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The instant Criminal Appeals have been directed on behalf of the appellants against the judgment of conviction and order of sentence dated 24.02.2018 passed by the learned District & Sessions Judge, Lohardaga in S.T. Case No.154 of 2012 wherein the appellants were convicted for the offence under section 302/149 of the Indian Penal Code and section 3 of Prevention of Witch (Daain) Practices Act, 1999 and sentenced with imprisonment for life and a fine of Rs. 2,000/- each for the offence under section 302/149 of IPC and in default of payment of fine to further undergo RI of 2 months and further awarded punishment for one month of RI for the offence under section 3 of the Prevention of Witch (Daain) Practices Act, 1999.

2. All these five appeals have been directed against the one and same judgment, therefore, all the five appeals are being disposed of by the common judgment.

2 Cr. Appeal (DB) No. 1246 of 2018 with analogous cases

3. The brief facts leading to these criminal appeals are that the fardbeyan of informant Afsana Khatoon was recorded on 02.08.2012 at 7 O'clock with these allegations that on 02.08.2012 about 3 or 3:30 O'clock she alongwith her mother Anija Khatoon had gone to sow the paddy saplings in the agricultural field situated in eastern side of the village. After having sowed the paddy saplings and on account of the Ramjan left the agricultural field about 4:30 PM. She and her mother proceeded for the house as they reached near the village, in the meantime, the two sons of Uddin Ansari namely Mobin Ansari and Mustaque Ansari both caught hold of her mother and Guljar Ansari and Rabban Ansari sons of Juddin Ansari also came there. All the four dropped her mother on the ground and her legs and hands were caught by them. Wastak Ansari son of Uddin Ansari assaulted with the spade on the neck of her mother 3-4 times. On account of fear she could do nothing. In a few time her mother died. All the five accused fled away. Thereafter, she raised alarm. Some persons who were working in the agricultural field also rushed there. She went to her house while weeping. On reaching to her house, she also raised alarm at which all the persons of the locality assembled there and all were made aware in regard to the occurrence. The persons of the village also rushed to the place of occurrence. She remained to her house on account of fear. Her father had gone to Lohardaga market prior to murder of the mother. These accused persons had brandished her mother 'Daain Bisahi'. Earlier also they had beaten her mother. The matter was settled in the village mutually. On account of the very reason on 02.08.2012 the accused persons Mobin Ansari, Rabban Ansari, Guljar Ansari, Wastak Ansari and Mustaque Ansari all the 3 Cr. Appeal (DB) No. 1246 of 2018 with analogous cases five in furtherance of common intention brandishing her mother 'Daain Bisahi' assaulted with spade. On this fardbeyan of Afsana Khatoon the Case Crime No. 74 of 2012 was registered under section 302 r/w 34 of IPC and 3/4 of the Prevention of Witch (DAAIN) Practices Act, 1999 with the Lohardaga Police Station against the accused Mobin Ansari, Rabban Ansari, Guljar Ansari, Wastak Ansari and Mustaque Ansari.

In cross-examination this witness says that the accused persons had not murdered his mother in his present. Whatever he heard same has been deposed by him. The accused persons used to openly brandish his mother 'Daain Bisahi'. He reached after two hours when his father had reached there.

12.3 PW3- Afsana Khatoon, she in her examination-in-chief says the occurrence had taken place about one year and 1/2 month ago. It was 4:30 O'clock in the evening, she alongwith her mother Anija Khatoon had gone to sow the paddy sapling in her agricultural field. Thereafter, on account of Ramjan, she and her mother left the agricultural field for the house. When reached near the village, Mobin Ansari and Mustaque Ansari son of Abbuddin Ansari came and caught hold of her mother. In the meantime, Rabban Ansari and Guljar Ansari both sons of Albujuddin Ansari also rushed there. All the four dropped the mother on the ground and held her by her leg and the hands. Wastak Ansari who was present there gave the blow with the spade (Kudal) on the neck of her mother 3-4 times. Her 8 Cr. Appeal (DB) No. 1246 of 2018 with analogous cases mother was lying in pool of blood. On account of fear, she could speak nothing. Her mother died. All the five accused fled away towards the village, thereafter, while weeping she raised alarm. At some distance, the persons who were doing work in the agricultural field began to come and she reached to her house. On reaching the house, the persons of the locality attracted there. She told them in regard to the occurrence and the persons of the locality also reached to the place of occurrence. None was at her house. When her father came at 5 O'clock from Lohardaga she told him in regard to the occurrence. The reason of this occurrence was that the accused had brandished her 'Daain Bisahi'. Five or six months ago also they had beaten her mother. The police recorded her statement at the place of occurrence. She put signature after reading the same identified the signature marked as Exhibit-1/1.

20. The learned counsel for the appellants also contended that the motive of the occurrence is not proved which is alleged to be brandishing the deceased as 'Daain Bisahi'. Therefore, the prosecution case becomes doubtful. This contention of the learned counsel for the appellants is not found tenable, reason being that if the case is based on the eye witness, the motive of the occurrence has no significance. In all these appeals, the motive of the occurrence has been proved by the testimony of PW1- Sabbir Ansari, PW2- Majid Ansari, PW3- Afsana Khatoon and PW6- Rozamat Ansari. All these have stated that the accused used to brandish the deceased as 'Daain Bisahi'. If any person fell ill in the village for the same the deceased was made liable. The Panchayat was also held on the very issue of brandishing of 'Daain Bisahi' to the deceased. Though the investigating officer has not recorded the statement of any independent witnesses on this very motive of the occurrence, yet on account of the negligence of the investigating officer, the testimony of all these witnesses cannot be disbelieved. Although the motive of the occurrence in case of ocular evidence is not relevant, even then the prosecution has proved the motive of the occurrence.