxamination eletted from him that if is dificult te observe activities im th meyet vegan yt PRamederes § " Ys sy 3 Tora herase of Passing Hembrom from his house, and PW that Roto Gagrai had a dispute with Passing Hembray has riot proved motive ard the respondenis were ink But we are unable te put enmity < more ocular evidemce, Motive may be a circ relevant for assessing the evidence but the prosecution c weaker ned even if the motive is not very strong, In a case wi there is clear proof of metive for the commission of the crime it adds support to scular evidence and as regards ibered that enmity cuts bath ways assailant alone arc as observed hy Bahre ou oy Werearm Feaete ba MECHSE Peon. Ys ah giver circmumistanee and itis he alone whe beat knicaes to comamit a crime and the extent theres oe over a pathway was a personal dispute with era br om. Por that reason such large number of persens woud o mat have gathered together to KHL Rete Gagrai and Fale The SUpErs stition about witcheraft has affected the minds the rural areas of this part of the wpecia enactment in the form of Prevenix seams intrins the prosmeutioen story fone ACES seul persons had formed an unlawtu Uassembly wilh ttack the perceived evil, that is, Bato Gagrai { Balo a. Sir. Skea Kumar Singh, the learne cd if respondents has raised a substantial poirit not tald clearly what charges s they have to answer.
framed a8. The following charges y oe.
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32. The aforesaid iscussions leave no option to the Court except to set-aside the judgment dated 28.02.2004 passed in Sessions Trial No. 16 af 2003 and, accordingly, the judgement of of the respondent mo. i-daglal Hembrom, resporicdent Sing Hembrom, respondent no. S- Surul Hembroarn a 8 Kumar Nembrom, respondent no. 6-Manki Nembrom, respondent oe no. 7-Munara Gagrai, respondent no. 8-Tikun Gapgral, respondent x PRO.
a Oagral and respondent no. li-Sahedey Gagrai in Acquittal Appeal No. 23 of S{X)4 is set-aside.
3s. Resultantly, Criminal Revision Ne. 374 ef 2004 is also allowed, buat only with respect to the apposite parties /respondent no.g-Jagial Hembrom, respondent mno.S-Passing Hembrom, Sumi Rogmar NHerbrorn., respondent mo. G-Sunil Nermbrom respondent ia. 7-Manki Hermbrom, respondent no. §8-Mungra Oagrai, respondent no. O-Tilun Gagrai, respondent no. 11-Kundiva rai and respondent no. 12-Sahedev Gagrai therein. Mr. Sheo Kumar Singh, the learned counsel for the has argued that there is moa material fo support the Rete Gagrar and Palo GQagrai were billed im cae Acqnittel dapest Wo, 22 of 2604 Bh.
C's. Revision Na. S98 of 2494 ae oot, ahet i ' a f the object of f ccariumon GL O i 7 aye PESSe .
sembly, Me ee Rea 8 teed th z sree , a sem pr.
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uM PPRUEP cy rt 1 % Ay t the 3 t THOT! rte ak ON oF iy ine > sfor ere ris ety a aad Poa vet at rat aed ve gt raed a shana yy eeres hs co S stand oe fe hp os me te CLS "~ os it ; what pre oe beck xg Anwet if ' a ne OU wee oe yet fy wen on "4 'Red 4, ~~ ae a) on ~ ren "Geet we Mie % oe (ody, ws Go 35 ad iBE 7 as EF DELS der was y B at YM Las the a QOPMT GE ir Po the "ye as
3 Inewsta ' < tan 3 & sider o a3 Acqaitti Appeal Ho 23 af DIOS WHR Us, Rovisiun Ne. &TS of 2404 fo NOS [he commend object attributad to fre Members of Ne oslasvul assembly."
a What was the common object of unlawful assernbly and whether each accused can be fastened liability for His individual act are the matters in the realm of appreciation of evidence. It was nearing dawn in the marth of duly, evervane was sleeping in the house and suddenly twelve persons broke open the House and dragged Roto Gagrai and Pale Gagrai outside ane starte d assaulting them. The discrepancy in the testimony af prosecution witnesses as regards specific role played by each accused Was hot unnaturel, The incident was so unexpected and horrific that the witnesses could not have counted blows. They have seen the respondents inside their house and identified therri and that is enough for the purpose of section 149 of the Indian Penal Code ~ there was an uniawful assembly and two Persons were killed. Arn accused who has been found present along with others carrying deadly weapon at carly dawn and two persons were erutally murdered, his participation in the occurrence would be beyond any paie of dewbt and the only plea available to him would be to what extert he is vicariously liable with others for murder. The medical evidence records two penetrating wounds, may he cau sed by Bhugedi or knife and three sharp cut injuries, may be caused by sharp heavy object. Accor ding te PW1, Kandey Gagrai and Sunil Hemtbram were armed with Katari and dabiya, Mangal Singh Hembrom Was carrying bhujall, Shiva Hernbram was mn o arrying bor & arrow and Subkhial and Tikuon Gagrai were holding Gserai with fangs ard Mangal Singh Gagrai (Hembrom) assaulted Palo Gagrail with brayalt and Kandey Oagrai was carrving bhala, and; PWS and PW4 have made allegation of assault by Mangal Singh Gagral (Hembrom}. PW4 has further stated that Sunil Hembrom assantted Roto Gagral with kulhari. Mangal Singh Hembror was mot named in the First Information Report and after the investi gation he was nat sent up for trial. During the trial, the prosecution or the informant did not make an application for a ot are , agretee cuantiog: B40 Soha as summoring Mangal Singh Hembrom under section S19 of the 2 SAMS es SD EDAD ADEs Se 2 Anquitial Aggos! No, 23 of Bide Bith Cr Revisiags No. STR of Bt Code of Criminal Procedure to face the trial Mr. Shea Kumar Singh, the learned counsel for the respondents submits that in thelr statement under section 161 Code of Criminal Procedure none of the witnesses has spoken about any role played by Mangal Singh Hembrorm. Be that as it may, we cannot examine in the pI resent proceedings the role played by him. in all five penetrating and sharp cut injuries were found on the dead bodies arul from the prosecution evidence i is net clear whe has inflicted which particular injury upon Reto Gagrai and Palo Garrai. The other accused were carrying fathi-danda and there is just ene infury esch on both of therm which are referable to assault by lathi The accused formed an unlawful assembly with an object te cammit crime, but from the aforesaid evidence it is not established that their cammon object was to commit murder of Roto Gagrai and Palo Gagral. Jn our opinien, the prosecution has failed to establish that death of Roto Gagrai and Palo Gagrai was caused in prosecution of the cammor object. The fatal injuries upan Rate Gagrai and Palo Gagral appear to be handiwork of few aomused ~ not all however, there is na reliable material to atiribute the penetrating and sharp cut injuries caused fo Roto Gaprai and Pala Gagrai to the mdividual accused. The crime: scenario and evidence of the prosecution witnesses establish that members of the unlawful assembly knew that grievous injuries may be caused to Reto Gagrai anid Palo Gagrai,
40. The act of voluntarily causing grievous hurt relevant for the purpose of this case falls under sections 325 and 326 of the Indian Penal Cade. The doctor has not rendered a definite apinion that any of the penetrating or sharp cut infuries was sufficient tn the ordinary course to cause death. A penetrating or sharp cul injury om a vital part of body such as chest and head would definitely be dangerous to life and likely to cause death and, therefore, we hold that common object of the unlawlul assembly was to cause such injuries as falling under section GOA of the Indian Penal Code. The accused persons broke mito the house in the night and committed such acts as punishable in law under ae Asguitial Segeat No, 2H of BAR Bith Us. Revistas Rx, S74 of BQ section SS of the Indian Penal Code and the prosecution ewd > SPce is quile consistent that the accused by concealing the dead bodies i carmumitted the affence under ection BOT of Me, cri, Senet on 4 peed ne pet ay hove.
nae be! ms wd can 'at te Cade, The ey denon of PW, PIyo ang PWS who have specifically spoken about the accused re nurturing a doubt that Rote Gagrai witchcraft an Madho Nembrom and that was the reason they attacked them in the early morrming of 27.07 2002 is sufficient to afence punishable under of Witeh (D 8 The next question is what would be the sente nee to be awarded to the sur viving respondents, co A eriminal offence ig « onsalered as wrong yy and society as well, even theugh it is committed aes ee m the context of awarding death penalty, the Hon'ble e Court has observed in % must be exercised judicially. in accordance with the well eft Sh arma i State (Gout, af NCT of Delhil® .
F thes « case, in Ihe ¢ CONN oO ay Sears REPT, in fact, ¥ i Shep nek?
fe SHG S good fo oy " should be carnmensurate with 43, bi NEES ara] no guidelines are provided in the Code of Criminal Procedure for awarding of the punt pronouncements lean towards balancing the ¢ rs She evrence and avoiding too harsh punishrients, DAVIN g me curcuumstanmces in each case, As Sy the ageravating and mitiveti ce Angtial Agpest We, 2A af Sua. 'eG With Cn Revtsinn Ro. SPS af Sad oy.
MS whe vere Court of Ineic compound of many factors, inchadin e the nature of the offence as well as the circurnistanc externas Mg OF ASerayaty TE EPP EOe inordinate delay in di sposal of the appeal causes unimaginatle i mental age:
vant factor to tale into consideration for Serfence ~ acquittal appeal and criminal revision s for sixteen ye PR, that inordinate delay in di sposal of merey petition under Article 7 "28h of the Constibution of India entities the conviel to approach Su apreme Court for cammuntation of death sentence on the ground of violation of Articles 14 and 21. Way Kaede ode Be ew os RY meg Serger ef PR OSS ga. ay bates Elcra ORCK, In "Gissu Mahgoo wu State oP GPS the Hon'ble Supreme Court has held that inordinate delay of a Y application for leave to appeal wi 4 ground for cormmrutation of death pirushiient, AR otal sle feature of this case is that the 3 prosecution has faded fo ne acmused has infieted which particular uyury and this can alsa not be sad with certainty whe were hye carrying which weapon. In "GS Wala ». State ap Punjat ASSaA Mts allacked the wetim with iran rod, axe and tyre lever, "hirts ~ 4 injuries inchiding grievous myjuries on head and legs of goad the victim had cumulatively caused his death, The Hom ble that can Supreme Court has held that the aniy tnferen easonably be drawn is that the object of the accused RETSONS Was to beat Babvant Singh. In "Narneel Sagh vw State a CMIGENCE Was Tol clear which particular injury was caused by the accused. Two accused were charged uncer section oF ad ETA S Narddepes Phasya ad FoG ee PREV ER Furey - _ PME, os ot of the Indian Penal Code and one was acquitted, The sss . Sefvintion af Karnail Singh was held proper coider section G26 af sane the Indian Penal Code and he was sentenesd to BI for 3 years.
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