Gauhati High Court
CRL.A(J)/76/2015 on 29 October, 2021
Author: N. Kotiswar Singh
Bench: N. Kotiswar Singh, Manish Choudhury
Page No.# 1/36
GAHC010006512015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/76/2015
1. Sukumar Mura,
S/o Kudiram Mura.
2. Rajesh Mura,
S/o Mongu Mura.
3. Sabilal Mura @ Chobilal Mura,
S/o Kudiram Mura.
All are of Village Narayanpur, Kalabil,
P.S.: Lakhipur,
Dist.-Cachar, Assam
...... Appellants
-Versus-
1. The State of Assam
2. Sri Chinilal Mura,
S/o: Lt. Lakhiram Mura,
Vill: Narayanpur Basti (Kalabeel),
P.S.: Lakhipur,
Dist.: Cachar,
Assam.
.....Respondents
Page No.# 2/36 :: BEFORE::
HON'BLE MR. JUSTICE N. KOTISWAR SINGH HON'BLE MR. JUSTICE MANISH CHOUDHURY Advocate for the Appellants : Ms. R.D. Mazumdar, Amicus Curiae.
Mr. L.R. Mazumder, Advocate Mr. A.Z. Ahmed, Advocate.
Advocate for the Respondent No.1 : Ms. B. Bhuyan,
Additional Public Prosecutor, Assam
Date of Hearing : 05.10.2021 and 07.10.2021
Date of Judgment : 29.10.2021.
JUDGMENT AND ORDER
(N. Kotiswar Singh, J.)
Heard Ms. R.D. Mazumdar, learned Amicus Curiae and Mr. L.R. Mazumder as well as Mr. A.Z. Ahmed, learned counsel for the appellants. Also heard Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam.
2. The present appeal has been preferred against the judgment and order dated 03.07.2015 passed by the Ld. Additional Sessions Judge, Cachar, Silchar in Sessions Case No.132/2013 by which 3 (three) persons, namely, Sukumar Mura, Rajesh Mura, Sabilal Mura @ Chobilal Mura, appellants herein, were convicted under Section 447/34 IPC and sentenced to undergo simple imprisonment for two months each, and further convicted under Section 302/34 IPC and sentenced to undergo imprisonment for life and also to pay a fine of Rs.4,000/- each and in default of which to undergo simple imprisonment for six months and they are also convicted under Section 201/34 IPC and sentenced to undergo rigorous imprisonment for 3 (three) years each and pay a fine of Rs.2,000/- each and in default of Page No.# 3/36 which to undergo simple imprisonment for 3(three) months. The entire fine amount of Rs.18,000/- was directed to be paid to the PW1 & PW2 (both the daughters of the deceased) in equal share as compensation.
3. The aforesaid 3(three) persons/appellants were convicted under the aforesaid penal sections for their involvement in the murder of one Jaharlal Mura who they suspected of being involved in witchcraft.
4. An FIR was lodged before the In-charge of Lakhipur Police Station on 07.06.2013 by one Chinilal Mura against 11 persons alleging that his elder brother, Jaharlal Mura @ Jez Mura was taken away by the aforesaid persons from his house to a field and beat him to death with sharp weapons and buried him in a hillock, in the jungle of Kalabil. It was also alleged that suspecting him to be a witch, the accused persons had performed a " puja" and killed him out of their superstitious belief and accordingly, a case was registered and on completion of the investigation, 17 persons were charge-sheeted. Charges framed on 20.09.2013 against the accused read as follows:
"Firstly- That you, along with 20/25 other persons, on 6/6/13 at about 12 O'clock at noon were members of an unlawful assembly, the common object of which assembly as to cause death of Jaharlal Mura @ Jaj Mura and were at that time armed with deadly weapon including Trisul and other sharp weapon and thereby, committed an office punishable under Section 148 of the IPC.
Secondly, that on the same time, date and place, you being the members of an unlawful assembly, namely, to commit the murder of Jaharlal Mura committed the offence of criminal trespassed by entering into the premises of said Jaharlal Mura @ Jaj Mura with intent to omit the offence and you being the members of such assembly at the time of committing of that offence and thereby committed an offence punishable under Section 447/148 IPC.
Page No.# 4/36 Thirdly, on the same time date and place, you being the members of an unlawful assembly, in prosecution of the common object of the said assembly, i.e. to commit the murder intentionally or knowingly causing the death of said Jaharlal Mura @ Jaj Mura, which offence you know to be likely to be committed in prosecution of the common object of the said assembly and you being the members of such assembly at the time of committing of that offence and thereby committed an offence punishable under Section 302/149 IPC.
Fourthly, that on the same date, time and place you being the members of the unlawful assembly in prosecution of the common object of the said assembly, namely, to commit the murder of Jaharlal Mura, @ Jaj Mura and knowing or having reason to believe that the offence of murder of a man punishable with death has been committed caused certain evidence connected with the said offence, namely, the dead body of Jaharlal Mura @ Jaj Mura to disappear with intention to screen you offenders from legal punishment and you being the members of the said unlawful assembly at the time of committing of that offence and thereby committed an offence publishable under Section 201/149 IPC."
5. The prosecution examined as many as 12 witnesses and produced material/ documentary evidences, on the basis of which the three appellants were convicted by the learned Trial Court as mentioned above.
6. Before we proceed to consider the appeal on merit, it may be apposite to refer briefly the evidences laid before the learned Trial Court.
7. P.W. 1 is one Rita Mura, who was about 15 years and is the younger daughter of the deceased Jaharlal Mura. She deposed that the incident happened a few months back and on the date of occurrence at about 10 am, her father was in the house. She stated that he was taken away from the house by the accused Sukumar, Rajesh, Mohan Lal and Chobilal, though, she could not state where her father was taken. The accused informed her and her sister Lakshimoni that there was a meeting and her father was being taken to the said meeting. At that time, her father told the appellants that he would go after taking his meal, however, the Page No.# 5/36 appellants did not allow him to take his meal and dragged him away by holding his gamocha which was wrapped on his neck. Later on, PW1 and her sister heard from a man that their father was killed. They also heard that he was not ready to die and he was buried alive. PW1 also stated that she heard that police recovered the dead body by digging the earth where he was buried. She also deposed that she and her sister cried but they were not allowed by Sukumar, the first appellant, to go to see the dead body of their father. She also stated that all the accused persons who were present in the dock were from her locality. She also stated that she has an elder brother but he was at his work on that day. She also stated that Chunilal was her uncle but he was also at his work on the day of occurrence. In the cross- examination she stated that they had good relation with the villagers and everyone saw her father being taken away by the said accused persons and that is the reason she did not report the aforesaid fact to anyone of them.
8. PW2 is one Lakshi Mura, the elder sister of the PW1, aged about 16 years, and the daughter of deceased Jaharlal Mura @ Gejo. She also deposed in similar lines as PW1. However, she furnished additional information stating that after her father was taken away, she and her sister followed them and they saw a gathering below the tamarind tree by the side of the road where they saw the appellants and others. She also stated that the villagers there, forced them to kneel down and salute the gathering and out of fear they started weeping and their father told them to go back to the house and to wait for him and thereafter, they went back to their house. However, their father didn't come back even after a long time and later on, they overheard one Moti telling the father of Sujit that their father was ready to die and he was buried alive whereupon they started crying. Later on, the police recovered the dead body of their father. She also stated that she wanted to go there but was Page No.# 6/36 prevented by the appellant Rajesh and Sukumar.
9. In the cross-examination, she stated that there were about 30 people present at the place of occurrence and she was not told by anyone when her father was killed. She also stated that she did not tell the police that she followed them and saw the gathering beneath the tamarind tree. She also did not tell the police that they were forced to kneel down and salute the gathering. She also did not inform the police that her father asked her to go back and to wait for him. She stated that she did not name the accused Nripen, Paresh, Babul, Mahesh, Umesh, Sukumar, Rajesh, Mohanlal, Chobilal and Monu before the police out of fear.
10. PW3 is one Ramendra Ghatwar, who was the Village Defence Party (VDP) President. He stated that at the time of occurrence he was in his house. He stated that on the day of occurrence, before dusk, the police came to his house and asked him to accompany to Kalabeel Basti and accordingly, he accompanied the police. Then they went to the house of the deceased where the daughters of the deceased were found crying who told the police that their father had been taken away by Devi Maa. He further deposed that while the police was talking with the daughters of the deceased, a large number of villagers came to the premises of the house of the deceased and amongst them was Sukumar. He stated that even after coming to the premises of the deceased, the appellant Sukumar was busy performing "Jhupang" with a trishul in his hand and he was almost in a state of delirium. PW3 also stated that the entire villagers were against them and as such, they became afraid and police also told him to return as it was already dusk. Thereafter, he returned home and on the next morning at around 10/11 am, the police came again with a large contingent of women police and others. One Magistrate and one Abdul Ali who was a local Panchayat member were also present there. Thereafter, the police took him again to Kalabeel Basti. There, two boys led the Page No.# 7/36 police to his place where the deceased was buried. Thereafter, the dead body was recovered. He also stated that Sukumar and others were still performing Jhupang and women of the village were also present there. He stated that the police with the help of women police cordoned all of the villagers and took them to Lakhipur. He also deposed that in the place where the dead body was buried, one trishul and four medium sized stones were also found. He however, did not notice whether shirt, pants were also found with the blood stains.
11. Karnamoni Namasudra, PW4, a Panchayat member who stated that on the day of incident, the In-charge of Banskandi PIC called him over phone, who instructed him to go to Kalabeel Basti immediately. On going there he saw a large number of villagers already there. The police went to the house of the deceased. On being asked the villagers informed the police that the Goddess had killed the witch. To another question by the police, the villagers replied that the dead body was in a jungle about 1 km away from the place. Thereafter, the police asked the villagers to show the place where the dead body had been buried. When the police asked the villagers to send 2/3 persons to the Police Station for interrogation, all the villagers replied that since it was the case of witch hunting, either all of them should be taken to the Police Station or none be taken and thereafter, chaos ensued. Since it was already dusk, the police asked them to go back. On the next day PW4 came again at the place of occurrence at about 10 A.M. There he found the police and CRPF personnel bring out the dead body and the inquest was held. The police arrested about 17 persons from the place when they started fighting with the police because of which the police resorted to lathi charge. He also stated that he saw that the accused Sukumar with a trishul and went to the police with said trishul. The said trishul was seized by the police when the fighting started.
12. PW5 is one Abdul Ali who was not an eye witness, who merely heard about the Page No.# 8/36 incident. He stated that he had heard about the incident of witch hunting and that one Gajo (deceased) had been killed and buried in Kalabeel Basti. He was asked to accompany the police. When he arrived, the police had started exhuming the body. He was a witness to the inquest of the body of the deceased.
He stated that while returning with the dead body there was disturbance and fighting with the police by the villagers because of which the police resorted to lathi charge. Thereafter, he (PW5) ran away out of fear. He, saw Sukumar who was performing " Jhupang"
and being arrested by the police.
13. PW6 is one Lalu Mura who is the son of the deceased who deposed as to what was told to him by his sisters and not an eye witness.
14. PW7, Sanjib Mura is another son of the deceased who testified that when he returned home at around 5 pm, his two sisters Rita and Lakshmi were crying and their father was not in the house. He deposed that his sisters informed him that their father had been dragged away by the appellant Sukumar and Rajesh in the jungle at about 12 noon and he was killed there. He accordingly, informed the Gaon Panchayat President about the incident and police came to their house at night. In the morning the next day the police again came to their house to recover the dead body.
In the cross-examination he stated that he was not examined by the police during the investigation.
15. PW8, Ram Nath Mura is the younger brother of the deceased Jaharlal Mura who mentioned about the accused Sukumar of being highly regarded in the village as they thought that he was possessed by spirit. He also deposed that before the incident happened, Page No.# 9/36 the appellant Sukumar holding the hair of Lakshmi (PW2) asked her as to who had taught her witchcraft and people present there pacified the appellant Sukumar and rescued her. He stated that on the day of occurrence his deceased brother had gone to Gaon Panchayat President and reported about the misbehaviour of the appellant with his daughter Lakshmi and then sought a village "bichar" for the said behaviour. Accordingly, he went to the house of the deceased in the morning of the day of occurrence to know what action was taken by the Gaon Panchayat President. He deposed that when he was talking with his deceased elder brother, the accused Sukumar and Rajesh came there with a trishul and a shabol. He said that the trishul was inserted in the tongue of the accused Sukumar and shabol was also held by him. They then dragged his elder brother by holding the gamocha and pointing the shabol towards the deceased. They told that they would force Jaharlal Mura to take a round through the entire village naked. Thereafter, PW8 and the two daughters of the deceased tried to resist them but they could not, and out of fear and shame, PW8 left towards Pilapool market and after coming back at around 4 pm he saw the two daughters of the deceased crying. They informed him that the accused Sukumar and Rajesh had killed their father. He stated that on the next day the police came and recovered the dead body of the deceased brother from the jungle.
16. P.W.9 is the informant and younger brother of the deceased Jaharlal Mura. He stated that in the evening when he returned from his work, he went to the house of the deceased where he found a large gathering and also the police. There he came to know from the villagers that Sukumar, after performing Jhupang had incited the villagers to kill his elder brother Jaharlal Mura.
17. PW10 was the doctor who performed the post-mortem examination on the dead body Page No.# 10/36 of the deceased. He testified about the injuries received by the deceased which are reproduced hereinbelow.
"Injuries:
(1) Incised injury with gaping of size 5x1 cm, horizontally place at the front of neck in the level of thyroid cartilage with dept upto trachea cutting skin, muscles, vessels.
(2) Incised injury of size 4x1 cm horizontally placed at the front of neck 2 cam below injury No.1 cutting skin, muscles and going upto the trachear posteriorly. (3) Lacerated injury over right side forehead extending to root of nose and right eye of size 6x4 cm, scalp deep with fracture of nosal bone. (4) Lacerated injury of size 4x3 cm. of scalp deep at the middle of right temporal region with underlying depressed communited fracture of right temporal bone without displacement of fragments in an area of 5 x 4 cm. (5) Extradural haemorrhage covering right temporal area of b rain.
(6) Subdural haemorrhage over whole of frontal area.
(7) Soft tissue contused at the front.
(8) Fracture of sternum at the level of 2 nd costal cartilage with contusion
surrounding soft tissues.
(9) Fracture of ribs, end to 5th on right side and 2nd to 4th on left.
(10) Lacerated at multiple sites.
(11) Both lung found lacerated and collapsed. Approx 500 ml of liquid blood inside the thoracic cavity.
(12) Lacerated at multiple sites.
(13) Abdominal wall found soft tissue contused.
(14) Liver found lacerated.
(15) Spinal cord lacerated with contusion of adjacent abdominal wall. (16) Both kidneys found contused with contusion of surrounding soft tissue.
(17) Bladder found contused anteriorly and empty.
Rest organs were found healthy."
He gave the opinion that death was due to haemorrhage and shock resulting from the Page No.# 11/36 injuries sustained as described above and all these injuries were antemortem in nature. He also gave the opinion that the injuries No.1 & 2 were caused due to sharp cutting weapon and rest of the injuries were caused by blunt weapon and trauma and all the injuries are homicidal in nature and time since the death was about 28 to 48 hours.
18. PW11, Mrs. Ruth Lienthang was the Executive Magistrate who went along with the police and recovered the dead body buried in a secluded place and conducted the inquest. She stated that the body was buried one meter deep and he was wearing under-pants and rest of the body was naked and saw some injuries on his body, on the back of the head, back of neck, on the right side of the neck and on the right side of the back. He also found some articles along with the dead body such as, one trishul, stone pieces, one nylon bag, red gamocha and blood stained shirts which were buried with the body and blood stains were found all over the pit.
19. PW12, one Abdul Basit was the In-charge of Banskandi PIC who had carried out the investigation. He testified that he proceeded to the village after being informed by one Jagadish Bania that one Jaharlal Mura was murdered by the villagers and buried him in the ground. Thereafter, one General Diary Entry was made, vide Banskandi PIC GDE No.96 dated 06.06.2013, extract of which was exhibited as Ext.6. Thereafter, he proceeded to the place of occurrence where he met the VDP Secretary and thereafter, went to the house of the deceased. There he met the wife of the deceased and his daughters and he came to know that at about 12 noon one Sukumar Mura, Umesh Mura, Rahesh Mura, Manu Mura, Rajit Tantubai, Nirmal Tantubai, Nipen Mura, Proborson Tantubai, Kunjabati Mura, Rita Mirua and Radamoni Tantubai along with 20/25 others had come to the house of the deceased and took him along with them and murdered him and buried his body in the ground. He stated that the Page No.# 12/36 deceased was taken away and killed on the suspicion that he was practicing witchcraft. He also mentioned about the disturbance caused by the villagers at the time of investigation. He also said that when the dead body of the deceased was taken, the accused Sukumar demanded that the dead body be buried there as the deceased was practicing witchcraft and these persons were armed with various weapons. Accordingly, these persons were apprehended and an FIR was registered against them.
20. On completion of adducing of evidences of the prosecution, the accused were examined under Section 313 Cr.P.C. However, all the accused pleaded that they were innocent and the accusations were false and claimed that they were not involved. None of the accused made any statement regarding the circumstances in which the said deceased was taken away by them and killed. At the same time, they also declined to adduce evidence in their defence.
21. The learned Trial Court after considering the evidences on record convicted the three persons/ appellants as mentioned above.
22. The learned Trial Court relied on the evidence of PW1 & PW2 as regards the fact that in their presence the appellants forcibly took away the deceased Jaharlal Mura.
23. As regards recovery of the dead body of the deceased, the learned Trial Court relied on the evidence of PW3, PW4 and PW5 which was corroborated by PW12. However, the learned Trial Court was also conscious of the fact that there was no eye witness of the appellants assaulting the deceased fatally, but took the view that there were circumstantial evidences of the involvement of the appellants in the murder of the deceased Jaharlal Mura.
The learned Trial Court invoked the last seen theory to implicate the appellants. For this, the learned Trial Court referred to the entry in the General Diary, GDE No.96, extract of Page No.# 13/36 which was exhibited as Exhibit-6, on the basis of which the learned Trial Court held that the murder of the deceased took place soon after he was taken away by the appellants from his residence. Thus, by invoking the last seen theory, the learned Trial Court held that in the light of the evidence of PW1 & PW2, the deceased was in the custody of the appellants and concluded that the deceased was physically assaulted by his captures thereby sustained multiple injuries as reflected in the post-mortem report. The learned Trial Court also concluded on the basis of the evidence that there is nothing on record to show that the deceased was assaulted by some other persons and in fact, none of the appellants took any plea to suggest otherwise also. The learned Trial Court accordingly, concluded that there are evidences on record to show that the appellants had come together and dragged the deceased away by force and later he was killed.
The learned Trial Court also held that the body of the deceased was recovered with injuries on vital parts of the body clearly indicates that there was a common intention to kill him and also to cause disappearance of evidence of the offence of murder.
Accordingly, the learned Trial Court convicted the appellants as mentioned above. As regards the other accused charged along with the appellants, the learned Trial Court held that the prosecution had failed to establish the charges against them beyond reasonable doubt and acquitted them.
24. From the above what is very clear is that the conviction of the appellants was based on circumstantial evidence and by invoking the last seen theory.
25. Before we proceed with examination of the evidence on record in the present case, we may refer to the relevant law in this regard. As far as conviction on the basis of circumstantial Page No.# 14/36 evidence is concerned, the law is well settled.
26. In this regard one can refer to the decision of the Hon'ble Supreme Court in Majenderan Langeswaran Vs. State (NCT Of Delhi) & Anr ., (2013) 7 SCC 192, wherein the Hon'ble Supreme Court after referring to the earlier decision in G. Parshwanath Vs. State of Karnataka, (2010) 8 SCC 593, made observations in para No.23 of the aforesaid decision as follows:
"23. It would be appropriate to consider some of the recent decisions of this Court in cases where conviction was based on the circumstantial evidence. In G. Parshwanath v. State of Karnataka [(2010) 8 SCC 593 : (2010) 3 SCC (Cri) 1027] , this Court elaborately dealt with the subject and held as under: (SCC pp. 602-603, paras 23-24) "23. In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The court thereafter has to consider the effect of proved facts.
24. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the Page No.# 15/36 conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court."
27. As regards last seen theory, we may refer to the decision of the Hon'ble Supreme Court in Chattar Singh Vs. State of Haryana, (2008) 14 SCC 667 , wherein it was held that the time gap between the point of time when the accused and the deceased were last seen together alive and time when the deceased was found dead, should be small to rule out the possibility of any other person other than the accused being responsible for the crime.
It was as held in para No. 18 in Chattar Singh (supra) as follows,
18. So far as the last-seen aspect is concerned it is necessary to take note of two decisions of this Court. In State of U.P. Vs. Satish [(2005) 3 SCC 114 : 2005 SCC (Cri) 642] it was noted as follows : (SCC p. 123, para 22) "22. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and Page No.# 16/36 5, in addition to the evidence of PW 2."
28. Keeping in mind the aforesaid principles of law as regards circumstantial evidence and last seen theory in the present case, it has to be seen as to whether there is a chain of evidences so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the appellants and the evidences must show that in all human probability, the act must have been done by the appellants. We have to see whether the facts so established are consistent only with the hypothesis of the guilt of the appellants. Further, these circumstances certainly have to be fully established.
29. From the evidences what we have noted is that there were only 2 (two) eye witnesses namely, PW1 and PW2, the two daughters of the deceased, namely, Rita Mura and Lakshmi Mura who had categorically stated that they saw their father being forcefully taken away by the appellants Sukumar Mura, Rajesh Mura and Sabilal Mura @ Chobilal Mura. Thus, as far as, the factum of their father being taken away by these appellants is concerned, the evidence has come out very clearly. The aforesaid evidence has not been shaken in any manner by the defence.
However, there is no eye witness account as to how the deceased had died except for the fact that police were led by certain persons to the place where the deceased was found buried, and certain surrounding circumstances have come to light through the mouth of some of the prosecution witnesses. Thus, the involvement of the appellants has to be proved by circumstantial evidences, which according to us, exist.
30. There are sufficient evidences to show that the deceased died due to certain fatal injuries received as mentioned in the post-mortem report regarding which the doctor, PW10 had testified before the learned Trial Court and that it was homicidal in nature. There is also Page No.# 17/36 evidence to show that the deceased had died soon after he was taken away by the appellants, by way of Ext.6 and the post-mortem report.
31. The prosecution case is that the deceased was forcibly taken away by the accused and he was killed on the suspicion of practicing witchcraft and he was buried alive. As far as this crucial ingredient of the crime as to who had actually killed the deceased, there is no eye witness account. However, there are evidences indicating involvement of some of the villagers as they were resisting the police from carrying out the investigation when the police came to the village on being informed that the deceased was killed and was buried in which the presence of the appellant Sukumar has come into light prominently. There is evidence in terms of the General Diary Entry (GDE) which was exhibited as Ext.6 and which was proved by PW12, the I.O. of the case. According to PW12, one Jagadish Bania, President of Narayanpur T.E. (G.P.) informed him over telephone that he had learnt from the son of the deceased Jaharlal Mura @ Gejo Mura that at around 12 noon, the public of Narayanpur-Basti (Kalabeel) had killed the deceased and he was buried alive and after the information was collected, the GDE No.96 was registered. However, though the said Jagadish Bania was not examined, the General Diary Entry (GDE) which was made contemporaneously on the date of incident was proved, clearly indicates the death of the deceased and his burial in the village on the day the deceased was taken away by the appellants and on receipt of such information, the I/O of Banskandi PIC had proceeded to the village and who upon the arrival in the village found a large gathering. On reaching the village he examined the two daughters of the deceased who had mentioned that their father had been taken away by the appellants. The evidence of the PW12, the I/O of Banskandi PIC of the case corroborates the statement of PW1 & PW2 that their father was taken away by accused Sukumar Mura, Rajesh Mura and Page No.# 18/36 Sabilal Mura @ Chobilal Mura. The evidence of PW12, the I/O of the case clearly shows that when he had returned after recovery of the dead body, the appellants and other accused persons had gheraoed them and obstructed them not to proceed with the dead body and demanded that the dead body of Jaharlal Mura be kept buried there only as he was a witch and these persons were armed with various weapons including trishul, spear etc. which were all seized. The seizure lists of these weapons were proved in course of the trial. The role of the appellant Sukumar, who along with the two other appellants took away the deceased, in obstructing the investigation is again proved. Even if the role of the other two appellants have not been highlighted in the subsequent events, with their involvement in the initial act of forcibly taking away of the deceased along with Sukumar, and the continuous events which unfolded, they are also equally culpable as the first appellant Sukumar.
The evidence of PW3, PW4 and PW5 shows that the villagers did not co-operate with the police in their investigation when the police came to the village on the first day of investigation and in fact, obstructed the police. The witnesses have identified the presence of the appellant Sukumar in the gathering and he was performing " Jhupang".
32. The villagers including the appellant Sukumar were in a hostile state of mind which was proved by the evidence of PW3, PW4 and PW5. The VDP President (PW3) who accompanied the police in the investigation, mentioned the presence of Sukumar along with others who were present in the premises of the house of the deceased. PW3 mentioned about Sukumar performing Jhupang with a trishul in the hand in a state of delirium on the first day. Though the two boys who led the police to the place of occurrence were not examined, the fact of burial of the deceased stands established by the evidence of PW3, PW4, PW5 and PW12. PW3 in his statement has mentioned the presence of trishul and four Page No.# 19/36 medium sized stones in the place where the dead body of the deceased was buried which are all tell tale signs of belief in witchcraft. The evidence of PW4 shows the hostile nature of the villagers who had accused the deceased of performing witchcraft. PW4 had categorically stated that when the I/O of the case requested the villagers to send two to three persons to the police station for the investigation, the villagers replied that as the matter related to witch hunting, either all of them should be taken to the police station or none should be taken and thereafter chaos ensued and the police could not proceed with further investigation and the police had to come back to the village with a larger force on the next day. The fact that the police had to take the help of a larger force and resort to lathi charge on the next day after retrieval of the buried body clearly indicates the non-cooperative and hostile position taken by the villagers regarding the investigation of the death of the deceased, in which the presence of the appellant Sukumar has been established.
33. PW5, one Abdul Ali, who was a resident of the nearby village of the deceased had accompanied the police in their investigation and he witnessed the exhumation of the body of the deceased in presence of the Executive Magistrate. He also stated that on their way back with the dead body there was much disturbance caused by the villagers and some of the villagers were engaged in performing Jhupang and also had engaged in scuffling with the police because of which the police had to resort to lathi charge. He also said that he saw the accused Sukumar leading the Jhupang and he also saw him being taken by the police.
34. Thus, from the evidence, what comes up clearly is that the deceased was taken away from his house by the aforesaid accused Sukumar, Rajesh, Mohanlal and Chobilal, which was witnessed by the two daughters of the deceased and soon thereafter, within about 2/3 hours the deceased died. The fact that the deceased died an unnatural death due to serious injuries Page No.# 20/36 received on his body and was homicidal in nature has been also conclusively established by the medical evidence.
However, since the prosecution has not produced any eye witness as to the person(s) who killed the deceased and buried him, the case of the prosecution has to be based on the circumstantial evidences.
35. We will now discuss these circumstantial evidences. The post-mortem report carried out on 07.06.2013 i.e., on the next day of the occurrence shows that the death had taken place within 24 hours as the dead body was exhumed on the next day of incident on 07.06.2013 and the deceased was reportedly taken away from his house sometime in the noon of the previous day on 06.06.2013 on which day the police came to the village in the evening. The dead body was recovered in the next day morning on 07.06.2013. Thus, there is clear evidence to show that the death had occurred within 24 hours.
36. It is on record through the entry made in the General Diary which was exhibited as Ext.6 to the effect that the police received a report at around 5 P.M. on 06.06.2013 and that the villagers of Narayanpur Basti had killed Jaharlal Mura at around 12 noon and they had buried the dead body, the correctness of the aforesaid GD Entry has not been challenged.
Thus, the aforesaid evidence would clearly indicate that the death of the aforesaid Jaharlal Mura took place within about 2-3 hours of after being taken away by the appellants and others from his house on 06.06.2013.
37. Therefore, the accused Sukumar, Rajesh, Mohanlal and Chobilal who had taken away the deceased against his will had some explanation to offer as to what had happened to the deceased after he was taken away by them since the deceased died within 2/3 hours Page No.# 21/36 thereafter. Though no direct evidence has emerged to show what actually had happened to the deceased after he was taken away by the appellants, yet there is evidence that the deceased died soon (within about 2/3 hours) after he was taken away by the aforesaid accused persons. When the accused were examined under Section 313 Cr.P.C., they never offered any explanation as to what had happened to the deceased after he was taken away by them from his house but claimed ignorance of the incident, as if nothing ever had happened in the village. Thus, as these accused were seen last together and since the death of the deceased had occurred very soon thereafter within about 2/3 hours, in our view, the last seen theory is applicable in the present case.
38. According to us, the following facts can be said to have been established:
(i) That the deceased Jaharlal Mura @ Gejo was forcibly taken away from his house by the appellants.
(ii) That the deceased died soon thereafter within a span of about 2 to 3 hrs.
(iii) That the deceased died a violent death after receiving fatal injuries on his vital parts of the body, which was homicidal in nature.
39. The critical question to consider in this case is as to whether, in the light of the last seen theory, facts and the circumstances so established can lead only to the hypothesis of guilt of the appellants and whether there is any other missing link in the chain of events or whether the involvement of any other person other than the appellants can be ruled out.
40. In our opinion, the following are circumstances which would link the appellants to the death of the Jaharlal Mura :
(i) The appellant Sukumar Mura, who came along with the other 2 (two) Page No.# 22/36 appellants Rajesh Mura & Chobilal Mura was seen by P.W.3 of performing Jhupang in presence of other villagers on the first day when the police visited on 06.06.2013 that is after the deceased was killed and buried. On the next day also when the dead body was recovered, he was seen along with other villages performing "Jhupang".
(ii) When the police went on the first day, to inquire about the incident, the police were told by the villagers that the Goddess had killed the witch and that the dead body was in a jungle. When the police asked the villagers to send 2/3 persons to the police station for recording their statement, all the villagers replied that since it was a case of witch-hunting either all of them be taken to the PIC or none be taken and at that time the appellant Sukumar was present amongst the villagers. The fact of the villagers being led by the appellant Sukumar while being engaged in Jhupang was also testified by the P.W.5.
(iii) There is clear evidence of villagers obstructing the proper investigation of the case and also during recovery of the dead body of the deceased. The IO also corroborated the existence of the aforesaid hostile acts of the villagers and the presence of Sukumar in all these occasions.
(iv) The fact that the villagers did not co-operate but obstructed the investigation in the killing of the deceased and the continued presence and lead role played by the appellant Sukumar, certainly points to the knowledge and involvement of Sukumar in the killing of the deceased.
41. In our view, the facts and circumstances so established as discussed above, are Page No.# 23/36 consistent only with the hypothesis of guilt of the appellants. We are also of the view that there is no missing link in the chain of evidences.
42. It may be suggested that the involvement of other villagers cannot be ruled out in the light of the evidence of prosecution witness PW2 that the two sisters (PW1 & PW2) had followed the appellants who had forcibly taken away their father and there was a gathering below the tamarind tree by the side of the road where they saw other accused and the gathering forced them to kneel down and salute the gathering and thereafter, they out of fear started weeping and their father (the deceased) told them to go back to the house.
43. In our opinion, the aforesaid evidence, if relied upon, would only establish the fact that there were other villagers along with the appellants involved, though the identify of these villagers have not been clearly established. However, the involvement of the appellants to the extent of taking away forcibly the deceased remains unshaken. Thus, even if it is assumed that the appellants themselves were not seen inflicting injuries, they were certainly party to the criminal offence of causing homicidal death to the deceased by bringing the deceased from his residence before he was killed. The fact that other villagers also could be directly responsible for the death of the deceased will not change or diminish or obliterate the role of the appellants as the appellants were the ones who dragged away the deceased from his house and soon thereafter, he was killed and the appellant Sukumar was an identified member of the hostile gathering of the villagers, as testified by the PW3, PW4, PW5, PW9 and PW12.
44. It is to be remembered that this is not an ordinary crime but a murder associated with a highly superstitious belief in witchcraft where many of the villagers were complicit. The Page No.# 24/36 facts that the villagers did not co-operate with the police on the first day of investigation who told the police as testified by PW4 that it was a case of witch hunting and either all the villagers or none be taken by the police, and that Goddess had killed the deceased and the dead body was in the jungle about 1 km away from the village and thereafter, creating a chaos in the village, and the fact that in the second day of investigation including the recovery of the dead body where there was resistance of the villagers on the ground that the deceased was a witch and hence, the body should not be removed clearly indicate the role of not only the appellants but also other villagers in the murder of the deceased. PW1 in the cross-examination stated that many villagers saw his father being taken away by the appellants. But there is nothing on record to show that the villagers intervened. It may be also noted that the appellant No.1 Sukumar was seen by independent witnesses PW3, PW4 as well as PW5 of performing Jhupang and playing a lead role in the obstructive behaviour of the villagers. The crime was committed due to superstitious belief in witchcraft and the death of deceased was not caused by any single individual but rather a group of individuals in which the appellants played a vital role as discussed above. The presence and role of other villagers will not dilute the role of the appellants in the death of the deceased.
45. It is also to be noted that proof by circumstantial evidence and the application of last seen theory are not principles to be applied with mathematical precision. These are general principles of evidence evolved through living human experience and thus have become an integral part of the law of evidence. These principles have evolved keeping in mind the human experience and the logical human behaviour. Under certain circumstances, because of such behaviour, certain inferences can be drawn safely and as such, these principles cannot be put in a straightjacket formula. These principles have to be understood in the context of Page No.# 25/36 the peculiar facts and circumstances obtaining in any case and behavioural pattern in the particular society. In fact, the Hon'ble Supreme Court in a catena of cases as discussed above, has used the expression " reasonable grounds" referring to the conclusion consistent with the innocence of the accused, and also held that these circumstances must show that "in all human probability", the act must have been done by the accused. Therefore, the use of expressions "reasonable grounds" and in "all human probability" does indicate that these principles cannot be rigidly construed as a straightjacket formula but have to be applied keeping in mind the dynamics of the peculiar facts and circumstances in any case.
46. In the present case, if the appellants were really innocent or were not involved in the killing of the deceased, nothing prevented them from speaking out when they were given the opportunity to do so under Section 313 Cr.P.C after being confronted with the incriminating evidences against them. Certain adverse inferences can be drawn against them in the context of their silence. The complete silence of the appellants in the backdrop of the various circumstances implicating them of their involvement can be taken into consideration by the Court to corroborate other evidences which have emerged in course of the trial. There was resistance to the investigation of the case by the villagers which included the appellant Sukumar and the villagers have openly claimed that the deceased was killed and the dead body was in the jungle. If anyone is indeed not guilty nor involved, there is no reason why he should not cooperate with the investigation. It defies logic that he should, on the contrary, resist such an investigation. There was not only resistance to the investigation of the case, but there is also clear evidence that the villagers had categorically told the police that the deceased was involved in witchcraft and as such his dead body should not be removed after he was buried.
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47. Therefore, in our view, the aforesaid statements and behaviour of the villagers including the appellants, do provide a clear link of their involvement in the death of the deceased within about 2-3 hours after he was taken away by the appellants. The death was not a natural one but an unnatural homicidal death due to grievous injuries received by the deceased. The recovery of trishul and stones at the burial site can also explain the nature of the injuries received by the deceased and the motive for the said killing. The deceased was killed on being suspected of being a witch. Nothing has been suggested by the defence as to any other hypothesis except that the appellants are guilty in the present case.
It was not even suggested by the appellants that after the appellants forcibly took away the deceased, he was taken away by the villagers from the custody of the appellants and as such, the appellants could not be responsible for the death of the deceased or that they did not have any idea about what had happened to the deceased thereafter.
On the contrary, the continued obstruction to the investigation and also in the light of the statements made by the villagers to the police to the effect that the deceased was involved in witchcraft, and that he has been buried and his body should not be removed, and the presence of the appellant Sukumar with the villagers clearly indicate the complicity of the villagers and the appellants.
Though it is a fact that the prosecution has not been able to identify or prove the identity of the other villagers who were involved in the death of the deceased, this aspect will not distract from the role of the appellants in the death of the deceased with their initial act of forcibly taking away the deceased before he was killed soon, and their non-cooperation and resistance to the investigation by the police.
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48. In a rural setting as in the present case, the behaviour of the villagers and other evidences which have emerged amply justify our conclusion that the appellants along with some other villagers were involved in the killing and burial of the deceased. All the circumstances proved are not isolated ones, but form a continuous chain of events, beginning with forcible taking away of the deceased by the appellants culminating in the discovery of the dead body of the deceased without any prolonged delay and the obstruction by the villagers in the investigation and even after the retrieval of the body.
In our opinion, there is no possibility or hypothesis which would show innocence of the appellants or render their role doubtful.
Thus, taking a holistic view of the circumstances of the case, which have emerged as discussed above, we are of the opinion that a chain of events, in the present case, is complete so as not to leave any reasonable ground for conclusion consistent with the innocence of the appellants and in our view, in all human probability, the acts of killing of the deceased and burial were done by the appellants along with other villagers. The role of any other villagers who unfortunately have not been identified, in carrying out the aforesaid crime by the appellants will not diminish the role of the appellants.
In our view, inability of the prosecution to identify other members of the villagers who may be involved in the crime will not change the nature of the case against the appellants. Nothing has been brought to our notice of any reasonable ground which would indicate the innocence of the appellants.
49. We will now deal with the submissions advanced on behalf of the appellants in assailing the judgment.
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50. Ms. R.D. Mazumdar, learned Amicus Curiae submits that the I.O. (PW12) did not corroborate the statement of PW1 when he testified that PW1 did not state before him that the appellants had dragged her father by gamocha and also that the PW1 did not state that her father was taken away for the purpose of a meeting and also that she did not state that her father had asked the appellants to allow to take his meal but the appellants did not allow.
PW12 also stated that PW1 did not state before him that she and her sister came to know from one Moti that their father was killed and buried alive. On the other hand, the I.O. stated that the PW1 stated to him that she had seen the occurrence herself.
51. Similarly, it was pointed out by the learned Amicus Curiae that the PW2 did not state before the I.O. that her father requested the appellants to allow him to take tea but they did not allow. She also did not tell the I.O. that the appellants had forced her to kneel down and give pronam to the gathering and that PW2 also did not state that her father told her to go back home and wait for him.
52. Thus, according to the learned Amicus Curiae the evidences of PW1 and PW2 cannot be relied upon as these were improvements over previous statements and as such, contradictory.
53. Learned Amicus Curiae also has submitted that Moti, who had apparently informed the PW1 and PW2 that their father had been killed and was buried alive, was never examined by the I.O.
54. In our view inspite of these alleged discrepancies, the factum of the deceased father being taken forcibly by the appellants from his home in presence of his daughters remain unshaken.
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55. Similarly, learned Amicus Curiae has also submitted that the GD Entry which was exhibited as Ext.6 was not signed by the Presiding Judge. The said GD Entry mentioned about one Jagadish Bania giving information that the deceased was killed by the public of Narayanpur Basti at around 12 noon and his dead body had been buried.
It has been submitted that the GD Entry also shows that no specific names of other persons were mentioned but mentioned that it was the public of Narayanpur Basti who had killed the deceased.
56. In our view, as also held by the learned Trial Court, non signing of the said exhibit (Ext.6) which was proved by I.O., by the Judge is a mere technical or procedural defect which would not impinge upon the veracity of the information being furnished that the death of the deceased occurred at about 12 noon. Further, non-mentioning of the names of the appellants in the said GDE will not render the prosecution case unreliable as the emphasis of the information was on the death of the deceased and his burial.
57. The learned Amicus Curiae also has submitted that no other circumstance has been established except that of the deceased being taken away by the appellants. It has been submitted that there were as many as 17 people who were accused but they, except the appellants, were left out from consideration by the prosecution as well as the learned Trial Court.
58. Learned Amicus Curiae also has submitted that the motive for killing of the deceased by the appellants has not been established.
59. Mr. L.R. Mazumder, learned private counsel for the appellants has also submitted that in the ejahar, the names of many persons were mentioned but no specific allegations have Page No.# 30/36 been made against the appellants. Further, in the statement given by PW1, PW2 and other prosecution witnesses, those persons named in the FIR were not mentioned. It has been submitted that in fact, it is for the first time that the names of the appellants came to be introduced in course of the trial through the witnesses. According to the learned counsel for the appellants, this pick and choose method of naming only a few accused is not permissible in law which cast a serious doubt on the prosecution case.
60. The learned Amicus Curiae/learned counsel for the appellants have referred to the decisions in Balaka Singh &Ors Vs. State Of Punjab, (1975) 4 SCC 511 and Babbu alias Babulal, Deviram & Ors. Vs. State of Madhya Pradesh, 2011 CRL.L.J. 3843 in support of their submission that pick and choose method of naming the accused is not permissible.
It has been also submitted that while 17 persons were charge-sheeted, only 3 were convicted, indicating that innocent persons were implicated, thus making the prosecution case unreliable.
61. As regards the last seen theory, learned Amicus Curiae/learned counsel for the appellants, relying on the decisions of the Hon'ble Supreme Court in (1) Pohalya Motya Valvi Vs. State of Maharashtra, (1980) 1 SCC 530, (2) Kanhaiya Lal Vs. State of Rajasthan, (2014) 4 SCC 715 and (3) Rambrakash alias Jalim Vs. State of Chhattisgarh, (2016) SCC 251, have submitted that the circumstance of last seen together does not by itself lead to inference that it was the appellants who had committed the crime and there must be something more to establish the connection between the accused and the crime that points to guilt of the accused.
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62. It has been submitted that in the present case, apart from the deceased being seen last with the appellants, there is no other evidence to implicate them as regards the fatal injuries caused to the deceased and the burial of the dead body.
63. In this regard, one may observe that though the names of several persons, including the appellants were mentioned in the F.I.R. and they were subsequently charge-sheeted, but in the trial, the prosecution could not prove the case against them except the appellants. However, the involvement of the appellants have come out clearly in the evidence of PW1, PW2, PW3, PW4, PW5 and PW12 and as such, it cannot be said to be a case of pick and choose. Failure to prove the case against other co-accused does not necessarily dilute the case against the other accused in all circumstances.
64. Coming to the last seen theory as discussed above, it is not a case of murder committed by one or two individuals. It was not an ordinary crime of murder by one or two persons but a crime committed by a group of people in which the appellants played a vital role, influenced by the superstitious belief in witchcraft in which the villagers did not raise any objection. Rather, many of the villagers blindly believed in the alleged practice of witchcraft by the deceased, because of which the villagers obstructed the investigation by the police.
65. As regards, the superstitious belief in witchcraft, apart from the evidences, one may also refer to the evidence of PW8, Ram Nath Mura, brother of the deceased who had deposed that one day before the date of occurrence, there was a village puja in which the appellant Sukumar was present who was respected by all the villagers and was given pronam by the villagers in the belief that he was possessed by spirit of god.
He also stated that the appellant Sukumar had caught hold of Lakshmi (PW2), Page No.# 32/36 daughter of the deceased and asked her who had taught her about Daini Bidya (witchcraft). However, because of intervention of the people, the appellant Sukumar was pacified and PW2 was rescued.
This incident, narrated by the PW8 prior to the day of occurrence when the deceased was taken away by the appellants and killed, clearly indicates the prevalence of superstitious belief in witchcraft in the village. Though the remaining part of the evidence of PW8 was not believed and not relied upon by the learned Trial Court, the fact remains that his initial part of the testimony mentions about the belief in the superstition of witchcraft in the village and the prominent role played by the appellant Sukumar. The existence of such superstition is also reflected in the deposition of other prosecution witnesses, PW3, PW4, PW5 as well as the I.O. (PW12).
66. As testified by PW4 the villagers had clearly stated that this is a case of witch hunting. The evidence of these witnesses clearly mention about the non-cooperation and obstruction caused by the villagers in which the appellant Sukumar was very much present.
67. That the death of the deceased was connected with the superstitious belief in witchcraft is also borne out by records. PW11 and PW12 had clearly stated that when the dead body was brought out, there was some articles like trishul, stone pieces, one Nylon bag, one red gamocha, blood stains recovered from the burial site which are indicative of the practice of witchcraft.
68. Thus, this is a crime committed because of superstitious belief in witchcraft in which the superstitious villagers wanted to get rid of the deceased on the ground that he was involved in the practice of witch craft, in which the appellants played a vital role.
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69. As discussed above, there is also evidence to the effect that the death of the deceased occurred within 2/3 hours as can be clearly inferred from the General Diary Entry which was exhibited as Ext. 6. It is to be noted that the appellants against whom there is a clear evidence that they had forcibly taken away the deceased did not offer any explanation as to what had happened to the deceased after he was taken away forcibly by them. The whereabouts of the deceased was thus within the specific knowledge of the appellants and if there is failure to disclose the same, the Court can draw adverse inference against the appellants as provided under Section 106 of the Evidence Act. No evidence has come on record to indicate that, after the deceased was forcibly taken away by the appellants, the appellants ceased to have any role to play before the deceased was killed within about 2-3 hours of being taken away.
70. This Court has also taken note of the fact that none of the appellants had offered to adduce any evidence and they denied of having any role in the crime and claimed innocence which goes contrary to the specific evidences of prosecution witnesses, PW 1 and PW2 as well as other witnesses, PW4, PW5 and PW12.
71. As discussed earlier, in our view, non-cooperation and resistance offered by the villagers in which the appellant Sukumar was playing an active role, would be the vital pieces of corroborative evidence to show the link of the appellant with the murder and burial of the body of the deceased. Therefore, it cannot be said that there is no corroborative evidence other than the fact of the deceased being seen last along with the appellants.
72. It is also to be remembered that the prosecution has to establish the charge beyond all reasonable doubts. It is only when there is a reasonable doubt about the prosecution case Page No.# 34/36 that a benefit of doubt can be given to the accused for acquittal.
73. In the present case, it cannot be said that there is any "reasonable doubt" about the prosecution case of the appellant being involved in the crime.
74. We have to keep in mind that the incident occurred in the rural setting in this country where such superstitious belief in witchcraft is still prevalent. If the villagers were not involved, there was no reason why they should have not cooperated with the police in the investigation and also why they should have obstructed the police to the investigation and recovery of the dead body.
75. Per contra, referring to the decision in State of Rajasthan Vs. Shobha Ram , (2013) 14 SCC 732, it has been submitted by Ms. B. Bhuyan, learned Additional Public Prosecutor that if the common intention is proved, it may not be necessary that acts of several persons charged with the commission of an offence jointly must be same or identically similar.
76. According to the learned Additional Public Prosecutor, in the present case, there was a common intention to do away with the life of the deceased as the deceased was believed to be practising witchcraft, for which the appellants had forcibly taken the deceased from his house and ultimately, he was killed within about 2/3 hours and buried. The fact of taking away of the deceased by the appellants was followed very soon by act of killing and as such, even if, it was not clearly established by direct evidence that the appellants themselves had caused the death, the fact that there was a common intention to kill the deceased and the appellants had played an important role in taking away the deceased from his house and death occurred within a very short span of time would make them liable for an act executed Page No.# 35/36 with the common design, even if participation of other villagers could not be proved.
77. Relying on the decision in Saji and Ors. Vs. State of Kerala , (2011) 5 SCC 423, it was submitted by learned Additional Public Prosecutor that in order to bring the charge under Section 149 IPC it is not necessary that five or more persons must be brought before the Court. It has been submitted that in the present case, more than five persons were brought before the Court though only three were ultimately convicted.
78. Referring to the decision in Saddik alias Lalo Gulam Hussain Shaikh and Ors. Vs. State of Gujarat, (2016) 10 SCC 663, it was submitted by the learned Additional Public Prosecutor that once common object of unlawful assembly was established, it was not necessary that all persons forming the unlawful assembly must have shown to have committed the overt act.
79. It has been submitted that in the present case, it was established that some villagers including the appellants had a common object of killing the deceased on the suspicion of the deceased practising witch craft and it was not necessary that everybody including the appellants must have committed the same overt act. They could play different roles for committing the crime.
80. It has been submitted that in the present case, there is evidence to the effect that the appellants had taken away the deceased against his will before he was killed and buried. This fact of dragging away the deceased was the first act towards the commission of crime.
81. Relying on the decision of Vivek Kalra Vs. State of Maharashtra, (2014) 12 SCC 439, it was submitted by the Additional Public Prosecutor that when circumstantial evidences have been established, absence of proof of the motive of the accused will not be fatal.
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82. For the reasons discussed earlier, we do not find any merit in the submission advanced on behalf of the appellants and as such, it may not be necessary to dwell upon the submission of the learned Additional Public Prosecutor.
83. For the reasons discussed above, we do not find any reason to interfere with the conviction of the appellants by the learned Additional Sessions Judge, Cachar, Silchar as per judgment dated 03.07.2015 passed in Sessions Case No. 132 of 2013 and we, accordingly, uphold the same.
Resultantly, the appeal is dismissed as devoid of merit.
84. Ms. R.D. Mazumdar, learned Amicus Curiae who has ably assisted this Court in conducting this jail appeal, may be given the honorarium at the rate fixed under the Rules.
85. Records be remitted forthwith to the concerned court.
JUDGE JUDGE Comparing Assistant